What is the philosophy of law
by John Finnis
Translated by Wang Zhiyong
Originally published in The Review of The Philosophy of Law and Political Philosophy, Vol. 4
From: Forum on The Philosophy of Law and Political Philosophy
John Finnis
1. Philosophy of law, political philosophy and moral philosophy
Like the philosophical fields of ethics and political philosophy on which the philosophy of law is directly relied upon, philosophy of law belongs to the philosophy of practical reason. The philosophy of practicing reason and thus practicing reason (philosophical because it examines the most pervasive questions of practical reason) seeks to make deliberations and choices—human persons in this way shape their freely chosen actions and thus themselves and their communities—reasonable. Ethics thinks about these questions in the form of questions that are invariably traversed by every individual, and ethics thinks about the choice dilemma of major actions (acts or omissions) that shape both the world and his or her own character. Political philosophy (which encompasses but does not absorb the philosophy of the household and family) ponders the question of being a member or leader of a community (who makes choices that are for the benefit of the community, and for which we intend to make our actions contribute to its actions), as long as we need to coordinate our actions with the rest of the community, these issues are certainly before each of us. The philosophy of law expands and refines political philosophy precisely by thinking about the question of the extent to which the choices made today for the future of a political community should be decided or shaped by past choices and actions in the form of contracts, wills, constitutions, legislative decrees, customs, judicial decisions, etc.
The question of the philosophy of law itself is the subject of many "general principles of law recognized by civilized nations"—that is, fundamental principles that go directly into the concrete determinations required. The philosophy of law identifies the rationale for accepting the above principles as appropriate and authoritative, and for judging the above-mentioned types of private, public law-making and right-affecting acts (judicial acts) as appropriate and authoritative. Just as ethics looks at the fulfillment of all basic forms of human good, so long as choices and actions can affect or hinder such realization; just as political philosophy looks at the effects of choices and actions on the common good of the political community and the perfection and human rights of all its members; so the philosophy of law explores the rationale for accepting the justice of the fundamental principles of law in its particular effect on the common good, accepting the private, The authority of the conduct of public justice in relation to its specific impact on the common good. The common good extends with a meaningful continuity from the past to the present: in the past, community members chose certain actions (as the antithesis of reasonable and irrational options); in the present, those actions chosen in the past were intended to play a decisive role beneficially, and today's members are able to determine (in an appropriate way) similarly the future perfection of the community and its members that are equally historically expanded.
Thus, the scope of the philosophy of law is the scope of Aristotle's nomothetikē and Aquinas's legal creation (legis positio). It understands it as an extension that goes beyond philosophy—the "practical science," a philosophical truth that makes a person fit to participate in the constitution-making and legislation; it also understands it as including the skills and wisdom required by judges (subordinate to constitutional and legislative acts such as those described above); not to mention civic understanding, Law-abidingness and critical allegiance of good citizens.
In order to understand the common good for all—including all that may be conceived philosophically in terms of human fulfillment—the philosophy of law (and laws)* draws its nourishment directly from ethics. This understanding takes the form of the first principles and specific moral principles of practical reason. Among them, the former directs each of us toward all the basic human good (each of which is an irreducible aspect of human flourishing)." The latter guides us to rational choices and actions as if we were faced with: not one good, but many goodes; not a way to achieve each good, but many ways; not a person in whom these goodes can be realized, respected, or disrespected. In order to understand the common good of the family, other groups of civil society and the state, the philosophy of law draws nourishment directly from political philosophy. The above understanding contains those which, on the basis of extensive human experience, can be discussed in a general sense: the factual conditions for coexistence and co-operation in political life and collective action, which are things that require serious consideration in statecraft and legal-creation, and thus become an integral part of political and legal philosophy. A simple example of such a condition is the fact that unanimity—as a source of collaboration in life in political communities—is in practice unavailable or unreachable. This in practice necessitates and justifies the concept and institution of authority, and authority is used—albeit presumptively and defeasibly]—to establish the obligation to obey authoritative directives (legislative, judicial, or administrative, etc.). Or again, the simple fact that human beings are limited in their ability to foresee proves what we call equity (deviating from the literal meaning of jurisprudence for deeper purposes and justice).
