I. FINNIS'S POSITION ON THE AUTHORITY OF LAW AND THE COMMON GOOD

Finnis argues that the subjects of a legal system have a generic and presumptive obligation to obey the law and that this claim can be justified by appeal to the common good.Footnote ⁴ An obligation to obey the law is generic if it is considered in relation to each law taken simply as an instance of law. An obligation is presumptive if in some cases it may be outweighed by countervailing moral considerations. As I demonstrate in what follows, Finnis's account of the common good requires considerable explication, but it may be regarded in general terms as the obtaining of those conditions necessary for the flourishing of the citizens of a political community.Footnote ⁵ My aim in this first section is to explain the ambiguous role that the common good plays in Finnis's argument for a generic and presumptive obligation to obey the law.Footnote ⁶

In Natural Law and Natural Rights Finnis enumerates seven basic aspects of human well-being: life, knowledge, play, aesthetic experience, sociability (friendship), practical reasonableness and “religion.”Footnote ⁷ While acknowledging that there are countless other forms of good (e.g., courage, moderation, etc.), he claims that these can be analyzed into ways of realizing the basic goods enumerated above. According to Finnis, the basic forms of good are self-evident (per se nota) first principles of all practical reasoning and constitute the ends of all reasonable human action. The basic goods are thus premoral presuppositions of moral judgments.Footnote ⁸ The basic forms of good are, moreover, regarded by Finnis as equally fundamental—they cannot be reduced to any of the others, and although we may choose to privilege one of the goods in the course of developing our own rational plan of life, there is no objective hierarchy to guide this selection between competing values.Footnote ⁹

Determining the precise relation between the basic goods and the common good in Finnis's account is not an easy undertaking. As Pauline Westerman suggests,Footnote ¹⁰ Finnis's statements regarding the common good are equivocal and not always easy to reconcile. Finnis does acknowledge at least one aspect of this ambiguity explicitly.Footnote ¹¹ We can think of the common good as instrumental or noninstrumental.Footnote ¹² In the former case, we are thinking of the common good as a set of conditions that allow for the realization of the basic goods. In the latter case, we identify the common good with one of the basic goods for individuals: friendship or sociability along the lines of Aristotle's notion of philia politike (friendship within the polity). Finnis's most explicit and detailed presentations of his argument for a generic and presumptive obligation to obey the law strongly emphasize the former instrumental conception of the common good.Footnote ¹³ This is despite the fact that, as I argue below, it would appear as if the noninstrumental conception of the common good is better suited to get Finnis to the conclusion that he is attempting to establish.Footnote ¹⁴

Finnis characterizes the common good as “a set of conditions which enables members of a community to attain for themselves reasonable objectives, or to realize reasonably for themselves the value(s), for the sake of which they have reason to collaborate with each other (positively and/or negatively) in a community.”Footnote ¹⁵ This characterization requires some unpacking. The term “enables” expresses the sense in which the common good is conceived instrumentally as serving the basic goods or values of the members of a political community. On the other hand, Finnis is at pains to emphasize that by community he intends a complete community—a political community in the sense of Aristotle and Aquinas—a notion that he regards as legitimate despite the size and internal heterogeneity of modern nation-states.Footnote ¹⁶ Now, it is hard to think of the political community in this sense without acknowledging “some more or less shared objective or, more precisely, some shared conception of the point of continuing co-operation.”Footnote ¹⁷ Even Finnis's instrumental characterization of the common good, then, seems to involve the noninstrumental notion of a shared objective: presumably a form of human flourishing or well-being that is difficult or impossible to achieve in the absence of certain kinds of social organization and participation.

