WHAT IS GOOD ABOUT LEGAL CONVENTIONALISM?

Legal Theory ◽  
2008 ◽  
Vol 14 (2) ◽  
pp. 135-166 ◽  
Author(s):  
Dimitrios Kyritsis
Keyword(s):  
Legal System ◽  
Natural Law ◽  
Political Morality ◽  
Robust Version ◽  
Working Together ◽  
Suitable Form ◽  
Natural Law Theory ◽  
Over Time

According to legal conventionalism, a legal system cannot come into existence and be sustained over time unless legal officials see themselves as working together with their fellow participants in the practice of law for the purpose of achieving coordination or alternatively realizing a joint endeavor. This thesis has traditionally been thought to support a positivist understanding of law. The paper challenges this piece of common wisdom. It aims to establish that the idea of cooperation among legal officials that figures so prominently in conventionalist accounts of law may in a suitable form be appropriated by a robust version of natural-law theory. It claims that participants in the practice of law may be understood as having reasons of political morality to heed the acts and decisions of their fellow participants and calibrate their own behavior accordingly. It takes the value of democracy to illustrate the point. Democracy furnishes a reason for courts to give effect to democratically reached decisions rather than work out on their own how best to adjudicate disputes before them.

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.

Lucky Philip Dube: The Artiste in Search of a New Jurisprudence and Subaltern Redemption

2021 ◽  
Vol 9 (1) ◽  
pp. 79-100
Author(s):  
Eric Nsuh Zuhmboshi
Keyword(s):  
Social Justice ◽  
South African ◽  
Legal System ◽  
Natural Law ◽  
Legal Philosophy ◽  
Black South African ◽  
Natural Law Theory ◽  
Postcolonial Discourse

Abstract Most musicians, in their songs, portray their philosophical vision of life as could be seen in the case of Lucky Philip Dube, the black South African reggae musician. His songs show that he adheres to the principle of ethical humanism and portrays him as a crusader of social justice. Thus, this essay shows the link between musical art and law by examining the commitment of Dube’s lyrical composition in fighting for a just legal system in his society. This essay therefore, analyses some of his lyrical productions in order to expound on the philosophical ideas underneath the songs and how they tie with the search of an alternative jurisprudence and humanism in postcolonial discourse and the liberation of the subaltern. From the perspective of natural law theory, this essay postulates that Dube’s songs criticise the injustice of the legal philosophy in his society and quest for an impartial jurisprudence – that of equality and justice in his society.

Legal Positivism and Natural Law Reconsidered, Again

1989 ◽  
Vol 2 (2) ◽  
pp. 171-174 ◽  
Author(s):  
David O. Brink
Keyword(s):  
Natural Law ◽  
Legal Positivism ◽  
Legal Interpretation ◽  
Judicial Decision ◽  
Significant Extent ◽  
Legal Validity ◽  
Legal Standards ◽  
Political Morality ◽  
Natural Law Theory ◽  
Existence Conditions

In my article “Legal Positivism and Natural Law Reconsidered” I suggested that we might be able to effect an interesting reconciliation of legal positivism (LP) and natural law theory (NL) by distinguishing two possible LP-NL debates. In particular, I suggested that we should distinguish, within legal philosophy, between theories of legal validity – that is, accounts of the existence conditions for valid law and theories (as I now would put it) of legal interpretation – and theories of adjudication – that is, accounts of how judges should decide cases. We can use this distinction to formulate two possible LPNL debates, one involving legal validity (LP1-NL1) and one involving adjudication (LP2-NL2). NL1 asserts and LP1 denies that the existence conditions for valid law and the theory of legal interpretation ensure that legal standards satisfy true or sound political morality to some significant extent. NL2 asserts and LP2 denies that the content of the correct or justifiable judicial decision must satisfy true or sound political morality to some significant extent. I sketched my own view of the relevant details of the theories of legal validity and adjudication and argued that these claims seem to vindicate LP1 and NL2 and so to allow a kind of reconciliation of LP and NL.

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.

On American Values, Unalienable Rights, and Human Rights: Some Reflections on the Pompeo Commission

2020 ◽  
Vol 34 (1) ◽  
pp. 13-31 ◽  
Author(s):  
Mathias Risse
Keyword(s):  
Human Rights ◽  
Foreign Policy ◽  
Natural Law ◽  
American Foreign Policy ◽  
Economic Rights ◽  
Declaration Of Independence ◽  
American Values ◽  
Natural Law Theory ◽  
Per Se ◽  
The U.S

AbstractIn July 2019, Secretary of State Mike Pompeo launched a Commission on Unalienable Rights, charged with a reexamination of the scope and nature of human rights–based claims. From his statements, it seems that Pompeo hopes the commission will substantiate—by appeal to the U.S. Declaration of Independence and to natural law theory—three key conservative ideas: (1) that there is too much human rights proliferation, and once we get things right, social and economic rights as well as gender emancipation and reproductive rights will no longer register as human rights; (2) that religious liberties should be strengthened under the human rights umbrella; and (3) that the unalienable rights that should guide American foreign policy neither need nor benefit from any international oversight. I aim to show that despite Pompeo's framing, the Declaration of Independence, per se, is of no help with any of this, whereas evoking natural law is only helpful in ways that reveal its own limitations as a foundation for both human rights and foreign policy in our interconnected age.

Does Originalism Have a Natural Law Problem?

2021 ◽  
Vol 39 (2) ◽  
pp. 361-367
Author(s):  
John Mikhail
Keyword(s):  
Natural Law ◽  
Interesting Case ◽  
Primary Sources ◽  
Main Argument ◽  
Over Time

Gienapp's critical move is to shift our attention from semantics to ontology. What is the Constitution? How was it conceived to exist in 1787, and how has that conception changed over time? These questions must be squarely addressed, he insists, before asking what the Constitution means. Does this whole text-focused enterprise rest on a mistake? Drawing on a wealth of primary sources and modern scholarship, Gienapp makes a strong and interesting case that it does. Boiled down, his main argument is that the founders were predominantly natural lawyers, and thus conceived of law quite differently than most originalists typically do.

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.

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