PERSONS PURSUING GOODS

Legal Theory ◽  
2007 ◽  
Vol 13 (3-4) ◽  
pp. 285-313 ◽  
Author(s):  
Steven D. Smith
Keyword(s):  
Practical Reason ◽  
Natural Law ◽  
Natural Rights ◽  
Legal Authority ◽  
Basic Goods ◽  
Natural Law Theory ◽  
Law And Morality ◽  
Basic Good ◽  
Theory Of Law

John Finnis's powerfully and deservedly influential modern classic, Natural Law and Natural Rights, expounds a theory of law and morality that is based on a picture of “persons” using practical reason to pursue certain “basic goods.” While devoting much attention to practical reason and to the goods, however, Finnis says little about the nature of personhood. This relative inattention to what “persons” are creates a risk—one that Finnis himself notices—of assuming or importing an inadequate anthropology. This essay suggests that the “new natural law” developed by Finnis suffers in places from the inadvertent adoption of (or, more likely, acquiescence in) a flawed anthropology—an anthropology under the thrall of modern individualistic commitments. To explain this suspicion, this article discusses three difficulties (or so they seem to me) in his natural law theory: difficulties in accounting for the basic good of friendship, for obligations we owe to others, and for legal authority. These difficulties may seem disconnected, but this article suggests that they may all reflect an inadequate anthropology—one that Finnis does not exactly embrace (in fact, I suspect that he would reject it) but that is pervasive today and that in places may affect his theorizing.

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.

scholarly journals On what a theory of natural law is supposed to be

2020 ◽  
pp. 167-200
Author(s):  
Michael Pakaluk
Keyword(s):  
Natural Law ◽  
Natural Rights ◽  
Philosophical Work ◽  
Natural Teleology ◽  
Law And Morality ◽  
The Law ◽  
John Finnis ◽  
The Many ◽  
Locus Classicus

A theory may properly be called a theory of natural law, if either it functions as such a theory is expected to function; or it has the expected content; or it is a plausible interpretation of a theory generally acknowledged to be in the tradition of natural law. It functions as such a theory if it supports appeals to natural law intended to ‘contextualize’ human law. It has the expected content, if it adverts to providential, natural teleology as the basis for a law given to us prior to convention. It would clearly be located in the tradition, and rightly accounted as such a theory, if it were a plausible interpretation of Aquinas’ Treatise on Law, which is the locus classicus for the philosophical treatment of natural law. But the ‘New Natural Law,’ first expounded in Natural Law and Natural Rights (NLNR) of John Finnis, meets none of these criteria. NLNR seems best construed, then, as a contribution to the «law and morality » debate, not a theory of natural law. It gives merely another ‘method of ethics’ along with the many others put forward in the 20th c. If so, the philosophical work needed for a persuasive, contemporary revival of natural law still remains to be done.

2. Natural law and morality

2020 ◽  
pp. 20-73
Author(s):  
Raymond Wacks
Keyword(s):  
Political Philosophy ◽  
Natural Law ◽  
Moral Realism ◽  
Moral Dilemmas ◽  
Thomas Aquinas ◽  
The Subject ◽  
Natural Law Theory ◽  
Law And Morality ◽  
The Relationship

This chapter discusses the relationship between the ancient classical theory of natural law and its application to contemporary moral questions. It considers the role of natural law in political philosophy, the decline of the theory of natural law, and its revival in the twentieth century. The principal focus is on John Finnis’s natural law theory based largely on the works of St Thomas Aquinas. The chapter posits a distinction between ‘hard’ and ‘soft’ natural law, examines the notion of moral realism, and examines the tension between law and morality; and the subject of the moral dilemmas facing judges in unjust societies.

Constitutionalism and the Myth of Practical Reason: Kelsenian Responses to Methodological Problems

2010 ◽  
Vol 23 (4) ◽  
pp. 723-740 ◽  
Author(s):  
JÖRG KAMMERHOFER
Keyword(s):  
International Law ◽  
Practical Reason ◽  
Natural Law ◽  
Legal Regulation ◽  
Pure Theory ◽  
Alternative Vision ◽  
Methodological Problems ◽  
The Law ◽  
Theory Of Law

AbstractWhile today a significant stream of European scholarship of international law is concerned with the process and consequences of its constitutionalization, criticism of this trend has so far been muted. This article, using elements of the Pure Theory of Law, argues that constitutionalist writings confound methodologies, that scholarship claims competencies which it does not have, and that this confusion diminishes the benefits of the constitutionalist project for international law. The key problem is called a ‘methodological circle’: scholars call something a constitution and in effect claim that the law is changed by this classification. Thus constitutionalism relies on the natural law concept of practical reason; constitutionalism is, in turn, vulnerable to Kelsen's arguments against practical reason. Constitutionalism, like practical reason before it, contains an impossible admixture of the human faculties of will and cognition. The general critique is followed by a look at Article 2(6) of the UN Charter as a case in point. Here constitutionalism shows how law is purportedly changed by taxonomy. The article concludes by taking a look at an alternative vision of the constitution of international law: the rediscovery of a strictly legal – that is, structural – constitution as the highest echelon of legal regulation.

FINNIS ON NATURE, REASON, GOD

Legal Theory ◽  
2007 ◽  
Vol 13 (3-4) ◽  
pp. 187-209
Author(s):  
Mark C. Murphy
Keyword(s):  
Natural Law ◽  
Natural Rights ◽  
Natural Law Theory ◽  
The Way

It is often claimed that John Finnis's natural law theory is detachable from the ultimate theistic explanation that he offers in the final chapter of Natural Law and Natural Rights. My aim in this paper is to think through the question of the detachability of Finnis's theistic explanation of the natural law from the remainder of his natural law view, both in Natural Law and Natural Rights and beyond. I argue that Finnis's theistic explanation of the natural law as actually presented can be, without too much strain, treated as largely detachable in the way that his readers have by and large supposed it to be; indeed, Finnis's account as actually presented really amounts to no explanation of the natural law at all, theistic or otherwise, and that fact accounts in part for the ease with which Finnis's natural law view can be detached from theism of that final chapter. Nevertheless, the considerations raised in that chapter militate in favor of a much more thoroughgoing, largely nondetachable theistic account. And it is just such an account that we find Finnis affirming in the development of his views after Natural Law and Natural Rights.

The Universal Rule of Natural Law and Written Constitutions in the Thought of Johannes Althusius

2018 ◽  
Author(s):  
John Witte
Keyword(s):  
Rule Of Law ◽  
Natural Law ◽  
Natural Rights ◽  
Universal Theory ◽  
Government Contracts ◽  
Human Beings ◽  
Law And Politics ◽  
Theory Of Law ◽  
Universal Rule

Calvinist jurist Johannes Althusius (1557–1638) developed what he called a ‘universal theory’ of law and politics for war-torn Europe. He called for written constitutions that separated the executive, legislative, and judicial powers of cities, provinces, nations, and empires alike and that guaranteed the natural rights and liberties of all subjects. To be valid, he argued, these constitutions had to respect the universal natural law set out in Christian and classical, biblical, and rational teachings of law, authority, and rights. To be effective, these constitutions had to recognize the symbiotic nature of human beings who are born with a dependence on God and neighbour, family and community, and who are by nature inclined to form covenantal associations to maintain liberty and community. Althusius left comprehensive Christian theory of rule of law and politics that anticipated many of the arguments of later Enlightenment theorists of social and government contracts.

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