Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, January 10, 2019

Prof. Marcus Cole to be Dean of Notre Dame Law School

Announcement here. This is a great "get" for Notre Dame, and a testament, I think, to the importance of our aspiration, mission, and calling to be a meaningfully and interestingly great Catholic law school.  Stay tuned!  

January 10, 2019 in Garnett, Rick | Permalink

Wednesday, January 9, 2019

Allison Berger on Princeton, the Madison Program, and Viewpoint Diversity at Princeton and Beyond

When Allison Berger was graduated from Princeton, she was honored by the University with a "Spirit of Princeton" award for her outstanding contributions to campus life. Ms. Berger returned to Princeton recently to participate in a panel discussion hosted by the James Madison Program in connection with the University's "She Roars!" alumnae reunion. Other speakers at the reunion included Supreme Court Justices Sonia Sotomayor and Elena Kagan. I am posting Allison's remarks here because I believe she makes important points that are relevant to campus life everywhere--not just at Princeton. -- Robert George

Remarks of Allison Berger

    I was not planning to attend "She Roars!" until the Madison Program stepped in to make this weekend representative and inclusive of Princeton women of all political beliefs, so the Madison Program’s efforts to host this morning's events are already one example of why Princeton is so special.

And this is really a very special treat for me personally - the Madison Program was a primary reason that I applied to Princeton as my first choice college, remarkably now five years ago, and the first “out of class” lecture that I attended my freshman fall was a lecture hosted by the Madison Program with Philip Hamburger asking whether administrative law is unlawful. So I feel like things have really come full circle with being here today.

I want to start by talking about a few ways in which Princeton is not special when it comes to viewpoint diversity. Figure it is best to get the bad news out of the way first and I also think these shortcomings serve to highlight just how impressive and important the strengths Princeton does have are.

The fact of the matter is that on a social and interpersonal level among students, it is not easy to be an outspoken conservative. There are many people who will not be very nice to you at all. A few examples.

My freshman spring, I wrote an opinion piece for our campus conservative magazine, The Princeton Tory. It happened to be about the importance of open and civil discourse on college campuses. A few days after the magazines were distributed to every dorm room on campus, I came back to my room on the third floor of Forbes College and found a copy of the Tory shoved through and hanging off the handle of my doorknob. I pulled it off the knob and found that it was open to the article I had written. To be clear about what happened here, someone read or saw my article in the Tory and in response decided to look up where I lived on campus and send some sort of message to me by piercing my article through my door handle.

Two years later, during my junior spring, I was confronted by a belligerent, intoxicated male student while standing on Prospect Avenue outside my eating club. He looked at me and said “hey, you’re that girl who does all the conservative bleep,” and in a further expletive ridden tirade, yelled at me about how everyone hates me and all the conservatives on campus and that we should just shut up and go away. Substitute any other identity for “conservative” in that stream of abuse and that individual could very well have found himself the subject of a diversity and equity investigation.

In the Princeton ‘meme’ Facebook group, which is a collection of student-generated images captioned with inside jokes about campus life, conservative events and groups I was involved with were the subject of ridicule on at least four occasions, two times of which my full name appeared in the post.

Sometimes students would get into big Facebook political debates, spanning hundreds of comments, typically prompted by a conservative student posting an opinion noncontroversial to at least 50% of America but that was wildly disturbing to most students in the Orange Bubble. On more than one occasion during these online debates, students from the campus left wrote that they were going to screenshot and save the comments that conservatives posted with the threat they would forward the comments to future employers or reporters if anyone ran for or was nominated for public office. So don’t be surprised if 36 years from now, scribbles in high school yearbooks have been replaced by the Facebook comment wars waged by procrastinating Princetonians.

And the disturbing examples continue, from concerted and coordinated efforts by progressive upperclassmen to hose [exclude, black ball] conservative underclassmen from their eating clubs simply for the sin of speaking openly about their views to the vicious ad hominem attacks and accusations of racism or sexism hurled against students who publish conservative articles in campus publications. And there are many more examples but which are not my story to tell.

These things get to you. It is very upsetting to be called a racist or a sexist, or in my case as a woman, a traitor to my gender. The result is that there were many instances during my time at Princeton when my conservative friends and I would be discussing issues and someone would say they wanted to post something on Facebook or write an article or make a certain point at dinner, but in the next breath add that it was not worth dealing with the outrage that would follow or the risk to their campus reputation as simply a good person.

This is bad. And by the way - many people in the broader conservative mediasphere often dismiss campus leftists as “snowflakes” who cannot handle engaging with opposing views. But I don’t think this gives these students enough credit for what their goals are. Yes many demonstrate an inability to engage substantively and respectfully with different opinions, but many also demonstrate zero interest in doing so. Their goal is rather to intimidate conservatives into staying quiet and not adding their voices to the marketplace of ideas, where they could very well change some hearts and minds.

The Princeton administration and all University stakeholders should care about fixing this. The University is fundamentally failing in fostering free and open discourse if the learning that is meant to take place here in and out of the classroom is not as diverse and robust as it could be because some conservatives are too intimidated by the social repercussions that result from voicing their opinions.

