John Finnis "natural Law Theory"

Jurisprudence final draft


Topic- John Finnis “Natural law theory”

Submitted to-:
Mr.Ahemad Ali Khan
Subject teacher
Constitutional law II
Submitted by-:
Kundan kumar ojha
B.A.LL.B 4th semester
Roll no-883027

 
Contents
JOHN FINNIS AN INTRODUCTION 3
FINNNIS NATURAL LAW 3
FINNNIS IDEA OF BASIC GOODS 4
FINNIS CHECK OF PRACTICLE REASONABLENESS. 5
FINNIS ON INJUSTICE 6
CONCLUSION 7



Topic- John Finnis “Natural law theory”

KUNDAN KUMAR OJHA
B.A.LL.B 4TH SEM.
ROLL NO-883027

JOHN FINNIS AN INTRODUCTION

FINNIS is one of the most prominent living legal philosophers. His work, Natural Law and Natural Rights, is regarded as one of the definitive works of natural law philosophy. He was born in 1940 and at present He is Professor of Law at University College, Oxford and at the University of Notre Dame, teaching jurisprudence, political theory, and constitutional law.

FINNNIS NATURAL LAW
Natura law in the context of ethics politics law and jurisprudence simply means the set of true proposition indentifying basic human goods general requirement of right choosing and the specific moral norm deducible form those requirements as they bear particular basic goods . We can also say that a natural law theory is nothing other than a theory of good reason for choice. According to John FINNIS, natural law is “the set of principles of practical reasonableness in ordering human life and human community. For those unfamiliar with the term natural law FINNIS is referring to what has been described as moral standards that can justify and guide not only political authority, but also make legal rules rationally binding and shape concept-formation in descriptive social theory. While this is by no means a new endeavor, natural law theory has seen a resurgence of interest5 after a long period of dominance and a relegation to disfavor.
Unlike fuller’s concept of procedural natural law the theory of natural rights advanced by john FINNIS falls unequivocally into the category of natural law theory. Indeed in presenting his case FINNIS places conderable emphasis upon the analysis advanced by St. Thomas Aquinas. In this regard FINNIS states that the principles of natural law are “traced out not only in moral philosophy or ethics and ‘individual conduct’, but also in political philosophy and jurisprudence, in political action, adjudication, and the life of the citizen. He further asserts that the principles of natural law can explain the obligatory force of positive laws even when such laws cannot be deduced from the principles of natural law. The theory that FINNIS describes in Natural Law and Natural Rights has come to be considered the most authoritative modern statement on natural law9 and with the Supreme Court of the United States directly addressing the issue of morality in cases such as Lawrence v. Texas. the purportedly most authoritative theory on the interaction between law and morality thus deserves some attention. FINNIS’ theory of natural law is divided into three distinct parts each with its own purpose. FINNIS argues that there are first a set of notions that “indicate the basic forms of human flourishing as goods to be pursued and realized” that are known to everyone who thinks about how they should act. These principles are buttressed by “a set of methodological requirements of practical reasonableness” that distinguish between sound and unsound practical thinking and provide the criteria for distinguishing reasonable and unreasonable acts. Following these methodological requirements allows one to distinguish between acting morally right or morally wrong and to formulate a set of general moral standards. in order to determine what are the basic goods which human beings by reason of their narure value FINNIS advances certain generalization about human societies which lead to a mmodel of what things most people on most societies may be considered to think important.
FINNNIS IDEA OF BASIC GOODS
FINNIS argues that despite the very considerable cultural diversity of human societies, there are certain basic concerns which are preponderantly found in a survey of the literature of the anthropological instigations. On the basis of these general concerns FINNIS sets out a model of seven basic forms of human good these are –
a) Life meaning not merely existence but also the capacity of development of potential within the category of life and its preservation FINNIS includes procreation.
b) Knowledge not only as means to an end but as good in its own right, which improves life quality. “reference to the pursuit of knowledge makes intelligible… any particular instance of human activity and commitment involving such pursuit P;ay in essence the capacity for recreational experience and enjoyment. Aesthetic experience in some ways related to play but not necessarily so this is broadly a capacity to experience and relate to some perception of beauty.
a) Socianility or friendship ,occurring at various levels but commonly accepted as good aspect of social life. One might add that this good would seem to be an essential aspect of human conduct as social creatures politikon oom as Aristotle put it
b) Practical reasonableness essentially the capacity to shape ones conduct and attitudes according to some intelligent and reasonable thought process.
c) Religion which is not limited to although it clearly includes religion in ithe formal sence of faith and practices centered upon some sense of the divine. The reference here is to a sense of the responsibility of human beings to some greater order than that of their own individuality.