Human flourishing, according to Finnis, consists in the realization of the basic goods, and a polity guided by practical reasonableness should be organized so as to facilitate this objective. It is in this sense that we should regard the common good not as itself instantiating a basic good but rather as instrumental to the realization of such goods. Practical reasoning about the common good reveals a wide range of projects, orientations, and commitments toward the attainment of the basic goods, none of which can be definitely regarded as superior to the others. It is this incommensurability that creates what Finnis refers to as coordination problems, which reflect not only the diversity of human projects but also disputes about the most effective means of realizing the basic goods.Footnote ¹⁸

Finnis gives an example of the rival interests of environmentalists and farmers in relation to river pollution to demonstrate the role the law plays in providing authoritative solutions to resolve coordination problems arising out of competing projects and interests.Footnote ¹⁹ The farmer in this case is confronted with a law on river pollution that goes against his economic and prudential self-interest. Yet the farmer also has reason to believe that the law provides him with a number of benefits (protection of property, subsidies, etc.) that could not be realized other than through an authoritative legal system, and that such benefits relate to integral human fulfillment more generally.

According to Finnis, such coordination problems can be resolved only through unanimity or political authority. The first is impractical; hence the need for the latter.Footnote ²⁰ The form of political authority that best reflects practical reasonableness is that which is embodied in the rule of (positive) law.Footnote ²¹ Ultimately, then, for Finnis, “the authority of rulers derives from their opportunity to foster the common good”Footnote ²² where this is understood in terms of the legal resolution of coordination problems in a way that most efficiently allows individuals to attain the basic goods.

The law, for Finnis, is the most effective method for resolving coordination problems and hence for attaining the common good because it makes available a framework of public rules that encompasses the full range of human projects and commitments. In this way the law brings predictability and order into human affairs, allowing all members of the political community to pursue their projects in a variety of ways consistent with both their own realization of the basic goods and that of their fellow citizens. A condition of the effective functioning of the law, however, is that it is regarded as a “seamless web”Footnote ²³ linking persons and transactions between them in a way that goes beyond the content of any particular law. Hence our obligation to obey the law must be regarded as generic or in relation to each law as an instance of law independently of its content. This generic obligation to obey the law needs to be balanced by recognition of the possibility of grossly unjust laws. Finnis thus acknowledges that our obligation to obey the law is presumptive in that it may be defeated by strong countervailing moral considerations in obvious or exceptional cases of injustice.

It is worth pausing to contrast some of the assumptions underlying Finnis's position on the authority of law with the assumptions of contract and consent theories. In regard to the former, Finnis explicitly rejects an account of political community based on a view of what would be reasonable in a Hobbesian state of nature.Footnote ²⁴ This rejection could be taken to reflect the Aristotelian or Thomistic view that the polity is an association formed for the purpose of the good life rather than simply a means of protecting the integrity of covenants between dissociated individuals. Finnis is equally hostile to the voluntaristic tradition of explaining obligation in terms of acts of will.Footnote ²⁵ According to Finnis, the rational necessity that we call obligation (in any of its forms) can be accounted for only by attending (as one in practice attends when “willing” anything) to the goods at stake in compliance or noncompliance with a proposed or stipulated course of action.Footnote ²⁶

The core of Finnis's position on the authoritativeness of law is that it provides the best kind of social order for the realization of the common good. It is the superiority of legal order as a method of securing the common good which qualifies it for being treated as authoritative from the viewpoint of practical reasonableness. Finnis's argument for a generic and presumptive obligation to obey the law thus has the following form:

1. (P1) Human flourishing consists in the realization of the basic goods identified by practical reasonableness;

2. (P2) Practical reasonableness demands that we regard the realization of basic goods as morally obligatory;

3. (P3) The common good is a necessary condition of the realization of the basic goods for each individual;

4. (P4) A necessary condition of achieving a morally obligatory goal is itself morally obligatory;

5. (P5) The common good is a morally obligatory goal (P1, P2, P3, P4);

6. (P6) The law is the most effective instrument of achieving the common good;

7. (P7) The maintenance of that which is the most effective instrument of achieving a morally obligatory goal is itself morally obligatory;

1. (C) It is morally obligatory to obey the law (P5, P6, P7).

