scholarly journals Radbruch’s Formula Revisited: The Lex Injusta Non Est Lex Maxim in Constitutional Democracies

2021 ◽  
pp. 1-31
Author(s):  
Seow Hon Tan
Keyword(s):  
Natural Law ◽  
Legal Positivism ◽  
Legal Obligation ◽  
Legal Philosopher ◽  
Central Tenet ◽  
Natural Law Theory ◽  
John Finnis ◽  
Legal Sense

According to German legal philosopher Gustav Radbruch, laws that are substantively unjust to an intolerable degree should not be regarded as legally valid, even if they were promulgated according to stipulated procedure. Radbruch’s Formula (as his position has been termed) contradicts the central tenet of legal positivism, according to which the existence of laws does not necessarily depend on their merit.1 While some legal positivists suppose that legal invalidity based on the content of particular laws is a central tenet of natural law theory,2 natural law theorists such as John Finnis opine that the lex injusta non est lex3 maxim has been no more than a subordinate theorem of classical natural law theory.4 In Finnis’s view, unjust laws give rise to legal obligation “in a legal sense.”5

David Hume and the eighteenth-century conception of natural law

Legal Studies ◽  
1982 ◽  
Vol 2 (1) ◽  
pp. 14-33 ◽  
Author(s):  
Philip Milton
Keyword(s):  
Eighteenth Century ◽  
Natural Law ◽  
David Hume ◽  
Natural Rights ◽  
Legal Positivism ◽  
Philosophical Thinking ◽  
Modern Writer ◽  
Natural Law Theory ◽  
John Finnis

Natural law is discussed by almost every modern writer on jurisprudence; but with a few exceptions - of which John Finnis' Natural Law and Natural Rights is the most substantial - the impression given is that it is of historical interest only, that it has in some way been discredited, or at least superseded, by legal positivism. The implicit idea - and here legal positivism borrows from Comte - is that natural law represented some earlier ‘metaphysical’ stage which was then followed by ‘scientific’ legal positivism. This account requires the existence of a natural law theory that dominated juristic and philosophical thinking until the eighteenth century, when it was overthrown by Hume and Bentham. Hume, the story goes, found the decisive argument against the natural law theory; while Bentham created the new theory oflegal positivism. The argument Hume discovered was that ought cannot be derived from is; and this, it is widely supposed, is fatal to all varieties of natural law.

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.

scholarly journals The relation between reason and goodness in John Finnis

2020 ◽  
pp. 65-101
Author(s):  
Douglas Flippen
Keyword(s):  
Natural Law ◽  
The Will ◽  
Natural Law Theory ◽  
John Finnis ◽  
First Time

John Finnis joins Grisez in providing a new foundation for Thomistic natural law theory. To accomplish this, they closely associate good as perfection with good as to be pursued and have both senses grasped together by the practical intellect independently of the speculative intellect. The practical intellect then presents good to the will and motivates it to act for the first time. Since good as perfection is inherently speculative and since the intellect becomes practical only depending on the will, their notion of the practical intellect is incoherent and their new foundation is deeply flawed.

scholarly journals Rozumowanie prawnicze jako rozumowanie praktyczne w świetle nowej teorii prawa naturalnego Johna M. Finnisa

2020 ◽  
pp. 84-98
Author(s):  
Michał Sopiński
Keyword(s):  
Natural Law ◽  
Practical Reasoning ◽  
Legal Reasoning ◽  
Legal Positivism ◽  
Contemporary Philosophy ◽  
Critical Approach ◽  
New Approach ◽  
Joseph Raz ◽  
Natural Law Theory ◽  
The One

This paper presents practical reasoning in the light of John M. Finnis’ new natural law theory. Finnis’ views were shaped by Aquinas’ thoughts on natural law but he was also strongly inspired by Germain Grisez’ new approach, so his theory could be named a new natural law theory. The aim of this paper is to analyse the concept of legal reasoning as practical reasoning, which Finnis intended mainly as a strong critique of Ronald Dworkin’s theory of legal reasoning based on the concept of the one right answer. According to the author of this paper, Finnis’ critical approach to Dworkin leads to a gradual extension of the former’s concept of legal reasoning to include positivistic aspects (rapprochement with Joseph Raz’ views) and institutional aspects (rapprochement with Neil MacCormick’s views). Therefore, Finnis’ theory of legal reasoning seems to be a model example of the rapprochement between natural law and legal positivism in contemporary philosophy of law.

Проблема морального содержания права в концепции Дж. Финниса

2018 ◽  
Vol 13 (3) ◽  
pp. 71
Author(s):  
V. Yu. Perov ◽  
A. D. Sevastianova
Keyword(s):  
Natural Law ◽  
Common Good ◽  
Human Life ◽  
Legal Positivism ◽  
Human Flourishing ◽  
Moral Content ◽  
The Subject ◽  
The Common ◽  
Law And Morality ◽  
John Finnis

