Judicial Decision Making in a World of Natural Law and Natural Rights

Abstract

This article was my contribution to a symposium celebrating the achievements of John Finnis held at the Villanova University School of Law. Finnis’ greatest work is his Natural Law and Natural Rights. I agree with Finnis’ rejection of an approach to natural law which focuses on the notion of natural rights. Finnis’ approach instead focuses on a natural law that is based on the idea that there are certain basic human goods such as the search for knowledge, the maintenance of life, the sharing of fellowship with other human beings, the capacity to enjoy aesthetic experiences, and the exercise of practical reason, to which he adds the almost universal human striving for religious meaning. I accept that human law reflects the broadly accepted human goods and goals that underline our social morality. I explain, however, that, no matter how much we might wish it were otherwise, there will of necessity be some separation between law and morality. In order that law might be predictable and capable of being applied in a coherent and objective manner, a legal system will inevitably have certain arbitrary features about it that can never be completely eliminated and which a rational person would not wish to completely eliminate. That is why a legal system can at most only succeed in achieving a high degree of formal justice. It can never deliver perfect justice.

Keywords: legal reasoning, natural law, natural rights, expression, privacy, European Court of Human Rights