Finnis Legal Theory

Like classical naturalism, Finnis naturalism is both an ethical theory and a legal theory. Finnis distinguishes a number of equally valuable basic goods: life, health, knowledge, play, friendship, religion and aesthetic experience. Each of these goods, according to Finnis, has an intrinsic value in the sense that, in the face of human nature, it should be valued for its own sake, and not just for the good of another good that it can help achieve. Moreover, each of these goods is universal in the sense that it governs all human cultures at all times. The purpose of moral principles, according to this view, is to give an ethical structure to the pursuit of these fundamental goods; Moral principles allow us to choose among competing goods and define what a person can legitimately do to pursue a fundamental good. Dworkin believes that his theory of judicial obligation is a consequence of what he calls the rights thesis, according to which court decisions always uphold pre-existing rights: “Even if there are no fixed rules to decide the case, one party may still have the right to win. It remains the duty of the judge, even in difficult cases, to discover what the rights of the parties are and not to invent new rights retroactively” (Dworkin 1977, 81). Once the decision has been validly taken and satisfies the criteria for validity provided for by or under the constitutional law of the legal system concerned, it modifies the existing legal status by introducing a new or amended rule of law and one or more legislative proposals. The new or amended legal norm gives judges, other public servants and citizens a new or modified reason to act (or to refrain). The fact that the new or amended rule depends on the source of the social fact formed or used by the act of determination does not mean that a normative reason (a “should”) is illogically derived from a simple fact (an “is”). On the contrary, the new or modified rule is normative, directive and (when this is its legal significance) obligatory, because this social fact can be the second premise of a practical syllogism whose first premise is normative: “There should be a maternity in this city”, “People should be protected from murderous assaults”, “People should be required to participate in the public expenditure of appropriate government functions”. “Victims of personal injury, theft, breach of contract, negligence, etc. should be compensated”, “Road traffic should be regulated to reduce harmful collisions” and so on.

The moral normativity of the principle is reproduced in the more specific rule created by determinatio, although the latter is not a consequence of the first. The study of (i) how one legal system becomes independent of another through legal processes, and (ii) how parts of a legal system (e.g. its constitution or rules for identifying incumbents) are replaced by the illegal processes of coup or revolution, shows (see Raz 1979, 100-109) that the identity of an existing legal system as a single system of legal norms is not explained (or even coherent) by representation (or even coherent). can be described. which concerns only standards and their interrelationships as validation standards and validated standards. The non-current identity of a legal system depends on the existing identity of the community in question. Legal theory is subordinate to the historical understanding (including self-understanding) of a community and its members as that community – paradigmatically this nation-state – and not as a random sequence or agglomeration of persons and events, and this understanding should not depend to a large extent on the legal norms that the community can successfully constitute for itself and its members. There is no doubt that the common goal of living together within the framework of a State governed by the rule of law and the common memory of a common recognition or recognition of laws such as our laws are generally important elements of such a common understanding of political-community and legal identity. But other common objectives, memories and readiness for action must also be essential if the phenomena of legitimate independence and revolutionary constitutional change are to be as they are. A classical interpretation of natural law is the doctrine of lex injusta non est lex: that morally false laws are not laws at all.

Finnis first asserts that this is not the main concern of a theory of natural law – the main concern is to recognize a system of common good and determine whether/how a legal system can best achieve this. Nevertheless, the question of immoral laws deserves to be discussed, and Finnis does discuss it. Of course, as Brian Bix (1999) points out, the Austin argument hardly works because it is always possible for a court to enforce a law against a person who does not meet Austin`s own theory of legal validity. Aristotle (Politics III.15.1286a-IV 4 1292a) vigorously debates whether political authority can be best exercised by a “rule [primacy, supremacy] of the law” or “a rule of the people”, say by a better person or democratic assembly, or even (rhetoric I 1 1354a32-b16) a court.