JOHN MITCHELL FINNIS

 Natural Law and Natural Rights- Book written in 1980 originally. In 2011, a second edition was
brought.
 ‘Substantive’ natural law scholar, unlike Fuller who was a ‘Procedural’ natural law scholar- more like
St. Thomas Aquinas.
 Not just a theory of law but a theory of life.
 Eventual answer for whatever you do is that it gives you happiness.
 Bentham: humans are pleasure seeking beings. Two sovereign masses pleasure and pain; human
existence seeks to enhance pleasure and avoid pain. It takes away the moral judgements that people
may make on each other depending upon the activities that a person is involved in. (Example: From
Bentham’s POV there cannot be any distinction between a person seeking pleasure by reading a novel
and another person seeking pleasure through pornography. There can be no gradation regarding one
activity being superior or inferior to the other.)
 Finnis: A biological existence with a constant desire to experience the sensation of pleasure cannot be
called life. Such a person is not flourishing as a human being
 Anti-utilitarian argument of Finnis

WHAT DOES IT MEAN TO FLOURISH AS A HUMAN BEING? (7 parts)

I. BASIC GOODS
 You have to participate in “basic goods”, if you have to flourish as a human being. You may
get pleasure or pain but you flourish as human being. (1980 a list of 7 basic goods and he
revised the list in 2011; he also wrote a number of article between 1980 and 2011. We must
consider the list in his 2011 book.)
 Basic Goods in 1980 Book:
1. Life: Doing certain things that enhance your physical health, taking precautions that
you live longer. These things are the subscription to the first basic good that is life.
2. Knowledge: It would include the efforts that you make to keep yourself informed.
There is a quest or endeavour to know and learn things. There may be different
variations under knowledge gathering information, information and analysis,
attaining wisdom, etc. Participation in this process is what gives you human life
though you may not be getting pleasure all the time.
3. Play: Recreational and sports activities
4. Aesthetic Experience: Listening to music, paint, watch a movie aesthetically
experience the world around you. Different people may have different preferable
genre. Such an aesthetic experience may involve pain as well.
5. Sociability: Interacting and mixing with people, developing bonds.
6. Practical Reasonableness: It means having a coherent plan of life.
 7. Religion: Basic questions with respect to your own existence, how do you relate
with the Creator if there is one, belief regarding what is the origin of life. Devoting
time to ask certain fundamental questions such as what is our origin, who is our
creator, what is death, etc.
 Basic Goods in 2011 Book
1. Knowledge of Reality: It will include two basic goods from the previous list
religion and aesthetic experience.
2. Skilful performance: It would include skilful performance in any activity that you
indulge in. there are chances of performing both bad and good leading to pain and
pleasure, respectively.
3. Bodily life: making efforts for physical health, vitality, vigour, longevity, etc.
4. Friendship: Includes all layers and degrees of friendship, with different levels of
intimacy and sociability.
5. Marriage: sexual association between a man and a woman. (Finnis will not agree
with same sex marital relationship; antithesis to Finnis’ idea of marriage)
6. Practical Reasonableness: same as in previous list.
7. Harmony: Concerned with the larger existence. There must be harmony with this
larger existence. Environmental legislations that support harmony with nature can
be an example.
II. IDEA OF INCOMMENSURABILITY
 All basic goods are equally basic. No one basic good is more basic that the other.
 It also means that all human beings can have their own priority in participating in basic goods.
There may also be people who may not participate in some basic goods at all, however from
Finnis’ POV they are still flourishing as human beings and participating in life. Until and unless
they are intentionally destroying any basic goods, they are participating in life.
 Flourishing as a human being is possible in infinite ways by choosing your own priorities,
choosing your own intensity in participating, choosing how much time you devote in a basic
good, choosing which basic goods you will not participate in at all, etc. Any choice must be
made in line with the basic goods.
III. PRACTICAL REASONABLENESS
1. Having a coherent plan of life.
2. Making the most of your time and resources.
3. Don’t completely rule out participating in basic goods.
4. Don’t act contrary to your conscience.
5. Don’t intentionally damage any basic good.  there cannot be euthanasia, santhara or any form
of Right to Die.
 6. Don’t arbitrarily prefer your own fulfilment over the others.  make your own coherent plan
of life and let others make their coherent plan of life
7. Don’t be negligent about your commitments of life.
IV. IDEA OF COMMON GOOD
 Idea of basic good is about having a meaningful human life and flourishing as a human being.
This idea requires you to interact with other human beings and have an access to resources that
ensure a good and healthy life. Participation in basic goods calls for interaction with other
human beings and access to material resources.
 One cannot participate in basic good unless the State provides for a conducive environment.
Example: to participate in aesthetic experience and if there is a ban on speech and expression,
you cannot participate in the basic good. This environment which is necessary and which is a