Although many of these premises no doubt warrant closer scrutiny, criticisms of Finnis's account have tended to focus on P6 while conceptualizing the relation between law and the common good in an instrumental sense. This is certainly the case in Raz's critique of Finnis, to which I now turn.

II. RAZ'S CRITIQUE OF FINNIS

Raz's critique of Finnis reflects his own influential instrumentalist or “service” conception of political authority. In contrast to Finnis, Raz maintains that even in a just state, if there can be such, there is no general obligation to obey the law.Footnote ²⁷ Rather, the state has legitimate authority over its subjects only where it is in a position to provide exclusionary or preemptive reasons for action that will allow those subjects to act better on the reasons that apply to them than they would if they followed their own reasons. Whereas the law may be regarded as possessing legitimate authority in some cases, therefore, Raz thinks this must be judged on a case-by-case basis and cannot, contra Finnis, be regarded as generic or presumptive.

This fundamental difference in orientation limits the scope of Raz's critique of Finnis in important ways that are worth stating explicitly. In the first instance, Raz focuses, as he himself concedes,Footnote ²⁸ on instrumental arguments for an obligation to obey the law. This certainly reflects Finnis's emphasis upon the solution of coordination problems in justifying the authoritativeness of law. It nonetheless has the consequence that Raz does not directly engage with some of Finnis's more Aristotelian and Thomistic formulations.Footnote ²⁹ The second, closely related point is that Raz restricts his discussion of noninstrumental accounts of political obligation to voluntaristic contract and consent theories, along with some somewhat cursory closing remarks on semivoluntary theories of associative obligation. This explains why one might feel that Raz never comes directly to terms with the underlying premises of Finnis's account of the common good.

Raz's critique of Finnis begins by considering the thesis that the moral obligations on which the claim of the law to be just are founded are prior to and independent of the moral obligation to obey the law.Footnote ³⁰ If this were so, it would seem difficult to establish a generic and presumptive form of political obligation. Murder is presumably morally wrong prior to the establishment of a law forbidding murder. We can assume that a just state would have laws against murder, but the justice of the state is constituted by its enactment of laws that its subjects have good moral reasons to obey in any case. From this perspective, if the obligation to obey the law exists only in a just state, it is at best redundant. If a state enacts laws that influence subjects to carry out immoral actions, on the other hand, it can never be rational for subjects to follow those laws just because they have been commanded by an authority independent of consideration of their content. The more just and valuable the law is, the more reason one has to conform to it, and the less to obey it.Footnote ³¹ But if a law is unjust, then it can never be rational to obey it.

This reasoning echoes the paradoxes of political authority associated with philosophical anarchism. For Raz, however, there are cases where the law does make a difference, both morally and practically.Footnote ³² An example would be authoritative coordinating activity of the kind contained in Finnis's river pollution example cited above, where the law is required to arbitrate between rival projects and commitments. Raz concedes the force of Finnis's example, acknowledging that the philosophical anarchist's paradox of authority is overstated while nonetheless arguing that it is fatal to Finnis's argument more generally. This is because all that the opponent of a generic and presumptive obligation to obey the law needs to establish is that in some cases there is no moral obligation to obey the law as such.Footnote ³³ If, for example, laws against murder make no decisive moral difference, then one cannot establish that there is a general moral obligation to obey the law simply because it is law.Footnote ³⁴ Not all laws are laws of coordinating activity of the kind found in Finnis's river pollution example.Footnote ³⁵ The sorts of laws that relate to actions that are morally wrong independent of any legal system do not, according to Raz, make a moral difference in the relevant sense.

