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)
Is Rousseau an advocate of natural law or not? The purpose of Rehm’s paper is to suggest a positive answer to this controversially discussed question. On the one hand, Rousseau presents a critical history of traditional natural law theory which in his view is based on flawed suppositions: not upon natural, but on artificial qualities of man, and even rationality and sociability are counted among the latter. On the other hand he presents the self-confident manifesto for (...) a fresh start in natural law theory, founded on what to Rousseau’s mind is the true idea of human nature. The paper intends to show that the only natural qualities which can be seen as anthropological constants are those that keep man flexible, namely perfectibility and freedom of will. It is argued that these are exactly the qualities which according to Rousseau serve as the standard of natural law for the system of politics and its laws: Only a state based upon the free consent of individuals can do justice to man’s perfectibility and freedom of will. Rehm stresses that because of perfectibility and freedom of will, this self-commitment has to be revisable, which is why the republic of the “Social Contract” should not have a constitution, or any law that the citizens cannot alter. It is demonstrated that in Rousseau’s view, this republic is the enabling condition of natural liberty. -/- . (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)
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)
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)
Rather than a history of seventeenth-century natural law, then, this chapter offers an outline of several different contextual uses of the language of natural law, as it was used in formulating the intellectual architecture for rival constructions of political and religious authority.
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)
According to the tradition of natural law justice is inherent to, and should always be observed in, all interpersonal relations: the science of natural law is nothing more or less than the expression of such principles of justice. The theoretical peculiarities that crop up regarding the lawfulness of appropriation are determined by the indirect interpersonal relations that take place within the process of appropriation: though appropriation is an action directed not towards another person or his property, but towards (...) tangible external goods, this action may have important consequences for other people. Therefore Locke's theory of appropriation is a theory of justice.Locke's solution is made possible by the methodological improvement which allows a clear separation between the natural law and the historical and empirical conditions of its application: this improvement is a consequence of the distinction between modes and substances established in Locke's Essay. (shrink)
Originally published in 1971 by Winthrop Publishers, Inc., this volume provides a discussion and analysis of the theory of natural law as it appears in contemporary political and social thought. This theory of natural law was used from the fifth century B.C. until the end of the eighteenth century to provide a universal, rational standard to determine the nature and limits of political obligation, the evaluation of competing forms of government, and the relation of law and politics to (...) morals. (shrink)
The Nuremberg Trials of leading National Socialists established the principle that individuals may be legally punished, even by death, for obeying the laws of their country. Is there then a higher law by which enacted valid positive laws may be judged, so that persons subject to such laws would be duty-bound to defy them? In recent years the theory of natural law has been revived by a number of philosophers and jurists, who however often disagree sharply among themselves about (...) the proper methods for defining and deriving natural law. Howard Kainz surveys the history of natural law from its foreshadowing in ancient Greece down to the most recent controversies. Natural Law both introduces the subject to newcomers and sheds fresh light on such figures as Plato, Aristotle, Hume, Kant, Veatch, McInerny, Grisez, and Finnis. (shrink)
This book focusses on conceptual shifts in the successive formulations of natural law theory by Aquinas, Suárez, Grotius, Pufendorf, and Finnis, and reveals the accumulation of problems, inherent in natural law and theory, which ultimately led to its demise.
