JOHN FINNIS ACCUSES ALL advocates of purely penal law* of trading in fictions, a "comedy of fictions," specifically fictions that tie in obligation to legislative will. But before dealing with that issue, there are also some factual and legal objections that may be noted.
The factual objections to the theory arise from the factual fictions that are required for the theory's exercise. It would be a rare legislator that would formulate the intent in passing a law with a penalty that he was offering the citizenry an option between obeying the law and avoiding the penalty or disobeying the law and paying the penalty. Disjunctive legislative intent--which is what is required for the purely penal law advocates' theories to have any validity--seems dubiously lacking. Even less likely is the legislator who would think that adding a penalty to a legal proscription is a "trump" card out of the moral obligation to follow that law. It is probably the case that legislators have some sort of sense that a certain behavior ought to be proscribed because it is best for the common good that it be proscribed and any penalty associated with violation of the law is to add law's sanction, to provide a disincentive to disobeying the law, and to advance the pedagogical, retributional, and reformational characteristics of the law. The factual basis for the purely penal law theory is, in Finnis's view, sorely lacking.
The second problem is that the theories confuse, or at least are calculated to confuse, the difference between a tax and a penalty, in that the theories invariably make what is a penalty into something much more akin to a tax.
The third problem is more fundamental in Finnis's view. The "real basic difficulty" of the theory "lies in the very notion which gives the theory its perennial plausibility and popularity," that being that notion that if a legislator can absolutely prohibit an act, he has the authority to do the lesser, namely, providing the option to the citizens either to avoid the act or to pay a fine or penalty if they infringe. The problem with this notion is that it obfuscates the source of any binding nature of positive law that being the moral "higher" or "deeper" principle. In other words, it is not legislative will alone that determines whether a law ought to bind or not bind, it is the legislative will coupled with the moral foundations behind that will that couple to make law binding:
NLNR, 334. The problem arises in that the legislator is not really a moral legislator; he is not a "moralislator." The moral obligation arises not from the legislative will,** but from a prior "higher" or "deeper" source, namely the relationship of the law to the common good which the law is intended to advance. If a law prohibiting some behavior derives its binding power from the fact that prohibiting that act is aimed that advancing the common good, then it is the very prohibition of that act that advances the common good, and not the application of a penalty, which has no real relationship to the common good. It is as if the legislator puts his law, like some child his toy boat, on the stream of the natural law; the legislator does not make the stream. The moral obligation to obey a law arises when the law prohibiting a certain act (or commanding a certain act) is passed and promulgated for the purpose of advancing the common good; the attachment of a penalty does not minimize that obligation.
This is not say that a legislator cannot intentionally pass disjunctive statutes. In fact, something akin to that is done in cases of taxes that are imposed with the use of certain objects (e.g., cigarettes or liquor) or levies upon certain conduct (e.g., importation of luxuries). A sense of that is also found in cases where certain acts are prohibited unless licenses are obtained (and paid for) (e.g., hunting or fishing). In these sorts of cases, there is no prohibition to doing the act φ (or obligation to do act φ); rather, at best the legislator (often only implicitly) exhorts that act φ not be done without some prior act (license, payment of tax, levy) or that act φ be done (unless one obtains a license, pays a tax or levy). There is therefore no question of any moral obligation because the injunction to do or not do φ has no legal binding effect if the condition excusing it (tax, levy, license) is met. But this is a different beast altogether from the ordinary penal statute that contains a punishment or sanction for its violation. There is therefore an odd mix-up or blending of two different kinds of legislative acts in the thinking of the advocates (such as Francisco Suarez) of the theory of purely penal law.
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*As we noted in our prior posting a "purely penal law" (lex pure poenalis) is one which does not prohibit an action absolutely, but simply imposes a penalty in case one is convicted of its violation. Thus under the theory's notion, the legislator leaves it, in a certain sense, to the choice of the subject whether he will abstain from the penal action, or whether, if the violation is proved against him, he will submit to the penalty. Under the theory, there is no strict binding of the conscience to abstain from the prohibited act. There is a disjunctive (either/or) choice given the subject: either forego the act (obey the prohibition) or submit to the fine or penalty if caught and convicted of the act's violation.
**Finnis would say that the legislator (and his will) is an efficient cause of the moral obligation that arises from a promulgated law, but that the formal cause of that moral obligation of a law is the benefit to the common good. Finnis repudicates Locke's notion (found in his sixth Essay on the Law of Nature) that the "formal cause of obligation [is] the will of a superior." NLNR, 337 n. 35 (quoting Locke).
