In this article, I argue that - despite the absence of any clear influence of one theory on the other - the legal theories of Dworkin and Hegel share several similar and, at times, unique positions that join them together within a distinctive school of legal theory, sharing a middle position between natural law and legal positivism. In addition, each theory can help the other in addressing certain internal difficulties. By recognizing both Hegel and Dworkin as proponents of a (...) position lying in between natural law and legal positivist jurisprudence, we can gain clarity in why their general legal theories seem to fit uncomfortably, if indeed they can be said to fit at all, within so many different camps - while fitting comfortably in no particular camp - as well as highlight what has been overlooked. (shrink)
As medical technology advances and severely injured or ill people can be kept alive and functioning long beyond what was previously medically possible, the debate surrounding the ethics of end-of-life care and quality-of-life issues has grown more urgent. In this lucid and vigorous book, Craig Paterson discusses assisted suicide and euthanasia from a fully fledged but non-dogmatic secular natural law perspective. He rehabilitates and revitalises the natural law approach to moral reasoning by developing a pluralistic account of just (...) why we are required by practical rationality to respect and not violate key demands generated by the primary goods of persons, especially human life. Important issues that shape the moral quality of an action are explained and analysed: intention/foresight; action/omission; action/consequences; killing/letting die; innocence/non-innocence; person/non-person. Paterson defends the central normative proposition that ‘it is always a serious moral wrong to intentionally kill an innocent human person, whether self or another, notwithstanding any further appeal to consequences or motive’. (shrink)
Natural law is a perennial though poorly represented and understood issue in political philosophy and the philosophy of law. Mark C. Murphy argues that the central thesis of natural law jurisprudence--that law is backed by decisive reasons for compliance--sets the agenda for natural law political philosophy, which demonstrates how law gains its binding force by way of the common good of the political community. Murphy's work ranges over the central questions of natural law jurisprudence and political (...) philosophy, including the formulation and defense of the natural law jurisprudential thesis, the nature of the common good, the connection between the promotion of the common good and requirement of obedience to law, and the justification of punishment. (shrink)
Introduction -- Contending for moral first things : Christian social ethics and postconsensus culture -- Natural law and the Christian tradition -- Natural law and the Protestant prejudice -- Moral law, Christian belief, and social ethics -- Contending for moral first things in ethical and bioethical debates : critical categories, part 1 -- Contending for moral first things in ethical and bioethical debates : critical categories, part 2 -- Ethics, bioethics, and the natural law, a (...) test case : euthanasia yesterday and today -- The natural law and public morality : second thoughts on what is at stake. (shrink)
Chapter one argues for the important contribution that a natural law based framework can make towards an analysis and assessment of key controversies surrounding the practices of suicide, assisted suicide, and voluntary euthanasia. The second chapter considers a number of historical contributions to the debate. The third chapter takes up the modern context of ideas that have increasingly come to the fore in shaping the 'push' for reform. Particular areas focused upon include the value of human life, the value (...) of personal autonomy, and the rejection of double effect reasoning. Chapter four engages in the task of pointing out structural weakness in utilitarianism and deontology. The thesis argues that major systemic weaknesses in both approaches can be overcome by a teleology of basic human goods. John Finnis' work becomes the underpinning of subsequent applied natural law analysis. Chapter five proceeds to argue for the defence of the intrinsic good of human life from direct attack. The thesis holds out for the proposition "that it is always a serious moral wrong to intentionally kill a human person, whether self or another, regardless of a further appeal to consequences or motive." In support of this, it defends the validity of double effect reasoning as an indispensable part of applied moral decision making. Chapter six critically assesses the arguments of anti-perfectionists that it is not the business of the state to enforce deep or substantive conceptions of the 'good life.' The chapter moves on to argue that the natural law conception of the person in society, centred on the common good, provides a solid framework for assessing both the justification for, as well as the limits on, the role of the state to use its power to legally impose certain moral standards. Chapter seven addresses the concrete relationship between natural law and legal policy by exploring the issue of assisted suicide in the constitutional context of the United States.
