Sunday, June 05, 2011

The limits of human law

The Western Confucian juxtaposes the view of the state (and law) given by Nicholas Hosford in The Role of the State with John Finnis's interpretation of Aquinas in his SEP article. According to the latter, "coercive jurisdiction extends to defending persons and property both by force and by the credible threat of punishment for criminal or other unjust appropriation or damage[, b]ut it does not extend to enforcing any part of morality other than the requirements of justice insofar as they can be violated by acts external to the choosing and acting person's will."

In his article dealing with the limits of law, Aquinas writes that law prohibits "only the more grievous vices," chiefly grave forms of injustice. But it is not necessarily limited to prohibiting injustice, as Finnis (and liberals) would maintain. Because of the unity of the virtues, one could argue that law can prohibit those "private" vices which could potentially undermine justice and living up to one's obligations to the community. (Is it not the case that disordered desires can lead to the performing of unjust acts for the sake of fulfilling those desires?) Injustice is a direct threat to communal living, but it seems to me that law can be used to protect all that is ordered to virtuous life with others.


One way to counter this is deny this thesis of the unity of the virtues (as Finnis does, I believe - I will have to double-check). One can separate the acquisition of justice from the acquisition of the other virtues. Finnis does this by weakening the notion of virtue to the point that it is simply habitual rule-following. One of his disciples, Robert George, allows for the extent of law to be greater (so that it encompasses the banning of pornography, for example). I will have to see if he diverges from Finnis in his premises. (Making Men Moral and In Defense of Natural Law.)

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