The factual objections to the theory arise from the factual fictions that are required for the theory's exercise. It would be a rare legislator that would formulate the intent in passing a law with a penalty that he was offering the citizenry an option between obeying the law and avoiding the penalty or disobeying the law and paying the penalty. Disjunctive legislative intent--which is what is required for the purely penal law advocates' theories to have any validity--seems dubiously lacking. Even less likely is the legislator who would think that adding a penalty to a legal proscription is a "trump" card out of the moral obligation to follow that law. It is probably the case that legislators have some sort of sense that a certain behavior ought to be proscribed because it is best for the common good that it be proscribed and any penalty associated with violation of the law is to add law's sanction, to provide a disincentive to disobeying the law, and to advance the pedagogical, retributional, and reformational characteristics of the law. The factual basis for the purely penal law theory is, in Finnis's view, sorely lacking.
The second problem is that the theories confuse, or at least are calculated to confuse, the difference between a tax and a penalty, in that the theories invariably make what is a penalty into something much more akin to a tax.
The third problem is more fundamental in Finnis's view. The "real basic difficulty" of the theory "lies in the very notion which gives the theory its perennial plausibility and popularity," that being that notion that if a legislator can absolutely prohibit an act, he has the authority to do the lesser, namely, providing the option to the citizens either to avoid the act or to pay a fine or penalty if they infringe. The problem with this notion is that it obfuscates the source of any binding nature of positive law that being the moral "higher" or "deeper" principle. In other words, it is not legislative will alone that determines whether a law ought to bind or not bind, it is the legislative will coupled with the moral foundations behind that will that couple to make law binding:
By his decision to stipulate that φ is legally obligatory for X, a person with authority to make laws brings it about that (i) φ is legally obligatory and thus (presumptively) that (ii) φ is morally obligatory. . . . [but] these consequences flow not from any 'force' of the lawgiver's 'superior will', but from the interrelationship between (a) the fact that he has thus decided and (b) a 'higher' (or 'deeper') principle that makes that fact legally and/or morally significant.
NLNR, 334. The problem arises in that the legislator is not really a moral legislator; he is not a "moralislator." The moral obligation arises not from the legislative will,** but from a prior "higher" or "deeper" source, namely the relationship of the law to the common good which the law is intended to advance. If a law prohibiting some behavior derives its binding power from the fact that prohibiting that act is aimed that advancing the common good, then it is the very prohibition of that act that advances the common good, and not the application of a penalty, which has no real relationship to the common good. It is as if the legislator puts his law, like some child his toy boat, on the stream of the natural law; the legislator does not make the stream. The moral obligation to obey a law arises when the law prohibiting a certain act (or commanding a certain act) is passed and promulgated for the purpose of advancing the common good; the attachment of a penalty does not minimize that obligation.
[t]he lawgiver's acts of will have their significance for the practical reason of other people only because can take their place in a normative framework which is not of the lawgiver's making. That framework has no place for legislative 'intentions' (or 'acts of will') to withhold or modify moral obligations; for such intentions, if they had their intended effect, would seriously weaken the clarity and certainty and uniformity of application which are the very bases of law's utility as a specific way of realizing the common good.NLNR, 335. It would therefore constitute an abuse of legislation to allow for a disjunctive law when the common good demands an outright prohibition of a certain act, an outright prohibition subject to sanction.
This is not say that a legislator cannot intentionally pass disjunctive statutes. In fact, something akin to that is done in cases of taxes that are imposed with the use of certain objects (e.g., cigarettes or liquor) or levies upon certain conduct (e.g., importation of luxuries). A sense of that is also found in cases where certain acts are prohibited unless licenses are obtained (and paid for) (e.g., hunting or fishing). In these sorts of cases, there is no prohibition to doing the act φ (or obligation to do act φ); rather, at best the legislator (often only implicitly) exhorts that act φ not be done without some prior act (license, payment of tax, levy) or that act φ be done (unless one obtains a license, pays a tax or levy). There is therefore no question of any moral obligation because the injunction to do or not do φ has no legal binding effect if the condition excusing it (tax, levy, license) is met. But this is a different beast altogether from the ordinary penal statute that contains a punishment or sanction for its violation. There is therefore an odd mix-up or blending of two different kinds of legislative acts in the thinking of the advocates (such as Francisco Suarez) of the theory of purely penal law.
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*As we noted in our prior posting a "purely penal law" (lex pure poenalis) is one which does not prohibit an action absolutely, but simply imposes a penalty in case one is convicted of its violation. Thus under the theory's notion, the legislator leaves it, in a certain sense, to the choice of the subject whether he will abstain from the penal action, or whether, if the violation is proved against him, he will submit to the penalty. Under the theory, there is no strict binding of the conscience to abstain from the prohibited act. There is a disjunctive (either/or) choice given the subject: either forego the act (obey the prohibition) or submit to the fine or penalty if caught and convicted of the act's violation.
**Finnis would say that the legislator (and his will) is an efficient cause of the moral obligation that arises from a promulgated law, but that the formal cause of that moral obligation of a law is the benefit to the common good. Finnis repudicates Locke's notion (found in his sixth Essay on the Law of Nature) that the "formal cause of obligation [is] the will of a superior." NLNR, 337 n. 35 (quoting Locke).
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