SUMMARYThis article examines Anglo–Dutch rivalry in the Banda Islands in the period from 1609 to 1621, with a particular focus on the process of claiming initiated by the Dutch East India Company and English East India Company. Historians have paid little attention to the precise legal justifications employed by these organisations, and how they affected the outcome of events. For both companies, treaties with Asian rulers and peoples were essential in staking out claims to trade and territory. Because so many (...) different parties were involved, individual documents had to serve multiple purposes, both on the ground in the East Indies and at the negotiating tables back in Europe. Whenever a VOC or EIC official presented a treaty to a Bandanese leader, he had to recognise local power structures in the Spice Islands, but also needed to consider his European competitors in the area, his superiors in Batavia or Bantam, and the company directors back in Amsterdam or London. Consequently, the safest and most reliable course of action was to make as many arguments as possible, piling them on top of one another. The result was an inherently messy process of claiming, yet one that was also clearly intelligible to most parties involved, including Asian rulers and peoples. A constantly changing legal suite extended to freedom of trade and navigation, contracts and alliances with native peoples, just war, conquest, actual possession, and the surrender of native sovereignty to European authorities. (shrink)
This is the classic study of the history and continuing philosophical values of the law of nature. D'Entrèves discerned three distinct sources that have contributed to the development of natural law: Roman law teachings, Christian beliefs regarding law, and egalitarian and revolutionary theories of the Enlightenment. Now regarded as a classic work, Natural Law has exercised considerable influence over the course of Anglo-American legal theory in the past forty years. The statements of Clarence Thomas during his 1991 (...) Senate confirmation hearings show that the law of nature still holds powerful appeal in defining judicial rules. In the new introduction, Cary J. Nederman points out both the contemporary value and the historical significance of Natural Law. He also provides the biographical as well as intellectual context for d'Entrèves immense accomplishments. This volume is essential reading for students of legal history, political theory, and philosophy. It will also be of interest to historians. "Few texts provide as concise or as cogent an introduction to natural theory as Alexander Passerin d'Entrèves' Natural Law: An Introduction to Legal Philosophy.... Transaction Publishers has performed a genuine service by bringing out a new edition of Natural Law. D'Entrèves' analysis is clear and penetrating, and will guide the student of natural law to further, fruitful study."--Mitchell Muncy, The University Bookman. (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)
SummaryThe toleration gained by Protestant Dissenters, the Toleration Act of 1689, was far from comprehensive. It insisted that Dissenting authorities should subscribe to the doctrinal articles of the Church of England. It suspended anti-Dissent legislation rather than repealing it and the sacramental requirement for civil officials remained in place. The situation of Dissent under the law was ambiguous and, at least in theory, the freedom of worship gained under the act was incomplete. This article examines Dissenter attempts to clarify their (...) situation under the law and to be free from the Anglican subscription requirement for minsters, schoolmasters and tutors. It focuses on those aspects of their campaigning propaganda which accorded with natural law theory and particularly on the relationship between concerns for the well-being of the community and the assertion of the natural rights of conscience. It finds that pragmatic considerations competed with theoretical prescriptions. Although the language of natural rights was increasingly to the fore in the late eighteenth century, even the more radical Dissenters did not entirely abandon claims for wider toleration based on natural law considerations. It was not until the mid-nineteenth century that natural rights trumped natural law. (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.
hugo grotius was lavishly praised by his successors in the protestant natural law tradition for having been the first to make “any great Progress in the Knowledge of the true fundamental Principles of the Law of Nature, and the right Method of explaining that Science.”1 Wildly influential in his own time, historians of philosophy have found it difficult to determine what, if anything, is innovative in Grotius’s moral theory.2 Scholarly assessments of Grotius’s place in the history of ethics (...) have been hampered by pervasive disagreement about what his views on natural law actually are.This article provides new ammunition to those who hold that Grotius was an innovative and systematic moral thinker in his... (shrink)
In the Foundations of the Metaphysics of Morals Kant presented a method for discovering what morality requires us to do in any situation and claimed that it is a method everyone can use. The method consists in testing one's maxim against the requirement stated in the formulations of the categorical imperative. There has been endless discussion of the adequacy of Kant's method in giving moral guidance, but there has been little effort to situate Kant's view of ethical method in its (...) historical context. In this paper I try to do so. I take the label "method of ethics" from the work of Henry Sidgwick. A method of ethics, he says, is any rational procedure by which we determine what it is right for an individual to do or what an individual ought to do. Since the moralists I want to consider do not all think of morality as rational, I shall broaden the notion by saying that a method is any systematic or regular procedure, rational or not, by which we determine what morality requires... (shrink)
