FINNIS'S NATURAL LAW WITHOUT NATURE (1)
Chapter IX of The Disintegration of Natural Law Theory: Aquinas to Finnis
by Pauline Westerman
published by Brill of Leiden , New York 1997, pp.231-258.
and reproduced here with the usual permissions.
The big leap from Pufendorf to the twentieth century does not imply that the intermediate centuries did not produce any natural law theory worth mentioning. On the contrary, seventeenth-century natural law theory was the starting-point for an enormous number of theoretical and political innovations.
The most important development, without which it is impossible to conceive of modern politics at all, is the development of theories of human rights. To say that the Grotian heritage of natural law as the sum-total of natural rights proved fertile is an understatement. Hobbesian and Lockean versions of this heritage were re-shaped and modified, implemented and exported to the world at large. Today, rights-talk has become the dominant way of discussing moral and political issues. In VI.8 on Grotius, I indicated a possible theoretical explanation of this success. If one conceives of rights as prior to law and if one regards law as a set of obligations corresponding to natural rights, it is easier to deal with what I called the problems of translation and of obligation.
Apart from political and social factors, these theoretical advantages may have contributed to the fact that in the 18th and 19th centuries natural law theory flourished in the form of rights theories. What is more: it was the only form in which natural law theory survived. This may sound as a very bold statement. Textbooks on natural law generally extend the meaning of the term 'natural law'. We are used to label Kant's moral and legal philosophy as a rationalist variety of natural law. D'Entreves calls him 'the most forceful exponent of natural law in modern days'.(2) The thinkers belonging to the Scottish Enlightenment (notably David Hume and Adam Smith) are also said to have developed natural law theories.(3)
I think that these extensions of the number of natural lawyers rest on an inflatory use of the term 'natural law'. Either it is understood as an attempt to provide for eternal or universal principles, whether these are derived from nature or not, or it is conceived as an umbrella-term for all attempts to link morality with nature, no matter how the connection is established. For the sake of clarity, however, it seems to me advisable to reserve the title of natural law for those theories that set out to discover eternal criteria and principles, that are grounded in physical or human nature, discoverable by reason and that can serve as standards by means of which positive law can be justified and/or criticised (see my initial definition of natural law in the introduction).
On the basis of that definition we can see that although Kantian deontology as well as the Scottish philosophers can be regarded as branches of the tree of natural law theory, these are branches that decidedly grew their own way. The differences between these theoretical programmes reveal the deep chasm that already surfaced in Pufendorf's work. My thesis is that neither Kant nor Hume tried to provide for a unified and normative theory on the basis of (human) nature and therefore cannot be properly said to belong to the tradition of natural law.
As I argued elsewhere,(4) Hume did indeed take human nature as a starting-point, but not in order to justify man's conventions, but in order to explain them. He indeed acknowledges that man cherishes some universal principles beyond apparently conflicting moral views, but instead of using these principles as normative criteria for our moral judgements, he takes them as principles underlying these judgements. He does not tell us that sympathy with utility ought to guide our moral judgements, but that it always is at the bottom of our moral distinctions. And that is how he explains both the origins of our conventions as well as the motivation for people to follow rules. Despite the great similarities in vocabulary, Hume's enterprise is not that of a natural lawyer, if we restrict the meaning of the term of natural law theory to attempts to derive and justify moral principles from nature.
As for Kant, of course he does attempt to discover justifying principles. But at the same time he extended the gap between 'is' and 'ought', between Sein and Sollen, by claiming that they are not only logically, but also ontologically distinct. To Kant the empirical world is irrelevant to moral discourse. Unambiguously, Kant contrasts the empirical laws of nature with normative laws that can only be supplied by reason. (5) Inclinations and passions belong to the realm of nature.
According to Kant, these natural inclinations can only give rise to material and subjective aims, which can be achieved by following hypothetical imperatives. Hypothetical imperatives can inform us about how to proceed in order to achieve a subjective goal: if I want to become rich, or successful, or happy, I have to do x or y as the most efficient means to that goal. Hypothetical imperatives comprise prudential and technical rules. They inform us about means, not ends. Kant distinguishes these prudential and technical rules from moral laws such as the categorical imperative that informs us about how to achieve objective ends, which are universally reasonable and intrinsically good. These can only be discovered by pure reason. (6) Since we should regard other people as ends in themselves, not as mere instruments, our dealings with other people should not be guided by prudential considerations, (7) but on moral rules which are objective and universally valid and which can only be found out by reason. Nature plays no part at all in this realm. Kant emphasises that considerations, based on nature, are not only irrelevant, but even harmful to our pure reasoning on moral matters. I think therefore that if we want to take seriously the allusion to nature in the term 'natural law', we should abstain from calling Kant a natural lawyer.
This is not to deny that Kant and Hume can be regarded as successors of Pufendorf. Each developed and innovated one of the two programmes that we saw unfold in Pufendorf's theory (chapter VIII). Hume developed the tendency towards sociology which we detected in Pufendorf's attempts to give a realistic account of the origins of human conventions. He seriously attempted to analyse and explain social institutions as the product of human nature. Kant's theory, on the other hand, can be interpreted as an extension and further development of Pufendorf's theory of imposition. Kant indeed tried to provide for moral standards that can justify our institutions and not merely explain them, but unlike Hume he did not rely on man's natural inclinations. 'Nature' is purely 'vernünftige Natur': reasonable nature. The rational part of human nature is cut loose from the other features we still saw figuring in Grotius's concept of human nature: the urge to self-preservation and natural sociability. The works of Hume and Kant show that the links between nature and reason had snapped. Neither of them tried to develop one unified theory in which nature and reason are reconciled and provided with the necessary obligatory force.
So if we want to speak of natural law in the 18th and 19th centuries, we are forced to confine ourselves to theories of natural rights. Only those theories tried to develop a political philosophy on the basis of (human) nature. But here we should also be careful not to overestimate the role of nature. Many rights-theories have been shaped and coloured by Kantian assumptions. Man's rights are conceived in the Pufendorfian sense of the word, as rights of moral and rational beings, belonging to them by virtue of being moral and rational. The fact that contemporary discourse does not refer to natural rights, but to human rights, testifies to the dominance of Kantian assumptions.
