Natural Law Theory

What factors affect judicial decision-making? The legal system is of utmost importance because of its impact on our lives. Judges appear to have the most power among any social workers seeing as the precedents set in their decisions are tantamount to written law. Nevertheless, judges may be subject to certain biases, moral and cognitive alike, which influence their rulings. Looking into how morality and cognitive biases affect judges may also reveal how we as individuals handle combining morals with ethics- as (...) well as whether any discrepancies among ourselves are justifiable. An investigation into relevant moral and jurisprudential theories revealed much about the inner workings of a judge’s mindset- whether he or she recognizes it or not. Coupling this with corroborated research on a select few heuristics present specifically for judges sets the foundation for an array of possible solutions in order to ensure the most impartial judicial proceedings. Plausible remedies include conducting premortems, implicit association tests, and a revised ruling procedure. (shrink)

"Resolution of Jerusalem’s status arguably remains controversial because of the divergent analytical lenses through which the conflict’s parties, and others, view its intertwined legal, territorial, historical and religious issues. Thus, Jerusalem persists as an intricate and intractable cornerstone of the Israel-Palestine conflict." Diakonia International Humanitarian Law Resource Centre.

The teachings and actions of Jesus Christ (Yeshua Ha'Mashiach) and the apostles recorded in the New Testament are analyzed in regard to their ethical and political philosophy, with analysis of context vis-à-vis the Old Testament (Tanakh, or Hebrew Bible) being given. From this analysis, it is shown that Jesus is a libertarian anarchist, i.e., a consistent voluntaryist. The implications this has for the world are profound, and the ramifications of Jesus's anarchism to Christians' attitudes toward government (the state) and its (...) actions are explicated. (shrink)

It is shown that libertarian anarchism (i.e., consistent liberalism) is unavoidably true.

People have been arguing about natural law for at least a couple of thousand years now. During that time, a number of substantially different sorts of theory have been identified as falling within the natural law tradition. Even within each sort of natural law theory, there has been a variety of quite different arguments proposed, both in behalf of and in opposition to the theory. These facts about the natural law tradition serve to confound its critics. It's extremely tough to (...) get a tidy formulation of just what natural law theory is, and such a formulation is needed if the theory is to be analyzed as to its adequacy, truth, value, or whatever. I am going to try to perform such an analysis nonetheless, and to do it as neatly as possible within a fairly short space. (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)

In his "Elementa Iuris Naturae et Gentium" Johann Gottlieb Heineccius presents a unique account of love as the principle of natural law, referring to the main concern of early modern protestant theories of natural law: the importance of securing subjective rights by a law. Heineccius accepts the universal character of subjective rights derived from human nature, claiming their protection as natural duties required by a law. This chapter provides an attempt to explain the specific ways in which Heineccius deals with (...) the paradoxical situation that the protection of subjective rights by a natural law theory requires certain limitations of the use of such rights, in order to avoid the mutual collision of such rights. For this purpose it focuses on the rights to free thought and free speech, which are very good example for that. While the first part reconstructs the way in which Heineccius claims the specific concern of natural law and points out continuities and discontinuities with his predecessors, the second part focuses on the requirement of natural law for limitation of free thought and free speech in case of collision of subjective rights. (shrink)

: The article explores Dworkin’s suggestion that law and morality comprise a unified normative domain, considering similar suggestions by Greenberg and Hershovitz. It defends an interpretative approach to law, akin to Dworkin’s, against the view that the law’s content is determined by direct appeal to political morality at large, subject only to the effect of action by law-making institutions. Legal practice and political principle are in important ways interdependent, each capable of illuminating and clarifying the other. As an approximation of (...) justice, grounded in practice, the law consists fundamentally in the moral principles that, in the final analysis, constitute the political community. The law’s content is an interpretative question, dependent on a grasp of practice that gives determinate shape to abstract concepts of equality and justice. (shrink)

