scholarly journals A teoria do direito natural no tempo pós-moderno

2018 ◽  
Vol 1 (39) ◽  
Author(s):  
Carlos I. Massini Correas
Keyword(s):  
Modern Philosophy ◽  
Natural Law ◽  
Legal Theory ◽  
Current Status ◽  
Contemporary Philosophy ◽  
Modern Conception ◽  
Modern Age ◽  
The Subject ◽  
Natural Law Theory ◽  
Almost All

RESUMOAssim como em quase todas as matérias, é conveniente fazermos um pouco de história para compreendermos a situação atual da teoria do direito. No caso deste trabalho, vamos remontar apenas até a Idade moderna, pois, como bem diz Daniel Innerarity, “a filosofia contemporânea transformou-se numa reflexão sobre a modernidade”. Esquematizando muito, por razões elementares de brevidade, podemos afirmar que é possível diferenciar três traços centrais na filosofia moderna: a) perda da noção teleológica de natureza; b) aparição da concepção moderna do sujeito; c) imanentização do pensamento. PALAVRAS-CHAVEDireito Natural. Pós-modernidade. Filosofia contemporânea. Jusnaturalismo.ABSTRACTAs in almost all disciplines, it is convenient to study a bit of history in order to understand the current status of legal theory. In the case of this paper, we will remount only until Modern Age, for, as says correctly Daniel Innerarity, “contemporary philosophy has turned itself into a reflection on modernity”. Outlining considerably, for elementary reasons of brevity, we can affirm that it is possible to discriminate three central features in modern philosophy: a) the loss of the theological notion of nature; b) the emergence of the modern conception of the subject; c) the immanentization of thought.KEYWORDSNatural Law. Post-modernity. Contemporary philosophy. Natural Law theory. 

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 GROUNDS OF LAW AND LEGAL THEORY: A Response

Legal Theory ◽  
2007 ◽  
Vol 13 (3-4) ◽  
pp. 315-344 ◽  
Author(s):  
John Finnis
Keyword(s):  
Natural Law ◽  
Common Good ◽  
Legal Theory ◽  
Moral Judgments ◽  
The Rule Of Law ◽  
Sound Theory ◽  
Questions And Answers ◽  
The Face ◽  
Natural Law Theory ◽  
Good For

Linking theses of Plato, Wittgenstein, and Weber, section I argues that identification of central cases and settling of focal meanings depend upon the theorist's purpose(s) and, in the case of theory about human affairs—theory adequately attentive to the four irreducible orders in which human persons live and act—upon the purposes for which we intelligibly and intelligently act. Among these purposes, primacy (centrality) is to be accorded (by acknowledgement, not fiat) to purposes which are, as best the theorist can judge, reasonable and fit to be adopted by anyone, the theorist included. Section II defends the reasonableness (and hence entitlement to universal assent) of practical and moral judgments, against Michael Perry's ultimately nihilist claims that egoism's challenge to moral normativity has gone unanswered and that “reason for A” does not entail “reason for” anyone else. Section III takes up Steven Smith's suggestion that such subjectivism is encouraged by the talk in Natural Law and Natural Rights of “pursuing goods,” talk which (he argues) is individualistic and neglectful of (other) persons, inimical to an understanding of friendship, and impotent in the face of egoism. Here as elsewhere the key is to grasp that understanding any basic or intrinsic human good is to understand it as good for anyone like me and thus—since as I instantiate and embody a universal, viz. human being—as a good common to (good for) anyone and everyone. Section IV argues that common good (which includes respect for human rights, and the Rule of Law) gives reason for exercise and acceptance of authority, and for allegiance, even (and in a sense, especially) in time of breakdown. Section V argues that natural law theory is no more dependent on affirming God's existence than any other theory is, in any of the four orders of theory, but equally that is not safe for atheists. For, like any other sound theory, it suggests and is consistent with questions and answers about its grounds, in this case about the source of its normativity and of the human nature that its normative universals presuppose and affirm; and the answers are those argued for, too abstemiously, in the last chapter of NLNR and, more adequately, in the equivalent chapter of Aquinas.

