Law and Morality

KennethEinar Himma

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351560795
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

This volume collects many of the key essays exploring the possible relationships between the concepts of law and morality, a central concern of contemporary philosophizing about law. It is organized around five conceptual issues: classical natural law theory; legal positivism's separability thesis; Ronald Dworkin's constructive interpretivism; inclusive legal positivism's assertion that there can be legal systems with moral criteria of legality; and the relevance of morality and moral theorizing in theorizing about the concept of law and associated legal concepts. Each of the essays makes an important contribution toward addressing these issues.

Part I
Classical Natural Law Theory

[1]
NATURAL LAW AND LEGAL REASONING*

JOHN FINNIS**

I

Legal reasoning is, broadly speaking, practical reasoning. Practical reasoning moves from reasons for action to choices (and actions) guided by those reasons.¹ A natural law theory is nothing other than a theory of good reasons for choice (and action).

“Reasons”, “choices” and “action” are words afflicted with a fundamental ambiguity. Its principal source is that we are animals, but intelligent. All our actions have an emotional motivation, involve our feelings and imagination and other aspects of our bodiliness; and all can be observed (if only, in some cases, by introspection) as pieces of behaviour. But rationally motivated actions also have an intelligent motivation, and seek to realize (protect, promote) an intelligible good. So our purposes, the states of affairs which we seek to bring about, have a double aspect: the goal which we imagine and which engages our feelings, and the intelligible benefit which appeals to our rationality by promising to instantiate, either immediately or instrumentally, some basic human good. The word “reason” is often used loosely to refer to one’s purposes, without distinguishing between a purpose motivated ultimately by nothing more than feeling and a purpose motivated by one’s understanding of a basic human good. I shall be using the word “reason”, except where the context shows otherwise, to refer only to reason in the latter sense.²

An account of basic reasons for action should not be exclusively rationalistic. It should not portray human flourishing in terms only of the exercise of our capacities to reason. We are organic substances, animals, and part of our genuine well-being is our bodily life, maintained in health, vigour and safety, and transmitted to new human beings. To regard human life as a basic reason for action is to understand it as a good in which indefinitely many beings can participate in indefinitely many occasions and ways, going far beyond any goal or purpose which anyone could envisage and pursue, but making sense of indefinitely many goals.³ And this sense of “reason for action” is common to all the other basic goods: knowledge of reality (including aesthetic appreciations of it); excellence in work and play whereby one transforms natural realities to express meanings and serve purposes; harmony between and amongst individuals and groups of persons (peace, neighbourliness and friendship); harmony between one’s own feelings and one’s judgments and choices (inner peace); harmony between one’s choices and one’s judgments and behaviour (peace of conscience and authenticity in the sense of consistency between one’s self and its expression); and harmony between oneself and the wider reaches of reality including the reality that the world has some more-than-human source of meaning and value.

To state the basic human goods is of course to propose an account of human nature.⁴ But it is not an attempt to deduce reasons for action from some pre-existing theoretical account of human nature in defiance of the logical truth (well known to the ancients) that you cannot deduce an “ought” from an “is”—since you cannot find in the conclusion to a syllogism what is not in the premises. Rather, a full account of human nature can only be given by one who understands the human goods practically, i.e., as reasons for choice and action, making full sense of feelings, spontaneities and behaviour. (So Aristotle’s principal treatise on human nature is his Ethics which is from beginning to end an attempt to identify the human good, and is, according to Aristotle himself, from beginning to end an effort of practical understanding; the Ethics is not derivative from some prior treatise on human nature.)

So one begins to see the sense of the term “natural law”: reasons for actions which will instantiate and express human nature precisely because they participate in and realize human goods.

II.

Just here a sound theory of practical reasoning, and therefore of legal reasoning, will part company from many theories on the market. It parts company, for example, from the denial that there are any objective human goods save, perhaps, freedom of choice—a denial which lies at the heart of Critical Legal Studies, as its foundational texts make plain. Of the four (bad) reasons offered by Roberto Unger for denying that there are objective human goods, the one most dear to his heart, I think, is that to affirm that there are such goods “denies any significance to choice other than the passive acceptance or rejection of independent truths … [and] disregards the significance of choice as an expression of personality.”⁵

On the contrary, it is the diversity of rationally appealing human goods which makes free choice both possible and frequently necessary—the choice between rationally appealing and incompatible alternative options, such that nothing but the choosing itself settles which option is chosen and pursued.⁶ I shall be arguing that many aspects of individual and social life—and many individual and social obligations—are structured by choice between rationally appealing options whose rational appeal can be explained only in terms, ultimately, of basic human opportunities understood to be objectively good.

