scholarly journals RUDOLF VON JHERING E A GENELOGIA DA ÉTICA: O DEVIR HISTÓRICO COMO DETERMINANTE DA PROCEDÊNCIA DO SENTIMENTO JURÍDICO * RUDOLF VON JHERING AND THE GENELOGIA ETHICS: THE BECOMING HISTORY AS DETERMINING THE ORIGIN OF THE LEGAL SENSE

2015 ◽  
Vol 4 (3) ◽  
pp. 101
Author(s):  
Henrique Garbellini Carnio
Keyword(s):  
Natural Law ◽  
Historical Development ◽  
Philosophy Of Law ◽  
Natural Laws ◽  
Em 12 ◽  
The Absolute ◽  
The Law ◽  
Legal Sense ◽  
The Way

<p><strong>Resumo:</strong> O presente artigo tem como base a conferência dada por Rudolf von Jhering em 12 de março de 1884 para a Sociedade Jurídica de Viena, intitulada "Sobre o nascimento do sentimento jurídico". O objetivo é demonstrar algumas reflexões surpreendentes e pouco conhecidas deste importante jurista, enfatizando, em especial, a importância que ele atribui ao devir histórico na formação do sentimento jurídico, apostando que o sentido do direito é modelado pela história e não proveniente das leis naturais eternas. Jhering, propondo uma tarefa genealógica, defende de forma contundente um historicismo ético e jurídico que o distancia de um relativismo absoluto como o das clássicas posições jusnaturalistas, completamente ahistóricas, que se revela extremamente interessante para as reflexões atuais sobre a filosofia do direito.</p><p><strong>Palavras-chave:</strong> Rudolf von Jhering; sentimento jurídico; historicismo ético-político.</p><p><strong>Abstract:</strong> This article is based on a lecture given by Rudolf von Jhering on March 12, 1884 for the Law Society of Vienna, entitled "About the birth of the legal feeling." The objective is to demonstrate some surprising and little-known reflections of this important jurist, emphasizing, in particular, the importance he attaches to the historical development in the formation of the legal feeling, betting that the sense of law is shaped by history and not from the eternal natural laws. Jhering proposing a genealogical task, forcefully defends an ethical and legal historicism that distances him of the absolute relativism as the way of classic natural law positions, completely ahistorical, that reveals itself highly interesting for the current reflections on the philosophy of law.</p><p><strong>Keywords:</strong> Rudolf von Jhering; legal feeling; ethical and political historicism.</p>

Leon Petrażycki jako twórca nowej teorii prawa naturalnego

2018 ◽  
Vol 74 ◽  
pp. 185-188
Author(s):  
Maria Szyszkowska
Keyword(s):  
21St Century ◽  
Natural Law ◽  
Legal Positivism ◽  
Legal Regulations ◽  
Philosophy Of Law ◽  
Scientific Disciplines ◽  
Variable Content ◽  
Human Psyche ◽  
The Way

Petrażycki’s philosophy of law remains significant in the 21st century and adheres to the concept of democracy as a system characterized by ideological pluralism. Leon Petrażycki is often mistakenly included in legal positivism. Alike Rudolf Stammler, he is the creator of the theory of natural law of with variable content. The essential necessity of ideals in the life of individuals and society demonstrated by Petrażycki is very important because the ideals perfect the human psyche. Petrażycki’s view indicating the importance of consciousness is significant beyond other scientific disciplines. All legal regulations depend on its level of development, and determine the way of management.

scholarly journals The problem of egoism in Rousseau’s practical philosophy

2012 ◽  
Vol 23 (3) ◽  
pp. 148-162
Author(s):  
Slobodan Sadzakov
Keyword(s):  
Human Nature ◽  
Natural Law ◽  
Practical Philosophy ◽  
General Will ◽  
Practical Principle ◽  
The Difference ◽  
Legal Sense ◽  
The Way

This paper discusses the aspects of Rousseau?s understandimg of egoism, primarily those related to his highlighting of historical dimension of the problem, including the economical reasons for establishing this practical principle as an important part of the civil reproduction of life. Among other things, it analyses the contextual connection of egoism with relevant definitions in Rousseau?s work such as human nature, natural law, general will etc. and the difference of Rousseau?s overview of this problem from other important philosophers, for example Hobbes. This paper underlines how the French philosopher, on the basis of key assumptions of his practical philosophy, points at the historical dependence and the possibility of overcoming the egoistic actions, and endeavors to pave the way to a multilateral practical unlocking of the potentials of freedom in its political, moral and legal sense.

scholarly journals Rendering to Caesar and God: St Paul, the Natural Law Tradition, and the Authority of Law