FINNIS CHECK OF PRACTICLE REASONABLENESS.

One of the great obstacles to any satisfactory completion o f lists of goods or indeed rights in general context lies in the lurking danger of cultural specificity. What is accepted as appropriate in one culture may well not be in another. In order to determine how the goods are to be applied as criteria of evaluation in the context of the operation of real society it is obviously necessary to set up a structured scheme of assessment. This is done through the medium of tests of practice reasonableness which may provide guidance as to what in practice is to be considered tight or wrong in applying the basic goods. The aim of the tests of practice reasonableness is related by FINNIS to be broad methodology of classical naturalist thought in relating moral and ethical criteria to action and consequences. Thus the actual test which FINNIS sets out is
• A coherent life plan meaning a set of harmonious intentions and commitment by reference to which one intends to arrange one’s life.
• No arbitrary preference are to be made amongst values that is to say that a person may not individually choose to aspire to a particular good but that confers no entitlement to regard that good as devalued for example in reference to wishes to others it unduly restricts the range of goods to be considered.
• There must be no arbitrary preferences amongst persons. This requires little comment in modern contest. The last would manifestly exclude for example the varieties of irrational discrimination upon basis of race gender, or other such criteria.
• The significance of efficiency of within reasonable limits meaning that the efficient pursuit of goals and avoidance of harm is a real factor in the application of moral considerations but it cannot be treated in itself as a supreme or central principle.
• Respect for every basic value in every act meaning ultimately that no choice should be made which directly contravenes any basic good.
• Consideration for the common good finis treats this as more or less obvious and indeed as such a requirement would seem inseparable from an assessment of moral relation within a social context.
• People should follow the dictates of their conscience even if that conscience is unbeknown to the actor in error.
FINNIS argues that the tests of practical reasonableness in combination with the basic goods represent the structure of natural law analysis . He also argues that the combination of the basic goods and the ttests of practical reasonableness would enable a society to obviate gross injustice and that they also provide a model of basic rights.

FINNIS ON INJUSTICE
FINNIS identifies four types of injustice in law.
• First, according to FINNIS, the main responsibility of the ruler is to further the common good. A ruler's exercise of power is radically defective if a ruler exploits his opportunities by making stipulations intended by him not for the common good but for his own or his friends' advantage, or out of malice against some person or group.
• Secondly, except in "emergency" circumstances in which the law (even the constitution) should be bypassed, an office-holder who acts beyond his authority is an abuse of power and an injustice to those treated as subject to it.
• Thirdly, the exercise of authority in conformity with the Rule of Law is for the common good. Therefore, the exercise of power otherwise than according to manner and form is an abuse and an injustice unless those involved consent, or ought to consent, to an accelerated procedure.
• Fourthly, the stipulated may be distributive unjust by appropriating some benefit to a class not reasonably entitled to it, while denying it to other persons; or by imposing on some a burden from which others are, on no just criterion, exempt.
CONCLUSION
In my conclusion part I want to say FINNIS idea of natural law is really interesting. His idea about general good where he says a general good may be derived from particular experience or appreciations of good which is not say that what people in fact want they always ought to have is such an pro society and in people welfare idea. But on the matter of selection of basic goods I am also somewhat disagree that it not possible to select any basic goods without given priority to any other goods, although he has given some test of practice reasonable in order to selection of basic goods.
BIBLIOGRAPHY
Penner.J.e, Maccoubrey and white’s textbook on jurisprudence
Clevaland state law review
John Finnis, Natural law and Natural rights.