1. The ambitions of modern natural law theory
There is, however, a good reason to omit rights-theories from this book, even those which are devoid of Kantian overtones. They are not instructive for the attempt of Finnis and Grisez to rehabilitate and develop a theory of natural law, from which rights can be derived. These modern natural lawyers do not take the existence of rights as a starting-point for a theory of natural law. Instead, they try to reconstruct natural law as an overall moral framework which serves as a foundation of rights. They do not regard law as merely a set of obligations arising from these rights, but as the embodiment of the common good. It is this ambition which inspires their attempt to rehabilitate Aquinas's theory.
It is therefore fitting to turn directly to this attempt. In the preceding chapters we have tried to unravel the 'internal logic' that prompted successive generations of natural law theorists to modify Aquinas. I argued that the reformulations of natural law theory should not be regarded as 'mistakes' or 'misinterpretations' but that Suarez, Grotius and Pufendorf had good theoretical reasons for their particular theory of natural law. The question arises whether Grisez's and Finnis's own theory of natural law is better suited to deal with these internal problems. Is it able to circumvent the logical difficulties which confronted the preceding generations of natural lawyers? Or does it succumb to the same persistent problems?
I think we should gain a clear view of these matters, since the contemporary attempt to rebuild natural law theory is in itself an important one, even for those who are not attracted by the Roman Catholic overtones of the theory developed by Finnis and Grisez. This importance is primarily theoretical.
First of all, Finnis's attempt can shed light on the frequently recurring demand for a foundation of human rights. His attempt to provide for a philosophical framework for our thinking on law and morals is meant to give us insight in the underlying values and principles on the basis of which competing right-claims can be resolved. (8) The success or failure of Finnis's attempt is therefore instructive for the debate whether a foundation of human rights is necessary and/or desirable.
Secondly, since it is Finnis's aim to unravel the underlying values and principles which inform our thinking on rights, his attempt can clarify the question whether, and if so to what extent, it is possible to argue and defend these values on "the basis of philosophical argument alone. This has been one of Finnis's main concerns, and for that reason he relegates his discussion on religion and God to the final chapters of both the FE and the NLNR. He tries to articulate common values, independently from a particular religious orientation. His assumption that there are such values and that they have an objective (not only an intersubjective) basis, is at the root of his attempt to develop natural law theory.
Thirdly, related to his assumption concerning common values, is his view that modern society should be regarded as more than merely an aggregate of individuals. His view of human society as a community whose members 'share an aim'(9) is based on the assumption that co-operation should be regarded as more than merely the result of calculated self-interest. Finnis shares this criticism of liberal ideology with many contemporary 'communitarian' philosophers.(10) Most of these writers, however, phrase their criticism by means of the alleged contrast between virtue-theories and rights-theories. (11) Finnis's attempt is interesting in the sense that he tries to bridge that contrast and tries to accommodate for rights-theories as well. If this attempt is to succeed, the dead-lock between liberalism and communitarianism might be overcome.
In view of these three ambitions of the new theory of natural law, it is no wonder that it has been welcomed as an interesting innovation of legal and moral theory. The main attraction of Finnis's theory is that it aims at unification: it promises to furnish us with a unified theory of law and morals by means of which modern ethical and legal dilemmas can be reconciled. It remains to be seen now whether it succeeds in bridging the various gaps, or whether it is no more than an attempt to re-plaster underlying fissures.
In the following two chapters, I shall alternately refer to Finnis and Grisez. During Finnis's stay in Berkeley at 1965, he met Grisez, who at the time was engaged in developing a new theoretical framework for the Roman Catholic Church that would be more fit to cope with modern dilemma's than the traditional Thomist outlook. It is Finnis who developed these views and applied them to legal theory. Notwithstanding slight differences that have to do with these different backgrounds, their theoretical framework is the same throughout and can be regarded as a unified whole. The fruitful collaboration in which they engaged also includes Joseph Boyle, a former pupil of Grisez, and Robert P. George, who mainly contributes by explaining and disseminating the views of Finnis and Grisez. That is why we can regard this theory of natural law as a new and influential 'research programme'.
My treatment of this new programme will be organised roughly along the same lines as those on previous authors. In this chapter I shall focus on the foundation of contemporary natural law theory. The status and foundation of the basic principles will be explored and the role of nature is further examined. The second chapter will deal with Finnis's analysis of positive law.
2. A moral methodology
Throughout the work of both Finnis and Grisez, the new theory of natural law is presented as a theory of practical reasonableness. The main aim of this theory is to provide principles (in the sense of principia 'starting-points') that guide our reasoning on moral matters. Consistent with Grisez's and Finnis's interpretation of Aquinas, these principles should not be seen as general moral precepts from which more specific precepts can be derived. Rather, it is their view that we should restore Aquinas's concept of natural law as comprising general principles which serve as guidelines for practical deliberation. One of the main reasons for the modern natural lawyers to find fault with Suarez is that he underestimated the importance of these guidelines and reduced them to moral precepts. In my own terms: Finnis and Grisez want to restore the concept of natural law-as-style. This style of reasoning should enable us to deliberate on moral issues in both individual and collective affairs.
Finnis furnishes us with two ingredients for such a theory of natural law as practical reasonableness. The first ingredient consists of so-called 'basic goods' or basic forms of human flourishing'.(12) Finnis lists seven of such basic goods: life, knowledge, play, aesthetic experience, sociability or friendship, practical reasonableness and religion.(13) The idea is simply this: in reasoning about moral affairs, one has to orient oneself about the goods worth pursuing. In this sense, the basic goods can be compared to the quarters of the compass.(14) They are primary orientations, without which it is impossible to reason at all.
Although one can conceive of the seven basic goods as necessary conditions for any moral reasoning, they are not sufficient ones. Taken by themselves, they cannot guarantee that we arrive at sound conclusions about courses of action. This is because they do not serve as moral precepts. It would be a mistake to ascribe to Finnis the view that from the principle 'knowledge is a good to be pursued', specific precepts should be derived like 'reading books is morally right'. That would be a Suarezian account. Instead, Finnis allows for flexibility as to how people weigh the various basic goods and how they set out to pursue these goods.