Raz acknowledges a couple of objections to this line of reasoning, the second of which is more significant.Footnote ³⁶ This is that the reasons for obedience normally thought to be decisive for an obligation to obey the law relate less to the desirability of any particular law than to the desirability of a legal system and a structure of government by law as a whole. As shown above, according to Finnis, the law “presents itself as a seamless web” linking persons and transactions between them in a way that goes beyond the content of any particular law. Finnis's intention in using this metaphor is clear enough. Although the claim that the law presents itself as a seamless web could be taken to imply that subjects should simply take this presentation at face value, Finnis's point is that the law is an articulation of the common good considered in all its complexity as the necessary condition for the realization of the basic goods of all citizens.Footnote ³⁷ Raz is correct to say that Finnis “never attempts to show that coordination requires general obedience to law”.Footnote ³⁸ Yet this is because Finnis does not reduce the authority of law to its capacity to resolve coordination problems but extends it—although he is sometimes circumspect on this point—to more substantive questions of the overall good of citizens and the possibility of philia politike (friendship within the polity) in the Aristotelian sense. The reason subjects are “not permitted to pick and choose,”Footnote ³⁹ on this line of reasoning, is not simply because such picking and choosing would create confusion or instability in the face of coordination problems but because the authoritativeness of law is a precondition of human fulfillment and flourishing.Footnote ⁴⁰

In particular, Raz's claim that our moral justification for taking account of the existence and authority of law varies from person to personFootnote ⁴¹ does not fully come to grips with the complexity of Finnis's account of the common good. This account emphasizes not only the instrumental role of the common good but also the relationship between the authoritativeness of law and the common good as an expression of sociability considered as a basic and intrinsic component of human flourishing. Raz's perspective is individualist in orientation. His normal justification thesis, in combination with his dependence principle, entails that if someone is trained as a pharmacist and knows as much or more about pharmaceuticals than the relevant authorities, then that individual is not necessarily obligated to follow all laws relating to pharmaceuticals.Footnote ⁴² Our obligation thus varies in accordance with our epistemic position and the relevant circumstances.Footnote ⁴³ A general submission to authority from this perspective would represent a misguided sense of duty—according to Raz, we do better in many cases to treat the law as if it were a knowledgeable friend.Footnote ⁴⁴

The problem with such a position from the perspective of a more robust conception of the relationship between the authority of law and the common good is that it sets out from the epistemic and moral autonomy of the individual in abstraction from the forms of social organization and participation that the concrete fulfillment of such autonomy presupposes. Finnis's concentration upon the instrumental role of the law and the common good in serving the basic goods of individuals tends to obscure this point, however, leaving him open to Raz's objections.

Raz also criticizes Finnis's argument that without the law, a person could reasonably be relatively indifferent to the concerns of persons whose activities do not affect him or at least do not benefit him.Footnote ⁴⁵ The grounds Raz offers for rejecting Finnis's argument is that it is too broad a claim to carry conviction, and this is perhaps warranted given Finnis's reticence as to what a more substantive noninstrumental conception of the common good would consist in. If we adopt a more robust conception of the common good, however, in line with Finnis's remarks about philia politike, then Raz's appeal to examples of social coordination that do not depend on the authority of law is less persuasive.

Raz uses the example of child neglect, noting that one can threaten and penalize people who engage in such neglect without exercising governmental authority over them. This could be done through appeals to self-interest, or by establishing a private organization that performs its activity under contract rather than governmental authority.Footnote ⁴⁶ Raz's claim is that governments can influence action in just ways without a generic and presumptive obligation to obey the law, for example, by changing the physical environment or by providing the morally unscrupulous with self-interested reasons to act as they should.Footnote ⁴⁷ Governments can discharge many of their most important functions without political authority and they can do so justly or unjustly. Finnis, however, need not define governmental authority solely in terms of the voluntaristic model of command and obedience if his intention is to point to our associative obligations to members of a particular political community, considered as obligations entailed by our participation in a basic good or value. This broader conception of the common good as instantiating a basic good could be taken to incorporate forms of action that Raz excludes from the realm of political authority.

