Grounds of Law and Legal Theory: A Response
Essay by review • January 1, 2011 • Research Paper • 9,739 Words (39 Pages) • 3,115 Views
Grounds of Law and Legal Theory: A Response
JOHN FINNIS
An edited version of this response to five amicable critics at a 2007 conference on Professor
Finnis's work in legal philosophy is forthcoming in Legal Theory 13 (2008) 315-344
University of Oxford Faculty of Law Legal Studies Research Paper Series
Working Paper No 06/2008 February 2008
This paper can be downloaded without charge from the
Social Science Research Network electronic library at:
http://papers.ssrn.com/Abstract=1094691
An index to the working papers in the
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Revision 15 Dec 07
1
Grounds of Law and Legal Theory: A Response
John Finnis
These responding reflections follow broadly the order of discussion in Natural Law &
Natural Rights and Aquinas: Moral, Political, and Legal Theory, and often hark back to
those and other previous efforts of mine. But I hope they also move things along a bit.
I
In my first Oxford paper in legal and moral theory, delivered in debate with
Philippa Foot,1 I explored Aristotle's theory of central cases and focal meanings a little
more fully than I did ten years later in NLNR. Hart had said, and had worked on the
basis, that "the diverse range of cases of which the word Ð''law' is used are not linked by
Ð'... simple uniformity, but by less direct relations Ð'- often of analogy of either form or
content to a central case."2 He had referred us to Aristotle's discussion of the homonymy
or, in its broad sense, "analogy" of health. But he had quite overlooked how Aristotle
applies his concept of focal meaning to the concepts used in the philosophy of human
affairs, concepts such as citizenship, constitution (politeia), political community (polis)
and friendship. I took up, as exemplary, Aristotle's discussions of friendship, both in the
Eudemian (VII.2) and the Nicomachean Ethics (VIII.2), and searched out Aristotle's
reasons for treating as central the friendship which finds lovable simply the friend, not
simply the pleasure or the profit the relationship yields.3 I summarized my exposition of
those reasons:
Pleasure-seeking and business relationships can only be called friendships ins os
far as they preserve in a qualified form the objects directly and unreservedly [and
therefore with stability] cultivated in friendship of the first [and central] caregory:
1 On Foot's response to my paper, and her later far-reaching retreat from the position she was
defending in those days, see Finnis, "Foundations of Practical Reason Revisited," Am. J. Juris. 50
(2006) 109-131 at 121 n. 24.
2 H.L.A. Hart, The Concept of Law [CL] (1961), 79.
3 Finnis, "Reason, Authority and Friendship in Law and Morals" in Jowett Papers 1968-1969
(Oxford, Blackwell, 1970), 101-124 at 107-108.
Revision 15 Dec 07
2
mutual benevolence and aid and comfort, pleasant intercourse and likemindedness.
Aristotle expresses this, rather too starkly, in the Eudemian Ethics, when
he says that the focal meaning of a term concerns the thing the definition of which
is implied in the definition of all the other things bearing the same name.
Ð'...Aristotle's point can perhaps be grasped by reflecting that friendship of the first
category will ordinarily bring each friend pleasure and advantage for himselfÐ'...
though these pleasures and advantages are not what he seeks in the relationship.
So he can appreciate what it is to find pleasure and advantage in human
communication; but the man who seeks only his own pleasure or advantage in
such communication is not thereby enabled to appreciate what it is to love
another for his own sake.
Thus for Aristotle the central case of friendship is the friendship of the
spoudaioi, the mature men who can reasonably find each other lovable simply as
such; the central case of the polis is the spoudaia polis; and the definition of
citizenship applies centrally to the spoudaioi who are citizens of the spoudaia
polis (Pol. 1275a33, 1332a33).4
The last two sentences in that passage are re-articulated in the only discursive footnote in
NLNR's first chapter:
Behind Aristotle's cardinal principle of method in the study of human affairs Ð'-
viz. that concepts are to be selected and employed substantially as they are used in
practice by the spoudaios (the mature man of practical reasonableness)Ð'...-- lies
Plato's
...
...