Alex E. Wallin (The Norman Adrian Wiggins School of Law at Campbell University) has posted John Finnis’ Natural Law Theory and a Critique of the Incommensurable Nature of Basic Goods
on SSRN. Here is the abstract:
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Can a list of self-evident incommensurable basic goods be the foundation for a workable Natural Law theory when situations arise where an actor makes no choice but should still be considered moral?
Without any hierarchy governing the basic goods that provide the basis of John Finnis’s “New Natural Law” theory moral actors will inevitably be required to makes choices, as Russell Hittinger argues, without the ability to judge the morality of that choice. Also problematic is this theory’s allowance for a person to act to save another’s life without consciously making any choice and counter-intuitively be considered to not have acted morally. Finnis’s system is examined in its entirety with specific attention to the issues created by an incommensurable pre-moral list of basic goods. An excellent critique by Hittinger concerning specific problems associated with Finnis’s theory is also discussed followed by additional commentary from the author on other flaws associated with this list of basic goods. The resurgence of interest in Natural Law theory and the Supreme Court’s own discussions of issues addressing morality warrants a closer look at the arguably most authoritative modern statement on natural law in order to better understand morality and its place in our national discourse.