After the 2016 presidential election, this campus went into a state of shock, like most campuses around the country did. My classmates could not believe that Donald Trump had won, most likely because they had never talked to or heard of anyone planning to vote for Trump. I never heard students who voted for Trump tell anyone other than a handful of like-minded friends that they had done so, let alone have a full and robust discussion about why. So it is no wonder that students were so shocked when Trump won. And no wonder it was so easy for many of them to respond by characterizing all Trump voters as white supremacist deplorables, rather than including the guy or girl who lives on your floor, brushes his or her teeth next to you each morning in the hall bathroom, and is also concerned about lowering taxes, protecting the unborn, and nominating originalists to the Supreme Court.

Now here’s the good news. The situation I just described could be worse. A lot worse. And it is a lot worse at most other universities around the country. While the treatment of Princeton conservatives is not fair, not right, and not pleasant, to my knowledge it has never turned violent. That seems like a low bar but it is a bar that Middlebury Professor Allison Stanger, still suffering the effects of injuries sustained when Charles Murray spoke at Middlebury in March 2017, would wish her campus had met. To my knowledge there has never been a speaker prevented from speaking on Princeton’s campus or shouted down when they arrived. Berkeley and Brown are among the institutions that have had such incidents.

So despite all of the social challenges I mentioned, there is a strong and vibrant conservative minority at Princeton and there is a strong and vibrant contingent of liberal students who engage respectfully and substantively with conservatives and maintain the basic assumption that we are decent people of goodwill.

Why is it that Princeton has succeeded in this regard when so many of our peers have failed?

One of the answers is Professor George and the James Madison Program. Professor George and the scholars he brings to campus through the Visiting Fellows program serve as excellent role models to campus conservatives of the best way to discuss our views in a respectful and courteous way. Professor George was always available as a mentor and guide to offer advice about the best way to respond to difficult campus events, which helped Princeton conservatives raise our game and go high when the progressives went low.

The lectures that the Madison Program hosts always feature robust Q&A sessions and provide an example to all students, conservative and liberal alike, for how to grapple with difficult issues in a thoughtful way. These lectures on American ideals and institutions also serve as an important reminder that celebrating the achievements of oft-vilified “dead white men” like Madison, Jefferson, and Hamilton is still a worthy and indeed essential academic pursuit.

The Madison Program also serves a social and community building function. Some of my favorite afternoons and evenings as an undergraduate were spent attending one of the teas or dinners that the Madison Program hosted with visiting speakers or scholars. These were attended by students of all backgrounds, class years and political beliefs and were another way for students to connect and engage. I am not one to believe in so-called “safe spaces,” but this campus should be welcoming and respectful of all students, and the work of the Madison Program is essential to ensuring that Princeton ‘be made safe for discourse,’ to borrow the phrasing of the also vilified Woodrow Wilson.

The example the Madison Program sets has been spreading around campus and is best exemplified in the book selection that Professor Eisgruber made for this year’s “pre-read,” a tradition he began of assigning each incoming freshman to read a book over the summer that would be discussed during Orientation. This year’s book, titled “Speak Freely,” is by Princeton Professor Keith Whittington and argues for the importance of open discourse. For the first time, the pre-read was distributed to all Princeton students, not just the incoming freshmen, which reflects that President Eisgruber understands how important this is to the lifeblood of the University. In my opinion, this should be the pre-read book every year. If tradition dictates that a new book be chosen each year, it should be replaced by a session during Orientation on the importance of campus discourse. I have to say, I was a Peer Academic Advisor for 3 years and so was involved with Orientation each of those years. It is a busy week but if the school can set aside time for all students, including religious and abstinent students, to learn how to respectfully ‘exile’ their roommate for the night, it can also set aside time for all students to learn how to respectfully engage their peers in discourse for the rest of their lives.

In closing, I would sum up my time as an outspoken Princeton conservative by saying what doesn’t kill you makes you stronger. There were some very unpleasant times, but many more incredibly rewarding ones, like one day last year when a freshman came up to me while I was walking to class, introduced himself, and told me that I was the reason he had decided to attend Princeton, because he had heard me speak at a debate our campus political union, Whig-Clio, held during visiting weekend and wanted to attend a school where people felt free to speak their minds like I had.

I left college as conservative as I was when I arrived but now even more confident in why I hold the opinions I do and in my ability to defend and articulate those beliefs. I learned so much from constantly being challenged by people who disagree with me. I can only conclude that it is a real shame that many of my liberal classmates were so successful in preventing themselves from having the same learning experience I did.

January 9, 2019 | Permalink

Tuesday, January 8, 2019

The Achievement of John Finnis

The Achievement of John Finnis

(from John Keown and Robert P. George, editors, Reason, Morality, and Law: The Philosophy of John Finnis)

Robert P. George


“There are human goods that can be secured only through the institutions of human law, and requirements of practical reasonableness that only those institutions can satisfy.”