Legal anti-positivism is widely believed to be a general theory of law that generates far too many false negatives. If anti-positivism is true, certain rules bearing all the hallmarks of legality are not in fact legal. This impression, fostered by both positivists and anti-positivists, stems from an overly narrow conception of the kinds of moral facts that ground legal facts: roughly, facts about what is morally optimific—morally best or morally justified or morally obligatory given our social practices. A less restrictive (...) view of the kinds of moral properties that ground legality results in a form of anti-positivism that can accommodate any legal rule consistent with positivism, including the alleged counter-examples. This form of “inclusive” anti-positivism is not just invulnerable to extensional challenges from the positivist. It is the only account that withstands extensional objections, while incorporating, on purely conceptual grounds, a large part of the content of morality into law. (shrink)

Legal positivism maintains a distinction between law as it is and law as it ought to be. In other words, for positivists, a law can be legally valid even if it is immoral. H. L. A. Hart hoped to defend legal positivism against natural law. This paper analyses Hart’s criticism of Gustav Radbruch, a natural lawyer, before suggesting that Hart’s account of legal positivism gives rise to a logical problem. It is concluded that this problem leaves logical space for a (...) theory of natural law based on moral authority rather than legal validity. (shrink)

This paper explores the possibility that Hobbesian jurisprudence is best understood as a ‘third way’ in legal theory, irreducible to classical natural law or legal positivism. I sketch two potential ‘third theories’ of law -- legal pragmatism and legal dualism -- and argue that, when considered in its broadest sense, Leviathan is best viewed as an example of legal pragmatism. I consider whether this legal pragmatist interpretation can be sustained in the examination of Leviathan’s treatment of civil law, and argue (...) that the pragmatic interpretation can only be successful if we can resolve two textual issues in that chapter. First, while Hobbes argues that law entails the existence of public (sharable) reasons, he does not adequately defend the view that the sovereign is the unique authority over such reasons in all cases, especially as far as they concern known collective emergencies. Second, Hobbes both affirms and denies that a sovereign can fail to do justice, which is paradoxical. Both problems are best resolved by legal pragmatism, though the second problem resists a fully satisfying resolution. The upshot is that, although Leviathan ought to be regarded as an episode of legal pragmatism, there are trade-offs on every reading. (shrink)

Building on the system of reason provided for by the Greek philosopher and specifically Aristotle, St. Thomas Aquinas built a comprehensive system and theory of natural law which has lasted through the ages. The theory was further developed in the Middle Ages and in the Enlightenment Ages by many a prominent philosopher and economist and has been recognized in the Modern Age. The natural law-theory and system has been repeatedly applied to the spheres of economic thought and has produced many (...) lasting contributions such as private property rights and individual rights. In recent times with the collapses of the financial system and rapid globalization, there has been a renewed interest in the application of natural law theory to economics to counter a certain anthropology and distortion of values created by a modern economic system of selfpreservation deriving its insights from the philosophies of Thomas Hobbes and Niccolo Machiavelli. (shrink)

Thomists need to learn from and address MacIntyre’s account of moral disagreement, whether or not they will ultimately agree with its broad outlines. First, they should consider that MacIntyre’s emphasis on social roles as an explanation of moral disagreement accounts for only some kinds of moral disagreement and growth. Second, a recognition of different kinds of disagreement shows that only some can be adequately addressed by moral philosophy, and even those that can be so addressed require not only instruction but (...) also other forms of moral formation. Third, MacIntyre’s account of how some disagreements can be resolved through epistemological progress indicates that Thomists need to consider more carefully the connection between moral and scientific inquiry. I do not intend in this paper to present a full argument for the compatibility or incompatibility of MacIntyre with some version of Thomism, or for the correctness of his views. My purpose is to show that Thomists need to address these three areas more carefully, whether MacIntyre is ultimately correct or not. (shrink)

Argues for a framework understanding of the common good, one that does not depend on the existence and operation of the state, in the context of new classical natural law theory.

Law being a derivative feature of reality, it exists in virtue of more fundamental things, upon which it depends. This raises the question of what is the relation of dependence that holds between law and its more basic determinants. The primary aim of this paper is to argue that grounding is that relation. We first make a positive case for this claim, and then we defend it from the potential objection that the relevant relation is rather rational determination (Greenberg 2004, (...) 2006). Against this challenge, we argue that the apparent objection is really no objection, for on its best understanding, rational determination turns out to actually be grounding. Finally, we clarify the framework for theories on law-determination that results from embracing our view; by way of illustration, we offer a ground-theoretic interpretation of Hartian positivism, and show how it can defuse an influential challenge to simple positivist accounts of law. (shrink)

Volume 10, Issue 2, June 2019, Page 237-245.

