What Is Finnis’ main aim in this book?
to try and reformulate a modern theory of natural law. Wants to identify the goods that the legal system exists for.
“To identify the human goods that can be secured only through the institutions of human law.”
From what specific perspective does Finnis think we should analyze law? Why?
if there is a point of view in which
legal obligation is treated as at least presumptively a moral obligation,
a viewpoint in which
the establishment of legal as distinct from discretionary customary order is regarded as a moral ideal if not a compelling demand of justice
then such a viewpoint will constitute the central case of the legal viewpoint.
What is a theory of natural law according to Finnis?
The theory of what it is to be a practically reasonable person and to establish what is really good for human persons. There are three parts to his theory.
- Basic practical principles (goods, things that people want).
- Methodological principles of practical reasonableness
- Principles of morality
What role does Aquinas’s account of natural law play in Finnis’s theory.
He believes that his theory agrees with the basic ideas of natural law given by Aquinas.
When Finnis says that knowledge is a “basic form of good” what does that mean?
It is useful in the pursuit of some other objective, such as survival, power, or popularity.
Knowledge is of truth. It is desirable for its own sake. To think of knowledge as a basic form of good is not to think that knowledge would be equally valuable for every person, nor is it to think that such knowledge has any priority of value.
What does Finnis mean by self-evidence
- If something is self evident it doesn’t need to be proven Page 31.
- people assent to it without needing the proof of argument.
- It cannot be demonstrated, but equally it needs no demonstration.
When Finnis explains that knowledge is self-evident, that does not mean that everyone actually does recognize the value of knowledge, or that there are no preconditions for recognizing that value.
What are the other basic forms of good and why are they basic?
Knowledge Life Play Aesthetic experience Sociability (friendship) Practical Reasonableness Religion
They are considered basic because:
- each is equally a self-evidently a form of good
- these cannot be converted into a neutral quantity and measured up against one another
- each one can reasonably be regarded as the most important. There is no objective hierarchy amongst them
- these forms of good are irreducible, any one of them can mean an end to a humans actions
What are the basic requirements of practical reasonableness?
- The good of practical reasonableness structures our pursuit of goods. It shapes our participation in the other goods, and it helps us to choose what to do, what projects to commit our time to
- A coherent plan of life.
- No arbitrary preference amongst values
- No arbitrary preference amongst persons
- One should be both open minded and committed to one’s projects
- The relevance of consequences: actions should be reasonable efficient
- Respect for every basic value in every act
- The requirements of the common good- one should act to advance the interests of the community
- Following one’s conscience- we shouldn’t go against our inner conscience
How are these requirements related to morality as a whole?
What is right and morally good is simply seen by the person who is right-minded and morally good.
What does Finnis mean by community?
Think of a community not as a community or an association, but rather as a community or association–
- an ongoing state of affairs
- a sharing of life, action, or interests
- an associating or coming-together
A community in this sense is a matter of relationship and interaction.
Community means there is something in common. Relationship of some kind that we have.
What are the basic models of community?
Business, Play, and Friendship
What defines specifically political community?
Exists partially as
- a kind of business arrangement between self-interested associates,
- a form of play, in which the participants enjoy the give-and-take, the dissension, bargaining, and compromise.
- an expression of disinterested benevolence, reinforced by grateful recognition of what one owes to the community in which one has been brought up and in which one find and founds one’s family and one’s life plan.
Political community is known as complete community because of the Greeks. Polis=complete community. We have to get to the level of polis in order to exists.
Real connection between law and political community because law has characteristics of the complete community as we know it today.
What does Finnis mean by common good?
The good that is common to many people. Common equals more than one person.
For example, health is a common good because it is good for many people. But if you have it, it doesn’t mean everyone else has it, everyone has it separately.
Finnis definition: set of conditions which enables the members of a community to attain for themselves the values for the sake of which they have reason to collaborate with each other (positively and/or negatively) in a community
What is the basic meaning of justice?
