Legal History Commons^™

Natural Law Theory: Its Past And Its Present, John M. Finnis

Journal Articles

The past in which theory of this kind had its origins is notably similar to the present. For this is theory-practical theory-which articulates a critique of critiques, and the critiques it criticizes, rejects and replaces have much in common whether one looks at them in their fifth century B.C. Hellenic (Sophistic) or their modem (Enlightenment, Nietzschean or postmodern) forms.

H.L.A. Hart: A Twentieth-Century Oxford Political Philosopher, John M. Finnis

Journal Articles

This essay offers first a sketch (by a student and colleague) of H.L.A. Hart's life; second an account of the political philosophy which he explicitly articulated in The Concept of Law (1961), and of its relation to the main currents of Oxford political philosophy in the 1950s; and thirdly an exposition and critical assessment of the normative political theory deployed, to widespread acclaim, in his Law, Liberty & Morality (1963).

Reason, Revelation, Universality And Particularity In Ethics, John M. Finnis

Journal Articles

This address to a philosophical conference on truth and faith in ethics engages in an extended critique of the account of truth in Bernard Williams, Truth and Truthfulness: an essay in genealogy (Princeton University Press, 2002). For any jurisprudential, moral or political theory that affirms natural law needs to respond first to sceptical denials that reason can discover any truths about what ends all human individuals or groups ought to pursue. But any such theory also needs to make clear how it differs from, even when it coincides in moral judgment with, bodies of moral teaching self-identified as part of …

Grounds Of Law And Legal Theory: A Response, John M. Finnis

Journal Articles

Linking theses of Plato, Wittgenstein and Weber, section I argues that identification of central cases and settling of focal meanings depend upon the theorist's purpose(s) and, in the case of theory about human affairs - theory adequately attentive to the four irreducible orders in which human persons live and act - upon the purposes for which we intelligibly and intelligently act. Among these purposes, primacy (centrality) is to be accorded (by acknowledgement, not fiat) to purposes which are, as best the theorist can judge, reasonable and fit to be adopted by anyone, the theorist included. Section II defends the reasonableness …

On Hart's Ways: Law As Reason And As Fact, John M. Finnis

Journal Articles

This address at the Hart Centenary Conference in Cambridge in July 2007 reflects on foundational elements in Hart's method in legal philosophy. It argues that his understanding of what it is to adopt an internal point of view was flawed by (a) inattention to the difference between descriptive history (or biography or detection) and descriptive general theory of human affairs, (b) inattention to practical reason as argument from premises, some factual but others normative (evaluative) in their content, and (c) relative inattention to the deliberations of law-makers as distinct from subjects of the law. These flaws contributed to a concept …

Foundations Of Practical Reason Revisited, John M. Finnis

Journal Articles

"One's investigations, reflections and communications are actions. Sometimes they are simply spontaneous, but very often, as with other kinds of action, one needs to opt into them by deliberation, choice and continued effort, all of which make noticeable one's responsiveness to opportunities. This paper revisits some main elements in that responsiveness."

Helping Enact Unjust Laws Without Complicity In Injustice, John M. Finnis

Journal Articles

The form of enactments must be distinguished from their legal meaning (their "juridical effect"), that is, from the propositions of law which those enactments, properly interpreted, make legally valid. This distinction makes it possible, and rationally necessary, to conclude that, in certain contexts, a certain statute which declares or textually implies that some abortions are legally permitted (but others prohibited) is not apermissive law within the meaning of the principle, assumed in this article to be true, that permissive abortion laws are intrinsically unjust and may never be voted for. A permissive statute, in that sense, is one which has …

Caesar, Succession, And The Chastisement Of Rulers, Patrick Martin, John M. Finnis

Journal Articles

Julius Caesar's reign as dictator and praefectus morum for life ended with his assassination in 44 B.C. It was preceded by over four hundred years of consular rule, a system of executive government by two consuls, elected for a one-year term. Consular government began in 509 B.C., ending the hundred-year rule of the Tarquin kings. Three works printed in 1594 recalled for English readers the overthrow of the Tarquins and the establishing of consular government. One was dedicated to the Earl of Essex. Another, by William Shakespeare, was dedicated to Essex's close companion, the Earl of Southampton. The third work …

Law And What I Truly Should Decide, John M. Finnis

Journal Articles

Suppose we tried to think about law without trying first to describe it or to work out what the concept of it is. Suppose we asked instead whether, and if so why, and when, we-or more precisely each one of us-should favor introducing, having, endorsing, maintaining, complying with and enforcing it. We would be trying to think about law, about something not limited to our own time and town, but as something that people of any time and place of which we are aware would, as we can understand, have the same or similar need for and reasons to comply …

Editorial Introduction, Gerard V. Bradley, John M. Finnis

Journal Articles

This Article is a forward to nine articles from the 2001 Symposium on Natural Law and Human Fulfillment, held at Notre Dame Law School. The Symposium was held to mark the 35th anniversary of the publication of Germain Grisez's "The First Principle of Practical Reason: A Commentary on the Summa Theologiae."

On The Incoherence Of Legal Positivism, John M. Finnis

Journal Articles

Legal positivism is an incoherent intellectual enterprise. It sets itself an explanatory task which it makes itself incapable of carrying through. In the result it offers its students purported and invalid derivations of ought from is.