This book provides the first systematic, book-length defence of natural law ideas in ethics, politics and jurisprudence since John Finnis's influential Natural Law and Natural Rights. Incorporating insights from recent work in ethical, legal and social theory, it presents a robust and original account of the natural law tradition, challenging common perceptions of natural law as a set of timeless standards imposed on humans from above. Natural law, Jonathan Crowe argues, is objective and normative, but nonetheless historically extended, socially embodied (...) and dependent on contingent facts about human nature. It reflects the ongoing human quest to work out how best to live flourishing lives, given the natures we have and the social environments we inhabit. The nature and purpose of law can only be adequately understood within this wider context of value. Timely, wide-ranging and clearly written, this volume will appeal to those working in law, philosophy and religious studies. (shrink)

This thought-provoking Research Handbook provides a snapshot of current research on natural law theory in ethics, politics and law, showcasing the breadth and diversity of contemporary natural law thought. The Research Handbook on Natural Law Theory examines topics such as foundational figures in Western natural law theory, natural law ideas in a variety of religious and cultural traditions, normative foundations of natural law, as well as issues of law and governance. Featuring contributions by leading international scholars, this Research Handbook offers (...) a valuable resource for scholars in law, philosophy, religious studies and related fields. (shrink)

This paper explores the effect that conformity to the rule of law has on the ends which might legitimately be pursued within a legal system. The neat distinction between formal and substantive conceptions of the rule of law will be challenged: even apparently formal conceptions necessarily affect the content of law and necessarily entail the protection of certain fundamental rights. What remains of the formal/substantive dichotomy is, in fact, a distinction between conceptions of the rule of law which guarantee the (...) substantive justice of each and every law and those which entail some commitment to basic requirements of justice while nevertheless leaving room for unjust laws. Ultimately, the only significant distinction between competing theories of the rule of law concerns the nature of the connection between legality and justice, not whether there is any such connection at all. (shrink)

In his _Natural Law and the Nature of Law_, Jonathan Crowe has written an important and interesting book, one that should be read by people interested in jurisprudence, ethics, and political philosophy. Its distinctive strength is in the way Crowe shows how much can be done within a natural law framework that does not assume a theological background. A distinctive feature of Crowe's approach to natural law, one that distinguishes it from other well-known approaches, is its argument that only a (...) minimal state, if any state at all, is required by or even compatible with natural law. It is this claim that I focus on in this paper. I show that these anti-state arguments do not work, and that a much more robust, largely state-like, type of political society is necessary if the requirements of natural law that Crowe accepts are to be met. In doing this, I also draw some related conclusions about the proper understanding and reach of the common good. In arguing for this conclusion I do not attack Crowe's general approach, but rather make what I hope to be an internal critique of the argument. If I am successful in this, then there will be reason for people who are sympathetic to the overall project to reject some of Crowe’s sub-conclusions, even if they wish to remain working in the natural law tradition overall. And, there will be reason to accept that something like the modern state will be necessary - at least for some time and for people like us - if we are to live good lives. (shrink)

Augustine posed two questions that go to the heart of the nature of law. Firstly, what is the difference between a kingdom and a band of robbers? Secondly, is an unjust law a law at all? These two questions force us to consider whether law is simply a means of social control, distinguished from a band of robbers only by its size, or whether law is a social institution justified by its orientation towards justice. The End of Law applies Augustine’s (...) questions to modern legal philosophy as well as offering a critical theory of natural law that draws on Augustine’s ideas. McIlroy argues that such a critical natural law theory is realistic but not cynical about law’s relationship to justice and to violence, can diagnose ways in which law becomes deformed and pathological, and indicates that law is a necessary but insufficient instrument for the pursuit of justice. Positioning an examination of Augustine’s reflections on law in the context of his broader thought, McIlroy presents an alternative approach to natural law theory, drawing from critical theory, postmodern thought, and political theologies in conversation with Augustine. (shrink)

