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The Distinctive Common Good

Published online by Cambridge University Press:  14 April 2016

George Duke
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Abstract

This paper defends the traditional distinctive notion of the common good against the claim that it is normatively redundant on the aggregative conception. The first two sections of the paper outline the different candidate conceptions of the common good and the normative role of the common good within natural law theories. The paper then considers some difficulties faced by the instrumental and aggregative conceptions, before developing an Aristotelian account of the distinctive conception of the common good and demonstrating its normative significance for a natural law account of political and legal authority.

Type
Research Article
Information
The Review of Politics , Volume 78 , Issue 2 , Spring 2016 , pp. 227 - 250
Copyright
Copyright © University of Notre Dame 2016 

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References

1 Murphy, Mark C., “The Common Good,” Review of Metaphysics 59, no. 1 (2005): 133–64Google Scholar; Mark C. Murphy, Natural Law in Jurisprudence and Politics (Cambridge: Cambridge University Press, 2006), 61–90.

2 Murphy, “The Common Good,” 154–57.

3 For the role of the common good within a liberal framework, see John Rawls, A Theory of Justice, rev. ed. (Cambridge, MA: Harvard University Press, 1991), 219: “the common good I think of as certain general conditions that are in an appropriate sense equally to everyone's advantage.” For the common good in recent civic republican political thought see Philip N. Pettit, “The Common Good,” in Justice and Democracy: Essays for Brian Barry, ed. Keith Dowding, Robert E. Goodin, and Carole Pateman (Cambridge: Cambridge University Press, 2004), 150–69. According to Pettit, the common good “cannot plausibly refer to people's common net interests but only to the common interest that people have as members of the public.”

4 Aquinas's wide-ranging use of bonum commune and closely related terms is comprehensively set out in M. S. Kempshall, The Common Good in Late Medieval Thought (Oxford: Oxford University Press, 1999), 76–129.

5 The threefold classification derives from Murphy. See “The Common Good” and Natural Law in Jurisprudence and Politics.

6 John Finnis, Natural Law and Natural Rights, 2nd ed. (Oxford: Oxford University Press, 2011), 155. This conception is influenced by Germain Grisez, The Way of the Lord Jesus, vol. 2, Leading A Christian Life (Quincy, IL: Franciscan, 1993), 850 and John XXIII, Mater et Magistra, §65.

7 Finnis, Natural Law and Natural Rights, 85–90. See also John Finnis, Aquinas: Moral, Political and Legal Theory (Oxford: Oxford University Press, 1998), 82, 97–98.

8 This sense of a coordination problem is to be distinguished from the narrower sense of coordination problem found in game theory, which Finnis regards as constrained by an “emaciated … instrumental rationality” (Finnis, John, “The Authority of Law in the Predicament of Contemporary Social Theory,” Notre Dame Journal of Legal Ethics and Public Policy 1, no. 1 [1984]: 115–37Google Scholar).

9 Finnis, “The Authority of Law,” 133–37.

10 For defense of an instrumental interpretation of Aquinas on the common good, see John Finnis, “Is Natural Law Theory Compatible with Limited Government?,” in Natural Law, Liberalism and Morality, ed. R. P. George (Oxford: Oxford University Press, 1996), 1–26; John Finnis, “Public Good: The Specifically Political Common Good in Aquinas,” in Natural Law and Moral Inquiry, ed. R. P. George (Washington, DC: Georgetown University Press, 1998), 174–210. For critique of this interpretation, see Pakaluk, Michael, “Is the Common Good of Political Society Limited and Instrumental?,” Review of Metaphysics 55, no. 1 (2001): 57–94Google Scholar. Aquinas (e.g., at ST I-II q. 90, a. 3, ad 2 and Sententia Ethic. X 14 nn. 13–18) endorses the Aristotelian teaching (Pol. 1280b33–35; 1281a1–4) that a complete political community is oriented by the goal of a self-sufficient life of flourishing and virtue and not simply a partnership established for the sake of living together. The question is whether this is consistent with the claim that the role of government and law is limited and instrumental.

