Abstract
The most peculiar and controversial aspect of John Finnis’ and Germain Grisez’s account of natural law theory is their tacit acceptance of David Hume’s and George Edward Moore’s thesis about the impossibility of deriving “ought” from “is” (“naturalistic fallacy”) and, therefore, their understanding of natural law principles as principia per se nota (self-evident and indemonstrable). According to Finnis, such principles “are not inferred from facts”, nor are they inferred “from metaphysical propositions about human nature, or about the nature of good and evil, or about the function of a human being”.
This approach was subjected to a harsh criticism by Henry Veatch in the 1980s. Veatch claimed that all advocates of natural law should admit the possibility of inferring norms from facts, “ought” from “is”. Veatch interpreted Finnis’ failure to admit this as the result of: (1) his “Oxbridge superstitions” (that is, his fear of being anathemized by an academic environment where “naturalistic fallacy” was regarded as an appalling philosophical sin); (2) a too static conception of “nature”, which would purportedly not take into account man’s specificity as a “creature of potentialities” and a “being who is not all that he might be or could be”.
This paper weighs the arguments of both sides (Finnis and Grisez responded to Veatch’s criticism) and will infer conclusions that are of interest for current discussions on natural law.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
“[The “New Natural Law Theory”] is a restatement which claims to incorporate and reevaluate the general insights of modern so-called legal positivism, but to transcend them, and to reinstate them within a properly elaborated theory of natural law” (MacCORMICK, Neil, “Natural Law Reconsidered”, Natural Law, vol. I, p. 227).
- 2.
“It is Grisez’s [and, therefore, Finnis’s] contention that a caricature of Thomistic natural law has been accepted as good money for a long time, that this caricature owes far more to Vázquez and Suárez than it does to Thomas [Aquinas], and that this caricature is open to a number of devastating criticisms which are ineffective against the view of Thomas Aquinas properly understood” (Mcinerny 1980, 6).
- 3.
Cf. Finnis (1988), 45–46.
- 4.
This “therefore” is, of course, contentious, as it involves, in Finnis’ view, naturalistic fallacy.
- 5.
“The scholastic natural law theory [Suárez] must be rejected […] [because] it moves by a logically illicit step –from human nature as a given reality, to what ought and ought not to be chosen” (Grisez 1983, 105).
- 6.
Finnis, thus, takes seriously Hume’s and Moore’s criticism of the “naturalistic fallacy” (the impossibility of deriving “ought” from “is”). In his opinion, the “materials” for building a natural law theory that does not lapse into naturalistic fallacy are to be found in Aquinas’ work. However, Finnis acknowledges that Aquinas did not entirely develop this theory; Finnis purports to accomplish, then, what Aquinas left unfinished: “The reason for making the attempt [to “complete” what Aquinas left undone] is that a theory of practical reasonableness, of forms of human good, and of practical principles, such as the theory Aquinas adumbrated but left insufficiently elaborated, is untouched by the objections which Hume (and after him the whole Enlightenment and the post-Enlightenment current of ethics) was able to raise against the tradition of rationalism eked out by voluntarism. That tradition presented itself as the classical or central tradition of natural law theorizing, but in truth it was peculiar to late scholasticism [Vázquez-Suárez]” (Finnis 1988, 46–47). “The most popular image of natural law has to be abandoned. The corresponding and most popular objection to all theories of natural law [namely, that it suffers from “naturalistic fallacy”] has to be abandoned too” (Finnis 1988, 33).
- 7.
“Grisez and Finnis claim to have recovered Aquinas’s natural law theory in a way that avoids the standard objections which have beset such a theory since the Enlightenment” (Hittinger 1987, 5). McInerny, though, claims it is dubious if Grisez and Finnis are trying to restore the genuine Thomism or, rather, to overcome it: “On the matter of starting-points, it is not always clear whether Grisez considers what he is offering as a version of what Thomas taught, as an improvement of it, or as a replacement of it” (Mcinerny 2000, 54).
- 8.
“Aquinas’s treatment of all these issues is saturated with the interrelated notions, “end” and “good”; the terms “obligation”, “superior”, and “inferior” scarcely appear, and the notion of conformity to nature is virtually absent. In Suárez and Vázquez the terms “end” and “good” are almost entirely gone, replaced by “right” and “wrong” and cognate notions” (Finnis 1988, 46).
- 9.
Vid. Finnis (1988), 81–97.
- 10.
Finnis (1988), 33–34.
- 11.
Hittinger comments (about Grisez’s and Finnis’ conception of practical reason): “[P]ractical reason is not [for Grisez and Finnis] theoretical reason caught up in what might be termed a practical moment. […] [W]hat is under consideration is not so much the given, but the mind charting what is to be. It is foundational in its own right” (Hittinger 1987, 31).
- 12.
Finnis (1988, 34). “In contrast to theoretical reason’s function of pursuing knowledge in relation to prior realities, Grisez emphasises that the function of practical reason is actually to bring realities into being. It is the form of reason that we use to make choices about what we should do. These choices will range from the commitments that structure our lives, such as “What career should I pursue?”, to very daily decisions like “What should I eat for dinner?”” (Black 2000, 4). “Practical propositions are not true by conforming to anything” (Grisez et al. 1987, 116).
