Jørgensen’s Dilemma in the Interface Between Legal Positivism and the Natural Law Tradition

2021 ◽  
pp. 397-411
Author(s):  
Juliele Maria Sievers
Keyword(s):  
Natural Law ◽  
Legal Positivism

Riccardo Saccenti, Debating Medieval Natural Law: A Survey. Notre Dame, IN: University of Notre Dame Press, 2016, XIII, pp. 155.

Mediaevistik ◽  
2018 ◽  
Vol 31 (1) ◽  
pp. 318-320
Author(s):  
Scott L. Taylor
Keyword(s):  
Twentieth Century ◽  
Natural Law ◽  
Natural Rights ◽  
Legal Positivism ◽  
Great Chain Of Being ◽  
History Of ◽  
History Of Concepts ◽  
Hans Kelsen ◽  
University Of Notre Dame ◽  
Conceptual Shift

Saccenti’s volume belongs to the category of Begriffsgeschichte, the history of concepts, and more particularly to the debate over the existence or nonexistence of a conceptual shift in ius naturale to encompass a subjective notion of natural rights. The author argues that this issue became particularly relevant in mid-twentieth century, first, because of the desire to delimit the totalitarian implications of legal positivism chez Hans Kelsen; second, in response to Lovejoy’s The Great Chain of Being and its progeny; and third, as a result of a revival of neo-Thomistic and neo-scholastic perspectives sometimes labelled “une nouvelle chrétienté.”

On the Artifactual—and Natural— Character of Legal Institutions

2018 ◽  
Author(s):  
Corrado Roversi
Keyword(s):  
Natural Law ◽  
Common Ground ◽  
Legal Positivism ◽  
Legal Institutions ◽  
Human Beings ◽  
Legal Realism ◽  
Natural Law Theory ◽  
The Law ◽  
Theory Of Law

Are legal institutions artifacts? If artifacts are conceived as entities whose existence depends on human beings, then yes, legal institutions are, of course, artifacts. But an artifact theory of law makes a stronger claim, namely, that there is actually an explanatory gain to be had by investigating legal institutions as artifacts, or through the features of ordinary artifacts. This is the proposition explored in this chapter: that while this understanding of legal institutions makes it possible to find common ground between legal positivism and legal realism, it does not capture all of the insights offered by these two traditions. An artifact theory of law can therefore be necessary in explaining the law, but it will not suffice to that end. This chapter also posits that legal artifacts bear a relevant connection to certain conceptions of nature, thus vindicating one of the original insights behind natural law theory.

Rights

2011 ◽  
Author(s):  
Kenneth Pennington
Keyword(s):  
Human Rights ◽  
Natural Law ◽  
Natural Rights ◽  
Legal Positivism ◽  
Individual Rights ◽  
Legal Systems ◽  
Human Beings ◽  
Group Rights ◽  
Constitutional Jurisprudence ◽  
Theological Thought

One of the most notable characteristics of Western societies has been the development of individual and group rights in legal, theological, and philosophical thought of the first two millennia. It has often been noted that thinkers in Non-Western societies have not had the same preoccupation with rights. The very concept of rights is laden with numerous problems. Universality is the most basic and difficult. If human rights are only a product of Western ideas of justice, they cannot have universality. In an age that is dominated by conceptions of law embracing some form of legal positivism, many scholars recognize only individual rights that have been established by the constitutional jurisprudence of individual countries or their legal systems. Historically, the emergence of rights in European jurisprudence is intimately connected with the terms ius naturale and lex naturalis in Western jurisprudence and theological thought. Human beings may never agree on universal rules of a natural law, but they might agree on universal precepts that shape the penumbra of rights surrounding natural rights.

scholarly journals General Principles of EU Law: The Ghost in the Platonic Heaven in Need of Conceptual Clarification

2013 ◽  
Vol 2 (1) ◽  
Author(s):  
Constanze Semmelmann
Keyword(s):  
Natural Law ◽  
General Principle ◽  
Legal Theory ◽  
Legal Positivism ◽  
Legal Philosophy ◽  
Eu Law ◽  
Conceptual Clarification

