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IS FINNIS WRONG?

Understanding Normative Jurisprudence

Published online by Cambridge University Press:  01 December 2007

Veronica Rodriguez-Blanco
Veronica Rodriguez-Blanco*
Affiliation:
School of Law, University of Birmingham, UK
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Abstract

Judges and lawyers believe that international law, customary law, and legal systems such as the Third Reich or apartheid law in South Africa are law. But how do we explain the fact that there is one concept of law when there are different conceptions of law with a variety of different features? Finnis, inspired by the Aristotelian notion of central case, adumbrates the idea that the concept of law might be unified by a primary concept which is the concept of “law as practical reason”; that is, law conceived from an ethical perspective. He advances two arguments to defend his methodology: the conceptual and the functional. Contra Finnis, the paper shows that neither the conceptual nor the functional argument can successfully support the view that “law as practical reason” is the central case of the concept of law. The study clarifies the Aristotelian notion of central case and illustrates the mistaken application of this notion to the concept of law. However, we also argue that Finnis's insight–the idea that all the different conceptions of law might be unified for the purposes of theoretical research–is fundamental and appealing. This paper aims to reconstruct Finnis's insight through the model of core resemblance. The result is that the different conceptions of law can be unified by resemblance to the concept of “law as practical reason,” though there is no identity among the different conceptions of law.

Type
Research Article
Information
Legal Theory , Volume 13 , Issue 3-4 , December 2007 , pp. 257 - 283
Copyright
Copyright © Cambridge University Press 2008

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References

1. Cf. A. Halpin, The Methodology of Jurisprudence: Thirty Years Off the Point. 19 Can. J.L. & Juris. (2006): 67–105 for a skeptical view on methodology.

2. This view is advocated in B. Leiter, Legal Realism and Legal Positivism Reconsidered, Ethics 278–301 (2001); Leiter, Rethinking Legal Realism: Towards a Naturalized Jurisprudence, Texas L. Rev. 267–315 (1997); and M. Moore, Educating Oneself in Public} (2000). J. Coleman, The Practice of Principles (2001), like Leiter, believes that there is a continuity between social and normative facts but does not advocate a naturalized epistemology; he aims to reconcile conceptual analysis with a pragmatic approach.

3. Kelsen believes that there is a gap between normative and social facts but does not explicitly advocate conceptual analysis. See H. Kelsen, Introduction to the Problems of Legal Theory (2002).

4. See R. Dworkin, Truth and Objectivity: You'd Better Believe It}, Phil. & Pub. Aff. 87–139 (1996). Dworkin criticizes external skepticism, but embraces internal skepticism: Dworkin's anti-Archimedeanism aims to show that we cannot explain or describe morality from a detached or external perspective and that there is only room for a substantive or internal view on both morality and evaluation. Paradoxically, some followers of Dworkin such as Greenberg aim to show that there are normative facts that make the law. See M. Greenberg, How Facts Make Law. Legal Theory 157–158 (2004).

5. “Practical reasonableness” is the technical term introduced by Finnis.

6. See E.J. Ashworth, Suarez on the Analogy of Being: Some Historical Background. Vivarium 50–75 (1995).

7. For the use of Finnis's methodology in legal interpretation see T. Endicott, How to Speak the Truth, 46 Am. J. Juris. 229–248 (2001).

8. Cf. id. at 234. Endicott interprets the Aristotelian notion of “focal meaning” analysis as an analysis of resemblance to a paradigm. See section III of this paper for a different view on this matter.

9. Finnis puts this as follows:

Descriptive knowledge thus can occasion a modification of the judgments of importance and significance with which the theorist first approached his data, and can suggest a reconceptualization. But the knowledge will not have been attained without a preliminary conceptualization and thus a preliminary set of principles of selection and relevance drawn from some practical viewpoint.. . . The methodological problems of concept-formation as we have traced it in this chapter compel us to recognise that the point of reflective equilibrium in descriptive social science is attainable only by one in whom wide knowledge of the data, and penetrating understanding of other men's practical viewpoints and concerns, are allied to a sound methodology about all aspects of genuine human flourishing and authentic practical reasonableness.