- 13.
“The moral ought cannot be derived from the is of theoretical truth – for example, of metaphysics and/or philosophical anthropology” (Grisez et al. 1987, 102).
- 14.
“From a set of theoretical premises, one cannot logically derive any practical truth, since sound reasoning does not include what is not in the premises. […] The principles we are concerned with are motives of human action. As principles, they will be basic motives, irreducible to any prior motives of the same sort” (Grisez et al. 1987, 102).
- 15.
Their being “self-evident” does not imply their being actually recognized by everybody. The objective value of a good does not depend on its “popularity”: “The good of knowledge is self-evident, obvious. It cannot be demonstrated, but equally it needs no demonstration. This is not to say that everyone actually does recognize the value of knowledge […]” (Finnis 1988, 65). On the other hand, even if it were obvious that “all men seek knowledge”, this would not automatically prove that knowledge is a good: “No value can be deduced or otherwise inferred from a fact or set of facts. Nor can one validly infer the value of knowledge from the fact (if fact it be) that “all men desire to know”. The universality of a desire is not a sufficient basis for inferring that the object of that desire is really desirable, objectively good” (op. cit., p. 66).
- 16.
Whoever asserts that “knowledge is not desirable” considers his statement to be true. He is trying to convey a philosophical truth. That is, he considers truth, knowledge, to be worthwhile. Therefore, his statement is self-defeating.
- 17.
Hittinger (1987), 8.
- 18.
On the ontological “queerness” of entities such as “duties”, “intrinsic goods”, “values”, etc., see Mackie (1977), 38–42.
- 19.
Veatch (1985, 56). In a similar sense: “[T]he […] element of a telos or end or purpose would seem indissociable from any notion of law as a rule of action. How otherwise could one possibly make sense of the idea of a law’s being a norm or standard of the way something ought to be done, save by reference to the end to be accomplished by the action? […] What other ground could there be for someone’s specifying a rule to be followed […] than in terms of the end to be accomplished by the action?” (Veatch 1985, 59).
- 20.
Veatch (1990), 294.
- 21.
Veatch (1990), 295.
- 22.
Veatch (1990), 297–298.
- 23.
Veatch (1990), 295.
- 24.
“Henry Veatch’s “sharp questions” are directed to those who deny that morals have any basis in nature or the facts of nature; to those who believe in a wall of separation dividing “is” from “ought” and facts from values […]. Veatch’s objections, therefore, are not properly directed to either Germain Grisez or to myself. […] Neither of us has published anything which might reasonably be interpreted, in its context, as involving any such view” (Finnis 1981, 266).
- 25.
“[B]eing aspects of the fulfillment or persons, these goods correspond to the inherent complexities of human nature” (Grisez et al. 1987, 107).
- 26.
Finnis (1988), 34.
- 27.
Finnis (1988), 102–103.
- 28.
“[F]or bad philosophical reasons, we confuse a principle’s lack of derivation with a lack of justification or a lack of objectivity […]” (Finnis 1988, 70).
- 29.
George (1992), 35.
- 30.
- 31.
“[T]here is no process of inference. One does not judge that “I have [or everybody has] an inclination to find out about things” and then infer that therefore “knowledge is a good to be pursued”. Rather, by a simple act of non-inferential understanding one grasps that the object of the inclination which one experiences is an instance of a general form of good, for oneself (and others like one)” (Finnis 1988, 34).
- 32.
“Those who claim that theoretical knowledge of human nature is methodologically prior to basic practical knowledge have things […] exactly backwards” (George 1992, 39). “[T]he basic principles of natural law can all be intelligently grasped without adverting to metaphysical principles concerning the universal relationship between being and good, or about human nature in its relation to divine and cosmic natures” (Finnis 1981, 276).
- 33.
“[W]e [Grisez, Finnis, Boyle, George] have pressed our readers to acknowledge their own grasp of principia naturaliter nota which Aquinas says they have, even though they lack metaphysical or anthropological theories. Only after we have achieved that acknowledgement, and explored its moral implications, do we endeavor to explain how the goods thus acknowledged are aspects of a being which participates in the four orders of created being. This pedagogical order of priorities seems to be more faithful to the content of Aristotle’s and Aquinas’ theories of ethical knowledge” (Finnis 1981, 277).
- 34.
Finnis (1988), 34.
- 35.
- 36.
“Kant does not take Revelation – not even religion – to be the starting point of his investigation. His standpoint is ethical: he purports to ground religion in morality, not the opposite. […] [His will be] A theology based on moral conviction, not on logic or metaphysics” (Aranguren 1986, 112) [my translation]. On the “openness of ethics to religion”, see p. 122 ff.
- 37.
