‘What is the Common Good, and How why does it concern the client’s lawyer’ 40 S. Tex. L. Rev. 41 1999
The common good is an important concept for Finnis, and one that informs his discussion of the basic goods in Natural Law and Natural Rights. However, if one is not careful, his approach can appear somewhat mechanical. To grasp the vitality of his thinking, it is worth looking briefly at a piece published a while ago but still useful where Finnis links together the common good and basic goods.
The common good is not some distant “horizon” – but- a matter that is raised by one’s practical reasoning about human character and possibility (Finnis 1999, 44). If the basic goods are good ‘for me’ then, it follows that they must also be good ‘for you’. This follows from the basic requirements of practical reason which require ‘no arbitrary preferences amongst persons’ (1996, 107). Finnis supports these arguments by reference to the principle of ‘the golden rule’ that one can find in Christian theology, as well as the requirement specified in contemporary philosophy that moral statements are universalisable (Finnis 1996, 107) .
The most important thing to grasp is that Finnis is engaging in a way of thinking and arguing. He calls his approach ‘putting one’s self in the shoes of another’. In crude terms, it goes something like this: If I think something is a good for me, then surely it is a good for you. However, this is not a final statement: it is an invitation to debate and discussion. The best way of ‘understanding Finnis’ is to engage in the debate yourself: work out what you think your own basic goods are, and then talk with your family and friends: what do you share?
For Finnis, this is not, then a private individualistic exercise, it is an attempt to ‘get at’ what most people (not necessarily all!) would agree upon.
In slightly more ‘complicated’ language. The common good cannot be reduced to a calculus or captured through utilitarian or narrow consequentialist reasoning (i.e. arguing that one end is better than another- for instance, economists might argue that the most efficient distribution of goods is the most desirable. Finnis would disagree. The basic goods are good in their own right. An example would be religion. To have faith is in itself, for Finnis, a good thing. It makes life valuable. It would follow that faith cannot be distributed or understood through economics).
However, Finnis does assert that there is an end point: “In voluntarily acting for human goods and avoiding what is opposed to them, one ought to choose and otherwise will those and only those possibilities whose willing is compatible with a will toward integral human fulfilment” (Finnis 1999 44-5). This nuances the argument a little. consequentialist metrics of pleasure or utility are incompatible with the holistic grasp of human fulfilment.
This may give us some sense of the moral good at stake, but what about the notion of commonality? What is the link between “one’s own well-being and the well-being of others”(Finnis 1996, 134)? The individual cannot somehow be abstracted from the “overlapping relationships” in which lives are lived (Finnis 1996, 135). Despite the importance of this theme, terms like ‘society’ and ‘community’ are almost impossible to define with precision. However, if we allow the basic insights of common sense, then we can grasp the fundamental terms of the argument. A community is a “unifying relationship” (as we see, composed of the overlapping relationships mentioned above) – a “unity of common action” which requires “collaboration”, “co-operation” and “co-ordination” (Finnis 1996 138).
There are three different ways in which forms of collaboration towards common ends can be modelled. ‘Business or utility’ relationships- are those in which a particular outcome is desired where the parties achieve an objective that is “individual and private” (Finnis 1996 140). Such relationships can be contrasted with relationships of play or pleasure, where the “coordination of action” is the end itself. The parties to this kind of relationship are concerned with “pleasure for the sake of it”. However, the paradigmatic relationship is that of friendship. In friendship, collaboration is for “the sake of” the friend. Friendship shares with the other forms of communal relationship collaboration towards both means and end, but, is distinct because it realises the “common good of mutual self-constitution” (Finnis 1996 141). Friendship is of central importance for Finnis, as it achieves the kind of relationship that the Christian golden rule articulates: an intimate sense of the importance of the other; or, rather, most precisely: “the heuristic postulate of the impartially benevolent ‘ideal observer’ as a device for ensuring impartiality or fairness in practical reasoning, is simply an extension of what comes naturally to friends” (Finnis 1996 143).
The most “extended or elaborated” form of community extends beyond friendship (Finnis 1996 143) but nevertheless takes friendship as its key point of reference. Community – in the full sense- takes place when there is a mutual commitment between members to the principle that one’s own “self-constitution” requires the self-constitution of others to the extent that all participate in the realisation of human goods. It is worth noting that this is not thought of in terms of a contract or a promise—but “commitment”- in the sense of the working out of the terms of “integral human fulfilment”. Be careful here. The possibility of a radical argument is immediately headed off. The threat of a form of communism- implicit in Plato’s Republic- is countered by Aristotle’s observation that honouring a friend requires something that one can give: friendship, in this sense, requires something like private property. However, more importantly, the correct sense of friendship requires nurture in the family. Finnis points out “Only a family or quasi family can build up over time that common stock of uncalculated affection [and support]” that allows one the emotional responsiveness to become a true friend.
Working out how we move from the family to friendship can give us a much clearer sense of what Finnis means by the overlapping relationships that are essential to community in its full sense. Plato’s principle of ‘communism’ (Finnis 1996 144) is opposed to subsiduarity. The term relates, first of all, to the necessary nurture of the human being in the family which gives the basis for “self-possession” ( a possession that, in friendship, can be given). The principle that “holds good” of the family can then be applied to “other forms of human community” (Finnis 1996 146). The root meaning of the term- assistance- (from the Latin subsidium) – reminds us of the starting point of this exposition: a community is about cooperation and shared purpose through which both individuals and the community are defined. Relationships are then figured on a continuum that runs from the family, to the neighbourhood to larger forms of organisation. Subsiduarity is also a principle which supplements the family with the benefits of broader forms of association- “a complete community” or “all-round association” that secures “the whole ensemble of material and other conditions….that tend to favour, facilitate, and foster the realization of each individual of his or her personal development” (Finnis 1996 , 147). With this broader community comes problems of coordination – but- with the caveat that ‘functions’ should not be assumed by “larger association” that can be “performed efficiently by smaller association” (Finnis 1996 147).
Only now has Finnis set up a sufficiency rich context in which to turn to law. Law relates to the terms in which complete community is lived. The characteristics of a legal system is that: “(i) they claim authority to regulate all forms of human behaviour (a claim which in the hands of the lawyer becomes the artificial postulate that legal systems are gapless); (ii) they therefore claim to be the supreme authority for their respective community, and to regulate the conditions under which the members of that community can participate in any other normative system or association; (iii) they characteristically purport to ‘adopt’ rules and normative arrangements (eg. contracts) from other associations within and without the complete community, thereby ‘giving them legal force’ for the community’; they thus maintain the notion of completeness and supremacy without pretending to be either the only association to which their members may reasonably belong or the only complete community with whom their members may have dealings, and without striving to foresee and provide substantively for every activity and arrangement in which their members may wish to engage.” (Finnis 1996 , 149). The next paragraph is equally as important:
“All these defining features, devices and postulates of law have their foundation, from the viewpoint of practical reasonableness, in the requirement that the activities of individuals, families and specialised associations by co-ordinated” (Finnis 1996 , 149).
What should hopefully be clear is that Finnis’ argument about the basic goods, leads to a notion of the common good and to a broader account of community. Once these elements are in place, Finnis turns to consider law, and the relationship of this social institution to what, for Finnis at least, are privileged terms. It is perhaps important to remember that the starting point is an ‘experiment’ in which one can engage. Indeed, Finnis is inviting the reader to engage in a discussion of the goods that one believes are important. It seems entirely authentic to this most social of jurisprudences that it should begin with a conversation with a friend.
This blog was written by Professor Adam Gearey, Law Lecturer at Birkbeck, University of London.