scholarly journals Funciones normativas y voluntad de signo

1983 ◽  
Vol 15 (44) ◽  
pp. 27-41 ◽  
Author(s):  
Roberto J. Vernengo
Keyword(s):  
Natural Law ◽  
Thomas Aquinas ◽  
Legal Positivism ◽  
Ontological Status ◽  
Empirical Expression ◽  
Moral Thought ◽  
Positive Law ◽  
Scientific Approach ◽  
The Will ◽  
The Relationship

Legal philosophers and logicians study problems related to the syntactical and semantical aspects of norms, without worrying about the ilocutionary aspects of their use. With Kelsen 's posthumous work, the Allgemeine Theorie der Normen, and the new preoccupations of deontic logicians, it seems that what is called the "normative functions" of norms are becoming a central point of the discussions between logicians and philosophers of law and moralists. Traditionally, the ilocutionary aspects of norms has been construed as the question of the empirical manifestation of the will, as it is suppossed that every norm expresses somebody's will. Nevertheless, that thesis -although traditional in legal and moral thought- implies some metaphysical presuppositions concerning the ontological status of what is called "the will" which must be brought to light if jurisprudence is going to attain a modern scientific approach. In Kelsen's work it seems clear that the relationship between das Sollen and das Wollen is where that old metaphysical idea regains strength. It can be found in Thomas Aquinas -and the c1assicalscholastics- a sort of theory on the empirical expression of acts of will, know as signa voluntatis, which keeps close and analogy with the normative functions of modern jurisprudence. Perhaps the theory of positive law, as manifestation of signa voluntatis, would establish a bridge between modern legal positivism and some forms of classical natural law.

Wild Justice, Justice as Virtue, and Natural Law

2019 ◽  
pp. 144-168
Author(s):  
Celia E. Deane-Drummond
Keyword(s):  
Systems Theory ◽  
Natural Law ◽  
Systems Approach ◽  
Earth System ◽  
Ethical Implications ◽  
Positive Law ◽  
The Earth ◽  
The Will ◽  
Natural Law Ethics ◽  
The Relationship

This chapter begins to link the earlier discussion on the evolution of justice with debates about what justice as a human virtue means and in relationship with different varieties of natural law ethics. How far are accounts of human justice as a virtue of the will still reasonable in an evolutionary age or where contemporary psychological studies deny the presence of the will? Should theologians and philosophers insist on an objective as well as a subjective account of natural law in spite of strong evolutionary and philosophical objections? What is the relationship between reason and revelation in classic accounts of justice as virtue and how might this compare with an evolutionary or systems approach? This chapter explores theoretical scientific frameworks in systems theory and argues that a modest version of natural law could be viewed as a normative aspect of a complex system. More recently, understanding the earth as a single Earth System that has planetary boundaries has gained traction in current debates on the Anthropocene. The author argues that this approach is the culmination of the turn to systems theory in science. Adopting the Earth System as a paradigm has profound ethical implications for humans and other creaturely kinds. Therefore, a discussion of the tensions that come to the surface in navigating a scientific and theistic account is not overlooked. While natural law also has a rich history in positive law, the thoughts of Jean Porter and Thomas Aquinas are drawn on to recover a scholastic version of natural law that is theistic, rather than stripped to its Aristotelian bones.

Planning Positivism and Planning Natural Law

2012 ◽  
Vol 25 (1) ◽  
pp. 219-235 ◽  
Author(s):  
Martin Jay Stone
Keyword(s):  
Present State ◽  
Natural Law ◽  
Legal Positivism ◽  
Planning Theory ◽  
Positive Law ◽  
Theory Of Law

Scott Shapiro offers an elaboration and defense of “legal positivism,” in whichthe official acceptance of a planfigures as the central explanatory notion. Rich in both ambition and insight,Legalitycasts an edifying new light on the structure of positive law and its officialdom. As a defense of positivism, however, it exhibits the odd feature that its main claims will prove quite acceptable to the natural lawyer. Perhaps this betokens – what many have begun to suspect anyway – that our usual tests for classifying legal theories (as positivist or not) are, in the present state of discussion, no longer credible. In any case, my hope in the following remarks is to suggest how certain ambiguities inLegalitymight easily be resolved in favor of PlanningNatural Law. The Planning Theory of Law, in other words, is not proprietary to positivism.

