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Published online by Cambridge University Press: 01 January 2024
The most impressive attempt of which I am aware which argues that minimally decent treatment, human rights, for all human beings is a necessary requirement of reason is the one put forth by John Finnis in Natural Law and Natural Rights.’ The object of Finnis’s project is to show that the liberal morality of human rights can be derived from the requirements of reason (per se nota truths), without having to invoke any special Divine revelation or metaphysics (although Finnis is careful to note that his theory is not incompatible with these). Finnis contends that every moral obligation, every ought and its cognates, is derivable from practical reason, and then, by extension that law should reflect this morality which is required by reason. It is in this sense that Finnis’s theory is one of natural law, as opposed to positive law. What is especially noteworthy about Finnis’s project is that he alleges that the minimal requirements of morality can in toto be got out of what he calls the principles of practical reasonableness. Practical reasonableness, for Finnis, amounts to the human capacity for exercising freedom and reason, the characteristics of human personality which enable one to grasp the requirements of practical reasonableness, which are requisites for one to express, shape and select one’s participation in what Finnis calls the “basic goods” or “basic values”. If one behaves in accordance with the principles of practical reasonableness and promotes the basic goods, i.e., if one acts in a manner which is self-evidently reasonable, human rights (what Finnis prefers to call “natural rights”), the minimally decent treatment of all persons, will result. But in order to see whether Finnis’s project succeeds, we will have to examine closely his assumptions and the philosophical moves he makes.
1 Unless otherwise indicated, page references in this section are to John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980)Google Scholar.
2 Pp. 48–9 and ch. XIII.
3 ‘[O]bligation “and related “notions” all may be related to some form or forms of rational necessity (p. 297).’
4 Pp. 88 and lOOff.
5 This would probably be better called the good of ‘sociality’, since it is sociality itself, and not the ability to be social which is the basic good. Nonetheless, I shall follow Finnis's nomenclature.
6 P. 89.
7 Pp. 119–120.
8 “[O]ne's reasons for choosing the particular ranking [of the basic goods] that one does choose are reasons that properly relate to one's temperament, upbringing, capacities, and opportunities, not to differences of rank of intrinsic value between the basic values (p. 94).”
9 P. 102.
10 P. 225.
11 Pp. 174,223–6.
12 P. 225.
13 P. 225.
14 P. 81.
15 P. 59. Emphasis mine.
16 P. 225. Emphasis mine.
17 It is interesting that Finnis chooses to label this principle “respect for every basic value in every act” rather than what it actually is, the principle that “it is always unreasonable to choose directly against any basic value,” since the principle is fundamentally negative, not positive. This tendency to stretch obligations not to interfere into obligations to positively promote is an oft committed fallacy. It was Jan Narveson who first made me aware of it at a conference on Equality at the University of Reading in April 1996. Narveson, a staunch advocate of libertarianism, said in a paper he delivered there that, although he agreed it would be wrong for middle‐ and upper‐class members of society to kill children born to recipients of welfare in North American inner‐cities, they have no obligation in virtue of that fact to feed them, I might speculate that perhaps Finnis is prone to make this unwarranted inference from negative prohibitions to positive obligations on account of his tendency to view matters from a legal perspective, which often involves formulations which move, for example, from “do not lie” to “tell the truth, the whole truth, and nothing but the truth.” Narveson went on to explain that positive (welfare, benefit) rights, rights which go beyond mere non‐interference to positive promotion in some way, are a carry‐over from traditional religious morality. Without that religious framework, he claimed, such positive rights do not exist! Narveson is surely correct that positive rights are deeply imbedded in Judeo‐Christian tradition and teaching. (See, for example, Nicholas Wolterstorff s brief survey of this aspect of the tradition in his “Christianity and Social Justice” in Christian Scholar's Review, vol. 16, no. 3, March, 1987.) For more on the fallacy of moving from negative to positive rights see Narveson, , “Negative and Positive Rights in Gewirth's Reason and Morality” Gewirth's Ethical Rationalism, Regis, Edward Jr., ed., University of Chicago Press.Google Scholar
18 P. 173.
19 P. 107.
20 P. 107.
21 P. 174.
22 Ibid.
23 The requirement which he discusses just before this one is the one he calls “no arbitrary preferences amongst values”, and this makes sense if indeed the values are all equally basic. But to follow up that principle with “no arbitrary preferences amongst persons” is a bit misleading, for it begs the question that “human subjects who. may be partakers of those goods” are basic in a manner similar to the goods themselves (p. 107).
