Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Saturday, April 16, 2011

Natural Law's Modern Cousin Germain: Finnisian Definition of Law

FINNIS PROVIDES US A COMPREHENSIVE DEFINITION OF LAW that defines the central case of law that disappoints by its overt positivism:

[T]he term 'law' . . . refer[s] primarily to rules made, in accordance with regulative legal rules, by a determinate and effective authority (itself identified and, standardly, constituted as an institution by legal rules) for a 'complete' community, and buttressed by sanctions in accordance with the rule-guided and buttressed by sanctions in accordance with the rule-guided stipulations of adjudicative institutions, this ensemble of rules and institutions being directed to reasonably resolving any of the community's co-ordination problems (and to ratifying, tolerating, regulating, or overriding co-ordination solutions from any other institutions or sources of norms) for the common good of that community, according to a manner and form itself adapted to that common good by features of specificity, minimization of arbitrariness, and maintenance of a quality of reciprocity between the subjects of the law both amongst themselves and in their relations with the lawful authorities.

NLNR, 276-77. The reason I find this definition of law as the "central case" or "focal meaning" of law disappointingly narrow and positivistic is that it excludes from its definitional boundaries entire areas where classically law has been recognized to exist: the natural law and the eternal law. This definition is crafted by Finnis by referencing the requirements of practical reasonableness and by "certain empirical features of persons and their communities." NLNR, 277. Perhaps this definition--which Finnis states is an effort not "to explain a concept, but to develop a concept which would explain the various phenomena referred to (in an unfocused way) by 'ordinary' talk about law." NLNR, 279. But to whose talk has he been listening to? The positivist? It seems that he has not been listening to the Thomist.

While Finnis's definition may be a comprehensive definition of human law in its focal sense, it cannot be a definition of "law" in its focal sense when it excludes the laws of all laws: the eternal law, and the particularly human participation in that law, the natural law. And what is particularly curious is that Finnis is careful to note that the definition is crafted so as not to be univocal, but is intended to be vague enough to be usable in an analogical or "broad-sense" manner. The definition, then, can be analogized downward so that it can include more or less developed or more or less primitive legal-like institutions. But the definition is sufficiently univocal so as to exclude from its boundaries law looking upward,* so that there is no similar analogical use of it to refer to the higher eternal law and the natural law.

Indeed, Finnis admits as much be severing the natural law from his definition of law:
'Natural law'--the set of principles of practical reasonableness in ordering human life and human community--is only analogically law . . . .
But his use of "analogy" here is different from the use of analogy in terms of human institutions looking downward. NLNR, 280. Finnis is hesitant, even embarrassed to link the term "natural" to the term "law" as he has defined it, tolerating it only because "past thinkers" have used it. He suggests that, instead of using the term "natural law," we could use the term "'natural right', 'intrinsic morality','natural reason, or right reason in action', etc. But no synonyms are available for 'law' in our focal sense." NLNR, 280-81. Law as used by Finnis is improperly used when used of the natural "law" or the eternal "law." This seems to be a break in the tradition.

There is therefore both an inadequacy of Finnis's definition of "natural law" itself (defined as a "set of principles of practical reasonableness in ordering human life an human community"**) and an inadequacy of the term "law" as a term comprehensive enough to include within its meaning "law" as used in the notions of eternal law and natural law.

*It also excludes law in the sense of physical, biological, psychological laws (where "law" is used in a metaphorical sense, and excludes the "laws" associated with "arts and crafts and applied sciences" though the "similarity" between his definition of law and the law as used with reference to arts and crafts and applied sciences is "greater." NLNR, 280.
**Where is the legislator? Where is the promulgation? Where (in the event of disobedience) is the sanction?

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