With these words, John Finnis, while still in his late 30s, began his masterwork, Natural Law and Natural Rights—the book that would not only revive scholarly interest in the venerable, but deeply misunderstood, idea of natural law and natural rights, but also powerfully challenge dominant ways of thinking among philosophers of law and moral and political philosophers in the analytic tradition.[1]

Future intellectual historians will no doubt present the book, together with Professor Finnis’ other philosophical writings, as part of the broad revival in more or less Aristotelian approaches to moral and political thinking that gained prominence beginning in the late 1970s.  And they will be right to do so.  Like Elizabeth Anscombe, David Wiggins, Philippa Foot, Alasdair MacIntyre, and many others, Finnis adopted or adapted Aristotelian methods to overcome the defects of utilitarian and other consequentialist approaches to ethics, on the one side, and Kantian or purely “deontological” approaches, on the other.

Like utilitarians, and unlike Kantians, these thinkers (who can be called neo-Aristotelians) hold that ethical thinking must be deeply linked to considerations of human well-being or flourishing—Aristotle’s eudaimonia.  But such thinking, they maintain, cannot treat the human good as subject to aggregation and calculation in a way that could somehow render coherent and workable a norm directing people to choose the option (or act on the rule) that will, for example, produce the “greatest happiness of the greatest number” or the “net best proportion of benefit to harm overall and in the long run.”  So, like Kantians, they reject the belief that ethics is a matter of technical reasoning (or “cost-benefit analysis”) aimed purely and simply at producing the best possible consequences.  Unlike Kantians, however, they also reject the idea of a purely deontological ethics, with its reduction of moral thinking to the domain of logic.  To be sure, they accept the idea of morality as a matter of rectitude in willing, but they argue that morally wrongful choosing is not merely a matter of inconsistency in thought.  Rather, immorality consists in choosing (and thus willing) in ways that are contrary to the good of human persons.

A critical moment—one might say the critical moment—in Finnis’ intellectual biography occurred when, nearly fifteen years before the publication of Natural Law and Natural Rights, he encountered the work of Germain Grisez.  It was Grisez’s “re-presentation and very substantial development” of Aquinas’ understanding of the first principles of practical thinking, the understanding articulated in the ‘treatise on law’ of the Summa Theologiae, that made it possible for Finnis to deploy with the rigor rightly demanded in the analytical tradition of philosophy an Aristotelian approach to problems in philosophy of law and moral and political philosophy.[2]  According to Grisez and Finnis, Aquinas correctly understood that the underived (per se nota and indemonstrabilia) first and most basic principles of practical reason direct human choosing and acting towards intelligible human goods—the various irreducible aspects of human well-being and fulfillment which provide more-than-merely-instrumental reasons for action—and away from their privations.  These first principles (and the basic human goods to which they refer in directing our choosing and acting—friendship, knowledge, critical aesthetic appreciation, skillful performances of various types, etc.) are not themselves moral norms.  (Knowledge of them is moral knowledge incipiently, but only incipiently.)  Rather, they guide and govern all coherent practical thinking, whether it results in morally upright action (e.g., visiting an ailing colleague in the hospital simply as an act of friendship) or immoral action (e.g., telling a lie to protect the reputation of a friend who has done something disgraceful).

Moral norms, whether general ones, such as the Golden Rule (“do unto others as you would have them do unto you”), or more specific ones, such as the prohibition of lying even to protect the reputation of a friend, are specifications of the obligation to honor the dignity of all human persons (including oneself) by respecting human well-being in its fullness—i.e., the basic goods of human persons considered integrally.  And so what Grisez and Finnis, who (together with Joseph M. Boyle, Jr.) would later collaborate extensively in developing the moral theory pioneered by Grisez, call “the first principle of morality” enjoins us to choose and otherwise will in ways that are compatible with a will towards integral human fulfillment.[3] And just as the various “basic human goods” are specifications of the first and most general principle of practical reason, which Aquinas formulates as “good (bonum) is to be done and pursued and bad (malum) is to be avoided,” the various moral norms which we strive to live by and transmit to our children are specifications of the first and most general principle of morality. These norms of morality governing human choosing are not mere projections of feeling or emotion, nor are they imposed upon reason extrinsically; rather, they are the fruit of reasoning about the human good and its integral directiveness, and are, in that sense, as Finnis says, requirements of (practical) reasonableness

When Finnis arrived in Oxford in the early 1960s as an Australian Rhodes scholar holding an LL.B. from the University of Adelaide, he was fortunate to be able to write his doctoral dissertation (on the idea of judicial power) under the supervision of Herbert Hart, holder of the University of Oxford’s Professorship of Jurisprudence and the preeminent Anglophone legal philosopher of his time.  Hart had recently published his own masterwork, The Concept of Law.[4]  Much of what Finnis would go on to achieve in legal and political philosophy would be rooted in critical engagement with Hart’s thought.  This was an engagement that Hart welcomed.  Indeed, in his role as editor of the prestigious Clarendon Law Series of Oxford University Press, Hart would commission Finnis (who in the mid-60s became his colleague on the Oxford law faculty) to write Natural Law and Natural Rights, even specifying the title.  While resisting most of Finnis’ criticisms of his work, Hart had a keen appreciation of the power of his young colleague’s intellect and the force of his arguments.