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.

scholarly journals El problema de la relación entre derecho y moral

2021 ◽  
pp. 65-80
Author(s):  
José Luis López Fuentes
Keyword(s):  
Natural Law ◽  
Legal Theory ◽  
Legal Positivism ◽  
Ronald Dworkin ◽  
Law And Morality ◽  
The Relationship

RESUMEN: En el presente trabajo, con base en las teorías iusnaturalistas y del positivismo jurídico, se busca ofrecer un breve acercamiento al desarrollo que han tenido a través del tiempo las tesis más importantes en torno al problema de la relación entre derecho y moral, hasta llegar a lo que actualmente es denominado antipositivismo jurídico, pues el objetivo de este documento es presentar un análisis y exposición de las aportaciones de esta corriente de pensamiento a la teoría jurídica contemporánea, para lo cual, se analizan las propuestas de Ronald Dworkin y Robert Alexy, en especial de la tesis de los principios, y su relevancia en la interpretación y aplicación de la ley.ABSTRACT: In this work, based on natural law theories and legal positivism, I seek to offer a brief approach  to the development that the most important theses have had throughout time regarding the problem of the relationship between law and morality, arriving at what we now call legal anti-positivism, the objective of this document is to present an analysis and exposition of the contributions of this current of thought to contemporary legal theory, for which the proposals of Ronald Dworkin and Robert Alexy are analyzed, specially the thesis of the principles, and its relevance in the interpretation and application of the law.Keywords: Natural law theories, legal positivism, legal antipositivism, moral, thesis of principles.

scholarly journals Constitutive justice and human rights

2019 ◽  
Vol 30 (4) ◽  
pp. 478-492
Author(s):  
Rastko Jovanov ◽  
Marija Velinov
Keyword(s):  
Human Rights ◽  
Social Ontology ◽  
Social Institutions ◽  
Social Reality ◽  
Legal Positivism ◽  
Ontological Status ◽  
Methodical Approach ◽  
Descriptive Theories ◽  
The Relationship ◽  
Ontological Position

In order to show the validity of here proposed conception of social ontology and its advantages over descriptive theories of social reality, which in the analysis of the socio-ontological status of human rights find only legally understood normativity as present in social reality, we will first (1) lay out Searle?s interpretation of human rights. In the second step, we will (2) introduce the methodical approach and basic concepts of our socio-ontological position, and explain the structure of the relationship between justice, law, morality, social institutions and collective intentionality. At the end (3) we will show how our theory of social ontology is better than Searle?s legal positivism in examining the ontological status of human rights. At the end, (3) we show in what ways such a theory of social ontology more intuitively and with wider arguments explains the ontological status of institution of human rights than Searle?s legal positivism.

METHODOLOGICAL PARADIGM OF MODERN LEGAL SCIENCE IN UKRAINE

2020 ◽  
Vol 10 (4) ◽  
pp. 12-20
Author(s):  
Vladimir Yashchenko ◽  
◽  
Olha Balynska ◽  
Keyword(s):  
Law Enforcement ◽  
General Theory ◽  
Social Relations ◽  
Positive Law ◽  
Legal Science ◽  
The Will ◽  
Definition Of ◽  
The Individual ◽  
The Relationship ◽  
Interacting Components

The leading idea of the article is the application of the most appropriate methodology for disclosing the essence and content of law, its origin, evolution, contradictions and their coordination in the context of the relationship between natural and positive law, social and individual paradigms, in particular, in the context of nationalizing the individual, and, on the contrary, individualizing the collective in a wide humanistic plane. This aspect synthesizes approaches to the disclosure of individual and collective through the categories of �self�, where dialectical, phenomenological, existential and other approaches are qualified as communicative and dialogic paradigm, which today finds its practical embodiment in lawmaking and law enforcement. Feeling the controversy of these views, the authors emphasize the deepening of the humanistic content of the legal regulator of social relations. Domestic modern legal science in its development should focus on deepening the humanistic content of the normative regulation of social relations. This actualizes the need to solve such scientific problems as the methodology of research and functioning of law, achieving a harmonious relationship between individual and collective in law, the connection of its natural and positive aspects, etc. A fundamentally new definition of the essence of law is proposed, not as the will of a certain class or majority, but as the will to self-existence, which is expressed in the phenomenon of self as a harmonious synthesis of individual and social. In this context, to investigate the legal phenomena dialectics can be effectively used not as a materialistic or idealistic methodology, but as the most general theory and way of ascending to the truth. After all, opposites in law are not necessarily antipodes, but can act as interacting components of legal reality