In this paper I focus on the work of Sayyid Qutb and in particular his book Milestones, which is often regarded as the Communist Manifesto of Islamic fundamentalism. This paper has four main sections. First I outline Qutb’s political position and in particular examine his advocacy of offensive jihad. In section two I argue that there are a number of tendencies that make his position potentially more liberal that it is often taken to be. I here argue that there are (...) at least six reasons why Qutb’s position is not intrinsically as anti-liberal as it might at first appear. First, many western liberals, influenced by the social contract tradition, regard the legitimacy of their societies as based on popular sovereignty. Qutb, however, regards a society based on popular sovereignty, where law emerges from the will of man rather than the will of God, as a form of tyranny, so it would seem that he is in principle opposed to Western liberal societies. It is not clear, however, that we, or Islamic fundamentalist, need to regard Western liberal societies as based on popular sovereignty, for it is always possible to interpret Western political institutions through the lens of natural law theory, which was one of the main sources of the liberal tradition. In this section I will compare Qutb’s political philosophy with that of Aquinas to illustrate this point and suggest the possibility of secularists and puritan Islamists being able to form an overlapping consensus on the legitimacy of liberal Western societies. Secondly, there is an analogue to the social contract in Qutb’s own position as he believes that legitimate authority requires the free submission of the governed. Thirdly, Qutb is in principle a fallibilist about human reason; this fallibilism extends even to our capacity to interpret divine revelation. Fourthly, Islamic universalism requires that Muslims regard enemies they might be fighting as potential converts. Fifthly, Qutb, like most Sunni fundamentalists, is an implacable enemy of theocracy. And finally, Qutb is a gradualist. In the third section I argue that the real danger for liberal societies from believers in a position like Qutb’s is sociological rather than intrinsic to the ideology – specifically, that there is a danger that such groups may develop in a ‘Leninist’ direction. In the final section I argue that one of the main reasons for this danger is the lack of a consensus in the Islamic world about what it is to be a good, or even a true, Muslim, and that the slow emergence of some sort of consensus will require a vigorous public debate amongst Muslims. Western liberals should welcome such debate rather than fearing such, and should do all they can to ensure that civil society, both in Western societies and in predominantly Islamic societies, is open to such debate. (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)

This essay introduces the philosophy of legal information (PLI), which is a response to the radical changes brought about in philosophy by the information revolution. It reviews in some detail the work of Luciano Floridi, who is an influential advocate for an information turn in philosophy that he calls the philosophy of information (PI). Floridi proposes that philosophers investigate the conceptual nature of information as it currently exists across multiple disciplines. He shows how a focus on the informational nature of (...) traditional philosophical questions can be transformative for philosophy and for human self-understanding. The philosophy of legal information (PLI) proposed here views laws as a body of information that is stored, manipulated, and analyzed through multiple methods, including the computational methodologies. PLI offers resources for evaluating the ethical and political implications of legal infomatics (also known as "legal information systems"). -/- This essay introduces PLI. Parts I and II describe Floridi's philosophy of information. First, Part I introduces the transformation in the concept of information that occurred in the twentieth century through the work of Alan Turning and Claude Shannon. Part II describes Floridi's approaches to traditional questions in epistemology, ontology, and ethics. Part III applies PI to the analysis of legal positivism. It suggests that PLI is a viable project that has potential for transforming the understanding law in the information age. -/- . (shrink)

In his debate with H.L.A. Hart, Lon L. Fuller criticizes legal positivism for its inability to account for the moral obligation to obey the law, an obligation in which he and, he thinks, most others, including legal positivists, believe. He assumes that his alternative conception of law is not similarly flawed. In this paper, I ask whether his assumption is warranted. My topic, therefore, is Fuller's contribution to the philosophical debate about “political obligation.” Participants in the debate have neglected his (...) work. Yet perhaps it contains an argument that deserves attention. I identify four possibilities. I show that, if Fuller were to defend his assumption that his theory of law is able to account for the alleged obligation to obey the law, he would not take the first option. He would, I suggest, choose the second or the third. I claim, however, that neither is persuasive. Moreover, they fail in such a way that the fourth possibility need not even be considered. Fuller’s assumption, I conclude, is unwarranted. (shrink)

