Finnis on the Philosophy of Law and the Relevance of “Common Custom”

This is a short and highly accessible essay by the eminent John Finnis entitled, “What is the Philosophy of Law?”  Readers of CLR Forum will know that Finnis is the author of one of the most important books of jurisprudence of the last century, Natural Law and Natural Rights, which represents the keystone in the revival of natural law thought in contemporary times. 

In this short piece, Finnis explains in summary form what the philosophy of law (or jurisprudence — he believes the terms are synonymous, for reasons he discusses) is and what its tasks are to be.    Why is this relevant to religion?  Well, grossly oversimplifying (and I mean really grossly and highly incompletely), though it does not appear in this essay, one of the basic common goods described by Finnis in NLNR (see pp. 89-90 and 371-410) is the good of religion (obliquely adverted to in this essay at page 4 as one of the common goods “of other associations of society”).  And inasmuch as a society provides for freedom of religion, the philosophy of law “consider[s] precisely how far choices made today for one’s political community should be determined or shaped by choices made in the past, in the form of contracts, wills, constitutions, legislative enactments, customs, judicial decisions, and the like.”

Two little noteworthy items in Finnis’s new piece.  First, Finnis gives a very clear and easily digested explanation for why the statement “an unjust law is no law” is true (he has done this before, and this essay does it succinctly).  Again, I am oversimplifying, but the criticism has been: well of course an unjust law is a law — in fact, whether a law is really a law has nothing to do with its morality or ultimate justice.  Finnis says:

Natural law theory has no quarrel with – indeed, promotes – a distinction or bifurcation between intra-systemic [legal] validity (and obligatoriness) and legal validity (and obligatoriness) in the moral sense.  Indeed, it is not unreasonable to see such a distinction at work in the famous tag — “An unjust law is not a law.”  Such a way of speaking is not self-contradictory, paradoxical, or even remarkable: “an insincere friend is not a friend”; “a logically invalid argument is no argument”; “a quack medicine is no medicine”… So too in the famous tag or theorem: “unjust law” (lex iniusta) here refers to an intra-systemically valid legal rule or order, and “not law” (non lex) signifies that, moral limits having been transgressed, this same law lacks validity (as law) in the moral sense (i.e., legitimacy) and thus, as such, lacks moral obligatoriness.  (8-9) (footnotes omitted)

The second item to note is the conclusion, in which Finnis is discussing the philosophy of law’s tasks and its future.  I was especially struck by Finnis’s emphasis of the importance of “common custom” in maintaining a healthy legal system. 

Of special importance in the coming decades will be a recovery of awareness amongst legal philosophers that law‘s paradigmatic form, the ius civile, is the law of a people, posited by a constituent act (or constitutive custom) and ongoing legislative acts of their self-determination as a people, acts which can and should be consistent with their obligations to do and respect right (human rights, as contained in the ius naturale) and their responsibilities towards other peoples and those other peoples’ self-determination, rights and needs.  Just as countless thinkers in the nineteenth and twentieth centuries too casually assumed the justice of communist notions of a propertyless community, notions inadequately attentive to the long-term conditions of a sustainable, prosperous and just society of free persons, with the result that countless millions of people suffered more or less directly from the application in their polities of these errors of practical thought, so likewise many thinkers today too casually assume (explicitly or implicitly) the justice of quasi-communist notions of a borderless humanity, notions incompatible with the long-term conditions of a suitably just and civilly free political order and Rule of Law.  Even in the short term, this kind of error of practical thought results in the kind of political community increasingly familiar, whose peoples’ multi-cultural internal diversity of ultimate allegiances is both promoted and countered by an ever-growing apparatus of security and surveillance, a severe diminution in freedom of political and intellectual discourse, and an explosion of regulatory bureaucracy indifferent to the benefit of having a society whose self-determination takes in large measure the form of that sharing of expectations which Ulpian and Aquinas called common custom.  (10-11) (footnotes omitted)

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