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2000 •
The nature and location of the disagreement(s) between legal positivism and natural law theory has often been unclear, in large part because of the way each approach has been misunderstood by advocates for the other side. Many commentators assume that the two approaches disagree about whether immoral rules can have the status of law, but there is little evidence to support this view. Natural law theorists from Aquinas to Finnis have allowed that immoral rules are law (can have legal status), only that they are not law in its fullest sense (because such laws do not create moral obligations to obey them). The article concludes that the debate between natural law and legal positivism is joined elsewhere: regarding the meta-theoretical question of whether it is possible and valuable to have a morally neutral theory of law. Legal positivists advocate morally neutral theories, while natural law theorists like Finnis expressly or implicitly argue for a pervasively moral-evaluative theory o...
LAW’S HUMILITY THE POSSIBILITY OF METAJURISPRUDENCE TABLE OF CONTENTS INTRODUCTION 1-43 PART I THE METAPHYSICS OF LEGALITY CHAPTER I: Metaontology and Metajurisprudence: 44-122 I.1. Reconfiguring the Site and Scope of Theoretical Disagreement about Law: 44-46 I.2. Replacing the Familiar with the Unfamiliar: Morality as a Dividing Criterion: 47-49 I.3. Relocating the Site of Theoretical Disagreement: 49-57 I.4. Reconsidering the Scope of Theoretical Disagreement: 57-72 I.5. Re-mapping the Division of Opinion: 72-122 • I.5.1. Logical Form and Truth Conditions of Legal Propositions: 75-98 A. Logical Regimentation: 76-78 B. Semantic Complications: 78-81 B.1. Perspectivalism about Law: 81-85 B.2. Is Legality Twin-Earthable?: 85-90 B.3. Is Legality Self-Locational?: 90-93 C. A Semantic Digression: Some Preliminary Remarks: 93-98 • I.5.2. Back to Legal Metaphysics: 98-122 A. Reweaving the Web: 100-114 B. Grounding the Truthmakers: 114-122 CHAPTER II Legal Propositionalism: 123-142 II.1. Outlining the Borders of Legal Propositionalism: 127-132 II.2. Relating Legal Propositions to Legal Facts: 132-142 CHAPTER III A Semantic Digression: 143-205 III.1. The Property Approach: 145-157 A. Legality as an Attributive Term: 147-149 B. Legality as an Objectionable Thick Property: 150-157 III.2. The Sortal Approach: 158-179 III.3. A Minimal Semantic Framework: 179-205 A. Legal Propositions as Recipes for Making Law: 183-188 B. The Semantic Value of the Copula: 188-194 C. The Semantic Value of the Dummy Sortal: 194-200 D. Are Constitutive Disputes Merely Verbal?: 200-205 CHAPTER IV Varieties of Theoretical Disagreement: 206-279 IV.1. Legal Constitution and Its Discontents: 211-241 A. First-order Disagreement over Legal Constitution: 212-222 B. Second-order Disagreement over Legal Constitution: 222-241 IV.2. Objectionable Legal Ontological Commitments: 242-247 IV.3. Disagreement over Legal Grounding: 247-279 CHAPTER V A Dispositional Route for Explaining How Facts Make Law: 280-363 V.1. From Nomic Language to Dispositional Facts: 282-290 V.2. The Case of Enforceability: 290-308 V.3. Law Between Coercion and Trust: 308-363 A. Resisting Some Platitudes about the Relation between Law, Coercion and Trust: 314-322 B. Distinguishing the Legal from the Social Capital: The Role of Coercion and Trust: 322-330 C. Inviting and Validating Trust: Function: 331-334 D. Inviting and Validating Trust: Grounds: 334-363 PART II THE NORMATIVITY OF LEGALITY CHAPTER I Resisting Some Platitudes about Practical Normativity: 364-385 I.1. Dimensions of Normative Relevance: 371-373 I.2. Normatively Relevant Facts: 373-77 I.3. Normative Roles: 377-385 CHAPTER II A Digression into Rationality and Thick Evaluation: 386-404 II.1 Rational Requirements, Asymmetry and Response-Constraint: 389-393 II.2 Thick Evaluation, Global Judgment and Constitutive Impact: 393-404 CHAPTER III The Metric Approach to Legal Normativity: 405-438 III.1. Variants of the Metric Approach: 411-415 III.2. Measuring Up Against the Nexus: Legal Facts as Nexus Reasons: 415-438 A. The Metaphysical Role of Legal Facts: 419-424 B. The Evaluative Role of Legal Facts: 425-431 C. The Explanatory Role of Legal Facts: 431-438 CHAPTER IV Varieties of Disagreement about Legal Normativity: 439-480 IV.1. First-order Disagreement about the Grounds of Nexus Facts: 442-448 IV.2. Second-order Disagreement about the Normative Relevance of Legal Facts: 449-480 CHAPTER V In Search for Another Quadrant: 481-540 V.1. Legal Normativity Without Legal Facts: 483-489 V.2. Genres of Social Normativity: Law, Games, Promises and Civility: 489-540 A. Practice Markers: The Role of Constitution: 497-509 B. Dispositional Markers: A Normativity Diagnostic: 509-540 CHAPTER VI The Nature and Grounds of the Normativity of Enforceable Obligations: 541-582 VI.1. Law and Normative Asymmetry: The Relevance of Action-Constraint: 543-556 VI.2. Law and Evaluation: The Relevance of Constitutive Impact: 556-559 VI.3. The Grounds of Legal Normativity and the Value of the Rule of Law: 560-582 A. The Relation Between Freedom-Upholding Action and Enforceability Requirements: 562-567 B. Formal Legality: Making Enforceability Manifestable: 568-582 APPENDIX: 583-4 BIBLIOGRAPHY: 585-621
