Reason, Morality, and Law: The Philosophy of John Finnis, edited by John Keown and Robert P. George, is the best festschrift I have ever read.
Long-time collaborators in the New Natural Law project, such as Germain Grisez, Joseph Boyle, and Robert P. George, contribute essays, as do prominent critics of Finnis such as Anthony Kenny, Jeremy Waldron, and Joseph Raz. Also included in the mix are critiques from what might be called the Classic Natural Law approach, represented by Kevin Flannery, SJ, and John Haldane.
All of these essays, much like the work of Finnis himself, are incredibly wide-ranging. The topics they tackle include the role of judges in cases prior to the adoption of a new constitution, the proper interpretation of the plays of Shakespeare, the mens rea for murder, and the experience of the blessed in heavenly fulfillment after death. At the conclusion of the book, Finnis responds to each of the prior twenty-seven essays, correcting, extending, and concluding their remarks. The book also includes a very helpful bibliography of published works by Finnis as well as a table of contents of the Oxford University Press’s five-volume Collected Essays of John Finnis.
I hope I may be forgiven if a review of a six-hundred-page book composed by so many authors does not touch on every essay. For the sake of brevity, I’ll mention only a few highlights.
Touching Tributes and Challenging Cases
Neil M. Gorsuch, a judge of the United States Court of Appeals for the Tenth Circuit, offers a touching tribute to Finnis as teacher: “Not every great scholar is also such a devoted teacher, taking to heart his role as leader in the daily life of a collegiate community.” At Oxford, Finnis acted as director of undergraduate studies, keeper of the college finances, and dean of graduates. As a professor, he would read draft after draft of student work, pouring out comments in red ink and providing “the gentle but exacting cross-examinations we endured while sweating next to (but never raked over) the coal fire in his paneled college room.”
Luke Gormally, son-in-law of Peter Geach and Elizabeth Anscombe, sees important contradictions between Finnis’s understanding of intention and Anscombe’s. Even though Finnis sympathetically draws on Anscombe, he has also charged her with inconsistency in her treatment of various cases. Gormally defends Anscombe against this charge by drawing upon a hitherto unknown work of Anscombe, which deals with craniotomy and with the hypothetical case of a man being transfixed with an arrow. This single hand-written sheet is reproduced in full in the book. Though these cases are certainly interesting and worthy of study, the fact that Anscombe did not publish her reflections on them anywhere suggests that even she may not have viewed this articulation as her settled thoughts on the matter. The fine distinctions under discussion have important real-world consequences in, for example, the separation of conjoined twins doomed to die if not separated. On Gormally’s view, Anscombe’s understanding of intention renders such operations impermissible because they constitute intentionally mutilating one twin in order to save the life of the other.
Finnis replies that Anscombe’s account of intention, both published and unpublished, distinguishes what is intended from what is foreseen but not intended through queries aimed at unveiling the practical reasoning of the agent. For example, Finnis points out,
the stuttering witness would reject the question, “What are you stuttering for?”, and the surgeon trying to separate the conjoined twins would reject the question “Why are you trying to mutilate the weaker one?”
If an effect is not the reason, as a means or an end, for which an agent performs an act, then the effect is not intended, even if it necessarily accompanies intended effects (think, for example, of the effect of wearing out running shoes with the intention of getting in shape).
Patrick Lee’s essay, “The Basis for Being a Subject of Rights” develops Finnis’s rejection of body-self dualism. Lee argues that “I” am not simply my thoughts, beliefs, and desires, as opposed to my body, which is merely a kind of vehicle housing the real and purely mental “me.” Suppose that I would die if I did not undergo brain surgery that would erase my memories, beliefs, and desires. Following the surgery, I would have to relearn to talk and reconnect with all those whom I love. As Lee points out, “If someone told me that, although I will not remember who I am, I will suffer excruciating pain after the surgery, I would be very afraid.” But this reaction only makes sense if the “I” before the surgery is the same as the “I” after the surgery. I am the one who is afraid before the surgery, I undergo the surgery, then I suffer afterwards.
We can underscore Lee’s and Finnis’s rejection of body-self dualism by considering the case of twin three-year-old girls. Let’s call them Sophia and Madison. The girls survive a car crash, but both have memory loss. Sophia will eventually recover most of her memories, but Madison will never recover hers. If the right to live depends upon psychological connections, to kill Sophia is seriously wrong, but to kill Madison is not. The identical twins have radically different moral statuses only because one will recover a few memories and the other will not. This is hard to believe. Moreover, the car accident both destroyed a person and (supposing Madison is not killed) led to the creation of a new person.
Examples such as these make clear that we are not constituted simply by beliefs, memories, and desires. Indeed, a rejection of body-self dualism is essential for a sound bioethics.