according to some interpreters of John Locke’s moral philosophy, there is an inconsistency between Locke’s adoption of hedonism and his commitment to a natural law view of ethics. Indeed, Locke is not fully explicit about the relationship between pleasure and pain and the natural law in the Essay concerning Human Understanding. But the thesis I defend in this paper is that the idea of convenientia, according to which God harmonizes the natural law with human nature, can be (...) used to understand how Locke synthesizes the hedonism he adopts in the 1670s, and ultimately expresses in Book II, chapter 20 of the Essay, with the natural law doctrine he maintains over the course of his lifetime. As I argue, God’s providential.. (shrink)
While the roots of modern German sociology are often traced back to historicism, the importance of rational natural law in the inception of the founding work of German sociology, Gemeinschaft und Gesellschaft by Ferdinand Tönnies, intended as a ?creative synthesis? between rational natural law and romantic historicism, should not be overlooked. We show how in his earliest scholarly work on Thomas Hobbes and John Locke the shift in the meaning of the two concepts ?Gemeinschaft? and ?Gesellschaft? represents a (...) departure from early liberal enlightenment to a Weltanschauung marked by romantic authors such as Fichte, Novalis and Haller, by Schopenhauer, Nietzsche, Spencer and Marx, notwithstanding Tönnies' adherence to the political and social values of a liberal civil society. (shrink)
This chapter analyses various theories of natural law. The discussions cover meta-ethical objections to natural law theory; the views of Mills and Hobbes; a holistic and teleological conception of nature; nature and the precepts of natural law; nature and human good; natural sociality and morality; a defence of naturalism; a voluntarist conception of natural law; an objection to and defence of voluntarism; and natural morality without natural law.
Modern moral and political philosophy is in debt with natural law theory, both in its ancient and mediaeval elaborations. While the very notion of a natural law has proved highly controversial among 20th Century scholars, the last decades have witnessed a renewed interest in it. Indeed, the threats and challenges as result of multiculturalism, plural societies and global changes have generated a renewed attention to natural law theory. Clearly, it offers solid basis as possible framework to a (...) better understanding of human goods without contradictions and partial bias. The purpose of the present volume is to provide an overview of the history of this concept (Cicero, St. Paul, Aquinas, Melanchthon, Montaigne, Descartes, Leibniz, Hume, Burke, Kant, MacIntyre, etc.) as well as a deep understanding of ongoing research, both in Europe and in America. Furthermore, the specificity of these studies will be of particular value to philosophers, law-philosophers, historians, anthropologists, sociologists and theologians, and those concerned on such issues as the relation between law and moral norm, law and practical reason, and the presence of the idea of natural law in several prominent thinkers. It includes a selected bibliography on natural law. The book also provides an excellent introduction to several of the major topics in natural law theory making it useful both as a reference text and as a sourcebook for academics alike. Natural law is a rich, complex, and highly disputed term. Since its first appearances in the history of Western civilization, it has been used both to point to God as the source of the moral order and to assert that there is an objective order of justice in nature that men and their laws ought to respect. In modern times, natural law theory gave birth to what we usually call "human rights." Unlike the meaning of the term, the importance of an ongoing debate on natural law and on the theories related to it is undisputable. This is why I welcome today this new collection of essays edited by Alejandro Nèstor Garcìa Martìnez, Mario Å ilar and Josè M. Torralba. Natural Law: Historical, Systematic and Juridical Approaches includes a wide variety of studies, covering key authors and issues in natural law theory. Younger students will appreciate the clarity of the chapters, and more trained readers the detailed and accurate bibliographical references that each of them offers. The editors's choice to go from a historical approach to contemporary theories, and then to theoretical and more practical issues is also commendable. Students in philosophy and in legal theory will greatly benefit from this book. Fulvio Di Blasi, author of God and the Natural Law: A Rereading of Thomas Aquinas. (shrink)
In the philosophy of science there has traditionally been a tendency to regard physics as the incarnation of science per se. Accordingly, the status of other disciplines is evaluated then with respect to their ability to produce laws resembling those of physics. This view has yielded a considerable bias in the discussion of historical laws. Philosophers as well as historians have tended to discuss such laws mostly with reference to the situation in physics; this often led to either one of (...) two conclusions, namely that history is epistemologically completely separated from natural science, because it does not have universal laws, or that the ultimate goal of the study of history must be the formulation of such universal laws. I would maintain that neither conclusion is necessary. To substantiate this position, aspects of laws in nature are discussed. One aspect being often neglected is the fact that there are many cases of statistical laws in nature; there is no close link between laws and determinism. Moreover, there are natural systems which have a history, i.e. systems which are, like human history, shaped by irreversible, singular events. One important case is biological evolution and accordingly I discuss the relation between evolutionary theory and historiography. However, since we are part of the living world, one could also ask whether the laws of evolution are of direct relevance for understanding our history, in addition to the methodological similarities between the two fields. This issue of history as evolution is being investigated in detail in the final section of the paper. (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.