Finnis's assumption that the basic goods merely serve as starting- points for moral reasoning induces him to the assertion that basic goods are 'pre-moral'. Since these basic orientations are prior to any further deliberation, they do not yet contain an 'ought', but, in the hyphenated vocabulary of the natural lawyers, an 'is-to-be'.(15) This 'is-to-be' may give rise to an 'ought', but does not provide the 'ought' by itself without further reflection. Practical principles, such as 'knowledge is a good to be pursued', [...] are operative before moral issues arise. They are necessary conditions for the simple volition which gives rise to deliberation. So far forth, practical principles [= basic goods, P.W.] can be called 'pre- moral'.(16)
How then do we proceed from these pre-moral starting-points to moral judgements? By means of the second ingredient of Finnis's theory. This consists of methodological guidelines(17) that should direct our reasoning on the basis of these orientations. Finnis formulates nine such requirements: one should have a 'coherent plan of life'; there should be no arbitrary preferences amongst values, nor amongst persons; there should be enough detachment to one's projects in order to avoid fanaticism, but enough commitment to avoid apathy; the good should be pursued with a reasonable amount of efficiency; one should respect every basic value in every act; one should pursue the common good and, finally, one should follow one's conscience.(18) It is by following the methodological requirements that one can arrive at morally defensible judgements. The fanatical athlete who sacrifices his life, health, and friends by his single-minded devotion to the good of 'play' cannot be called practically reasonable.
Although the basic goods in themselves do not guarantee morally correct deliberation, it is ciear that Finnis's and Grisez's theory of practical reasonableness stands or falls with the adequacy of the account of the 'basic goods'. If the (seven) quarters of the compass are inaccurate, we can never arrive at sound conclusions, even if we reason according to the methodological requirements. That is why most debates concerning Finnis's theory of natural law revolve around the status of these basic goods. This is not different from what we encountered in earlier debates on natural law theory. As we have seen, the debates on the status, the obligatory force, the certainty and the foundation of the main principles of natural law were extensive, despite the seeming triviality of those principles. The principle 'good is to be done and pursued, and evil avoided' is an example in point.
There are three claims attached to the assumption of the basic goods. The first is that there are no more nor less than seven of those goods. The second claim is that this selection is based on the fact that only these goods are self-evident. The third claim is that the basic goods are incommensurable. In order to assess the structure of the new natural law theory, we should examine these claims one by one.
3. Selection of the basic goods
Finnis and Grisez claim that there are only seven basic goods. 'Basic' means that they are not derived from some other good, and they are not instrumental to another good. The basic goods serve as irreducible and ultimate justifications for actions. All seven goods form independent principles for practical reasoning.
The most common objection to this view is the utilitarian one. How can the natural lawyers maintain that the basic goods cannot be reduced to the criterion of happiness? Is it not true that 'play' or 'aesthetic experience' are valuable by virtue of the fact that they contribute to someone's happiness? The natural lawyers, however, deny this emphatically. 'Happiness', they say, is a purpose. Purposes, however, cannot serve as ultimate justifications for actions.
We can clarify this view by taking the example of someone who goes to a lecture. (19) If, asked for his reasons, this person would reply that this contributes to his happiness, we generally do not take that as an ultimate or conclusive answer. We might be inclined to question him further: 'Why does attending a lecture make you happy?'; 'Why do you prefer a lecture-room to a park'? However, if he referred to one of the basic goods, saying that he wants to increase his knowledge, we generally find that a satisfactory answer. Why? Because we regard 'knowledge' as an intrinsic value. Only references to intrinsic values enable us to see 'the point' of a particular action, to use a favourite expression of Finnis and Grisez.
Why can only intrinsic values and not purposes serve as conclusive answers? The example of an artist might illustrate their point. If, when asked for his reasons to paint, the artist answers that he does it in order to become rich, or to provide himself with some cheap wall- decoration, we might be entitled to question the integrity of his enterprise. One does not engage in painting only in order to achieve some results. People who continually ask: 'And what do you do with all those canvasses?', are missing this vital point. Apparently, it is only the intrinsic worth of his painting that counts as justification. Painting, like reading, going to church, or sustaining a friendship are actions with an intrinsic value, or, in the vocabulary of the natural lawyers, 'the instantiations of a basic good'. Characteristic for intrinsic goods is that they do not require further justification in terms of an external purpose. On the contrary, reference to an external purpose undermines the justification of actions by which one 'participates' in these goods. (20)
So only those answers that are convincing as ultimate answers refer to the basic goods. But is it not true that there are many convincing answers? Is it not true that it depends on one's particular perspective whether one is convinced by an answer or not? We might, for instance, be satisfied with the answer of someone that he goes to a lecture in order to make a fool of the lecturer; certainly if we know that the lecturer is vain, pretentious, or has done our person some wrong. We cannot say that his reasons are not ultimate because they refer to a further purpose. Our revengeful man has no objective in view. It is enough for him to live out his revenge by simply being there and asking questions. He does not adduce any external purpose in order to justify his presence.
However, in Finnis's view, revenge or dislike cannot count as intrinsic goods. Why not? Because they are not goods. Revenge is simply not one of the basic goods because it is not an 'aspect of well- being', or 'form of human flourishing', in the vocabulary of the natural lawyers. Only forms of flourishing are 'intelligible desirable for their own sakes' (21) and can count as reasons not requiring further reasons. In other words, the natural lawyers assert that good reasons are good reasons, irrespective of one's perspective. The basic goods are indeed the quarters of a compass; what is to be counted as 'north' and 'south' does not depend on one's perspective, but on reality itself. This is very clear in Finnis's denial of the possibility that revenge or hatred can ever count as ultimate reasons:
The point [...] is that selfishness, cruelty, and the like, simply do not stand to something self-evidently good as the urge to self-preservation stands to the self-evident good of human life. Selfishness, cruelty, etc., stand in need of some explanation, in a way that curiosity, friendliness, etc., do not. (22)
The basic goods serve as ultimate reasons, because they are self- evidently good.