In this brief Essay I note various features of legal positivism and its history, before trying to identify this incoherence at its heart. I do not mean to renege on my belief that reflections on law and legal theory are best carried forward without reference to unstable and parasitic academic categories, or labels, such as "positivism" (or "liberalism" or "conservatism," etc.). I use the …

Natural Law And The Ethics Of Discourse, John M. Finnis

Journal Articles

This essay argues that Plato's critical analysis of the ethics of discourse is superior to Habermas', and more generally that Habermas has no sufficient reason to propose or suppose the philosophical superiority of "modernity." The failure of Hume and Kant and much modern philosophy to understand the concept and content of reasons for action underlies Habermas' attempted distinction between ethics and morality, and Rawls' concept of public reason. A proper study of discourse also yields a metaphysics of the person, and thus reinforces the ethics.

Unjust Laws In A Democratic Society: Some Philosophical And Theological Reflections, John M. Finnis

Journal Articles

Largely rejecting Christian faith and every other recognition of human dependence upon transcendent intelligence and will, our societies are diverging further and further from every type of Christian commonwealth or "civilization of love." In such a situation, one must ask whether Christians involved in politics can have a reasonable expectation of shaping the main lines of public policy and law. Can they expect to do any more than, sometimes, help limit the damage and, always, bear witness to the faith and to the moral truths which are taught by faith?

Liberalism And Natural Law Theory, John M. Finnis

Journal Articles

I shall argue, in the course of this lecture, that the title I gave myself is a bad one, one that sets a bad example. "Liberalism," like "conservatism" and "socialism," is too local, contingent and shifting a term to deserve a place in a general theory of society, politics, government and law. So I had better say at once which proposition or set of propositions I, on this occasion, was gesturing towards with the word "liberalism," out of all the many propositions, often conflicting, which have been called "liberal." What I had in mind was the thesis that government and …

Natural Law And Legal Reasoning, John M. Finnis

Journal Articles

Much academic theory about legal reasoning greatly exaggerates the extent to which reason can settle what is greater good or lesser evil, and minimizes the need for authoritative sources which, so far as they are clear and respect the few absolute moral rights and duties, are to be respected as the only rational basis for judicial reasoning and decision, in relation to the countless issues which do not directly involve those absolute rights and duties. A natural law theory in the classical tradition makes no pretense that natural reason can determine the one right answer to those countless questions which …

Concluding Reflections, John M. Finnis

Journal Articles

A symposium to which one person contributes three extended papers is no unmixed pleasure for readers. This third contribution of mine will interest only those curious to see my response to other symposiasts' comments on my earlier efforts (in the symposium and elsewhere). To enable this curiosity to be satisfied as costlessly as possible, I divide these concluding reflections by authors rather than themes, though with priorities suggested by themes rather than authors.

Legal Enforcement Of "Duties To Oneself": Kant Vs. Neo-Kantians, John M. Finnis

Journal Articles

This Article considers writings by modern scholars including Rawls, Dworkin, and D.A.J. Richards on the topic of Kant's discussion of the neutrality principle and the harm principle.

Practical Principles, Moral Truth, And Ultimate Ends, John M. Finnis, Germain Grisez, Joseph Boyle

Journal Articles

The natural-law theory on which we have been working during the past twenty-five years has stimulated many critical responses. We have restated the theory in various works, not always calling attention to developments. This paper reformulates some parts of the theory, taking into account the criticisms of which we are aware.

The "Natural Law Tradition", John M. Finnis

Journal Articles

This "tradition of natural law theory" has three main features: First, critique and rejection of ethical scepticism, dogmatism and conventionalism; Second, clarification of the methodology of descriptive and explanatory social theories (e.g., political science, economics, jurisprudence .... ); Third, critique and rejection of aggregative conceptions of the right and the just (e.g., consequentialism, utilitarianism, wealth-maximization, "proportionalism"...).

On 'Positivism' And 'Legal Rational Authority', John M. Finnis

Journal Articles

This Article critiques Anthony Kronman’s book Max Weber, which provides an interpretation of Weber’s social theory of law concerning positivism and legal rational authority. In particular, the three premises of Kronman’s thesis regarding social theory are considered and their weaknesses are explained. Through this critique, the Author argues that no good reason has been presented to accept that Weber’s positivist theory is of value.

The Basic Principles Of Natural Law: A Reply To Ralph Mcinerny, John M. Finnis, Germain Grisez

Journal Articles

In the preceding volume of this journal, Prof. Mclnerny criticized certain theoretical positions of Finnis and Grisez as well as their interpretation of St. Thomas. In the present article Finnis and Grisez reply that Mclnerny's criticisms lack cogency, because he has misunderstood their theories, judged their exegesis by his own different interpretation assumed gratuitously to be correct, and mixed philosophical and historical criticism in a way which helps to clarify neither the problems of ethical theory nor those of Thomistic exegesis.

Some Professorial Fallacies About Rights, John M. Finnis

Journal Articles

Why do students usually get into a muddle when analysing legal situations in Hohfeldian terms? What is the use of trying to straighten out the muddles, and of teaching Hohfeldian analysis at all? The short answer to the first question is that Hohfeld was clear-headed in applying his scheme, but because of his writing style and his odd views about definition was regrettably gnomic about the meaning and inter-relations of the terms of that scheme. The short answer to the second question is that clear-headed familiarity with Hohfeld's scheme can bring with it an awareness of the questions regularly begged …