Similar considerations apply to Raz's arguments against the claim that refusal to obey the law in seemingly trivial cases would undermine its overall effective functioning. In many cases, Raz asserts, violations of the law have little or no undermining impact upon the effectiveness of government.Footnote ⁴⁸ Consider the well-worn example in which I decide to drive slowly through a red light on a deserted street at 4 a.m., unobserved by anyone. It is hard to think that this act of disobedience undermines the overall capacity of the law to function effectively. But the force of this example comes from abstracting out a particular situation from the context in which laws can be regarded as meaningful, namely, as serving the common good conceived not simply in terms of the resolution of coordination problems but also, in a more robust sense, as a common framework for human flourishing. Acceptance of the binding authority of laws in particular cases where one could conceive of disobedience without apparent harm to the system reflects a commitment—which can be more or less self-conscious and rational—to the overall framework of a legal system that asks of each citizen who is a member of a political community that they consider the law as providing reasons for action that are presumptively valid at all times and places—valid because the law expresses the rational commitments of each member of the community to the well-being of all.

Raz's brief discussion of noninstrumental reasons for obeying the law at the end of his critique of Finnis represents an acknowledgment that arguments from coordination are not sufficient to refute the possibility of a generic and presumptive obligation to obey the law.Footnote ⁴⁹ The first noninstrumental reason mentioned by Raz is fairness in the Rawlsian sense. According to Raz, this argument is of dubious validity when subjects have no choice but to accept the benefits that are supposed to constitute the reason for acting fairly in response.Footnote ⁵⁰ Contract and consent arguments also fail, according to Raz. This holds even if, like Rousseau, one highlights the intrinsic value of social contract as an act that constitutes civil society rather than viewing it in terms of enlightened instrumental self-interest. Too few, Raz suggests, have given consent for this to be a viable justification for Finnis's claim.

Finally, Raz turns to semivoluntary and noninstrumentally justified relationships between persons, that is, relationships and associations between family, friends, and small groups entered voluntarily. Raz acknowledges that there is a kind of duty to obey that arises out of a sense of belonging to a community,Footnote ⁵¹ but suggests that although this is intrinsically valuable when it occurs, it cannot be regarded as obligatory to enter into such an obligation.Footnote ⁵² Moreover, as society has become less homogenous, this no longer seems a plausible basis for a generic obligation to obey the law.Footnote ⁵³ It is accordingly quite late in his critique of Finnis that Raz gets to the core of the issue, namely the extent to which it makes sense to think of modern political communities as capable of instantiating the common good in the more robust sense of philia politike. In the final section of this paper I consider the plausibility of this claim.

III. THE COMMON GOOD

Raz interprets Finnis as arguing that a generic and presumptive moral obligation to obey the law can be justified instrumentally in terms of its capacity to resolve coordination problems. If we think of the common good as purely instrumental, however, then Finnis seems vulnerable to Raz's appeals to laws that do not make a difference from a moral point of view—or make a difference in a negative manner—and the possibility of resolving coordination problems in ways that do not involve political authority. In this final section, I investigate the viability of Finnis countering Raz's arguments in the way suggested above, namely, by developing the more robust noninstrumental conception of the common good suggested by the concept of philia politike.Footnote ⁵⁴ Consideration of how such a defense of a generic and presumptive moral obligation to obey the law would function requires consideration of associative obligation and virtue. Before I turn to these themes, however, I first discuss some revealing remarks by Finnis on the “thin” liberal concept of the good.

The argument that political authority can be justified by reference to the common good is sometimes attacked on the grounds that the common good is a pseudo-concept. This is one reason that Finnis defines the common good in terms of the fulfillment of all individual human persons. The claim is that political authority is justified because the fulfillment of persons as moral agents depends upon forms of social coordination that cannot be achieved—or cannot be achieved as well—other than through authority. There is an ambiguity here, however. When the common good is regarded as the fulfillment of all persons, it is possible to conceive of this in liberal terms, as encapsulated by a set of primary goods such as “liberty and opportunity, income and wealth, and above all self-respect.”Footnote ⁵⁵ Advocacy of such a “thin” conception of the common good tends to be accompanied by a restriction of the role of political authority to providing the conditions for those basic goods that enable any person to attain her more substantive objectives, whatever they might happen to be.

