Natural Law and History: Challenging the Legalism of John Finnis

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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. …

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