John Finnis, Natural Law and Natural Rights (1980), at 17–18.

10. Finnis asserts:

Just as there is no question of deriving one's basic judgments about human values and the requirements of practical reasonableness by some inference from the facts of the human situation, so there is no question of reducing descriptive social science to an apologia for one's ethical or political judgments, or to a project for apportioning praise or blame among the actors on the human scene: in this sense descriptive social science is “value-free.”

Id. at 17.

11. Ronald Dworkin, Law's Empire} (1986), asserts in several passages that the interpretive task requires the substantive convictions of the theorist and the judge in order to determine which interpretation best fits the past legal materials and is morally sound: “Each judge's interpretive theories are grounded in his own convictions about the ‘point'–the justifying purpose or goal or principle- of legal practice as whole, and these convictions will inevitably be different, at least in detail, from those of other judges.” Id. at 87–88. Dworkin explains the role of convictions as follows:

We can now look back through our analytical account to compose an inventory of the kind of convictions or beliefs or assumptions someone needs to interpret something. He needs assumptions and convictions about what counts as part of the practice in order to define the raw data of his interpretation at the pre-interpretive stage; the interpretive attitude cannot survive unless members of the same interpretive community share at least roughly the same assumptions about this.. . . Finally, he will need more substantive convictions about which kinds of justification really would show the practice in the best light.

Id. at 67.

12. Finnis points out:

There is thus a mutual though not quite symmetrical interdependence between the project of describing human affairs by way of theory and the project of evaluating human options with a view, at least remotely, to acting reasonably and well. The evaluations are in no way deduced from the descriptions; but one whose knowledge of the facts of the human situation is very limited is very unlikely to judge well in discerning the practical implications of the basic values. Equally, the descriptions are not deduced from the evaluations; but without the evaluations one cannot determine what descriptions are really illuminating and significant.

Finnis, supra note 9, at 19.

13. I have chosen the term “conception” for the subjective views that participants or agents give to the point or value of a practice. The term concept is reserved only for the abstract mental entity that aims to grasp and refer to fundamental features of the phenomena, i.e., actions, practices, and so on.

14. Id. at 3.

15. Id. at 4.

16. There is a parallel motivation in Aristotle's introduction of the idea of “focal meaning.” Aristotle aims to show, contra Plato, that the concepts of “being,” “goodness,” or “friendship” do not stand for one single essence but for different essences and properties. However, they can be unified and therefore they can be the subject of investigation by one discipline, i.e., metaphysics in the case of the concept “being.” See Terence Irwin, Homonym in Aristotle, 34 Rev. Metaphysics 52–544 (1981), at 540. Irwin highlights the difference between Aristotle and Wittgenstein's enterprises. The latter aims to show that there are only resemblances between the different entities and it indirectly criticizes the idea of essences, whereas the former aims to forestall skepticism that might result from a criticism of Plato's theory of the forms. Aristotle aims to show that there are different essences. The argument is in favor of a multiplicity of essences. See P. Grice, Aristotle on the Multiplicity of Being, 69 Pacific Phil. Q. 175–200 (1988).

17. Finnis, supra note 9, at 6.

18. Id. at 7.

19. Id. at 10.

20. Id. at 13.

21. Id. at 12.

22. For a discussion on the differences between Raz's and Finnis's methodologies, see J. Dickson, Evaluation and Legal Theory (2001).

23. J. Raz, Practical Reason and Norms (1999) (1975).

24. Finnis, supra note 9, at 13.

25. Id. at 10–11.

26. Id. at 153.

27. Id. at 154.

28. Id. at 155.

29. Id. at 276.

30. Id. at 277.

31. Cf. L. Green, Law, Co-ordination and the Common Good, 3 Oxford J. Legal Stud. 299–324 (1983). Green criticizes Finnis's attempt to reconcile natural law theory and legal positivism. Green argues that there is a tension between Finnis's idea of the common good, which involves a deep structure of values, and his view that the point of law is to coordinate the activities of the participants in a community, which involves a structure of preferences. Preferences are appearances, whereas values pertain to the domain of reality. Therefore they are bound to conflict.

32. The statement of “the man who possesses practical reasonableness” has been formulated as “law as practical reasonableness.” See section III for a clarification on this point. This formulation does not affect the argument.

