Natural law and history: challenging the legalism of John Finnis.

• Author: Blake, Nathanael
• Position: Essay

Introduction

It is a truism, but nonetheless true, that modern philosophical discourse revolves around the question of how (or if) real knowledge is possible. Philosophers from Jurgen Habermas to Alasdair MacIntyre have begun their own efforts to establish a tenable foundation by observing that there is no common agreement regarding the basis of knowledge, especially moral knowledge. MacIntyre concludes that much modern political and social debate is futile because the contending parties have incommensurable moral visions, with many declaring a relativism (at least when convenient) that precludes any movement towards common truth.

One response to this epistemological predicament has been a revival of natural law theory, especially among political conservatives. In particular, the new natural law theory, of which John Finnis is the foremost champion, seeks to avoid the epistemological pitfalls in which the scholastic version of natural law theory had previously become entangled. By focusing on experiential human goods, this approach to natural law (which Finnis considers to be in many ways a return to Aquinas) buttresses itself against the skeptical critiques that had pushed the scholastic natural law tradition aside.

The problem of Finnis's emphasis on the experiential apprehension of the basic human goods is that he does not go far enough, and so the new natural law theory remains vulnerable on several points. It remains prone to reifications that fail to account for the particularity of human existence and moral choices. It is also subject to a legalism that neglects the contingency of communication and understanding. These flaws may be overcome, at least in part, by engagement with two philosophers from the continental tradition, Kierkegaard and Gadamer, whose insights direct us toward a fuller conception of the natural law. (1) This reconsideration pays heed to the particularity, historicity, and communicative nature of the natural law.

The New Natural Law

Along with Germain Grisez, John Finnis has been a leader in propounding the so-called new natural law theory. The label is perhaps a misnomer, as Finnis himself identifies his views closely with those of Aquinas, asserting that much of what is considered the classic view of natural law is actually a late scholastic variation. While Finnis is extremely prolific, his primary points are contained within his magnum opus Natural Law and Natural Rights and in his study Aquinas. Central to the new natural law approach is an avoidance of metaphysics and a disavowal of biologistic teleology. Rather, the new natural law takes its departure from what it considers basic goods experienced by humans. Early in Natural Law and Natural Rights Finnis offers this summary of the new natural law method:

There is (i) a set of basic practical principles which indicate the basic forms of human flourishing as goods to be pursued and realized, and which are in one way or another used by everyone who considers what to do, however unsound his conclusions; and (ii) a set of basic methodological requirements of practical reasonableness (itself one of the basic forms of human flourishing) which distinguish sound from unsound practical thinking, and which, when all brought to bear, provide the criteria for distinguishing ... between ways of acting that are morally right or morally wrong--thus enabling one to formulate (iii) a set of general moral standards. (2) These basic forms of the good, or principles of human flourishing, are life, knowledge, play, aesthetic experience, sociability (friendship), practical reasonableness, and religion. In later writings he has added marriage to this list. He considers these goods to be self-evident and argues that "[e]ach is fundamental. None is more fundamental than any of the others, for each can reasonably be focused upon, and each, when focused upon, claims a priority of value. Hence there is no objective priority of value amongst them." (3) Nor is recognition of these goods a moral judgment. Aquinas's first principle of practical reason, that good is to be sought and evil avoided, requires more than knowledge of various goods; it also has requirements as to how they are to be sought in order to promote true human flourishing. Since all the basic goods cannot be simultaneously pursued to their fullest, a means of mediating between them and practical action must be introduced.

