Natural Law in the Positive Laws: A Legislative or Adjudicative Issue?

1993 ◽  
Vol 55 (1) ◽  
pp. 5-34 ◽  
Author(s):  
Russell Hittinger
Keyword(s):  
Political Theory ◽  
Natural Law ◽  
Natural Justice ◽  
Positive Law ◽  
Single Method ◽  
Natural Law Theory ◽  
Written Law ◽  
Carry Over ◽  
Philosophical Questions ◽  
Different Levels

Debates over natural law routinely confuse three quite different sets of issues. First, there are the properly philosophical questions of (i) whether a natural law exists, and (ii) whether positive laws are valid completely apart from their moral specifications. Second, there are questions that properly belong to political theory. These include, (iii) how a constitution ought to allocate responsibility to make natural justice effective, and (iv) how a particular system of positive law handles this issue. Third, assuming that a judiciary is limited by written law, it can still be asked whether this necessarily prohibits judicial uses of natural law theory. Questions at these different levels are sufficiently different that what it takes to solve a question at one level does not necessarily carry over to the others. It is vain, therefore, to search for a single method that brings closure on these issues.

scholarly journals Natural Resources and Natural Law Part II: The Public Trust Doctrine

2021 ◽  
pp. 225
Author(s):  
Robert Adler
Keyword(s):  
Natural Resources ◽  
Natural Law ◽  
Public Lands ◽  
Public Trust ◽  
Single Issue ◽  
The Public ◽  
Positive Law ◽  
Public Trust Doctrine ◽  
Religious Doctrine ◽  
Natural Law Theory

Natural Resources and Natural Law Part I: Prior Appropriation analyzed claims by some western ranchers, grounded in natural law, that they have property rights in grazing resources on federal public lands through prior appropriation. Those individuals advocated their position in part through civil disobedience and armed standoffs with federal officials. They also asserted that their duty to obey theistic natural law overrode any duty to obey the Nation’s positive law. Similar claims that individual religious beliefs override positive law have been made recently regarding a range of other controversial issues, such as same-sex marriage, public insurance for birth control, and the right to bear arms. Prior appropriation doctrine is consistent with secular natural law theory. Existing positive law, however, accepts prior appropriation for western water rights but rejects its application to grazing rights on federal public lands, for reasons consistent with secular natural law. Natural law doctrine allows citizens to advocate for change but requires them to respect the positive law of the societies in which they live. Separation of church and state also bars natural law claims based on religious doctrine unless those principles are also adopted in secular positive law. This sequel addresses claims from the opposite side of the political-environmental spectrum, that natural law provides one justification for the public trust doctrine, and that courts should enforce an atmospheric public trust to redress catastrophic global climate change. Although some religious groups have embraced environmental agendas supported by religious doctrine, public trust claims are secular in origin. Just as natural law provides support for prior appropriation, it supports the idea that some resources, such as water, wildlife, and air, should be held in common rather than made available for private ownership. From this perspective, the two doctrines merge into a single issue of resource allocation. Which resources are best made available for appropriation as private property, and which are best left in common? Natural law theory helps to explain the liberty and welfare goals that inform those choices. Positive law embraces the public trust doctrine with respect to some natural resources, and does not preclude its applicability to the atmosphere or other common resources.

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 Natural Justice, Law, and Virtue in Hobbes’s Leviathan

2019 ◽  
Vol 32 (2) ◽  
pp. 179-208
Author(s):  
J. Matthew Hoye
Keyword(s):  
Virtue Ethics ◽  
Natural Law ◽  
Legal Philosophy ◽  
Natural Laws ◽  
Natural Justice ◽  
General Significance ◽  
Natural Person ◽  
Natural Law Theory ◽  
Theory Of Law

Scholars debate whether Hobbes held to a command theory of law or to a natural law theory, and to what extent they are compatible. Curiously, however, Hobbes summarizes his own teachings by claiming that it is “natural justice” that sovereigns should study, an idea that recalls ancient virtue ethics and which is seemingly incompatible with both command and natural law theory. The purpose of this article is to explicate the general significance of natural justice in Leviathan. It is argued that below the formal and ideological claims regarding the law’s legitimacy, the effective ground of the legitimacy of both the civil and natural laws is sovereign virtue. In turn, it is argued that the model for this idea was found in Aristotle. As such, this article constitutes a general recasting of Hobbes’s legal philosophy with a focus on the natural person of the sovereign.