In this book, Buckle provides a historical perspective on the political philosophies of Locke and Hume, arguing that there are continuities in the development of seventeenth and eighteenth-century political theory which have often gone unrecognized. He begins with a detailed exposition of Grotius's and Pufendorf's modern natural law theory, focussing on their accounts of the nature of natural law, human sociability, the development of forms of property, and the question of slavery. He then shows that Locke's political theory (...) takes up and develops these basic themes of natural law. The author argues further that, rather than being a departure from this tradition, the moral sense theory of Hutcheson and Hume represents a not entirely successful attempt to underpin the natural law theory with an adequate moral psychology. (shrink)
The tradition of natural law is one of the foundations of Western civilization. At its heart is the conviction that there is an objective and universal justice which transcends humanity’s particular expressions of justice. It asserts that there are certain ways of behaving which are appropriate to humanity simply by virtue of the fact that we are all human beings. Recent political debates indicate that it is not a tradition that has gone unchallenged: in fact, the opposition is as (...) old as the tradition itself. By distinguishing between philosophy and ideology, by recalling the historical adventures of natural law, and by reviewing the theoretical problems involved in the doctrine, Simon clarifies much of the confusion surrounding this perennial debate. He tackles the questions raised by the application of natural law with skill and honesty as he faces the difficulties of the subject. Simon warns against undue optimism in a revival of interest in natural law and insists that the study of natural law beings with the analysis of “the law of the land.” He writes not as a polemicist but as a philosopher, and he writes of natural law with the same force, conciseness, lucidity and simplicity which have distinguished all his other works. (shrink)
Natural law theory is enjoying a revival of interest in a variety of scholarly disciplines including law, philosophy, political science, and theology and religious studies. This volume presents twelve original essays by leading natural law theorists and their critics. The contributors discuss natural law theories of morality, law and legal reasoning, politics, and the rule of law. Readers get a clear sense of the wide diversity of viewpoints represented among contemporary theorists, and an opportunity to evaluate the (...) arguments and counterarguments exchanged in the current debates between natural law theorists and their critics. Contributors include Hadley Arkes, Joseph M. Boyle, Jr., John Finnis, Robert P. George, Russell Hittinger, Neil MacCormick, Michael Moore, Jeffrey Stout, Joseph Raz, Jeremy Waldron, Lloyd Weinreb, and Ernest Weinrib. (shrink)
This major addition to Ideas in Context examines the development of natural law theories in the early stages of the Enlightenment in Germany and France. T. J. Hochstrasser investigates the influence exercised by theories of natural law from Grotius to Kant, with a comparative analysis of the important intellectual innovations in ethics and political philosophy of the time. Hochstrasser includes the writings of Samuel Pufendorf and his followers who evolved a natural law theory based on human sociability (...) and reason, fostering a new methodology in German philosophy. This book assesses the first histories of political thought since ancient times, giving insights into the nature and influence of debate within eighteenth-century natural jurisprudence. Ambitious in range and conceptually sophisticated, Natural Law Theories in the Early Enlightenment will be of great interest to scholars in history, political thought, law and philosophy. Natural Law Theories in the Early Enlightenment has been selected as the winner of the annual Morris D. Forkosch Prize for the best book in intellectual history published in 2000. (shrink)
These essays address some of the most intriguing questions raised by natural law theory and its implications for law, morality, and public policy. some of the essays explore the implications that natural law theory has for jurisprudence, asking what natural law suggests about the use of legal devices such as constitutions and precedents. Other essays examine the connections between natural law and various political concepts, such as citizens' rights and the obligation of citizens to obey their (...) government. (shrink)
The study of natural law theories is presently one of the most fruitful areas of research in the studies of early modern intellectual history, and moral and political theory. Likewise the historical significance of the Enlightenment for the development of `modernisation' in many different forms continues to be the subject of controversy. This collection therefore offers a timely opportunity to re-examine both the coherence of the concept of an `early Enlightenment', and the specific contribution of natural law theories (...) to its formation. The works of major thinkers such as Grotius, Hobbes, Locke, Malebranche, Pufendorf and Thomasius are reassessed, and the appeal and importance of the discourse of natural jurisprudence both to those working inside conventional educational and political structures and to those outside - such as in the Huguenot diaspora - is evaluated. This volume will therefore be of importance to all those readers concerned to study the character of the debates in the period 1650-1750 surrounding moral and political agency, sovereignty and obligation, and the legitimation of religious toleration in the divergent states and patriotic contexts of Europe. (shrink)
