The Irony of Law

Abstract

John Finnis says that central cases of the concepts of social theory (such as the concept of law) fully instantiate values. Yet the instances of some such concepts (such as the concepts of slavery, of tyranny, and of murder) do not instantiate any value. I propose (and this is consistent with Finnis’s insight) that the central cases of such concepts fully instantiate certain ills. The central case of a concept essential to social theory may excel in some good or in some ill, or in neither, or in both. What about law? The central cases of a legal system, or of a law, do indeed involve goods that Finnis ascribes to them; the central cases also involve certain ills. That is the irony of law. Law secures essential goods for a community, and it incurs certain ills that are necessarily involved in its specific techniques for securing those goods. The irony is not just a theoretical tension; it works itself into a tension, which I try to explain, over a legal system’s regulation of the validity of its own particular legal norms.