Notre Dame Law School NDLScholarship Journal Articles Publications 2015 Grounding Human Rights in Natural Law John M. Finnis Notre Dame Law School, [email protected] Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Human Rights Law Commons, and the Natural Law Commons Recommended Citation John M. Finnis, Grounding Human Rights in Natural Law, 60 Am. J. Juris. 199 (2015). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/1257 This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. +(,121/,1( Citation: 60 Am. J. Juris. 199 2015 Content downloaded/printed from HeinOnline Thu Sep 29 10:53:21 2016 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information The American Journal of Jurisprudence, Vol. 60, No. 2 (2015), pp. 199-225 doi: 10.1 093/ajj/auvO 13 Advance Access published 14 November 2015 Grounding Human Rights in Natural Law John Finnis' Abstract: Of the published reviews of Natural Law and Natural Rights, one of the most, and most enduringly, influential was Ernest Fortin's review-article "The New Rights Theory and the Natural Law" (1982). The present essay takes the occasion of that review's latest republication to respond to its main criticisms of the theory of natural law and natural or human rights that is articulated in Natural Law and Natural Rights. The response deals with a number of fundamental or strategically important issues: the freedom of thought and/or the intellectual autonomy and integrity of work within an intellectual tradition that overlaps with a "faith trad- ition"; the hierarchies among the basic human goods; the place of virtue in the book, and the relation between rights and freedom, and rights and virtue; the unsoundness of the Straussian bifurcation between natural right and natural rights; whether nat- ural law is only analogically law, and the relation between moral law and sanctions; and the possibility of true exceptionless negative moral precepts. Keywords: Natural Law, Natural Rights, Aquinas I. Purposes, Predicament, Method, and the "Art of Writing" Natural Law and Natural Rights2 [NLNR] says nothing about rights until the eighth of its thirteen chapters. By then, it has taken up (i) the methodology of social (including political) science, and (ii) the errors of many early modern and contemporary thinkers about natural law theory and about their own traditions. It has (iii) teased out and (iv) elaborated the first principles of practical thinking and deliberating, and then (v) the foundational moral principles that resolve, in prin- ciple, the problem that our choices must be made-and should be made I Biolchini Family Professor of Law, University of Notre Dame; Professor of Law and Legal Philosophy Emeritus, University of Oxford. Email: [email protected]. This essay was occa- sioned by the invitation of Daniel Philpott and Ryan Anderson-as editors of a volume (to be published in 2016 by the University of Notre Dame Press) republishing essays on Catholic political thought that were first published in The Review ofPolitics-to contribute a response (the only essay written for the volume) to Ernest Fortin, "The New Rights Theory and the Natural Law," The Review ofPolitics 44 (1982): 590-612. The version to be published in their volume will be supplemented by some extracts from a draft response to Fortin that I began and discontinued in 1982/3. Fortin's review-essay is already republished in J. Brian Benestad, ErnestFortin:Collected Essays, vol. 2, Classical Christianity and the Political Order: Reflections on the Theologico-Political Problem (Lanham, MD: Rowman & Littlefield, 1996), 265-86, but bracketed page references to it below are to the Review of Politics version cited above. 2 John Finnis, NaturalLawand Natural Rights (Oxford: Oxford University Press, 1980; 2d edition with identical pagination and a 65-page Postscript, 2011). C The Author 2015. Published by Oxford University Press on behalf of University of Notre Dame. All rights reserved. For Permissions, please email: [email protected]. 200 J Finnis reasonably-amongmultiple intrinsically valuable and intelligible goods all actua- lizable in the lives of many human persons. The book then considers (vi) the fundamental types of human association and community, the intelligibility, good- ness and centrality of common good in family, voluntary and civic associations, and in political communities. It reviews (vii) the forms of justice, the principles that give that supreme inter-personal virtue specificity by identifying how the demands of the supreme moral virtue-practical reasonableness or prudentia- bear on conduct or inaction that affects other persons. Only after all this does NLNR consider (viii) rights. They are shown to be simply the entailments