It is not clear, on the face of it, whether Thomas Hobbes's legal philosophy should be considered to be an early example of legal positivism or continuous with the natural-law tradition. On the one hand, Hobbes's command theory of law seems characteristically positivistic. On the other hand, his conception of the "law of nature," as binding on both sovereign and subject, seems to point more naturally toward a natural-law reading of his philosophy. Yet despite this seeming ambiguity, Hobbes (...) scholars, for the most part, have placed him within the legal-positivist tradition. Indeed, Hobbes is usually regarded as the father of legal positivism. Recently, however, a growing number of commentators has begun to question this traditional classification. Although it is clear that Hobbes is not a natural lawyer of the same mold as Thomas Aquinas, it is, nevertheless, increasingly becoming evident that the traditional characterization of Hobbes as a positivist in the same vein as Jeremy Bentham or John Austin is also incorrect. There are important naturallaw aspects of Hobbes's view that one ignores only at the cost of a proper understanding of his theory of law. (shrink)
Karl Barth and the displacement of natural law in contemporary Protestant theology -- Development of the natural-law tradition through the high Middle Ages -- John Calvin and the natural knowledge of God the Creator -- Peter Martyr Vermigli and the natural knowledge of God the Creator -- Natural law in the thought of Johannes Althusius -- Francis Turretin and the natural knowledge of God the Creator.
This work brings together leading defenders of Natural Law and Liberalism for a series of frank and lively exchanges touching upon critical issues of contemporary moral and political theory. The book is an outstanding example of the fruitful engagement of traditions of thought about fundamental matters of ethics and justice.
Metaphysical schemata and intellectual traditions -- Laws of nature : the scientific concept -- Natural law : disputed moments of transition -- Natural rights : origins and grounding.
This major contribution to the history of philosophy provides the most comprehensive guide to modern natural law theory available, sets out the full background to liberal ideas of rights and contractarianism, and offers an extensive study of the Scottish Enlightenment. The time span covered is considerable: from the natural law theories of Grotius and Suarez in the early seventeenth century to the American Revolution and the beginnings of utilitarianism. After a detailed survey of modern natural law theory, (...) the book focuses on the Scottish Enlightenment and its European and American connections. Knud Haakonssen explains the relationship between natural law and civic humanist republicanism, and he shows the relevance of these ideas for the understanding of David Hume and Adam Smith. The result is a completely revised background to modern ideas of liberalism and communitarianism. (shrink)
Accounts of natural law moral philosophy and theology sought principles and precepts for morality, law, and other forms of social authority, whose prescriptive force was not dependent for validity on human decision, social influence, past tradition, or cultural convention, but through natural reason itself. This volume critically explores and assesses our contemporary culture wars in terms of: the possibility of natural law moral philosophy and theology to provide a unique, content-full, canonical morality; the character and nature of (...) moral pluralism; the limits of justifiable national and international policy seeking to produce and preserve human happiness, social justice, and the common good; the ways in which morality, moral epistemology, and social political reform must be set within the broader context of an appropriately philosophically and theologically anchored anthropology. This work will be of interest to philosophers, theologians, bioethicists, ethicists and political scientists. (shrink)
This book breaks new ground in the study of Judaism, in philosophy, and in comparative ethics. It demonstrates that the assumption that Judaism has no natural law theory to speak of, held by the vast majority of scholars, is simply wrong. The book shows how natural law theory, using a variety of different terms for itself throughout the ages, has been a constant element in Jewish thought. The book sorts out the varieties of Jewish natural law theory, (...) illuminating their strengths and weaknesses. It also presents a case for utilising natural law theory in order to deal with current theological and philosophical questions in Judaism's ongoing reflection on its own meaning and its meaning for the wider world. David Novak combines great erudition in the Jewish tradition, the history of philosophy and law, and the imagination to argue for Judaism in the context of current debates, both theoretical and practical. (shrink)
