Natural Law as Practical Methodology: A Finnisian Analysis of City of Richmond v. J. A. Croson, Co.
The first part of this article examines some of the main features of Finnis's theory of natural law. It suggests that Finnis offers a "soft" theory of natural law anchored in a richer and more realistic conception of human nature than has generally characterized natural law theory. It brings forth the role of Aristotelian practicality in Finnis's thinking. Finally, the first part of the article discusses the roles of what Finnis calls basic human goods, attempting to suggest how the particular basic human goods he advances intuitively provide an important component of a framework for a more realistic variety of natural law. The article's second part briefly describes some methodological aspects of Finnis's theory. The focus explores how Finnis has arguably created a distinct methodology of natural law that is changed in character from the more rigid rationalistic varieties that had dominated Western thought. The third part seeks to apply Finnis's principles to Justice O'Connor's opinion in City of Richmond v. J. A. Croson Co. As a result of that "Finnisian" analysis it is concluded that O'Connor's opinion in Croson reflects the classic tendency to use abstract natural law principles as ideological assertions to aid an interest group to either defend against encroachments by others seeking to gain shares of power or as a justification for seizing power. While Finnis's "practical" theory can be abused in this same way, it nonetheless holds substantial promise as a critical method for analyzing what judges actually do in hard cases.
Natural Law as Practical Methodology: A Finnisian Analysis of City of Richmond v. J. A. Croson, Co.,
38 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol38/iss1/5
Natural Law Symposium: Natural Law and Legal Reasoning