scholarly journals The Notion of Divine Principle (Asas Ilahiah) in Indonesian Contract Law

2021 ◽  
Vol 8 (1) ◽  
pp. 147-158
Author(s):  
Djumikasih Djumikasih ◽  
Thohir Luth ◽  
Abdul Budiono ◽  
Iman Koeswahyono
Keyword(s):  
Natural Law ◽  
Fundamental Principle ◽  
Contract Law ◽  
Legal Research ◽  
Truth Theory ◽  
Natural Law Theory

This study is legal research aiming to find out the essence of Divine Principles in Indonesian Contract Law from the review of the Natural Law theory, the Sunt-Servanda theory, the Awareness and Legal Obedience Grundnorm theory, and Truth theory. This research reveals that the Divine Principle's essence is the most fundamental principle or guideline derived from God but exists in humans, aiming to find the truth and regulate the parties in making agreements. The application of the Divine Principle aims to find the truth and regulate the parties in the agreement's field. Indonesian citizens could realize and practice the Precepts of Godhead in their agreement activities. In establishing the agreement, the parties are applying the teachings of their respective religions. This study reveals that the Divine principle needs to be incorporated into one of the upcoming National Agreement Laws principles, especially in the contract born because of the agreement. This study maintains that the divine principle can be applied comprehensively for Indonesian citizens who are parties to the agreement, not only limited to the Indonesian Muslim citizens.

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.

Four Underlying Principles of Contract Law and the Foundational Contract-Law Standard

2018 ◽  
Author(s):  
Melvin A. Eisenberg
Keyword(s):  
Fundamental Principle ◽  
Contract Law ◽  
Normative Theory ◽  
Standard Contract

Chapter 3 develops four underlying principles of contract law and the foundational contract law standard. Under the most fundamental principle of contract law the aim of contract law should be to effectuate the objectives of parties to promissory transactions, provided that appropriate policy and moral conditions, such as freedom from duress and fraud, are satisfied, and subject to appropriate constraints, such as capacity and legality. The normative theory of contract law, taken together with the four underlying principles described in this chapter, comprise the foundational contract-law standard. Contract-law rules that are supported by the foundational standard are justified. Contract-law rules that are not so supported are unjustified.

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.

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.

scholarly journals The Codification of Syar'i Norms in The Compilation of Sharia Economic Law

Rechtsidee ◽  
2017 ◽  
Vol 4 (1) ◽  
Author(s):  
Burhanuddin Susamto ◽  
Thohir Luth ◽  
Masruchin Rubai ◽  
Jazim Hamidi
Keyword(s):  
Fundamental Principle ◽  
Legal Research ◽  
Economic Law ◽  
Intended Purpose ◽  
Islamic Economic

It is a fact that  The Compilation of  Sharia Economic Law (CSEL) was arrangedfor a guiding of sharia principle in the settlement of Islamic economic disputes. As a guiding of sharia principle, ideally CSEL norms should contain the values of sharia as desired by God.The purpose of this article is to ascertain the level validity of CSEL norms when viewed from a sharia perspective. To achieve the intended purpose, the author used normative legal research  and  use the approach of theory fiqhmu’âmalâh iqtishâdiyah and fatwâ of DSN-MUI. From the analysis we know that CSEL norms has not  legitimized  the Islamic sharia as a fundamental principle formally, so consequently the existence of the norm seems to replace God's verses. Of the total norms in CSEL, there are  98.48% norms which has contained the shar'î values, while approximately 1.52% is still found problematic normsso they needs to be revised.

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.

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