In this post I want to write up a few arguments against Finnis’ theory of natural law that occurred to me while I was reading his work.
The Basic Goods
Specific Criticisms of the Seven Goods
Finnis’s seven basic goods are:
- Aesthetic Experience
- Practical Reasonableness
I think that positive emotion is a noticeable absentee here. The reason these seven goods are ‘basic’ is because they can be the foundation of an explanation, e.g. “why are you buying food?” “So I can eat” “Why do you want to eat?” “So I can stay alive” “Why do you want to stay alive?” “Because it is a basic good.” I think this kind of argument is perfectly acceptable if the last line is “because it makes me happy.”
Finnis argues that pleasure/pain are merely side effects of achieving/not achieving the basic goods, and anyone who pursues pleasure that is not associated with a basic good is living their life wrong. I think that this is dismissive of many valid life choices. Sometimes when people hear the word ‘pleasure’ and ‘pain’ they imagine shallow emotion, whereas I think ‘positive/negative emotion’ makes it clear that we can also talk about deep emotions like love, satisfaction from achievements, or grief.
This issue is tangential to a question of ‘what is law?’ so I’ll leave it here.
In a later revision, Finnis decided that ‘aesthetic experience’ could be subsumed under knowledge and play. He replaced it with a new basic good: “Marriage between man and woman for the purpose of having children.” It would be fun seeing what a legal theory class would make of that, and I don’t think I have any non-obvious criticisms of this good.
Things like this make it less likely that Finnis has correctly identified the basic goods. A stronger argument would be directed against the existence of any kind of basic good.
More General, Important Criticisms
There are many principles of logic and science that have not been proved, such as ‘experience corresponds to reality’ or ‘modus ponens is a valid argument.’ He says that such arguments cannot be proved, but if we don’t assume them then we can’t get anywhere, so we have to assume them.
A basic good is the same. You cannot use facts like ‘This basic good seems good to me’, or ‘most people agree on the basic goods’ to prove the existence of a basic good – a basic good is unprovable. However, if you don’t accept the existence of basic goods, you cannot evaluate anything you do, or anything anyone else does, and you cannot make decisions for how to live your life. So you have to assume the basic goods.
My first objection is that principles that cannot be proven are not features of a scientific theory – they are problems. If someone finds a way to prove that experience corresponds to reality, everyone will be extremely pleased and will adjust their theories accordingly. Such a proof seems impossible to us, but that doesn’t mean it is impossible – we can do things today that would have seemed impossible to people even a hundred years ago, let alone 5’000. Science, maths and theoretical logic are making every effort to eliminate unprovable principles, with limited success (especially in the special sciences). So I don’t think Finnis can create unprovable principles in his own theory, and claim that this is ok because science and logic also do this.
Scientists and mathematicians also treat their assumptions differently. A scientists attitude to their assumptions is “I have made these assumptions. I must act as if they are true, because otherwise I couldn’t do anything. However, I acknowledge that my work may be useless if these assumptions turn out to be wrong. The assumptions seem to be working but hey, who knows, it’s just a model.” If you tried to transplant that attitude into Finnis’s basic goods, you would have to acknowledge that other people might construct moral theories with different assumptions, and then you’re left with Kelsen’s moral relativism.
Basic goods have three distinct properties:
- The basic goods explain human actions. An action is worthwhile if and only if it participates in a basic good.
- There is a single set of basic goods that applies equally to every society that ever has or ever will exist.
- The basic goods exist independent from our understanding of them.
Finnis’s argument as to why you should accept basic goods is that if you don’t, you won’t be able to evaluate anything morally. I think that you could grant this for property (1), however the other properties are not required to talk about morals. You could deny (2) by arguing that morals are different for different people, or at least different societies. Or you could argue that morals are common to all humans, but are still created by our understanding, and so accept (2) while denying (3).
These theories are not necessarily better than Finnis’s theory, but his argument – that you must accept that basic goods if you want to talk about morals – does not seem correct to me.
Finnis sets up a divide between the basic goods, which are objective, and morally correct courses of action, which are subjective. To build this divide he makes the following declaration: the basic goods cannot be compared with each other – there is no objective way to determine whether an act that pursues knowledge it better than an act that pursues life. Both are good actions, and it is up to us to choose which to pursue.
I have no strong arguments against this, but it feels wrong to me. It seems ‘obvious’ that some decisions are better than others in the same way that it’s ‘obvious’ that some decisions are good ideas in the first place. Finnis provides basic goods to explain the latter, but does nothing to explain the former.
None of these criticisms are specifically relevant to a discussion of ‘what is a law?’ They occurred to me while I was reading the theory, and I thought I would them up in case something comes in handy in a final analysis.
I am therefore leaving them in this undeveloped state, and will pursue them properly if it seems useful.