Fluent Essays

You must reference any cases cited using OSCOLA.legal philosophy often involves engagement with cases for philosophical purposes. In those instances, you should use the OSCOLA standards of referencing and reference carefully question: Explain the importance of the distinction between ‘good’ and ‘right’. Critically evaluate whether Finnis’s work establishes a clear distinction between ‘good’ and ‘right’. 4000 words limitAll the readings are on the word document. jp_assigment.docx Unformatted Attachment Preview Maximum Word Limit: 4000 words You must reference any cases cited using OSCOLA. legal philosophy often involves engagement with cases for philosophical purposes. In those instances, you should use the OSCOLA standards of referencing and reference carefully Please answer the following question: Explain the importance of the distinction between ‘good’ and ‘right’. Critically evaluate whether Finnis’s work establishes a clear distinction between ‘good’ and ‘right’. Reading (required reading is starred) Beginning Jurisprudence * ‘Philosophy of Law’ entry in the Internet Encyclopedia of Philosophy ‘Legal Obligation and Authority’ in the Stanford Encyclopedia of Philosophy Brian Bix, Jurisprudence Theory and Context (Sweet and Maxwell), Part A (pp. 3-30). Sean Coyle, Modern Jurisprudence: A Philosophical Guide (Hart 2014) Chapter 1, ‘Justice, Law and History’, 1-18 (On Blackboard) Natural Law *Crowe, Jonathan. Natural law beyond Finnis. Jurisprudence 2.2 (2011): 293308. *John Finnis, Natural Law and Natural Rights (2nd edn, OUP 2011) Chapters 1, 4 & 10. John Finnis, ‘On the Incoherence of Legal Positivism’ (2000) 75 Notre Dame Law Review 1597 Leslie Green, ‘The Duty to Govern’ (2007) 13 Legal Theory 165 Mark C. Murphy, ‘Finnis on Nature, Reason, God’ (2007) 13 Legal Theory 187 Veronica Rodriguez-Blanco, ‘Is Finnis Wrong? Understanding Normative Jurisprudence’ (2007) 13 Legal Theory 257 Volumes 3-4 of Legal Theory 13 in 2007 are part of a symposium on Finnis’s work, specifically NLNR. Therefore, should you wish to do any further reading, these volumes would be a very good place to start. Legal Positivism *H.L.A. Hart, The Concept of Law (3rd edn OUP 2012) pp1-117 H.L.A. Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard Law 593 Ronald Dworkin, Taking Rights Seriously (Duckworth 1977) Chapters 1-3 What Finnis Rejects in Legal Positivism • F rejects positivism’s exclusion of value, function, and usefulness in its conceptual identification. What Finnis Adapts From Legal Positivism • Like the social sciences, jurisprudence will involve certain ‘ideal types’: models of typical functioning, not a model of a perfect system. • F accepts Hart’s use of a ‘central case’: exploration of a typical legal system seen from the point of view of someone within the system. • Law’s central case will include the viewpoint of those who consider the legal system morally compelling (not just prudently or professionally). (NLNR 14-15) The ‘Central Case’ (or ‘Ideal Type’) of Law • We could make a model of a legal system where people see the basic force or unifying principle behind the rules of the system being custom. • But this would raise two questions: • I Shouldn’t a model of a legal system include law’s giving reasons about how we should act: good reasons, not merely customary reasons? • II Do judges see the force or unifying principle of rules being custom? Do they think they are just expanding our customs when they decide? • Do they not believe they are giving good reasons for applying the law? A rejection of custom in favour of reason as central to our model of law has implications: • We have no choice but to be clear what we think counts as ‘good reasons’ (for acting, for placing others under obligations). • - We have to know what good reasons look like, otherwise we are just accepting what judges / officials tell us are good reasons (they may be mere customs). • - These will allow us to evaluate what a good or healthy legal system involves. • - Our view of good reasons will be our (or the author’s) judgment about good reasons / practical reason. This is inescapable. • - Beginning with power, or custom, will not give us a workable ideal type: these are never, on their own, good reasons for action. Rational practical enquiry asks how should one live ones life? ↓ Any human life must reconcile 7 basic goods ↓ Such basic goods are a precondition of (and include) practical reasonableness: deciding on the best course of action and right balance of goods for me ↓ This generates some - but not all - of our obligations: other obligations are created by law, which is the pursuit of the common good ↓ The common good - the rule of law and good management of human affairs - is itself is a form of practical reasonableness where individual flourishing and collective needs are reconciled ↓ There is, therefore, a necessary link between law and morality - namely pursuit of goodness - but law is not directly ‘derived’ from morality Basic Goods “[O]ur primary use of the term ‘good’ (and related terms) is to express our practical thinking, i.e. our thinking, in terms of reasons for action, towards decision and action [...].” (NLNR 70) What are the basic aspects of my well-being?