Correct bibliographical information is as follows: Gottfried Achenwall, _Natural Law: A Translation of the Textbook for Kant's Lectures on Legal and Political Philosophy_, edited by Pauline Kleingeld, translated by Corinna Vermeulen, with an Introduction by Paul Guyer. London: Bloomsbury, 2020. As the first translation into any modern language of Achenwall’s Ius naturae, from the 1763 edition used by Immanuel Kant, this is an essential work for anyone interested in Kant, the natural law tradition or the history of legal (...) and political theory. For over twenty years, Kant used this book as the basis for his lectures on natural law. It influenced his legal and political philosophy as well as his ethics, and it is indispensable for understanding Kant’s Feyerabend Lectures on Natural Law and his Metaphysics of Morals. Articulating his theory of natural law with clear definitions and precise distinctions, Achenwall offers a lucid account that includes instructive comparisons with the work of Grotius, Hobbes, Pufendorf, Wolff and others. The volume also contains an Introduction by the eminent Kant scholar Paul Guyer, comparing Achenwall’s theory to the legal and political philosophy of Kant’s Doctrine of Right, and a concordance correlating Achenwall’s Natural Law to Kant’s Feyerabend Lectures on Natural Law. (shrink)
In John Locke's Two Treatises of Government, the state of nature, and more particularly natural man, are created within the tradition of natural law. Several commentators, such as James Tully and Karl Olivecrona, have recognized this legacy in Locke's political thought.1 While providing an analysis of Locke's thought in relation to natural law, such studies, however, have not fully examined the global context within which both the Two Treatises and seventeenth-century natural law developed. Consequently the extent (...) to which natural law theorists, such as Hugo Grotius and Samuel Pufendorf, were influenced by the colonial interests of their particular countries of origin has been largely overlooked. The development of natural law theory, which can be traced back to the time of Cicero and beyond, is transformed during the sixteen hundreds by the need to answer new questions posed, both on sea and land, by the expanding colonial empires of Europe. Thus, in considering the natural law theorists who influenced Locke, it will be necessary to examine how colonialism influenced both the questions which were posed and the answers that were given. (shrink)
In Section 1, I outline the history of natural law theory, covering Plato, Aristotle, the Stoics and Aquinas. In Section 2, I explore two alternative traditions of natural law, and explain why these constitute rivals to the Aristotelian tradition. In Section 3, I go on to elaborate a via negativa along which natural law norms can be discovered. On this basis, I unpack what I call three 'experiments in being', each of which illustrates the cogency of (...) this method. In Section 4, I investigate and rebut two seminal challenges to natural law methodology, namely, the fact/value distinction in metaethics and Darwinian evolutionary biology. In Section 5, I then outline and criticise the 'new' natural law theory, which is an attempt to revise natural law thought in light of the two challenges above. I conclude, in Section 6, with a summary and some reflections on the prospects for natural law theory. (shrink)
This work approaches international law as more than merely information contained in international legal norms, & does not view international law as a body of ...
