Abstract This introduction to the collection of papers published in this and the next issue of The American Journal of Jurisprudence identifies the symposium’s purpose: to bring contemporary natural law theory, especially in its “analytical Thomist” and “New Natural Law Theory” variants, into conversation with other contemporary ethical, political, and legal theories.
Abstract This paper provides an intellectual–historical reconstruction of New Classical Natural Law theory (Grisez–Finnis–George), arguing that it is inseparable from the late-twentieth-century movement John Haldane termed “analytical Thomism.” The school’s origins lie in the Catholic intellectual milieu of post-war Oxford and its transatlantic parallel. G. E. M. Anscombe, shaped by Dominican mentors and the moral crises of the Cold War and nuclear weapons, revived Thomistic–Aristotelian practical philosophy with analytical rigor. Her essay “Modern Moral Philosophy” (1958) and her classic book Intention (1957) established a research program of contemporary Thomism. A generation later, John Finnis, trained under the legal positivist H. L. A. Hart yet loyal to Catholic teaching, transformed Anscombe’s insights into systematic natural law jurisprudence. His Natural Law and Natural Rights (1980) combined Oxford analytical clarity with practical reasonableness. From the late 1960s, Finnis’s collaboration with Germain Grisez produced an updated traditional Thomism, a version of natural law competitive within mainstream analytical philosophy. The paper introduces two key followers (Haldane and Robert P. George) and a major challenger (Russell Hittinger). It presents this intellectual movement as one of the most cohesive contributions to contemporary moral, legal, and political philosophy.
Abstract At law, certain classes of intentional actions are prohibited, regardless of the motive. Stealing bread is prohibited, even when motivated by hunger. In morality, we should evaluate both the intentions of actions and the motives of agents. We act with an intention but from a motive. Moral reasoning is legalistic to the extent that it focuses on the permissibility of classes of intentional actions, ignoring underlying motives of agents in tokens of action. Sometimes we do the wrong thing for the right reason or the right thing for the wrong reason, making the moral evaluation of agents and their actions irreducibly complex. Absolute or exceptionless norms are important for protecting our most precious values, but we must invent these absolutes in law rather than attempt to discover them in morality.
Abstract Contemporary philosophical debate on technology is vibrant and has acquired a new relevance and urgency considering new advances in technology, especially artificial intelligence. The positions in the debate are quite extreme, in that they give too little or too much consideration to human agency with respect to technology. In this paper, I develop a golden mean approach, based on one of the central tenets of analytical Thomism, namely that reason has a fourfold relationship with order, which gives human agency the proper weight. This way opens the path to more reasonable dealings with technology on both the individual and the social and political levels.
Abstract Several value pluralists, including proponents of the “New Natural Law Theory,” hold that, if each of two options for choice guards or promotes a basic value that the other lacks, the options are incomparable in value overall. Arguments to that effect take for granted the definition of incomparability relied on by philosophers for years—namely, the failure of items to be related by any of the three familiar basic value-comparative relations: better than, worse than, or equal to. This definition assumes that the familiar trio (better/worse/equal) exhausts the ways to be value-comparable. Ruth Chang denies this. She has argued that we’ve missed a fourth way in which two items might be comparable: parity. But Chang has not given any job for parity to play that incomparability could not also play, so she has provided no sufficient reason to override the presumption in favor of the more familiar view that there are only three comparability relations. Establishing as much sheds further light on what it does and doesn’t mean to say that two options are incomparable in value, and why the answers matter to our practical life.
Abstract In this essay, I suggest new natural lawyers can draw on the work of Bernard Lonergan to explain their account of the per se nota. Further, Lonergan’s analysis of the differentiation of consciousness in patterns of experience, realms of meaning, and horizons supplements the differentiation of the four orders of reason so often referenced by the new natural lawyers. With these distinctions, the essay argues that differences among the various theories of natural law are primarily about which order of reason, which pattern of experience, and which realm of meaning is assumed.
Abstract This paper proposes extending New Classical Natural Law Theory to the theory of virtues. After a brief personal recollection, the paper begins, in section II, by presenting some of John Finnis’s ideas on the relationship between natural law and the virtues. Section III suggests that there is an incipient theory of virtue in Finnis’s highly developed work on moral principles and human action. The main part of the paper, section IV, aims to explain why a developed theory of virtue is needed in order to supplement New Classical Natural Law Theory. The reasons are: first, to explain both moral good and evil in general and the specification of human actions as good or evil and as different kinds of human actions in genere moris; and, second, to supplement the methodology of moral reasoning, based on first principles of natural law and the requirements of practical reasonableness, with a way of reasoning about good and evil actions by relating specific act-types to certain kinds of virtues and vices.