The “New Natural Law” Theory (NNL) of Germain Grisez, John Finnis, Joseph Boyle, and their collaborators offers a distinctive account of intentional action, which underlies a moral theory that aims to justify many aspects of traditional morality and Catholic doctrine. -/- In fact, we show that the NNL is committed to premises that entail the permissibility of many actions that are irreconcilable with traditional morality and Catholic doctrine, such as elective abortions. These consequences follow principally from two aspects of (...) the NNL. The first aspect is its distinctive version of the planning theory of intention, in which adopting the 'first-person perspective' of an agent is a sufficient, and not merely necessary, condition for determining the nature of his intentional action; this planning theory rests upon an implicitly Cartesian conception of human behavior, in which behavior chosen by an agent has no intrinsic “intentionalness” apart from what he confers upon it as part of his plan. The second aspect is the NNL's distinctive account of basic human goods' incommensurability, according to which there is no common factor shared by basic human goods that allows them to be comparatively ranked in any way that directs practical deliberation. -/- The entailments of these two aspects of the NNL, we argue, amount to a reductio ad absurdum. Pace the proponents of the NNL account, we sketch an alternative hylomorphic conception of intentional action that avoids untoward moral implications by grounding human agency in the exercise of basic powers that are either (a) essential constituents of human nature or (b) acquired through participation in social practices. This conception of intentional action provides a stronger foundation for natural law theory. (shrink)
Language suggestive of natural law ethics, similar to the Catholic understanding of ethical foundations, is prevalent in a number of disciplines. But it does not always issue in a full-blooded commitment to objective ethics, being undermined by relativist ethical currents. In law and politics, there is a robust conception of "human rights", but it has become somewhat detached from both the worth of persons in themselves and from duties. In education, talk of "values" imports ethical considerations but hints at (...) a subjectivist view of them. In the psychology and sociology of drug use, ethically thin concepts of "harm minimisation" and "selfimage" dominate discussion and distract attention from the virtue of temperance and the training of character. A more forceful assertion of an ethics based on the worth of persons in these cases would be most desirable. Arguments against objectivity in the fundamentals may be replied to by examining the parallel between ethics and the discipline whose objectivity has been least challenged by relativist arguments, mathematics. (shrink)
New natural lawyers--notably Grisez, Finnis, and George--have written much on civil marriage's moral boundaries and grounds, but with slight influence. The peripheral place of the new natural law theory (NNLT) results from the marital grounds they suggest and the exclusionary moral conclusions they draw from them. However, I argue a more authentic and attractive NNLT account of marriage is recoverable through overlooked resources within the theory itself: friendship and moral self-constitution. This reconstructed account allows us to identify the (...) relation between marriage and human flourishing and the morality of same-sex marriage without making marriage infinitely plastic. (shrink)
The Natural Law Tradition has been at the very heart of western ethical, political and jurisprudential development. The purpose of the present volume is to collect together a representative and wide-ranging series of readings which fall within the auspices of the oldest and historically most authoritative of these and takes the discussion into the modern world with readings in metaphysics, jurisprudence, politics and ethics. This project, drawing upon the metaphysical and ethical categories most famously stated and developed by Aristotle (...) and Aquinas, has at its core a vision of human nature, both as individual and social, material and immaterial. An exciting foray into the foundations of Western civilisation, the readings offer the reader a focal point for discussion surrounding the natural law tradition. (shrink)
The ethics of Wolfhart Pannenberg has a nomological dimension at its center. Based on the history of the natural law tradition, Pannenberg maintains the possibility of the natural law theory on the following five grounds. -/- The theological ground is his understanding of the Decalogue, the Sermon on the Mount, and the Pauline interpretation of the law. For its historical ground, Pannenberg articulates the natural law theories of Patristic theology and the theologies of Troeltsch and Brunner. The (...) ontological ground is the order of the world, which God established in the process of history. The anthropological ground is the mutuality of human society. The latter two dimensions are related to the epistemological ground, which is based on the hermeneutics of universal history. -/- Pannenberg attempts to combine the law, the gospel, and love in relation to the Kingdom of God. Thus, Pannenberg’s Kingdom ethics is nomological as well as eschatological. (shrink)
Introduction -- Saint Thomas : putting nature into natural law -- Maritain and the love for the natural law -- The new natural law and evolutionary natural law -- International human rights, natural law, and Locke -- Conclusion : evil and the limits of the natural law.
