A Seamless Web? John Finnis and Joseph Raz on Practical Reason and the Obligation to Obey the Law

1995 ◽  
Vol 15 (2) ◽  
pp. 153-175 ◽  
Author(s):  
LEORA BATNITZKY
Keyword(s):  
Practical Reason ◽  
Joseph Raz ◽  
The Law ◽  
John Finnis

Law as Practical Reason

1989 ◽  
Vol 48 (3) ◽  
pp. 436-471 ◽  
Author(s):  
M. J. Detmold
Keyword(s):  
Practical Reason ◽  
Practical Reasoning ◽  
Legal Reasoning ◽  
The State ◽  
Strong Sense ◽  
A Priority ◽  
The Law ◽  
John Finnis ◽  
Vast Range

Law is practical. Legal reasoning is practical reasoning. We could make nothing of a judge who having listened to counsel's arguments and reflected about the law governing his case thought that the state of knowledge that he had achieved was the natural termination of his enterprise and submitted his conclusions to the editors of Halsbury's Laws of England rather than performed the action of giving judgment. The parties would be outraged, and rightly. And if the judge continued to do such a thing he would be dismissed. Legal reasoning is practical in the sense that its natural conclusion is an action (in the judge's case the action of giving judgment) rather than a state of knowledge. This is taking “practical” in a strong sense. By this definition thought is practical whose natural conclusion is an action (or decision against action): its strongest contrast is with theoretical thought whose natural conclusion is knowledge. But it also contrasts with hypothetical thought about action (say, my thinking it would be good to play cricket again). I do not call this practical because it does not conclude in an action or decision against action (others do; for example John Finnis in Fundamentals of Ethics; my reasons for differing in this matter will emerge). A judge's practical reasoning towards the action of giving judgment has priority for our understanding of law over that vast range of practically idle things that lawyers do, from the construction of digests like Halsbury to casual reflection about the rule in Shelley's case (of course there is one sort of doing involved in both these, but not legal doing). It is important here to be clear about this priority. It is a priority of practicality, not a priority of judges or lawyers.

scholarly journals THE OBLIGATION TO OBEY THE LAW IN THE LIGHT OF THE DEBATE BETWEEN FINNIS AND RAZ

2021 ◽  
Vol 48 (152) ◽  
pp. 725
Author(s):  
Andrea Luisa Bucchile Faggion
Keyword(s):  
Political Philosophy ◽  
Moral Obligation ◽  
Prima Facie ◽  
Moral Obligations ◽  
Social Facts ◽  
Recent Debate ◽  
Joseph Raz ◽  
The Law ◽  
John Finnis

The recent debate between John Finnis and Joseph Raz on the existence of a general prima facie moral obligation to obey positive laws is a major contribution to a classical topic in legal and political philosophy. In this paper, I argue that Raz’s normal justification thesis and Finnis’s doctrine of “determinatio,” inherited from Aquinas, complement each other, shedding light on how norms grounded in social facts can give rise to particular moral obligations independently of their content. However, I argue that this on its own does not explain the possibility of a general moral obligation to obey the law, that is, the notion that everyone has a prima facie moral obligation to obey every law that applies to them.

On the Nature of Necessary Truths in Jurisprudence: Putting Wittgensteinian Hinges to Use

2021 ◽  
Vol 34 (1) ◽  
pp. 203-237
Author(s):  
Yi Tong
Keyword(s):  
Fundamental Nature ◽  
Joseph Raz ◽  
Necessary Truths ◽  
The Law

Inquiring into the fundamental nature of law has been traditionally formulated as an attempt to answer the question, “What is Law?” Such an inquiry typically proceeds by identifying the necessary features of law. Joseph Raz, for example, writes: A theory consists of necessary truths, for only necessary truths about the law reveal the nature of the law. We talk of ‘the nature of law’, or the nature of anything else, to refer to those of the law’s characteristics which are of the essence of law, which make law into what it is. That is those properties without which the law would not be law.1

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.

scholarly journals Law’s Autonomy and Moral Reason

Laws ◽  
2019 ◽  
Vol 8 (1) ◽  
pp. 6
Author(s):  
Jack Clayton Thompson
Keyword(s):  
Practical Reason ◽  
Practical Reasoning ◽  
Moral Values ◽  
Moral Truth ◽  
Moral Reason ◽  
Moral Principles ◽  
Legal Positivist ◽  
Law And Morality ◽  
The Law ◽  
The Concept Of Law

This paper intends to set out an argument to Legal Idealism and a thesis that holds law and morality as necessarily connected. My focus is on deconstructing the Positivist argument to the Autonomy Thesis and beginning to reconstruct it through the application of morality to law’s autonomous authority. My aim, ultimately, is to demonstrate how, through the concept of law, practical reason might explain the related (and overlapping) notions of legitimacy, authority, and the obligation to obey through the necessary connection of law and morality. That is, I intend to demonstrate that morality both survives and remains identifiable (transparently) following the process of metamorphosis into institutionalised practical reasoning. If this is so, the authority of and obligation to law is simultaneously a form of morally rational obligation. In the response to the Positivist argument that moral values are incommensurate, I will show that this commensurability can be determined ‘artificially’ by a system of institutionalised reasoning (i.e., the law); this is to say, if I can show that the Legal Positivist argument is left incomplete without some explanation of moral values underpinning it, I need not to show that a specific, defensible moral truth or principle is required, but that an artificial weighting of abstract moral principles is sufficient

