Jurisprudence
January 2101 newsletter
Adam Gearey
Reading Natural Law and Natural Rights IV
Natural law and Injustice
This month‟s posting continues our discussion of John Finnis‟ theory of natural law.
Finnis deals with one of the major concerns of natural law theory. He argues that
natural law does not assert that an unjust law is not a law
“The ultimate basis of a ruler‟s authority is the fact that he has the opportunity, and
thus the responsibility, of furthering the common good by stipulating solutions to a
community‟s co-ordination problems…Normally…the immediate source of this
opportunity and responsibility is the fact the he is designated by or under some
authoritative rule as bearer of authority in respect of certain aspects of those
problems…In any event, authority is useless for the common good unless the
stipulations of those in authority…are treated as exclusionary reasons, i.e. as sufficient
reason for acting notwithstanding that the subject would not himself have made the
same stipulation and indeed considers the actual stipulation to be in some respect(s)
unreasonable…” (John Finnis, Natural Law and Natural Rights (Oxford: Clarendon
Press, 1996),351).
However, does injustice “affect the obligation to obey law?” What could this mean?
There are a number of senses:
i.
ii.
iii.
iv.
Liability to be subjected to sanctions in the event of non compliance;
legal obligations in the intrasystemic sense—in other words- conformity to the law
is socially necessary is a framework principle insulated from the rest of practical
reasoning;
legal obligation in the moral sense (or the moral obligation that follows from the
sense above);
a moral obligation deriving from some collateral source
i.
ii.
iii.
Is the least interesting sense—and the sense perhaps criticised by Austin as
“stark nonsense” when he impugned those who argue that human laws that
are in conflict with divine laws are not law. From a common sense position,
if you break a law, you will be punished for that breach, even if you feel
there was no obligation to obey the law.
Is more interesting- Finnis argues that legal systems are not infact
“insulated” from practical reasoning that derives not from the authority of
the legal system, but from other compelling sources, such as arguments
about the public good or justice (the overturning of the common law
exception to rape in marriage, for example)- this may lead to a stipulation
being judged unjust and inapplicable- however- whether or not a rule is
unjust or just will depend on the definitive ruling of a supreme court
This is expanded in the following way: “[g]iven that legal obligation
presumptively entails a moral obligation, and that the legal system is by and
large just, does a particular unjust law impose on me any moral obligation
to conform to it?”.
External Undergraduate Laws Programme, University of London
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This is the question that positivist have seen as inappropriate to jurisprudence.
Needless to say, Finnis does not agree. He goes on to argue that:
“All my analyses of authority and obligation can be summed up in the following
theorem: the ruler has, very strictly speaking, no right to be obeyed; but he has the
authority to give directions and to make laws that are morally obligatory and that he
has the responsibility of enforcing. He has this authority for the sake of the common
good…Therefore, if he uses his authority to make stipulations against the common
good, or against any of the basic principles of practical reasonableness, those
stipulations altogether lack the authority that they would have by virtue of being his.
More precisely, stipulations made for partisan advantage, or (without emergency
justification ) in excess of legally defined authority, or imposing inequitable burdens on
their subjects, or directing the doing of things that should never be done, simply fail, of
themselves, to create any moral obligations whatever.” (360)
There are certain caveats: an enactment that is for the common good and just should
be deprived of moral authority because it was enacted with partisan motives; the
distributive injustice of a law does not exempt from moral obligation those who are not
unjustly burdened by that law:
…my response to the question in the third sense corresponds to the classical position:
that for the purpose of assessing one‟s legal obligations in the moral sense, one is
entitled to discount laws that are „unjust‟, such laws lack the moral authority that in
other cases comes simply from their origin. In this sense, unjust laws are not laws.”
(ibid)
Finnis now addresses the fourth sense- disobeying a single law may weaken the law as
a whole with negative consequences for the public good- “does this collateral fact create
a moral obligation?” (361). The obligation to comply with the law is a legal obligation in
a moral sense- because it is not founded on the “good of being law abiding”, but on the
desirability of not rendering ineffective the just parts of a legal system- “Hence it will
not require compliance with unjust laws according to their tenor or legislative intent,
but only such degree of compliance as is necessary to avoid bringing the law as a whole
into contempt. The degree of compliance will vary according to time, place and
circumstance; in some limited cases (judges and administrative officials) the morally
required degree of compliance may amount to full or virtually full compliance, just as if
the law in question had been a just enactment.” (361)
So, if an unjust stipulation is, in fact, homogenous with other laws in its formal source,
in its reception by courts and officials, and in common acceptance, the good citizen
may (not always) be morally required to conform to that stipulation to the extent
necessary to avoid weakening „the law‟, the legal system as a whole. The ruler still has
the responsibility of repealing rather than enforcing his unjust law, and in this sense
has not right that it should be conformed to. But the citizen, or official, may meanwhile
have the diminished, collateral, and an important sense extra legal, obligation to obey
it.” (362).
External Undergraduate Laws Programme, University of London
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