Natural law as fact, theory, and sign of contradiction -- The second tablet project -- The mystery of what? -- The natural, the connatural, and the unnatural -- Accept no imitations: natural law vs. naturalism -- Thou shalt not kill . . . whom? the meaning of the person -- Capital punishment: the case for justice -- Constitution vs. constitutionalism -- Constitutional metaphysics -- The liberal, illiberal religion.
Contemporary social theory and natural law : Jurgen Habermas -- A natural-law critique of modern social theory : Karl Lowith, Leo Strauss and Eric Voegelin -- Natural law and the question of universalism -- Modern natural law I : Hobbes and Rousseau on the state of nature and social life -- Modern natural law II : Kant and Hegel on proceduralism and ethical life -- Classical social theory I : Marx, Tonnies and Durkheim on alienation, (...) community and society -- Classical social theory II : Simmel and Weber on the universality of sociability and reasonableness -- Social theory as the natural law of 'artificial' social relations. (shrink)
Conscience in Thomas's understanding of natural law -- The objections of the ancient philosophers -- The objections of the Calvinist christians -- On the possibility of revising Thomas's teaching on conscience -- Those who deny the existence of human nature -- Those who deny the moral relevancy of human nature -- Those who deny the ancient understanding of human nature.
Law, we are told, is a system of rules, created by men to govern human behaviour. Students of law, introduced to legal systems, become familiar with varied sources of law – legislative, judicial and executive in character. There are undoubtedly prescriptive human rules that govern men set up by public authorities that are advertised as being for the common good. These appear as visible, socially constructed systems in different jurisdictions and even as international systems across jurisdictions. But is this all (...) there is to law? Is law merely a human construct subject to flux, different according to time and place? Or must law, in its fullest sense, be seen as an activity that needs to be interpreted aright, binds the human conscience and is answerable to certain universal and timeless demands? Is there any natural moral law common to all men, universal and timeless? (shrink)
Aquinas needs no introduction as one of the greatest minds of the middle ages. Highly influential on the development of Christian doctrine, his ideas are still of fundamental philosophical importance. This new critique of his natural law theory discusses the theory's background in Aristotle and advances new interpretations of contemporary legal issues which hark back to Aquinas.
In recent decades, the revival of natural law theory in modern moral philosophy has been an exciting and important development. Human Values brings together an international group of moral philosophers who in various respects share the aims and ideals of natural law ethics. In their diverse ways, these authors make distinctive and original contributions to the continuing project of developing natural law ethics as a comprehensive treatment of modern ethical theory and practice.
Samuel Pufendorf is one of the most important moral and political philosophers of the seventeenth century. His theory, which builds on Grotius and Hobbes, was immediately recognized as a classic and taken up by writers as diverse as Locke, Hume, Rousseau, and Smith. Over the past twenty years there has been a renaissance of Pufendorf scholarship. On the Duty of Man and Citizen is Pufendorf's own epitome of his monumental On the Law of Nature and of Nations, and it served (...) as a basic text in European universities throughout the Enlightenment. This edition has a lucid and historically sensitive translation by Michael Silverthorne, the first since the early twentieth century. James Tully's introduction sets the text in its context, summarizes the main arguments, surveys recent literature on Pufendorf, and shows how Pufendorf transformed natural law theory into an independent discipline of juristic political philosophy that dominated reflection on politics until Kant. (shrink)
The Euthyphro problem and the natural law : an investigation of some aspects of the medieval debate on natural law -- Aristotle : natural law and man in the "metaxy" -- St. Thomas Aquinas : the "lex naturalis" -- Thomas Hobbes : The state of nature and natural rights -- John Locke : natural law, natural rights and God -- Concluding remarks and a heavenly dialogue.