On the other hand, one might think of the common good itself in more substantive terms (without this contradicting the claim that the common good is the good of all individuals). This would mean at least a partial rejection of the claim that state and the law should be properly neutral as to different substantive conceptions of the good and not have an authoritative role to play in determining the conditions of human flourishing. Finnis's critical comments on the Rawlsian primary goods seem to be suggestive of this second, more substantive account.Footnote ⁵⁶

The “liberal” thin conception of the good sketched above is not without its own problems. As Michael Walzer points out in another context, such a conception embodies “an entirely decent liberal or social democratic thickness” insofar as it upholds ideas of freedom and equality as ultimate goods.Footnote ⁵⁷ From a descriptive point of view, however, it seems simply false to say that these goods have been recognized as such by all political communities. Rawls's way around this in later works was to downplay the universalist pretensions of his earlier account of justice by emphasizing the status of his theory of justice as a set of principles for liberal democratic regimes.Footnote ⁵⁸ The conceptual problems here, however, are quite far-reaching and cannot be overcome solely through an acknowledgment that political liberalism rests upon the acceptance and concrete realization of a certain set of historical and conceptual assumptions. The problem goes to the heart of any form of liberalism that claims neutrality before competing substantive conceptions of the good while basing its own defense of neutrality upon a substantive conception of the good.

Regardless of these complexities in liberal theories of justice, however, Finnis's work, taken in totality, seems to favor a conception of the common good that is instrumental yet more robust than liberal conceptions. But there is a tension between these two tendencies. If the common good of a polity is simply an instrumental means for the instantiation of the more basic goods, then it is difficult to see how it can be legitimate to regard the state as having an authoritative role to play that extends beyond a framework for the realization of minimal liberal goods such as liberty, fair distribution, equality of opportunity, and so on. And if there are possible social arrangements not involving governmental authority that could provide a framework for the attainment of these minimal goods, then our primary moral obligation would surely be to establish the relevant kinds of arrangements, not blindly to follow the law. A more robust conception of the common good, by contrast, would seem to suggest that the state has a role to play in promoting a particular conception of the virtues of citizens, considered in terms of those forms of human excellence that allow for the fulfillment of the basic goods. Yet this in turn seems to presuppose some form of comprehensive doctrine regarding human excellence and the conditions of human flourishing.

Finnis seems reluctant to go down this path. He rejects the view that a political community should have some definite and completely attainable objective or set of aims and is especially critical of Aristotle on these grounds.Footnote ⁵⁹ On the other hand, he quotes with approval Aristotle's argument that a genuine polis (political community) exists not merely as an artificial covenant or insurance policy against enemies but rather as an association established for the sake of the good life and human excellence (aretē).Footnote ⁶⁰ This, however, opens up the possibility of an argument that legislators should have in view a particular objective: namely human flourishing or well-being understood in terms of the forms of human excellence most appropriate to the realization of the basic goods. And implicit within this idea of political community as a form of association oriented by the good or virtue of its citizens is also an alternative account of political obligation.

Finnis's critical comments on Dworkin's associative account of the legitimacy of political authority are revealing in this context.Footnote ⁶¹ Dworkin's attempt to justify the legitimacy of political authority by weakly identifying it with the non- or quasi-voluntary associative obligations which arise from family, friendship, and other fraternal relationshipsFootnote ⁶² is characterized by Finnis as unconvincing. This is because the nonpolitical forms of associative obligation mentioned by Dworkin are “characteristically founded upon shared interest in substantive human goods”Footnote ⁶³ whereas the political community, as Dworkin conceives it, should be “neutral about what is truly worthwhile and what worthless in human life.”Footnote ⁶⁴ Finnis here suggests that Dworkin's liberal neutrality leaves him unable to provide any “articulated concept of the human good, an ensemble of conditions which favour the human flourishing (including rights) of all members of the community, and which ought to be promoted as well as respected by those in authority, and for the sake of which others acknowledge that authority.”Footnote ⁶⁵

The question Finnis's critique raises is whether his own account of the basic goods is sufficient to get us to the view that the conditions of human flourishing should be “promoted” as well as respected by political authorities. Finnis's insistence on the incommensurability of the basic goods and his suggestion that the common good is instrumental to the realization of a wide array of projects and commitments seem to fit better with liberal neutrality regarding human good than the more substantive account of good suggested by his critiques of Rawls and Dworkin.