Was ist Natur oder was könnte sie sein? Diese und weitere Fragen sind grundlegend für Naturdenken und -handeln. Das Lehr- und Studienbuch bietet eine historisch-systematische und zugleich praxisbezogene Einführung in die Naturphilosophie mit ihren wichtigsten Begriffen. Es nimmt den pluralen Charakter der Wahrnehmung von Natur in den philosophischen Blick und ist auch zum Selbststudium bestens geeignet.

Referring to Reichlin’s reflections, the author analyzes the aporias arised in the debate on euthanasia, proposes to establish some general principles (e.g. inviolability of human life, the prohibition of extend unnecessary suffering, the principle of autonomy) and a method of application of them to controversial cases. The combinatorial ethics that emerges can probably solve the aporias and can harmonize the common sense (about the possibility of euthanasia in extreme cases) with Catholic doctrine – specifically referring to the Natural Moral Law (...) theory – in an attempt to integrate the results of combinatorial ethics with the principles established in this doctrine. The conclusions, although admittedly provisional, are translated into indications for an hypothetical legislator, in order to overcome the legislative aporia. In the final part, analyzing the religious aporia, the author proposes to include some forms of euthanasia in a total rethinking of the meaning of death, starting with the teachings of Christian faith. -/- Basandosi sulle riflessioni di Massimo Reichlin e James Rachels, l’Autore intende analizzare le principali aporie che emergono nella riflessione etica sull’eutanasia – quella filosofico-metodologica, deontologica, legislativa e religiosa. Attraverso quest’analisi, l’Autore propone di riprendere alcuni principi generali (tra cui l’indisponibilità della vita, il divieto di prolungare sofferenze inutili e il principio di autonomia), fornendo poi un metodo d’applicazione ai casi concreti. L’etica combinatoria che emerge da questa impostazione, riesce in buona misura a risolvere le aporie analizzate, armonizzando alcune intuizioni comuni (circa la liceità dell’eutanasia in casi particolarissimi ed estremi) con la dottrina cattolica corrente in materia. Nel confronto con la morale cattolica, in particolare, viene analizzata e discussa la teoria della legge morale naturale, nel tentativo di integrare i risultati dell’etica combinatoria con i principi affermati in questa dottrina. Le conclusioni teoretiche, anche se dichiaratamente provvisorie, si traducono poi in indicazioni praticate per un ipotetico legislatore, nel tentativo di superare l’ultima grande aporia, quella legislativa. Nella parte conclusiva, analizzando l’aporia religiosa, l’Autore propone di iscrivere la liceità di alcune forme di eutanasia all’interno di un complessivo ripensamento del significato della morte, partendo dal dato di fede cristiano, nel tentativo di superare la “logica della rimozione” che sembra caratterizzare la nostra contemporaneità. (shrink)

This article considers natural law perspectives on the nature of law. Natural law theories are united by what Mark Murphy calls the natural law thesis: law is necessarily a rational standard for conduct. The natural law position comes in strong and weak versions: the strong view holds that a rational defect in a norm renders it legally invalid, while the weak view holds that a rational defect in a legal norm renders it legally defective. The article explores the motivations for (...) the natural law position, before considering three lines of natural law argument found in the literature. I conclude by examining the arguments offered by John Finnis and Murphy in support of the weak natural law view. I suggest that these arguments fail to impugn the strong natural law thesis. Indeed, the functional argument outlined by Murphy provides a plausible route to a hybrid natural law view that incorporates both weak and strong claims. (shrink)

Goetz outlined legal models of identical entities that include natural persons who are identical to a coregency and natural persons who are identical to a general partnership. Those entities cohere with the formula logic of relative identity. This essay outlines the coexistence of relative identity and numerical identity in the models of identical legal entities, which is impure relative identity. These models support the synthesis of Relative Trinitarianism and Social Trinitarianism, which I call Relative-Social Trinitarianism.

