Revival of Natural Law
Finnis and Fuller- Unit 1
John Mitchell Finnis
• Finnis's natural law theory is divided into three distinct part-
a. Basic Goods
b. FPPR- First Principle of Practical Reasoning
c. FPM- First Principle of Morality
• Basic Goods "indicate the basic forms of human flourishing as goods to be
pursued and realized" and that are known to everyone who thinks about
how they should act.
“a set of basic methodological requirements of practical reasonableness . . .
which distinguish sound from unsound practical thinking and .. . provide the
criteria for distinguishing between [reasonable and unreasonable acts]”
Basic Goods
Types of Basic Goods
• Life, knowledge, and play are substantive goods, whereas aesthetic experience, sociability, practical
reasonableness, and religion are reflexive goods.
Substantive
Basic Goods
Reflective
• Reflexive goods must be "defined in terms of human choice," and substantive goods provide reasons for
making choices that stand by themselves.
Assumptions related to Basic Goods
• The list is not exhaustive and other goods can be achieved by
combination of different basic goods.
• There is no hierarchy within the list.
• Basic goods are pre-moral.
Methodological Requirements
• The principles of practical reason are derivations of the first principle of practical reason
("FPPR"), which states, "Good is to be done and pursued, and evil is to be avoided.”
• Finnis describes nine principles of practical reason that follow the FPPR. These principles are:
(1) having "a coherent plan of life,"
(2) not having an arbitrary preference amongst the basic goods,
(3) not having an arbitrary preference amongst persons,
(4) having a sense of detachment from all the specific and limited projects one undertakes,
(5) not abandoning general commitments lightly,
(6) acting to bring about good with efficiency,
(7) respecting every basic value in every act by never choosing against a basic good,
(8) favoring and fostering the common good of one's communities, and
(9) following one's conscience.
First Moral Principle (FPM)
• "In voluntarily acting for human goods and avoiding what is opposed to
them, one ought to choose and otherwise will those and only those
possibilities whose willing is compatible with integral human fulfilment.”
Integral human fulfillment individualistic self-fulfillment
The purpose of the FPM is to give explicit force to the good implicit in
the FPPR, and the purpose of the FPPR is to dictate that goods are to be
pursued and privations of those goods to be avoided.
With the introduction of the FPM, Finnis provides a morally perceptive rule
that choices be compatible with "integral human fulfillment."
Operation of theory
Basic goods are set
of notions that
indicate the basic
Methodological General
forms of human
flourishing as goods requirement of moral
practical reasoning
to be pursued and
realized- everyone
standards
knows it.
7 basic goods + the 9 requirements of practical
reasonableness = “principles of natural law”.
• His theory accords with the basic ideas of natural law put forward by
Aquinas. He says that these 7 basic goods are not derived from
anything: they are all self-evident, understood by all, and they are
all equally fundamental.
• They are incommensurable meaning thereby one cannot measure one
against another. Their supposed incommensurability leads Finnis to
state that people should pursue all the goods and should not ignore any
one of them.
• He said that one's reason for choosing is reasons that properly relate to
one's temperament, upbringing, capacities, and opportunities, not to
differences of rank of intrinsic value between the basic goods'
Lon L Fuller- The internal morality of law
Assumptions
• Law is basically a technique of balancing mankind's conflicting
objectives.
• He asserts that law cannot be evaluated in terms of absolutes.
• Fuller tells the administrators, legislators and judges to keep in mind
the fact that, whatever principle they may it was but one of several
available alternatives.
• Fuller calls for the consideration of the standards which guide the
lawmakers in their promulgation of legal principles.
Internal Morality of Law
Morality of Morality
Aspiration of Duty
• The morality of duty lays down the basic rules without which an ordered
society is impossible.
• The morality of aspiration is the morality of excellence, of the fullest
realization of human powers.
• The "internal morality of law” is the technique used by the lawmaker in
deciding which rule of substantive law should be applied to the particular
case which he has been called upon to decide.
Eight desiderata -moral foundation of law
( Principles of legality)
1. Generality- Laws should apply generally and not single out specific individuals or groups.
2. Promulgation- Laws must be publicly known and accessible to everyone to understand and
follow.
3. Prospective- Laws should be announced in advance, giving people the opportunity to conform
their conduct accordingly.
4. Non-Retroactivity- Laws should not be applied retroactively; no one should be punished for
actions that were not illegal when committed.
5. Clarity- Laws should be clear and understandable, avoiding ambiguity and confusion.
6. Consistency- Laws should not contradict each other; they should be coherent and harmonious.
7. Possibility of Compliance- Laws should not demand the impossible; they should be within
practical compliance of the average person.
8. Congruence with Existing Morality- Laws should align with the existing ethical values and
social norms of the community.
Rex Analogy-
https://people.brandeis.edu/~teuber/Fuller_Eight_Ways_To_Fail_To_Make_Law.pdf
Inner morality vs External Morality
• Fuller expresses a fear that if too much attention is paid to the
"morality of aspiration" society may establish a body of law which
will prescribe too many do's and do not's in too many areas of
human activity. Such a legal system can prevent the individual from
developing to the full potential of his capabilities.
• The "external morality of law" refers to the content of the
substantive rules of law which are actually applied by the arbiter
in arriving at his decision.
Application of Fuller’s theory in Indian Legal
System
1. MANEKA GANDHI V. UNION OF INDIA AIR 1978 SC 597-
emphasizing the importance of just procedures and ensuring the laws
are consistent and provide equal rights to all citizens.
2. HUSSAINARA KHATOON V. STATE OF BIHAR 1979 AIR
1369- this judgment underlines the crucial relevance of a fair and
prompt judicial procedure and the necessity of procedural fairness in
creating a just society.