Although Hart’s sympathies tended to run in a moderate empiricist and to some extent utilitarian direction, there is a sense in which his work (especially The Concept of Law) prefigured the Aristotelian revival.  Despite his firm commitment to what he regarded as “legal positivism”—which he understood as a strict commitment to the “conceptual separation of law and morality”—Hart was a severe critic of Jeremy Bentham’s externalist and reductionist view of law (or the concept of law).  Bentham supposed that the social phenomenon (or set of phenomena) we know as “law” is best understood on the model of “orders backed by threats”—orders issued by a sovereign who is habitually obeyed, but who obeys no one.  On this understanding, laws function as causes of human behavior. They do not create obligation, at least in the normal, normatively flavored sense of that word.  Rather, they merely oblige—by way of threats of punishment for non-compliance.  They oblige in the way that an armed bandit obliges a victim to turn over his wallet when villain points a loaded pistol at victim’s head and says “your money or your life.”

Now, Hart’s objection to Bentham’s account was not moralistic; rather, he argued that it failed descriptively—it did not “fit the facts.”[5]  In particular, it did not account for the ways in which laws characteristically function in the lives of citizens and officials as frequently providing certain types of intelligible reasons for action, what he would later describe as “content-independent peremptory reasons.”[6]  To “fit the facts” an account of law must pay attention to the practical point of laws and legal institutions, and draw the distinctions between various types of laws and their various functions.  But this, in turn, required the legal theorist, or descriptive sociologist[7] of law and legal systems, to adopt what Hart called “the internal point of view,” that is, the practical viewpoint of citizens and officials for whom the laws provide reasons for acting by, among other things, enabling them individually and/or collectively to pursue certain objectives and accomplish certain goals (e.g., transporting themselves on the highways, getting married, creating a binding commercial contract, establishing a charitable trust).[8]

Thus, Hart’s “concept” (and philosophy) of law, having identified and adopted the internal point of view, begins to move away from the voluntarism (law as will) that lies at the heart of Benthamite legal positivism, and toward a recognition of law as rationally grounded—that is, as providing reasons that guide choosing.  Law (and laws), according to Hart, cannot be reduced to causes of human behavior, nor can it accurately be described as the sheer imposition of (the) will (of a sovereign).  It is characteristically (though not always) reasoned and reasonable.  At least, it is capable of being so, and will be so in the central or “focal” cases in which law functions in the ways that make it intelligible as a product of human deliberation and judgment in the first place.  And yet, Hart himself drew short of committing himself to any such conclusion.  He wished to retain the core of legal positivism even while jettisoning Bentham’s externalism (and strict voluntarism) and reductionism.  It was precisely for this drawing short, this refusal to identify fully reasonable (i.e., just) law as the focal case of law, and the point of view of the morally motivated legal official and citizen as the focal case of the internal point of view, that Finnis criticized the otherwise powerfully compelling philosophy of his teacher.

For Finnis, the focal case of a legal system is one in which legal rules and principles function as practical reasons for citizens as well as judges and other officials because of people's appreciation of their virtue and value, i.e., their point.  Aquinas's famous practical definition of law as an ordinance of reason directed to the common good by the persons and institutions having responsibility for the care of the community here has its significance in descriptive legal theory.  As Finnis observes,

"if we consider the reasons people have for establishing systems of positive law (with power to override immemorial custom), and for maintaining them (against the pull of strong passions and individual self-interest), and for reforming and restoring them when they decay or collapse, we find that only the moral reasons on which many of those people often act suffice to explain why such people's undertaking takes the shape it does, giving legal systems the many features they have—features which a careful descriptive account such as H.L.A. Hart's identifies as characteristic of the central case of positive law and the focal meaning of "law," and which therefore have a place in an adequate concept (understanding and account) of positive law."[9]

Yet, as I have noted, Hart himself, in The Concept of Law and elsewhere, refused to distinguish central from peripheral cases of the internal point of view.  Thus, he treated cases of obedience to law by virtue of "unreflecting inherited attitudes" and even the "mere wish to do as others do" as indistinguishable from morally motivated fidelity to law.[10]  These "considerations and attitudes," like those which boil down to mere self-interest or the avoidance of punishment, are, Finnis argues, "diluted or watered-down instances of the practical viewpoint that brings law into being as a significantly differentiated type of social order and maintains it as such.  Indeed, they are parasitic upon that viewpoint."[11]

Now, this is not to suggest that Finnis denies any valid sense to Hart’s insistence on the "conceptual separation" of law and morality.[12] It is merely to highlight the ambiguity of the assertion of such a separation and the need to distinguish, even more carefully and clearly than Hart did, between the respects in which such a separation obtains and those in which it does not.  Still less is it to suggest that belief in natural law or other forms of moral realism entail the proposition that law and morality are connected in such a way as to confer upon judges as such plenary authority to enforce the requirements of natural law or to legally invalidate provisions of positive law they judge to be in conflict with these requirements.  The scope and limits of judicial power is a separate issue—one that has been the focus of criticism of Hart’s jurisprudence by another of his eminent former students, Ronald Dworkin, who has faulted Hart’s positivism for excessively narrowing the authority of judges and other officials to bring moral judgments to bear in the enterprise of legal interpretation.[13]  Finnis has not signed on to Dworkin’s critique of Hart’s jurisprudence—a critique that is sometimes regarded as proceeding from a natural-law vantage point of its own—and parts of Finnis work suggest reasons for believing that Dworkin’s critique is in important ways misguided.  For Finnis, the truth of the proposition lex iniusta non est lex is a moral truth, namely, that the moral obligation created by authoritative legal enactment—that is to say, by positive law—is conditional, rather than absolute.  The prima facie moral obligation to obey the law is defeasible.  Finnis does not claim that unjust laws are in no legitimate sense laws,[14] nor does he argue that judges enjoy as a matter of natural law some sort of plenary authority to invalidate or even to subvert or ignore laws that they regard (even reasonably regard) as unjust.