33. Cf. B. Leiter, Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence, 48 Am. J. Juris., 17–52 (2003), who argues that Dworkin needs a Finnis-style argument to ground a normative jurisprudential methodology.

34. Shields distinguishes between discrete and associated homonym. In the former, the same term refers to different entities that are not connected. For example, the term “bank” refers simultaneously to “river bank” and “bank” as a financial institution. In the latter case, the term refers to different entities that are associated in virtue of a common source or principle. This association might also be called “focal” meaning (G.E.L. Owen, Logic and Metaphysics in Some Early Works of Aristotle, in Logic, Science and Dialectic [M. Nussbaum ed., 1986]), “focal connection” (Irwin, supra note 16), “central case” (Finnis, supra note 9), or “core-dependence homonym” (C. Shields, Order in Multiplicity (1999). See Shields, Order, at 11. It is important to distinguish between associated homonym and Wittgenstein's idea of “family resemblance,” in which the different entities have overlapping features but are not connected by a common principle or source to which they all refer.

35. Finnis, supra note 9, at 11.

36. Aristotle uses the term “health” as an example of “focal meaning”:

Now that which is indeed spoken of in many ways. But it is spoken of with regard to one thing and a single kind of nature. Its position is similar to that with health. Everything that is healthy is spoken of with regard to health. So, one thing is said to be healthy by dint of preserving health, another by dint of producing it, another by being a sign of it, another by being capable of having it. It is in just this way that which, although spoken of in many ways, is nevertheless always spoken of with regard to a single principle.

Aristotle, Metaphysics 1003 a34–b6.

37. Finnis, supra note 9, at 11.

38. See Owen, supra note 34; cf. Irwin, Homonym in Aristotle, 3 Rev. Metaphysics 523–544 (1981). Hamlyn claims that Owen's use of “focalmeaning” is misleading, since Aristotle's purpose is to refer to conceptsrather than “senses” of a term. Then the term “focal connection” is more accurate. Finnis uses the term “focal meaning,” and therefore to avoid confusion we follow Finnis's terminology.

39. For simplicity, I interpret the term the “moral viewpoint” as “moral law.” The term should be understood in terms of Finnis's requirements of practical reasonableness.

40. Shields, supra note 34, at 119.

41. Id. at 115.

42. This is possibly the view underlying Finnis's idea that there are central cases of law and peripheral cases of law; i.e., the law of the Third Reich.

43. This view is defended by Shields, supra note 34, at 118.

44. Id. at 123. I introduce here the terminology of “logical” or “ontological” priority to characterize definitional priority.

45. Id. at 185.

46. Id. at 189.

47. Id. at 190.

48. Cf. R. Gauthier & J. Jolif, L'ethique a Nicomaque (1959); and Owen, supra note 34. They agree that there is focal meaning in the Nichomachean analysis.

49. W.W. Fortenbaugh, Aristotle's Analysis of Friendship: Function and Analogy, Resemblance, and Focal Meaning, Phronesis 51–62 (1975); Cf. A.D.M. Walker, Aristotle's Account of Friendship in the Nichomachean Ethics, Phronesis 180–196 (1979). Fortenbaugh is one of the authors cited by Finnis to support his claim on “central” case or “focal” meaning.

50. Fortenbaugh, supra note 49, at 51–52.

51. Id. at 54.

52. Cf. J. Cooper, J., Aristotle on the Form of Friendship. 30 Rev. Metaphysics 619–648 (1977). Cooper highlights the tension between Aristotle's Rhetoric and the Nichomachean Ethics. In the former, Aristotle endorses the idea that friendship is mutual well-wishing out of concern of one another, and this is a characteristic of friendship of whatever type. By contrast, in the latter, Aristotle seems to belief that friendship by utility and friendship by pleasure are wholly self-centered. Cooper rejects this interpretation and argues that the three types of friendship have a common feature: the friend will wish his friend whatever is good for his own sake (id. at 630–631). If Cooper is right, then there is neither resemblance nor core-dependence to a central case among the three kinds of friendship. In other words, friendship by utility, friendship by pleasure, and friendship among moral men are synonymous rather than homonymous. This seems to contradict the Rhetoric, the Eudemian Ethics, and the Nichomachean Ethics. I am grateful to Amanda Perreau-Saussine for making me aware of Cooper's interpretation.