11 John Finnis, “Reflections and Responses,” in Reason, Morality, and Law, ed. John Keown and Robert P. George (Oxford: Oxford University Press, 2013), 520.

12 Finnis, Natural Law and Natural Rights, 153. Finnis states, however, that we should not think of a political community as having a single “aim or determinable sets of aims” (ibid., 155). This reflects his views regarding the variety of human projects and commitments, and the lack of a single, objective hierarchy of value among the goods.

13 Murphy, “The Common Good,” 136.

14 Ibid., 137.

15 Ibid.

16 Ibid., 138. Italics mine.

17 Ibid., 142. In addition to his claim about the normative dependence of the instrumental conception on the aggregative conception, Murphy also notes that Finnis's prior commitment to the need for a “principled rationale” for limited government (inclusive of antipaternalism and subsidiarity) appears to motivate his advocacy of the instrumentalist conception. This is problematic, Murphy alleges, insofar as “the attractiveness of the antipaternalist and subsidiarity principles should be explicated in terms of the good; we should not have to pare down the theory of the good to generate an argument against paternalism and for subsidiarity” (ibid., 145). The two objections to Finnis's position are thus related insofar as Murphy claims that it is necessary to consider the good of all persons in community—and hence the aggregative common good—in order to determine the normative justification of limited government.

18 Murphy, Natural Law in Jurisprudence and Politics, 114.

19 Murphy, “The Common Good,” 136.

20 See Dupré, Louis, “The Common Good and the Open Society,” Review of Politics 55, no. 4 (1993): 687–712CrossRefGoogle Scholar; Ralph McInerney, “The Primacy of the Common Good,” in Art and Prudence: Studies in the Thought of Jacques Maritain (Notre Dame, IN: University of Notre Dame Press, 1988), 77–92.

21 Yves R. Simon, The Tradition of Natural Law: A Philosopher's Reflections (New York: Fordham University Press, 1965), 105.

22 Cochran, Clarke E., “Yves R. Simon and ‘The Common Good’: A Note on the Concept,” Ethics 88, no. 3 (1978): 233–35CrossRefGoogle Scholar.

23 Ibid., 232.

24 ST I-II q. 72, a. 4; q. 93, a. 1; q. 95, a. 4; q. 96, a. 4; q. 97, a. 4; II-II, q. 109, a. 3; q. 114, a. 2; q. 129, a. 6; De Regno I, 1; Sententia Ethic. I, lect. 1; IX, lect. 10; Sententia Polit. 1, lect. 1. See also Fortin, E. L., “The New Rights Theory and the Natural Law,” Review of Politics 44, no. 4 (1982): 590–612CrossRefGoogle Scholar and Pakaluk, “Is the Common Good of Political Society Limited and Instrumental?,” 86.

25 Kempshall, The Common Good in Late Medieval Thought, 100.

26 The Thomistic characterization of the bonum commune in terms of justice is in turn indebted to the rediscovery of Aristotle's political and ethical thought, particularly the concept of the common advantage (to koinēi sumpheron). On the reception and interpretation of Aristotle's political thought in the thirteenth century see Martin, Conor, “Some Medieval Commentaries on Aristotle's Politics,” History 36 (1955): 29–44Google Scholar and Jean Dunbabin, “The Reception and Interpretation of Aristotle's Politics,” in Cambridge History of Later Medieval Philosophy, ed. Norman Kretzmann, Anthony Kenny, and Jan Pinborg (Cambridge: Cambridge University Press, 1982), 723–38.

27 ST II-II q. 57, a. 1.

28 ST II-II q. 29, a. 1.

29 The manner in which Murphy formulates the three candidate conceptions leaves open the possibility that the conceptions are reconcilable, despite his firm advocacy of the aggregative conception. Murphy's discussion of the instrumental conception, for example, seems to entail that this conception is normatively dependent upon the aggregative conception, rather than precluded by it. See Murphy, “The Common Good,” 139–47.