The Acceptance of a Legal System

1990 ◽  
Vol 3 (2) ◽  
pp. 81-106
Author(s):  
Roger A. Shiner
Keyword(s):  
Political Theory ◽  
Legal System ◽  
Natural Law ◽  
Legal Theory ◽  
Legal Positivism ◽  
Separation Thesis ◽  
Natural Law Theory ◽  
The Right ◽  
Independent Account

The interest of political theory in the acceptance of law is obvious. If one believes that a regime is legitimate only if it governs with the consent of the governed, then the notion of acceptance is deeply linked with the notion of legitimacy, a fundamental concern of political theory. The interest of legal theory in the notion of acceptance is less obvious. I construe it to arise in the following way. One central tradition in legal theory is that of positivistic or content-independent theories of law. Positivism, crudely speaking, is characterized by some form of the Separation Thesis—that the existence of law is one thing and its merit or demerit another. But if it is important for positivistic legal theory to mark the separation of law and the merits of law, then it must also be important to mark the separation between law and the acceptance of law. The existence of law must be one thing and its acceptance as meritorious another. In deference to the separation of existence and merit, positivism tries to find a content-independent account of the validity of law. Equally, in deference to the separation of law and acceptance, positivism tries to find a content-independent account of the acceptance of law. The topic of this paper is whether the separation of law and the acceptance of law is possible. I shall try to suggest, in service of a non-positivistic or content-dependent approach to law, that this separation is not possible. I will attempt to argue on the basis of points which legal positivism itself has acknowledged to form valid constraints on any theory of acceptance. My ambitious thesis is that positivism has presented us with the reasons for rejecting it. Even if that thesis is not made out, I have a less ambitious thesis which I am confident of securing, that the demand for an account of law which permits law to be accepted ‘for any reason whatever’ is not a theoryneutral demand which might decide between positivism and natural law theory. Rather, it is an expression of a prior commitment to positivism. It is the familiar demand of natural law theory that the convergence of attitudes towards law which makes for acceptance of law must be a convergence for the right kind of reasons; ones that have to do with the value of law.

scholarly journals Natural Law and Civilizational Progress: Assumptions of a Political Theory in Simonas Daukantas’s Historiography

Politologija ◽  
2019 ◽  
Vol 95 (3) ◽  
pp. 56-82
Author(s):  
Saulius Pivoras
Keyword(s):  
Political Theory ◽  
Natural Law ◽  
Private Property ◽  
Founding Father ◽  
Private Property Rights ◽  
The People ◽  
Hugo Grotius ◽  
Natural Law Theory ◽  
Conjectural History

This article aims to identify and reconstruct a few main elements of political theory upon which the works of Simonas Daukantas, the founding father of the national Lithuanian written history, are based. Daukantas’s major works on Lithuanian history were researched while identifying and closely analyzing the passages where Daukantas specifically speaks about natural law and civilizational progress. Daukantas’s history works were considerably influenced by authors of Neostoic natural law theory, such as Hugo Grotius, Samuel Pufendorf, and Antoine-Yves Goguet. This influence shows in the adopted conceptions of natural needs, natural sociability, and a characterization of the emergence of private property rights in Lithuania with the help of conjectural history methods. Daukantas traces natural law elements in the oldest customs of the people and therefore gives most attention to reconstructing and describing the mores of the ancient Lithuanians. In describing historical evolution, he applied in his works the concepts of bright and dark periods as well as the distinctions of other separate stages of civilizational progress as discussed in Enlightenment historiography and conjectural history in particular.