2014 ◽  
Vol 13 (3) ◽  
pp. 469-492 ◽  
Author(s):  
Alex Deagon
Keyword(s):  
Natural Law ◽  
Contemporary Philosophy ◽  
Philosophy Of Law ◽  
Apostle Paul ◽  
Alternative Analysis ◽  
Precise Nature ◽  
Literature And Philosophy ◽  
The Law

The question of the authority of law has occupied and vexed the literature and philosophy of law for centuries. Law is something that characteristically implies obedience, but the precise nature of law’s authority remains contentious. The return to the writings of the Apostle Paul in contemporary philosophy, theology and jurisprudence begs attention in relation to the authority of law, and so this article will consider his analysis and critique of law with a focus on his Epistle to the Romans. It argues that Paul’s conception of the authority of law is explained on the basis that the law is from God, it externally sanctions obedience by virtue of the civil authorities, and it convicts internally in conscience. This triad is justified by the law of love (‘‘love your neighbor as yourself’’), and will be explained in relation to the natural law tradition as well as converse ideas in positivism. Hence, considering the reasoning of Paul in relation to traditional jurisprudential themes and the law of love provides a useful alternative analysis and basis for further investigation regarding the authority of law and the need for its obedience.

scholarly journals FILOZOFIA PRAWA W ŻYCIU I NAUCZANIU ULPIANA

2017 ◽  
Vol 8 (1) ◽  
pp. 81
Author(s):  
Piotr Sadowski
Keyword(s):  
Life History ◽  
Natural Law ◽  
Ethical Dimension ◽  
Philosophy Of Law ◽  
Philosophical Idea ◽  
Human Equality ◽  
The Law

The Philosophy of Law in Ulpian’s Life and TeachingSummaryThe purpose of this article, is to show, taking into account Ulpian’s life and teaching, that the Roman jurisprudence was interwoven with some elements of philosophy. The first part of the article illustrates the influence of Ulpian’s life history on his philosophical and legislative views, whereas the second part presents the latter.His knowledge of law, the posts which he occupied, and numerous works prove that Ulpian was preoccupied with studying „law through its first causes”. He asked about the essence of the law, about what the natural law is, and what justice is. He described the juridical reality using the language of law and philosophy. His concept of lawfulness can be perceived as integral, combining material and formal legality He did not depart from the ethical dimension of law although he respected the rigours of the formalised norms. Referring to aequitas did not disturb him in paying attention to certitudo legalis. In his concept of lawfulness one can see a reference to Cyceron’s ideas and in his concept of natural law one can observe a reference to the Stoics. In the field of the penal lawfulness one can perceive Ulpian as a precursor of the ability to perceive the human equality in the sphere of natural law, the concept elaborated as late as several centuries afterwards. Perceiving the equality of people, approximates him to the Christian’s philosophical idea.

scholarly journals GOD THE LAWGIVER ACCORDING TO THE WESTMINSTER DIVINE BURGESS

2018 ◽  
Vol 4 (1) ◽  
pp. 99-116
Author(s):  
STEPHEN J. CASSELLI
Keyword(s):  
Natural Law ◽  
Anthony Burgess ◽  
The Law ◽  
The Way

In this essay, we will consider the way in which Anthony Burgess—and therefore, presumably, the Westminster Confession of Faith—grounds its doctrine of God’s law in an “experimental awareness of the exalted Lawgiver.” His and their understanding of the law is not abstract or philosophical, but rather theological and therefore personal. We will conclude with some brief comments on the implications of Burgess’s work for contemporary reflections about natural law in the Reformed theological community.

Historical Development and Rationale

2018 ◽  
Author(s):  
Edward Chukwuemeke Okeke
Keyword(s):  
International Relations ◽  
International Law ◽  
Historical Development ◽  
State Immunity ◽  
Chief Justice ◽  
Sovereign Equality ◽  
The Absolute ◽  
The Law

This chapter examines the historical development of State immunity, from the absolute to the restrictive doctrine that distinguishes between acts jure imperii and jure gestionis. The provenance of the law on the jurisdictional immunity of States is widely held to be the case of Schooner Exchange. Although Schooner Exchange is, generally but not quite accurately, regarded as the authoritative anchor for the classical doctrine of absolute State immunity, Chief Justice Marshall saw immunity as an exception to the absolute jurisdiction of a State within its own territory. The chapter also examines the rationale of State immunity, which is based on the three major attributes of statehood: independence, sovereign equality, and dignity. The sovereignty of a State encompasses its jurisdiction over people and property within its territory. State immunity is a derogation of that jurisdiction. A major justification for State immunity is facilitation of international relations in conformity with international law.