“ (NLNR 85-92) A Life B Knowledge C Play D Aesthetic Experience E Sociability F Practical Reasonableness G ‘Religion’ Discovering the Basic Goods: 5 Steps 1/5 General questions of practical reason What do we want to accomplish? Are these means to ends or ends in themselves? Are these something that any human would want in order to flourish? 2/5 Can we establish goods (or ends in themselves) exist necessarily, separate from preferences or human ‘tendencies’? Not things that are good because we desire them, but we desire them because they are good. Not what is valued, but what is worth valuing. 3/5 Are any goods logically irrefutable as goods? The pursuit of knowledge is presumably irrefutable, because any attempt to deny this represents an attempt to assert a form of knowledge. 4/5 Are any goods ‘basic’ or ‘self-evident’ in other ways? Some goods appear to be undeniably good because (all things being equal) their pursuit or protection is never blameworthy (life, play, aesthetic experience, sociability, religion). 5/5 Are there any further goods? If there are basic goods then any human will face a choice about how to reconcile them: so, practical reason must itself be a basic good. Using the Basic Goods • These are the elements of any flourishing human life: elements of each are necessary. • Human action – at an individual or collective level – is a contribution to human good if it pursues or supports these goods: such action is prima facie defensible. Critique via Basic Goods • A criticism of utilitarianism: pleasure and pain cannot be the grounds for deciding how to act; they can lead us to some truly inhuman ideas. • A criticism of liberalism: no moral or political philosophy can begin with a defence of action or liberty per se, it has to be founded on what is actually desirable for humans. Are there other goods? • For Finnis, it is unintelligible to identify courses of action that are not ultimately undertaken in pursuit of one or more of the basic goods. • We can understood other desirable courses of action as derived from or related to the basic goods. E.g. some goods might be means to those goods. • It is perhaps significant that freedom is not, in itself, a basic good. Does this mean that we could realise our basic goods as ‘happy slaves’? – Perhaps self-determination and freedom are derivative from our good of practical reason? • Basic Goods • A Life • B Knowledge • C Play • D Aesthetic Experience • E Sociability • F Practical Reasonableness • G ‘Religion’ Practical reason • Practical means “with a view to decision and action” (NLNR 12). • [Practical reasonableness is the] basic good of being able to bring one’s own intelligence to bear effectively (in practical reasoning that issues in action) on the problems of choosing one’s actions and lifestyle and shaping one’s own character.“ (NLNR 88) Practical reason as integration of the Goods • Importance of integrating goods, not simply discovering them. • Any human life involves difficult decision about integrating basic goods. Practical reason does not give simple rules for answering practical questions, it gives us principles Practical Reason: General Principles • Coherence, permitting rational or harmonious plans of life • No arbitrary preference amongst values • No arbitrary preference amongst persons • Detachment and commitment • The (limited) relevance of consequences • Respect for every basic value in every act • Fostering the common good • Following one’s conscience Does practical reason = morality? Because it is impermissible to ‘directly attack’ others’ basic goods or their capacity to exercise basic goods, Finnis derives some recognisable moral norms from them: - Violations of persons, property and promises are attacks on others’ basic goods. Because these are all equally basic, and we have the right to pursue them all, consequentialism makes no sense: - We cannot maximise them overall in a society, we need everyone to have the right to realise or reconcile all their basic goods. Nature of Law: Necessary Condition of Our Practical Reason [Law] enables past, present, and predictable future to be related in a stable though developing order; it enables this order to be effected in complex interpersonal patterns; and it brings all this within reach of individual initiative and arrangement, thus enhancing individual autonomy in the very process of increasing individuals obligations. (NLNR 303) Nature of Law: Institutionalisation of Practical Reason - Law is coercive: it must protect our pursuit of basic goods. - Law regulates its own creation (through rule use, precedent etc.). Law aspires to the rule of law: it is non-arbitrary and governs law-makers. The ‘Central Case’ Revisited “If there is a point of view in which . . . the establishment and maintenance of legal as distinct from discretionary or statically customary order is regarded as a moral ideal if not a compelling demand of justice, then such a view point will constitute the central case of the legal viewpoint. For only in such a viewpoint is it a matter of overriding importance that law as distinct from other forms of social order should come into being, and thus become an object of the theorist’s description.” (Finnis 2007, 336) “Finniss complaint against Hart (and other legal positivists) is not that one should not attempt a general social theory of law, but rather that one should not expect such a theory to be nonevaluative.” (Bix 1622) The ‘Internal Point of View’ Revisited 1 Law is a condition of basic goods because of its coordination and adjudication functions. 