Natural Law Redoux

The Gorsuch nomination provides a good opportunity to write about something that’s been on my mind for a while, the so-called “new natural law.”  I know that some of the defenders of the Finnis project dislike that name because, like Finnis, they believe that there is nothing new about it. The Natural Law of Aquinas is not that different from the Natural Law of Finnis, they claim, because they both are practical reason that proceeds from self-evident claims that Finnis calls “basic goods”, which are  intuitions that are not derived from theoretical (metaphysical) claims.  I have not bought into that argument because it is obviously false if one considers the foundational claims of the two theories.

The separation of fact and value that Finnis accepts as given was a modern development that antedates Aquinas by several centuries. The separation of fact and value as distinct types of claims would not have been possible for him. The nature of a moral teleology merges fact and moral purpose. Aquinas believed that knowledge of the moral purpose of a thing is understood through the act of perception. In Finnis’ commentary of Aristotle’s de Anima, he makes that point unambiguously. Perception is a faculty of the mind whereby the form of the thing perceived is copied into the mind. Aquinas’ naive realism follows Aristotle in believing  that the mind gains knowledge of the formal essence of the thing perceived and thereby its moral teleos. Finnis denies precisely this by accepting the fact/value dichotomy and attributing it to Aquinas’s distinction between spectulative and practical. This is interesting today because Gorsuch studied Finnis and was presumably influenced by him.  I admittedly have not yet delved into his legal philosophy, but I will be looking for this move in it.

It seems to me that the intuitions that Finnis identifies as Basic Goods are drawn from  different levels of abstraction and operate at different levels from the the types of claims that are made in the law. This demands some consideration. Let’s take friendship as an example. Friendship is a basic good, such that no rational person could deny that it is good in itself. That’s Finnis’ claim. But, neither “friend” nor “good” are self-interpreting concepts. What is a friend? There have always been debates about this question. What constitutes a true friend? What can one hope for one’s friends? What can a friendship achieve?  And, so on.  And the “good” is even more vague. If the good is an absolute judgment–that it is some universal destination of category against which all concepts might be judged–then it would seem to contain a much larger set of possiblities than the term Friend. A friend is some sort of judgement about a person. The good is an absolute moral category. So, then to say that the membership of Friend in the set of things that are Good is an immediate intuition, begs the question: how is this intuition possible? How does one come to know that a Friend belongs in the set of Good things? Finnis says it is an immediate intuition. But, this is not much of an answer.

He is quick to argue that the Basic Goods cannot be derived. And, so we will grant him that this knowledge does not arise through a priori reasoning. Presumably it is an a posteriori judgement that one has from having had Friends and some familiarity with the Good. But, how do these experiences happen? To judge someone a friend, one must have already a concept of friend and some notion of how to use that concept. And, to assign the concept Friend to the category of Good, one must have some concept of Good and know its ordinary use. That is to say, the immediate intuition is possible only because of a semantic system of meaning that already presupposes it.  On this reading, then, the Basic Goods are in fact artifacts of a system of semantic meaning. This was, of course, what Neurath and Quine argued. And, what Wittgenstein developed into his anti-philosophy. Viewed in this light, Finnis is veiling a cultural conservatism behind a claim of self-evidence. The New Natural Law simply justifies maintaining the cultural norms and power relations.

This is not to say that law is indifferent to moral purposes. Indeed, I think that legal theory needs to recover some moral foundation for judging purposes and that the lack of the ability to speak about moral purpose and human nature has greatly hampered the effectiveness of the rule of law and undermined the foundations of the American democracy.  But, simply accepting the traditional cultural norms is precisely what cannot be done in a period of enormous cultural and technological change. We need to do better. I am looking forward to delving into Gorsuch’s legal philosophy, but I suspect that he will not have overcome these shortcomings.

As a footnote, let me add that Jean Porter’s sorry work on jurisprudence is much weaker than Finnis’. She too accepts Hart as a starting point and does not appreciate the epistemological issues between Hart and the natural law. And, since she lacks legal knowledge which Finnis has, her work also lacks clear examples and the a posteriori judgments that might have led a better thinker to make more sound analysis.

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4 thoughts on “Natural Law Redoux

  1. Hi. I stumbled on this post when reading about the supposedly sinister nature of Neil Gorusch’s association with John Finnis. I was initially expecting some comments on that topic, but I’m not sorry to have missed them, since I think that is much ado about nothing. I do, however, think you have Finnis quite wrong here.

