John Finnis

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John Finnis (born 1940), an Australian Professor of Law at University College, Oxford and the University of Notre Dame, is one of the most prominent living legal philosophers. His work, Natural Law and Natural Rights, is regarded as one of the definitive works of natural law philosophy, drawing both on Oxonian and Catholic Thomistic philosophical traditions to challenge the dominant anglo-positivist approach to legal philosophy taken by John Austin and H.L.A. Hart.

John Finnis was educated at The University of Adelaide, where he was a member of St. Mark's College.

In Natural Law and Natural Rights, Finnis's ethics focuses on seven intrinsically valuable basic goods: life, knowledge, play, aesthetic experience (or beauty), sociability (or friendship), practical reasonableness and religion. However, in his latter works these have been partially reworked. These basic goods are self-evidently "good" and cannot be deduced from other premises. (The unabashed intuitionism of Finnis's view has restricted its influence.) They are incommensurable with one another. The incommensurability of these goods means that one cannot rationally measure one against another. It makes as little sense to say that the importance of life outweighs that of knowledge, as it does to say that the mass of a pen "outweighs" the length of an eraser. Their incommensurability also leads Finnis to state that people should pursue all the 'goods' and should not ignore any one of them. People may individually choose to emphasise one good over another, but none should be entirely excluded. This concept also forms part of Finnis's critique of utilitarian or proportionalist philosophies, as he calls them. These rely on a concept of commensurability which is not rationally viable.

Finnis suggests that by acting perfectly reasonably on the basis of the basic goods, a person will act morally so long as he does not act in a way which directly harms one of the basic goods, although Finnis recognises that every action will indirectly harm one of the basic goods because of the opportunity costs related to a choice of action. There is not one right moral answer where a person faces a choice, but many equally rational choices which the actor must choose from based on his own feelings and desires. This later argument appears reminisent of Hume.

An additional component of Finnis' model is "the first moral principle". This principle supplements the basic goods. It is a standard to guide choices in serving and sharing the basic goods. Using it will lead to the best moral outcome. The first moral principle is:

in voluntarily acting for human goods and avoiding what is opposed to them, one ought to choose and otherwise will those and only those Possibilities whose willing is compatible with integral human fulfilment.

Integral human fulfilment refers to the good of all persons and communities.

Finnis has been a vigorous opponent of abortion, euthanasia, and nuclear weapons. Like most natural lawyers of the Catholic tradition, he considers all sexual activity that is not between married persons, "of the reproductive kind", and done with birth control devices, to be inherently immoral. His arguments for these views are, however, significantly more sophisticated than what one might unreflectingly expect from a "natural law" position. Finnis thoroughly rejects what he calls "perverted faculty" arguments, the sort of argument which claims, for instance, that the only legitimate sexual activity is reproductive sexual activity precisely because human sex organs are naturally "for" reproduction. Finnis accepts the standard objections to such arguments, and argues for the traditional Catholic position by focusing on the role that sexual activity plays in a good human life. However, Finnis does maintain that only sexual activity "of the reproductive kind" between married adults is morally acceptable. He opposes efforts to extend legal recognition (including the right to marry) to homosexuality, and testified on behalf of the state of Colorado in its unsuccessful attempt to prohibit the extension of anti-discrimination laws to homosexuals.

Contents

[edit] Types of injustice in law

Finnis recognises four types of injustice in law.

  • First, according to Finnis, the main responsibility of the ruler is to further the common good. A ruler's exercise of power is radically defective if a ruler exploits his opportunities by making stipulations intended by him not for the common good but for his own or his friends' advantage, or out of malice against some person or group.
  • Secondly, except in "emergency" circumstances in which the law (even the constitution) should be bypassed, an office-holder who acts beyond his authority is an abuse of power and an injustice to those treated as subject to it.
  • Thirdly, the exercise of authority in conformity with the Rule of Law is for the common good. Therefore, the exercise of power otherwise than according to manner and form is an abuse and an injustice unless those involved consent, or ought to consent, to an accelerated procedure.
  • Fourthly, the stipulated may be distributively unjust by appropriating some benefit to a class not reasonably entitled to it, while denying it to other persons; or by imposing on some a burden from which others are, on no just criterion, exempt.

Effects of injustice on obligation

The ruler has no right to be obeyed. However, he has the authority to give directions and make laws that are morally obligatory and that he has the responsiblity of enforcing. He has the authority for the sake of the common good. Therefore if he uses his authority to make stipulations against the common good, those stipulations lack the authority they otherwise would have by virtue of being his.

However, Finnis argues that there is an obligation for the citizen to conform to an unjust stipulation to the extent necessary to avoid weakening the legal system.

The ruler has the responsibility of repealing, not enforcing unjust law.

[edit] Conflicting views

There is controversy regarding the self-evidence of Finnis's "basic goods". Firstly, it could be contended that these basic goods may not be fully exhaustive. Secondly, it is disputed whether these basic goods commit the so-called naturalistic fallacy of deriving ought from is, where an "is"-statement (describing a fact) cannot be used to derive an "ought" statement (a statement concerning what ought to be the case.)

Finnis' approach to the 'sources' of normativity are, however, designed precisely to avoid charges of the naturalistic fallacy, and it is that aspect of his thought which has drawn the most criticism from more traditional Thomistic philosophers who insist that the dictates of the natural law are to be derived from the metaphysical study of human nature. Finnis, by constructing an account of the basic goods out of the self-reflective consideration of practical reason, never attempts to derive an evaluative 'ought' from a non-evaluative 'is'; instead, he begins by reflecting on the most general ends or goals of action as understood by practical reason and mediated by critical self-reflection. Critics sometimes argue as though genuine ethical conclusions of the kind that Finnis claims to have reached could only be secured by determining what is truly good for human beings on the basis of a metaphysical account of human nature. Those critics accordingly conclude that Finnis must be mistaken because no such move from 'ought' to 'is' could be legitimate and all other evaluative claims ultimately rest upon arbitrary preferences. Finnis' response to such criticism would be that they have simply failed to follow his arguments from beginning to end, since they seek to demonstrate that any human agent who reflects honestly upon the aims of his own life and human life in general must accept his conclusions. Moreover, the so-called 'naturalistic fallacy' and the basic Humean-Moorean distinction between 'fact' and 'value' has been challenged by an increasingly large number of prominent philosophers since Finnis wrote Natural Law and Natural Rights, including such notable and diverse philosophers as Alasdair MacIntyre, Philippa Foot, John McDowell, Hilary Putnam, Hans-Georg Gadamer, Charles Taylor, Rosalind Hursthouse, David Brink, and others. That said, the views of the philosophers listed above differ in many important ways from those of Finnis and most reject Finnis's substantive positions. Finnis takes his position to be properly independent of the metaphysical question about whether knowledge of the nature of human beings can provide an account of the human goods; whether or not such a procedure is possible, Finnis claims that his position on the human goods cannot be rejected without self-contradiction. It is in that sense that he claims that the basic goods are 'self-evident,' and not through some mysterious process of intuition. Nevertheless, debate continues over the tenability of Finnis' position, which has by now come to be termed the 'new natural law theory' or the 'Grisez-Finnis' version of natural law theory. Various defenses, developments, qualifications, and constructive critiques of the view can be found in the works of the Princeton political science professor Robert P. George, the Georgetown philosopher Mark Murphy, and especially in Finnis' fellow Australian philosopher Timothy Chappell, whose own writings on moral philosophy represent the most significant alteration of Finnis' views in a theory which remains primarily inspired by those views.

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