scholarly journals ON THE QUESTION OF COMPATIBILITY OF NATURAL-LEGAL AND POSITIVE-LEGAL THEORETICAL PRINCIPLES

2020 ◽  
Vol 34 (2) ◽  
pp. 39-43
Author(s):  
L.V. Karnaushenko ◽  
Keyword(s):  
Natural Law ◽  
Legal Theory ◽  
Social Ontology ◽  
Initial Step ◽  
Subject Area ◽  
Legal Rules ◽  
Positive Law ◽  
Joint Application ◽  
Natural Law Theory ◽  
The Stability

The article examines the contradiction between theories of natural law and positive law. The author considers the main points in which these theories contradict each other, and also raises the question of the principle possibility of joint application of elements of natural-legal and positive-legal theories. The initial step in thinking about the problem is to consider the specifics of natural law theory. Its idealistic character is marked, and the connection between social ontology, anthropology, ethics and natural-legal theory is considered. The priority of natural law over the stability of the current social structure is highlighted, as one of the theoretical accents of natural law theory. There is limited natural-legal theory in understanding the private aspects of law. Further, the work analyzes the main theoretical aspects of positive-legal theory. Its subject area is being studied. Positive law theory is proven to have, in relation to natural law theory, an advantage in understanding the consequences for society associated with the introduction of specific legal rules. The applied aspect of positive-legal theory is disclosed, as well as the limits of its application are considered. The final part of the article is focused on the analysis of the relationship between the theories under consideration, based on the work of classics of philosophical-scientific thought. It is demonstrated that the interpretation, which believes a complete contradiction between theories of positive and natural law on the basis of the contradiction of their individual elements, is based on an outdated approach. The question is raised about the principle compatibility of certain elements of positive-legal and naturallegal theories. The possibility of their joint application in the course of solving complex legal issues is justified.

From “Epicurean” Physics to Ethics

2017 ◽  
Author(s):  
David S. Sytsma
Keyword(s):  
Political Theory ◽  
Natural Law ◽  
Thomas Hobbes ◽  
Divine Wisdom ◽  
Divine Will ◽  
De Legibus ◽  
Natural Law Theory

This chapter discusses Baxter’s theory of natural law and his polemics against Thomas Hobbes and Benedict de Spinoza on ethical matters. Baxter’s natural law theory drew on Francisco Suárez’s De legibus, which grounded the obligation of the natural law in the divine will and the content of the natural law in the divine wisdom. Baxter responded to the necessitarianism and natural law theories of both Hobbes and Spinoza, but engaged with Spinoza’s arguments more fully. His response is noteworthy for drawing lines of continuity between their physical and ethical views. Unlike most contemporary responses to Spinoza’s Tractatus theologico-politicus, which focused on his denial of miracles and the Mosaic authorship of the Pentateuch, Baxter addressed Spinoza’s natural law and political theory, which was central to the argument of the Tractatus.

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 God, New Natural Law Theory, and Human Rights

Religions ◽  
2021 ◽  
Vol 12 (8) ◽  
pp. 613
Author(s):  
Christopher Tollefsen
Keyword(s):  
Human Rights ◽  
Natural Law ◽  
Two Dimensions ◽  
Natural Rights ◽  
Creative Activity ◽  
Adequate Account ◽  
Full Theory ◽  
Natural Law Theory ◽  
Epistemological Dimension

Critics of the “New” Natural Law (NNL) theory have raised questions about the role of the divine in that theory. This paper considers that role in regard to its account of human rights: can the NNL account of human rights be sustained without a more or less explicit advertence to “the question of God’s existence or nature or will”? It might seem that Finnis’s “elaborate sketch” includes a full theory of human rights even prior to the introduction of his reflections on the divine in the concluding chapter of Natural Law and Natural Rights. But in this essay, I argue that an adequate account of human rights cannot, in fact, be sustained without some role for God’s creative activity in two dimensions, the ontological and the motivational. These dimensions must be distinguished from the epistemological dimension of human rights, that is, the question of whether epistemological access to truths about human rights is possible without reference to God’s existence, nature, or will. The NNL view is that such access is possible. However, I will argue, the epistemological cannot be entirely cabined off from the relevant ontological and motivational issues and the NNL framework can accommodate this fact without difficulty.

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