The law and morality the interrelation issue has been the subject for many discussions, recent works in the philosophy field and law ethics of renowned authors as H. Hart, L. Fuller and J. Finnis, who contributed significantly to the topic. The key question about the moral content of law is examined within the polemics between theorists of legal positivism and natural law legal theorists. This article touches upon this issue by the example of the concept of John Finnis, one of the most brilliant contemporary law philosophers, his neo-naturalistic concept of natural law includes some ideas of modern positivism. J. Finnis claims natural law appears as a set of principles of practical reasonableness for the ordering of human life and the human community. Law acts as a method to ensure “the common good” of the community and is based on seven self-evident, as he believes the basic human goods necessary for the human flourishing. The requirements of practical reasonableness compose the content of natural law, contain recommendations on how to carry out these self-evident goods. For Finnis, the aim of law is to provide conditions, according to the requirements of practical reasonableness, in which these seven goods can be realized. It is outlined that J. Finnis regards law as a social institute which purpose is to regulate human affairs, and thus to promote the creation of a community where everyone could realize the seven fundamental goods for humankind.

scholarly journals One Myth of the Classical Natural Law Theory: Reflecting on the “Thin” View of Legal Positivism

Ratio Juris ◽  
2018 ◽  
Vol 31 (1) ◽  
pp. 9-32
Author(s):  
Veronica Rodriguez-Blanco ◽  
Pilar Zambrano
Keyword(s):  
Natural Law ◽  
Legal Positivism ◽  
Natural Law Theory

scholarly journals The logical foundations of constitutional democracy between legal positivism and natural law theory

Public Choice ◽  
2021 ◽  
Author(s):  
Hartmut Kliemt
Keyword(s):  
Natural Law ◽  
Constitutional Law ◽  
Legal Positivism ◽  
Veto Power ◽  
Constitutional Economics ◽  
Constitutional Democracy ◽  
Substantive Content ◽  
Logical Foundations ◽  
Natural Law Theory ◽  
Knowledge Claims

AbstractRejecting all knowledge claims concerning right and wrong in matters practical James Buchanan concurred with legal positivism that invalid law cannot be identified by its substantive content but only by an inherited defect in its factual creation. Beyond correct creation Buchanan proposed as a quasi-natural law constraint that unanimity in the shadow of individual veto power must at least be conceivable if a norm is to be law. The emerging hybrid conception of constitutional law is symptomatic for Buchanan’s never-ending but ultimately futile efforts to incorporate Kantian ideals of interpersonal respect into constitutional economics without imposing them as personal values.

scholarly journals PERSPEKTIF FILOSOFIS KONSEP KEKUASAAN DISKRESI PEMERINTAH

2014 ◽  
Vol 8 (1) ◽  
pp. 41-60
Author(s):  
Krishna Djaya Darumurti
Keyword(s):  
Natural Law ◽  
Legal Positivism ◽  
Discretionary Power ◽  
Philosophical Issue ◽  
Positive Law ◽  
Natural Law Theory ◽  
The Government ◽  
Higher Law ◽  
Principle Of Legality ◽  
Better Than

AbstrakArtikel ini menganalisis isu filosofis tentang konsep kekuasaan diskresi pemerintah. Artikel ini berargumen bahwa teori hukum alam lebih memadai dibandingkan teori positivism yuridis dalam menjustifikasi dasar filosofis kekuasaan diskresi pemerintah. Dengan kekuasaan diskresi yang dimiliki, pemerintah adakalanya dapat bertindak menyimpangi undang-undang atau asas legalitas. Oleh karena itu, supaya terlegitimasi, tindakan demikian memerlukan justifikasi filosofis yang memadai. Teori hukum alam menjustifikasi kekuasaan diskresi pemerintah dengan mengajukan klaim bahwa diskresi adalah tuntutan hukum yang lebih tinggi dari hukum positif.AbstractThis article analyses the philosophical issue of the concept of discretionary power of the government. It is argued that natural law theory is better than legal positivism theory to justify the philosophical underpinning of the discretionary power of government. By its discretionary power, the government sometimes can take an action contrary to laws or legislation or principle of legality. To be legitimate, this action needs sufficient philosophical justification. Natural law theory justifies discretionary power of government by claiming that discretion is the demand of the higher law that is higher than the positive law.

scholarly journals GROTIUS, DESCARTES E O PROBLEMA DO CETICISMO NO SÉCULO XVII: AS ORIGENS FILOSÓFICAS DO DEBATE JUSNATURALISMO VS. POSITIVISMO LEGAL

2011 ◽  
Vol 38 (120) ◽  
pp. 5
Author(s):  
Marcelo Araújo
Keyword(s):  
Natural Law ◽  
Rene Descartes ◽  
17Th Century ◽  
Political Authority ◽  
Legal Positivism ◽  
Historical Understanding ◽  
Hugo Grotius ◽  
René Descartes ◽  
Natural Law Theory

O objetivo deste texto é contribuir para uma compreensão da história do debate entre jusnaturalismo e positivismo legal. Esse debate teve sua origem no século XVII, mais especificamente no contexto do ceticismo moderno acerca dos fundamentos da legitimidade do exercício da autoridade política. As respostas de Hugo Grotius e René Descartes ao problema do ceticismo, como se pretende mostrar, contribuíram para a emergência do debate entre jusnaturalismo e positivismo legal.Abstract: This paper aims to develop a historical understanding of the debate between natural law theory and legal positivism. This debate has its roots in the 17th century, particularly in the context of the modern skepticism about the justification for the exercise of political authority. I intend to show that the answer given by both Hugo Grotius and René Descartes against the skeptical attack contributed to the emergence of the debate between natural law theory and legal positivism.

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