Abstract The New Natural Law Theory and the moral philosophy of Alasdair MacIntyre have both contributed to the revival of Aristotelian–Thomistic moral philosophy in the twentieth century, and to bringing the Aristotelian–Thomistic tradition into conversation with contemporary analytic moral philosophy. While New Natural Law Theory and MacIntyre both seek to defend a robust understanding of practical rationality against the emaciated view of practical rationality typical of Hume and his modern heirs, many (including, sometimes, MacIntyre himself) tend to see the two approaches as fundamentally at odds with one another, at least in some respects. In this essay, I would like to challenge this perception, and argue instead that these two approaches are essentially compatible and complement one another in important ways.
Abstract The late Oxford legal philosopher John Gardner noted the “prima facie barbarity” of “deliberately damaging people’s lives” by punishing them. The great natural law theorist John Finnis asks “why a man’s criminal guilt entitles” the state “to do certain acts which would otherwise amount to direct attacks on basic human goods” of a person. Why, indeed?
The idea of law is a focus imaginarius lying beyond the bounds of possible experience but nevertheless structuring that experience. The practices composing a legal order refer to the idea of law, and those references embody assumptions concerning law’s nature. Yet, when we try to combine these various assumptions into a coherent understanding of the idea of law, we find them to be problematic. The resulting puzzles give rise to a philosophical debate concerning law’s nature. The positions adopted within that debate tacitly inform and structure the scholarly analysis and judicial application of law, for positive enactments and decisions become law only in so far as they take their place within a system that embodies the idea of law. In this way, law proves to be a reflexive enterprise involving inquiry into its own nature. Denials of this reflexivity lead to serious distortions in our understanding of the framework of legal thought. When properly understood, the idea of law proves to be an immanent moral ideal, closely related to ideas of freedom, justice, and civility. Since, in the circumstances of the real world, the ideal is never fully attainable, law is always touched, to a greater or lesser extent, by the “pathos of incompleteness.”
My topic in this essay will be the seventh and final basic good enumerated by John Finnis in Natural Law and Natural Rights. The seventh good, the good of “religion,” receives a twofold analysis: first in the discussion of all the basic goods, where it is equated with a stirring of the soul by which the human being as a human being is lifted out of the prosaic everyday world and wonders about their place in the universe, and second where it is unfolded as an “outrider” in the harmony one has or seeks with the Creator of all that is. Finnis—or anyone—pays a price for raising such issues, in that potential readers may lose interest or patience in the book, and put it down without reading what it has to say about other subjects. We may call this “the price of entry” to the book’s other doctrines. By postponing religious or theological subjects to his book’s final chapter, Finnis hoped to avoid this high price, but in doing so he faces other trade-offs.
In the final main section of his essay “Kelsen Visited,” H. L. A. Hart grappled with some of Hans Kelsen’s reflections on deontic conflicts and logical contradictions. Hart’s discussion was not entirely free of missteps, but most of his criticisms of Kelsen’s lines of thought are sound. As for Kelsen, his frequently deep confusion on the matters of deontic conflicts and logical contradictions was accompanied by some deep insights. Although this article is philosophical rather than a contribution to intellectual history, it will engage to some degree with the ruminations of each of these great legal philosophers on this matter.
It is a commonplace that the legal realists argued that law is deeply indeterminate. According to this familiar account, the legal realists insisted that legal materials don't constrain judges, who are therefore free to decide cases in almost any way they want. An influential argument has argued that the only way to explain this view is by showing that the legal realists presupposed a legal positivist theory of law. This essay offers a different understanding of the relationship between realism, positivism, and determinacy, challenging this interpretation of the realists as both historically false and as philosophically unwarranted. I provide many examples showing that the prevailing view that the legal realists thought law was deeply indeterminate is mistaken. As part of this argument, I contend that one of the best-known realist articles has been widely misunderstood. Typically read as showing that judges are free to interpret statutes in almost any way they want, its actual message was almost the exact opposite, seeking to show how law can be determinate despite competing theories of interpretation.
