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O’Shea
Huron University College
The Essential Role of Critical Morality in Law: Finnis and Hart’s Insights
Jack O’Shea – 251180744
Prof. Lamoureux
Philosophy of Law (PHIL 2821F)
October 25, 2023
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O’Shea
Within the field of legal philosophy, an enduring and profound debate revolves around
the intricate relationship between law and morality. The objective of this essay is to examine the
perspectives of John Finnis and H.L.A. Hart. This essay will illustrate the divergent viewpoints,
revealing the crucial role that critical morality, as advocated by John Finnis, plays in the
development and evaluation of legal systems. While H.L.A. Hart's legal positivism offers an
analytical insight into the sociological aspects of law, the argument presented here puts forth that,
for the pursuit of a more equitable and morally grounded legal framework, the incorporation of
universal moral principles, as advocated by Finnis, holds profound significance. Therefore, by
exploring these different philosophical perspectives, this essay hopes to clarify the indispensable
nature of critical morality in forming the framework of law and underscore the lasting
significance of integrating universal moral principles that apply to all people into the design of
legal systems.
John Finnis is a renowned legal philosopher known for his contributions to natural law
theory, which highlights the relationship between law and morality. Finnis argues that law and
morality are intimately connected. He believes that the essence of law involves a moral
component. For Finnis, the law is not merely a set of rules and commands; it is a system that
should uphold many basic moral principles. These principles, according to him, are based on the
nature of human beings and their innate morality. As a result, he sees law as an instrument for
promoting the common good and human flourishing. Finnis argues that “actions, practices, etc.,
are certainly influenced by the “natural” causes …” (Culver et al. 41-62). At the core of Finnis's
philosophy is the idea of natural law. He asserts that there are objective moral principles that can
be discerned through reason and rational reflection on human nature. These principles are not
subject to arbitrary human preferences but are rooted in the fundamental aspects of what it means
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to be human. Finnis reinforces this when he writes, “The actions, practices, etc., can be fully
understood only by understanding […] their significance or importance, as conceived by the
people who performed them.” (Culver et al. 41-62). The idea of practical reasonableness is
central to Finnis's philosophy. It alludes to the human capacity for rational decision-making and
moral judgment. According to Finnis, individuals can reason about what is morally right and
wrong, and this capacity should guide their actions and be reflected in legal norms and decisions
(Culver et al 41-62). Law, according to Finnis, should be based on practical reasonableness and
serve as a framework for individuals to make morally sound choices. “In order to know whether
our decisions are practically reasonable or not Finnis has given nine requirements of practical
reasonableness” (Sarma). Thus, like critical morality, we use reason to evaluate our decisions.
Finnis is critical of legal positivism, a rival theory that separates law from morality. He argues
that legal positivism fails to account for the moral dimension of law and reduces it to mere social
facts. On the other hand, Finnis maintains that morality and law are inseparable, and that
morality should be based on human nature and reason. In his Basic Requirements of Practical
Reasonableness, Finnis emphasizes this. The central notion of Finnis's philosophy is that
morality and law are intertwined, with moral principles drawn from reason acting as the
cornerstone of just legal systems. His natural law theory places a strong emphasis on the
advancement of human flourishing and the common good as the main goals of law. For Finnis,
critical morality is fundamental to the goal and operation of a fair legal system, not merely a
desired feature of the law.
H.L.A. Hart was a prominent legal philosopher known for his work on legal positivism,
which is a theory that distinguishes law from morality and emphasizes the importance of social
and institutional aspects in understanding law. One of Hart's central arguments is the separation
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of law and morality. He contends that law and morality are distinct and separate concepts.
