Natural law Flashcards
What is morality according to Finnis
Pursuit of the goods - living our lives in a moral way (like Aristotle).
The Radbruch formula
Positive law is law even when unjust until the injustice becomes intolerable: where there is not even an attempt at justice, it lacks the very nature of law
Theoretical unsoundness of Finnis’ account of morality
Prractical reason is a basic good and also a framework within which we pursue the good. (For Raz, practical reason is the framework but can never be a good)
Murphy’s strong reading of natural law
This doctor (factual) is no doctor at all (evaluative). Glass diamonds are not diamonds. Not self contradictory. Lacks the nature of law
Problem with Finnis’ account
Gives no guidance on when a law is valid / invalid - seems to suggest that it’s up to your morals
Some examples of why Finnis is shaped by his cociety
Marriage: A Basic and Exigent Good
Finnis’ theory
7 basic goods, self evident, irreducible (look inside you - like Aquinas but secular)
Practical reasonableness
Applied to the 7 basic goods, allows us to live our life in a moral way and tells us how (knowledge is good, reading gives knowledge, so I shoudl read a book)
How did Hart dismiss the King Rex requirements
They just describe efficiency - the morality of poisoning.
Murphy’s weak reading of natural law
A duck that can’t swim is defective as a duck, an unjust law is defective as law (but it’s still a duck and it’s still a law)
Finnis’ 7 basic goods
- Life 2. Knowledge 3. Play 4. Aesthetic experience 5. Sociability 6. religion (wide def) 7. PRACTICAL REASONABLENESS
What was Finnis’ definition of law
Similar to Hart / Austin - Hart: Finnis’ theory can coexist with positivism
Dangers of Finnis’ theory
Black and white, what of the goods that are left out - no consideration? Motivated by his fixed belief before creating it? Lack of autonomy, not constraining the limits of our autonomiy, rather a prescriptive theory of how we should act
Fuller’s “King Rex” requirements for just law
- Generality 2. Publicity 3. Prospectivity 4. Clarity 5. consistency 6. able to be complied with 7. constancy 8. faithful administration
Where did Fuller stand on the Radbruch theory
He defended it
Radbruch background
Positivist, lived through Nazi Germany, revised theory afterwards
Problems with the Radbruch formula?
Implications for legal certainty
Some examples of why Finnis does not practice the practical reasonableness requirement of detachment!
“Some Fundamental Evils of Generating Human Embryos by Cloning”
Finnis’ theory of subsidiarity
The group (society) serves the individual, not vice versa
Social contract (individual: sovereign)
Locke
What did Hart say was preferable to Radbruch’s approach?
Radbruch would have a court declare a law invalid at the point of ruling - practical difficulties under nasty regime. Hart says that to pass retroactive legislation annuling it woudl at least have the quality of candour
Murphy’s moral reading of natural law
The moral duty to obey the law is conditional. Excruciatingly uninteresting
Fuller’s description of the qualities of law
Purposive (can’t understand it without looking to aims), reciprocal (not command), ongoing. The concept of law has inherent moral qualities
Finnis on lex injusta non est lex
In using “law” twice, Aquinas clearly meant that there can be law without moral force “this doctor is no doctor at all” (Murphy). We have misunderstood Aquinas
History / foundations of natural law
Aristotle - Teleology - master plan - cosmos
Aquinas - Theology - master plan - God
Grotius - Secular - rights of humans
Hobbes - social contract (between individuals)
Locke - Social contract (individual and sovereign)
Human rights act etc - universality
Fuller’s response to Hart’s comments on teh Rx laws
The element of RECIPROCITY is what makes it moral - gives dignity to people as responsible agents
What was the basis of Hart’s argument in the Hart / Fuller debate
Denying legal status to unjust law does more harm than good
What’s the function of the Radbruch formula
To impose an outer limit on the scope of positive law
What was Fuller’s response to Hart’s argument
It doesn’t matter whether law is annuled after the fact or declared invalid from inception - it just comes down to who does the dirty work
Backdrop to Finnis’ theory
Catholic, influenced by Aquinas, anti-utilitarian - single goal is silly
Problems with practical reasonableness
My conscience tells me euthenasia is good but not pursuit of life (good). Autonomy is not a good.
Appeal of Finnis’ theory to the lay person
There’s always a right answer. Conscience not really involved. No agonising over dilemmas. All the basic goods on the face of them sound good / harmless
Problems with practical reasonableness
Intended to rule out consequentialism, but as the basic goods can’t be weighed / balanced, no abortion (or mastrbation, contraception, homosexuality, sex for fun
What does Murphy think the purpose of law is
To give us decisive reasons for action
phrase which sums up classical natural law
lex injusta non est lex
Basic requirements of practical reasonableness
Coherent life plan; no arbitrary preferences among values; no arbitrary preferences among people; detachment; limited relevance of consequences; efficiency; respect for every basic value in every act; following ones conscience
Finnis’ methodology
You can’t get an ought from an is. Doesn’t try to - olitical theory to guide law makers - you can and should be guided by morals
Social contract (individuals)
Hobbes
What’s pratical reasonableness
When applied to the 7 basic goods, gives morals