It is worthwhile to assess the precise scope of this argument so far. How do we select the basic goods? By asking whether they can serve as ultimate reasons. And how do we know which reasons are ultimate? Ultimate reasons are ultimate only if they have an intrinsic worth and are not conducive to an external purpose. How can we select non-instrumental arguments which refer to basic goods and distinguish them from non-instrumental arguments which do not? Only by answering the question whether the goods referred to are objectively desirable. How do we know which goods are objectively desirable and which are not? That is self-evident. This latter argument brings us to the second feature of the basic goods: their self-evidence.
4. The self-evidence of the basic goods
Whereas basic goods are self-evidently good, non-basic goods are not. The question arises then how we can distinguish the former from the latter. A simple answer would be 'that which is found self-evident by all people all over the world'. Such an answer however will not do. Even though the natural lawyers think that there is more consensus on basic values than is commonly supposed by relativists, they do not maintain that there is unanimity on what should be counted as basic goods. Apart from that, they want to devise a compass for moral reasoning. It is no use then to ask people's opinions on what is to count as north or south.
The modern natural law thinkers therefore point out that self- evidence does not require that everybody assents to these goods. In this context, Finnis and Grisez repeatedly point out that Aquinas himself drew a distinction between that which is self-evident to everyone and that which is self-evident only to the wise. (23) Self-evidence does not require universal assent. A basic good such as knowledge simply is a self-evident good, irrespective of the fact that in large parts of the world knowledge is not considered so self-evidently a good at all.
How then does the wise man know that some goods are self- evident, while others are not? Is self-evidence no more than a philosophical disguise for strong but unargued personal convictions? (24) Finnis and Grisez have two answers to this criticism. The first is that indeed there are no arguments for the self-evidence of the basic goods, because self-evidence, by principle, need not be demonstrated or proven. Basic goods are basic, precisely because they rest on no further argument.(25) The most one can do, according to the natural lawyers, is to make plausible that a denial of the self-evidence of basic goods would violate the non-contradiction principle. They call such arguments 'dialectical arguments'.(26) In itself this solution is a curious one. The non-contradiction principle is and in this they agree with Aquinas the first principle of theoretical reason. The view that the basic principles of practical reason can only be argued by means of the first principle of theoretical reason is, however, hard to reconcile with their recurrent plea for an autonomous sphere for practical reason as separate from theoretical reason.
There remains but one criterion for self-evidence. That is their ultimacy. Only those goods are self-evident that cannot be derived from any other principle. (27) One might point out that there is a circularity involved here, since the ultimacy of the basic goods is defended by the argument of self-evidence, whereas self-evidence is understood as ultimacy. But the natural lawyers would probably argue that such circles are unavoidable. One has to find a starting-point somewhere in order to avoid infinite regress.
Their second answer refers to Aquinas. Aquinas's first principle 'good is to be done and pursued, and evil avoided' is also a self- evident principle. The basic goods, being no more than an extension of that first principle, would rest on the same foundation. (28)
This answer is indeed consistent with their reading of Aquinas. But I think there is an important difference between Aquinas and the new natural lawyers. Whereas Finnis identifies the basic goods with principles for moral reasoning, Aquinas made a distinction between a principle as a proposition and that about which the principle is formulated. The first principle ('good is to be done ...') is indeed taken to be self-evident. This principle is accessible to us by means of our human capacity to understand God's eternal law by means of synderesis. But that does not imply that 'the good' is taken to be self- evident. On the contrary, what that good consists in, whether it is fame or happiness or wisdom, remains for us to reflect upon. The only thing which is self-evident is that there is a general tendency of things to strive upwards on the scales of being and goodness towards greater perfection. In the particular ends of other creatures, which are the expressions of God's style, we might find some information on the ends to be pursued, but it is for us to decide which is the more complete end (see 1.5 and 1.6). To Aquinas, the possibility of practical deliberation does not rest on the assumption of a self-evident good, but of a self-evident principle.
It is, however, easier to defend Aquinas's view than the view of the modern natural lawyers. Aquinas provided two arguments for the self-evidence of his first principle: the first consists of his notion of synderesis, the assumption that God's exemplar is accessible to human rationality. The second argument is that without a fixed principle that one should pursue the good (no matter how that good is defined), it is impossible to make sense of moral reasoning at all.
Neither of these two arguments can be adduced by Grisez and Finnis. The first cannot be adduced, since they do not want to base their account on a metaphysical assumption which is dependent on the assumption of God's existence. Nor is the second answer available. Grisez and Finnis do not merely refer to 'the good'. The first principles define what is to be understood by 'the good'. They are therefore more substantial than Aquinas's 'good'. The selection of 'knowledge', 'aesthetic experience' or 'religion' and the dismissal of 'respect', 'dignity' or 'happiness' as suitable candidates is, however, far from self-evident and requires, I think, some further argumentation.
5. The incommensurability of the basic good
The third feature of the basic goods is their incommensurability. Finnis and Grisez maintain that the basic goods cannot be measured by means of one criterion, nor can they be compared to one another.
In 1.5 we have seen that there is a tendency on the part of the contemporary natural lawyers to deny that Aquinas ordered the vari- ous ends (self-preservation, procreation, etc.) in a hierarchical way. According to Finnis and Grisez, all ends are 'basic forms of good and evil'. In a sense, they are right here. It certainly was not Aquinas's view that 'self-preservation' is subordinated to 'knowledge of God' in the sense that the former is
instrumental to the latter. They have a value in themselves. That is why I also preferred to call these 'sub- ends' rather than 'means'. However, this does not mean that Aquinas did not have an hierarchical ranking in mind. He conceived of self- preservation as a 'less complete' end. If Aquinas had drawn up a list of methodological requirements, he would have included 'try to find out which end is the more complete end'.
Grisez and Finnis emphasise, however, that not only Aquinas's theory of ends, but also their own theory of basic goods allow for a wide variety of basic goods, which are all equally important and cannot be reduced to one another. This view is informed by their concern to safeguard a fundamental freedom of choice. Finnis and Grisez repeatedly stress that this freedom of choice is dangerously curtailed by utilitarians, who subordinate all values to the ultimate goal of happiness alone. Finnis's and Grisez's analysis here is very much inspired by Kant. Kant, but also Neo-Kantians such as the sociologist Max Weber, (29) maintained that the choice between means is not a real choice; it is a matter of calculation; a technical affair in order to realise a given aim in the most efficient way.