Fundamentalist forms of religion today claim authority everywhere, including the debates over the politics and constitutional law of liberal democracies. This book examines this general question through its critical evaluation of a recent school of thought: that of the new natural lawyers. The new natural lawyers are the lawyers of the current Vatical hierarchy, polemically concerned to defend its retrograde views on matters of sexuality and gender in terms of arguments that, in fact, notably lack the philosophical rigor (...) of the historical Thomism they claim to honor. The book critiques forms of fundamentalism and offers an original argument both for how they arose and why they are unreasonable in contemporary circumstances. (shrink)
Machine generated contents note: 1. The postmodern challenge: from modernity to postmodernity; 2. Traditional natural law: differences in Aristotle and Aquinas; 3. Patterns in historical thinking about the good; 4. The challenge of modernity: religious wars and the need for universal law; 5. The challenges of naturalism: legal realism or natural law; 6. Objectivity without a metaphysical foundation; 7. Contemporary natural law: practical rationality and legal opinions; 8. Natural law as a theory with metaphysical baggage: postmodern (...) law; 9. Natural law as the moral law; 10. Natural moral law in a postmodern world. (shrink)
The debate between Lon Fuller and HLA Hart on the nature of law rests on two views on the connection between law and having a reason for action. Fuller's assumes that to say that something is a law is by itself reason-providing; Hart's view must deny this. If we can identify whether something is a law purely by descriptive criteria, then for something to be a law should not by itself provide an agent with any reason for action, however weak.
This work approaches international law as more than merely information contained in international legal norms, & does not view international law as a body of ...
This Major Reference series brings together a wide range of key international articles in law and legal theory. Many of these essays are not readily accessible, and their presentation in these volumes will provide a vital new resource for both research and teaching. Each volume is edited by leading international authorities who explain the significance and context of articles in an informative and complete introduction.
This new edition includes a substantial postscript by the author, in which he responds to thirty years of discussion, criticism and further work in the field to ...
When this edition was published, all competent students of the history of jurisprudence and political thought at once recognized that Professor Barker had made ...
Thomistic ontology -- Ontological morality and human rights -- The war of the philosophers -- The modern way -- Pope Leo XIII and his legacy -- The survival of tradition.
This book introduces Islam as the religion of inclusive monotheism, supporting a holistic approach toward the entire creation, including man and humanity, and taking into consideration directly all his physical, rational, emotion, and spiritual needs.
Thomas Hobbes' timeless account of the human condition, first developed in The Elements of Law (1640), which comprises Human Nature and De Corpore Politico, is a direct product of the intellectual and political strife of the seventeenth century. His analysis of the war between the individual and the group lays out the essential strands of his moral and political philosophy later made famous in Leviathan. This first ever complete paperback edition of Human Nature and De Corpore Politico is also supplemented (...) by chapters from Hobbes' later work De Corpore and "The Three Lives," never before published together in English. (shrink)
In support of my longstanding claim that the traditional divide between natural law and legal positivist theories of law, the present paper explores a variety of necessary connections between law and morality which are consistent with theories of law traditionally identified as positivist.
It is a commonplace that one of the primary tasks of natural science is to discover the laws of nature. Those who don’t think that nature has laws will of course disagree; but of those who do, most will be in accord with Armstrong when he writes that natural science, having discovered the kinds and properties of things, should “state the laws” which those things “obey” (Armstrong What is a law 3). No Scholastic philosopher would have included the (...) discovery of the laws of nature among the aims of natural philosophy. Regularities there may be in an Aristotelian world, but the focus of inquiry is elsewhere —on natural kinds, powers, qualities, temperaments. There must have been a change of view at some point. The obvious period in which to look for that change is that period in which the notion of law came to the fore in natural philosophy: the seventeenth century. Though there has been occasional dissension, that notion has been with us ever since. Scientists are quite happy to talk about all sorts of laws, from the basic laws of conservation to “phenomenological” and statistical laws. Philosophers, on the other hand, have found them puzzling. The character attributed to laws seems to be in need of explanation, and yet no convincing explanation is at hand; indeed, as I have mentioned, some philosophers think that natural science has no laws, or at least that it doesn’t need to appeal to them to accomplish its ends. My suggestion will be that the configuration of features characteristic.. (shrink)