VIRTUE, NATURAL LAW, AND SUPERNATURAL SOLICITATION: A THOMISTIC READING OF SHAKESPEARE'S MACBETH

2001 ◽  
Vol 5 (3) ◽  
pp. 273-296 ◽  
Author(s):  
Thomas Hibbs ◽  
Stacey Hibbs
Keyword(s):  
Natural Law ◽  
Thomas Aquinas ◽  
Progressive Loss ◽  
Material Goods ◽  
Lady Macbeth ◽  
Relationship Of ◽  
The Relationship

AbstractThis essay explores a remarkable congruence between Macbeth and the teachings of Thomas Aquinas on the nature of virtue, temptation and evil, natural law, and the relationship of the natural to the supernatural. Macbeth's virtue is problematic in that initially he seems courageous when on the attack in battle. But in reality he shows the excessive vice of boldness, and subsequently he fails to manifest courageous endurance and patience in clinging to the good, drifting rather into restlessness and impatience. Aquinas defines evil as a privation of the good. Macbeth persistently chooses apparent good over real good, as he is tempted by the witches and Lady Macbeth. He violates the natural law and suffers extrinsic and intrinsic punishment, a conception linking the play with Aquinas rather than Hooker and Locke. Furthermore, his decline into evil mirrors Aquinas conceptions of the order of punishments following on violation of the natural law, evident in the progressive loss of eternal happiness, virtue, reason and physical and material goods. Finally, the play is not naturalistic but portrays the witches and Macbeth's opponents as instruments of the supernatural.

scholarly journals PERSPEKTIF FILOSOFIS KONSEP KEKUASAAN DISKRESI PEMERINTAH

2014 ◽  
Vol 8 (1) ◽  
pp. 41-60
Author(s):  
Krishna Djaya Darumurti
Keyword(s):  
Natural Law ◽  
Legal Positivism ◽  
Discretionary Power ◽  
Philosophical Issue ◽  
Positive Law ◽  
Natural Law Theory ◽  
The Government ◽  
Higher Law ◽  
Principle Of Legality ◽  
Better Than

AbstrakArtikel ini menganalisis isu filosofis tentang konsep kekuasaan diskresi pemerintah. Artikel ini berargumen bahwa teori hukum alam lebih memadai dibandingkan teori positivism yuridis dalam menjustifikasi dasar filosofis kekuasaan diskresi pemerintah. Dengan kekuasaan diskresi yang dimiliki, pemerintah adakalanya dapat bertindak menyimpangi undang-undang atau asas legalitas. Oleh karena itu, supaya terlegitimasi, tindakan demikian memerlukan justifikasi filosofis yang memadai. Teori hukum alam menjustifikasi kekuasaan diskresi pemerintah dengan mengajukan klaim bahwa diskresi adalah tuntutan hukum yang lebih tinggi dari hukum positif.AbstractThis article analyses the philosophical issue of the concept of discretionary power of the government. It is argued that natural law theory is better than legal positivism theory to justify the philosophical underpinning of the discretionary power of government. By its discretionary power, the government sometimes can take an action contrary to laws or legislation or principle of legality. To be legitimate, this action needs sufficient philosophical justification. Natural law theory justifies discretionary power of government by claiming that discretion is the demand of the higher law that is higher than the positive law.

James Dalrymple, 1st Viscount of Stair, on Legal Normativity

2020 ◽  
pp. 140-157
Author(s):  
Laurent Jaffro
Keyword(s):  
Moral Philosophy ◽  
Natural Law ◽  
Positive Law ◽  
The Will ◽  
Per Se ◽  
Legal Normativity ◽  
Will Of God

The chapter concentrates on Stair’s understanding of laws, whether human-made or divine. Scots law is a particular application of a rational legislation, which ultimately rests upon God’s perfections. However, positive law cannot be entirely derived from natural law, mainly because of the Fall and also for pragmatic reasons. One important aspect of Stair’s contribution to legal and moral philosophy is his distinction between conventional and obediential obligations (from the will of God only), and his account of the principle of ‘engagement’ at work in conventional obligations. Also, Stair’s view that a promise is binding per se, without acceptance by the promisee, deserves attention.

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