2 Law, like any institution, must also have direct justification in what is generally or truly desirable (the basic goods as reasonable ends). 3 This is enough to establish the moral force of law. 4 This moral force should be part of legal officials ‘point of view’. Therefore - Law is a necessary condition of practical reason. - Law requires practical reason on the part of judges. - Aquinas’ model of natural law, human law, and determinatio is defensible. Close relationship between de facto and de jure authority? Whoever is, or could, be in a position to rule can rule. The ultimate basis of rulers authority is the fact that they have the opportunity, and thus the responsibility, of furthering the common good by stipulating solutions to a communitys coordination problems.“ (NLNR 351) Real authority must be able to rule for the common good. Coercive power is necessary for authority. The authority of law depends [...] on its justice or at least its ability to secure justice. And in this world, as it is, justice may need to be secured by force [...].“ (NLNR 260) Rights build a bridge between practical reason and law The basic goods are not human rights: they are my ends-in-themselves. My human rights represent ways of dealing with typical threats to my basic goods: from others and from the state. Why are human rights the same as natural rights? Both natural rights and human rights reflect what I am owed simply by virtue of being human. For Finnis this: - justifies rights as part of a social, non anti-social, understanding of humans, - shapes the content of rights (how we protect the basic goods), - helps to determine their scope and function (they are basic concerns that create room for my practical reason). How do human rights relate to the common good? On the one hand, we should not say that human rights or their exercise, are subject to the common good; for the maintenance of human rights is a fundamental component of the common good. On the other hand, we can appropriately say that most human rights are subject to or limited by each other and by other aspects of the common good [e.g. public order]. (NLNR 217) Human rights are not a substitute for morality The fact is that human rights can only be securely enjoyed in certain sorts of milieu - a context or framework of mutual respect and trust and common understanding, an environment which is physically healthy and in which the weak can go about without fear of the whims of the strong.“ (NLNR 216) Existentialism Finnis claims to have responded to the existentialists: - Even if there are many ways to live, some are more rational and reasonable than others. - Sartre says no course of action is better than any other. Finnis responds that we face the complexities and challenges of practical reason, but this does not render judgment impossible. - Has he really persuaded you that you can find the right way to pursue your basic goods? - Wouldn’t it be eminently human to choose a way of life that wasn’t practically reasonable? Liberalism Finnis claims to have responded to liberalism: - The good must be prior to the right: we have work out what is rationally good for humans (and pursue it) before we can think about right answers or identify rights. - Part of practical reason is ensuring that there is no arbitrary preference amongst persons. This is enough to capture the core insight of liberalism. - Has he really done enough to establish that equality and fairness (justice) will be necessary components of a good legal system? - Why isn’t freedom a basic good? Is freedom from the will of others, and is selfdetermination, sufficiently protected in his model? Legal Positivism Finnis claims to have responded to positivism: - No account of law can lack elements of 1/ law’s functions, and 2/ the obligatory force that legal officials find in their sources and judgments. - The positivism defended by Hart is incoherent without the pursuit of genuine, rational, justifications for law-making and for judgments. - Positivists may retort that analytical work on law cannot function without a normatively neutral description of law and this is possible. - Perhaps many elements of Finnis’ model should be included in our descriptions of law, but they are not logically necessary for understanding what law is. Objectives - If Finnis was concerned to ‘update’ natural law to take account of human rights and to avoid divine command theory, then he is surely successful. - Finnis does use supplemental theological arguments, but this should not detract from the strongly de-theologised defence of Thomist natural law. Goods and Rights - An ‘objective list’ account of plural human goods seems both contentious and potentially unavoidable (if we reject utilitarianism). - Much of the work needed to mediate between the basic goods and the common goods is achieved via human rights. This seems intelligible but under-developed. ... Purchase answer to see full attachment