30 Murphy, “The Common Good,” 134–35.

31 Ibid.

32 Ibid.

33 ST I-II q. 90, a. 3.

34 John Rawls, A Theory of Justice, 217.

35 Mary M. Keys runs a persuasive natural law argument against Michael Sandel's civic republican critique of liberalism along these lines. See Mary M. Keys, Aquinas, Aristotle and the Promise of the Common Good (Cambridge: Cambridge University Press, 2006), 41–48.

36 This summary draws in particular on Finnis, “The Authority of Law,” 115–37. See also Duke, George, “Finnis on the Authority of Law and the Common Good,” Legal Theory 19, no. 1 (2013): 44–62CrossRefGoogle Scholar. An obligation to obey the law is generic if it is considered in relation to each law taken simply as an instance of law. An obligation is presumptive if in some cases it may be outweighed by countervailing moral considerations.

37 For critique of the assumption see Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Oxford University Press, 1994), 341–54.

38 On the requirements of practical reasonableness see Finnis, Natural Law and Natural Rights, 100–133. On the incommensurability of the basic goods and the ramifications of this for consequentialism in particular see Finnis, Natural Law and Natural Rights, 114–17, 225, 422–23 and John Finnis, Fundamentals of Ethics (Washington, DC: Georgetown University Press, 1983), 86–90.

39 See, in particular, Yves R. Simon, Philosophy of Democratic Government (Chicago: University of Chicago Press, 1951); Yves R. Simon, A General Theory of Authority (Westport, CT: Greenwood, 1962) and Simon, The Tradition of Natural Law. A clear and concise overview of Simon's account of the relationship between authority and the common good is found in Frank, William A., “Authority as Nurse of Freedom and the Common Good,” Faith and Reason 16 (1990): 371–86Google Scholar. See also Frank, William A., “Authority and the Common Good in Democratic Governance,” Review of Metaphysics 60 (2007): 813–32Google Scholar.

40 Simon, Philosophy of Democratic Government, 1–71; Simon, General Theory of Authority, 23–80; and Cochran, “Yves R. Simon and ‘The Common Good,’” 232.

41 Simon, Philosophy of Democratic Government, 1–71.

42 As Norman Kretzmann has demonstrated, the dictum is not directly attributable to either Augustine or Aquinas. See Kretzmann, Norman, “Lex Iniusta Non Est Lex: Laws on Trial in Aquinas' Court of Conscience,” American Journal of Jurisprudence 33, no. 1 (1988): 100–101CrossRefGoogle Scholar and Murphy, Mark C., “Natural Law Jurisprudence,” Legal Theory 9, no. 4 (2003): 244–46CrossRefGoogle Scholar.

43 See, in particular, Finnis, Natural Law and Natural Rights, 23–55; Murphy, “Natural Law Jurisprudence,” 241–67; Murphy, “Natural Law Theory,” in The Blackwell Guide to the Philosophy of Law, ed. Martin P. Golding and William A. Edmundson (Malden, MA: Blackwell, 2005), 15–28.

44 John Finnis, “The Truth in Legal Positivism,” in Collected Essays, vol. 4 (Oxford: Oxford University Press, 2011), 185 and Murphy, “Natural Law Theory.”

45 ST I-II q. 90, a. 4.

46 Murphy, “Natural Law Theory,” 23.

47 Brian Leiter, “Why Legal Positivism (Again)?” (Public Law and Legal Theory Working Paper No. 442, University of Chicago, Sept. 2013), 6–7.

48 ST I-II q. 91, a. 2. More generally, Aquinas takes over Aristotle's doctrine of four “causes”: efficient, formal, material, and final. See, for example, ST II-II q. 27, a. 3. See further Zuckert, Michael, “The Fullness of Being: Thomas Aquinas and the Modern Critique of Natural Law,” Review of Politics 69 (2007): 27–47CrossRefGoogle Scholar.