Based on these grounds, the philosophy of law extends ethics and political philosophy to the specific field of law. As noted above, the typical feature of this field of law is that the rationale for present decisions on matters of the future is rooted in facts of the past. These facts are positive sources of law, whether in explicit legislative form, judicial or other forms of practice and custom, or in the form of the doctrines of legal theorists available in public. The above-mentioned sources are interpreted as producing a set of normative propositions (on powers and obligations), which in turn are interpreted in turn, thus making them coherent in a richer and harsher sense than merely avoiding direct conflicts, in the case of their full specificization as a norm of choice and action. Each of these propositions—"the legal system," "the law over a certain piece of land," "our laws," etc.—is considered to apply in principle to everyone and every fact within the jurisdiction in a holistic manner. The validity of each legal proposition in a legal system is regarded as controlled by other propositions in that system and as a precondition for its application to a particular individual and fact.
In their basic content, concepts such as jurisdiction and validity are not new to political philosophy, and they are already implicit in Aristotle's discussion of the desirableness of the rule of law (Rechtsstaat). However, they remained rather obscure and unspeaked until the philosophy of law took them out of the legal discourse. This is done precisely to explain why each legal system has accordingly developed these (and other) concepts as technical settings to ensure that the rules and institutions of the legal system can, relatively often, do what such philosophical reasoning and political deliberation would normally fail to do, i.e., with regard to certain relatively specific —about what is the right choice and action in a particular, factual (and ultimately applicable) exceptional situation— The question gives a clear and unambiguous answer. Positive law—a set of legal propositions in our legal system—capacity—is the primary way of giving such clear answers: it links the past, present, and future of the community; it makes legitimate expectations, or at least legally acquired rights—including property rights, contractual and quasi-contractual rights, trusts, compensation, and damages[ The right of restitution] is in force; and thus enables the great expansion of economic and cultural life, the relative stability and autonomy of the movements and career choices of the family and individuals. All of the above is part of political philosophy, political art, and because it is expanded and specificized as above, it deserves to be unique (not irrelevant!). Status and name: Philosophy of Law.
Jurisprudence or philosophy of law?
In a sense that is fully equivalent to lex civilis and lex naturalis, St. Thomas uses the terms ius civile or ius naturale accordingly. If we follow Aquinas's clear, useful example, we will not distinguish between law (lex) and rights (ius)* when rights mean, for example, ius civile or natural law. Thus, as is often the case in English-speaking countries, "jurisprudence" and "philosophy of law" can be used appropriately in a fully equivalent sense. Of course, the two etymological components of the word "jurisprudence" have a certain (far from irresistible) gravitational pull, which leads the use of the word to a relatively more specific, less generalized, and thus less philosophical level. However, just as Aquinas regarded legal creation not only as the name of the highly specific matter of the creation of law, but also with politica, the name of the highest level of political philosophy/theory, and as a philosophy on the same level as philosophia moralis—in fact, as a super noble branch or type of moral philosophy; therefore, we can also correctly regard jurisprudence and the scope of legal philosophy as the same, That is, from the examination of juridical techniques (critical examination of the rational basis of these technologies based on human flourishing and moral rights), all the way to the highest and broadest principles of moral and political theory and other considerations.
Natural law theory and positivism
In the current context, since "natural law" has the same reference as "normative principles and standards of ethics and political science" (or "normative political philosophy"), so far everything presented in this article is only part of the theory of natural law. As part of its intrinsic composition, this theory automatically gives rise to the proposition that human society needs positive law, as well as an elaboration of the many required features of law, the legal system, and the rule of law. In this context, the theory of natural law is another name for philosophy of law. Proper inquiry into the theory of natural law produces a fully detailed exposition of the concepts of positive law, the rule of law, and its typical institutions and origins, and if we use this to refer to positivists, then natural law theories are completely positivist. Outside of the theory of natural law, positivism has no proper foothold.
Those positivisms that see themselves as somewhat opposed to the theory of natural law are (simply to the extent that they insist on the above-mentioned self-indications and contain propositions that differ from those of the above-mentioned theories of natural law) a more or less confusing and arbitrarily tailored theory. In some cases, this is based on a serious misunderstanding of traditional natural law theories and some of their theorems. In other cases, this is the position held as an expression of moral skepticism (the refusal to recognize the existence of any true proposition about the good and moral rights of human beings). Again, in some cases, such as Kelson's, this is a position based on both of these grounds. Both of these bases are undefendable. By examining classical theoretical texts more closely, these misunderstandings should be discarded. At first glance, skepticism about practical truth seems to be the more trustworthy foundation of legal positivism. However, even without considering that the propositions and arguments in ethics (or "meta-ethics") that can be correctly responded to skepticism, we should admit that if skepticism is correct, then there is no philosophy of law. At most, there may be a historical elaboration (a tracing of the statements of qualified legal practitioners) of, first, the normative systems accepted or attached to a particular community that are self-interpreted as law; and second, systems similar to those described above. Through some type of statistics about recurrence or "typicality", history or a series of historical events may be maintained. However, if there is nothing true in the case of human goodness, then there is no philosophical significance for thinking about and talking about norms, authority, obligations, and effects, and similar concepts, for the meaning of all these concepts derives from the assumption that practical reason can distinguish between true and false, good reason, lack of reason, and so on.