We see, then, that Finnis takes on board Hart’s key insights deriving from his critical engagement with Benthamite legal positivism and pushes them to their logical conclusions—conclusions that move legal philosophy beyond legal positivism, even in its comparatively modest Hartian iteration, into a recognition of law as, in a meaningful sense, connected with reason’s quest for justice and the common good (law as reason and not merely will).  In the process, he strikes a blow against a familiar caricature of natural law whose wide acceptance (including, incidentally, by Hart himself as well as by Hans Kelsen and others) had provided apparent grounds for its quick dismissal by serious scholars and students of jurisprudence.

The achievement of John Finnis goes well beyond his signal contributions to philosophy of law.  It certainly includes his work with Grisez and Boyle in developing the understanding of practical reasoning and moral judgment that has come to be known, problematically, as the “new”[15] natural law theory and (not unrelatedly) his critical writings against moral skepticism, utilitarianism and other forms of consequentialism in ethics, and ethical theories that purport to lay aside considerations of human well-being in identifying norms of conduct for the moral life.[16] It also includes significant work in political philosophy, some of it directed to pulling the rug out from under the most influential forms of “liberal” political theory of our time, namely, those “anti-perfectionist” theories (often underwriting an ideology of expressive and/or possessive individualism), such as the theory of justice and “political liberalism” advanced by the late John Rawls, proposing that political decisions may not legitimately be based on controversial ideas of what makes for or detracts from a valuable and morally worthy way of life, or that in decisions pertaining to constitutional essentials and matters of basic justice, liberty may not legitimately be limited except on the basis of “public reasons” (where the concept of a public reason strictly excludes reasons drawn from “comprehensive” philosophical and religious views—however reasonable those “comprehensive views” may be).[17]

Finnis’ contributions in political philosophy go beyond the criticism of major works by influential contemporary liberal thinkers, such as Rawls, Dworkin, and the late Robert Nozick.  Natural Law and Natural Rights, especially chapters VI-XI, constitutes a major affirmative contribution to thought about (1) justice and its requirements, (2) the content (and scope) of the political common good; (3) rights, including human rights, and their identification; (4) the rational grounds for honoring legal and political authority and recognizing legal and political obligation; and (5) the nature and social functions of law.  In all of these areas, his analysis and prescriptions are notable not only for their analytical rigor and precision, but for their attention to the complexities of the subject matter.  (For example, Finnis carefully explores, in Natural Law and Natural Rights VII.4, the relevance of (a) need, (b) function, (c) capacity, (d) desert, and (e) consideration of who may have created or at least foreseen and accepted a risk of loss or harm, in analyzing problems of distributive justice.)  In all of these areas, what was originally presented in Natural Law and Natural Rights has been expanded, deepened, and in various ways enriched by papers Finnis subsequently published, most of which are included in the five volumes of Collected Essays of John Finnis published in 2011 by Oxford University Press.  Taken together, the chapters of the book and the various essays represent an important and distinctive contribution to the contemporary debate about the selection of political principles and the proper design and healthy functioning of political institutions.

In normative ethics and political theory, Finnis has been a force second to none in defending the moral inviolability of human life in all stages and conditions and the norm against making the death or injury of a human being the precise object of one’s choosing.  And so he has written powerfully against abortion, infanticide, euthanasia, and the intentional (including the conditional) willingness to kill or maim noncombatants (including captured or subdued enemy soldiers) even in justified wars (whether the weapons used are nuclear or conventional).  Similarly, he has been a leading voice in defense of the historic understanding of marriage as a conjugal partnership—the union of husband and wife.  In many cases, his views have put him at odds with the socially liberal orthodoxy prevailing in the universities and other intellectual sectors of the culture; in a few, they have placed him in dissent from what are regarded today as conservative positions. Like his hero Socrates, in an analogy his commendable humility would cause him vehemently to reject, he has followed arguments wherever they lead, and has never hesitated to state and defend a view because it flies in the face of the intellectual, moral, or political dogmas of the day.  The accolades and honors that have come his way were not purchased by conformity to allegedly enlightened opinion or by silence in regard to what he judges to be its grave defects.  His powerful and very public dissent could hardly have been contrived to gain him a personal chair in Oxford or election as a Fellow of the British Academy.    In this, as in so many other ways, he has always been an inspiration to those of us fortunate enough to have been his students and to young scholars in the various fields of his interest and influence who know his work and the witness to the unconditional pursuit of truth it represents.

