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John Finnis Notes

This document summarizes John Finnis' discussion of unjust laws from his work "Natural Law, Natural Rights." [Finnis argues that] the primary concern of natural law theory is to explore practical reasonableness and the requirements of the common good. [Finnis identifies] three types of injustice that can occur in law: 1) when rulers exploit their authority for personal gain rather than the common good, 2) when office-holders abuse their power by making stipulations beyond their jurisdiction, and 3) when the rule of law is not followed, violating people's dignity and equal opportunity under the law.

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410 views2 pages

John Finnis Notes

This document summarizes John Finnis' discussion of unjust laws from his work "Natural Law, Natural Rights." [Finnis argues that] the primary concern of natural law theory is to explore practical reasonableness and the requirements of the common good. [Finnis identifies] three types of injustice that can occur in law: 1) when rulers exploit their authority for personal gain rather than the common good, 2) when office-holders abuse their power by making stipulations beyond their jurisdiction, and 3) when the rule of law is not followed, violating people's dignity and equal opportunity under the law.

Uploaded by

Aaron Po
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Aaron Po

PHIL 2821F
Introduction to the Philosophy of Law
Chapter I – Natural Law

John Finnis – Selections from Natural Law, Natural Rights

Chapter XII: Unjust Laws


XII.1: A Subordinate Concern of Natural Law Theory
• The primary concern of Natural Law theory is to “explore the require-
ments of practical reasonableness in relation to the good of human beings
who, because they live in community with one another, are confronted with
problems of justice and rights, of authority, law, and obligation.”
• The ultimate basis of authority according to Finnis, is in the fact “they have
the opportunity, and thus the responsibility, of furthering the common good by
stipulating solutions to a community’s coordination problems.
• Finnis argues that typically (but not necessarily) the source of the oppor-
tunity, and with that responsibility of authority is in the fact “that they are
designated by or under some authoritative rule as bearers of authority in
respect of certain aspects of those problems”
• Finnis argues that “authority is useless for the common good unless the
stipulations of those in authority (or which emerge through the forma-
tion of authoritative customary rules) are treated as exclusionary reasons,
i.e. as sufficient reason for acting notwithstanding that subjects would not
themselves have made the same stipulation and indeed considers the actual
stipulation to be in some respect(s) unreasonable, not fully appropriate for
the common good”

XII.2 Types of Injustice in Law


• “Firstly, since authority is derived solely from the needs of the common
good, the use of authority by rulers is radically defective if they exploit their
opportunities by making stipulations intended by them not for the common
good but for their own or their friends’ or party’s or faction’s advantage, or
out of malice against some person or group.”
– Despite this, one must not be deflected that “most legal systems do not
permit the exercise of ‘constitutional’ powers to be challenged on the
ground that that exercise was improperly motivated.”
• “Secondly, since the location of authority is normally determined by au-
thoritative rules dividing up authority and jurisdiction amongst separate
office-holders, office-holders may wittingly or unwittingly exploit their op-
portunity to affect people’s conduct, by making stipulations which stray

1
beyond their authority. [An] ultra vires act 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 nor-
mally is greatly to the common good (even when it restricts the efficient
pursuit of other objectives); it is an important aspect of the commutative
justice of treating people as entitled to the dignity of self-direction (see X.4),
and of the distributive justice of affording all an equal opportunity of un-
derstanding and complying with the law.”
•

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