Positivists consider the emphasis on facts to be their methodological merit, but this is fully present and useful in any proper philosophy of law (natural law theory). For practical reason reaches a decision in careful contemplation (whether concretely or more generally, abstractly, "philosophically"). It does so not only by exploiting normative preconditions about goodness and rights; it must also accomplish so by using factual preconditions about goodness as conditions under which goodness can be attained or will be impaired. The truth value of the above premise must be obtained by paying close attention to the established facts, past experiences, typical events, possible conditions, physical, biological, psychological possibilities, etc.
In short: it is better to conduct a study of the philosophy of law on the basis of not relying on vague labels such as "positivist" (or "non-positivist"). So, should we also abandon the label of "natural law theory"? Any reasonable philosophy or theory of law will need to pay attention to two broad types of principles, norms and standards: first, principles, norms and standards that have been selected simply because they are chosen by the past decisions of the community or otherwise de facto created in other ways, and may therefore be applied by persons with practical reasonableness; and second, whether or not they have been selected or approved by the above means, Those principles, norms, and standards that can be applied by those who practice practical reasonableness. In response to the latter, our civilization has historically adopted the term "natural law" to refer to it. This practice can be traced back to Plato's theoretical controversy with the wise man, who argued that in human deliberation, more or less selfish forces and deceit predominate, which is naturally, and thus "by right" and reasonable. Plato's brilliant recapture of "right by nature" from the errors of the wise has always been crucial to our vocabulary, with influences that run through Aristotle, the Stoics, Cicero, St. Paul, Gaius, Aquinas, and their successors, up to the Unintended Charter and today. There is no symmetrical unserviceability between the labels of "positivism" and "natural law theory"; although there is no doubt that the latter is trapped in as serious misunderstandings as the sophists suffer, and it is further confused by the long process of civilization involving reversions, acretions, and quasi-philosophical miscellaneous flotsam and jetsam）。
Fourth, the legal normativity that is different from the moral norms
One of the main reasons for the introduction of positive law and the rule of law is to resolve the controversy that occurs in the political community about what morality (especially justice) requires, advises, or allows. Thus, the existence of good reasons introduces a way of thinking—as legal thinking is called in this article—in which (within undefined but important qualifications) the fact alone is regarded as affirming the legal effects of a certain decision and the sufficient basis for its propositional product (rules, rulings, etc.): a legal ("constitutional"). Authorized persons, or bodies of numerous persons, have announced a specific decision on certain issues that are or may be controversial. Under this way of thinking, once an individual's decision is made, the question of its justice is pushed to the edge of the legal realm. It is only when moral extremes occur that the questions of justice and morality become relevant again. Thus, the talk of "validity" may be more or less complete and neatly retained within the intra-systemic legal [positive-law] discourse, and is not seen as implying moral, but implying the obligatory legality of the law obligatoriness) (such an obligation cannot be contractually understood as mere liability for fines or punishments).
The theory of natural law does not question the distinction or distinction between the [legal] effect (and obligatory) in the system and the legal effect (and obligatory) in the moral sense; in fact, the theory of natural law facilitates the distinction or division described above. In fact, it is not unreasonable to think that the distinction plays a role in the well-known slogan label of "evil law is illegal". Expressions like "evil law is illegal" are not self-contradictory, paradoxical, or even fussy: "insincere friends are not friends", "logically invalid arguments are not arguments", "fake drugs are not drugs", etc. So, again, in the above-known labels or theorems: "lex iniusta" here means an order of law that is valid in the sense of the system, while "non lex" means that, beyond the moral limits, the above law lacks the effect of moral meaning (as law) (e.g., legitimacy) and, therefore, in itself, lacks moral obligation.