common conducive environment to all for participating in basic goods depending upon their
respective pursuits, preferences and priorities.
 Legislations will tell how and to what extent you have access to the material resources for
participating in basic goods.
 Common good includes:
1. Control and management of interpersonal relationships.
2. Managing relationship of human beings with environment (material resources)
 Environment must be good enough for all irrespective of the varied priorities of participation
in basic goods of different people.
 Different countries or societies have created different environments for their own citizens. this
environment is nothing but common good. Every society will have their own specific common
good.
 What should be your common good? There cannot be one answer to this.
 “Determination”  Example of a door knob. There is agreement on getting a door knob for
the door. There arises question of which knob should be chosen. This can be answered in 2
ways:
1. Consensus: Problem with consensus in case of large and diverse societies. It is a
theoretical method. Consensus not practically possible
2. Authority: By consensus common good cannot be achieved, thus arises the need for
authority.
V. NEED OF AUTHORITY FOR ACHIEVING COMMON GOOD
 There must be someone with the authority to decide the common good.
 Picture of a law maker emerges.
 This authority is constrained in the manner that whatever he decides must provide a conducive
environment for the achievement of basic goods. If law antithesis to basic good, then he has
not achieved common good.
  Whoever happens for whatever reason to have authority in the community comes under an
obligation to exercise that authority for the sake of securing common good.  He is not ruling
out any form of government. Whatever be the reason for having authority, the exercise of
authority must be for achieving the common good.
VI. WHY IS LAW THE BEST INSTRUMENT TO ACHIEVE COMMON GOOD
 Person in authority can achieve the common good in multiple ways. There is also a possibility
of achieving common good arbitrarily. It can be achieved even in the absence of law
 According to Finnis, law is not the only instrument but the best instrument to achieve the
common good. The one in authority should make laws.
 8 Characteristics of Law:
1. Positivity: law can be understood and identified without having a recourse to a moral
argument. Once the law maker has crated law, after that to identify the law, there is no
need to go into further deliberations and tests.
2. Integrity: Law must have a pillar-like quality which holds the past, present and future
together. There must be integration of time by validating similar transactions of the
past, present and future.  Absence of arbitrariness
3. Coerciveness: From Finnis’ POV, it is an important feature because it incentivises the
law abider to continue to abide by the law. He does not talk about retribution but
increasing the incentive.
4. Seamlessness: Certain laws put you in a disadvantage. Law must even out. There can
be advantage sometimes and disadvantage at other times within the same legal system,
5. Gaplessness: Having answers to all problems. Law must provide solutions to all
answers to questions of achieving common good.
6. Supremacy: Law must be a neutral method which can achieve supremacy over and
above all sorts of regulatory mechanisms. For instance, law must not find recourse to
religion to claim supremacy. Law makes a claim of supremacy and therefore it is the
best suited instrument.
7. Openness: It allows citizens to come up with their own solutions to problems.
Examples: ADR Once there is settlement of dispute through mediation and
negotiation, law treats that as binding. Law is open to the suggestions of people to solve
problems. Autonomy to people to enter into binding contracts
8. Flexibility: Accommodation of law through amendments to fit into the changing
circumstances and dynamism of environment.
VII. CLASSIFICAION OF LAWS
1. Deductive Laws: those legislations which can be naturally deduced from the idea of basic
goods. Protects your participation in basic goods.
 2. Determination Laws: Law maker may exceed its authority when non-deductive laws are made.
While the laws are made there are certain basic principles that must be adhered to. There are
13 such principles according to Finnis:
a) Compulsory acquisition of property must be compensated.
Example: creation of infrastructural facilities for the common good, which requires
acquisition of land of people. The law maker may in the guise of providing common
good, oppress the citizens. Thus Finnis says there are certain limitations within the
bound of which a law maker must operate.
b) No liability for unintentional injury.
Example: General exceptions in IPC  doli incapax, unsoundness.
c) No criminal liability without mens rea.
d) No aid to the abuse of rights. Right to freedom of speech and expression and when there
is defamation, no protection should be provided by the State.
e) No judicial aid to the one who pleads his own wrong.
f) Estoppel. If you have asserted a fact, you are stopped from denying the truth of the
statements. Example: holding out in partnership.
g) Fraud unravels everything.
h) Profits received without justification and at the cost of another must be restored.
i) Contracts must be performed  pacta sunt servanda
j) Relative freedom to change existing patterns of legal relationships by agreement
(Novation in contracts)
k) In assisting the legal effects of the actions, the weak to be protected against their
weakness.
l) Disputes not to be resolved without giving both sides an opportunity to be heard.
m) No one to be allowed to judge his own cause.

