1

The matter before the court in the case of Stransham-Ford v Minister of Justice and Correctional
Services1 (the case) was whether the South African constitutional framework could allow for a fully
informed, consenting and terminal cancer patient to have his life lawfully terminated by a medical
professional following. The reasoning used by Fabricius J shall be analysed from the perspective of
John Finnis.
John Finnis is a proponent of natural law theory which advocates the existence of a set of universal ,
underived2 moral principles, that should guide the legal norms by which human conduct is governed
and evaluated. Finnis uses his seven basic goods as an explanation of why humans do what they
do: anything worth doing is worthy only because it participates in one of these goods. These goods
are said to be self-evident in that they cannot be derived from logic, descriptions of human nature or
divine law, but in the practice they repeatedly manifest in the pursuit of a worthwhile, valuable and
a desirable life.3 Finnis further explains how one of his seven goods, practical reasonableness, can
and should be used when making choices and deciding how and when to participate in the other six
goods.4 The framework provided by the seven goods and practical reasonableness both explicitly
and implicitly necessitates that people work together in a community and participate in the
common good. Finnis thus views the law as a tool which should be used in the furtherance of
human participation in the common good.5

1 2015 (4) SA 50 (GP).

2 R Wacks Understanding Jurisprudence: An Introduction to Legal Theory 3 ed (2012) 26.

3 Wacks Jurisprudence 24.

4 H McCarthy A Summary of John Finniss Natural Law (2015)

https://hughmccarthylawscienceasc.wordpress.com/2015/01/03/a-summary-of-john-finniss-theoryof-natural-law/ (accessed 26 August 2015).

5 BC Nimral Natural Law,Human Rights and Justice Some Reflections on Finniss Natural Law
Theory Banaras Law Journal 35 (2006) 52 at 64

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From the first paragraph of the judgment and throughout the rest of it, Fabricius J emphasises that
the case should be decided in the context of the Bill of Rights (herein after referred to as the Bill). 6
The particular sections of the Bill which came under observation were s7-Rights , s8-Application,
s10-Human Dignity, s11-Life, s12-freedom and security of the person and s39-Interpretation of the
Bill. Before considering how Finnis would respond to Fabricius Js reasoning, it is necessary to
determine how he would respond to its Bill of Rights oriented foundation.

Section 7 read with s8 emphasises the importance of human rights, and state protection thereof, in
law, society and government as well as their applicability to each. Consider what happens when the
phrases Section 7 read with s8 and human rights in the preceding sentence are replaced with
Finnis and the seven goods. Sections 7 and 8 appear to advocate human rights in a similar way
to how Finnis advocates the seven goods.
However, in order to validate this comparison, the human rights in question would have to be
comparable to the seven goods themselves. While the right to dignity is not necessarily reflected in
the seven goods it is incomprehensible that Finnis would object to its significance in both law and
society. Furthermore it is submitted by Fabricius J that:
the Constitution seeks to establish a society where the individual value of each member of
the community is recognised and treasured. The right to life is central to such a society. The
right to life, thus understood, incorporates the right to dignity.7

The right to life is directly represented by the first of the sevens goods, i.e. the good of life. The
right to freedom and security of the person substantially and non-exhaustively comprises of the
rights to be free from violence and to make decisions concerning reproduction. Finnis explains that
his life good includes both the former and latter.8 It can thus be seen that there is a strong similarity,

6 2015 (4) SA 50 (GP) para 1.

7 2015 (4) SA 50 (GP) para 12.

8 Wacks Jurisprudence 25.

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failing which a strong enough link between the human rights that were considered in the case and
the seven goods. This leaves the use of s39 in the case to be considered.
Section 39 of the Bill provides that when interpreting and developing the law the Bill and, by
implication, human rights must be at the centre of the reasoning process. It can be seen that this
provision shapes the interpretation of and thus the participation of people in the law with human
rights forming the foundation of the reasoning process. Since the human rights that were considered
in the case seem to compliment certain of Finniss seven goods it could be inferred that the above
provision can be compared to the good of practical reasonableness which shapes ones participation
in other basic goods and serves as the engine for how we assess, and pursue the other basic human
goods.9 While the purposes of s39 and practical reasonableness do not perfectly mirror each other,
there can no doubt that resemble each other to a degree and more importantly, that they are not in
conflict with each other. Having considered s39, it can be concluded that the sections considered in
the case collectively allow for a line of reasoning to develop which does not conflict with, and to a
degree even mirrors the reasoning of Finnis. It is thus submitted that Finnis would thus approve of
Fabricius Js decision to proceed with the judgment through the lens of the Bill.

Fabricius J refined his reasoning by highlighting the fundamental and inherent importance of human
dignity in the case of the applicant. 10 Throughout his judgment, he also continuously came back to
the applicants quality of life.11 The inhumane quality of life suffered by the applicant was set out as
the premise upon which the right to dignity could be used to allow his request for his life to be
lawfully terminated. This effectually implies that in the presence of the three elements of lack of
dignity, inhumane quality of life and will to end ones own life, the right to life may be waived and
the act of killing another human being can be declared legal. Each of these elements will be
considered from Finniss perspective in order to deduce whether he would agree with the above
implication.
9 Nimral Natural Law 70.

