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— Notre Dame Law School NDLScholarship Journal Articles 1994 Liberalism and Natural Law Theory John M. Finnis Notre Dame Law School, [email protected] Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Legal History Commons, and the Natural Law Commons Recommended Citation John M. Finnis, Liberalism and Natural Law Theory, 45 Mercer L. Rev. 687 (1993-1994). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/520 Publications This Lecture is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. Liberalism and Natural Law Theory by John Finnis I. I shall argue, in the course of this lecture, that the title I gave myself is a bad one, one that sets a bad example. “Liberalism,” like "conserva- tism" and "socialism," is too local, contingent and shifting a term to deserve a place in a general theory of society, politics, government and law. So I had better say at once which proposition or set of propositions I, on this occasion, was gesturing towards with the word "liberalism,” out of all the many propositions, often conflicting, which have been called "liberal." What I had in mind was the thesis that government and law should be limited in their range of application, that there are domains which government and law should not enter and in which there is (to use that excruciatingly imprecise dictum) a “right to be let alone".¹ Any sound theory of natural law will explain and justify the authority of government as an authority limited (1) by positive law (especially but not only constitutional law), (2) by the moral principles and norms of justice which apply to all human action (whether private or public), and (3) by the common good of political communities-a common good which I shall argue is inherently instrumental and therefore limited. If "limited government” is not a term widely used in natural law theories, it is because it is so ambiguous. For the proper limits on government and political authority are quite various in their kinds and their sources. Nonetheless, being “limited” is only to a limited extent a desirable * Professor of Law and Legal Philosophy, University of Oxford; Fellow of University College, Oxford; Distinguished Visiting Professor, Boston College Law School, 1993-94; Fellow of the British Academy. 1. THOMAS M. COOLEY, TORTS (2d ed. 1888), p.29; Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); Poe v. Ullman, 367 U.S. 497, 550 (1961) (Harlan J., dissenting); Bowers v. Hardwick, 478 U.S. 186, 199 (1986) (Blackmun, J., dissenting). 687 688 MERCER LAW REVIEW [Vol. 45 characteristic of government: bad and powerful people and groups want government limited so that they can bully and exploit the weak, or simply enjoy their wealth untroubled by care for others. So "limited" cannot be a framework term, like “just.” I hope you will forgive me if I suggest that the thirteenth century theologian Thomas Aquinas was the first theorist of government to articulate as a specific concept the desideratum that governmental authority/power be legally "limited.” (But these questions of priority are not to be taken too seriously). As a philosopher he began a commentary on Aristotle's Politics, and on its first substantive page he gives an explanation of a distinction which Aristotle at that point draws but does not explain, the distinction between political and regal types of government (regimen). In “regal” (kingly) forms of government, says Aquinas, the rulers have plenary authority, while in “political,” their authority is "limited [coarctata] in accordance with certain laws of the polity."⁹ Why limit the authority of rulers? Well, Aquinas's uncompleted commentary ends before the passages where Aristotle discussed the desirability of a "rule of laws and not of men." But in his commentary on Aristotle's Ethics, at the point in Book I-V where Aristotle briefly summarizes the merits of the rule of law,5 Aquinas expands and perhaps deepens the summary a little: right government does not tolerate an unregulated rule by rulers (“rule of men”), but calls for rulers to be ruled by law, precisely because law is a dictate of reason, while 2. See also THOMAS AGVINAS, SUMMA THEOLOGIAE I-II q.105 a.1 ad 2. 66 3. ... politicum autem regnum est quando ille qui praeest habet potestatem coarctatam secundum aliquas leges civitatis": AQUINAS, IN LIBROS POLITICORUM ARISTOTELIS EXPOSITIO I, 1 (Marietti ed., 1951, n.13). In his DE REGIMINE PRINCIPUM, I, 6, Aquinas states that where one person is ruler, that person's power/authority should be "limited" (temperetur potestas), lest it slide into tyranny (i.e. into government for private rather than common good). Aquinas's distinction between regal and political rule is enthusiastically taken up by Sir John Fortescue, THE GOVERNANCE OF ENGLAND (c.1475), c.1; likewise his DE NATURA LEGIS NATURAE (“On the nature of natural law"] (c.1462) c.16; similarly his DE LAUDIBUS LEGUM ANGLIAE [“In praise of the laws of England”] (c.1469) cc. 2-4. Thence it finds its way into Coke and the mainstream of English constitutional thought. The first editor of Sir John Fortescue's GOVERNANCE (Lord Fortescue of Credan, when solicitor-general to the Prince of Wales, in 1714) titled the work "THE DIFFERENCE BETWEEN AN ABSOLUTE AND LIMITED MONARCHY." In c.1 of the GOVERNANCE, as elsewhere in his writings on this theme, Fortescue appeals to the authority of Aquinas, explicitly to the DE REGIMINE PRINCIPUM; there is, however, no evidence that he read Aquinas's commentary on the Politics: see CHARLES PLUMMER (ed.), THE GOVERNANCE OF ENGLAND BY SIR JOHN FORTESCUE... 172-3 (Oxford U.P., 1895). 4. E.g. ARISTOTLE, POLITICS III,10: 1286a9, etc. 5. ARISTOTLE, NICOMACHEAN ETHICS V,6: 1134a35-b1. 