The paper presents an interpretation of Aristotle's views on natural justice in the Nicomachean Ethics. It focuses, in particular, on Aristotle's understanding of the relationship which exists between natural justice and political justice, or between natural law and positive law. It is suggested that Aristotle's views on this subject are often misunderstood. It is also suggested that, contrary to what some commentators might think, Aristotle's comments on natural justice are actually central for our understanding of his (...) political thought as a whole. It is argued that Aristotle is, therefore, definitely a natural law theorist of some description. However, Aristotle's natural law theory is unconventional in certain respects. In particular, Aristotle does not consider natural law to be a critical standard by means of which positive law might be evaluated. This places Aristotle outside the mainstream of natural law theory as it has been traditionally understood. Aristotle is not, in this sense at least, the forerunner of the Stoic natural law tradition and of the individualistic, liberal natural law theory of the modern era. He is, rather, the founding father of what might best be described as the conservative natural law tradition, the most well known adherents of which in modern times are Montesquieu, Burke and Hegel. (shrink)
An important aspect of the contemporary controversies over John Calvin’s natural law doctrine has been his relation to the medieval natural law inheritance. This paper attempts to put Calvin in better context through a detailed examination of his ideas on natural law, in comparison with those of Thomas Aquinas. I argue that significant points of both similarity and difference between them must berecognized. Among important similarities, I highlight their grounding of natural law in the divine nature (...) and the relationship of natural to civil law. Among important differences I note issues of participation, conscience, and the two kingdoms doctrine. Calvin resides in the same broad tradition of natural law as Thomas Aquinas, although he represents a somewhat different strand of it. (shrink)
SUMMARYThis article discusses the works of the first two lecturers on natural law in Copenhagen, Henrik Weghorst and Christian Reitzer. Contrary to the existing scholarship which characterises their works as derivative of either Grotius or Pufendorf, the article argues that the character and significance of these works can only be grasped when understood in light of the local intellectual traditions which they built upon. Seen against this background, it becomes clear that Weghorst and Reitzer developed significantly different theories of (...)natural law, disagreeing on such fundamental issues as the definition of law, the moral good, and the role of sociality in natural law. Following a tradition of Christian natural law in Kiel, Weghorst developed a theory of natural law fundamentally critical of the secularising theories of Grotius and Pufendorf, while Reitzer followed Pufendorf and his disciple Christian Thomasius in Halle. The article concludes by indicating how Weghorst’s and Reitzer’s works established the framework for discussions of natural law in the first decades of the eighteenth century, suggesting the need for further research into the significance of natural law for the early enlightenment in Denmark–Norway. (shrink)
Aristotle continues to be associated with natural law. Some scholars see this association as untenable; others adhere to Aquinas' reading, even if unconsciously. This article departs from both. It restores the plausibility of an Aristotelian natural law, but concludes that it is ultimately incompatible with Aristotle's doctrine. It is plausible because Aristotle does suggestively point towards it. He does so, however, in order to distance himself subtly from it. He must do so subtly because what he in fact (...) points to is a confusion associated with the virtue of justice. (shrink)
In the Principles of Philosophy, Descartes attempts to explicate the well-known phenomena of varying bodily size through an appeal to the concept of "solidity," a notion that roughly corresponds to our present-day concept of density. Descartes' interest in these issues can be partially traced to the need to define clearly the role of matter in his natural laws, a problem particularly acute for the application of his conservation principle. Specifically, since Descartes insists that a body's "quantity of motion," defined (...) as the product of its "size" and speed, is conserved in all material interactions, it is imperative that he explain how solidity influences the magnitude of this force. As a means of resolving this problem, Descartes postulated an idealized condition of "perfect solidity" which correlates a body's "agitation" force (a forerunner of Newton's concept of non-accelerating, or "inertial" motion) with the interplay of its volume, surface area, and composition of minute particles. This essay explores this often misunderstood aspect of Descartes' physics, as well as the special function of idealized conditions in his collision rules. Contrary to those commentators who regard "perfect solidity" as a stipulation on bodily impact, this notion, it will be argued, is primarily concerned with the internal composition of macroscopic bodies, and only indirectly with their collision characteristics. Along the way, many of Descartes' hypotheses will be shown to display a level of sophistication and intricacy that, despite their essential incompatibility, belie several of the common misconceptions of Cartesian science. (shrink)