In order to understand this view fully we should return to what I wrote on Kant in the introduction to this chapter. I noted there, that Kant sharply distinguished between a hypothetical and a categorical imperative. A hypothetical imperative does not inform us about the goals to be pursued, but merely points out what means are the most appropriate, given a certain end: 'If I want to get rich, I should not qualify as a philosopher, but as a manager'. The categorical imperative on the other hand, informs one about the ends to be pursued. These ends (Zwecke) are ultimate and not instrumental to another end.
The modern natural lawyers maintain this assumption. They strongly distinguish between technical and moral rules, between 'making' and 'doing'. (30) And on the basis of this assumption they criticise utilitarianism. They claim that utilitarians, by maintaining that happiness is the indisputable, ultimate and given end, reduce the scope for moral inquiry to an inquiry into the most efficient means to achieve that given end. In short, utilitarians are blamed for turning morality into a technical affair. This is all the more dangerous, according to the natural lawyers, because such a technical reduction does not allow for human freedom of choice. The question which means are most effective to a given end can be answered by calculations and is not open to debate.
In order to devise a theory of practical reasonableness, it is therefore of vital importance to assume that the various goods are equally important. And that is why the incommensurability-thesis is accompanied with the methodological requirements that we should not have arbitrary preferences, that we should respect every basic good and that we should avoid fanaticism.
These claims sound perfectly reasonable, but cause some problems which are similar to the ones we encountered in Grotius's description of human nature. I noted at the end of chapter V, that the assumption of three features of human nature entailed the problem of priority. Are we to choose in favour of sociability or in favour of self-preservation? In practice, we saw that Grotius subordinated all features of human nature to self-preservation alone, but theoretically the dilemma was there.
The same applies to Finnis's and Grisez's plurality of principles. What am I to do if I am forced to choose between basic goods? This dilemma recurs both in trivial situations (am I to help my friend or read a book), as well as in more dramatic dilemmas (am I to sacrifice my life for the good of religion). In short, on the basis of which considerations am I to select from the list of the seven basic goods? Which is more important, 'friendship', 'play', 'knowledge' or 'religion'? Finnis's methodological requirements do not bring me any further, since they only admonish me to take all basic goods into equal consideration. Yet, since time is short, I inevitably sin against that prescription.
We might wonder, therefore, whether the assumption of ultimate and incommensurable values really can provide for freedom of choice, if we mean by 'choice' something more than a blind guess. Is there any scope for moral reasoning left? Weber thought that indeed there are no such criteria for regulating these choices. He thought that the assumption that ultimate values are incommensurable implies that the choice for one or the other is an arbitrary affair, for which no moral methodology can be designed. Although one can rationally decide on means, there is no rational way of choosing between ends.
Finnis, although sharing Weber's assumption on the ultimacy of values, does not draw this conclusion. In fact, he blames Weber for having exaggerated the arbitrariness of moral choice. In a discussion of Sartre's well-known moral dilemma of the soldier who is confronted with the option either to serve his country against the invading forces, or to stay home in order to take care of his sick mother, Finnis confidently announces that both courses of actions are laudable. What is important, he adds, is that the irresponsible courses of action (shoot the mother, join the occupying forces) are not taken into account. It is the job of practical reason to dismiss these immoral actions.(31)
These are obviously trivial remarks. It seems as if Finnis's practical reason is indeed, to quote Clifford Geertz, like a 'sprinkler-system that turns off when the fire gets too hot'.(32) That 'ignorance' is better than 'knowledge', that 'art [...] is better than trash',(33) who will deny it? The problem, apart from the obvious difficulty that we differ on what we should count as 'knowledge' or 'art', is how we can choose between them.
Finnis and Grisez could have tried to answer this problem by developing a theory concerning prudentia, the virtue of reasoning well. By describing the qualities required for sound practical reasoning they probably could have avoided the arbitrariness which inevitably accompanies a Weberian theory of ultimate and incommensurable values. It should be noted, however, that in that case, they could not have contented themselves by simply taking over Aquinas's theory of prudentia. As we saw in chapter II, Aquinas's concept of prudentia only refers to reasoning about means, not ends, since he thought that the latter were directly accessible to us by means of synderesis. However, Finnis and Grisez neither maintain the possibility of synderesis, nor do they adopt an extended theory of prudentia. The result is that they cannot escape from arbitrariness when ultimate values conflict.
6. The irrelevance of nature
We might be inclined to think that theorists who set out to develop a theory of natural law try to answer these questions by referring to nature, or to human nature. One would expect natural lawyers to infer the basic goods from (human) nature, or at least to provide an argument, derived from some conception of nature, which might shed light on how we can select from the various basic goods that present themselves. But they do not. They assert that nature is irrelevant to our reasoning on moral matters. What is more, they also deny that nature ever played an important part in natural law theory. That is why Finnis thinks that 'natural law' is an 'unhappy term'.(34) He includes the term in the title of his book merely to pay tribute to Aquinas.
Finnis explicitly denies that Aquinas or any other natural lawyer ever tried to derive norms from facts. To the question: 'Have the natural lawyers shown that they can derive ethical norms from facts?', Finnis replies:
[...] the answer can be brisk: They have not, nor do they need to, nor did the classical exponents of the theory dream of attempting any such derivation. (35)
According to Finnis and Grisez, even Aquinas is not guilty of having committed the naturalistic fallacy. Instead, they argue that this criticism rests on a misinterpretation. We can remain faithful to the ground-structure of Aquinas's programme without falling into naturalistic traps.
Finnis and Grisez argue this point by referring to Aquinas's distinction between theoretical reason and practical reason. Practical reason is about moral affairs; theoretical reason inquires into nature. There is no conflation between 'is' and 'ought'.(36) Although nature indeed plays some role in Aquinas's teachings, we should regard it as a subordinate one. Nature is a mere 'speculative appendage',(37) something that is added later to the immediate grasp of self-evident goods and the purposiveness of human life, but which is irrelevant to our knowledge of good and evil. We have come across this interpretation in 1.4.