This paper explores methodological connections between the existentialist and natural law traditions, with particular emphasis on the writings of Jean-Paul Sartre and John Finnis. Existentialist approaches to phenomenology hold promise in illuminating the epistemological foundations of natural law accounts, especially those emphasising human self-fulfilment through practical choice. Some methodological challenges common to projects in the fields of existentialist ethics and natural law are discussed. It is suggested that an existentialist perspective holds potential in reinforcing contemporary natural (...) law responses to the so-called 'fact-value distinction'. Such an approach affords a promising methodological structure for investigating the pre-moral foundations for social judgements of ethical significance, thereby providing qualified support for the type of natural law theory advocated by Finnis. (shrink)
Norman Kretzmann's recent analysis of the natural law slogan ``lex iniusta non est lex'' (an unjust law is not a law) demonstrates the coherence of the slogan and makes a case for its practical value, but I shall argue that it also ends up showing that the slogan fails to mark any interesting conceptual or practical division between natural law and legal positivist views about the nature of law. I argue that this is a happy result. The non-est-lex (...) slogan has been used to exaggerate the extent of disagreement about the nature of law and has diverted critics of natural law theory from recognizing that the main disagreement between natural lawyers and legal positivists centres on theories of practical reason and how they affect our understanding of the relationship between law and morality. This extends the debate about the nature of law somewhat beyond the traditional boundaries of philosophy of law, but these boundaries are due in part to the diversion created by debate over the non-est-lex slogan. Recognizing that the non-est-lex slogan fails on its own to mark any interesting practical or conceptual division between natural law theories and legal positivism should therefore focus and encourage debate on matters of genuine substance between these outlooks. The disagreement, however, may turn out to be primarily metaphysical and explanatory and not normative in nature. (shrink)
This essay considers the evolution of Hegel's political and legal theory with respect to the emergence of a classical liberal society and modern natural law. I argue that Hegel abandoned his early concerns which focused on a revival of the Greek polis and ethics over legality and refocused his efforts at reaching a modern form of ethical life predicated on the acceptance of classical liberal society and modern natural law. I try to argue that Hegel wanted to achieve (...) a present-day communal ethics without abolishing the modern individual subject endowed with rights. However, I seek to draw attention to Hegel's criticism of empirical individualism and social atomism. (shrink)
Norman Kretzmann''s recent analysis of the natural lawslogan ``lex iniusta non est lex'''' (an unjust law is nota law) demonstrates the coherence of the slogan andmakes a case for its practical value, but I shallargue that it also ends up showing that the sloganfails to mark any interesting conceptual or practicaldivision between natural law and legal positivistviews about the nature of law. I argue that this is ahappy result. The non-est-lex slogan has been used toexaggerate the extent of (...) disagreement about the natureof law and has diverted critics of natural law theoryfrom recognizing that the main disagreement betweennatural lawyers and legal positivists centres ontheories of practical reason and how they affect ourunderstanding of the relationship between law andmorality. This extends the debate about the nature oflaw somewhat beyond the traditional boundaries ofphilosophy of law, but these boundaries are due inpart to the diversion created by debate over thenon-est-lex slogan. Recognizing that the non-est-lexslogan fails on its own to mark any interestingpractical or conceptual division between natural lawtheories and legal positivism should therefore focusand encourage debate on matters of genuine substancebetween these outlooks. The disagreement, however, mayturn out to be primarily metaphysical and explanatoryand not normative in nature. (shrink)
This article is based on a Lecture given as part of the Franklin J. Matchette Foundation Lecture Series on Truth at the Catholic University of America, School of Philosophy, in 2002. It explores what theorists in the natural law tradition and modern legal theorists have argued about what makes propositions of morality and law true, focusing on the rubric of "reason" as opposed to "will." It seems probable, and perhaps inevitable, that theorists about the nature of truth in morality (...) must choose between reason and will - that morality, at its core, is either one or the other. What makes law distinctive is that it is, as a practical matter if not by conceptual necessity, a mixture of both. And it is this intertwining of reason and will, of normative system and practical reasoning, which makes assertions about the nature of legal truth, and theories about the nature of law, so difficult. The arguments about truth in law are as much disagreements about what it means to say that a legal proposition is truth as they are about what makes legal propositions true. Are declarations of truth in law statements about legal norms and legal sources, or are they statements about the results of particular disputes or particularized inquiries? There are obvious complilcations in speaking of truth in a context like law, where there is simultaneously an effort to create a coherent normative system and a decision-making procedure that can modify that system in the course of resolving disputes. (shrink)