And this takes us to one last area of his interest and influence, an area in which the truths pursued are truths about ultimate things.  While still a young philosopher, in a milieu dominated by the secularism he had hitherto shared—and one that was already showing signs of hostility to dissent—he made the move from secularism to (Catholic) Christianity, under the influence of classic philosophers as well as Christian saints. It was not that he came to faith and therefore saw the world differently.  If anything, the reverse was true.  The closed horizon of secularism artificially constrained the questions which, pursued with Socratic relentlessness, undermine secularism itself and inaugurate a journey of faith that might well lead to the rational affirmation of spiritual realities and an openness to entering into some form of communication and friendship with a transcendent source of meaning, value, and indeed all that there is. It was, in other words, reflection on the world—and the manifold orders of intelligibility (the natural, the logical, the moral, the technical) in which it presents itself to us and yields to our questioning and investigating—that led John Finnis to conclude that there are more things to be understood (and engaged) than can be immediately perceived with the senses or accounted for by empirical inquiry or technical analysis.  Like so many other notable modern philosophers who have made the journey from secularism to Catholicism—Jacques Maritain, Gabriel Marcel, Elizabeth Anscombe, Alasdair MacIntyre, Michael Dummett, Peter Geach, Nicholas Rescher—it was reason and reasoning that brought him to faith.

Faith was not to be, for Finnis, purely a matter of personal piety detached from his exertions as a philosopher.  It could not be, since the lines of questioning that must be pursued in practical philosophical disciplines—ethics, political philosophy, philosophy of law—will, unless for no adequate reason we choose to cut them off, take us to the deepest questions of meaning and value.  Reason itself—if it is anything more than a computational power—is a spiritual capacity, one that is not reducible solely to material and efficient causes. And reason cannot be a merely computational power if it is indeed capable of grasping more-than-merely-instrumental reasons for action (and their integral directiveness)—reasons (including moral norms) that are capable of guiding choices that are truly free.  And if we are indeed rational and free creatures—i.e., persons, beings whose fundamental makeup (nature) is oriented to deliberation, judgment, and choice—then we are not merely material, but also spiritual creatures—creatures whose integral good includes not only our bodily (biological) health, but our intellectual, moral, and spiritual well-being as well.  Obviously, these anthropological facts, if facts indeed they are, cannot but be highly relevant to questions of ethics, political philosophy, and philosophy of law, as well as to theology (including, centrally though not exclusively, of course, moral theology).

Finnis’ work in moral theology prompted the highest authorities of the Catholic Church to summon him to service on its most important theological council, the International Theological Commission.  There he worked especially on the philosophical and theological currents that were washing away the concept of intrinsically morally wrongful acts.  In his own voice, and not purporting to speak for the Commission, he published a small but lastingly valuable book on the subject entitled Moral Absolutes.[18] Here, in my view, we have a supreme example of the value of rigorous philosophical work marshaled in the cause of understanding the data of revelation and illuminating and enriching the teachings of faith. The work vindicates the claim famously advanced by Pope John Paul II in the opening sentence of his encyclical letter Fides et Ratio:  “Faith and reason are like two wings on which the human spirit ascends to contemplation of truth.”  The truth-seeking achievements of John Finnis have been made possible by his willingness to use both wings.


[1] John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 2nd edition published in 2011).

[2] Germain Grisez, “The First Principle of Practical Reason:  A Commentary on the Summa Theologiae, 1-2, Question 94, Article 2,” Natural Law Forum, Vol., 10 (1965), pp. 168-196.  In the Preface to NLNR, on p. vii, Finnis acknowledges his intellectual debt to Grisez, noting that “[t]he ethical theory advanced in Chapters III-IV and the theoretical arguments in sections VI.2 and XIII.2 are squarely based on my understanding of his vigorous re-presentation and very substantial development of the classical arguments on these matters.”

[3] This development is discussed intensively in Joseph Boyle’s essay herein, in Finnis’ response to it, and Grisez’s essay too.   In NLNR, Finnis did not formally articulate the first principle of morality—something he accounts as a “failure” in the post-script to the book’s 2nd edition (see p. 419).  This was, however, soon rectified in his writing, as a result of collaboration with Grisez and Boyle in the refinement and development of their “new” natural law theory.  As Finnis points out, in 1983 “openness to integral fulfillment” is accorded the status of the “master principle of morality” in Finnis’ Fundamentals of Ethics (Oxford and Washington, DC:  Oxford University Press and Georgetown University Press, 1983), pp. 70-74, 120-124, and 1511-152.  A more formal articulation of the principle first appears in Germain Grisez, Joseph M. Boyle, Jr., and John Finnis, “Practical Principles, Moral Truth, and Ultimate Ends,” American Journal of Jurisprudence, Vol. 32 (1987), at pp. 126-129.

[4] H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961); 2nd edition published in 1994.

[5] Hart, Concept of Law, p. 78.

[6] H.L.A. Hart, Essays on Bentham (Oxford: Clarendon Press, 1982), Ch. 10.

[7] On the very first page of The Concept of Law Hart invites the reader to regard the book as an exercise in “descriptive sociology.”

[8] As Finnis points out, Hart in The Concept of Law, “gives descriptive explanatory priority to those who do not ‘merely record and predict behavior conforming to rules’, or attend to rules ‘only from the external point of view as a sign of possible punishment’, but rather ‘use the rules as standards for appraisal of their own and others’ behavior’.”  NLNR, p. 12, quoting Concept of Law, pp. 95-96.

