November 4--Contemporary Issues
Professor William R. Long 11/04/04
Today we will introduce the work of three important twentieth-century scholars: HLA Hart, John Finnis and Hans Kelsen. The best way to begin to understand them is to see them as attempting to restate great traditions of jurisprudential thought with attention to 20th century realities. This means that the two major traditions (natural law and positivism) are still very much alive, even though natural law has not yet made huge inroads. The previous page talked about Hart's work and leading principles; here I will mention Finnis and Kelsen briefly.*
[*One of the things that will make Hart, Finnis and Kelsen difficult for American students is that each comes from a different country and speaks out of a tradition that is not aware of or indebted to American realities. For example, Finnis is an Australian, born in the late 1930s, and educated in Australia and Oxford. Kelsen was an Austrian, born in 1881, who did not arrive in the US until he was in his mid 50s. Hart is English, and is most shaped by and reacting to the positivism of John Austin.]
Finnis (along with Germain Grisez) has almost singlehandedly tried to resurrect the natural law tradition in moral philosophy and law since the mid 1960s. Since the 1980s he has had several more companions, some of whom teach in elite schools around the country. He tries to offer a "neo-Aquinian" natural law philosophy which does not presuppose a divine being. Instead of speaking, as would Plato, about the Form of the Good, or seeking the Good, he will speak about human desires to pursue "basic goods" in life. By focusing attention on goods rather than a single Good, Finnis skillfully articulates what he calls a theory of moral action for our day. Or, in other words, he seeks a theory of how to live well.
The theory may be briefly stated as follows: all rational agents set out to preserve or obtain things they perceive to be good for themselves. Even the most rational actors, however, can be mistaken. We need to exercise practical reason (he takes this term from Aristotle) to obtain that good at any one time. Finnis will isolate what he calls seven "basic goods" in life, goods that are fundamental, underived from other goods and irreducible to other things, that are the motivation and goal of action (sort of the moral equivalent of chemical elements). He also has nine principles of practical reasonableness that are what we might call "methods of operation" rather than "ends sought."
Seven Basic Goods
The list of the basic goods in Bix differs in small ways from the following one, but I want to list it here for comparative purposes. Finnis says that of the seven "basic goods," three are substantive (existing prior to action) and four are reflexive (depending on our choices). The three substantive goods are: 1) human life (health and procreation); 2) knowledge and esthetic appreciation; 3) skilled performance. The four reflexive goods are: 1) self-integration; 2) authenticity/practical reasonableness; 3) justice and friendship; and 4) religion/holiness.
The nine principles of practical reasonableness then guide us how to act in fulfilling these seven basic goods. I won't list them all here, but a few are illustrative. 1) "Good is to be done and evil is to be avoided." As you see, this comes right out of Aquinas and is also Aquinas' basic principle of moral action. 2) In doing the good and avoiding evil, one ought to choose and will only those possibilities where willing and action are compatible with "integral human fulfillment." It is this principle that gives Finnis and those committed to global human rights, for example, the most "ammunition"--actions that work against "integral human fulfillment are basically wrong. 3) One is to respect every basic value in every act...that is, never choose against a basic good. 4) Show no arbitrary preference among people; 5) Foster the common good of one's community. 6) Form a rational plan of life. 7) Have no arbitrary preferences among any of the basic goods (that is, consider them all "equal").
Bix makes the point that Finnis' legal theory is derivative of his moral theory. Law enters into the picture as a way of effecting the realization of the basic goods. Therefore, on his theory of law, I do not think he goes much beyond Aquinas. Yet, he has set out the parameters for legal scholars who want to apply his analysis to the formulation of laws. Laws therefore should reflect the basic goods and flow from the principles of practical reasonableness. Thus, he can seemingly make common cause with people who are not theists today but want to ground their legal theory either in "eternal principles" or "basic principles." This remains, I believe, the most attractive feature about natural law: that the positivist separation of law and morality (as Holmes talked about it, for example), is not intellectually or morally satisfying.
One difficulty I see with his theory (or at least a question) is whether the theory really reflects the rough and tumble of legislation, on the one hand, and whether it tries to "explain too much." That is, much legislation is merely procedural or clean up or trying to repair little gaps from previous laws. Do we need an overarching theory that will explain what we do here? Isn't the positivist approach to law, separating law and morality and seeing law in a much more instrumental way (i.e., the "instrument" to make society function smoothly) a more satisfying explanation?
One more little quibble. People in the natural law tradition throw around the word "moral" all the time (moral reasoning, moral sense, moral action, etc.). I am not sure I know what that means. I think it folds back to the basic goods, but it is I think a "crutch" word--used a lot to help the natural law philosophers "walk," but not useful for those who are seemingly "limb-intact."
On to Kelsen.
Copyright © 2004-2007 William R. Long