This essay explores a creative argument that Cicero offers to answer a fundamental question: how are we to judge among different ways of life? Is there a natural hierarchy of human types? In respon...

Anthony Celano argues that after Thomas Aquinas the flexibility of Aristotle’s ethics gives way to the universal codes of Christian morality. His argument posits that the Schoolmen adopted a line of moral reasoning that follows a Platonic tradition of taking universal moral principles as the basis of moral reasoning. While Thomas does work in a tradition that, resemblant of the Platonic tradition, incorporates inerrant principles of moral reasoning in the habit of _synderesis_, his understanding of those principles is distinctly Aristotelian (...) in character and thus the flexible moral reasoning of Aristotle’s _phronimos_ is retained. For Thomas _synderesis_ is the first principle of practical reason and is the source rather than the inhibitor of personal and spontaneous moral reasoning. This article will first outline Celano’s position, detail the thought of Thomas’ predecessors, and then show how Thomas employs the principle of _synderesis_ in a distinctly Aristotelian framework. (shrink)

A commitment to the rule of law is a commitment to the governance of a society through the use of general or generalisable rules which are binding on both the subjects and the rulers. By giving due notice of the rules and of any changes to them, those who are subject to the law are protected from violence and enabled to act as agents. This is the essential contribution the rule of law makes to important human goods including freedom. Such (...) an understanding of the rule of law illuminates why the law-like character of God and the revelation of God’s law make human free will meaningful and a relationship of love between God and human beings possible. A commitment to the rule of law also means that those exercising power have to offer justifications to explain why the rules are binding, which opens up space for debate about whether the rules are just. (shrink)

The 19th Century New England author Thoreau provides an approach to conscience and unjust laws approximating that given by St. Thomas Aquinas in _Summa Theologiae_. But the portrait of conscience given by Thoreau in the 1848 oration “Civil Disobedience” is incomplete. Thoreau’s approach is solved by accepting insights given in Part I and Part I–II of _Summa Theologiae_. Allowing St. Thomas’ insights requires reform of Thoreau’s civil disobedience and conscientious objection. But Thoreau’s arguments are given new life.

Lorenzo Peña y Gonzalo has developed a logic, a legal philosophy and a political thought of a deeply neo-Leibnizian nature. The neo-Leibnizian mark characterizes both his philosophical thesis and the terms has coined in his contributions to the theory of knowledge, theodicy, ontology, political philosophy, etc. Above all, this mark is present in his conception of Law and of the logic of legal situations. Under the light of the political problems and crossroads of the present time, this interview allows for (...) an approach to some of the intellectual findings in his work. (shrink)

In his influential work, The Concept of Law, H. L. A. Hart levels several criticisms at the traditional natural law principle: lex iniusta non est lex. Although some of his criticisms have received a great deal of careful evaluation, others have not. In this paper I will focus on several ways in which Hart attempts to undermine the value of this principle. I will pay particularly close attention to his claims concerning the unfortunate effects that follow from either scholars’ or (...) ordinary citizens’ acceptance of this principle. It is my aim to show that his criticisms of this principle fail. It must be noted that my end is a modest one. I do not attempt to clear all possible objections to this principle, nor conclusively prove its value, but merely show that one set of arguments against it fails. Although this aim is surely modest, it is, I contend, nonetheless important. Investigating the relationship between morality and legality is undoubtedly one of the central tasks of legal philosophy. Since the time of Plato, natural law theories, although differing on various particulars, have proposed a powerful answer concerning this relationship. It is clear that these theories no longer receive the attention they once did, at least in part because of Hart’s objections. I intend to show that these objections fail to show the inadequacy of the lex iniusta principle. (shrink)