General principles are en vogue in EU law – and in need of conceptual clarification. A closer look at several concepts of principle in legal philosophy and legal theory sheds light upon the concept of general principles in EU law. A distinction between an aprioristic model of principle and a model of principle informed by legal positivism may contribute to clarifying the genesis of a (general) principle in EU law, as well as its nature and functions. This paper demonstrates that an evolution has taken place from a reliance on seemingly natural law inspired reflections of general principles via the desperate search to ground general principles in various kinds of sources based on a more or less sound methodology  towards an increasing reliance on strictly positivistic approaches. Against this backdrop, general principles are likely to lose significance where there are other norms while retaining an important yet uncontrollable role where the traditional canon of sources is silent.

Planning Positivism and Planning Natural Law

2012 ◽  
Vol 25 (1) ◽  
pp. 219-235 ◽  
Author(s):  
Martin Jay Stone
Keyword(s):  
Present State ◽  
Natural Law ◽  
Legal Positivism ◽  
Planning Theory ◽  
Positive Law ◽  
Theory Of Law

Scott Shapiro offers an elaboration and defense of “legal positivism,” in whichthe official acceptance of a planfigures as the central explanatory notion. Rich in both ambition and insight,Legalitycasts an edifying new light on the structure of positive law and its officialdom. As a defense of positivism, however, it exhibits the odd feature that its main claims will prove quite acceptable to the natural lawyer. Perhaps this betokens – what many have begun to suspect anyway – that our usual tests for classifying legal theories (as positivist or not) are, in the present state of discussion, no longer credible. In any case, my hope in the following remarks is to suggest how certain ambiguities inLegalitymight easily be resolved in favor of PlanningNatural Law. The Planning Theory of Law, in other words, is not proprietary to positivism.

Natural Law

2019 ◽  
pp. 174-203
Author(s):  
Lenn E. Goodman
Keyword(s):  
Natural Law ◽  
Legal Theory ◽  
Natural Theology ◽  
Human Freedom ◽  
Naturalistic Fallacy ◽  
Legal Positivism ◽  
Human Beings ◽  
Theology And Science ◽  
Great Tradition

Natural law links moral and legal theory with natural theology and science. It is critical to thinking about God’s sovereignty and human freedom. Tracing the roots of the natural law idea, I defend the approach against conventionalism and legal positivism. For they leave human norms ungrounded. Chapter 7 opens by disarming Hume’s elenchus about ‘is’ and ‘ought’. I do not deny the reality of a naturalistic fallacy, but I do argue that facts make rightful claims on us and that the unity of reality and value central to Jewish thinking and to the philosophical great tradition does not confuse facts with values but does appreciate the preciousness of being—of life and personhood most pointedly. Once again here transcendence consorts with immanence. For we find God’s law writ subtly in nature, not least when we discover what it means to perfect ourselves as loving and creative human beings.

Sources of International Law in the Nineteenth-Century European Tradition

2018 ◽  
Author(s):  
Lauri Mälksoo
Keyword(s):  
Nineteenth Century ◽  
International Law ◽  
Natural Law ◽  
International Justice ◽  
Legal Positivism ◽  
First Century ◽  
Late Nineteenth Century ◽  
Nineteenth Century Literature ◽  
European Tradition ◽  
Legal Positivist

This chapter examines how international lawyers arrived in 1920 at the codification of Article 38 in the Statute of the Permanent Court of International Justice (PCIJ, later ICJ). The codification is explained as a victory of legal positivist ideas over natural law concepts. An overview of the positions defended in the late nineteenth-century literature of international law demonstrates that the codification largely reflected predominant ideas in the European tradition of international law. Here, legal positivism had undertaken a quite successful attack against natural law. Thus, when comparing the predominant views on sources of international law in the nineteenth century and in the twenty-first century, the differences in the practice of international law must be kept in mind.

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