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John Finnis, Grounding Human Rights in Natural Law, 60 Am. J. Juris. 199 (2015).

Of the many reviews and critical notices that greeted the publication of Natural Law and Natural Rights [NLNR] in 1980, one of the most influential, and thus far unchallenged, was that by the distinguished American theologian Ernest Fortin, entitled The New Rights Theory and the Natural Law. In it, Fortin set out many of the principal criticisms that readers oppose to NLNR’s doctrines to this day: the book’s appearance of distance from traditional Aristotelian-Thomist concerns and modes of explanation; its focus on natural right in place of natural law (and the differences between the two concepts); the absence of the virtues from the book’s moral philosophy; its apparent surrender to liberal individualism.

In the years since 1980, John Finnis has amplified — sometimes considerably — upon these matters, including in the 2011 ‘Postscript’ to the second edition of NLNR, but until now had not directly replied to Fortin’s review. This long essay incorporates that reply. Whilst that Postscript served as an opportunity to comment upon and clarify the intention of many of the book’s passages, the present essay is closer in character to the ‘Postscript’ written by Hart for the second edition of The Concept of Law, focusing on the position of one critic in particular.

To some extent the lines of argument/clarification will be familiar to careful readers of Finnis’s work beyond NLNR, particularly those dealing with action-theory and his book Aquinas (Oxford University Press 1998). But here they are further supplemented, and in a way that brings to the forefront new issues: such as “the intellectual autonomy and integrity of work within an intellectual tradition that overlaps with a ‘faith tradition,’” (P. 199).

Of the responses to Fortin’s specific claims, I will briefly pick out only one: the place of virtue within the argument of NLNR. Finnis replies that although NLNR deliberately avoids talk of virtue(s), nevertheless “virtue dominates the book” (P. 207, emphasis in orig.) in the shape of: (a) practical reasonableness, Finnis’s term for Aquinas’s prudentia, or more precisely bonum rationis; and (b) justice, the quality of character in virtue of which one is [steadily] practically willing to care for the common good of the community. (P. 208; NLNR, P. 165.) But “[q]uite generally, the problems of individual and communal moral life are not solved by talk about virtues,” and “NLNR’s undertaking to its readers, in short, is to provide something more helpful as a guide to conscientious decision-making in individual and social life than a mere naming of relevant virtues and counselling a life of virtue … advice easy enough to give but not much help to anyone. …” (P. 209-10). Yet, surely an aspect of the decision of Aristotle and (at huge length) Aquinas to set forth their accounts of Ethics in terms of virtues is the thought that principles of the kind that in Finnis’s view take priority (and are ‘helpful’) are not always available to resolve ambiguities or conflicts in one’s reasons for acting: for example, whether in a particular case it is right to exercise mercy. In such cases, the instruction to locate the mean of virtue between extremes of vice is not empty: it is an acknowledgement that we possess no luminous guide untainted by error or vice, but have to light our way by navigating between courses of action that we can identify as vicious or erroneous. Despite its practical orientation, NLNR does not offer the citizen any advice about the demands of mercy, charity, fortitude, beneficence, etc.

One interesting facet of the essay is in Finnis’s explaining his assumptions and expectations of readers of NLNR, and the choices this caused him to make in arranging the book’s arguments and crafting its rhetoric. For example, he evidently felt some disappointment over the inattentiveness “to the book’s rhetorical and structural precautions for disarming or circumventing the hostility with which many modern readers approach anything associated by them with the past, especially the past of Christianity and of all that antedates the secular ‘liberalisms’ and conventional radicalisms of 1980 and today.” (P. 201.) But some at least of the book’s rhetorical strategies have proved to be over-subtle, and have converted friends into critics. On the subject of the book’s abstention from talk of virtue, Finnis states that the explanation is implicit in the following passage:

How does one tell that a decision is practically reasonable? This question is the subject-matter of the present chapter. The classical exponents of ethics (and of theories of natural law) were well aware of this problem of criteria and standards of judgment. They emphasize that an adequate response to that problem can be made only by one who has experience (both of human wants and passions and of the conditions of human life) and intelligence and a desire for reasonableness stronger than the desires that might overwhelm it.’ (P. 209; NLNR, P. 101.)

This sets a high standard of awareness for the book’s primary audience: “law students, undergraduate and graduate, [and] lecturers and other teachers many of whom have little acquaintance with, and no predisposition to favor, the philosophical and theological tradition in which the term ‘natural law’ finds its origins and its home.” (P. 201.)

It is not every author who has the good fortune to be able to specify, after the fact, the way in which his book is supposed to be read. But in reality, the good fortune in this instance is that of the reader, past or future, who may otherwise have missed out upon some of the subtleties the book has to offer. For as long as NLNR continues to be read (and misread), this essay will offer a valuable and authoritative commentary.

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Cite as: Sean Coyle, Rights, Virtues, and Natural Law, JOTWELL (April 8, 2016) (reviewing John Finnis, Grounding Human Rights in Natural Law, 60 Am. J. Juris. 199 (2015)), https://juris.jotwell.com/rights-virtues-and-natural-law/.