A Response to Harel, Hope, and Schwartz

A seminar held in the Hebrew University of Jerusalem in December 2012 discussed critical comments by Alon Harel, Simon Hope, and Daniel Schwartz on themes and theses in Human Rights and Common Good, volume III of Collected Essays of John Finnis (Oxford University Press, 2011). Revised versions of these comments, and of the response I gave at this seminar, are now published in the Jerusalem Review of Legal Studies. The Response retains the informal and engaged character of this very good academic occasion. Section I considers Harel’s thesis that judicial review of legislation can be defended because my “in-authenticity” critique of it (in the Maccabaean Lecture 1985) applies a fortiori to the legislative articulation of human rights. Section II considers Harel’s thesis that my account of punishment is a “consequentialism” of “harmony”. Section III considers Schwartz’s thesis that the principle of subsidiarity is an insufficient restraint on governmental action. Section IV considers Harel’s and incidentally Hope’s theses on sex ethics (particularly their thesis that same-sex relations and marriage are morally acceptable), an ethics of fundamental and great importance for social-political life and theory. Section V considers Hope’s thesis that our understanding of basic human goods cannot be disentangled from the local morality or moralities in which we grew up – or at least, cannot be disentangled sufficiently to provide us with moral guidance

A Response to Harel, Hope, and Schwartz

A seminar held in the Hebrew University of Jerusalem in December 2012 discussed critical comments by Alon Harel, Simon Hope, and Daniel Schwartz on themes and theses in Human Rights and Common Good, volume III of Collected Essays of John Finnis (Oxford University Press, 2011). Revised versions of these comments, and of the response I gave at this seminar, are now published in the Jerusalem Review of Legal Studies. The Response retains the informal and engaged character of this very good academic occasion. Section I considers Harel’s thesis that judicial review of legislation can be defended because my “in-authenticity” critique of it (in the Maccabaean Lecture 1985) applies a fortiori to the legislative articulation of human rights. Section II considers Harel’s thesis that my account of punishment is a “consequentialism” of “harmony”. Section III considers Schwartz’s thesis that the principle of subsidiarity is an insufficient restraint on governmental action. Section IV considers Harel’s and incidentally Hope’s theses on sex ethics (particularly their thesis that same-sex relations and marriage are morally acceptable), an ethics of fundamental and great importance for social-political life and theory. Section V considers Hope’s thesis that our understanding of basic human goods cannot be disentangled from the local morality or moralities in which we grew up – or at least, cannot be disentangled sufficiently to provide us with moral guidance

Patriation and Patrimony: The Path to the Charter

This annotated Coxford Lecture is the first account dedicated to tracing the part played in the 1980-82 patriation of the Canadian Constitution by the British House of Commons, particularly by its Select Committee on Foreign Affairs. This committee, for which author was the adviser, investigated the propriety of the UK Parliament’s acceding to a request for amendment of the British North America Act 1867 (as amended) if the amendment were opposed by a substantial number of Provinces and it would affect their powers. Against the firm opposition of the Canadian government (secretly being assisted by the British government), the Committee reported in January 1981 that acceding to such a request in such circumstances would be a breach of Parliament’s constitutional responsibilities. A second report, in April 1981, defended that opinion against the Canadian government’s vigorous attempt in March to refute it. The Committee’s position strongly resembles that of the “conventions” majority of the Canadian Supreme Court in September 1981. But the resemblance should not obscure a significant difference, rooted in the distinct authority of the UK Parliament during this terminal phase of the patrimony that, by Canadian decision in 1931, it had inherited: some imperial responsibilities (by then only procedural, and terminated in 1982) for the polity and people of Canada

Freedom, Benefit and Understanding: Reflections on Laurence Claus’s Critique of Authority

With wide-ranging and illuminating determination, Law’s Evolution and Human Understanding offers a refutation of the illusion of authority. No one, it rightly contends, has the right to be obeyed. Still less, as it correctly says, do any persons have the right that their say so be obeyed because they said so. Given the book’s stipulative definition of “authority,” these truths entail that authority is an illusion, and provide some important premises for a plausible further conclusion or pair of conclusions: it is harmful, both in practice and in theory, to say that some person or body has authority (“the rule of men”); and harmful to offer to explain law (or the law, or “the rule of law”) as a result of authority; and perhaps harmful even to say that it is authoritative. Stipulative definitions are free, and it is absurd to contest them. But we are entitled to demur when a stipulated definition diverges—as the book’s definition of authority does, widely—from the patterns of use and meaning established amongst reflective speakers in a self-conscious culture, or from the concepts deployed in a rationally sound body of critical discourse such as ethics, political philosophy or (tucked in under these) the philosophy of law. So I will say a bit about this divergence, and then a bit about some of the other, related matters and engaging vistas that Laurence Claus opens up for us on his bracing, enjoyable and instructive exploratory hike through some of the High Sierras of human community. I shall touch on seven rather overlapping topics or clusters of topics: duties of compliance; predictions and expectations; responsibilities; purposes; decisions; presumptions; and evolution by intelligent design

Equality and Differences

Fifty years ago this year a legal practitioner turned military intelligencer turned philosopher, Herbert Hart, published The Concept of Law, still deservedly best-seller in thought about law. It presents law, especially common law and constitutionally ordered systems such as ours, as a social reality which results from the sharing of ideas and making of decisions that, for good or evil, establish rules of law which are what they are, whether just or unjust. But right at its centre is a chapter on justice, informed by Hart’s professional knowledge of Plato and Aristotle and the tradition of civilized thought about justice, thought which he sums up like this: “the general principle latent in [the] diverse applications of the idea of justice is that individuals are entitled in respect of each other to a certain relative position of equality or inequality.” “Hence”, he goes on, “[the] leading precept [of justice] is often formulated as ‘Treat like cases alike’; though we need to add … ‘and treat different cases differently’”. This article will say something about three aspects of this vast topic: (i) about the factual basis and normative grounds of equality; (ii) about the proposed principle of equal concern; and (iii) about laws and social policies that pursue equality by selective prohibition of direct and indirect discrimination, and of harassment or vilification, victimisation and offence

The Priority of Persons Revisited

This essay, in the context of a conference on justice, reviews and reaffirms the main theses of “The Priority of Persons” (2000), and supplements them with the benefit of hindsight in six theses. The wrongness of Roe v. Wade goes wider than was indicated. The secularist scientistic or naturalist dimension of the reigning contemporary ideology is inconsistent with the spiritual reality manifested in every word or gesture of its proponents. The temporal continuity of the existence of human persons and their communities is highly significant for the common good, which is the point and measure of social justice, properly understood. Forms of injustice that are more or less independent of this temporal dimension are nonetheless important. The nation and its lasting are neglected in much of the social-political theory assumed by contemporary legal theory. So too is the family and the “covenant” between its generations, a neglect that opens the door to euthanasia