This book describes the shape of a Christian ethic that arises from a conversation between contemporary accounts of natural law theory, and virtue ethics. The ethic that emerges from this conversation seeks to resolve the tensions in Christian ethics between creation and eschatology, narrative and natural law, and objectivity and relativity. Black moves from this analytic foundation to conclude that worship lies at the heart of a theologically grounded ethic whose central concern is the flourishing of the whole (...) human person in community with both one another and God. (shrink)
The natural law tradition in ethics and jurisprudence has undergone a revival in recent years, sparked by the work of John Finnis and the 'new natural law theorists' in the early 1980s. The ensuing decades have seen the emergence of an increasingly rich body of natural law scholarship, but this diversification has gone unnoticed by many outside the field. This article seeks to clarify the relationship between the core claims of the new natural law outlook and (...) the more specific views of individual authors. It begins by discussing the place of the new natural law theory within contemporary natural law scholarship. It then offers an account of the core elements of the new natural law framework that emphasises their compatibility with a range of ethical and philosophical viewpoints. (shrink)
Central parts of the natural law theories of Grotius and Pufendorf assume that persons by nature have individual realms of their own (suum), violations of which constitute a wrong. This is the basis for their accounts of promises, ownership and reactions against wrongs. These accounts are significantly independent of any assumption that a superior being imposes obligations: rather, the individuals themselves create obligations by their own acts of will. The translator's introducton draws attention to the author's relation to Hägerström, (...) and remarks briefly on related points in Ames, Köhler and Georges Davy. (shrink)
In his recent book Natural Law and Practical Rationality , Mark Murphy develops a sophisticated version of a natural law account of practical rationality. I shall show that with only a few minor changes, Murphy's account can be developed into an environmental ethic that generates human obligations to non-human animals, plants, and perhaps even ecosystems and machines. (I shall not discuss here the plausibility of this extension of Murphy's account, relative to competing accounts in environmental ethics; that discussion (...) will have to wait for another occasion.) I begin with a brief sketch of Murphy's account, and then proceed to show how it can be developed into an environmental ethic, with particular attention to several crucial places in the overall argument of his book and arguments developed in other published works. (shrink)
Some philosophers have maintained that even if John R. Searle’s attempted derivation of an evaluative proposition from purely descriptive premises is successful, moral ought would not have been derived. Searle agrees. I will argue that if Searle has successfully derived “ought,” then, based on various approaches taken towards the content of “morality,” this is moral ought. I will also trace out some of the benefits of a successful derivation of moral ought in relation to natural law ethics. I sketch (...) a possible derivation of moral obligations based on one of the basic goods in natural law ethics (i.e., friendship) that resembles Searle’s attempted derivation of an individual’s obligation to keep her promise to someone else. I also sketch a possible derivation of moral obligations based on another of the basic goods in natural law ethics – knowledge. This derivation may not parallel Searle’s attempted derivation as closely as the derivations based on friendship, but it seems to at least involve the derivation of moral obligations from all non-moral premises. (shrink)
The first text of Justinian’s sixth century Digest records that Ulpian, the leading lawyer from Syria and counsellor to successive emperors of the Severan age (AD 193-235), related the term ‘law’ to four elements: art, religion, ethics and philosophy.2 Law is the art of the good and equitable, of which lawyers can well be called priests. They cultivate justice and the knowledge of right and wrong, and aim, unless Ulpian is mistaken, at the true philosophy.3 He goes on to say (...) that private law is collected from three sources: natural law,4 the law common to all communities (ius gentium) and the law specific to each community (civil law).5 Gaius, a generation earlier, listed two sources: the civil law of each community and the ius gentium.6 He recognized, however, the existence of natural law which, so far as performing a ‘natural obligation’ is concerned, cannot be changed by civil law.7 At times he identifies natural law with ius gentium. (shrink)
The article deals with the relationship between theological ethics and moral philosophy. The former is seen as a theoretical reflection on Christian ethics, the latter as one on secular ethics. The main questions asked are: (1) Is there one and only one pre-theoretical knowledge about acting rightly? (2) Does philosophy provide us with the theoretical framework for understanding both Christian and secular ethics? Both questions are answered in the negative. In the course of argument, four positions are presented: theological unificationism, (...) philosophical unificationism, theological separationism and Lutheran dualism. It is argued that the latter position is most convincing. It is dual in the sense of being both a theory of Christian ethics and of including a recognition of natural law. Hence, it unites a particularistic and a universalistic point of view. In the last section a reformulation of the Lutheran position is attempted in making use of the ethical theory of Knud E. Løgstrup''s The Ethical Demand. (shrink)
