Natural Law Commons^™

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

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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."

Virtue And The Constitution Of The United States, John M. Finnis

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In this Article, Finnis reflects on the following five questions: (1) Does the Constitution require or presuppose, or thwart or even forbid, a formative project of government inculcating in citizens the civic virtue necessary to promote and sustain a good society?; (2) To what extent can the institutions of civil society support or even supplant government in inculcating civic virtue?; (3) What is the content of the civic virtue that should be inculcated in circumstances of moral disagreement, and how does it relate to traditional moral virtue?; (4) Does it include respect for and appreciation of diversity?; (5) Should a …

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 …

Retribution: Punishment's Formative Aim, John M. Finnis

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This Article explores the theoretical underinnings of punishment, in light of statements made about punishment in the works of Friedrich Nietzsche.

What Is The Common Good, And Why Does It Concern The Client's Lawyer?, John M. Finnis

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Why is anything of real concern to any of us? Because, besides our simply emotional motives, we have reasons for action (which may be supported or opposed by our emotions). What are reasons for action? Some are instrumental, means to further ends: I have reason to start reading this paper to you, and you had reason to come back into the room to hear it. What reasons? Well, doing so is my contribution to this symposium's reflection on its subject-matter. That reflection, in turn, is intended to be instrumental in promoting a wider and deeper understanding of an important set …

On The Practical Meaning Of Secularism, John M. Finnis

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The secularism I consider in this Article is a public reality, the secularism which shapes public debate, deliberation, dispositions, and action, and dominates our education and culture. I shall be considering the ideas, not the people; and people are often less consistent, and better, than their theories. There is no profit in estimating whether secularism's dominance now is greater than in Plato's Athens or lesser than in Stalin's Leningrad. There is certainly a rich field for historical investigation of the particular and often peculiar forms taken by western secularism under the influence of the faith it supplants. But I shall …

Public Reason, Abortion, And Cloning, John M. Finnis

Journal Articles

Every society, liberal or illiberal, takes a public stand on the question whether abortion is or is not a form of criminal activity. If that question were left to private judgment, people who judge it homicide would be entitled to use force to prevent their fellow citizens engaging in it.

The need for the law and public policy to take a stand has become more and more obvious for two reasons. The first has to do with the standard purpose of abortion, as that term is commonly used: to end the life of a fetus/unborn child. As Jeffrey Reiman argues …

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

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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.

Euthanasia, Morality, And Law, John M. Finnis

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"Arguments for legalising euthanasia rely on claims about autonomy rights, or claims about political pluralism, or on both sorts of claim. My response will make three main points. First, those demanding this legalisation have shirked their elementary obligation to describe the alleged right, identify who has it, and delineate its boundaries as a right supposed to trump other goods, interests, and the wellbeing or rights of others. Second, they have neglected, or at best hugely underestimated, the casualties who would be, and in some places already are being, created by the success of their campaign. Third, they proceed on an …

Good Of Marriage And The Morality Of Sexual Relations, John M. Finnis

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This article examines the morality of sexual relations, referencing the views of many other scholars on the subject including Aquinas, Grisez, Noonan, and Koppelman.

The Good Of Marriage And The Morality Of Sexual Relations: Some Philosophical And Historical Observations, John M. Finnis

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This article examines the morality of sexual relations, referencing the views of many other scholars on the subject including Acquinas, Grisez, Noonan, and Koppelman.

Natural Law And Constitutional Law, Gerard V. Bradley

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A distinguishing feature of the natural law, as Catholics have always understood it, is the set of exceptionless negative moral norms, including that against intentionally killing the innocent. These norms constitute the superstructure of the Christian moral life. They also serve as a ramp to heaven for non-Christians. As the Holy Father made so powerfully clear in the encyclical Veritatis Splendor [VS], when we preach the Gospel we preach the good news of salvation through Jesus. "It is precisely on the path of the moral life that the way of salvation is open to all." [VS …

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

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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?

Natural Law Theory: Contemporary Essays, Gerard V. Bradley

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Natural Law Theory: Contemporary Essays. Edited by Robert P. George. Oxford University Press. 371 pages. $39.95.

This book's editor, Princeton legal philosopher Robert George, has assembled essays by leading natural law thinkers and their most formidable commentators and critics. The essays, according to George, "convey an idea of the diversity of contemporary natural law theories...'liberal' and 'conservative'.... Some theories fit comfortably into the tradition of Aristotle and Aquinas, others are related to that tradition remotely, if at all."

Rights Talk: The Impoverishment Of Political Discourse And A Nation Under Lawyers (Book Review), Robert E. Rodes

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In these two lively, elegant, and lucid books, Mary Ann Glendon points to an increasing bloody-mindedness in our society, and argues persuasively that law and lawyers are in great part to blame for it. It seems that we are constantly pelting each other with non-negotiable demands backed by the threat of litigation, and that our legal profession has become too venal or too lacking in moral fiber to tell us to lighten up. The first part of the argument is presented in Rights Talk, the second in A Nation Under Lawyers. Both parts are presented with passion, charity, and a …

Making Men Moral: Civil Liberties And Public Morality, Gerard V. Bradley

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Making Men Moral: Civil Liberties and Public Morality. By Robert P. George. Oxford University Press. 247 pages. $42.

