Natural Law Theory

Chair: Carl Wellman. There will now be a discussion between the two speakers in which they will take turns, posing questions, isolating issues and talking back and forth. At some point, I will accept questions from the floor.

In this paper, Maritain's theory, to explore culture, history and the relationship between the natural moral law. Provides a natural moral law and moral principles common starting point for dialogue, so that different religious, cultural, philosophical system can have a space for dialogue. This article first discusses Maritain's theory, the combination of state-like problem, introducing the principle of asymptotic lines, and to test how the history of a cultural understanding and implementation of the amount of natural moral law. And the (...) theory is applied to the case of the Five Emperors of ancient China: How to evolve from polygamy to monogamy Dov. Finally, the sexual liberation of the country and the Catholic countries of ethics as a policy to do more. This paper will attempt to explore the relationship between culture, history and the natural law. The natural moral law, based on a universally shared nature, provides a common starting point for moral dialogue between different religious, cultural and philosophical systems. Further, for Maritain history and human experience can provide a test by which competing ethical theories can be tested. (shrink)

This article defends a non-positivist theory of law, that is, a theory that accepts the necessary connection between legal validity and moral correctness by reference to the work of John Finnis. It begins with the dual nature of law as comprising both a real or factual dimension and an ideal dimension. Important examples show that at least some kinds of moral defect can deprive law of validity from the perspective of a participant in the legal system. The nature of the (...) connection between moral defectiveness and legal defectiveness is specified in terms of three possibilities: exclusive non-positivism, in which all cases of moral defect render law invalid; inclusive non-positivism, in which moral defect renders law invalid in some cases; and super-inclusive non-positivism, in which legal validity is not affected by moral defect at all. The paper argues for inclusive non-positivism as exemplified by the Radbruch Formula, according to which extreme injustice is not law, and which strikes the right balance between the ideal and real dimensions of law, against John Finnis’s account, which can be seen as an example of super-inclusive non-positivism, although his most recent work has tended towards the inclusive version. (shrink)

In the debate between positivism and non-positivism the argument from relativism plays a pivotal role. The argument from relativism, as put forward, for instance, by Hans Kelsen, says, first, that a necessary connection between law and morality presupposes the existence of absolute, objective, or necessary moral elements, and, second, that no such absolute, objective, or necessary moral elements exist. My reply to this is that absolute, objective, or necessary moral elements do exist, for human rights exist, and human rights exist (...) because they are justifiable. (shrink)

The argument of this article is that the dual-nature thesis is not only capable of solving the problem of legal positivism, but also addresses all fundamental questions of law. Examples are the relation between deliberative democracy and democracy qua decision-making procedure along the lines of the majority principle, the connection between human rights as moral rights and constitutional rights as positive rights, the relation between constitutional review qua ideal representation of the people and parliamentary legislation, the commitment of legal argumentation (...) to both authoritative and non-authoritative reasons, and the distinction between rules as expressing a real “ought” and principles as expressing its ideal counterpart. All of this underscores the point that the dual nature of law is the single most essential feature of law. (shrink)

This book analyses the general structure of constitutional rights reasoning under the German Basic Law. It deals with a wide range of problems common to all systems of constitutional rights review. In an extended introduction the translator argues for its applicability to the British Constitution, with particular reference to the Human Rights Act 1998.

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.

Are there universal values of right and wrong, good and bad, shared by virtually every human? The tradition of natural law argues that there is. Drawing on the work of psychoanalyst Melanie Klein, whose analyses have touched upon issues related to original sin, trespass, guilt, and salvation through reparation, in this 2006 book C. Fred Alford adds an extra dimension to this argument: we know natural law to be true because we have hated before we have loved and have wished (...) to destroy before we have wanted to create. Natural law is built upon the desire to make reparation for the goodness we have destroyed, or have longed to destroy. Through reparation, we earn salvation from the most hateful part of ourselves, that which would destroy what we know to be good. (shrink)

Ronald Dworkin's theory of law forges a close connection between questions about the truth of propositions of law and the question of political obligation: law as integrity is a theory of legal practice that purports to explain, not only how the content of law is determined, but also why the law—in ordinary cases—imposes an obligation of obedience. The theory (as presented) is ultimately incoherent. If we accept Dworkin's theory of the grounds of law we are obliged to reject his claims (...) about its force; alternatively, if we accept his view of the force of law, we must reject his theory about its grounds: he cannot be correct about both force and grounds. Dworkin supposes that, in extraordinary cases, the force of law is cancelled or overridden; but the relevant considerations of justice are wholly internal to our identification of the content of law. Consistently elaborated, integrity denies the offending requirements legal status: lex injusta non est lex. (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)

Legal theorists are familiar with John Finnis's book Natural Law and Natural Rights, but usually overlook his interventions in US constitutional debates and his membership of a group of conservative Catholic thinkers, the 'new natural lawyers', led by theologian Germain Grisez. In fact, Finnis has repeatedly advocated conservative positions concerning lesbian and gay rights, contraception and abortion, and his substantive moral theory derives from Grisez. Bamforth and Richards provide a detailed explanation of the work of the new natural lawyers within (...) and outside the Catholic Church - the first truly comprehensive explanation available to legal theorists - and criticize Grisez's and Finnis's arguments concerning sexuality and gender. New natural law is, they argue, a theology rather than a secular theory, and one which is unappealing in a modern constitutional democracy. This book will be of interest to legal and political theorists, ethicists, theologians and scholars of religious history. (shrink)