In fact, according to Grisez's and Finnis's interpretation, Aquinas does not reason from nature to morality, but the other way round:
[...] the teleological conception of nature was made plausible, indeed conceivable, by analogy with the introspectively luminous, self-evident structure of human well-being, practical reasoning, and human purposive action [...].(38)
According to Finnis, the teleological view of nature is merely an extrapolation of the experienced purposiveness of human actions. That is why we can do very well without a teleological concept of nature; we can indeed do without any conception of nature at all. Nature is a mere afterthought, with which the theory of natural law is decorated; it does not form its foundation.
This view has met with fierce criticism on the part of some Neo- Thomists, who see Aquinas's heritage squandered.(39) In the words of Veatch:
[...] rather than being embarrassed or apologetic over his failure to demonstrate that natural law is indeed natural, he [i.e. Finnis, P.W.] would appear rather to want to make a virtue out of his very necessity. [...] Yes, and as if to puzzle and perplex his readers even more, Finnis apparently wants to claim no less a one than St. Thomas Aquinas as being on his side in this regard. (40)
In chapter I, I already dealt with the conflicting interpretations of Aquinas and opted for a middle-course (1.3). Finnis and Grisez are right in stressing that it is certainly not Aquinas's view that we can infer directly norms from the observation of nature. The ability to reason does not boil down to our ability to copy God's artefacts. But that does not imply that nature does not play a role at all. According to the interpretation I suggested, it is Aquinas's view that we have access to God's style directly by means of synderesis, as well as indirectly by means of the examples that can be found of God's style as it is expressed in nature.
If my interpretation of Aquinas's theory is correct, this would imply that nature plays a less important role than is commonly assumed by Neo-Thomists, but a more important one than Finnis allowed for. The intelligibility of God's normative order (i.e. natural law) depends in fact on two assumptions. The first is the assumption of our immediate grasp of the divine style (synderesis); the second is the assumption that our reasoning is further informed by the examples God provided. Finnis emphasises the former at the expense of the latter.
However, even if Finnis's and Grisez's interpretation of Aquinas is one-sided, this is not an argument against the kind of natural law theory they want to develop for themselves. Their claim is that it is the purposiveness of human action which is an important assumption for a theory of practical reasonableness, and that this purposiveness is not dependent on any concept of nature. If they are right, that is an important argument. Bourke may criticise Finnis and Grisez on the grounds that they are 'bypassing the complete metaphysics of finality', (41) but if that implies that they can also by-pass all the problems that have been the result of this kind of metaphysics, that would be a tremendous advantage.
In part II of this book, we have seen the enormous problems pertaining to the role of nature. Nature was found to be 'inert', not giving rise to obligations (Suarez), or could not form the foundation of natural law (Pufendorf) and where it indeed played a vital role, its role was reduced to the emphasis on self-preservation (Grotius). If the natural lawyers succeeded in grounding moral theory in the purposiveness of human action, without reference to nature, many problems would indeed be discarded. It is therefore worthwhile to examine the quality of the argument.
7. Practical reason curtailed
At first sight it is indeed plausible that the teleological view of nature was developed by analogy with human action. In this sense, we might agree that it is an extrapolation of human experience. But can we say that this extrapolation is irrelevant to natural law theory?
In order to answer that question, we should keep in mind that the old conception of teleological nature did not merely assert that there is a purpose to be found in nature, in the sense that we might say that all human action serves a purpose, no matter what it is. For a plant, the end of self-preservation is a suitable and a good end, since God had designed it in that way. And for a human being, sociability is a good and valuable end, since God had meant him to live in society. It is true that we human beings can select from these various ends and decide which end is the most complete in the given circumstances, but all these ends derive their intrinsic value (as sub-ends) from the fact that God had intended these to be fulfilled by the various creatures. In this sense is it possible to infer from natural inclinations the various possible values that present themselves.
But this solution is not acceptable to Finnis. Although he does believe in God, he does not want to turn this belief into an underlying foundation for his theory. And without the assumption that God intends us to have natural desires and inclinations, we cannot guarantee that these natural desires are morally good. Whereas Aquinas could render depraved inclinations (greed, hatred, egoism) intelligible by maintaining that these inclinations nevertheless tend to a good, but to a good which is incorrectly understood, Finnis and Grisez cannot maintain that assumption. The fact that man's natural inclinations can be morally indefensible turns them into unsuitable starting-points for moral reasoning.
In this respect, they find themselves in the same position as Grotius, who likewise had to account for man's evil natural inclinations. But whereas Grotius opts for an idealised account of human nature, Finnis and Grisez discard human nature as a reliable standard. This may be clear from the passage in which desires as such are discarded as starting-points for moral reasoning:
[...] we should say not that practical reasoning begins with wants (or desires) and seeks satisfactory ways of satisfying them; but that practical reasoning begins by identifying something wanted (or desired), i.e. something considered (practically considered) desirable. (42)
Practical reasoning is informed, not by natural inclinations, but by basic orientations, the things that are worthwhile pursuing. These basic orientations cannot be back traced to natural inclinations at all. Only the basic goods can form reliable starting-points. This is indeed the only consistent answer in view of the assumptions of the natural lawyers. 'Nature' as such is unreliable, if we do not maintain the a priori assumption that it is God's creation.
It should be noted, however, that this position is a reversal of Aquinas's. Whereas Aquinas starts with natural inclinations and desires which can only be turned into desirable goods by means of practical reasoning, Finnis starts with what is desirable. Practical reasoning does not result in a formulation of the desirable good, but finds its starting-point there. The orientations with which we set out to reflect on our moral conduct are already supposed to be objectively good, intelligible and self-evidently desirable.
However, this move narrows down the scope for practical reasoning. In the theory of Finnis and Grisez, practical reasoning might enable us to strike a balance between the various incommensurable goods. We might follow the requirements that we should not directly harm one of these goods, or that we should have no arbitrary preferences. By following these requirements we translate or implement the desirable goods into desirable courses of actions. But these are small tasks, compared to the role Aquinas assigned to practical reasoning: to discern what is really desirable. In fact, in Finnis's theory this important task is already carried out before practical reasoning comes in. Practical reason cannot determine which goods are desirable and which are not. That is the reason why Finnis and Grisez recur to the notion that they are self-evident. They are presupposed. This status of the basic goods seems hard to reconcile with the view that they are 'pre-moral': an is-to-be rather than an 'ought'. As expressions of the 'desirable' these basic goods are completely moral. The only way to understand that claim is to identify the term 'pre-moral' with 'pre- rational'. They come in before practical reflection is carried out.