    Your critique of Finnis suffers from at least appearing to have paid too little attention to what he and his defenders have said. For example, you claim that Finnis accepts the fact/value distinction, but this is not at all the case. He not only accepts, but defends at length, the claim that practical and evaluative judgments of the forms ‘X is good,’ ‘X is to be pursued,’ ‘Y is bad, ‘Y is to be avoided,’ ‘You ought not to phi,’ ‘Everyone should always phi,’ ‘This is a good Z,’ and so on can be true or false; he holds that the truth and falsity of such propositions is not determined by what we desire or believe about them; rather, they are true (or false) propositions in virtue of how human beings and the world are. If a ‘fact’ is a true proposition, then Finnis plainly holds that there are normative and evaluative facts.

    What Finnis accepts is the is/ought distinction and the claim that no prescriptive ‘ought’ proposition is logically entailed by any merely descriptive proposition. Though this claim is often conflated with the fact/value distinction, they are by no means the same, and the is/ought distinction does not entail the fact/value distinction. There may be true normative and evaluative propositions, but these alone do not entail any prescriptive judgments. Consider the propositions ‘exercise is good for cats’ and ‘that cat is in good condition.’ These are evaluative and, at least in a broad sense, normative propositions. Even granting that they are true, however, nothing follows from these propositions alone about what anyone ought to do. ‘Good’ in these propositions does not mean ‘ought to be pursued,’ whether by you or anybody or even by cats. These propositions could be true even if there were no true claims of the form ‘X ought to phi.’

    Now, Finnis’ early accounts, at least, are problematic in this respect because he does tend to treat ‘good’ as though it means ‘to-be-pursued.’ It is debatable whether he has a consistent line on this, or whether what he says can be readily revised to make the relevant distinctions clear. But the main thrust of his account is that when you grasp something as good for you, you grasp it as to-be-pursued. This is, he thinks, because as a practical reasoner you have at least an implicit grasp of the first principle of practical reason, viz. that good is to-be-pursued and evil is to-be-avoided. This principle is not to be taken in a way that would render cat exercise to-be-pursued; the good that is to-be-pursued is your own good and that of others like you. To my mind, it is here that Finnis’ theory encounters difficulties, because he moves too quickly an easily from ‘x is good for me and hence to-be-pursued by me’ to ‘x is good for human beings and therefore to-be-pursued by me,’ and he seems to give different and not obviously consistent accounts of how that move is to be understood (sometimes he seems to think that it follows from recognizing that others are relevantly like me, at other times he seems to think that it follows from recognizing that community with other human beings is a good for me and for all other human beings). I haven’t read everything that Finnis has written on the topic, but I do not find an entirely satisfying treatment of this issue in Natural Law and Natural Rights or in Fundamentals of Ethics.

    So as you see, I’m not an uncritical devotee of Finnis. Quite the contrary. But he cannot plausibly be accused of accepting the fact/value distinction. Rather, he holds that prescriptive propositions cannot be logically inferred from purely descriptive propositions. That is a rather different claim than the claim that normative and evaluative propositions cannot be facts, whether because they cannot be true or false at all (as with non-cognitivists) or because they are all false (error theorists).

    The best treatment of these questions that I’m aware of from a natural-law theorist who is critical of Finnis but does not misinterpret him is the discussion in Mark Murphy’s Natural Law and Practical Rationality. Murphy likewise accepts that prescriptive practical propositions cannot be logically entailed by purely descriptive propositions, but he also argues, quite plausibly I think, that we can and do readily grasp the truth of many normative, evaluative judgments that are not practical / prescriptive. Hence his account grounds the basic aspects of well-being in human nature in a straightforward sense. Yet he also defends the claim that we can and do have a practical grasp of these basic aspects of well-being, and though the account he offers is not identical to Finnis’, it is quite close and is plainly not committed to intuitionism in any standard sense of that term. Perhaps Murphy is wrong about Finnis (and perhaps wrong about a lot of other things), but I do not think any criticisms of Finnis from a natural law point of view can afford to ignore what Murphy says there in his defense (and in objection).

    Your puzzles about friendship and the like strike me as more than adequately answered in Natural Law and Natural Rights if not already in the Nicomachean Ethics, but that is a different story. It looks to me like they strike you as problems primarily because you think that Finnis is an intuitionist. Since I don’t think he is, whatever problems there might be here seem trivial to me.