Thus, another set of principles, described as the basic requirements of practical reasonableness, is needed. "The requirements to which we now turn express the 'natural law method' of working out the (moral) 'natural law' from the first (pre-moral) 'principles of natural law.'" (4) The basic requirements of practical reasonableness in pursuit of the fundamental goods are:

1. Harmony of purpose/a coherent plan of life

2. No arbitrary preferences amongst values

3. No arbitrary preferences amongst persons

4. Detachment from particular realizations of good (avoiding fanaticism)

5. Fidelity to commitments (avoiding apathy and/or fickleness)

6. Efficacy (within limits)

7. Respect for every basic value

8. Respect for community and the common good

9. Following conscience and being authentic (5)

It is these requirements, Ennis asserts, that provide for the transition between the pre-moral basic human goods and moral judgment. Life is such that simple recognition of goods is not enough to integrate them all into true human flourishing. Rather, choices must be made about how to pursue each good and how to balance one good with another. "For the real problem of morality ... is not in discerning the basic aspects of human well-being, but in integrating those various aspects into the intelligent and reasonable commitments, projects, and actions that go to make up one or other of the many admirable forms of human life." (6) Finnis is keen to avoid resorting to teleology or a hierarchy of values. There is no simple good nor a single overriding principle that can settle all disputes, nor a metaphysical principle to settle all questions. Rather, "The basic values, and the practical principles expressing them, are the only guides we have. Each is objectively basic, primary, incommensurable with the other in point of objective importance." (7) Nor can there even be a final resting place where all is balanced, for "[n]one of the basic aspects of one's well-being is ever fully realized or finally completed." (8) Each basic good is incomplete by itself, and not all ways of pursuing one good are compatible with other goods. Thus, the task of practical reason is never finished, but further discernments and judgments will always be needed.

This ethical discernment cannot be a simple weighing of consequences. Finnis is fierce in his rejection of consequentialism, which he views as setting one basic good against another.

To choose an act which in itself simply (or primarily) damages a basic good is thereby to engage oneself willy-nilly (but directly) in an act of opposition to an incommensurable value (an aspect of human personality) which one treats as if it were an object of measureable worth that could be outweighed by commensurable objects of greater (or cumulatively greater) worth. To do this will often accord with our feelings, our generosity, our sympathy, and with our commitments and projects in the forms in which we undertook them. But it can never be justified in reason. (9) Therefore some precepts of the natural law always apply in every situation, and may be expressed in negative formulations (i.e., thou shalt not). Finnis argues that "It is always unreasonable to choose directly against any basic value, whether in oneself or in one's fellow human beings. And the basic values are not mere abstractions; they are aspects of the real wellbeing of flesh-and-blood individuals." (10) Thus, there are certain absolute human rights, and certain acts against them are always and everywhere wrong. There cannot, however, be any such finality about what constitutes the good, for goods can be instantiated in innumerable ways in diverse situations. Thus, even if not all goods go together in the finitude of human existence, one must never act directly against a basic human good.

A restoration, not a revolution

Finnis's approach to natural law tries to neutralize many of the criticisms leveled against what is seen as traditional scholastic natural law theory.

A theory of practical reasonableness, of forms of human good, and of practical principles, such as the theory Aquinas adumbrated but left insufficiently elaborated, is untouched by the objections which Hume (and after him the whole Enlightenment and post-Enlightenment current of ethics) was able to raise against the tradition of rationalism eked out by voluntarism. That tradition presented itself as the classical or central tradition of natural law theorizing, but in truth it was peculiar to late scholasticism. (11) Thus, the difficulty in deriving "an ought from an is" (the fact-value distinction) does not trouble Finnis, for he makes no claim to be able to do such. The good is known not by an examination of human nature or practice, but by reflection on experiential goods. "For Aquinas, the way to discover what is morally right (virtue) and wrong (vice) is to ask, not what is in accordance with human nature, but what is reasonable. And this quest will eventually bring one back to the underived first principles of practical reasonableness--principles which make no reference at all to human nature, but only to human good." (12) Finnis singles out Vazquez and Suarez as examples of the late scholastic viewpoint, and argues that, while their ethical theory used terms from Aristotle and Aquinas, it differed radically in substance from the tradition they claimed to represent. He especially critiques their rationalism:

Vazquez and Suarez maintained, first, that in discerning the content of the natural law, reason's decisive act consists in...