1994] LIBERALISM/NATURAL LAW 689 what threatens to turn government into tyranny (rule in the interests of the rulers) is their human passions, inclining them to attribute to themselves more of the good things, and fewer of the bad things, than is their fair share. And the commentary on the Politics suggests another reason. Political (as opposed to despotic government) is the leadership of free and equal people; and so the roles of leader and led (ruler and ruled) are swapped about for the sake of equality, and many people get to be constituted ruler either in one position of responsibility or in a number of such positions. 6 Such regular change-overs in political office-standardly correlated with elections obviously need to be regulated by the laws which constitute (define) those offices; those who at any one time hold office accordingly do so “according to law” (secundum statuta).³ The guiding thought is: "free and equal." Indeed, in his own free-standing theological works Aquinas will say that the best arrangement of governmental authority (optima ordinatio principum) will include this, that “everyone (omnes) shares in government, both in the sense that everyone is eligible to be one of the rulers, and in the sense that those who do rule are elected by everyone." And those who go beyond constitutional limits by enacting ultra vires laws are thereby acting unjustly;10 their action is merely another way of getting more than their fair share (in this case, of authority, if of nothing else). The account of the rationale and content of the Rechtsstaat or Rule of Law, and thus of the point and scope of the legal limits on government, has in subsequent centuries become somewhat ampler and more detailed. However, like these early teachings of Aristotle and Aquinas, later accounts enriched by historical experience and the reflections of public lawyers properly pertain to natural law theory, in ways which I hope to make a little clearer in what follows. 6. AQUINAS, IN LIBROS POLITICORUM ARISTOTELIS EXPOSITION I, 5 (Marietti ed., 1951, n.90): "politica est principatus liberorum et aequalium: unde communtantur personae principantes et subiectae propter aequalitatem, et constituuntur etiam plures principatus vel in uno vel in diversis officiis." 7. See ibid. n.152. 8. Id. 9. AQUINAS, SUMMA THEOLOGIAE I-II, q.105 a.lc. On sharing in government as the essence of citizenship, see AQUINAS, IN LIBROS POLITICORUM ARISTOTELIS EXPOSITIO III, 1 (Marietti ed., 1951, n.354). 10. This one form of unjust law (and so more a matter of violence than of law properly understood): ÁQUINAS, SUMMA THEOLOGIAE I-II q.96 a.4c. 690 MERCER LAW REVIEW [Vol. 45 II. Deeper and more demanding than any constitutional or other legal limits on governments are the moral principles and norms which natural law theory considers to be principles and norms of reason," and which are limits, side-constraints, recognized in the conscientious deliberations of every decent person. The public responsibilities and authority of rulers do not exempt them from these limits:¹2 no intentional killing of the innocent; no rape; no lies; no non-penal enslavement, and so forth. The reassertion of the truths that there are indeed such limits on government, and that they can well be articulated in the relatively modern language of truly inviolable rights, is one of the principal teachings in the papal encyclical Veritatis Splendor, and as, you may be surprised to hear, the first attempt the highest teaching authority of the Roman Catholic Church has ever made to "set forth in detail the fundamental elements of Christian moral teaching.' The justification of the traditional claim that these are truths which both pertain to divine revelation and are accessible to reason unaided by revelation would be matter for another lecture, or series of lectures. I have done something towards that project in the last four chapters of my book with Joseph Boyle and Germain Grisez, Nuclear Deterrence, Morality and Realism¹4 and in my little more recent book Moral Absolutes.¹5 Matter for another lecture would also be the claim made in the papal letter that "the commandments of the second table of the Decalogue in articular those which Jesus quoted to the young man of the Gospel (cf »13 11. See PLATO, REPUBLIC IV, 444d; IX, 585-6 on acting according to reason and thus according to nature. More explicitly, AQUINAS, SUMMA THEOLOGIAE I-II q.71 a.2c: “The good of the human being is being in accord with reason, and human evil is being outside the order of reasonableness . . . . So human virtue... is in accordance with human nature just in so far as it is in accordance with reason, and vice is contrary to human nature just in so far as it is contrary to the order of reasonableness." 12. "The same law of nature that governs the life and conduct of individuals must also regulate the relations of political communities with one another ... Political leaders ... are still bound by the natural law . . . and have no authority to depart from its slightest precepts": JOHN XXIII, ENCYCLICAL PACEM IN TERRIS (1963, part III, paras. 80-81. See JOHN FINNIS, JOSEPH M. BOYLE, JR. & JERMAIN GRISEZ, NUCLEAR DETERRENCE, MORALITY AND REALISM 205 (Oxford U.P., 1987). 13. ENCYCLICAL LETTER VERITATIS SPLENDOR REGARDING CERTAIN FUNDAMENTAL QUESTIONS OF THE CHURCH'S MORAL TEACHING, dated 6 August 1993, sec. 115. The treatment of inviolable human rights, based on the moral norms exceptionlessly prohibiting intrincally evil kinds of act centres on secs. 95-101. 14. FINNIS, BOYLE & GRISEZ, supra note 12. 15. JOHN FINNIS, MORAL ABSOLUTES: TRADITION, REVISION AND TRUTH (Catholic University of America Press, Washington DC, 1991), especially pp. 1-83.
