Grounds of Law and Legal Theory: A Response

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

University of Oxford Faculty of Law Research Paper Series is located at:

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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

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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