Philosophy of Law: Collected Essays Volume IV

522 Pages·2011·2.91 MB·English

by  John Finnis

Philosophy of Law
Works of John Finnis available from
Oxford University Press
Reason in Action
Collected Essays: Volume I
Intention and Identity
Collected Essays: Volume II
Human Rights and Common Good
Collected Essays: Volume III
Philosophy of Law
Collected Essays: Volume IV
Religion and Public Reasons
Collected Essays: Volume V
Natural Law and Natural Rights
Second Edition
Aquinas
Moral, Political, and Legal Theory
Nuclear Deterrence, Morality and Realism
with Joseph Boyle and Germain Grisez
PHILOSOPHY
OF LAW
Collected Essays: Volume IV
John Finnis
1
3
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PREFACE
The earliest of the essays collected in these fi ve volumes dates from 1967,
the latest from 2010. The chronological Bibliography of my publications,
near the end of each volume, shows how the collected essays are distributed
across the volumes. But each volume also contains some essays previously
unpublished.
Many of the essays appear with new titles. When the change is
substantial, the original published title is noted at the beginning of the
essay; the original can of course always also be found in the Bibliography.
Revision of previously published work has been restricted to clarifi cation.
Where there seems need for substantive qualifi cation or retractation,
I have said so in an endnote to the essay or, occasionally, in a bracketed
footnote. Unless the context otherwise indicates, square brackets signify
an insertion made for this Collection. Endnotes to particular essays have
also been used for some updating, especially of relevant law. In general,
each essay speaks from the time of its writing, though the dates given
in the Table of Contents are dates of publication (where applicable) not
composition—which sometimes was one or two years earlier.
I have tried to group the selected essays by theme, both across and within
the volumes. But there is a good deal of overlapping, and something of each
volume’s theme will be found in each of the other volumes. The Index,
which like the Bibliography (but not the ‘Other Works Cited’) is common
to all volumes, gives some further indication of this, though it aspires to
completeness only as to names of persons. Each volume’s own Introduction
serves to amplify and explain that volume’s title, and the bearing of its
essays on that theme.
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CONTENTS
List of Abbreviations ix
The Cover Picture xi
Note xii
Introduction 1
Part One Foundations of Law’s Authority 21
1. Describing Law Normatively (2003) 23
2. Law’s Authority and Social Theory’s Predicament
(1984) 46
3. Law as Coordination (1989) 66
4. Positivism and ‘Authority’ (1987) 74
Part Two Theories and Theorists of Law 89
5. A Grand Tour of Legal Theory (2002) 91
6. Legal Philosophy: Roots and Recent Themes (1998) 157
7. The Truth in Legal Positivism (1996) 174
8. Blackstone’s Theoretical Intentions (1967) 189
9. Weber, Objectivity, and Legal-Rational
Authority (1985) 211
10. On Hart’s Ways: Law as Reason and as Fact (2007) 230
11. Hart as a Political Philosopher (2009) 257
12. Reason and Authority in Law’s Empire (1987) 280
13. Critical Legal Studies (1985) 299
14. ‘Legal Liberalism’ or Liber et Legalis? (1986) 320
15. I ndividuals, Communities, and Postmodernism:
Some Notes (1995) 327
Part Three Legal Reasoning 335
16. Allocating Risks and Suff ering: Some Hidden
Traps (1990) 337
17. Practical Reasoning in Law: Some
Clarifi cations (1990) 353
viii CONTENTS
18. Rights: Their Logic Restated (1972) 375
19. Analogical Reasoning in Law (1994) 389
20. Adjudication and Legal Change (1999) 397
Part Four The Two Senses of ‘Legal System’ 405
21. Revolutions and Continuity of Law (1971) 407
22. Just Votes for Unjust Laws (2004) 436
Bibliography of the Works of John Finnis 467
Other Works Cited 479
Acknowledgements 489
Index 491
LIST OF ABBREVIATIONS
AJJ American Journal of Jurisprudence
AL Joseph Raz, The Authority of Law: Essays on Law and
Morality (OUP, 1979)
Aquinas 1 998d: John Finnis, Aquinas: Moral, Political and Legal
Theory (OUP)
CL H.L.A. Hart, The Concept of Law (1961; 2nd edn, OUP,
1994)
CLR Commonwealth Law Reports (of decisions of the High
Court of Australia)
CLS Joseph Raz, The Concept of a Legal System (1970; 2nd edn
with a new Postscript, OUP, 1980)
CUP Cambridge: Cambridge University Press
FoE 1983b: John Finnis, Fundamentals of Ethics (OUP;
Washington, DC: Georgetown University Press)
GTLS H ans Kelsen, General Theory of Law and State (1945)
HUP Cambridge, Mass.: Harvard University Press
In Eth. Aquinas, Sententia Libri Ethicorum [Commentary on
NE] (ed. Gauthier) (1969)
In Pol. Aquinas, Sententia Libri Politicorum [Commentary on
Pol. I to III.5] (ed. Gauthier) (1971)
LJ Adam Smith, Lectures on Jurisprudence (eds R. Meek,
D.D. Raphael, and P. Stein) (OUP, 1978)
LQR L aw Quarterly Review
LSLR Julius Stone, Legal System and Lawyers’ Reasonings (1964)
MA 1 991c: John Finnis, Moral Absolutes: Tradition, Revision,
and Truth (Catholic University of America Press)
NDMR 1987g: John Finnis, Joseph Boyle, and Germain Grisez,
Nuclear Deterrence, Morality and Realism (OUP)
NE A ristotle, Nicomachean Ethics
NLNR 1980a: John Finnis, Natural Law and Natural Rights
(2nd edn, OUP, 2011)
OUP Oxford: Oxford University Press (including Clarendon
Press)