Finnis's critiques of Rawls and Dworkin are strongly suggestive of an account of the role of the common good in relation to law's authoritativeness that he never explicitly advocates but which seems in conformity with his overall intention. It is an account of political authority as legitimated by its role in furthering the common good, not only in the sense of providing the instrumental conditions for the realization of basic goods and human flourishing but also as itself integral to the attainment of those goods. The common good is instrumental to human flourishing not only because it is itself a constitutive part of human flourishing. Our obligations, on this account, are conceptualized not on the Hobbesian model of command and obedience but rather as associative in a manner analogous to friendship. In genuine friendship, according to the Aristotelian account, participants engage in shared activities in such a way that the good of one's friend is integral, rather than instrumental, to one's realization of that basic good. In order to promote my own flourishing, I seek the flourishing of my friend. My obligation to my friend, then, is also an obligation to myself.Footnote ⁶⁶

One can think of many objections to this more robust interpretation of the common good as integral and associative; I focus here upon three. The first is a problem that seems internal to Finnis's project and is identified by Westerman. If one regards the form of associative obligation found in political community as integral rather than instrumental to human flourishing, then it seems that one is exalting one of Finnis's basic goods—sociability or friendship—above the other forms of basic good.Footnote ⁶⁷ This, however, seems to contradict Finnis's thesis that we cannot regard any of the basic goods as more fundamental than the others. Westerman's objection, however, simply assumes that because we regard the common good in terms of one of the basic goods, we are somehow privileging that basic good over other basic goods. If one accepts Finnis's account of the basic goods, however, there is no reason one could not see the common good as one aspect of human flourishing. Westerman sees an exclusive disjunction here when none exists.

Second, a more robust conception of the common good is hard to dissociate from unappealing forms of political authoritarianism. Finnis himself recognizes this, arguing explicitly that robust theories of the good do not entail authoritarian politics, and citing Mill and the Second Vatican Council as evidence of his claim.Footnote ⁶⁸ Finnis also cites in this context Aquinas's definition of law as “an ordinance of reason for the common good of a [complete] community, promulgated by the person or body responsible for looking after that political community.”Footnote ⁶⁹ Although this might sound paternalistic to some, the account of the authority of law that Finnis seeks to uphold here is one that respects human rights and liberties without asserting that the state must remain neutral as to the virtue of its citizens. It is because the law is oriented by the common good that it can appeal to the rationality of subjects in a way that gives them justification for regarding it as obligatory, both morally and legally. A more robust conception of the common good thus need not culminate in a position hostile to perfectionist forms of liberalism.

Third, and I think most significantly, there is the issue identified by Raz regarding the plausibility of thinking of relations between citizens in modern states on the model of philia politike. As is often argued against communitarian critics of liberalism, it seems unrealistic to apply to modern nation-states a model that was applicable—perhaps—in the case of the Greek polis. It is important not to overstate the force of this objection. Raz himself acknowledges both the existence and desirability of a form of social identification within political communities that goes beyond a purely instrumental concern with prudential self-interest. He moreover regards such identification as “affecting the conditions of legitimacy, and not merely the occasions on which it is justified to believe they are met.”Footnote ⁷⁰ In large part because of the heterogeneity of modern nation-states, Raz nonetheless denies that such identification can be used—in conjunction with an account of the common good—to justify a generic and presumptive obligation to obey the law. A few comments are thus in order regarding how this challenge might be met.