of the virtue of justice, the correlatives of duties of justice-not as mere shadows of those duties but as, in a way, their point. There follow chapters on (ix) authority, on (x) law as the politically desirable standard form of authority, on (xi) obligations in morality and law as the require- ments of acting for common good, on (xii) the reality and nullity of unjust laws, and on (xiii) the need for, and availability of, a meaningful philosophical response to questions about the ultimate origins and sense of all these intelligibilities. Each of the thirteen chapters, like the whole venture of displaying their mutually sup- portive explanatory and practical force in personal and political life, has the purpose of making available to young, secular students the main truths of the classical tradition in political philosophy. The principal bearers of that tradition, for many centuries, have been thinkers who also accepted the truth of Christian revelation as transmitted in Catholic doctrine and theological reflection. Most of the book's readers could be expected to approach it with assumptions widely and deeply opposed to that doctrine and theology. Every part of NLNR is shaped and marked by consciousness of that challenging fact. It was written during the very years of what Ernest Fortin justly called "the pseudomorphic collapse of Neo-Thomism in the wake of Vatican II."3 I shared Fortin's judgment that the neo-Thomism current in manuals and textbooks in the decades before 1965 was philosophically inauthentic. Anyone embarking on a project such as NLNR needed to investigate, as a top priority, whether Aquinas and Aristotle were guilty of the fallacies and elisions of neo-Thomism, and if they were not, whether a philosophically critical and free-standing exposition of the foundations of ethics and political philosophy would show that, in their main lines, Aquinas and Aristotle had got there frst, so to speak, and can, now too, be philosophically helpful. The work of recovering the real theses and argumentation of, particularly, Aquinas had been pursued in the late 1950s and the 1960s by French-speaking Dominicans such as P.M. Van Overbeke and P.-D. Dognin,4 and 3 Ernest Fortin, "The Trouble with Catholic Social Thought" (1988) in J. Brian Benestad, Ernest Fortin: CollectedEssays, vol. 3, Human Rights, Virtue, andthe Common Good: Untimely Meditations on Religion and Politics (Lanham, MD: Rowman & Littlefield, 1996), 311. A pseudomorphic crystalline is one that assumes the shape of another mineral that it has replaced; I take it that Fortin's phrase predicates (by hysteron proteron) pseudomorphism of Neo-Thomism rather than of its col- lapse (which was real enough, sociologically speaking). On the inauthenticity (pseudomorphism) of the "neo-Suarezian theory...widespread in Catholic seminaries until the 1960s," see NLNR, 49; also 47. 4 See NLNR, 228. Grounding Human Rights in Natural Law 201 then, with decisive clarity, by Germain Grisez. 5 The testing of Aquinas's theses in dialectic with Hume and with the main academic British moral philosophers of the twentieth century, during the gestation of NLNR, can in part be traced in essays of the 1970s published first or republished in Collected Essays ofJohn Finnis (2011).6 NLNR is written primarily for law students, undergraduate and graduate,7 and for 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. These are the readers whom the book seeks to meet where they are. Few indeed, however, were the reviewers who noticed, or made even the slightest allowance for, the book's genre, its rhetorical predicament, and its strategies, its "art of writing." I hoped that, for example, my giving common good and justice priority over rights would signal to thinkers interested in and aware of the tradition of political thought that the book and its author stood in opposition to some main prejudices of modernity. That scholars who thought of themselves as guardians of the trad- ition, or of classical wisdom, would turn out to be readers whose comprehension was blocked by questionable presuppositions-as far-reaching, or nearly so, as the errors and oversights of those who think of themselves as moderns-was some- thing I did not really envisage. Nor did I really envisage that scholars who thought of themselves as sensitive to "the art of writing" in oppressive circumstances would turn out to be inattentive to the book's rhetorical and structural precautions for disarming or circumventing the hostility with which many modern readers ap- proach anything associated by them with the past, especially the past of Christianity and of all that ante-dates the secular "liberalisms" and conventional radicalisms of 1980 and today.