Summarise Finnis’ arguments in "Natural Law and Natural Rights"

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Brief summary of Finnis’s argument Finnis claims that a system of authoritative stipulations is required to co-ordinate the common good.[1] The first and most fundamental principle of practical reasonableness is that authority in a community is to be exercised by those who can in fact effectively settle co-ordination problems for that community.[2] In any large and complex community, there will be a need for rules providing for the cooperation and coordination of individuals for the community to act as a community, so that its members survive and flourish, and have a reasonable chance at realising the ‘basic goods’ of humans. To treat something as authoritative is to treat it as an ‘exclusionary reason’ for action.[3] This means acting accordingly to the stipulations of the person or institution for the reasons that he/she/it has so stipulated, regardless of the existence of at least some other reasons to (or not to) act in that way. To seek out the source of authority is to recognise the notion that all members of a community are entitled to concern and respect.Along these lines Cardinal Bellarmine formulated his transmission theory which states that natural reasonableness requires that there be government authority, but it at the same time doesn't identify any particular person or class as the bearer of authority.Therefore, natural reasonableness requires that everybody (the whole community) be the bearer of authority (who then transmits its authority to representatives).[4] Finnis argues that this conclusion is implausible because we need authority to substitute for unanimity in determining the solution to co-ordination problems that involve everyone in the community.He further argues that this theory either means that there is no authority in the community or it tells us the location of authority in some communities. Finnis concludes that there is a need for authority in order to achieve the common good. In Finnis’s view the origin of authority is through the principles of practical reasonableness and the basic values of common good, generating practical conclusions from the fact of ability to co-ordinate action for the common good.[5] Rationale behind the conclusion The need for authority in a community where people are energetic and inventive in pursuit of their own or of common goods is apparent. The fact that a person or body has authority over others in a community has normative consequences for practical reasonableness; it affects the responsibilities of both rulers and ruled, by creating certain exclusionary reasons for action. These normative consequences derive from the normative principle that authority is good (because it is required for the realization of the common good) when that principle is taken in conjunction with the fact that a particular person, body or configuration of persons do what authority is to do (i.e. secure and advance the common good).[6] People have different motives and reasons for complying with authoritative stipulations (e.g. fear or force, respect for age or wisdom, belief in divine designation etc.) but for an understanding of authoritativeness of rulers, as a concern of practical reasonableness, it is the sheer fact of effectiveness that is presumptively decisive. Finnis denies the assumption that present authority must rest on some prior authority (of custom; or of the community over itself, granted away to the ruler by transmission or alienation or of individuals over themselves, granted away by promise or implied contract or consent).[7] Rules are unlikely to arise through custom; rather, they are typically imposed by an authority who manages to get bulk of the population to take its say-so as law. In Finnis’s view, consent, transmission, contract, custom – none of these is needed to constitute the state of affairs which justifies authority. What is needed to justify authority is that the command or orders of a person or body is complied with and acted upon by the community, and not of any other rival person or body, even though the preferences of individuals are different regarding the relevant problems. Individual motivations for agreeing to the judgment will vary, and those who aspire to authority will ensure that those who are not will be supplied with some exterior motive to concur (i.e. through fear or favour).[8] Also, those who are in authority will lay down directions to ensure the location of authority in future by authoritative rules, thus, eliminating the need of the process of arriving at unanimity to determine authority. The fact that everyone will abide by somebody’s say-so is the necessary and defeasibly sufficient prerequisite for believing that that person has authority in the community. There are two riders of this principle. Firstly, Practical reasonableness requires that faced with a purported ruler’s say-so, the members of the community normally should obey him if the purported ruler is designated as the lawful bearer of authority by the constitutional rules authoritative for that time, place, field, and function. Secondly, a man's stipulations have authority when a practically reasonable subject, with the common good in view, would think he ‘ought’ to consent to them.[9] Finnis suggests that most lawyers and political philosophers would consider the two riders as fundamental principles of determining authority. In his view, this is due to fact that most realms such as the Romans came into being through usurping authority of another. He further refers to the idea proposed by Sir John Fortescue that even if a government is formulated by bad people its origins stem from natural law. However, Finnis prefers the principles of practical reasonableness and the basic values of common good, over natural law. The place of the argument within the larger thesis Finnis’ claim about the existence of a presumptive moral obligation to obey the law is founded upon a certain view of human good and of the type of social order that must exist for the achievement of this good. He develops his claim as follows. He argues that there exist certain ‘goods’, such as knowledge, play and friendship, which have an intrinsic and self-evident value for every human being. Human flourishing consists in the realization of these goods and society must be ordered in such a way that this flourishing – ‘the common good’ – be achieved.[10] ’Common good’ is a set of conditions which enables the members of the community to attain for themselves reasonable objectives, or to realize reasonably for themselves the values, for the sake of which they have reason to collaborate with each other in a community.