John Finniss Natural Law Theory And Human Rights Jurisprudence

- Rohit Raghuwanshi
Roll No.183, Sem- VIII A

The actuation of human rights is based on the numerous natural law theories, not only the
U.N. Charter has human rights approved as an imperative movement and endorsed
commandment but also various conventions, declarations, treaties and covenants have
certainly recognised the human interest and dignity which stimulated human rights as their
part. It forms the highest pedestal of any law and the seventeenth century human thinking has
been surrounded around the theory that man has certain essential, basic, natural rights and it
is the duty of state to preserve it. The theory of human rights can be drawn to natural laws
thinkers such as Rousseau and Locke. These political thinkers (natural law philosophers)
theorised over such natural human rights and wanted to protect these rights, they set out a
theory of social contract. According to Locke Man is born with a tittle to perfect freedom
and an uncontrolled enjoyment of all rights and privileges of the law of nature and he has by
nature a power to preserve his property that is his life and liberty.

The declaration of French revolution 1789 which may be regarded as concrete political
statement on human rights and which was inspired by the Lockeian philosophy declared:

Finnis, a modern exponent of natural law has, provided valuable inputs to the contemporary
discourse on human rights by developing his own theory of rights which derives its existence,
sustenance and vitality form his own idea of 'common good' and his refreshingly new ideas
about natural law and justice. As opposed to 'dignitarian approach', his common good
oriented approach sees maintenance of human rights as a fundamental component of the
common good , although his notion of common good is quite different from that of
utilitarians.1 In his scheme most human rights are 'subject to or limited by each other and by
other aspects of the common good'.2 According to him those aspects are under the garb of
public order, public morality, public welfare and public health presented though being
involved under a broad formation of human rights.

1 Finnis, Natural Law and Natural Right, n.14, at p. 218

2 Ibid
AIMS AND OBJECTIVES
My aim is to conduct a critical study of the influence of the classical theories of natural law
school on the modern theories of national and international human and humanitarian laws.

Also, this paper will attempt to provide an important contemporary re-statement of natural
law and its application of analytical jurisprudence in light on human right laws across various
jurisdictions.

Further, the objective of this project is to critically examine and highlight some of the distinct
contributions of modern natural law theory to the contemporary discourses on human rights.

Articles referred:-

Finnis John, (1990) Natural law and Legal Reasoning, Cleveland State Review, Vol.
38:1:-
Natural law theory is nothing good than a theory of good reasons for choice and action. Much
academic theory about legal reasoning greatly exaggerates the extent to which reason can
settle what is greater good or lesser evil, and minimizes the need for authoritative sources
which, so far as they are clear and respect the few absolute moral rights and duties, are to be
respected as the only rational basis for judicial reasoning and decision, in relation to the
countless issues which do not directly involve those absolute rights and duties. A natural law
theory in the classical tradition makes no pretense that natural reason can determine the one
right answer to those countless questions which arise for the judge who finds the sources
unclear. Finnis criticize the tights thesis given by Charles Dworkin.

Greena Walt Kent (1982) Review of Natural Law and Natural Right by John Finnis,
Political Theory, Sage Publications, vol, 10 no, 1(pp 133-136).

Finnis asserts that without benefit of belief in God, humans can discover both what is
intrinsically good and what are the practical standards for realizing those goods. He then goes
on to discuss the requisites of justice, the scope of human rights, the benefits and limits of
authority, the nature of law, the sources of legal obligation, and the status of unjust laws.
Finally, he suggests that the questions and answers about human life and social existence
point toward an ultimate creator, and he speculates on the relation between eternal and human
law.
George P. Robert, (2007) Natural Law, Harvard Journal of Law and Public Policy, vol.
31

Theories of natural law are reflective critical accounts of the constitutive aspects of the well-
being and fulfillment of human persons and the communities they form. The propositions that
pick out fundamental aspects of human flourishing are directive (that is, prescriptive) in our
thinking about what to do and refrain from doing (our practical reason)they are, or provide,
more than merely instrumental reasons for action and self restraint. When these foundational
principles of practical reflection are taken together (that is, integrally), they entail norms that
may exclude certain options and require other options in situations of morally significant
choosing. Natural law theories, then, propose to identify principles of right action moral
principlesspecifying the first and most general principle of morality, namely, that one
should choose and act in ways that are compatible with a will towards integral human
fulfillment. Among these principles is a respect for rights people possess simply by virtue of
their humanityrights which, as a matter of justice, others are bound to respect and
governments are bound not only to respect but, to the extent possible, also to protect.

Mclnerny Ralph 1991, Natural Law and Natural Rights, American Journal of
Jurisprudence, Vol 36.

In this article Finnis account on human rights have been dealt. How natural law philosophy
has influenced the tradition of rights. John Finnis provides an extended basis for his
contention that natural law and natural rights can be regarded as two sides of a coin, related
generally as duty and right. Finnis gives more priority to duties rather than rights which is
essential for his common good approach.

Harris, J.W (1981), Can you believe in Natural Law?, The Modern Law Review, Vol
44, Number 6, pp 729-735

The analysis of finnis work Natural Law and Natural Rights has been done. Author criticise
the self evidentary principle given by Finnis on human good. Finnis claims that his seven
basic goods are not commensurable. Author suggests that due to reason we have the capacity
to know the natural law.