Federal Theology from the Reformation to c.1677

2019 ◽  
pp. 225-237
Author(s):  
David G. Mullan
Keyword(s):  
Natural Law ◽  
Eternal Life ◽  
New Covenant ◽  
The Reformation ◽  
The Law ◽  
The Way

Calvin’s role as a federal theologian is controversial, but by 1584 federal theology was gaining prominence in the Rhineland, and was soon introduced into Scotland by Robert Rollock. The distinguishing feature of this approach was the positing of a prelapsarian covenant of works whereby Adam was promised eternal life in exchange for obedience to the natural law. When Adam fell, all humanity fell with him, and a new covenant, the covenant of grace, was instituted with sinful man. The first dispensation of this covenant was the covenant of the law while the second dispensation, which fulfilled the Mosaic covenant, was freely given to the elect through the redemptive work of Christ. Theologians such as David Dickson and Samuel Rutherford widely publicized the covenant of grace, and Rutherford was instrumental in preparing the way for personal covenanting whereby an individual, in response to the preaching of the Gospel, made an intimate avowal of Christ and promised obedience to him.

The Rights of the Indigenous Peoples of Brazil: Historical Development and Constitutional Acknowledgment

2018 ◽  
Vol 25 (2) ◽  
pp. 183-209 ◽  
Author(s):  
Pedro Calafate
Keyword(s):  
Indigenous Peoples ◽  
Natural Law ◽  
Historical Development ◽  
The Past ◽  
Federal Constitution ◽  
Law Of Nations ◽  
The Law ◽  
The One

The historical roots of the concept of original rights of the indigenous peoples of Brazil concerning the lands they traditionally occupy, enshrined in Article 231 of the Brazilian Federal Constitution of 1988, refer to the law of nations, taught by Iberian teachers of the 16th and 17th centuries, particularly with regard to the scholastic concept of domain. We also show how the concept of Indigenato, formulated in 1912 by João Mendes Junior, considered over the past decades as the one that best illuminates Article 231 of the Brazilian Constitution of 1988, is entirely founded on this Iberian school of natural law and law of nations, inviting us to a dialogue with the classics.

ON PRACTICES AND THE LAW

Legal Theory ◽  
2006 ◽  
Vol 12 (2) ◽  
pp. 113-136 ◽  
Author(s):  
Mark Greenberg
Keyword(s):  
Legal Positivism ◽  
Philosophy Of Law ◽  
Social Facts ◽  
Motivational States ◽  
The Law ◽  
Legal Domain ◽  
Domain I ◽  
The Way

In a recent paper, “How Facts Make Law,” I launch an attack on a fundamental doctrine of legal positivism. I argue that nonnormative facts cannot themselves constitutively determine the content of the law. In a response published in this journal, Ram Neta defends the view that nonnormative social facts are sufficient to determine normative facts, including both moral and legal facts. Neta's paper provides a useful opportunity to address a spelled-out version of this view, which in various forms is widely held in philosophy of law and other areas of philosophy. I begin by addressing Neta's attempts to show that descriptive facts can alone determine moral and legal facts. First, Neta's account of why it is wrong to break promises fails. In addition to other problems, it begs the question by taking for granted that a person's desires or other motivational states necessarily justify the actions that they motivate. Next, I turn to Neta's attempt to provide a counterexample to my view about law. In my original paper, I claim that the nature of the constitutive determination relation in the legal domain is what I callrational determination. Roughly speaking, a full constitutive account of the legal facts must include reasons that explain the relation between the determining facts and the legal facts. The facts on which Neta's putative counterexample depends cannot be reasons of the required sort because they take for granted what they are supposed to explain—the way in which nonnormative social facts contribute to the content of the law. Finally, I address the larger issue of how far my argument applies to other domains. I consider and reject Neta's argument that purports to show that all normative domains have the relevant features of the legal domain. I then sketch a competing picture of some normative domains.

The Law in Plato’s Laws: A Reading of the ‘Classical Thesis’

2018 ◽  
Vol 35 (1) ◽  
pp. 102-126
Author(s):  
Luke William Hunt
Keyword(s):  
Natural Law ◽  
Good Life ◽  
Natural Law Theory ◽  
The Law ◽  
Legal Ontology ◽  
The Way

Abstract Plato’s Laws include what H.L.A. Hart called the ‘classical thesis’ about the nature and role of law: the law exists to see that one leads a morally good life. This paper develops Hart’s brief remarks by providing a panorama of the classical thesis in Laws. This is done by considering two themes: (1) the extent to which Laws is paternalistic, and (2) the extent to which Laws is naturalistic. These themes are significant for a number of reasons, including because they show how Laws might be viewed as a sophisticated forerunner of natural law theory. The upshot is that Plato’s metaphysical commitments about legal ontology allow him to base the truth of legal propositions on the way they relate to the truth of corresponding moral propositions.

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