"… a theory of natural law need not have as its principle concern, either theoretical or pedagogical, the affirmation that 'unjust laws are not law'. Indeed, I know of no theory of natural law in which that affirmation, or anything like it, is more than a subordinate theorem. The principle concern of a theory of natural law is to explore the requirements of practicable reasonableness in relation to the good of human beings who, because they live in a community with one another, are confronted with the problems of justice and rights, of authority, law and obligation. " Finnis, J. , in Natural Laws and Natural Rights
Discuss In order to discuss fully the issues that Finnis raises in his above dictum, one first needs to explore the concept of natural law theory. However, the idea of natural law being theoretical undermines the practicality of any principle that it may purport as without there being a pedagogical notion underpinning it, the ideas constituting any theory are transient. Finnis attempts to overcome this by linking practicable reasonableness with theory. He appears to jump from the premise of a theoretical approach to a pedagogical conclusion with no logical progression of argument.
He separates, in his last sentence, justice from rights and authority, law and obligation. The separation of these principles is consistent with his distinct separation of human law from natural law as they become separate entities which are individually addressed in his theory. To "explore the requirements of practical reasonableness" in relation to natural law requires reason as the very word "explore" suggests a conscious undertaking of a specific task. The idea of reason is of fundamental importance throughout natural law theorems.
The concept of human law derivates from natural law in so far as it partakes of right reason. If it derivates from reason, it is called an unjust law. Finnis has been accused of offering "natural law without nature"1 meaning that he is forced to rely on claims that certain propositions in normative (establishing a standard) ethics are self evidently true. The idea of self-evidence is manifested through what Finnis terms "basic goods". These are self evident in that they are not susceptible to proof thus they cannot be denied. They have the potential to bring about a sense of completeness, which needs no ulterior justification.
I would argue against Finnis here. That they "cannot be denied" means that they cannot truly be asserted either which makes the interpretation of his basic goods subjective. Subjectivity undermines the very idea of uniform self evidence as although each individual may become aware of each good, their experience of it will be radically different. That these goods bring a "sense of completeness" also begs the question of why one needs to feel complete for the application and theory of the nature law to successfully develop as practical or human law.
This can be answered to an extent by the religious origins of natural law. Both Aquinas and Aristotle felt that there was a higher, pressing need- God- which enabled us, through innate reason, to develop into moral beings i. e. become fulfilled. Finnis disputed that self actualisation of dispositional properties was based fundamentally upon a religious theory of natural law- he rather suggests that it is based on practical reason- a purely human concept- which makes humans pursue the actions which develop the human good.
His attempt to distance it from "pure" naturalism; a concept associated with Aquinas is exposed by his claims that natural law does not necessitate a belief in morality as including observance of rationally demonstrable principles of behaviour. According to Finnis, "the positivist who refutes these claims does not deny the true doctrine of natural law". However, this would then logically necessitate that the "true" doctrine of natural law for positivists must, in its very essence be a different "true" doctrine of natural law for the naturalists as the fundamental premise for the argument has been expunged.
A difficulty is then exposed through the difference in the concept of truth and belief which surely must be of vital importance when discussing the concept and exposition of law and justice. The transition away from basing a theory on God given properties weakens Finnis argument for natural law. Indeed, although religion is one of his equally weighted seven basic goods it refers merely to a [subjective] concern for an order of things beyond each individual. Ironically his subjectivity creates an involuntarily link between God and the basic goods.
Anselm asserted that God is a concept; "a subjective, ultimate concern which varies from person to person". This parallels the arguments against Finnis' theory thus weakening further the pedagogical significance that his writings have. Although Finnis does not conform to the idea of innate reason from a higher being he attempts to suggest that the human goods are irreducibly basic as they are not derived from any other goods and are not verified by individual human feelings.
That the foundation of Finnis' theory is comprised of basic human goods renders it sociological in its very essence. It is a subjective human theory which means that his goods are indeed validated by human interpretation and must therefore change as society changes as it is quintessentially fluid. As Hart believes in law being a social phenomenon, Finnis takes this further and states that human goods must be seen in the light of a community of human beings, as only in communal life are there the conditions for the pursuit of human goods.
However, the meaning underpinning this part of the theory undermines the very essence of the goods as it suggests an active pursuit of them is needed to achieve them. This is challenged by earlier doctrines, perhaps best abridged by Aristotle who suggests that "each individual should aspire to a level as elevated as his/her abilities permit". These are objective in the sense that every reasonable person must assent to their value as objects of human striving. A paradox emerges as "there [should be] no objective priority of values among [the basic goods] as none can be shown to be more fundamental than any other".
Quite apart from the challenge that knowledge is surely more basic than any other as how can play or aesthetics be understood if not through knowledge, there is the limitation upon achieving the human goods through such a fluctuating and non-uniform medium such as intelligence. Again, Finnis has taken the religious principle of committing yourself fully to God as restrictive and substitutes the human intellect in order to limit and control a community through law..
An early interpretation of natural law by Rosseau in the Social Contract proposes that it is the "majority interpretation of general will which is the moral authority"2 as it is an empirical concept. Finnis concedes that legal systems can work against the common good. However, he refuses to believe that such complex questions can be reduced to a simple formula such as lex injusta non est lex. Unjust laws are, in his view, a subordinate concern of natural law theory.
He argues that "the stipulations of those in authority have presumptive obligatory force"3 that a ruler has authority to act for the common good so that if "he uses the authority to make stipulations against the common good those stipulations lack the authority they would otherwise have by virtue of being his". But how it is possible for a ruler to have moral authority if human goods are a conditioned product of communal living Finnis does not make clear. He appears only to be attempting to distinguish the focal meaning of law from the peripheral meaning. The focal meaning is aimed at facilitating the realisation of the common good.
Therefore, theoretically an unjust law will not be a law in its focal sense. MacCormick states that " [it is] the focal meaning [of law] which has to be grasped"4. Why? "An unjust law is not law" has been a principle of natural law since especially when common law and equity were separate concepts whereby God given morality was to flow from the ruler and manifrest itself in law. However, it is a subordinate theorum as natural law is concerned more with an ideal morality and law as a by product of this so he is right is saying that it is a subordinate theorum in that morality is the keystone in many arguments and law follows this.
Rosseau states that law "is that holy imprescriptable law which speaks to the heart and reason of man"5. It is up to individual conscience to decided upon injustice / justice as "conscience never deceives us". The idea of unjust is a human concept therefore can it be pedagogical or theoretical in terms of dictating a "morality" for humans to abide by in communities. It would assume that all have similar base principles governing their lives- which suggests morality of a kind. Your personal autonomy to chose your morality is limited by the assent to a superior who decides on the moral authority.
However, if morality taken as a human concept in that life is based upon experience rather than innate feeling, it shows that morality is not decided on by a God but by new experience which leads to an emotionally conditioned response. Thus it can be logically concluded that morality can is a series of conditioned responses that have been codified over time to form a concrete morality. Indeed, this is consistent with Finnis later writings where he has identified "the first moral principle" to choose " the possibilities which are compatible with integral human fulfilment".
No choice can bring overall fulfilment thus the principle of integral human fulfilment is an ideal to guide choices. The 1st moral principle is too vague to enable specification of moral norms although it does lead to "modes of responsibility" which are intermediate moral principles and are not self-evident. BUT are these not personal conviction and thus subjective. This undermines the argument where Finnis states that psychology explains but does not justify the value of basic goods.