John Finnis Natural Law & Natural Rights

Rights and the common good

The language of rights provides a precise instrument for sorting out and expressing the demands
of justice. The aspects of human well-being are many. The commitments, projects and actions
that are apt for realising that well-being are innumerable even when, as an individual, one
contemplates ones own life plan When we contemplate the complexities of collaboration,
coordination, and mutual restraint involved in the pursuit of the common good, we are faced
with inescapable choices between rationally eligible and competing possible laws, policies and
decisions.
The strength of rights-talk is that it can express precisely the various aspects of a decision
involving more than one person, indicating just what is and is not required of each person
concerned, and just when and how one of those persons can affect those requirements. But the
conclusory force of ascriptions of rights is also a source of its potential for confusing the
rational process of investigating and determining what justice requires in a given context.
The UDHR (and other related documents) deserve close attention from anyone wishing to think
out problems of human life in community in terms of rights, human, natural or legal. A feature
in this documents is that the rights embodied therein are expressed in one of two canonical
forms: either (A) everybody has the right to or (B) no one shall be. The rationale to use
these two different formula is not to that of stylistic variation.
The rationale can be detected by attending to to the second common feature to all these
documents - the exercise of rights and freedoms proclaimed is said to be subject to limitation.
In some documents (eg European Convention) these limitations are specified article by article,
in conjunction with the specification of the respective rights. In others, the limitation is
pronounced only once in generic terms:
Art 29(2) UD - In the exercise of his rights and freedoms, everyone shall be subject only to
such limitations as are determined by law solely for the purpose of securing due recognition
and respect for the rights and freedoms of others and of meeting the just requirements of
morality, public order and the general welfare in a democratic society. [and limitations must
conform with UN principles]
The limitations in this Article are said to be on the exercise of the rights and freedoms specified
in the document. This suggests that the limitations might not be applicable to those articles
which do not purport to define a right but instead impose a negative requirement (which could
have been expressed as a right, but was not. This suggests that the articles phrased negatively
(B) are intended to have a conclusory force. But the articles in form (A) have guiding force only
as items in a process of rational decision-making which cannot reasonably be concluded simply
be appealing to any of these rights (notwithstanding that they are all fundamental and
inalienable Art 2 UDHR).
For example, ones right not to be tortured is not a right that one exercises in the sense of Art
29; acts of torture cannot therefore be justified by appeal to just requirements of public order.
The right not to be tortured then could be called an absolute right, to distinguish it from the
rights that are inalienable but subject in their exercise to various limitations.
The grounds for limitation in Art 29
Finnis argues that they are ambiguous and unclear. [213-218]. On the one hand, we should not
say that human rights, or their exercise, are subject to the common good; for the maintenance of
human rights is a fundamental component of the common good. On the other hand, we can

appropriately say that most human rights are subject to or limited by each other and by other
aspects of the common good; aspects which could probably be subsumed under a very broad
conception of human rights but which are fittingly indicated by expressions such as public
morality, public health and public order.
The specification of rights
People (or legal systems) who share substantially the same concept (eg of the human right to
life, or to a fair trial) may nonetheless have different conceptions of that right. The grounds for
limiting human rights normally involve choices by some authoritative process from among
alternatives that are more or less equally reasonable. How is this process accomplished and how
are conflicts between rights resolved? How much interference with one persons enjoyment of a
right by other persons, in the exercise of the same right, and of other rights, is to be permitted?
There is no alternative but to hold in ones mind some pattern, or range of patterns, of human
character, conduct and interaction in community, and then to choose such specification of rights
as tends to favour that pattern or range of patterns. In other words, one needs some conception
of human good, of individual flourishing in a form (or range of forms) of communal life that
fosters rather than hinders such flourishing. [see 220 for important values for human flourishing
that need be taken into account].
The resolution of all these problems of human rights is a process in which various reasonable
solutions may be proposed and debated and should be settled by some decision-making
procedure which is authoritative but which does not pretend to be infallible or to silence further
rational discussion or to forbid the reconsideration of the decision. In short, just as the right of
free speech certainly requires limitation, that is specification in the interests of both free speech
and of many other human goods, so too the procedure for settling the limits of this and other
human rights will certainly be enhanced in reasonableness by a wide freedom of cultural and
political debate.
Absolute human rights
Are there then limits to what may be done in pursuit of protection of human rights or other
aspects of the common good? Are there rights that are not to be limited or overridden for the
sake of any conception of the good life in community, not even to prevent catastrophe? A
utilitarian would contend that there are no absolute human rights. No contemporary government
or elite manifests in its practice any belief in absolute human rights. For every government that
has the physical capacity to make its threats credible says this to its potential enemies: if you
attack us, we will kill all the hostages we hold. As such, they cannot be said to take certain
rights as absolute. Many of these governments are elected by people and subscribed to the UD
or a Bill of Rights embodying human rights such as the right not to be tortured. [to take a
modern example, talk about ISIS and how governments still take part in this behaviour after
WWII].
Notwithstanding the consensus to the contrary, Finnis contends that it is always unreasonable to
choose directly against any basic value, whether in oneself or in ones fellow human beings. As
the basic values are not mere abstractions; they are aspects of the real well-being of flesh-andblood individuals. Correlative to the concept of exceptionless duties, one for instance has the
right not to have her life taken away as a means to further any end.
These rights are strictly correlative to the duties entailed by the requirements of practical
reasonableness. The unwavering recognition of the literally immeasurable value of human
personality in each of its basic aspects (the sole core of the notion of human dignity) requires us
to discount the apparently measurable evil of looming catastrophes which really do threaten the
common good and the enjoyment by others of their rights. [did not understand 225 bottom 226].