In “Enduring Originalism,” Jeffrey Pojanowski and Kevin C. Walsh outline how originalism in constitutional interpretation can be grounded in modern natural law theory as developed by John Finnis. Their argument to that effect is powerful and constitutes a welcome addition both to natural law theory and to originalist theory. However, the authors chose to present their account as a superior alternative to, or modification of, “positive” (“original-law”) originalism of Stephen Sachs and William Baude. It is that aspect of the paper (...) that I focus on in this short essay. Contrary to their strong claims in that direction, Professors Pojanowski and Walsh are far from establishing that positive originalism is deficient and that that their version of natural-law-based originalism offers a plausible alternative to positivist originalism. There is also a worry that, despite professing sympathy towards the “positive turn” in originalism, “Enduring Originalism” is at its core an account of what Professors Pojanowski and Walsh think the law should be, and not what the law is; precisely the kind of argument the positive turn militates against. (shrink)

Introduction: the grey goose -- The origins of civil society and the function of law -- Justice, ownership, and law -- Natural justice and conventional justice -- Justice and the trading order -- Adjudication and interpretation -- Morality, law, and legislation -- Natural law -- Rights -- The force of law -- The authority and legitimacy of law -- Conclusion.

Beyond geometry : Leibniz and the science of law -- The force of law : will -- Leibniz's systema iuris -- From the gesetzbuch to the landrecht : the ALR and the triumph of legality -- The rule of law : the Crown Prince lectures and the grounding of legality in order and security -- From reason to history : Savigny's system and the rise of social legal science -- The Bürgerliches Gesetzbuch (BGB) of 1900 : positive legal science and (...) the end of justice. (shrink)

The following responses to the scholars who were kind enough to comment on my Natural Justice in this symposium have been kept to a minimum by addressing only issues where I think a misunderstanding may have arisen.

Hugo Grotius (1583—1645) Hugo Grotius was a Dutch humanist and jurist whose philosophy of natural law had a major impact on the development of seventeenth century political thought and on the moral theories of the Enlightenment. Valorized by contemporary international theorists as the father of international law, his work on sovereignty, international rights of commerce […].

This chapter applies the modified philosophy of Alasdair MacIntyre to mental health law, and in particular to the mental health tribunal. The natural law approach of Thomas Aquinas is used to assist in this. It is argued that, for law to be just in pre-modern terms, it requires that it be assessed as rational together with the care it supports as a single entity. As such, according to a modified version of the Thomistic Aristotelian ethics of MacIntyre, justice would require (...) reconciliation of both doctor and patient narratives regarding care, possibly at the tribunal. It is suggested that psychiatric intensive care, in particular, could benefit from this approach. The approach might be seen as an additional protection to human rights-based considerations. It is also argued that the tribunal can be seen differently, according to the tradition of enquiry. (shrink)

Size is not always a gauge of significance. The issue that I propose to address here centers on a single clause from the Summa theologiae. But it goes nearly to the heart of St Thomas's teaching on natural law. It concerns the way in which Thomas thinks the human mind comes to understand good and evil. The specific question raised by the clause is the role played in this process by what Thomas calls "natural inclination." This question leads to an (...) even more basic one: what it is, for Thomas, that constitutes a truly intellectual grasp of the good. (shrink)

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)

Hegel's legacy is particularly controversial, not least in legal theory. He has been classified as a proponent of either natural law, legal positivism, the historical school, pre-Marxism, postmodern critical theory, and even transcendental legal theory. To what degree has Hegel actually influenced contemporary legal theorists? This review article looks at Michael Salter's collection Hegel and Law. I look at articles on civil disobedience, contract law, feminism, and punishment. I conclude noting similarities between Hegel's legal theory and that of Ronald Dworkin. (...) I also criticize the volume's emphasis on Hegel's postmodern credentials, all of which I doubt. (shrink)

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)

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.

Focused on five prominent scholars of international law, and casting light on the related institutions which frequently engaged them, the present book provides insight into chief currents of international law during the last decades of the twentieth century. Spanning the gap, in some degree, between Anglo-American and continental approaches to international law, the volume consists of short intellectual portraits, combined with interviews, of selected specialists in international law. The interviews were conducted by the editor, Antonio Cassese, between 1993 and 1995 (...) though the present volume was published only last year. -/- Cassese, an Italian jurist and international lawyer, was Professor of International Law at the University of Florence (1975-2008) and specialized in public international law. Among other posts held, he was the first President of the International Criminal Tribunal for the former Yugoslavia, the first President of the Special Tribunal for Lebanon and chaired the UN Inter-national Inquiry into Crimes in Darfur. He authored International Law (2005), a comprehensive commentary on the subject (which makes a fine companion volume to the present book). He was also editor in chief of the Oxford Companion to International Criminal Justice (2009) and founded the Journal of International Criminal Justice. His work has been credited as providing a chief impetus in the revival of international criminal law from its post-Nuremberg hiatus. -/- Cassese seeks to bring out the central ideas associated with each of his five selected scholarly jurist-professors, focusing on international law and international relations; and he aims to place each of the five scholars within the context of their own intellectual and philosophical back-grounds - and their views of the development of the international community. The interviews were based on Cassese’s “basic questionnaire,” which is reproduced in the opening pages of the volume (pp.xvii-xix). Overall, the book provides an engaging, though intricate, perspective on contemporary developments in international law combined with discussion of its roots in the post-WWII era and in legal philosophies. (shrink)