24 Ibid.
25 P. 114.
26 H. L. A. Hart, “Positivism and the Separation of Law and Morals” (1958) in Harvard Law Review. 593, reprinted Dworkin, , ed., Philosophy of Law (Oxford: 1977), 17Google Scholar, p. 36, quoted by Finnis, p. 29.
27 Ibid. Emphasis mine.
28 P. 103. Emphasis his.
29 P. 107.
30 P. 225.
19 And I suspect that this is why Finnis can also include “following one's conscience” as one of his principles of practical reasonableness, since it still remains the case, although it may be diminishing, that people's consciences in the West are formed in large part by a traditional (religious and Enlightenment) morality which views each human being as a locus of infinite worth.
32 I have discovered that Henry David Aiken makes precisely this point in connection with this and other articles of the UN Declaration. He writes: [In] article 26 of the Declaration it is asserted that everyone “has the right to a standard of living adequate for the health and well‐being of himself and of his family” But plainly this right is not construable either as a liberty or in terms essentially involving liberty [i.e., a negative right of non‐interference]. Indeed, a great many of the rights specified in the Declaration are directed not to the liberties of men but to substantive gratification of their wants or needs, even in circumstances where they feel, or have, no corresponding desire for the satisfactions in question. Moreover, some of these rights are clearly directed at the fulfilment of certain (ideal) conditions that involve, not the liberty to do as one likes without interference or even the satisfaction of wants or needs, but the implementation of an ideal conception of the human personality (“Rights, Human and Otherwise” in Monist, vol. 52, no. 4, October, 1968, 505–6).
33 P. 175. Emphasis his.
34 P. 174.
35 I recognize that Finnis does not believe that goods and bads are commensurable (as consequentialism assumes that they are), and I am in general agreement with him on this point. Nonetheless, in order for his argument to work he must hold that an agent can “do the maths” at least in the sense that she can see that it is “reasonable” for her to contribute to the common good. For if she could perform absolutely no calculations at all, in any sense of the word, she could never determine that it was indeed “reasonable” for her to foster and promote the common good of her community. Even if it is a matter of vague, intuitive perception, she must be able somehow to make this determination, this “measurement.”
36 See pp. 142,147,164, et passim.
37 Pp. 141–3
38 P. 142. Emphasis mine. Finnis writes, “The intrinsic value of having a true friend does not consist precisely in the services the friend may render him.or.the pleasure the friend may give him.but in the state of affairs itself that we call friendship.”
39 P. 147.
40 It would appear that the most being “reasonable” can achieve is what the best in contemporary Game Theory delivers, which is nowhere near mandating that, regardless of the actions of other agent(s), one must necessarily act in some specified manner, such as, for example, with minimally decent morality. For helpful introductions to Game Theory see Lucas, J. R., Responsibility (Oxford: Clarendon Press, 1993), pp. 41ffGoogle Scholar., and Dawkins, Richard, The Selfish Gene (Oxford: Oxford University Press, 1976), pp. 74ffGoogle Scholar.
41 Imagine the likelihood of getting back what you put into a community which, as is logically possible, comprised, or even simply consisted largely of, individuals whose personalities were so “skewed by their wrongdoing” that they mistook the “basic bads” for basic goods (p. 114).
42 P. 127.
43 It is precisely this that separates Finnis's conception of the individual visavis the community from Jacques Maritain's view of the individual person in his short work, The Person and the Common Good. Maritain establishes an absolute conception of the value of every human person as a “whole” in himself or herself on the basis of the imago Dei (pp. 20, 42), and thus adduces (what I think is) a marvellous little formulation: “to say that society is a whole composed of persons is to say that society is a whole composed of wholes” (Notre Dame, University of Notre Dame Press, 1966 ed.), pp. 56–7.
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