There has classically been a divide in legal jurisprudence, namely that between “positive law” and “natural law”. As will be seen this divide takes many forms. This dissertation does not purport or attempt to provide a comprehensive analysis of the two, but instead focusses on John Finnis’ contribution and how this affects positive and natural law doctrine. The reader will be taken through an evaluation of what separates natural and positive law theory (NLT/PLT) and whether there is a divide, and then onto Finnis’ theory, outlining how it contributes to natural law doctrine and jurisprudence as a whole. The discussion will then move to an evaluation of his theory; assessing its legitimacy and this will culminate with a case study on Abortion and how Finnis’ theory deals with such an important topic. It is proposed that Finnis has much to offer both sides of the divide, even to the extent of bringing the two together. With regards to the divide and as will be discussed in chapter I, positive law and natural law theory both have their merits. PLT classically differs to NLT in that it refuses, at least to some extent, to give morality a “necessary” role in the law; rather it attempts to identify “what the law be” or rather is. Positive law theorists have often considered law and morality to be different disciplines . NLT, on the other hand, considers morality as central to law , or at least to the extent that it should play a role. As we see here the divide is not always clear. Whether the extremes of both ends overlap is disputed, particularly when theorists who are on either side hold views which find affirmation from their opposing traditions. In addition to this, natural law often identifies itself as not only a descriptive exercise but a rational one; considering the normativity of extra-legal sources. Hume’s “guillotine”, which seeks to separate “ideas” and “impressions” , is often considered as fatal to any theory of law which moves from the factual to the normative. If true, this would include most theories of natural law, potentially including Finnis’. This issue will be explored in depth in chapter III. A theory which effectively bridges such a divide needs to minimise the criticisms of each side whilst maximising their strengths. A legal system which accords solely with either traditional PLT or NLT has its problems. As an example, a legal system such as that of the Third Reich would stereotypically be considered as completely valid by PLT irrespective of whether or not it is just, whereas NLT would consider parts of the system unjust and therefore invalid. As will be demonstrated in chapter II, Finnis could be considered an exception to the stereotype but not completely: he argues that sometimes the values to be secured by the rule of law are “best served from departing from the law and the constitution”. This indicates an understanding that positive law can be too rigid for its own good and is insufficient in itself to ensure the “common good”. A criticism of NLT, however, is that it can fail for applicability, i.e. if the validity of a law is left to an ever-fluctuating notion of morality, it will be too “vague” and unworkable. Classical PLT, however, is such that it resolves the issue of ambiguity by removing the necessity of morality from the equation. Finnis himself admits that the positive law, specifically the rule of law, can “act to reduce the efficiency of an evil government by restricting their freedom of manoeuvre”. “Classically” is used since in reality different theories have different opinions and often the labels are unhelpful. Finnis’ theory is to be critically considered, if it is not watertight there will be less credibility in how it might bridge the divide. Finnis espouses a theory of “pre-moral” self-evident basic goods which circumvent the is/ought distinction, and he then builds on these considerations a system of moral principles. Instead of disavowing all immoral laws as invalid, Finnis develops a system of central and penumbral meaning. This means that whilst morality is vital to a central case of law, an immoral law is still considered as having a degree of validity but is just not a central case. Finnis further claims that this view has always been present in traditional NLTs, and that instead there is a divide between what natural law theorists assert and how positive law theorists present these assertions. As will be considered, this is likely to be true the other way around. Finnis’ natural law theory purports to remove the divide altogether. He claims that instead of the two being at odds, they simply attempt to explain and justify different areas of law. Finnis frequently mentions how in order for it to be complete his theory is a necessary supplement to Hart’s soft positivism. It will be argued in later chapters that Finnis is inconsistent; his theory of central and penumbral meaning, whilst appearing to afford validity to immoral laws, is simply his means of “keeping the positivists on his side” when he in truth above all values moral validity; something penumbral cases of law do not have. Indirectly related to Finnis’ role in “bridging the divide” are other considerations regarding: his sources, whether he is consistent with Aquinas and Aristotle; his basis, whether he does not account for other influences such as his faith; his justification, whether he makes assumptions, inconsistent assertions and illogical steps; and his application, whether this is genuinely deriving from his theory. All of this contributes to the legitimacy of Finnis’ theory and therefore either strengthens or undermines his role in “bridging the divide”. Whether Finnis’ theoretical principles are readily applicable, for instance to abortion, will affect the overall credibility of his theory in so far as it is a complete theory of law . Foetal Abortion, as a concept, is often a dividing issue between positive and natural law theory. Finnis’ theory at points makes large contributions to this but its omissions are sometimes paramount. The two key questions; whether foetal “life” is human life and whether the choice of the mother is more important than the foetus’ existence, are what determines conclusions on the subject and, as expected, PLT and NLT vary drastically in their contributions to these. Whether Finnis’ theory offers a solid theoretical answer to either of these will be considered.
2019 •
In this contribution, I discuss the so-called "unambitious view of legal normativity", as it is specifically theorised by Brian Bix. While I agree with Bix that legal normativity should not be assumed to be reducible by default to moral normativity, I will argue that the normativity of law cannot be qualified as a sui generis form of normativity. For, pace Bix, the quality of legal normativity is best understood as genuine. That is, the normative claims the law makes on its subjects do address the general practical question: What ought we to do?
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