The Nature of a Free Society

Notre Dame Law School Legal Studies Research Paper No. 1709

19 Pages Posted: 11 Jan 2017 Last revised: 26 Jan 2017

See all articles by John Finnis

John Finnis

Notre Dame Law School; University of Oxford - Faculty of Law

Date Written: January 9, 2017


This address, on the occasion of an award (16 May 2015) in Princeton related to the institutions of a free society, considers the idea of a free constitution in Gibbon, its antecedents in Aquinas, and its deployment in Madisonian separation of powers. The implications of such a separation in relation to widespread assumptions about judicial supremacy are illustrated by the debate between Jefferson and Story (and today’s conventional wisdom), revisited in the debate between Eisgruber and Paulsen. The place of “living instrument” doctrines of judicial interpretation is considered against the background of a wider societal revolt against broadly Christian social-moral principles, and the threat (considered by Gibbon, earlier by Augustine and latterly by De Jaeghere) of the threat to the first of a free society’s preconditions – that there be sufficient people willing to live together – that is created by migratory colonization, aided if not abetted by decisions such as those of the European Court of Human Rights in Hirsi Jamaa (2012), outlawing all group-pushback from the frontiers.

Keywords: political freedom, constitutional government, judicial power, migration

Suggested Citation

Finnis, John M., The Nature of a Free Society (January 9, 2017). Notre Dame Law School Legal Studies Research Paper No. 1709, Available at SSRN: or

John M. Finnis (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

University of Oxford - Faculty of Law ( email )

University College
High Street
Oxford, England OX1 4BH
United Kingdom

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