Hegel’s Philosophy of Law

2017 ◽  
Author(s):  
Thom Brooks
Keyword(s):  
Significant Influence ◽  
Natural Law ◽  
Common Law ◽  
Legal Philosophy ◽  
Philosophy Of Law ◽  
Novel Theory ◽  
Natural Law Theory ◽  
The Common ◽  
Law And Morality ◽  
Legal Theorist

Hegel was neither a lawyer nor primarily a legal theorist, but his writings make a significant influence to the understanding of legal philosophy. Nevertheless, there is disagreement about where Hegel’s importance lies. This chapter argues that Hegel’s philosophy of law is best understood as a natural law theory. But what is interesting about Hegel’s view is that it represents a distinctive alternative to how most natural law theories are traditionally conceived. Hegel’s philosophy is remarkable for providing an entirely new way of thinking about the relation between law and morality than had been considered before. It is the distinctiveness of his legal philosophy that has rendered so difficult a categorization into standard jurisprudential schools of thought. There is little that is standard in Hegel’s innovative understanding of law. This has importance for other areas of his thinking, such as his novel theory of punishment and understanding of the common law.

The Origins of “Social Justice” in the Natural Law Philosophy of Antonio Rosmini

2018 ◽  
Vol 80 (1) ◽  
pp. 3-29 ◽  
Author(s):  
Robert P. Kraynak
Keyword(s):  
Social Justice ◽  
Natural Law ◽  
Common Good ◽  
Social Teaching ◽  
Equal Rights ◽  
Theory Of Justice ◽  
Social Nature ◽  
The Social ◽  
Natural Law Theory ◽  
The Common

Abstract“Social justice” is a powerful idea today, but its origins and meaning are unclear. One of the first to use the term was Antonio Rosmini, author of The Constitution under Social Justice (1848) and other works of moral philosophy. I argue that Rosmini arrived at his idea of social justice by developing Thomistic natural law theory into a novel view of the common good that balances two principles: (1) the equal rights and dignity of persons as ends-in-themselves, a version of “personalism” influenced by Kant and Christianity; and (2) unequal rewards for those who contribute most to society, a version of Aristotelian “proportionalism” based on the social nature of man. I conclude by comparing Rosmini's idea of social justice to John Rawls's “theory of justice” and Catholic social teaching.

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.

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.

The Chartists and the Constitution: Revisiting British Popular Constitutionalism

2017 ◽  
Vol 56 (1) ◽  
pp. 70-90 ◽  
Author(s):  
Josh Gibson
Keyword(s):  
Nineteenth Century ◽  
Natural Law ◽  
Political Development ◽  
Common Law ◽  
The Past ◽  
The Common ◽  
Fundamental Law ◽  
English Law ◽  
Scholarly Attention ◽  
Popular Constitutionalism

AbstractDespite having a powerful influence on the historiography of radicalism and nineteenth-century politics for the past several decades, the language of the constitution has not recently received scholarly attention. In Chartist and radical historiography, the constitution is usually treated as a narrative of national political development. This article extends the horizons of Chartist constitutionalism by exploring its similarities with American constitutionalism. By doing so, it also opens up questions regarding the ideas of the movement. Like the Americans sixty years before, the Chartists were confronted by a parliament that they believed had superseded its constitutional authority. This perception was informed by a belief that the constitution rested on the authority of the fixed principles of fundamental law, which they argued placed limits beyond which Parliament had no power to reach. As a result, the Chartists imagined that the British constitution functioned like a written constitution. To support this claim, they drew on a sophisticated interpretation of English law that argued that the common law was closely related to natural law.

scholarly journals The Common Law of War

2017 ◽  
Author(s):  
Jens David Ohlin
Keyword(s):  
Natural Law ◽  
Common Law ◽  
Armed Conflicts ◽  
Law Of War ◽  
Early American ◽  
American Law ◽  
The Common ◽  
The Law ◽  
Military Commissions ◽  
The Government

In recent litigation before U.S. federal courts, the government has argued that military commissions have jurisdiction to prosecute offenses against the "common law of war," which the government defines as a body of domestic offenses, such as inchoate conspiracy, that violate the American law of war. This Article challenges that definition by arguing that stray references to the term "common law of war"in historical materials meant something completely different. By examining the Lieber Code, the writings of early natural law theorists, and early American judicial decisions, this Article concludes that the "common law of war" referred to a branch of the law of nations that applied during internal armed conflicts, such as civil wars with non-state actors. This body of law was called "common," not because it was extended or elaborated by the common law method of judge-applied law, but rather because it was "common" to all mankind by virtue of natural law, and thus even applied to internal actors, such as rebel forces, who were not otherwise bound by international law as formal states were. By recapturing this lost definition of the common law of war, this Article casts some doubt on the U.S. government's position that military commissions have jurisdiction not only over international offenses, but also domestic violations of the law of war.Published: Jens David Ohlin, "The Common Law of War," 58 William & Mary Law Review (2016)

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.

The Separation of Law and Religion

2021 ◽  
pp. 96-118
Author(s):  
Stuart Banner
Keyword(s):  
19Th Century ◽  
Natural Law ◽  
Early Republic ◽  
Common Law ◽  
Important Change ◽  
The Public ◽  
The Common ◽  
The Public Sphere ◽  
The 19Th Century ◽  
The Relationship

This chapter discusses an important change in lawyers’ understanding of the relationship between the spheres of law and religion during the 19th century. In the early Republic these spheres substantially overlapped. Natural law was understood to have been created by God. Christianity was considered to be part of the common law. Americans may not have become any less religious in the 19th century, but they increasingly came to think of religion as part of one’s private, personal life, separate from the public sphere of law. As law and religion separated, the notion that natural law should play a role in the legal system came to seem more and more anomalous.

Natural Law and Public Reason in Kant's Political Philosophy

1996 ◽  
Vol 26 (3) ◽  
pp. 389-411 ◽  
Author(s):  
Daniel M. Weinstock
Keyword(s):  
Political Philosophy ◽  
Social Contract ◽  
Natural Law ◽  
Public Reason ◽  
The State ◽  
Legal Philosophy ◽  
The Social ◽  
Human Good ◽  
Natural Law Theory

My intention in this essay will be to explore the role that consent-based arguments perform in Kant's political and legal philosophy. I want to uncover the extent to which Kant considered that the legitimacy of the State and of its laws depends upon the outcome of intersubjective deliberation. Commentators have divided over the following question: Is Kant best viewed as a member of the social contract tradition, according to which the legitimacy of the state and of the laws it promulgates derives from the consent of those people over whom it claims authority, or should he be read as having put forward a secularized version of natural law theory, according to which the state and its laws are legitimate to the extent that they are attained by standards of sound reason and supported by an objective account of the human good?

Sign in / Sign up

Export Citation Format

Share Document