One main argument with which legal positivists as Bentham, Austin, and Kelsen thought to have dismissed Natural Law theories is that a legal theory must be descriptive, that is, it must show the law as it really is, instead of judging it as good or bad or speaking of a law that ought to be. This argument was supposed to dismiss in one fell swoop all Natural Law theories, because these theories were believed to present a just law as a model of reference and to state that the existing law would be valid only to the extent it would correspond to that just law. They would, therefore, be prescriptive, instead of descriptive. Finnis takes the requisite of descriptiveness as correct, but not dismissive of Natural Law in any way. He tries to show that Natural Law theories can meet that requisite as well as positivist theories do – or even better than they do. According to Finnis, Natural Law theories are not actually prescriptive, but descriptive. They do not speak of a law that ought to be, but of a law that is. The difference is that they describe the law that is with respect to the law that it intends to be – and that would not be a theoretical artifice to disguise a prescriptive theory as a descriptive one, but a necessary feature of any theory dedicated to social institutions.
Finnis’s defense of the descriptiveness of Natural Law theories depends on an allegedly necessary shift in our everyday concept of “description”. We are used to think of describing as the activity of reporting how something is without adding or omitting anything and without judging if it is good or bad, beautiful or ugly, useful or harmful. However, things made by men with some purpose (purposeful things) can be described only with respect to the purpose they intend to reach. The Victory of Samothrace can be described as an incomplete statue, that lacks head and arms, only because we consider it to represent the Goddess Victory and, in order to represent Her properly, it would have to have head and arms. Describing it as the representation of a headless and armless Goddess would not be true, but we know that only because we compare what we see to what we suppose that it intended to be.
The same would hold for social institutions. They are also purposeful things, because a marriage or a contract are not merely things that we do, but also things that we do in order to get something else. Two people marry each other to cherish their love, to have a life and estate together and to protect their children. Two people contract to each other to pursue their common interest and protect their relation from ulterior and external interference. It would be impossible to describe a particular marriage or a particular contract without considering what that particular institution intended to be. That, of course, makes a lot of sense. But Finnis is prepared to make the same kind of statement about law in general. Law, as the social institution it is, would be a purposeful thing too. Its purpose would be to protect and realize the basic goods of human life. Once we had a list of these goods, we could describe law properly, with respect to what it intends to be, that is, with respect to the version of law that best protects and realizes those goods. This version is nothing else than what thinkers as Aristotle, Aquinas, and Finnis himself call the Natural Law.
In short: Purposeful things have to be described with respect to what they intend to be; as law is a purposeful thing and it intends to be the best protection and realization of the basic goods of human life, it has to be described with respect to that version of law that best protects and realizes those basic goods, which happens to be Natural Law. I would like to propose a criticism of that argument. Here it follows.
One reason Finnis offers to justify his thesis of purpose-sensitive descriptions for purposeful things is that no description is a report of all features of the described, but only of some of its features, therefore, always involving selection. As every selection has to follow a certain criterion, Finnis sustains that, in the description of purposeful things, the purpose of the described is the necessary criterion for selection of features suited for describing it. Well, my criticism will tackle exactly that “necessary criterion” argument. I accept that every description involves selection and every selection needs a criterion, but I deny that there is any “necessary criterion” for the selection of features aimed at describing something. On the contrary, I defend that the criterion for selection is not necessarily the purpose of the described, but the purpose of the description – or, if you prefer so, the purpose of the describer.
Imagine that, for very unaccountable reasons, the Victory of Samothrace were transferred from the Louvre Museum towards the Emilio Goeldi Museum (a museum in my birth town, unfortunately not as famous as Louvre concerning Art works), and that the latter, for very accountable reasons, was suspicious of being mocked and afraid that the transferred statue were not the real one. For preventing public shame, Goeldi’s curator would hire an assessor, someone with expertise in classic art, in order to determine whether the delivered statue were the famous Victory of Samothrace. That expert, together with his entourage, would inspect the statue in every possible way, measuring its dimensions, scrutinizing its details with magnifiers, examining its shapes and colors against dark light, and making many other weird procedures that I and you could not even imagine of. In the end, the expert would hand over a final report, which would consist in a description of the statue, followed by an assessment of it being or not the original one. Once the description would serve as basis for the assessment, it would be expected that the selection of features would not concentrate in what the statue were sculpted to be, but in how much the delivered statue is similar to the original one. In that approach, the delivered statue’s lacking of head and arms would be taken as a sign of its being complete, and not incomplete – or, if you prefer so, of its being as incomplete as it was supposed to be. On the contrary, if it were provided with head and arms, that would be a sign of its having been altered or, worse than that, a sign for turn on the red light of international art mockery.
That unnecessarily long example leads to two conclusions: one, Belenenses are very suspicious and afraid of ridicule, and two – the one that is really relevant for my criticism – descriptions are dependent not on the purpose of the described, but on the purpose of the describer. The same would hold for law. A legal practitioner, a legal sociologist, a legal psychologist and a legal economist would describe law in different ways, and still their descriptions could all be true, with respect to different purposes. All of them would also describe law in a way very different from how a legal philosopher would do it, and still none of their descriptions would have epistemic precedence over each other. Among legal philosophers it would not be different. A legal positivist and a Natural Law theorist would be concerned with very different features of the existing law, not because one of them is right and the other wrong, but because they have very different purposes with their descriptions. There is no “necessary criterion” for the selection of features in order to describe something – or else there wouldn’t be but one kind and one purpose of description –, there are only pragmatic or instrumental criteria, used according to the descriptive purposes of the time. The descriptive report of an Art historian and that of an Art assessor about the same Art work would hardly coincide, then why should be different with the descriptive reports of a legal positivist and a Natural Law theorist about the same existing law?
If, as I defend, the purposes relevant for the selection of features in a description are the describer’s, then that purpose of protecting and realizing the basic goods of the human life is not necessary for legal theory in general, but only relevant for Finnis (and his fellow Aquinasian companions) in particular. And it is relevant for him (them) for its potential to evaluate and criticize the existing law and to propose amendments and changes to it. If Finnis explicitly refers to the importance of point of view selection concerning the addresses of law, he does not give the same attention to the point of view selection concerning the legal theorist. For the legal positivist, assuming the point of view of the legal practitioner, is mostly concerned with what the existing law presently says and the Natural Law theorist, assuming the point of view of the legislator, or of his knowledgeable advisor, is chiefly occupied with in which aspects the existing law can be improved for the best.
So, I would criticize not only Finnis’s insistence that there is a necessary criterion for description of social institutions, but also Finnis’s failure to distinguish between different purposes and point of views of description. Having made that kind of distinction would have allowed for Finnis to perceive that, when Bentham, Austin, and Kelsen rejected non-descriptive approaches to law, their reasons of rejection could be extended to descriptive approaches from the point of view of the legislator. In their opinion, the point of view of those who obey and apply the existing law, without having any power to create or change it, is the only relevant perspective for a theory of law. Attacking the monopoly of this point of view would have been a much better strategy for Finnis than defending a particular kind of description as right and necessary.