Robert George's brilliant new book rescues the topic of legal enforcement of moral obligations from both liberals and conservatives. Against Devlin he maintains that "the genuine immorality" of an act is a necessary (but not alone sufficient) condition for the legitimacy of a morals law. Against the liberals he maintains that no principle of justice precludes morals legislation as such. George persuasively argues that morals laws - prohibitions of so-called victimless immoralities like sodomy, prostitution, drug use, suicide - may be enacted. …

A Jewish Voice In The Public Square, Gerard V. Bradley

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David Novak: Jewish Social Ethics. (New York: Oxford University Press, 1992. Pp. xii, 252. $45.00.)

Jewish participation in American public life has been either genuinely or constructively de-Judaized. (Admittedly, many orthodox Jews - the Hasidim among them - have steered clear altogether of the public square.) "Genuinely" de-Judaized Jews are simply those like Frankfurter who have a thoroughly secular outlook. "Constructively" de-Judaized Jews include the orthodox, observant Pfeffer. For them religious conviction (and practice) are private matters, checked at the entrance to the "naked public square." Quite obviously, Jews had good reason, especially in 1947, to prefer a secular …

Liberalism And Natural Law Theory, John M. Finnis

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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 …

Response To Hittnger, Gerard V. Bradley

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No abstract provided.

Law, Morality, And "Sexual Orientation", John M. Finnis

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During the past thirty years there has emerged in Europe a standard form of legal regulation of sexual conduct. This standard form or scheme, which I shall call the "standard modem [European] position," is accepted by the European Court of Human Rights and the European Commission of Human Rights (the two supra-national judicial and quasijudicial institutions of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), to which almost all European states are party, whether or not they are also party to the European [Economic] Community now known as the European Union). The standard modem European …

Moral Absolutes: Tradition, Revision And Truth, Gerard V. Bradley

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Moral Absolutes: Tradition, Revision and Truth. By John Finnis.
Catholic University of America Press. 113 pages. $9.95.

Receipts for what the producers had the decency to call Indecent Proposal approach $100 million. The couple's earnest deliberations evidently engage. The moviegoer, I suppose, wonders with Demi and Woody: Are there some things that, no matter what, it is never right to do? Are there, in other words, absolute moral prohibitions? Is adultery one of them?

In this formidable volume, Oxford philosopher John Finnis cogently defends the common answer (for millennia, until just a few decades ago) of Jews and Christians: There …

The "Value Of Human Life" And "The Right To Death": Some Reflections On Cruzan And Ronald Dworkin, John M. Finnis

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These reflections focus on three members (one professor and two alumni) of my Oxford college. Though University College officially bears the name The Great Hall of the University of Oxford, it is only one of that university's 30 colleges, and not a particularly large one-only about 450 students and teaching fellows like myself. My title's focus on one named law professor may already seem narrow. How then, you may wonder, can adding two more names from the same little institution in England make this lecture less parochial, and more relevant to Southern Illinois?

Morality And Legal Reasoning, Gerard V. Bradley

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Natural law has been derided by several generations of intellectuals as "nonsense on stilts" (Bentham) or a "brooding omni- presence in the sky" (Holmes). Nevertheless, the idea refuses to go away. For a long time natural law theory was the preserve of neo- Scholastic theologians and philosophers in Roman Catholic universities and seminaries. In a nice bit of irony, however, just as Catholic institutions have begun to secularize by adopting the norms and standards of prominent institutions such as Harvard, Oxford, and Princeton, defenders of natural law theory have suddenly popped up at just these establishments. Fully equipped with the …

Constitutional Theory Beyond Left And Right, Gerard V. Bradley

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Hadley Arkes: Beyond the Constitution. (Princeton: Princeton University Press, 1990. Pp. 288. $24.95.)

Hadley Arkes's latest book is Beyond the Constitution and it is virtually a tour de force. Author of The Philosopher in The City and First Things, in the new work Arkes persuasively criticizes both liberal and conservative constitutionalism as well as their common legal theoretical base, displaying all the while the philosophical astuteness and elegant prose his prior work has accustomed readers to expect. Anyone remotely interested in constitutional law should read this book.

The Pope As Interpreter Of Natural Law, Charles E. Rice

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The Church's claim to define the applications of the natural law can be understood only in the context of God's plan of creation. God created us, in the words of the Baltimore Catechism, "to know, love and serve Him in this world and to be happy with Him in the next." The world is not a product of chance. Rather it was created by a loving God whose existence and attributes we can demonstrate and who has ordered his creation in accord with his design. God, the Creator, has a plan for the world. A "universal rational orderliness" is "characteristic …

Concluding Reflections, John M. Finnis

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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.

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 …

Allocating Risks And Suffering: Some Hidden Traps, John M. Finnis

Journal Articles

The economic analysis of which Adam Smith is a principal founder is helpful in practical reasoning about problems of justice precisely insofar as it systematically calls attention to the side-effects of individual choices and actions and behavior. Still, it would be a mistake to conclude that we need only a more adequate account of the benefits and burdens up for distribution or allocation by those responsible for the common good or general fate. We need also to bear in mind what Smith did not forget and what economics does not comprehend, the requirements of commutative justice. To see this, we …

Natural Law And Justice (Book Review), Robert E. Rodes

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Professor Weinreb's aim in this thoughtful and thought-provoking book is a drastic overhaul of the ongoing debate about natural law. Natural law as he sees it is not a mere theory about the relation of law and morality: it is a comprehensive theory about the place of human beings in the cosmos. As such, it has a profound bearing on legal questions, but not in the way its current proponents have in mind. By recasting the fundamental question of natural law, Weinreb sheds light on many subsidiary questions of legal theory. This is a difficult book, because it is closely …