“These postulates are not theoretical dogmas, but presuppositions in a necessarily practical sense [Voraussetzungen in nothwendig praktischer Rücksicht]” (Kant 1968a, 132). But, as argued by Gómez Caffarena, we should not lapse into a “fictionalist” interpretation of the postulates of practical reason. Kant does not mean: man should act as if – the famous als ob – God, the free will and immortality existed (although they don’t actually exist). Rather, Kant is saying: we cannot be theoretically certain about God, the free will and immortality, but we can reach a practical certainty, i.e., we can hope that they are real (which is possible, as speculative reason neither affirms nor denies in these matters), and act according to this hope. It is not self-deception: the “assumption of reality” certainly “occurs in favor of hopeful moral behaviour. But it is an assumption … of reality!” (Gómez Caffarena 1983, 130) [my translation].
- 38.
Kant (1968a), 29.
- 39.
Kant (1968a), 122.
- 40.
Kant (1968a), 125.
- 41.
See Carnois (1973), 74–75.
- 42.
Finnis (1988, 372).
- 43.
Finnis (1988), 406–407.
- 44.
Kant (1968b), 524.
- 45.
Finnis and Martin (2003). Cf. Finnis, J., “Foundations of Practical Reason Revisited”, cit., pp. 127–128.
References
Aranguren, J.L.L. 1986. Ética. Madrid: Alianza (first published 1958).
Black, R. 2000. Introduction: The new natural law theory. In The revival of natural law: Philosophical, theological and ethical responses to the Finnis-Grisez school, ed. N. Biggar and R. Black, 1–28. Aldershot: Ashgate.
Carnois, B. 1973. La cohérence de la doctrine kantienne de la liberté. Paris: Seuil.
Contreras Peláez, F.J. 2007. Kant y la guerra: Una revisión de “La paz perpetua” desde las preguntas actuales. Valencia: Tirant lo Blanch.
Finnis, J. 1981. “Natural law and the “is”-“ought” question: An invitation to professor Veatch”. Catholic Lawyer 26(Autumn): 266–277.
Finnis, J. 1988. Natural law and natural rights. Oxford: Clarendon Press (first published 1980).
Finnis, J., and P. Martin. 2003. Shakespeare’s intercession for love’s martyr. Times Literary Supplement 18(May): 12–14.
George, R.P. 1992. Natural law and human nature. In Natural law theory: Contemporary essays, ed. R.P. George, 31–41. Oxford: Clarendon.
Gómez Caffarena, J. 1983. El teísmo moral de Kant. Madrid: Cristiandad.
Grisez, G. 1965. The first principle of practical reason: A commentary on the Summa Theologiae, 1–2, question 94, article 2, Natural law forum, vol. 10, 168–203. Notre Dame: Notre Dame Law School.
Grisez, G. 1983. The way of the Lord Jesus, Christian moral principles, vol. 1. Chicago: Franciscan Herald Press.
Grisez, G., J. Finnis, and J. Boyle. 1987. Practical principles, moral truth, and ultimate ends. American Journal of Jurisprudence 32: 99–149.
Hittinger, R. 1987. A critique of the new natural law theory. Notre Dame: Notre Dame University Press.
Kant, I. 1968a, Kritik der praktischen Vernunft. In Kants Werke, Akademie Textausgabe, Bd. V, Berlin: Walter de Gruyter (first published 1788).
Kant, I. 1968b, Kritik der reinen Vernunft. In Kants Werke, Akademie Textausgabe, Bd. III, Berlin: Walter de Gruyter (first published 1781).
Mackie, J.L. 1977. Ethics: Inventing right and wrong. Harmondsworth: Penguin.
McInerny, R. 1980. The principles of natural law. American Journal of Jurisprudence 25: 1–15.
McInerny, R. 2000. Grisez and Thomism. In The revival of natural law: Philosophical, theological and ethical responses to the Finnis-Grisez school, ed. N. Biggar and R. Black, 54. Aldershot: Ashgate.
Schaeffler, R. 1979. Was dürfen wir hoffen? Darmstadt: Wissenschaftliche Buchgesellschaft.
Schaeffler, R. 1981. Kant als Philosoph der Hoffnung. Theologie und Philosophie 56: 92–110.
Veatch, H.B. 1985. Human rights: Fact or fancy? Baton Rouge-London: Louisiana State University Press.
Veatch, H.B. 1990. Natural law and the is-ought question: Queries to Finnis and Grisez. In Swimming against the current in contemporary philosophy, ed. H.B. Veatch, 293–311. Washington, DC: The Catholic University of America Press.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2013 Springer Science+Business Media Dordrecht.
About this chapter
Cite this chapter
Contreras, F.J. (2013). Is the “New Natural Law Theory” Actually a Natural Law Theory?. In: Contreras, F. (eds) The Threads of Natural Law. Ius Gentium: Comparative Perspectives on Law and Justice, vol 22. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-5656-4_11
Download citation
DOI: https://doi.org/10.1007/978-94-007-5656-4_11
Published:
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-007-5655-7
Online ISBN: 978-94-007-5656-4
eBook Packages: Humanities, Social Sciences and LawPhilosophy and Religion (R0)