RONALD DWORKIN

 Background lies in claims of American realists.  law making is done by judges and legislators are
just creating the source of law. Interpretation of the legislation is the real law which is done by judges.
 Analysis of judges (economic status, educational status, family background) can lead to predictions
regarding the way they pronounce the judgment or the outcome of their judgements.
 CONTEMPORARY EXAMPLE: Debate on appointment of Cavanaugh in America. Democrats do
not want him to be appointed while the Republicans are asserting his appointment. Democrats based
their resentment upon certain allegations. Judgements of Cavanaugh had been conservative and in line
with the ideologies of the Republicans. Fixed bench strength- 9 and after the death of judge Cavalier
 there was parity between the no. of Republican judges and Democrat judges. Once Cavanaugh is on
bench the chances are that if certain matters (Mexican border dispute, abortion, etc.) are brought to the
SC bench, the decisions would be conservative.
 Judgements of judges vary according to their own orientations, political/moral ideologies, educational
backgrounds, economic investments
 Justice Indu Malhotra’s dissent  despite the fact that she was woman, she gave her opinion in favour
of the temple’s rigid policies
 Statutes are only “reference points”. The way these reference points are seen depends upon the judge
deciding upon them. Judges create law even when there are clear cut rules in that particular area.
 LAW AND MORALITY MEET: In case of judicial precedents, morality of the judges plays an
important role.
 HLA Hart refuted this idea
- Judges have a limited role to play in interpreting the statutes. Statutes in core are, judge has hardly
any role to play and therefore, in that particular case at least it can be said that law was created by
the legislator.
- Morality is background condition for judicial law making. When legislator make law, they also
take into account certain moral convictions. Thus while passing judgement, the judge is also
influenced by such moral considerations. Morality does not independently become law.
- Something is law because the rule of recognition allows it to be law. Parliament’s action will be
law even if it is devoid of moral considerations.
- Law making is thus segregated from the idea of morality.
 Dworkin also challenges American Realism but his approach is different.

DWORKIN’S CHALLENGE TO AMERICAN REALISM

 Example: while entering into contract a person will not be aware of the law if we consider that it is the
judges who make law. Thus law will always be created in the future course of time by judges and will
be applicable to the past circumstances or transactions. there will be retrospective application of law.
this is antithesis to the idea of rule of law.
 Essence of rule of law is Prospectivity (governed by existing conditions or what is known to us) which
further grants autonomy to people.
 If assertion of American Realism is accepted, it will be said that rule of law does not exist at all which
is inherently wrong.