53. Fortenbaugh, supra note 49, at 58.

54. This is also acknowledged by Finnis.

55. Shields, supra note 34, at 115.

56. For a defense of law as an archetype where different conceptions of law “participate” in the idea of law see N. Simmonds, Law as a Moral Idea, U. Toronto L.J. 61–92 (2005).

57. This is probably the kind of priority of the “central case” that Hart had in mind in his book The Concept of Law: “For it is clear that the diverse range of cases of which the word “law” is used are not linked by any such simple uniformity, but by less direct relations–often of analogy of either form and content- to a central case”; H.L.A. Hart, The Concept of Law (1994), at 79.

58. John Locke, II An Essay Concerning Human Understanding} xi.9 (1979); id. III at iii.6.

59. Ludwig Wittgenstein, Philosophical Investigations (G.E.M. Ascombe trans., 3rd ed. 2001) (1953).

60. R. Bambrough, Universals and Family Resemblances, Proc. Aristotelian Soc'y 207–222 (1961). Cf. T. Tessin, Family Resemblance and the Unity of a Concept, 19 Phil. Investigations 62–71 (1961).

61. M. Mandelbaum, Family Resemblances and Generalisation Concerning the Arts, 2 Am. Phil. Q. 219–228 (1965); H. Wennerberg, The Concept of Family Resemblance in Wittgenstein's Later Philosophy, 33 Theoria 107–132 (1967); L. Pompa, Family Resemblance, 17 Phil. Q. 63–67 (1967).

62. A. Manse, Games and Family Resemblance, 42 Philosophy 210–225 (1967); J. Bellaimey, Family Resemblances and the Problem of the Under-Determination of Extension, 13 Philosophical Investigations 31–43 (1990).

63. There is a dispute over whether Aquinas made such a distinction between “analogy of proportionality” and “analogy of attribution.” The latter is the analysis by central case or focal meaning. It is argued that the distinction is introduced by Cajetan, who asserts that such a distinction is implicit in Aquinas. See Thomas Cardinal Cajetan, On the Analogy of Names [De Nominum Analogia] (E. Bushinski trans., 1953); E.J. Ashworth, Signification and Modes of Signifying in 13th Century Logic: A Preface to Aquinas on Analogy, Medieval Phil. & Theology 39–67 (1991); R. McInerny, Aquinas and Analogy: Where Cajetan Went Wrong, Phil. Topics} 103–124 (1992); B. Montagnes, La Doctrine de L'Analogie de L'Etre D'Apres Saint Thomas D'Aquin} (Philosophes Medievaux 6, 1963).

64. F. Suarez, Disputationes Metaphysicae, 25 and 26 Opera Omnia (Hildensheim 1965) (1866).

65. Fortenbaugh, supra note 49, at 55.

66. In the seventh book of the Eudemian Ethics, Aristotle points out that resemblance is not an adequate basis for focal analysis. Owen, supra note 38, has emphasized that Aristotle refuses to use resemblance as the basis of focal analysis or focal meaning. Thus a painted eye resembles a living eye but cannot share the function of a living eye. It therefore cannot be said that it is an eye. Focal meaning is not used by Aristotle to connect different entities, each of which has its own goal.

67. Aristotle points out:

But since people do apply the term “friends” to persons whose regard for each other is based on utility, just as states can be friends, or on pleasure, as children make friends, perhaps we two must call such relationships friendships; but then we must say that there are several sorts of friendship, that between good men, as good, being friendship in the primary and proper meaning of the term, while the other kinds are friendships by way of resemblance to true friendship, since such friends are friends in virtue of a sort of goodness and likeness in them.

Aristotle, Nichomachean Ethics} 1157 a26–a33.

68. Aristotle, like legal positivists and Finnis, also highlighted the importance of respecting genuine common beliefs in both analyzing and advancing concepts.

69. Raz, supra note 23, at 76–77.

70. Finnis, supra note 9, at 278.

71. Id. at 278.