scholarly journals Rozumowanie prawnicze jako rozumowanie praktyczne w świetle nowej teorii prawa naturalnego Johna M. Finnisa

2020 ◽  
pp. 84-98
Author(s):  
Michał Sopiński
Keyword(s):  
Natural Law ◽  
Practical Reasoning ◽  
Legal Reasoning ◽  
Legal Positivism ◽  
Contemporary Philosophy ◽  
Critical Approach ◽  
New Approach ◽  
Joseph Raz ◽  
Natural Law Theory ◽  
The One

This paper presents practical reasoning in the light of John M. Finnis’ new natural law theory. Finnis’ views were shaped by Aquinas’ thoughts on natural law but he was also strongly inspired by Germain Grisez’ new approach, so his theory could be named a new natural law theory. The aim of this paper is to analyse the concept of legal reasoning as practical reasoning, which Finnis intended mainly as a strong critique of Ronald Dworkin’s theory of legal reasoning based on the concept of the one right answer. According to the author of this paper, Finnis’ critical approach to Dworkin leads to a gradual extension of the former’s concept of legal reasoning to include positivistic aspects (rapprochement with Joseph Raz’ views) and institutional aspects (rapprochement with Neil MacCormick’s views). Therefore, Finnis’ theory of legal reasoning seems to be a model example of the rapprochement between natural law and legal positivism in contemporary philosophy of law.

scholarly journals KANT’S CATEGORICAL IMPERATIVE AND AQUINAS’ NATURAL LAW THEORY: A CRITICAL AND COMPARATIVE ANALYSIS

2020 ◽  
Vol 2 (9) ◽  
pp. 01-13
Author(s):  
Ejeh Paulinus C.
Keyword(s):  
Comparative Analysis ◽  
Immanuel Kant ◽  
Natural Law ◽  
Categorical Imperative ◽  
Thomas Aquinas ◽  
Ethical Philosophy ◽  
Critical Comparison ◽  
History Of ◽  
The Subject ◽  
Natural Law Theory

This paper titled: “Kant’s Categorical Imperative and Aquinas’ Natural Law Theory: A Critical and Comparative Analysis”, is an attempt towards a better understanding of the compatibility or otherwise, that may exist between the works of the two great minds in the history of philosophy-Thomas Aquinas and Immanuel Kant. The paper aims at a critical comparison of the basic premises of Kant’s and Aquinas’s ethical philosophy, intending to find similarities and dissimilarities as well as compatibility or incompatibility between them. This paper adopts a conceptual clarification of our discourse and engages in an analytic, critical exposition, and appraisal of the subject matters.

scholarly journals EXISTENTIALISM IN “FIRE ON THE MOUNTAIN”

2018 ◽  
Vol 5 (43) ◽  
Author(s):  
Manisha Sharma
Keyword(s):  
Literary Work ◽  
The Novel ◽  
Anita Desai ◽  
Avant Garde ◽  
Modern Age ◽  
Human Predicament ◽  
The Face ◽  
The Subject ◽  
Almost All ◽  
In Fire

Existentialism, a quite contemporary dogma apparent in the philosophical and literary work of Sartre, was much in vogue in the European literature dating back from mid-twentieth century. Existentialism dealing greatly with the alienated trepidation, preposterousness, prejudice, escapism, over attraction for liberation, started becoming the subject matter of almost all the writers of the modern age. As an avant-garde novelist, Anita Desai in “Fire on the Mountain” exhibits a strong inclination towards the existentialist interpretation of the human predicament.” Desai’s characters of Nanda Kaul, Raka and Ila Das are studies of women in the utter maze of isolation and ennui. The novel espouses the universal human struggle for survival, especially in the face of a never ending spiral of human failures and misfortunes.

scholarly journals Foucault Among the Stoics: Oikeiosis and Counter-Conduct

2016 ◽  
pp. 22-51 ◽  
Author(s):  
James F. Depew
Keyword(s):  
Sixteenth Century ◽  
Natural Law ◽  
The Self ◽  
Care Of The Self ◽  
The Subject ◽  
Natural Law Theory ◽  
The Government ◽  
Stoic Philosophy