DWORKIN’S IDEA

 If there is gap in law, the matter goes to the Court and the court will be creating law. Dworkin says in
case of hard cases, judges cannot make law.
 In a legal system, there are not just rules but also “legal principles”. Thus Dworkin’s theory is a theory
of principles.
 Underneath all the apparent rules made by the Legislature, there are principles. Even when there are
gaps in certain cases (situations where there are no rules), there will always be a principle governing
that situation.
 When a matter comes before the court, which is a hard case and there is absence of rules, the judges
are bound by principles.
 CHARACTER OF A PRINCIPLE AND HOW IT IS DIFFERNET FROM RULES:
 Unlike a rule, a principle is neither valid or invalid. There is a clear cut yes or no answer in
case of application of rules. Validity of rules is linked with the idea of Rule of Recognition.
 (Example of succession) The decisions in hard cases is based upon the choice of principle. One
principle is that “if the statute is plain, clear and unambiguous, law must be given effect to”.
Other principle is “no one should benefit from his own wrong”. Is it a discretion of the judge
to choose principles? If yes, we are back to the idea of American Realism. It is at this point that
Dworkin accepts the idea of American realism by saying that judges can use their own
discretion in case of conflicting principles. It should also be seen which principle outweighs
the other.
 (Example of minor contract case and transfer of property situation)
 Principles have a dimension of weight, unlike rules which are valid or invalid. Principles never
become invalid. Depending upon different contexts or situations, principles may outweigh each
other.
 Can there be a possibility of a division, in terms of which principle is weightier? Here again
the element of discretion comes into play.  ONE RIGHT ANSWER THESIS GIVEN BY
DWORKIN
 WHEHTER PRINCIPLES ARE A PART OF PRE-EXISTING LEGAL MATERIAL?
 Reliance on extra-legal material, no matter how appealing that may be, by judges in
pronouncing judgements becomes a matter of criticism.
 Therefore, the question arises whether the principles that Dworkin talks about are legal
material.
 “HERCULES”  From Dworkin’s POV rules do not exist without any justification. Rules
exist because there is moral justification to it. Legislature passes laws to advance certain moral
philosophies. Principles, most of time, are not explicitly created by the Legislature but if the
explicitly created rules are studied carefully, the principles behind the existing legal material
can be deduced. Therefore, principles are a part of legal material.
 Principles will be much more generalised than rules which are always specific.
  Hans Kelsen talks about norms and says that every higher norm is more general in nature.
Every higher norm provides validity to multiple lowers norms. According to Dworkin, every
principle provides moral justification to many rules.
 According to Dworkin, judges are bound by the principle in deciding. A judge is like an author
of a novel where the novel has been written by many other authors. While writing a new
chapter, it must be kept in mind that he carries forward the narrative of the novel so that there
is harmony between all the chapters. Role of the judge is to study all the rules which are relevant
to the circumstances before him and deduce the principle. This principle must be applied to the
case to come to a decision. Thus judges are not the creator of laws, they are the orators of law
as they merely apply the underlying principles.
 If a judge while deciding a hard case (where no specific rule is available and there are
conflicting principles emerging).  A judge must apply the idea of FIT AND APPEAL.
 The judge has to see, out of the competing principles, which principle is providing
moral justification to more number of rules. Such a principle will fit more in the system.
 In case both the principles are equally fitting, the judge must go to the idea of “appeal”.
Now the judge must think, if he prefers one principle over the other in a given context,
will he be presenting the principle in its best moral light. Will it appear to be a more
moral principle when compared to the other. Example of Ritz v. Palmer (grandson
killing grandfather) if the second principle is accepted, it can be presented in the best
moral light. Example of minor entering into a contract and refusing to perform the
contract, the contract being for transfer of property Principle 1: minors contract is
void [if rules are plain, clear and unambiguous, they must be applied]; Principle 2
nobody should take advantage of his own wrong. Principle 2 would involve forcing the
minor to perform the contract.
 Thus out of the competing principles, eventually there would be only one which would
appear to be the most moral in a given context. The judge decides on the basis of pre-
existing legal material and does not use his own discretion
 Stages in Deciding a Hard Case:
1. Pre-interpreting stage: Hercules judge collects all the data (rues)
2. Interpreting Stage: read the rule and deduces the underlying rules.
3. Post-interpreting stage: carrying forward the narrative and applying the principle to the
case.
 DWORKIN’S THEORY IS A THEORY OF ADJUDICATION
 It is not a theory of law but a theory of adjudication.
 THIS THEORY CANNOT CLAIM UNIVERSALITY
 Culture specific or society-specific theory.
 In every different society there will be a different narrative and different principles.
  Role of judge is not to create anything de novo but to carry forward the principles prevalent in
the society.
 COMPARTMENTALISES THE TASKS OF LEGIALTURE AND JUDICIARY
 Task of changing the narrative is with the legislators.
 If Saudi Arab goes on to pass progressive laws
 Traditionalist Democratic idea which talks about division of power law making is the task
of Legislature and the task of Judiciary is only to apply the law
 IT IS A COMPLIMENT TO HART’S THEORY
 It does not replace Hart’s theory.
 Rule of Recognition not only recognises the rules but also the underlying principles.
 Hart’s theory can accommodate the idea of principles.

NOTE: Gap appears not only in case of absence of rules but can appear in any case where there are conflicting
principles.

There cannot be a dissenting opinion according to Dworkin. Every judge can arrive at only one right
conclusion.

IDEA OF DEEP CONFLICT: Issaiah Burmin (criticism of Dworkin’s theory)