One response, mentioned above, is Dworkin's appeal to associative obligations understood as “special responsibilities social practice attaches to membership in some biological or social group.”Footnote ⁷¹ In order to be classified as a group that generates associative obligations, a political community needs to meet “geographical or other historical conditions identified by social practice as capable of constituting a fraternal community.”Footnote ⁷² The core of Dworkin's account, however, is that communities are unable to get classified as supporting associative obligations unless they exhibit a concern among their members that is “special, personal, pervasive and egalitarian.”Footnote ⁷³ It is at the very least arguable that modern nation-states, despite their heterogeneity, are capable of meeting conditions similar to those proposed by Dworkin.Footnote ⁷⁴ Finnis's rejection of Dworkin's “thin” liberal conception of the good, however, raises the question of what sorts of conditions would be required to generate associative obligations consistent with the account of the common good outlined above.

A shared concern with the realization of conditions such as well-being and fairness could perhaps be argued to generate associative obligations consistent with an account of the common good.Footnote ⁷⁵ Such a conception can be strengthened, however, by taking into account the social identification implicit in the normative ideal that all members of the political community have an enhanced opportunity to flourish when they are united by a shared concern for the realization of the basic goods including the good of community. On this account, associative obligations are generated by the “complete” community that is the state, not only because it provides the instrumental conditions for the flourishing of individuals within that community but also because active participation in and identification with that community is regarded as an integral component of such flourishing.

A defense of the role of the common good in the generation of obligations, moreover, should not be afraid to acknowledge that the political community is unique for the reasons identified by Aristotle—namely, that it is a form of association oriented by the concern of all for the good life and attainment of virtue. As suggested above, such a position in the contemporary context seems best understood as a form of perfectionist liberalism that regards political community as a distinctive form of association that is established with the shared objective of realizing human virtue while limiting action oriented by that goal in ways compatible with liberal freedoms. There is nothing in the argument from the heterogeneity of modern liberal states that need be seen as ruling out philia politike in this qualified sense.

There remains the question as to whether perfectionist liberalism is sufficient to get one to the sorts of claims about political authority and obligation advocated by Finnis. Here one needs to pay close attention to the very notion of a moral obligation. As suggested above, once we think of obligation in associative terms, we are no longer moving in a conceptual sphere that involves following the arbitrary will of another regardless of the content of the commands issued. Rather we are concerned with a form of obligation that is analogous to the demands and duties of friendship—obligations that are to a very large extent taken on voluntarily and participated in because they contribute to one's own flourishing. On this model, we are not seeking a universal and necessary set of conditions for the law's authoritativeness and then mapping this onto a commander-subject relation but rather emphasizing the generic and presumptive obligations that we take on as a friend or citizen whose flourishing is conditional upon the flourishing of other members of the association.

The success of Finnis's account of our generic and presumptive obligation to obey the law thus depends upon supplementation from a substantive theory of virtue and well-being. This will not appeal to nonperfectionist liberal advocates of neutrality. According to the interpretation of Finnis's position that I am outlining here, the authority of law is not restricted to particular cases of coordination but encompasses the whole range of human goods, that is, provides a precondition for the realization of certain goods that are not instrumental but integral to human flourishing. Finnis's assertion that the objective of justice is not equality but the common good is significant in this context.Footnote ⁷⁶ Finnis's position here seems to imply that we should place the instantiation of human goods—and hence human excellence or virtue—before abstract principles of justice. Once we do this, however, neutrality is not an option, and we need to try to settle the question of what human flourishing consists in—we cannot provide the conditions for such flourishing unless we know what it is that we are striving to provide the conditions for.

This final consideration suggests not only that one cannot detach Finnis's arguments concerning the authority of law and our generic obligation to obey it from his account of the basic goods, but also that one cannot detach it from a particular interpretation of human excellence suggested by the Aristotelian-Thomistic tradition.Footnote ⁷⁷ This also, however, suggests that a more contentious and robust conception of the good has been underlying Finnis's argument all along. Raz in one sense simply misses the point of Finnis's arguments because he does not accept these assumptions. Yet Finnis provides the ground for such a misunderstanding insofar as he seeks to detach his defense of our generic obligation to obey the law from the more robust traditional natural-law approach.