It should be noted that not only compared to Aquinas the scope of practical reason is curtailed. We see the same if we compare Finnis's position to that of Kant. This can be judged from Finnis's criticism of Kant. According to Finnis, Kant unnecessarily limited 'human flourishing' to the basic good of practical reasonableness alone and did not take seriously enough the other basic goods. Kant considers 'play' or 'friendship' as 'mere' objects of natural inclinations, Finnis asserts, not as intelligibly desirable:
There is impoverishment to the extent that Kant's understanding of understanding (reason) overlooks the intelligible goodness of the specific, substantive aspects of human flourishing, and seeks to make do with reason's 'a priori' power of universalizing. (43)
At first sight, this criticism seems reasonable. The rigid distinction between reason and nature is indeed problematic. But if we compare Kant's theory with that of Finnis, Kant's solution is much more plausible than Finnis's. Kant did not opt for the unaccountable normativity of basic goods as starting-points for practical reasoning. He consistently argued that without practical reasoning one cannot speak of something 'desirable' at all, but only of 'desires'. Without human practical judgements there are no practical 'goods' or 'truths' at all; there are merely natural inclinations and their objects. Since Kant correctly refused to rely on the problematic notion of 'self-evidence', practical reasoning is the sine qua non for all moral distinctions. Its role is much more important in Kant's moral philosophy than in the theory of practical reasonableness, developed by Grisez and Finnis.
There is a remarkable paradox involved here. The attempt to reconstruct natural law as a theory of practical reasonableness necessitates the argument that nature is irrelevant to human reasoning. However, that argument in turn undermines practical reasonableness as well. The new theory of natural law throws out the baby with the bathwater.
8. The hidden role of nature
The sole reason for rejecting the view that natural inclinations are morally relevant is the reluctance to ground natural law in a 'pious hypothesis'. The existence of God should not serve as an indispensable foundation for natural law. But Grisez was much less hampered by that consideration than Finnis. Consequently, we see that in Grisez's articles, but also in joint articles, there is less reluctance to allow nature some role. In an attempt to justify the multiplicity of the basic goods, the thesis is maintained that:
The diversity of the basic goods is neither a mere contingent fact about human psychology nor an accident of history. Rather, being aspects of the fulfillment of persons, these goods correspond to the inherent complexities of human nature [...].(44)
Even the very wording of this view reminds one of Aquinas's thesis: 'The order of the precepts of the natural law corresponds to the order of our natural inclinations'. (45) And indeed, like Aquinas, the authors proceed to distinguish different aspects of human beings. Human persons can be regarded 'as animate', 'as rational', and 'as simultaneously rational and animate'. (46) As 'animate', people cherish life itself; as 'rational', people cherish 'knowledge and aesthetic experience' and as both they cherish 'work and play'.(47) The assignment of basic goods to different aspects of human nature is relevant because the basic goods are regarded as being 'perfective' of those aspects. Finnis asserts that the basic goods 'would not perfect that nature, were it other than it is'.(48)
Despite protestations to the contrary, a conception of nature does come in here; a thoroughly teleological conception. And it not only serves as an argument for the plurality of the basic goods; it equally answers the question why we should select exactly these goods as basic. They are basic, not because they are ultimate and self-evident, but because they correspond to and are perfective of different aspects of man's nature.
So it seems that nature does play a role after all. How do the natural lawyers reconcile this role with their view that nature is irrelevant to natural law? They maintain that there is no inconsistency here and that their teleological conception of nature does not give rise to moral 'ought'-statements. This is argued by means of a rigorous distinction between epistemology and ontology. The natural lawyers assert that, epistemologically speaking, it is impossible to infer the existence of basic goods from human nature. But ontologically speaking, the basic goods are grounded in nature. (49) Since it has been Hume's criticism that we should not infer norms from facts, Finnis and Grisez think that they can avoid that charge by making a distinction between epistemology and ontology. Although norms are grounded in nature, they do not infer norms from nature.
I am afraid that this argument does not rescue their position from the charge of naturalistic fallacy. The selection of the basic goods is clearly informed by their belief that these seven basic goods are truly 'perfective' of man's nature. Because they are perfective of man's nature, they are regarded as intrinsic values. It is no good pretending that the basic goods are first selected on the basis of their 'self- evidence', and only afterwards 'happen' to be perfective of human nature.
Apart from that, the argument is not necessary. There is no reason to shun the naturalistic fallacy, if one adheres to a teleological ontology. Inferences from nature to norms would not be fallacious at all. We have seen in the chapter on Suarez's foundation of natural law (chapter III) that problems only arise when one no longer believes in the theological assumption that God has performed His role as Legislator, in and by creating the world. Suarez conceived of God's activity in three successive stages: he thought that God first created, then added a judgement, and after that added obligatory force. That is why he thought that 'nature' taken by itself formed an insufficient foundation and had to be coupled with explicit decrees and obligatory force.
But Finnis and Grisez are much more loyal to Aquinas than Suarez. They apparently believe that God created man in such a way (as animate, rational etc.) that some values are perfective of nature. On the basis of this view, God's rational judgement is implied in His creation. So if one maintains that human beings tend to perfect themselves, and that there is a God who created us to that end, there is no reason why one should shrink from the conclusion that we should indeed perfect ourselves. Both the assumption of teleology and the assumption of God's existence are clearly present in the work of the modern natural lawyers. Within that framework, inferences from facts to norms are no fallacies at all, and can be drawn without any logical mistake whatsoever. (50)
There are indeed indications that these inferences are drawn in the application of the theory to practical matters. In a recent article, Finnis argues that homosexuality is 'intrinsically unreasonable and unnatural' on the grounds that the 'reproductive organs of homosexuals cannot make them a biological (and therefore personal) unit'.(51) Yet, even here Finnis denies committing the naturalistic fallacy. He professes merely to 'apply the relevant practical reasons [...] and moral principles [...] to the realities of our constitution, intentions and circumstances'.(52) However, this 'application' is clearly informed by supposedly biological arguments; not by practical reasons.