49 I am grateful to an anonymous reviewer for this point.

50 Murphy, “The Common Good,” 142–43. See also Duke, “Finnis on the Authority of Law and the Common Good,” 44–62.

51 Murphy, Natural Law in Jurisprudence and Politics, 68.

52 Finnis, Natural Law and Natural Rights, 125.

53 Murphy, Natural Law in Jurisprudence and Politics, 67–68.

54 Raz, Ethics in the Public Domain, 341–54.

55 Finnis, “The Authority of Law,” 120.

56 Ibid., 133–137 and Simon, Philosophy of Democratic Government, 1–71.

57 Finnis, “The Authority of Law,” 120.

58 Murphy, “The Common Good,” 143.

59 Ibid., 142.

60 Murphy, Natural Law in Jurisprudence and Politics, 65.

61 Mark C. Murphy, Natural Law and Practical Rationality (Cambridge: Cambridge University Press, 2001), 96–138.

62 Murphy, “The Common Good,” 150.

63 Ibid., 155. Cf. Finnis, Natural Law and Natural Rights, 100–133.

64 Murphy, “The Common Good,” 155.

65 See in particular Pol. 1279a18 and 1282b17–18 and ST II-II q. 57, a. 1.

66 ST I-II, q. 96, a. 3.

67 Murphy, “The Common Good,” 153–57.

68 Ibid., 153.

69 Ibid., 154.

70 Ibid.

71 Aristotle, Politics 1252b27–30 and 1280a31–34. See also Terence Irwin, “The Good of Political Activity,” in Aristoteles' “Politik”: Akten des XI. Symposium Aristotelicum, ed. G. Patzig (Göttingen: Vandenhoeck & Ruprecht, 1990), 73–98.

72 John Finnis, “Aquinas' Moral, Political and Legal Philosophy,” Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/aquinas-moral-political/, last accessed 30 June 2015.

73 For a robust interpretation of Aristotelian politikē philia see John M. Cooper, “Political Animals and Civic Friendship,” in Reason and Emotion: Essays on Ancient Moral Psychology and Ethical Theory (Princeton: Princeton University Press, 1999), 356–77.

74 See John Finnis, “Action's Most Ultimate End,” in Collected Essays, vol. 4 (Oxford: Oxford University Press, 2011), 173–86 and Terence Irwin, The Development of Ethics: A Historical and Critical Study, vol. 1 (Oxford: Oxford University Press, 2007), 175–76.

75 Aristotle's identification of the common advantage with the political good of justice refers to “universal justice.” Aristotle characterizes “universal” justice as concerned with the lawful, in contrast to “particular” justice, which concerns questions of equality and is divided into distributive and corrective forms (NE 1129b25–1130a13). See also Fred D. Miller, Nature, Justice, and Rights in Aristotle's “Politics” (Oxford: Oxford University Press, 1995), 194.

76 I assume an “inclusive” interpretation of Aristotelian citizenship, according to which all the members (citizens) of the political community should partake in the good life. See Miller, Nature, Justice, and Rights in Aristotle's “Politics,” 219, for defense of an inclusive approach to citizenship and eudaimonia. Of course Aristotle's approach to citizenship is also regrettably exclusive in the sense that women, slaves, resident aliens, etc. are not considered members of the polis. On this point see Annas, Julia, “Aristotle on Human Nature and Political Virtue,” Review of Metaphysics 49, no. 4 (1996): 731–53Google Scholar.

77 See Donald Morrison, “The Common Good,” in The Cambridge Companion to Aristotle's “Politics,” ed. Marguerite Deslauriers and Pierre Destrée (Cambridge: Cambridge University Press, 2013), 176–98.