The analysis demonstrates that for Plato the principal aim of punishment is not the defence of values acknowledged by the legal system nor the well being of the state, but the good of the individual – his personal development, which is, first of all, moral development. This development consists of the attainment of the greatest – situated on the level of existence – excellence of the subject, which is the virtue of justice, an inner unity based on inner regularity, order, (...) harmony and straightness. Attainment of the virtue of justice is likewise the attainment of happiness. In principle, punishment ought to be adapted and proportionate not to the act committed, but to the state of the subject, the state of his soul. It should be appropriate medicine, returning health to the soul, restoring inner order, harmony and straightness. The elements of a retributive concept of punishment become salient above all in the case of the most hardened criminals, who are internally so spoiled that no amelioration is possible, no punishment can be a suitable, sufficient medicine. Yet, the punishment is deserved, proportional to the degree of depravity of the offender, and thus possesses a deterrent value. Moreover, the suffering of the offender, since it is beneficial for others, contributes to his inner unity and his goodness. The preceding analysis concerning Plato’s conception of punishment clearly shows that the aim of punishment is not the good of the state, nor the abstractly conceived order of justice. The aims of punishment are not located beyond the individual (the individual soul). Therefore, in this conception of punishment there are no elements of thinking typical of that in the spirit of totalitarianism. The law and the state serve the good of the individual. This is an important argument on behalf of the postulate of a non-totalitarian interpretation of the Republic and the others dialogs of Plato. (shrink)

An important argument in favour of recognising the cultural relativism and against universality of dignity and human rights, is the claim that the concept of dignity is a genuinely modern one. An analysis of a passage from the Demiurge’s speech in Timaeus reveals that Plato devoted time to reflecting on the question of what determines the qualitative difference between certain beings (gods and human being) and the world of things, and what forms the basis for the special treatment of these (...) beings – issues that using the language of today can be described reasonably as dignity. The attributes of this form of dignity seem to overlap with the nature of dignity as we know it today. Moreover, Plato proposes a response both to the question of what dignity is like, as well as the question of what dignity is. It is existential perfection, rooted in a perfect manner of existence, based on a specific internal unity of being. Dignity is therefore primordial in regard to particular features and independent of their acquisition or loss. Plato’s approach allows him to postulate that people be treated as ends in themselves; an approach therefore that prohibits the treatment of people as objects. Both the state and law are ultimately subordinated to the good of the individual, rather than the individual to the good of the state. -/- Istotny argument na rzecz relatywizmu kulturowego i przeciwko powszechności godności i wynikających z niej praw człowieka, oparty jest na poglądzie, że godność uznana została dopiero w czasach nowożytnych. Analiza fragmentu mowy Demiurga z Platońskiego dialogu Timajos ujawnia, że Platon rozwinął refleksję nad czymś, co stanowi o jakościowej różnicy między pewnymi istotami (bogami i ludźmi) a światem rzeczy, i co jest podstawą szczególnego traktowania tych istot, a co językiem współczesnym zasadnie można określić jako godność. Zbieżna jest charakterystyka tej godności z charakterystyką przyjmowaną współcześnie. Co więcej, Platon daje propozycję odpowiedzi nie tylko na pytanie, jaka jest godność, ale także na pytanie, czym jest godność. Jest ona doskonałością egzystencjalną, ugruntowanym w szczególnie doskonałym sposobie istnienia, opartym na szczególnej wewnętrznej jedności bytu. Jako doskonałość istnienia ogarnia ona cały byt, wszystkie jego cechy; jest nieoddzielalna od bytu (jest przyrodzona i niezbywalna). Jako pierwotna wobec partykularnych cech, jest niezależna od ich nabywania lub utraty. Platońskie ujęcie pozwala w oparciu o ujęcie godności formułować postulaty zbieżne z formułowanymi dziś dyrektywami nakazującymi traktować osoby jako cele same w sobie i zakazującymi traktowania osób w sposób czysto instrumentalny, przedmiotowy. Okazuje się, że – zdaniem Platona – jednostki nie wolno traktować czysto instrumentalnie dla dobra państwa; zarówno państwo, jak i prawo są podporządkowane dobru jednostki. (shrink)

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)

Retribution enjoys an unwarranted appeal from the public and its politicians. This is because it is impractical and perhaps even incoherent. This does not mean that we should reject the importance of morality for criminal justice nor should we reject the link between desert and proportionality. Nevertheless, we can reject the way retribution has understood these ideas in defense of a more plausible and compelling alternative.