A Leading Authority in Bioethics
To honor his Oxford doktorvater, Dominican Anthony Fisher, the Archbishop of Sydney, penned an essay titled “Bioethics after Finnis.” Fisher deftly criticizes the two main models of decision-making in bioethics. On the one hand is a “buffet bioethics where autonomous agents choose according to taste from a range of principles so as to get the permissions they want.” And on the other hand is a “ledger bioethics that purports to balance various debits and credits, again usually in favour of prior preferences.” Archbishop Fisher notes,
If bioethics is to support more than medibusiness and the bioethics industry itself, it must follow the best of recent moral philosophy into the richly textured terrain of human goods, norms and commitments, nature and supernatural virtues, narratives, communities, and tradition.
John Keown points to a better method in bioethics provided by Finnis himself, arguing that he should be recognized “as a leading authority on the law and ethics of medicine.” Part of the power of his contribution is to push back against an ungrounded emphasis on autonomy in bioethical questions. As Keown notes, “If nothing else about human existence is of objective importance, why should the individual’s opinion be so?” If the being in question does not matter to begin with, it is hard to see why we should care about the being’s preferences, desires, autonomy, or other subjective inclinations. How could an individual’s desiring of life give the life value, unless the individual has value? If the human person in question does not matter to begin with, it is hard to see why we should care about the human person’s preferences, desires, or other subjective inclinations. The autonomy of human persons matters because human persons matter.
Indeed, Finnis argues that the idea that your life has value only because you value it is vague, arbitrary, discriminatory, and dualistic. The desire-dependent view of a human being’s value is vague, because we do not know specifically when this begins or how long this lasts. It is arbitrary, because in some cases we think people not desiring their own lives are still valuable, as in many cases of suicide prevention. It is discriminatory against the depressed, the mentally handicapped, the injured, the intoxicated, and the brainwashed. Finally, the desire-dependent view is at least implicitly dualistic, supposing that “we” exist only when our desires begin to exist. Our bodies are not mere vehicles by which we transport our purely mental selves.
While some justifications of euthanasia rely on body-self dualism, Finnis shows how other justifications of euthanasia are at cross-purposes. “If autonomy is the principal or main concern, why is the lawful killing restricted to terminal illness? . . . If suffering and terminal prognosis are the concern, why is relief restricted to those who are capable of asking for it?”
Powerful and Persuasive Responses
Perhaps the best interchange of all is the second to last. In “The Right to Religious Liberty and the Coercion of Belief: A Note on Dignitatis humanae,” Thomas Pink argues that the Catholic Church, at various times in history, advocated state coercion in religious matters. Furthermore, Pink argues that even Vatican II does not forbid religious coercion as such. Rather, its true focus is the state’s, not the Church’s, involvement in such coercion. Pink writes,
The debate about the significance of such apparent variation in permitted state coercion is proving interminable. Indeed the debate seems impossible to resolve when limited to the history of teaching specifically on the state. And now we see why. For all along the real coercive authority in religion was the Church, not the state.
The Church, in Pink’s view, may coerce belief as well as practice. The baptized have obligations to God and to the Church, and the faithful may be coerced to meet these obligations. State coercion in religion rested upon an ecclesiastical policy of directing baptized persons in political authority to use governmental means to aid the Church in ecclesial coercive efforts.
Finnis’s response to Pink’s chapter looks at the drafting committee reports of Dignitatis humanae which (following Aquinas) never endorse using compulsion to attempt to compel the beliefs of either heretics or lapsed Catholics. To do so may encourage lying and hypocrisy. Finnis notes that fundamental goods are at stake:
The same good of dignity, responsibility, and authenticity in inquiries and commitments about religious matters, the good that unconditionally excludes trying to coerce someone into faith, equally excludes trying to coerce someone back to faith.
The Church may discipline its members and impose penalties upon them, but the penalties are not aimed at coercing belief.
The Church is a voluntary association. The penalties for heresy and apostasy, as for the other offences known to canon law, are just as you would expect: deprivation of the benefits of membership (excommunication, deprivation of ecclesiastical office, and the like). They are justifiable not as intended to pressure to faith but as intended to protect the household and vindicate its due order.
Both Pink’s and Finnis’s contribution go well beyond anything I’ve read about the proper interpretation of Dignitas humanae. Further research on these issues should now begin with them.
A repeated experience arose in my reading. After completing each essay, which invariably raised some point of difficulty for Finnis’s view, I would immediately turn to his reply, which almost invariably provided a powerful and persuasive response to the difficulty raised. Always acute in mental power, Finnis is also at turns witty and profound. To try to determine what “legal positivism” means, he writes, requires going into “a gloomy jungle into which it is best never to stray.” In an aphorism that would make Pascal jealous, Finnis notes that “rational force is at bottom the attractiveness of truth.”
I wish Keown and George had included a contribution from Jeff McMahan, who is perhaps the most powerful critic of the views Finnis defends. I also wish George had returned in his contribution to some of the disagreements that he has had with Finnis over the years, such as the role of government in encouraging morality. But these are mere quibbles that hardly detract from a truly outstanding book, which is a fitting honor to the spectacular achievement of John Finnis.