An ensemble of requirements of practical reasonableness that hold because one must seek to realize and respect human goods not only for themselves but also in common, in community
Justice is about external relationships with people, equality doesn’t mean everyone gets the same thing, it means everyone gets what they deserve.
What are the main types of justice?
General Justice and Particular Justice. Particular justice can be divided in two parts
Distributive Justice
(property rights) main object is common good. Main criteria is need, function, and capacity.
Corrective/Commutative Justice
Relates to a fundamental fairness in agreements and exchanges between social groups. Transactions between citizens, not having to do with the government. Commutative justice concerns only private transactions.
What norms govern distributive justice?
The duties of distributive justice belong to only the State or the personified whole (community).
What is the ground of rights?
Finnis says there is such thing as natural rights, and a lot would say its odd to have given enough importance to rights with a chapter dedication.
- Finnis says that rights are modern, but they have consequences. If politics carry on with arguments about rights then we will have individualistic views, and will turn attention away from common good, and before you know it there will be no common good.
- Finnis believes that rights are a three term relation between one person and another and a third thing.
The common good is precisely the good of the individuals whose benefit, from the fulfillment of duty by others, is their right because required in justice of those others.
Are there absolute human rights?
Human rights must be maintained as a fundamental component of the common good.
Finnis believes in some absolute human rights i.e. the right not to have a life taken directly as a means to further end; the right not to be deprived or to be required to deprive oneself from pro-creative activity.
Finnis doesn’t think you can ever kill someone, including killing enemy soldiers in a just war. In a just war, you must separate combatants.
What does Authority mean?
take someone else’s judgment and follow it, even if you don’t believe in it. Speed limit example. An alternative example to authority is uninimity, where if everyone in a community said lets do x, you wouldn’t need authority. Uninimity is virtually impossible. Even if everyone was good, you’d still need authority, so the notion that authority only exists because people are bad is not valid.
What are the goals of the legal system?
To provide comprehensive and supreme direct for human behavior in that community and to grant legal validity to all other normative arrangements affecting the members of that community.
What are the main features of legal order?
- law brings definition, specificity, clarity and predictability into human interactions, by way of a system of rules and institutions so interrelated that rules define, constitute and regulate the institutions. Institutions create and administer the rules.
- rules of law regulate not only the creation, administration, and adjudication of such rules, and the constitution, character, and termination of institutions, but also the conditions under which private individual can modify the incidence or application of the rules
- legal thinking brings what precision and predictability it can into the order of human interactions by treating past acts as giving sufficient and exclusionary reason, now, for acting in a way, then.
- this technique is reinforced by the working postulate that every present practical question or co-ordination problem has.
What is the meaning of the ideal of the rule of law?
A legal system exemplifies the Rule of Law to the extent that
- its rules are prospective, not retroactive (control future not past)
- are not in any other way impossible to comply with
- its rules are promulgated (must know what law you broke if jailed)
- clear
- coherent one with another, that
- its rulers are sufficiently stable to allow people to be guided by their knowledge of the content of the rules
- the making of decrees and orders applicable to relatively limited situations is guided by rules that are promulgated, clear, stable and relatively general
- and that those people who have authority to make, administer, and apply the rules in an official capacity are accountable for their compliance with rules applicable to their performance, and do actually administer the law consistently and in accordance with its tenor.
How is positive law derived from Natural Law?
The derivation of law from the basic principles of practical reasoning has indeed the two principal modes identified by Aquinas
Finnis :
Natural Law- set of practical reasoning
Positive Law- for sake of common good.
- the central principle of the law of murder, theft, etc. may be a straightforward application of valid requirements of reasonableness, but will require of judge and legislator countless elaborations, which in most instances partake of the second mode of derivation. BY CONCLUSION
- second mode, the sheer determinatio by more or less free authoritative choice, is itself not only liked with the basic principles by intelligible relationship to goals which are directly related to basic human goods, but is also controlled by wide-ranging formal and other structuring principles which themselves are derived from the basic principles by the first mode of derivation. BY DETERMINATION
Why is promising the basic model of obligation?
Promises brings obligation in. When you create a promise it binds you a promise, when you say something it does something