This paper explores the relation of Foucault’s notion of counter-conduct to the Stoic notion of oikeiosis. Initially, oikeisosis is set against Platonic homoiosis, specifically as discussed in the Alcibiades, which provides what Foucault calls the “Platonic model” of conduct. The paper examines what Foucault means by “care of the self” and points to its difference from the Delphic maxim “know yourself” that centered on a principle of homoiosis, or ethical transcendence. Noting how the problematic of care of the self leads to what Foucault calls “the government of conduct,” the paper considers the possibility of “counter-conduct.” Given that Foucault has argued that the autonomy of conduct has been rendered invisible through its “juridification,” this paper proceeds with a genealogy of the codification of morals in natural law theory. This culminates with the sixteenth century return to Stoicism in the person of Grotius. Showing that a certain conception of counter-conduct present in Gerson is transformed in natural law theory into a juridical grounding of the government of conduct, this paper draws out the immanent relation of conduct and counter-conduct in the notion of appropriation. Arguing that Grotius has fundamentally misunderstood the concept of oikeiosis, which he takes from Cicero and which subtends his theory of appropriation, this paper suggests that a return to the early Stoic formulation of oikeiosis allows for a rethinking of the problem of the government of conduct. A certain moralization of action, irreducible to codification that is present in early Stoic thought provides a model of “counter-conduct.” Ultimately, “care of the self,” as it is given in Stoic philosophy, relates the subject of action to the principle of ethical immanence that grounds Foucault’s critique of the subject.

scholarly journals LEGISLATION NOVELS ON APPEALS IN THE СOMMUNITY OF INDEPENDENT STATES

2016 ◽  
pp. 0-0
Author(s):  
Александр Савоськин ◽  
Aleksandr Savoskin
Keyword(s):  
Digital Signature ◽  
Legal Theory ◽  
Legal Regulation ◽  
The Internet ◽  
Independent States ◽  
The Subject ◽  
Constitutional Right ◽  
Cis Countries ◽  
Almost All ◽  
Legal Entities

The subject of present study is changes in the laws on citizens’ appeals in the Community of Independent States in the last 5 years. There is a more detailed analyses of rules that’s provided legal entities with constitutional right to appeal; rules on electronic appeals; rules on new (non-traditional) appeals arising in the Internet. Subsequent to the results of the analysis the following points are main conclusions: 1) in recent years, three CIS countries’ laws on appeals fully set forth in a new wording, and the rest laws have changed significantly; 2) legislations of Russia, Kazakhstan, Belarus and Ukraine contain most of the novels, while for Russian legislation it is typical to establish new forms of appeals into subordinate regulation; 3) almost all CIS countries recognize electronic appeals, but their detailed legal regulation is absent; 4) an electronic digital signature is mandatory for electronic appeals in five countries of the CIS; 5) fundamentally new types of appeals that involve the collection of votes by Internet and estimate activity of authorities have emerged in the CIS countries. Such appeals can be submitted only by means of official sites in the Internet and are the least understood in legal theory, while their place in the system of the constitutional right to appeal is not defined.

The Acceptance of a Legal System

1990 ◽  
Vol 3 (2) ◽  
pp. 81-106
Author(s):  
Roger A. Shiner
Keyword(s):  
Political Theory ◽  
Legal System ◽  
Natural Law ◽  
Legal Theory ◽  
Legal Positivism ◽  
Separation Thesis ◽  
Natural Law Theory ◽  
The Right ◽  
Independent Account

