Christopher Tollefsen on the New Natural Law Theory

In a previous post I mentioned that Christopher Tollefsen can be considered to be a disciple of Germain Grisez. From this I concluded that he is probably an advocate of the New Natural Law Theory. It turns out that I surmised correctly. I also noted in another post that the Philosophy Department at St. Anselm College has a blog. Today I discovered that there is a journal of philosophy associated with the college as well--Lyceum. There is also a blog dedicated to the discussion of articles from the journal. Browsing through the archive, I find that Dr. Tollefsen has written an article discussing the New Natural Law Theory (pdf). This article is recent, so it should provide a good overview of the state of the controversies raging between adherents of the NNLT and traditional Thomists (or neo-Thomists, as some NNLT proponents label some of them--let's set aside the question of whether neo-Thomism is rightly used as a pejorative or not). It also seems to me that the introduction by Tollefsen could serve as a basis for an "informal" (i.e. not published in an academic journal) response (or a formal, published response) by traditional Thomists to the assertions of New Natural Law theorists.

I wish to concentrate solely on what Dr. Tollefsen says about the common good and to make some notes.

4. Political Authority and the Political Common Good
In 1979, Grisez and Boyle published Life and Death with Liberty and Justice; in 1980, Finnis published Natural Law and Natural Rights. Together the two books marked the beginnings of a “discussion of political theory” carried on between the three thinkers.[30] Grisez and Boyle describe their early part in this discussion as conceding “somewhat too much to political theories that are prevalent in the United States.”[31] By this, they refer to an indebtedness to John Rawls’s antiperfectionism. In Life and Liberty Boyle and Grisez allowed that it would be wrong for the state to incorporate substantive moral values, such as the good of life, into its governing principles, and hence into its conception of the common good of the state. In part this was motivated by a need to find a principled limit on the state’s sovereignty over the lives, including the moral and religious lives, of its subjects.

Finnis’ work in Natural Law and Natural Rights, by contrast, argued for a perfectionist account of the state: the basic goods of human persons were not to be ruled out of the practical considerations at the heart of political rule, as in Rawls’s work. Yet Finnis too, like Grisez and Boyle, has been sensitive to the need for liberty in the state, and the limits of state sovereignty over individuals; all three oppose the view, encouraged by what Finnis calls a “quick” reading of Aquinas, according to which “government should command whatever leads people towards their ultimate (heavenly) end, forbid whatever deflects them from it, and coercively deter people from evil-doing and induce them to morally decent conduct.”[32]

Accordingly, Grisez, Finnis and Boyle have converged on an account of political authority and the common good that, while rooted in the basic goods, nevertheless sees the state as a “community co-operating in the service of a common good which is instrumental, not itself basic.”[33] Political authority is necessary because individuals, families, and groups, while sufficient in one sense for the pursuit of all the basic goods, including the goods of marriage and religion, are nevertheless thwarted in their pursuit of these goods by (a) lack of social coordination; (b) the hostility of outsiders; (c) the predatory behavior of some insiders; and (d) circumstances beyond the control of individuals that leave them in conditions of more than usual dependence but without the usual personal and social aids, as, for example, widows, orphans, the sick, and the disabled.

Political authority, and optimally, a political authority itself subject to law, is necessary to efficiently and fairly pursue these goals; but together, these goals comprise a set of conditions instrumentally necessary for individuals and groups to directly pursue the basic goods, individually and cooperatively. The political common good is thus described by Finnis as “the whole ensemble of material and other conditions, including forms of collaboration, that tend to favor, facilitate, and foster the realization by each individual [in that community] of his or her personal development.”[34]

In putting forth this account of political authority and the common good, Finnis has criticized the idea, mentioned above, that the common good includes the complete well-being, including the moral well-being, of the state’s citizens. In contrasting this Aristotelian idea with what he takes to be the true Thomistic view, Finnis has drawn criticism from some Thomists, who read St. Thomas as more similar to Aristotle than does Finnis. He has also generated some debate internal to the New Natural Law theory concerning the proper limits of political authority.[35]

Finnis holds that recognition of the instrumental nature of the state means that, as George summarizes his position, “law and the state exceed their just authority – thus violating a principle of justice – when they go beyond the protection of the public moral environment and criminalize 'even secret and truly consensual adult acts of vice.’”[36] But, says George in response, “it does not follow, or so it seems to me, from the instrumental nature of the political common good that moral paternalism, where it can be effective, is beyond the scope of that good.”[37] And so George, unlike Finnis, holds that the legitimate limits on legislation where morality is concerned are prudential, not principled.

Please refer to the on-line article for the footnote references.

1. Why is political authority necessary? It is not made necessary by the good involved (being common as opposed to private or singular), but for the reasons listed above, which cover interpersonal conflict. The presence of social coordination would facilitate individuals and families attaining the basic goods. But otherwise, individuals and families are sufficient to attain the basic goods. In contrast, Aquinas maintains that political authority is necessary because the good to which it is ordered is not the same as the private good of the individual. This is the holistic good, the good of the community as a whole.

(Something must adjudicate between competing desires and plans?)

2. "Yet Finnis too, like Grisez and Boyle, has been sensitive to the need for liberty in the state, and the limits of state sovereignty over individuals; all three oppose the view, encouraged by what Finnis calls a “quick” reading of Aquinas, according to which “government should command whatever leads people towards their ultimate (heavenly) end, forbid whatever deflects them from it, and coercively deter people from evil-doing and induce them to morally decent conduct.”[32] "

Aquinas recognizes that there are limits to human law. And yet if we take him seriously as an intellectual, we would gather that he thinks this is compatible with the common good being the good of the community as a whole.

"Finnis has criticized the idea, mentioned above, that the common good includes the complete well-being, including the moral well-being, of the state’s citizens. In contrasting this Aristotelian idea with what he takes to be the true Thomistic view, Finnis has drawn criticism from some Thomists, who read St. Thomas as more similar to Aristotle than does Finnis. He has also generated some debate internal to the New Natural Law theory concerning the proper limits of political authority.[35]"

What is the "complete" well-being? Can government bring about complete virtue? Probably not. But can it prohibit those actions which harm others or lead to bad moral states? Aquinas would agree that enforcement of the "no-harm principle" is important for the well-being of any community. But should law should be limited to this or not?

While Aquinas argues that law should not prohibit all vices, he does not give as a reason the question of enforceability. He focuses more on the question of observance. Would the lack of enforceability be a reason acceptable to Aquinas? Or would he reject this reason on other grounds?

Even if it is the case that law should be mostly limited to enforcing the no-harm principle, that does not mean that there is not a communal good distinct from the basic goods listed under the New Natural Law Theory. Is the complete well-being of the state's citizens the same as citizens living well with one another? I do not think so. And this is the problem, if Tollefsen is correct in his summary. (I'll have to double-check Finnis's Aquinas eventually.) The common good of the political community is not the complete well-being of its citizens. Rather, it is their life in common. It is not surprising that we who live as atomists or liberals fail to recognize this good, since for the most part we do not aim to achieve it in our own lives.

The dissertation by M. Therrien on the pedagogical nature of law should help one understand how law trains people in virtue.

*No-harm principle: No one can harm or injure (commit an act of injustice, not just physically hurt) another.