    Finally, for what it’s worth, the Greek word for ‘end’ or ‘goal’ is telos, not teleos, which is the adjectival form.

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  2. Well, I guess you got me. I only read Finnis, I don’t channel him. Take a look at Chapter 2, section II.4 “The Illicit Inference from Facts to Norms” where Finnis explicitly makes the claim to which I refer. The weakness of his position, though, has less to do with that position, which I think puts him at odds with Aquinas. The weakness lies in his conception of self-evident pre-moral goods. Nice try.

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    1. I don’t claim to have done anything other than read him, either. Your interpretation strikes me as a misreading, and I’ve given reasons for that judgment; to respond by citing the passage is hardly a response to an objection, as I’m sure you know.

      If you think Finnis’ view in NLNR or elsewhere puts him at odds with Aquinas, then you should explain what Aquinas means when he says that the principles of the natural law are per se nota, ‘known through themselves’ or, as it is often understood, self-evident. You might also explain how Aquinas can consistently maintain that the principles of the natural law are known to everyone, whether self-evidently or not. The standard objection to views like the one you sketch is that it makes knowledge of the natural law depend on metaphysical knowledge, which is not in fact possessed by everyone, is difficult to attain, and is at least for many people unattainable in practice given their need to direct their attention elsewhere (the very reasons he gives for why revelation of truths about God that can be known by natural reason is not pointless). I’m inclined to agree that Finnis is sometimes at least apparently at odds with Aquinas on this issue in NLNR, though his responses to criticisms — in, e.g., ‘The Basic Principles of Natural Law: a Reply to Ralph McInerney,’ American Journal of Jurisprudence 1981 — if it is a mere clarification of his view and not a revision shows, to my mind, that if he is at odds with Aquinas, it is to Finnis’ credit and Aquinas’ detriment. Even supposing it is a revision, the position expressed there — essentially the one I sketched in my previous post — has been his position since 1981. Your criticism here is a very common one, but it takes no account of the responses Finnis has made to it, let alone to the ways that others, like Murphy, have attempted to restate the view in ways friendly to Finnis. You even rest your case entirely on NLNR II.4 — one of the first points Finnis makes in the response to McInerney is that it is misleading to take II.4 as though it expressed the totality of Finnis’ view about the relationship between fact and value.

      In any case, I generally agree that Finnis’ views on fact and value in NLNR are not adequately expressed, so that confusion on these points is in part a product of his own lack of clarity and precision. Even his later revisions or clarifications (whichever they are) seem to me not to go far enough in recognizing the availability of non-practical knowledge of ‘value’ and ‘norms.’ I think objections like yours vastly oversimplify the issue, but the more important point is that natural law theorizing in the same vein as Finnis’ need not be derailed by relatively minor disagreements on these points. Even if Finnis were saying, as I think he is not, that no knowledge of ‘values’ of any sort can be based on non-evaluative ‘facts,’ one could disagree with him on that point while learning a great deal from the rest of what he has to say. In other words, I think you’d be wrong to dismiss Finnis and ‘new natural law’ theory even if you were right on this one issue.

      This brings me to a question for you. Though I think both would vehemently deny it, it is hard not to notice the similarities between Finnis’ natural law theory and Nussbaum’s capabilities approach. While they of course differ on a whole slew of moral and political judgments (most famously regarding sexuality), and Nussbaum rejects the notion of exceptionless practical principles, the structure of their theories is remarkably similar — focused on well-being understood as consisting in a plurality of qualitatively heterogeneous and therefore quantitatively incommensurable aspects, emphasizing the importance of individual agency in well-being, seeing the morally legitimate aims of law and politics as promoting and preserving the conditions that enable well-being, thereby rejecting strongly rights-based approaches to justice that make the right prior to the good as well as ‘neutralist’ forms of liberalism that would require us to avoid basing law and policy in judgments about what is good for people, etc.). More relevantly to the issue we’ve been discussing, their approaches are methodologically similar insofar as both reject the idea of deriving claims about the human good from non-practical descriptive claims about human nature, and both have been, as a result, accused of being intuitionists. Nussbaum does not call herself a natural law theorist (though her embrace of Grotius in Frontiers of Justice seems sufficient to me to make her count at least as a species of the genus), and she does not even claim inspiration from, let alone fidelity to, Aquinas. Do you have similar objections to her capabilities approach? Different objections? I realize you might not have any particular opinions about it, but I figured since you’re at least broadly interested in these things you might be familiar with her work and have some thoughts about it.

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