This article highlights navigational guidance that Professor Gerard Bradley’s recent writings on the role of moral reasoning in constitutional adjudication provide for the next generation of jurists engaged in constitutional adjudication. Bradley’s most promising prescriptions relate to judicial recognition of the real goods of real persons as supplying the principled rational basis for the ongoing enforcement of enacted laws.
Formalist thinking and legal doctrine are regaining respectability and scholarly attention, and not only in the circles of the New Private Law. Modern-day legal realists readily acknowledge the importance of legal doctrine as a systemic constraint, just as their forebears did. Substantial disagreement remains, however. Notwithstanding their conciliatory rhetoric, legal realists hold steadfastly to the critique of doctrinal reasoning as formalist “window dressing,” castigate exercises in fruitless abstract taxonomy, and emphasize the indeterminacy of judicial decision-making at the appellate level. This leaves legal theory to deal with a two-fold conundrum: First, if “judges can[not] really decide difficult cases with the tools of formalism,” and if doctrine cannot effectively rein in decision-making at the appellate level, then how can doctrine cabin the unlimited exercise of judicial power? Second, if ideology is pervasive and “constrained activist [judges] pu[t] a great deal of time and energy into working out a legal interpretation” to adjust the law’s meaning to better fit their policy preferences, how can members of the judiciary “submit to it if [they] can’t come up with a good legal argument” supporting their goals? Addressing these issues, this article sketches a formalism for realists. To this end, it articulates a novel perspective on how legal doctrine comes into play in legal decision-making. Borrowing from artifact theory, the article characterizes legal doctrine as a public norm that legal officials must consider. Formalist reasoning as an expression of legal doctrine structures the creation of legal artifacts and thereby restricts the extent to which individual preferences of judges shape the outcome. This article offers an analysis that does what realists ask for, namely, it explains why it is sometimes legitimate to say that a court was wrong in terms of the law. The approach presented in the article allows for change over time and thus is able to address the realists’ critique of formalism’s (supposed) failure to account for law’s nature as a social and dynamic process. As the article also explains, the flip side, unavoidably, is indeterminacy. Its aim is not so much to offer the next round on the general issue of “determinacy” vs. “indeterminacy.” Instead, the article tries to approach the more granular question of how the law may—within limits—restrain, presuming that it does so, even from a realist perspective.
This article confronts American Legal Realism with critiques by two German authors writing in the first and second halves of the twentieth century, namely, Hermann Kantorowicz and Josef Esser. Both authors were among the most progressive legal scholars of their generation, were intimately familiar with the writings of American legal realists, and shared many of their insights and beliefs. Nonetheless, neither Kantorowicz nor Esser self-identified as a legal realist. On the contrary, each was ultimately critical of realism and refuted it as a legal theory. This article analyses their arguments and looks for the deeper reasons behind their surprisingly critical stances vis-à-vis Legal Realism. It suggests that the cogency of legal realist arguments and methods crucially depends on philosophical beliefs present as a cultural background within legal discourse. In the German context, different expressions of belief in law as a normative system might have been crucial for the rejection of Legal Realism even by some of the most progressive, most sympathetic authors. For the American context, this insight sheds new light on the cogency, as well as the limits, of realist arguments and methods.
For the past several decades, realists and formalists have been deeply at odds. They have, however, mostly been talking past one another, with each side trading in caricature of the other. In this article, I aim to show the benefits of a more tempered approach; in my case, the approach of a formalist to realist thought. I closely examine the unreconstructed legacy of realist thought, focusing on realist ideas that have proven especially influential. Along the way, I uncover some surprising affinities and compatibilities between realist and formalist thought. Acknowledging that it is hard to take the measure of realism, I argue that we can credit it with eight important ideas about law. For each of these, I also locate correlative unsound ideas. That these pairings of ideas—sound and unsound—travel together has made it difficult to understand and to critically evaluate realism. This, in turn, has made it difficult for realists and formalists to join one another in productive debate. It is all too easy for those sympathetic to realism to see only the sound ideas, or to be swayed by rhetorically powerful expression of unsound ones. Likewise, it has been all too easy for formalists to see only the unsound ideas. This article aids in the disentanglement of the many strands of realist thought and hence furnishes a basis for more discriminate assessment of the relative merits of realism and formalism, respectively.
