The Explanatory Gap in the Theory of Natural Law
| Author | Brian Ó Beirne |
| Position | LLB (Dub), BCL candidate (Oxon) |
| Pages | 185-217 |
THE
EXPLANATORY
GAP
IN
THE
THEORY
OF
NATURAL
LAW
BRIAN
O
BEIRNE*
Introduction
With
the
publication
of
the
second
edition
of
Natural
Law
and
Natural
Rights
impending,
the
time
is
surely ripe
for
a
renewed
consideration
of
what
is
undoubtedly
one
of
the
most
seminal
texts
of
modern
legal
philosophy.
Accordingly,
this
article
is
an
attempt
to
make
sense
of
the
Theory
of
Natural
Law
as
expressed
by
Professor
John
Finnis
in
his
book
Natural
Law
and
Natural
Rights.
This
implies
that
there
is
an
explanatory
gap-a
lacuna-in
the
Theory. That
is
to
say,
there
is
something
that the
Theory
fails
to
fully
explain.
That
"something"
is
the
precise meaning
of
the
term "obligation."
The
obscurity that
flows
from
this
explanatory
lacuna
is
further
compounded
by
the
Theory's
tendency
to
treat
the
terms
"authority"
and
"obligation"
as
interchangeable when
discussing
the role
of
judges.
The
substance
of
this
article draws out the
implications
that
necessarily
flow
from
this
explanatory
gap. As
a
consequence, this
article
purports
to
offer
a
tautological
(logically
true)
critique
of
The
Theory
of
Natural
Law.
A
brief
word
on
the
meaning
of
the
word "tautological,"
it
should
not
to
be
confused
with
the
pejorative
adjective
"tautologous." "Tautological"
is
an
adjective that
is
derived
from
the
noun
"tautology," which
is
a
sentential
relation,
a
formula consisting
of
variables,
which
is
true
for
all
possible
assignments
of
Boolean truth
values
(true
or
false)
to
its
variables.
In other words,
a
tautology
is
a
formula
that
is
true
in
every
possible
interpretation.
To
take
a
common
example: "All crows
are
either
black,
or
they
are
not
black."
This
sentence
is
a
tautology
because
it
is
true
no
matter
what
colour
crows
are.
We
can
therefore refer
to
this
sentence
as
tautological.
*
LLB
(Dub),
BCL candidate
(Oxon).
The
author
would
like
to
thank
to
Dr Oran Doyle for
his
illuminating insights
and
Ah-Young
Koo
for
her
support.
1
John
Finnis,
Natural
Law
Natural
Rights
(Butterworths,
1980).
C
2011
Brian
0
Beirne and
Dublin
University
Law
Society
Trinity
College
Law
Review
The
Theory
of
Natural
Law
uses
terms
and
concepts
to
convey
its
intended meaning.
While
the
meaning
of
the
majority
of
the terms
and
concepts used
in
the
theory
are
clear,
a
problem
arises
in
the
case
of
terms
and concepts
which
are
open
to
a
variety
of
interpretations.
Because
such
terms
can
be
interpreted
in
a
variety
of
different ways,
their
meanings
tend
to
be
"looser"
than
those
whose
meanings
are
open
to only
a
single
interpretation.
This
critique
focuses
on
one
such
term:
"obligation."
The
term
"obligation,"
as
it
is
used
in
his
theory,
can
be
interpreted
in
two
possible
ways.
These
interpretations
are
necessarily implied
by
the
Theory
(as
it
is
formulated)
simply
because
the
term
"obligation"
is
used
instead
of
any
other term.
This
critique
aims
to
show
that
every
possible
interpretation
of
the
term
"obligation"
we
could read
into
the
theory
leads
to
a
logical
inconsistency.
These
are
the
previously
mentioned implications
that
necessarily
flow
from the
explanatory
lacuna
identified.
This
critique culminates
in
two
distinct
claims.
Initially, through
advancing
the
first
possible
interpretation
of
the
term
"obligation,"
it
makes
the
claim
that
an
obligation
can
only
exist
if
a
person
believes
that
they
are
under
an
obligation,
and
that
Finnis' theory
requires
this
in
order
for
a
legal
system
to
come
into
existence
and
persist. Alternatively,
even
if
one
doesn't
accept
this view,
it
is
still
the
case
that,
under
Finnis'
account,
judges
must
be at
least
capable
of
making
honest
assertions
about
being
subject
to
obligations
to
apply
the
law
in
order
for
a
legal
system
to
come
into
existence
and
persist. Both
of
these
claims
constitute
an
attack
on
Finnis'
theory,
because,
insofar
as
the
theory
speaks
of
the
co-existence
of
conflicting obligations
for
judges,
such
requirements
cannot
be
met.