10 2015 (4) SA 50 (GP) para 12.

11 2015 (4) SA 50 (GP) para 14.

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Finnis makes no decisive statement on how he views dignity. However, when defined negatively
from the perspective of the applicant it can be seen that dignity would not include, having pain all
over ones body, being dulled with opioid medication, being unaware of your surroundings and
loved ones and being confused and dissociative.12 Such a state of being prevented the applicant
from living in a manner which even vaguely resembles Finniss version of how life should be lived.
The applicants consequent inhumane quality of life prevented him from participating in any of the
seven goods, especially practical reasonableness. Even the good of life, when considered in terms
the importance Finnis places of health and procreation, appeared to have been reduced to a hollow
shell.13 The lack of dignity and inhumane quality of life elements thus appear to prevent any hope of
living in accordance with Finniss principles. The will to end ones own life element has a similar
effect, for how would one participate in the seven goods or act in terms of practical reasonableness
when he or she has the will to act against the good of life and consequently beyond the scope of
practical reasonableness?

However, aside but not separate from the seven goods and particle reasonableness are Finniss five
exceptionless rights, the most applicable of which would be the right not to be deprived of life as a
direct means to an ends.14 This right appears to present a barrier between Finniss approval and the
justified waiver of the right to live and corresponding legality to end a especially since he holds
these rights to be exceptionless.

This barrier should be considered in terms Finniss view that law in its focal sense is a body of rules
in place to secure the common good by coordinating the different goods, 15 and his contention that

12 2015 (4) SA 50 (GP) para 15.

13 Wacks Jurisprudence 24.

14 J Penner and E Melisarris McCoubrey & White's Textbook on Jurisprudence 5ed (2012) 37.

15 Nimral Natural Law 64.

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there can be both legal and moral obligations to obey the law,16 before a decisive submission can be
made.
In terms of the common good and the protection thereof, Finnis takes a guiding approach by setting
out a framework in which humanity can work communal towards attaining a more just and morally
correct society. He is careful, however, not to remove the element of choice from his framework. He
explains what is worth our effort and how to go about directing our effort without dictating what
should be done and when. In fact, advocates autonomy as long as it is exercised in the interest of the
common good.17 Thus would it be in the interest of the common good to allow the applicant to
exercise his autonomy to end a life in which he cannot participate? Fabricius J highlights the
following conflict:
On the one hand stood the autonomy and dignity of a competent adult who sought death as

response to a grievous and irremediable medical condition. On the other stands the sanctity

of

life and the need to protect the vulnerable. 18

Evidently, Finnis would choose the side of life in the above conflict. However, Finnis also
maintains that people are not morally bound to obey unjust laws. Unjust laws being those that do
not further participation in the seven goods. They are still legally bound to obey the law in question,
but it loses its moral authority.19 Fabricius J in, in apparent agreement with Finnis states that he:
[agrees] with the warning that any pious uncoupling of moral concern from the reality of
human and animal suffering has caused tremendous harm to mankind throughout the
centuries.20

16 McCarthy Summary.

17 McCarthy Summary.

18 2015 (4) SA 50 (GP) para 18.

19 McCarthy Summary.

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From the perspective of the applicant, the right to life and the illegality of killing another human
resulted in his incomprehensible suffering. Under these circumstances both of these laws force the
applicant to undergo incomprehensible suffering thus limiting his participation in the seven goods.
Consequently they could be contextually seen as unjust by Finnis. Therefore in this instance they
would lose their moral authority. Such a lack of moral authority would be a strong influence on
Finniss perspective. It is thus submitted that Finnis would view it to be in the interests of the
common good to allow people who are suffering to an inhumane degree and who thus cannot
participate the seven goods or exercise practical reasonableness the to end their lives with the help a
medical professional. It is unlikely that he would opt for a situation in which his good of life
becomes a burden and in which his seven goods serve as a taunting reminder, to afflicted
individuals, of a life in which they can no longer participate.

Overall, it is submitted that Finnis would agree with the constitutional foundation of Fabricius Js
argument because it does not conflict with and in some respects resembles his own method of
reasoning. It is further submitted that due to the applicants undignified and inhumane state of
suffering he would have never been been able to participate in Finniss natural law framework. For
this reason, Finnis would see it as being in the interests of the common good and morality to allow
individuals in a similar state of being to end his life humanely.

20 2015 (4) SA 50 (GP) para 12.

Bibliography
BC Nimral Natural Law,Human Rights and Justice Some Reflections on Finniss Natural Law.
Theory Banaras Law Journal 35 (2006) 52.
H McCarthy A Summary of John Finniss Natural Law (2015)
https://hughmccarthylawscienceasc.wordpress.com/2015/01/03/a-summary-of-john-finniss-theoryof-natural-law/ (accessed 26 August 2015).
J Penner and E Melisarris McCoubrey & White's Textbook on Jurisprudence 5ed (2012) Oxford
University Press: Oxford.
R Wacks Understanding Jurisprudence: An Introduction to Legal Theory 3 ed (2012) Oxford
University Press: Cape Town.