78 My argument in what follows assumes that the (undoubtedly genuine and significant) differences between the classical polis and modern political associations such as the nation-state do not undermine the relevance of an Aristotelian conception of the common good to contemporary political communities. For defense of this assumption see Smith, Thomas W., “Aristotle on the Conditions for and Limits of the Common Good,” American Political Science Review 93, no. 3 (1999): 625–36CrossRefGoogle Scholar and Keys, Aquinas, Aristotle and the Promise of the Common Good. A difficulty in this vicinity for any natural law account of the common good, particularly in the context of the expansion of international law and contemporary debates about global justice, is whether it can justify a commitment to the particularity requirement, i.e., that an agent has a particular obligation to obey the laws established in their own political community. See Leslie Green, The Authority of the State (Oxford: Oxford University Press, 1990), 227–28 and A. J. Simmons, Moral Principles and Political Obligations (Princeton: Princeton University Press, 1979), 30–35. For a cautious natural law response, based upon Aristotelian assumptions, see Murphy, Natural Law in Jurisprudence and Politics, 171–76.

79 See also the excellent discussion in Lewis, V. Bradley, “Aristotle, the Common Good, and Us,” Proceedings of the American Catholic Philosophical Association 87 (2014): 69–88CrossRefGoogle Scholar.

80 Fred D. Miller, “Aristotle's Political Theory,” Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/aristotle-politics/, last accessed 10 January 2015.

81 See Alasdair MacIntyre, Whose Justice? Which Rationality? (London: Duckworth, 1988), 103–45.

82 Ibid., 141.

83 See Miller, Nature, Justice, and Rights, 56 on this point: “the priority claim rests on the principle of community that individuals can realise their potential only if they are subject to the authority of the polis… . The polis is a whole in the sense of a community: its natural end is a common good in which the individual members directly participate.” See also David Keyt, “Three Basic Theorems in Aristotle's Politics,” in A Companion to Aristotle's “Politics,” ed. David Keyt and Fred D. Miller Jr. (Malden, MA: Blackwell, 1991), 118–41.

84 Sententia Politic., lib. 1 l. 1 n. 30. At Categories 14b4–8 Aristotle explicitly acknowledges this “evaluative” sense of priority. See also Metaphysics 999a13–14.

85 Sententia Politic., lib. 1 l. 1 n. 31. Accordingly, Aristotle's term proteron has the sense of more valuable or important, rather than referring to priority in temporality. See further supporting arguments for this claim in Richard Kraut, Aristotle: Political Philosophy (Oxford: Oxford University Press, 2002), 265. At Sententia Politic., lib. 1 l. 1 n. 31 Aquinas notes that the whole is not prior to the parts in the order of coming to be.

86 See Miller, “Naturalism,” 330–31 and C. D. C. Reeve, “The Naturalness of the Polis in Aristotle,” in A Companion to Aristotle, ed. G. Anagnostopoulos (Oxford: Wiley-Blackwell, 2009), 517.

87 Finnis, “The Authority of Law,” 115–37.

88 This passage is best read in conjunction with Aristotle's claim that it is the virtuous person who acts most courageously and nobly in dangerous situations because they have more to lose (NE 1117b10–15).

89 My discussion here allows for a distinction between material goods and personal goods. On the basis of such a distinction, it is possible to argue that while an individual may justifiably be required to sacrifice material goods such as health, income, and occupation for the common good, personal goods such as rationality, moral integrity, virtue, and relation to God are not subject to the same obligations of sacrifice. See Jacques Maritain, The Person and the Common Good, trans. John J. Fitzgerald (New York: Scribner's, 1947) and Cochran, “Yves R. Simon and ‘The Common Good,’” 233.

90 Pakaluk captures this point in his account of homesteaders who, faced with an external threat, form an association for the defense of their property (“Is the Common Good of Political Society Limited and Instrumental?,” 88–94). It is not difficult to imagine a situation in which one of the homesteaders was called away from the defense of their own property, when it was under threat, to occupy a position that had more strategic importance from the point of view of defending the homesteads as a whole. To abandon this aspect of the common good—with its attendant sacrifice in terms of individual self-interest—is to abandon the traditional notion of the common good altogether.

91 Murphy, Natural Law in Jurisprudence and Politics, 168–76.