But if the basic human goods open up so much to rational choice, where are we to find the concept of choices which, though rational, ought to be rejected—are unreasonable, wrongful, immoral?

Moral thought is simply practically rational thought at full stretch, integrating emotions and feelings but undeflected by them. The fundamental principle of practical rationality is: Take as a premise at least one of the basic reasons for action and follow through to the point at which you somehow instantiate that good in action—do not act pointlessly. The fundamental principle of moral thought is simply the demand to be fully rational: In so far as it is in your power, allow nothing but the basic reasons for action to shape your practical thinking as you find, develop, and use your opportunities to pursue human flourishing through your chosen actions—be entirely reasonable.⁷ Aristotle’s phrase orthos logos, and his later followers’ recta ratio, right reason, should simply be understood as “unfettered reason”, reason undeflected by emotions and feelings. Undeflected reason will be guided by the ideal of integral human fulfillment, i.e. by the ideal of the instantiation of all the basic human goods in all human persons and communities.

Emotion may make one wish to destroy or damage the good of life in someone one hates, or the good of knowledge; so one kills or injures, or deceives that person, just out of feelings of aversion. That is a simple, paradigmatic form of immorality. We can say that hereabouts there is a general, so to speak methodological moral principle, intermediate between the basic principles of practical reason (the basic goods or reasons for action) and particular moral norms against killing or lying: this intermediate moral principle, which some call a mode of responsibility,⁸ will exclude meeting injury with injury, or responding to one’s own weakness or setbacks with self-destructiveness.

More immediately relevant to political and legal theory is the mode of responsibility, or intermediate moral principle, requiring that one act fairly: that one not limit one’s concern for basic human goods simply by one’s feelings of self-preference or preference for those who are near and dear. Fairness does not exclude treating different persons differently; it requires only that the differential treatment be justified either by inevitable limits on one’s action or by intelligible requirements of the basic human goods themselves. I shall have more to say about the legitimate role of feelings in making fair choices in which one prioritizes goods by one’s feelings without prioritizing persons simply by feelings.

There are other intermediate moral principles. Very important to the structuring of legal thought is the principle which excludes acting against a basic reason by choosing to destroy or damage any basic human good in any of its instantiations in any human person. The basic reasons for action, as the phrase suggests, present one with many reasons for choice and action, and since one is finite, one’s choice of any purpose, however far-reaching, will inevitably have as side-effect the non-realisation of other possible instantiations of that and of other basic human goods. In that sense, every choice is “against some basic reason”. But only as a side-effect. The choices which are excluded by the present mode of responsibility are those in which the damaging or destruction of an instantiation of a basic human good is chosen, as a means. The mode of responsibility which I first mentioned excludes making such damage or destruction one’s end; the present mode excludes making it one’s means. The concepts of ends and means come together in the conception so fundamental to our law: intention.⁹

III.

At this point, one begins to notice how a theory of natural law cannot be a theory only of human goods as principles of practical reasoning. Practical reasoning must take into account, and a theory of practical reason must accommodate within its account certain features of our world. world.

The distinction between what is chosen as end or means, i.e. intended, and what is foreseen and accepted as a side-effect (i.e. an unintended effect) is a feature of the human situation which is more or less spontaneously and more or less clearly understood in unreflective practical reasoning, but which must be brought to full clarity in a reflective ethical, political or legal theory. The reality of freedom of choice, and the significance of choices as lasting in the character of the chooser beyond the time of the behavior which executes the choice—this too is a reality which ethical and political theory must attend to and accomm...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• Part I Classical Natural Law Theory
• Part II The Separability Thesis
• Part III Constructive Interpretivism
• Part IV Inclusive Legal Positivism
• Part V Morality and Conceptual Methodology
• Name Index