This article
is
structured
as
follows:
it
begins
with
a
comprehensive
and
holistic
account
of
Finnis'
Theory
of
Natural
Law.
This
will
include
an
account
of
the role
which
obligations
supposedly
play
in
the
Theory,
and
the
way
in
which
the
term
"obligation"
is
used
in
the
Theory.
It
is
in
this
context
that
the
Theory
has
been
modified
in
later
writings.
However,
deciding
which version
is
the "actual"
theory
could
be
problematic
for
us.
Therefore, the
Theory
analysed
in
this critique
is
taken
directly
from
Natural
Law
and
Natural
Rights.
In
any
case,
the
subsequent
alterations
to
the
Theory
do
not
seem
to
substantially
affect
the
thrust
of
the
argument
forwarded
by
this
article.
A
critical
analysis
of
this
account
then
follows,
in
multiple
parts:
first,
an
examination
of
the
Theory's
employment
of
the
philosophical
device
of
focal
meaning
will
be
carried
out;
second,
the
methodological
analysis
shall
be
applied
in
order
to
explicate
the
term
"obligation;"
third,
the
possible meanings
of
obligation
shall
be
further
considered
and
refined;
fourth,
the
two
differentiated interpretations
of
obligation that
are
necessarily implied
by
the
Theory
shall
be
considered;
[Vol. 14
186
The
Explanatory
Gap
in
the
Theory
of
Natural
Law
fifth,
the first
interpretation
of
obligation
(the
sceptical
account)
shall
be
used
as
a
means
to
analysing
the
logical
consistency
of
Finnis'
Theory
of
Natural
Law;
and
sixth,
it
shall
be
shown
that
the
logical
inconsistencies
persist
in
the
case
of
the
second
interpretation
of
obligation that
is
necessarily
implied
by
the
Theory.
Finnis'
Theory
of
Natural
Law
Finnis'
Theory
of
Natural
Law,
as
propounded
in
Natural
Law
and
Natural
Rights,
is
an
account
of
law
which
is
meant
to
be
understood
prescriptively;
the focus
of
his
"theoretical
interest
is
in
justificatory
explanations."
2
In
other words,
he
is
not
aiming
to
provide
an
explanation
of
how
things
are,
but
rather,
he
wants
to
provide
a
way
in
which
one
can
understand
things
so
that
they
are
justified.
He
contends
that
there
are
seven basic goods
which
can
be
secured
only
through
the
institutions
of
human
law,
and
requirements
of
what
he
calls
"practical reasonableness"
which
only
those
institutions
can
satisfy.'
Practical reasonableness
is
the
means
by
which
people
can
rationally
order
their pursuits
in
such
a
way
that
enables
participation
in
the "Seven
Basic
Goods."
The
term
"participate"
is
used
because,
as
Finnis
explains,
it
is
not
apt to
speak
of
the
goods
as
being
an
end "external
to
the
'means'
by
which they
are
pursued:
one's
self-determination
is
never
consummated
and
never
finally
completed."A
The
Seven
Basic
Goods
are
life,
knowledge,
aesthetic
experience,
play,
friendship,
religion,
and
practical reasonableness.
According
to
Finnis,
these
goods
are
self-evidently good.
Satisfying
the
requirements
of
practical reasonableness
is
what
enables
one
to
"participate"
in
these
goods.
6
Finnis
suggests
that
participation
through
"commitments,
projects
and
actions
...
which
are
explicable
by
reference
to
that
basic
practical
principle
(the
basic
good
that
is
being
participated
2
Ibid.,
at
237.
3
Ibid.,
at
1.
4
Ibid.,
at
96.
'
Ibid.
6
Ibid.,
at
12:
"By
'practical'... I
do
not
mean
'workable'
as
opposed
to
unworkable, efficient
as
opposed
to
inefficient;
I
mean
'with
a
view
to
decision
and
action'.
Practical
thought
is
thinking
about
what
(one
ought)
to
do.
Practical
reasonableness
is
reasonableness
in
deciding,
in
adopting commitments,
in
choosing
and
executing
projects,
and
in
general
in
acting
...
[s]o
when
we
say
that
the
descriptive
theorist
(whose purposes
are
not practical)
must
proceed,
in
his
indispensable selection
and
formation
of
concepts,
by
adopting
a
practical
viewpoint, we
mean
that
he
must
assess
the
importance
or
significance
in
similarities
and
differences
within
his
subject-matter
by
asking
what would
be
considered important
or
significant
in
that
field
by
those
whose concerns,
decisions
and
activities
create or
constitute
the
subject-matter."
2011]
187
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