[11] ‘Practical reasonableness’ or reasoning about how to achieve the common good will reveal a wide range of commitments, orientations and projects to adopt this end. Many of these commitments and projects will be mutually incommensurable and no one of them will be inherently superior to the other. In order that anything be done, a selection has to be made from this range of alternative reasonable schemes for the community to adopt. Finnis calls these questions about which schemes, procedures and priorities to select ‘co-ordination problems’.[12] It is true that the more intelligence and skill of a group’s members, and the greater their commitment to achieving common good, the more authority and regulations may be required. This is so because the intelligent members will find many new and better ways to achieve the aim which multiply the problems of co-ordination by giving the group more possible orientations and projects to choose from. Therefore, these co-ordination problems need a solution in order to achieve the common good. According to Finnis, co-ordination problems can only be solved in one of the two ways – by unanimity or authority.[13] He rejects unanimity for being impractical. Thus solutions to co-ordination problems can be found only through authoritative selections from amongst competing schemes for the common good.[14] There has to be some arrangement whereby people treat selections of solutions to these problems through this arrangement as binding or obligatory upon them. The law is one form of authoritative governance and dispute resolution. The law makes available a system of promulgated rules for everyone in the community to follow. It creates frameworks within which people can organise their transactions and so on.[15] Hence, Finnis argues that there is a generic and moral obligation to obey the law. Further in his book, Finnis argues that morality and law are the result of practical reasonableness and laws that don’t aim the common good and don’t meet practical reasonableness requirements should be rejected. However, not all laws that lack moral justifications should be disobeyed because this damages the rule of law. Strengths and weaknesses of the argument with reference to other academics Finnis says that we need authority to achieve the common good, which mean that people who have authority lay down the rules or laws that are to be followed; hence, we should follow the law in order to achieve the common good. The legal order ‘shapes, supports and furthers patterns of co-ordination.’[16] Thus the law, by solving co-ordination problems, enables us to achieve the common good. The legal order establishes constitutional governance. Under the rule of law, authoritative solutions to coordination problems are established, modified and applied in the form of and by reference to pre-determined and promulgated rules. The exercise of authority in this manner has built into it an element of systematic fairness. When authority is brought to bear upon a person or to solve a given practical problem through the rule of law, systemically speaking its solutions apply not by reference to any partisan or arbitrary preference but by reference to given rules.[17] Finnis seems to assume that it is possible to identify the obvious areas where cooperation and coordination of individuals is required, and the duty of authority is to select from various regimes of rules to fill that need. But in this consideration Leslie Green says that common knowledge of our circumstances cannot simply be assumed.[18] One of the hardest tasks in law and politics is to get people to understand the need for cooperation, especially when it is very complex or involves people unlike or remote from themselves. Two sorts of errors are common. Firstly, there may be a need for cooperation that is not adequately felt, for instance, where there is a social problem that needs solution but because of ignorance, self-deception or wilful blindness of people; they do not see a task calling for a solution. Secondly, there may be deeply felt coordinative ‘needs’ that are in fact illusory.[19] Joseph Raz objects to one of Finnis’s claim that a system of authoritative stipulations is required to co-ordinate the common good. Raz argues that there are other equally serviceable methods for the achievement of co-ordination. For instance, the manipulation by the State of the social and economic environment to provide incentives for behaviour that is desirable from the viewpoint of oc-ordination and disincentives against undesirable conduct. Raz calls this ‘government without authority’.[20] Another method of government without authority is the use of the coercive powers of the State to provide the morally unscrupulous with prudential reasons to act for the common good. Raz also denies the claim that there is a general moral obligation to obey the law regardless of its content.[21] His position is that the question of whether or not a person is under an obligation to obey depends on his/her situation and the content of the law. Hence we cannot speak of a universal and independent moral duty to follow the law. Finnis’s claim that authority is the only possible solution in order to tackle coordination problems (since unanimity, in his view, is impractical) is also criticised. Many social coordination problems (including extremely complex ones) are solved by convention, rather than the intervention of authority. Languages, for example, are complex sets of conventions that evolve over time in response to the need for society wide standards of communication.[22] Hence, it is arguable that social coordination problems may be solved by convention in the absence of a centralised legal authority. This would result in something very similar to (if not completely) unanimity. Conclusion To conclude, Finnis’s argument about the need for authority has logical basis. But a person or institution should not have absolute authority in determining the rules of the community; rather, there should be a system whereby laws are created by a general consensus of the community.
[1] S Aiyar, ‘The Problems of Law’s Authority: John Finnis and Joseph Raz on Legal Obligtion’, Vol. 19, No. 4 (Jul., 2000), p. 482. [2] J Finnis, Natural Law and Natural Rights (2 ed., Oxford, Clarendon Press, 2011), p. 246. [3] Ibid, p. 234. [4] Ibid, p. 248. [5] Ibid, p. 252 [6] Ibid, p. 246. [7] Ibid, p. 247. [8] Ibid, p. 249. [9] Ibid, pp. 250-251. [10] Aiyar, n(1), p. 466. [11] Finnis, n(2), p. 155. [12] Ibid, p. 231-232. [13] Ibid, p. 232. [14] Aiyar, n(1), p. 467. [15] Ibid, p. 468. [16] Ibid. [17] Ibid, p. 469. [18] L Green, ‘The Duty to Govern’ (2007) 13 Legal Theory p. 177. [19] Ibid. [20] Aiyah, n(2), p. 482. [21] Ibid, p. 471. [22] J Crowe, ‘Five Questions for John Finnis’ (2011) Pandora's Box, Vol. 18, p. 16.
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