scholarly journals Anti-metaphysical foundation of contemporary theory of natural law: Theory of law and practical rationality in works of John Mitchel Finnis

2017 ◽  
Vol 60 (1) ◽  
pp. 5-27
Author(s):  
Dejan Stankovic
Keyword(s):  
Natural Law ◽  
Practical Rationality ◽  
Theoretical Concept ◽  
Legal Positivism ◽  
Legal Philosophy ◽  
Moral Philosopher ◽  
Natural Law Theory ◽  
Socially Relevant ◽  
Theory Of Law ◽  
John Mitchel

The contemporary natural law theory was grounded in the philosophical and the jurisprudential work of Australian legal and moral philosopher John Mitchell Finnis. He reaffirmed the natural law and also corrected some of false notions about it which were dominant through the history of legal philosophy. Finnis moral and legal philosophy could be understood by the specific theoretical figure - moral argument for law. This theoretical concept implies unity of two mutually connected moments which are necessary for a philosophical treatment of any socially relevant phenomena: methodological and epistemological as well as practical. The meeting point of these two philosophically relevant dimensions is theory of practical rationality exposed in the philosophy of John Mitchell Finnis. By grounding his concept of natural law on the theory of practical rationality, John Finnis historically contextualize it. He made some sort of specific anti metaphysical concept of natural law theory that is alternative to the classical natural law as well as to the legal positivism, which mainly exposed in the legal theories of Hans Kelsen and H.L.A Hart.

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.

scholarly journals Natural Justice, Law, and Virtue in Hobbes’s Leviathan

2019 ◽  
Vol 32 (2) ◽  
pp. 179-208
Author(s):  
J. Matthew Hoye
Keyword(s):  
Virtue Ethics ◽  
Natural Law ◽  
Legal Philosophy ◽  
Natural Laws ◽  
Natural Justice ◽  
General Significance ◽  
Natural Person ◽  
Natural Law Theory ◽  
Theory Of Law

Scholars debate whether Hobbes held to a command theory of law or to a natural law theory, and to what extent they are compatible. Curiously, however, Hobbes summarizes his own teachings by claiming that it is “natural justice” that sovereigns should study, an idea that recalls ancient virtue ethics and which is seemingly incompatible with both command and natural law theory. The purpose of this article is to explicate the general significance of natural justice in Leviathan. It is argued that below the formal and ideological claims regarding the law’s legitimacy, the effective ground of the legitimacy of both the civil and natural laws is sovereign virtue. In turn, it is argued that the model for this idea was found in Aristotle. As such, this article constitutes a general recasting of Hobbes’s legal philosophy with a focus on the natural person of the sovereign.

scholarly journals General Principles of EU Law: The Ghost in the Platonic Heaven in Need of Conceptual Clarification

2013 ◽  
Vol 2 (1) ◽  
Author(s):  
Constanze Semmelmann
Keyword(s):  
Natural Law ◽  
General Principle ◽  
Legal Theory ◽  
Legal Positivism ◽  
Legal Philosophy ◽  
Eu Law ◽  
Conceptual Clarification

General principles are en vogue in EU law – and in need of conceptual clarification. A closer look at several concepts of principle in legal philosophy and legal theory sheds light upon the concept of general principles in EU law. A distinction between an aprioristic model of principle and a model of principle informed by legal positivism may contribute to clarifying the genesis of a (general) principle in EU law, as well as its nature and functions. This paper demonstrates that an evolution has taken place from a reliance on seemingly natural law inspired reflections of general principles via the desperate search to ground general principles in various kinds of sources based on a more or less sound methodology  towards an increasing reliance on strictly positivistic approaches. Against this backdrop, general principles are likely to lose significance where there are other norms while retaining an important yet uncontrollable role where the traditional canon of sources is silent.

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.

scholarly journals Hart's Methodological Positivism

Legal Theory ◽  
1998 ◽  
Vol 4 (4) ◽  
pp. 427-467 ◽  
Author(s):  
Stephen R. Perry
Keyword(s):  
General Theory ◽  
Natural Law ◽  
Legal Theory ◽  
Legal Positivism ◽  
Social Phenomenon ◽  
Modern Times ◽  
Theory Of Law ◽  
Michael Moore

To understand H.L.A. Hart's general theory of law, it is helpful to distinguish between substantive and methodological legal positivism. Substantive legal positivism is the view that there is no necessary connection between morality and the content of law. Methodological legal positivism is the view that legal theory can and should offer a normatively neutral description of a particular social phenomenon, namely law. Methodological positivism holds, we might say, not that there is no necessary connection between morality and law, but rather that there is no connection, necessary or otherwise, between morality and legal theory. The respective claims of substantive and methodological positivism are, at least on the surface, logically independent. Hobbes and Bentham employed normative methodologies to defend versions of substantive positivism, and in modern times Michael Moore has developed what can be regarded as a variant of methodological positivism to defend a theory of natural law.

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.

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 One Myth of the Classical Natural Law Theory: Reflecting on the “Thin” View of Legal Positivism

Ratio Juris ◽  
2018 ◽  
Vol 31 (1) ◽  
pp. 9-32
Author(s):  
Veronica Rodriguez-Blanco ◽  
Pilar Zambrano
Keyword(s):  
Natural Law ◽  
Legal Positivism ◽  
Natural Law Theory

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?

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