John Finnis Archives - LAW AND RELIGION FORUM

Jeremy Waldron (NYU School of Law) has posted What is Natural Law Like? The abstract follows.

“The State of Nature,” said John Locke, “has a Law of Nature to govern it, which obliges every one.” But what is “a law of nature”? How would we tell, in a state of nature, that there was a natural law as opposed to something else — like positive law, a set of customs, natural morality, natural ethics, a set of natural inclinations, the truth of certain prudential calculations, a widespread but perhaps false belief in some transcendent law, the voice of God, or just a natural disposition on the part of some pompous people to make sonorous objective-sounding pronouncements? What form should we expect natural law to take in our apprehension of it? This paper argues three things. (a) John Finnis’s work on natural law provides no answer to these questions; his “theory of natural law” is really just a theory of the necessary basis in ethics for evaluating positive law. (b) We need an answer to the question “What is natural law like” not just to evaluate the work of state-of-nature theorists like Locke, but also to explore the possibility that natural law might once have played the role now played by positive international law in regulating relations between sovereigns. And (c), an affirmative account of what natural law is like must pay attention to (1) its deontic character; (2) its enforceability; (3) the ancillary principles that have to be associated with its main normative requirements if it is to be operate as a system of law; (4) its separability form objective from ethics and morality, even from objective ethics and morality; and (5) the shared recognition on earth of its presence in the world. Some of these points — especially 3, 4, and 5 — sound like characteristics of positive law. But the paper argues that they are necessary nevertheless if it is going to be plausible to say that natural law has ever operated (or does still operate) as law in the world.

John Finnis’s Natural Law and Natural Rights is one of the most important books in jurisprudence of the past century — and an erudite and magisterial interpretation of the tradition of natural law. On a personal note, it was also one of the books that most influenced my decision to want to teach law; I thought, a life spent trying to create a monument as lasting as this book is a life well lived.

A five-volume collection of Professor Finnis’s shorter work has now been published, The Collected Essays of John Finnis (OUP 2011), which provides a comprehensive picture of the man’s views in legal, political, and moral philosophy (each book can be purchased singly). For readers here, the last volume, Religion and Public Reasons, looks especially worthwhile (though all of them look terrific), as it engages masterfully with the issue of the role of religion in political decisionmaking.

And there are two excellent conferences this fall which will discuss and celebrate Professor Finnis’s work: first, at Notre Dame Law School on September 9; second, at Villanova Law School on September 30.