The interest of political theory in the acceptance of law is obvious. If one believes that a regime is legitimate only if it governs with the consent of the governed, then the notion of acceptance is deeply linked with the notion of legitimacy, a fundamental concern of political theory. The interest of legal theory in the notion of acceptance is less obvious. I construe it to arise in the following way. One central tradition in legal theory is that of positivistic or content-independent theories of law. Positivism, crudely speaking, is characterized by some form of the Separation Thesis—that the existence of law is one thing and its merit or demerit another. But if it is important for positivistic legal theory to mark the separation of law and the merits of law, then it must also be important to mark the separation between law and the acceptance of law. The existence of law must be one thing and its acceptance as meritorious another. In deference to the separation of existence and merit, positivism tries to find a content-independent account of the validity of law. Equally, in deference to the separation of law and acceptance, positivism tries to find a content-independent account of the acceptance of law. The topic of this paper is whether the separation of law and the acceptance of law is possible. I shall try to suggest, in service of a non-positivistic or content-dependent approach to law, that this separation is not possible. I will attempt to argue on the basis of points which legal positivism itself has acknowledged to form valid constraints on any theory of acceptance. My ambitious thesis is that positivism has presented us with the reasons for rejecting it. Even if that thesis is not made out, I have a less ambitious thesis which I am confident of securing, that the demand for an account of law which permits law to be accepted ‘for any reason whatever’ is not a theoryneutral demand which might decide between positivism and natural law theory. Rather, it is an expression of a prior commitment to positivism. It is the familiar demand of natural law theory that the convergence of attitudes towards law which makes for acceptance of law must be a convergence for the right kind of reasons; ones that have to do with the value of law.

Natural law

2018 ◽  
Author(s):  
John Finnis
Keyword(s):  
Human Rights ◽  
General Theory ◽  
Natural Law ◽  
Legal Theory ◽  
Human Life ◽  
Moral Discourse ◽  
Crimes Against Humanity ◽  
Natural Law Theory ◽  
Higher Law ◽  
Good And Evil

When made within the discourse of ethics, political theory, or legal theory or philosophy of law, the claim that there is a natural law is an offer to explain and defend certain claims often made, in different terms, in the discourse of moral argument, politics or law. In pre-theoretical moral discourse, certain choices, actions or dispositions may be asserted to be ‘inhuman’, ‘unnaturally cruel’, ‘perverse’ or ‘morally unreasonable’. In pre-theoretical political discourse, certain proposals, policies or conduct may be described as violations of ‘human rights’. In international law and jurisprudence, certain actions may be described as ‘crimes against humanity’ and citizens may claim immunity from legal liability or obligations by appealing to a ‘higher law’. A natural law theory offers to explain why claims of this sort can be rationally warranted and true. It offers to do so by locating such claims in the context of a general theory of good and evil in human life so far as human life is shaped by deliberation and choice. Such a general theory can also be called a general theory of right and wrong in human choices and actions. It will contain both (1) normative propositions identifying types of choice, action or disposition as right or wrong, permissible, obligatory and so on, and (2) non-normative propositions about the objectivity and epistemological warrant of the normative propositions.

scholarly journals ON THE QUESTION OF COMPATIBILITY OF NATURAL-LEGAL AND POSITIVE-LEGAL THEORETICAL PRINCIPLES

2020 ◽  
Vol 34 (2) ◽  
pp. 39-43
Author(s):  
L.V. Karnaushenko ◽  
Keyword(s):  
Natural Law ◽  
Legal Theory ◽  
Social Ontology ◽  
Initial Step ◽  
Subject Area ◽  
Legal Rules ◽  
Positive Law ◽  
Joint Application ◽  
Natural Law Theory ◽  
The Stability

The article examines the contradiction between theories of natural law and positive law. The author considers the main points in which these theories contradict each other, and also raises the question of the principle possibility of joint application of elements of natural-legal and positive-legal theories. The initial step in thinking about the problem is to consider the specifics of natural law theory. Its idealistic character is marked, and the connection between social ontology, anthropology, ethics and natural-legal theory is considered. The priority of natural law over the stability of the current social structure is highlighted, as one of the theoretical accents of natural law theory. There is limited natural-legal theory in understanding the private aspects of law. Further, the work analyzes the main theoretical aspects of positive-legal theory. Its subject area is being studied. Positive law theory is proven to have, in relation to natural law theory, an advantage in understanding the consequences for society associated with the introduction of specific legal rules. The applied aspect of positive-legal theory is disclosed, as well as the limits of its application are considered. The final part of the article is focused on the analysis of the relationship between the theories under consideration, based on the work of classics of philosophical-scientific thought. It is demonstrated that the interpretation, which believes a complete contradiction between theories of positive and natural law on the basis of the contradiction of their individual elements, is based on an outdated approach. The question is raised about the principle compatibility of certain elements of positive-legal and naturallegal theories. The possibility of their joint application in the course of solving complex legal issues is justified.

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