Aristotle studied this type of meaning transformation in detail, and in connection with it, he elaborated on the types of ambiguous discourses, homonymy, and what we now call analogous predication. When the meaning of a word is more or less methodically transformed according to context, then we can say that the word is analogous. In the context of human affairs, the most relevant type of analogy is what Aristotle called homonymy or proshen homonymy. Herein, the various related meanings of the word may be associated with the core (focal) meaning or meaning or usage, such a core meaning is selected from the type of entity (reality) or subject-matter (subject-matter) selected from the primary or central (central) situation - wherein the core and center are spoken of in the context of a certain discourse or inquiry. Non-core and non-central cases may be considered secondary, because, at least from a proper perspective or for a proper theoretical or practical purpose, they may be regarded as examples or types of real immature or abnormal or otherwise watered-down. Legal theorists who identify themselves as positivists—that is, those who oppose what they perceive as natural law theories—pay little attention to this aspect of our language and its relevance to reality (and fulfillment). Thus, Kelson's whole science of law is based on unexamined and simplistic assumptions about, first, the singularity of "law", and second, the assumption of the need for a single normative form, thus conforming one by one to the definition of a single feature of law as a social order that controls behavior through the threat of sanctions. The self-identifying positivist develops a near-universal hostility to the illegitimate proposition of evil law, which ignores the ambiguity of words such as "law" and "validity." Something is at the core in one context or relative to a set of purposes, but in a second place in another context or relative to other purposes. Thus, in terms of the relationship between legal effect and the moral legitimacy of the law, in terms of the relationship between the intrinsic-system sense and the moral obligatory nature, the complexity manifests itself at the bipolar core of the following: technical-legal and morally conscientious. However, since the immoral and non-moral undertakings of law-creation and law-functioning depend on the fuller rationality of morally just law; the moral conscience is as philosophically primacy as it is in the conscience of the legislative reformers, and (with some additional complexity involving responsibility) the primacy in the conscience of a true (central-situation) judge.
V. Philosophy of Law and New Ethical and Political Challenges
Although, as noted above, law and philosophy of law have a quasi-unique domain and a technical character; however, it is precisely the idea of law (concept) (without which no law is created or maintained) that depends so much on the broader principles of moral, political thought and philosophy that no law or its philosophy can avoid its connection with the ethical, political problems and challenges of the era. Specific aspects of the content of our laws (including its procedural rules and regimes) can promote, or otherwise undermine, the common good of our community. Instrumentarium may, not infrequently, provide a door of convenience to harmful social change, just as the apparatus of human rights litigation has in many places provided a door of convenience to: first, injustices that include or involve abortion, euthanasia, fraudulent or smuggling, and same-sex "marriages"; The suppression of critics of the above; third, other harmful evils. However, without resorting too much to the above instrumentalism, or even violating it, what the social elite desires can usually be realized.
It seems to me that the task of the current philosophy of law is dual. The philosophy of law must clarify its intrinsic relationship with and dependence on all the truths of moral and political philosophy, and in particular by the task of constantly criticizing every form of philosophy of law that rejects or distorts the above relations. Through its grasp of the technical instrumentalism of law and its fundamentally illustrative understanding, the philosophy of law must be in a position where, with the hope of transformation, it criticizes and exposes every manipulation of these instruments for the purpose of being detrimental to the common good, which includes, but is not exhausted, the maintenance of judicially recognized rights.
In the coming decades, it will be of particular importance that legal philosophers will re-realize that the exemplary form of law—the complex domestic legal system or ius civile—is the law of a people, established by electoral acts (or constitutional customs) and ongoing legislative acts concerning its self-determination as a people. These acts can and should be consistent with: first, their obligation to create (to do) and respect rights (human rights, such as those contained in natural law); Countless thinkers of the 19th and 20th centuries hastily assumed the justice of a communist idea that had no private property. However, this communist conception does not properly note the long-term conditions under which a sustainable, prosperous, and just society composed of free men can be sustained, which has led to millions of people suffering more or less directly from the catastrophe of applying the above-mentioned fallacy of practical thought to their political bodies. As the thinkers have done, many today's thinkers have hastily assumed (explicitly or implicitly) the justice of a quasi-communist idea of humanity without boundaries. However, this concept is incompatible with the long-term conditions under which sustainable justice, a civilly free political order and the rule of law can be maintained. Even in the short term, this fallacious type of practical thought has led to the increasingly common type of political community, whose intrinsic diversity of multiculturalism in relation to ultimate allegiances is both promoted and resisted by: first, the growing number of security and surveillance devices (with good reason to fear civil war or serious chaos); second, the serious decline in freedom in the political and ideological discourse; and third, the proliferation of legal-creative and regulatory bureaucracies. These bureaucrats are indifferent to the benefits of having a society in which self-determination takes large partly in the form of shared expectations, which Urbian and Aquinas call common customs.
The practitioners of the philosophy of law may be particularly prone to such mistakes, to the extent that they conceive of the legal system merely as a collection of norms, rather than as principles, norms, and institutions adopted by a nation that expands within the boundaries of time and space and fulfills its moral responsibility to act in a more or less appropriate manner.
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