[9]  John Finnis, “The Truth in Legal Positivism” in Robert P. George (ed.) The Autonomy of Law: Essays on Legal Positivism (Oxford: Clarendon Press, 1996), pp. 195-214, at 204.

[10] Hart, Concept of Law, p. 198.

[11] Finnis, NLNR, p. 14.

[12] See generally Finnis, “The Truth in Legal Positivism.”

[13] Finnis comments on Dworkin’s critique, in Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977), of the “positivism” of Hart and Joseph Raz in an illuminating end note to Chapter Two of NLNR, arguing that the debate “miscarries” because Dworkin “fails to acknowledge that their theoretical interest is not, like his, to identify a fundamental ‘test for law’, in order to identify (even in the most disputed ‘hard cases’) where a judge’s legal (moral and political) duty really lies, in a given community at a given time. Rather, their interest is in describing what is treated (i.e., accepted and effective) as law in a given community at a given time, and in generating concepts that will allow such descriptions to be clear and explanatory, but without intent to offer solutions (whether ‘right answers’ or standards which if properly applied would yield right answers) to questions disputed among competent lawyers.”

[14] Ibid.

[15] The substance of the account of natural law offered by Finnis et al. is hardly new.  Its core can be found in Aquinas, and much of that, in turn, Aquinas draws from Aristotle.  It is true that Finnis, Grisez, and others have developed the Thomistic theory of natural law in various ways, and articulated the theory in a modern philosophical idiom.  But to develop a theory is not to reject it.  It is, rather, to accept its substance and draw out its further implications.  That is what they have done by, for example, showing how reflection on the integral directiveness or prescriptivity of the principles of practical reason that are presented by Aquinas enables us to identify moral principles and norms that distinguish options for choice that are fully in line with all that reasonableness demands from options that, in one way or another, fall short or afoul of the full demands of practical reasonableness.

[16] See especially Finnis, Fundamentals of Ethics.

[17] See John Rawls, A Theory of Justice (Cambridge, MA:  Harvard University Press, 1971); John Rawls, Political Liberalism (New York: Columbia University Press, 1993); Robert Nozick, Anarchy, State, and Utopia (Oxford: Oxford University Press, 1974); Ronald Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985).

[18] John Finnis, Moral Absolutes: Tradition, Revision, and Truth (Washington, DC:  Catholic University of America Press, 1991).

January 8, 2019 | Permalink

Monday, January 7, 2019

The Supreme Judge for the Catholic World

"To judge" is a term used in many ways, and, as a result of that lack of univocity, we need to be careful when assessing the merits or demerits of particular examples of judging (or judgment).  It is fashionable in some quarters to posture as eschewing all judging or judgment, but the anti-judging posture simpliciter is unsustainable.  Judgment of various kinds is obviously a necessary achievement on a regular basis for a life of tranquil order or even the avoidance of the edge of chaos.

Judges, as in courts of law, do judge, but legislators and private persons also judge.  For example, I, a private person, judge that torture of the innocent is always and everywhere wrong; no legal consequences attach to my private judgment but it is nonetheless what we refer to as a judgment.  A judge acting as a judge, however, judges, for example, not only that the defendant did a legally proscribed act (actus reus) but also that he did it with the requisite fault (mens rea), and, under certain specified circumstances, the consequence called punishment will by judicial action (sentencing) attach to that legal judgment.  Unless our whole system of penal law were unthinkably to be transmuted into a regime of strict or absolute liability, its operation depends upon judgments of both acts and, to my present point, persons and, specifically, their fault vel non.  I would just add that a system of penal law that eliminated structured and limited judgment of the fault of duly accused persons in favor, instead, of universal strict liability would present its own, profound moral problems.  

The preceding, about the necessity of judgment to civilized living, is background to our present, real-life predicament.  On the one hand, the line for which Pope Francis is most likely most well known is "Who am I to judge?" On the other hand, however,

the Roman Pontiff is the supreme judge for the entire Catholic world; he renders judicial decisions personally, through the ordinary tribunals of the Apostolic See, or through judges he has delegated.

 CIC 1442.  The person who as Pope publicly undermined his own capacity "to judge" is at the same time (as long as he remains Pope) unalienably the supreme judge for the Catholic world:  "Romanus Pontifex pro toto orbe Catholico iudex est supremus."

Before proceeding, let me anticipate the objection that it is canon law and the Roman-legal way of thinking, not the tension I have identified between the role of the "supreme judge" and the particular supreme judge who ponders "Who am I to judge?" that constitutes the problem.  But it is canon law, duly articulated and justly enforced, that constitutes the problem?  I submit that it is not, something Raymond of Penafort (whose feast the Church celebrates today) very much appreciated.   A worthy system of law, such as the canon law of the Church over the centuries, is vital to the just and effective, not to mention virtuous, functioning of a (complete) society.  The opposing point of view usually says that love is be preferred to law in the Church.  Indeed, but the priority of love in the Church rather calls for law than displaces law.