The conclusion seems to be justified that the modern formulation of natural law rests on a hidden assumption of teleology, coupled with the belief in God.
We have seen that the new theory of natural law decidedly presents itself as a theory of practical reasonableness, rather than as a theory of natural law. The first principles such as 'knowledge should be pursued' or 'play should be pursued' are not to be taken as precepts but as general and basic orientations on the basis of which we should reason about moral matters. These basic goods, although they are grounded in nature, are not inferred from human nature. They are taken to be self-evident. That means that, strictly speaking, the new theory of natural law neither has anything to do with law nor with nature.
It is, however, not certain whether the reformulation of natural law theory as a theory of practical reasonableness is better suited to cope with the various traditional dilemmas of natural law theory. It is true that we need not worry about the naturalistic fallacy but instead, the natural lawyers face the far more serious problem of a lacking foundation. The foundation in nature might not have been adequate (Suarez's and Pufendorf's qualms testify to this fundamental inadequacy), but the alternative candidate which is proposed, self-evidence, is even less convincing as a foundation. In order to turn 'self- evidence' into more than a debate-stopper or a disguise for this lack of foundation, a theory would be required in which it is argued that man has immediate access to those self-evident forms of human flourishing. If we are not supposed to rely on nature, a (modern) equivalent of synderesis should be developed. Such a theory is absent.
Apart from the problem of foundation, there is still the familiar problem of obligation. Even if we recognise the seven basic goods as real basic goods, why should we be obliged to take these goods as a starting-point for our moral reasoning? What compelling reasons are there to abstain from, for instance, the utilitarian criterion? Suarez's problem is far from solved, even if we do not conceive of the first principles as precepts, but as general orientations. The point is: why should we be guided by Finnis's compass rather than by our own sense of direction?
It seems then that the modern theory of natural law has to deal with both the problem of foundation and of obligation. Yet, Finnis and Grisez argue that their theory is a theory of practical reasonableness; not of natural law. There are, however, reasons to suppose that their theory fails to achieve the aim of broadening the scope for moral inquiry as well.
In the first place, since all basic goods are regarded as ultimate, irreducible to each other or to any other external purpose, and inherently incommensurable, it is difficult if not impossible to decide on the basis of these first principles which basic good should be given priority in case of conflict. The extension of one first principle to seven first principles may appear to widen the scope for practical reasoning but in fact turns reasoning into a somewhat arbitrary affair. Since all goods are deemed equally important, the methodological requirements of practical reasoning only inform us that we should not directly act against one of these seven goods. In the second place, the scope of practical reasoning is curtailed by that fact that it no longer plays a role in deciding which goods are really desirable. The seven selected desirable goods form the starting-point for our enquiry. Their self-evidence excludes critical reflection on the value of these basic goods.
These shortcomings as a theory of practical reasonableness can only be amended, I think, by explicit references to the teleological view of human nature, which is at the basis of Finnis's and Grisez's selection of the basic goods. If their anxiety of committing the naturalistic fallacy had not prevented them from openly acknowledging these underlying assumptions, we could have gained a more informative account, be it that by doing so, they would have been confronted with the familiar problem of nature as an inadequate foundation as well as the problem posed by the assumption that God created us in order to perfect ourselves.
In the introduction, I noted that Finnis's attempt is theoretically interesting in three aspects, one of which is the attempt to unravel underlying and objective values on the basis of philosophical argument alone, without assuming the existence of God. On the basis of this chapter, we might conclude that this task can only be carried out by assigning an important place to the notion of self-evidence. This self-evidence, however, is not embedded within a wider conceptual framework which might elucidate the kind of rationality required to 'see' this self-evidence and therefore remains unargued. As for the other two ambitions of modern natural law theory (to provide a foundation of rights and to criticise liberalism on the basis of natural law), we should turn to the next chapter.
1. See Weinreb, 1987, title of ch. IV.
2. D'Entrèves, 1951, p. 110.
3. Haakonssen, 1996; Forbes, 1975; Haakonssen, 1981; Buckle, 1991.
4. Westerman, 1994.
5. Kant, 1785, p. 49.
6 . Kant, 1785, p. 50.
7. Kant, 1785, p. 51.
8. NLNR p. 198.
9. NLNR p. 152.
10. For instance, Maclntyre, 1981; Williams, 1985.
11. Cf. Hauerwas, 1981.
12. NLNR p. 23.
13. NLNR IV.2.
14. This metaphor is not used by Finnis himself.
15. NLNR p. 90.
16. Grisez, Boyle, and Finnis, 1987, p. 126.
17.In the NLNR these guidelines are called 'requirements of practical reasonableness'; later they are labelled 'modes of responsibility',
..............but their content remains the same. Cf. Grisez, Boyle, and Finnis, 1987.
18. NLNR ch. V.
19. This is a modification of the example given by Finnis, FE p. 33. Another, but similar example has been adduced by George, 1991.
20. Maclntyre's distinction between 'internal goods' and 'external goods' is inspired by similar considerations. However, Maclntyre extends this distinction, whereas Finnis does not. According to Maclntyre, ..............external goods can only be enjoyed by the artist himself, whereas an internal good is a good for the society as a whole. Cf. Maclntyre, 1981, pp. 189-91. Finnis omits to include such a difference, which is ..............partially responsible for his confusion about the common good, to be dealt with shortly in X.5.
21. See George, 1992a, p. 34.
22. NLNR p. 91. The term 'explanation' here is confusing and should, I think, be read as 'justification'. As I shall point out in the next chapter, Finnis tends to identify explanation and justification.
23. E.g. NLNR p. 32.
24. Cf. Weinreb, 1987, p. 113. Cf. also Hittinger, 1987, p. 47: 'Turning to a good like religion, after the searching criticism of theorists like Hume, Feuerbach and Freud, is it philosophically advisable simply ...............to posit religion as a basic good?'
25. George, 1991, provides only one of the many instances that can be found of this familiar counter-argument.