According to him, moral evaluations should not be taken into account while analyzing legal
systems and legal systems should be analyzed independently of moral judgments. Hart criticizes
natural law theories, like that of John Finnis, for conflating law with morality. Instead, he
proposes that legal systems can exist without being morally justified or grounded. Hart writes,
“It’s possible to endorse the separation between law and morals and to value analytical inquiries
into the meaning of legal concepts” (Culver et al. 84-128). Hart’s analytical approach to law
takes out reason as a variable in deciding what is sound versus what is unsound. Hart introduces
the idea of primary and secondary rules to explain the structure of legal systems. “Primary rules
are “duty imposing” rules. They impose certain specific duties upon the citizens in a state to act
in a certain manner, or they may be subject to certain legal sanctions” (Starr). These “basic” rules
tell citizens what they can and can’t do under the law. Secondary rules, on the other hand, are
rules that establish the framework for creating, changing, and adjudicating primary rules. These
secondary rules include rules of recognition (identifying what counts as valid law), rules of
change (determining how laws are modified), and rules of adjudication (providing a method for
resolving disputes). Hart introduces the concept of the "internal point of view" and the "external
point of view" to analyze law. The internal point of view is the perspective of someone who
accepts the legal system's rules and norms and obeys them in good faith. The external point of
view, on the other hand, is the perspective of an observer who may or may not agree with the
legal system but is analyzing it objectively. Hart believes that understanding the law requires
adopting both perspectives. It is important to adapt both perspectives to understand the meaning
of legal actions and describe the behaviour of legal actors (Solum). Hart's legal positivism is
based on the notion that social facts, not moral precepts, determine whether a law is valid. A law
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is deemed valid if it meets the standards of the rule of recognition and is supported by the
institutions of a legal system. The legal constitutionality of a law is unaffected by its moral
validity. Hart challenges natural law models that depend too much on moral precepts, as those
advanced by John Finnis. He contends that these theories fall short in explaining the variety of
legal systems and how they have changed throughout time. Hart's legal positivism provides a
more flexible and descriptive framework for comprehending law by emphasizing social truths
and the inner workings of legal institutions. Legal positivism is seen as more descriptive because
“Positivists seek to explain the law as regular citizens understand it, whereas natural law
theorists seek to explain the law as reasonable citizens understand it” (Ligon). This could imply
that Hart assumes that not all citizens within a society or community are naturally “reasonable”.
H.L.A. Hart's legal positivism is characterized by its separation of law and morality, emphasis on
social facts, and the distinction between primary and secondary rules.
I think that Finnis’ reasoning is better because I believe that there should be a set of
universal morally good laws. Finnis' natural law theory posits that law should be grounded in
universal moral principles derived from human nature. Each of Finnis’ goods is universal in the
sense that they always govern all human cultures (Himma). Finnis emphasizes that the primary
purpose of law is to promote the common good and human flourishing.
It is important to have
laws that not only maintain order but also actively contribute to the well-being of individuals and
society. Thus, Finnis’s approach illustrates this perspective. His natural law theory seeks to
establish a connection between law and morality to achieve these moral objectives. Finnis places
a strong emphasis on "critical morality," which involves evaluating positive morality through
reason to determine what is right and wrong. Giving value to the role of reason and rationality in
determining what should be considered morally good laws, Finnis's emphasis on critical morality
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as essential to law enforces this. On the other hand, H.L.A. Hart's legal positivism separates law
from morality and does not rely on universal moral principles as a basis for legal systems. Hart's
theory focuses on the social and institutional aspects of law, emphasizing the separation of law
and morality. I do not think Hart’s reasoning is better because I think that law should be based on
universal moral principles rather than social facts. In summary, if one advocates for the existence
of universal morally good laws and believes that law should be closely connected to moral
principles, John Finnis's natural law theory would align better with their beliefs. Hart's legal
positivism, which separates law from morality and emphasizes social facts, may not be as
compatible with this perspective.
In conclusion, the exploration into these divergent viewpoints has revealed the critical
importance of "critical morality," as championed by John Finnis, in both the formulation and
evaluation of legal systems. While H.L.A. Hart's legal positivism offers valuable insights into the
sociological aspects of law, this essay has argued that the integration of universal moral
principles, as advocated by Finnis, holds profound significance in the quest for a more equitable
and morally grounded legal framework. The argument presented here underscores the enduring
importance of critical morality, as advocated by John Finnis, in guiding the formation and
assessment of legal systems. By recognizing the intrinsic connection between law and universal
moral principles, we can work towards the development of legal frameworks that not only
uphold societal order but also contribute to the greater well-being and flourishing of humanity. In
the ongoing quest for a just and equitable legal system, the integration of critical morality
remains indispensable in shaping the bedrock of law.
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Bibliography
Culver, Keith, et al. “Natural Law and Natural Rights.”
Readings in the Philosophy of Law
,
Broadview Press, 2017, pp. 41–62.
Himma, Kenneth E. “Natural Law.”
Internet Encyclopedia of Philosophy
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%20of%20these%20basic%20goods. Accessed 25 Oct. 2023.
Ligon, Jack P. “Legal Positivism, Natural Law, and Normativity.”
UVM ScholarWorks
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University of Vermont, 2021, scholarworks.uvm.edu/cgi/viewcontent.cgi?
article=1455&context=hcoltheses.
Sarma, Diksha. “The Idea of Practical Reasonableness.”
International Journal of Advanced
Research
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Solum, Lawrence. “Legal Theory Lexicon 038: The Internal Point of View.”
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Starr, William C. “Law and Morality in H.L.A. Hart’s Legal Philosophy - Marquette University.”
Marquette Law Review
, 1984, scholarship.law.marquette.edu/cgi/viewcontent.cgi?
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