It is well known and easily documented that many of the active minds behind what we call "Vatican II" wished to divest the Church of the inheritance of Roman law in the canon law.  These tended, by the way, to be the same minds, such as Marie-Dominique Chenu OP, who wished to eliminate Latin as the liturgical language and also sought to downplay in Catholic theology the treasure of Greco-Roman discovery of the logos.   As I have commented here before, however, if the Church had not been functionally talked out of her own system of law and its just enforcement, the incidence of crime and other wrongdoing in within the Church herself in recent decades would surely have been orders of magnitude lower.  The canon law has remained on the books (though of course much weakened in relevant respects between the Code of 1917 and the Code of 1983), which is why  my saying "talked out of her own system of law" is somewhat hyperbolic, but the evidence is irrefutable that canonical crimes by prelates, for example, have gone by and large un-prosecuted.  

But enter a gaping exception.  This week includes what is to-date the most famous, indeed epochal, exception to the don't-prosecute prelates rule.  The Wall Street Journal and other sources are reporting that this very week, at long last, Archbishop McCarrick is finally getting the canoncial trial Pope Francis promised would be held when he accepted Archbishop McCarrick's resignation from the College of Cardinals this past June.  I have no competence, let alone any wish, to try to prejudge (sic) the result of the ongoing trial.

What I do wish to underscore is that the man who very successfully adopted the anti-judging stance for all the world to see and celebrate is the man who nonetheless will be, will-nilly, the "supreme judge" in McCarrick's case. It does not matter to the exercise of that supreme jurisdiction that McCarrick seems to have found personal favor with Cardinal Bergoglio and then Pope Francis.  Francis cannot recuse himself from being the supreme judge in McCarrick's case because, just as the Pope is the supreme legislator in the Church (which of course does not mean that his power is absolute), so, too, is he the supreme judge, irrespective of any bias of which he cannot rid himself.   This perhaps startling claim is the consequence of the theological doctrine summarized as follows in Canon 331, a canon Pope Francis himself has not been shy about formally invoking (e.g., with respect to his own role in ratifying the results of the 2015 Synod (cf. Can. 343)):

The bishop of the Roman Church, in whom continues the office given by the Lord uniquely to Peter, the first of the Apostles, and to be transmitted to his successors, is the head of the college of bishops, the Vicar of Christ, and the pastor of the universal Church on earth.  By virtue of his office he possesses supreme, full, immediate, and universal ordinary power in the Church, which he is always able to exercise.  (emphasis added)

We should pray for Theodore McCarrick and for his supreme earthly judge.  It is to be hoped that McCarrick will receive a just trial and, if he is justly found guilty under canon law, a just penalty.  These will depend upon judgments of his acts but also of his culpability.  And thereafter there remains also the possibility of mercy.

Now enter the "Pope of Mercy."  People who are likely to be reading these words will know that this Pope has made his mark on the media and the world, including many Catholic faithful, by styling himself as more merciful than others, including his predecessors.  The most recent example of Francis's unique mercy came with his revision of the Catechism of the Catholic Church to declare that the Church now considers capital punishment to be always and everywhere "inadmissible," a topic I recently discussed here. Pope Francis seems to have judged (sic) all previous popes to be deficiently merciful on the question of capital punishment (and, for that matter, related penological policies and practices).

The rub, however, is as follows.  Even the "Who am I to judge?" and uniquely merciful Francis cannot help acknowledge the necessity of judgment.  Consider this from Francis's less-than-merry "Christmas Greetings" to the Roman Curia during Advent (sic) 2018: "To those who abuse minors I would say this: convert and hand yourself over to human justice, and prepare for divine justice."  Justice, both human and divine, presupposes and depends upon judgment.  

So far, to the best of my knowledge, not one man among the hierarchy has responded to the Pope's ominous Christmas imperatives to hand themselves over to the police.  In fact, the very recent news is that Pope Francis did not know that he had just a few months ago given (and continues to give) cover in the Vatican (as an "Assessor" in high Vatican finances) to one of his protege bishops from Argentina who is publicly accused of sexual abuse of his seminarians.  It sometimes seems that Pope Francis has very bad prudential judgment about whom to bring close to himself in exercising his ministry, thereby unintentionally multiplying the consequences of the "Who am I to judge?" policy.

We all await the divine judgment: Pope Francis got that right.  And we should await that judgment with the "fear and trembling" that the Catholic tradition always until recently taught and preached.  But Pope Francis also got right that he himself has a ministerial role that concerns judgment that, subject to ultimate and assured eschatological rectification, must be made in the here and now, sometimes by civil authorities but sometimes by ecclesiastical authorities.  We must not forget, come what may in the McCarrick trial and otherwise, that Pope Francis is the supreme judge "pro toto orbe Catholico."  Even the "God of Surprises,"a favorite of Pope Francis's, seems at this point unlikely to make the McCarrick problem go away.  We therefore await the judgment of this Pope as the supreme judge for the Catholic world, including Archbishop McCarrick, keeping in mind that the Code of Canon Law (1983) concludes by reminding those called to judge under its force that "the salvation of souls . . . must always be the supreme law in the Church."  CIC 1752.     

January 7, 2019 in Brennan, Patrick | Permalink