Political Legitimacy and the Duty to Obey the Law

2003 ◽  
Vol 33 (3) ◽  
pp. 373-389 ◽  
Author(s):  
Patrick Durning
Keyword(s):  
Political Legitimacy ◽  
The Other ◽  
Joseph Raz ◽  
David Copp ◽  
The Law ◽  
Legitimate State ◽  
Sense Of Urgency

A growing number of political and legal theorists deny that there is a widespread duty to obey the law. This has lent a sense of urgency to recent disagreements about whether a state's legitimacy depends upon its ‘subjects’’ having a duty to obey the law. On one side of the disagreement, John Simmons, Robert Paul Wolff, David Copp, Hannah Pitkin, Leslie Green, George Klosko, and Joseph Raz hold that a state could only be legitimate if the vast majority of its subjects have a duty to obey the law. On the other side, M.B.E. Smith, Jeffrey Reiman, Kent Greenawalt, Christopher Morris, Rolf Sartorius, Jeremy Waldron, Christopher Wellman, William Edmundson and Allen Buchanan claim that a state could be legitimate even if its subjects lacked a duty to obey the law.This disagreement contains two separate disputes. One is a linguistic dispute about the meaning of ‘legitimacy,’ or about what it means to call something a ‘legitimate state.’ The other is a Substantive dispute about whether the various aspects of legitimacy are linked together. Since discussing the linguistic dispute will help us examine the Substantive dispute, let us consider it first.

Law´s Claim to Correctness

2020 ◽  
Author(s):  
Maria Claudia Quimbayo Duarte
Keyword(s):  
Moral Claim ◽  
The Third ◽  
Joseph Raz ◽  
John Finnis

The book describes the main concepts of the correctness thesis. The second part presents a reconstruction of the claim to correctness in some classical legal theories. For instance, it explains the thesis that we can find two different references to claims in Kelsen´s theory, therefore allusions to a kind of classifying and qualifying connections. About Fuller one can find the idea that he introduces not only a procedural moral claim but also a substantive one. With respect to Radbruch, the book holds the idea that the correctness thesis can be found in his theory since 1932. The third part considers some main objections against the claim to correctness especially that proposed by Joseph Raz and John Finnis among others.

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.

RELIGION AND THE LAW OF CHARITY: A LIBERAL PERSPECTIVE

2014 ◽  
Vol 29 (2) ◽  
pp. 236-258
Author(s):  
Matthew Harding
Keyword(s):  
Public Reason ◽  
Practical Reasoning ◽  
The Political ◽  
Joseph Raz ◽  
The Law ◽  
Political Philosopher ◽  
Main Ideas ◽  
Liberal Perspective

AbstractThis article considers the treatment of religious purposes in charity law from a liberal perspective informed by the work of the political philosopher Joseph Raz. The article begins by describing briefly the main ideas in Razian liberalism. It then considers the key question when thinking from a Razian perspective about the treatment of religious purposes in charity law: To what extent does the state's promotion of religious purposes via charity law promote the conditions of autonomy? Finally, the article considers the practical reasoning of state officials who deliberate about religious purposes in the charity law setting, asking to what extent such reasoning meets an ideal of public reason informed by Razian liberalism. The article concludes that in many, but not all, respects the treatment of religious purposes in charity law is consistent with Razian liberal commitments.

scholarly journals Action in Law’s Empire: Judging in the Deliberative Mode

2016 ◽  
Vol 29 (2) ◽  
pp. 431-456
Author(s):  
Veronica Rodriguez-Blanco
Keyword(s):  
Classical Tradition ◽  
Practical Reason ◽  
Theoretical Perspective ◽  
The State ◽  
Legal Cases ◽  
The Law ◽  
Do So

Dworkin advances the view that judges decide legal cases according to constructive interpretation. The aim of constructive interpretation is to justify the coercion of the State. A trivial implication of this view is that officials and citizens will comply with the law because of the justification that has been advanced by judges in their exercise of constructive interpretation. Consequently, neither officials nor citizens comply with the law because they have been coerced or because they have been simply told to do so. But then, it seems that constructive interpretation cannot really provide any guidance since officials and citizens have been asked to accept the interpretation of the law that has been put forward by the judges since arguably, it is the best possible interpretation of what the law is in this particular case. However, why they ought to do so?I will argue that the mistake of the theory of constructive interpretation lies in a misleading and implausible conception of action that believes that action is raw behavioural data and that therefore we need to ‘impose meaning’, ‘value’ or ‘purpose’ on them. I will defend a more plausible conception of action along the classical tradition that understands practice as originating in agency and deliberation. The outcome is that constructive interpretation and its conception of ‘imposing meaning’ on practice is a theoretical perspective that neglects and misunderstands action and practical reason.

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