Natural law

Question 1

What is morality according to Finnis

Answer 1

Pursuit of the goods - living our lives in a moral way (like Aristotle).

Question 2

The Radbruch formula

Answer 2

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

Question 3

Theoretical unsoundness of Finnis’ account of morality

Answer 3

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)

Question 4

Murphy’s strong reading of natural law

Answer 4

This doctor (factual) is no doctor at all (evaluative). Glass diamonds are not diamonds. Not self contradictory. Lacks the nature of law

Question 5

Problem with Finnis’ account

Answer 5

Gives no guidance on when a law is valid / invalid - seems to suggest that it’s up to your morals

Question 6

Some examples of why Finnis is shaped by his cociety

Answer 6

Marriage: A Basic and Exigent Good

Question 7

Finnis’ theory

Answer 7

7 basic goods, self evident, irreducible (look inside you - like Aquinas but secular)

Question 8

Practical reasonableness

Answer 8

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)

Question 9

How did Hart dismiss the King Rex requirements

Answer 9

They just describe efficiency - the morality of poisoning.

Question 10

Murphy’s weak reading of natural law

Answer 10

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)

Question 11

Finnis’ 7 basic goods

Answer 11

1. Life 2. Knowledge 3. Play 4. Aesthetic experience 5. Sociability 6. religion (wide def) 7. PRACTICAL REASONABLENESS

Question 12

What was Finnis’ definition of law

Answer 12

Similar to Hart / Austin - Hart: Finnis’ theory can coexist with positivism

Question 13

Dangers of Finnis’ theory

Answer 13

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

Question 14

Fuller’s “King Rex” requirements for just law

Answer 14

1. Generality 2. Publicity 3. Prospectivity 4. Clarity 5. consistency 6. able to be complied with 7. constancy 8. faithful administration

Question 15

Where did Fuller stand on the Radbruch theory

Answer 15

He defended it

Question 16

Radbruch background

Answer 16

Positivist, lived through Nazi Germany, revised theory afterwards

Question 17

Problems with the Radbruch formula?

Answer 17

Implications for legal certainty

Question 18

Some examples of why Finnis does not practice the practical reasonableness requirement of detachment!

Answer 18

“Some Fundamental Evils of Generating Human Embryos by Cloning”

Question 19

Finnis’ theory of subsidiarity

Answer 19

The group (society) serves the individual, not vice versa

Question 20

Social contract (individual: sovereign)

Answer 20

Locke

Question 21

What did Hart say was preferable to Radbruch’s approach?

Answer 21

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

Question 22

Murphy’s moral reading of natural law

Answer 22

The moral duty to obey the law is conditional. Excruciatingly uninteresting

Question 23

Fuller’s description of the qualities of law

Answer 23

Purposive (can’t understand it without looking to aims), reciprocal (not command), ongoing. The concept of law has inherent moral qualities

Question 24

Finnis on lex injusta non est lex

Answer 24

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

Question 25

History / foundations of natural law

Answer 25

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

Question 26

Fuller’s response to Hart’s comments on teh Rx laws

Answer 26

The element of RECIPROCITY is what makes it moral - gives dignity to people as responsible agents

Question 27

What was the basis of Hart’s argument in the Hart / Fuller debate

Answer 27

Denying legal status to unjust law does more harm than good

Question 28

What’s the function of the Radbruch formula

Answer 28

To impose an outer limit on the scope of positive law

Question 29

What was Fuller’s response to Hart’s argument

Answer 29

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

Question 30

Backdrop to Finnis’ theory

Answer 30

Catholic, influenced by Aquinas, anti-utilitarian - single goal is silly

Question 31

Problems with practical reasonableness

Answer 31

My conscience tells me euthenasia is good but not pursuit of life (good). Autonomy is not a good.

Question 32

Appeal of Finnis’ theory to the lay person

Answer 32

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

Question 33

Problems with practical reasonableness

Answer 33

Intended to rule out consequentialism, but as the basic goods can’t be weighed / balanced, no abortion (or mastrbation, contraception, homosexuality, sex for fun

Question 34

What does Murphy think the purpose of law is

Answer 34

To give us decisive reasons for action

Question 35

phrase which sums up classical natural law

Answer 35

lex injusta non est lex

Question 36

Basic requirements of practical reasonableness

Answer 36

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

Question 37

Finnis’ methodology

Answer 37

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

Question 38

Social contract (individuals)

Answer 38

Hobbes

Question 39

What’s pratical reasonableness

Answer 39

When applied to the 7 basic goods, gives morals