Natural Law Theory and Legal Positivism: Two Sides of the Same Practical Coin?

1987 ◽  
Vol 14 (3) ◽  
pp. 303 ◽  
Author(s):  
Tim Kaye
Keyword(s):  
Natural Law ◽  
Legal Positivism ◽  
Natural Law Theory ◽  
Two Sides

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 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

scholarly journals The logical foundations of constitutional democracy between legal positivism and natural law theory

Public Choice ◽  
2021 ◽  
Author(s):  
Hartmut Kliemt
Keyword(s):  
Natural Law ◽  
Constitutional Law ◽  
Legal Positivism ◽  
Veto Power ◽  
Constitutional Economics ◽  
Constitutional Democracy ◽  
Substantive Content ◽  
Logical Foundations ◽  
Natural Law Theory ◽  
Knowledge Claims

AbstractRejecting all knowledge claims concerning right and wrong in matters practical James Buchanan concurred with legal positivism that invalid law cannot be identified by its substantive content but only by an inherited defect in its factual creation. Beyond correct creation Buchanan proposed as a quasi-natural law constraint that unanimity in the shadow of individual veto power must at least be conceivable if a norm is to be law. The emerging hybrid conception of constitutional law is symptomatic for Buchanan’s never-ending but ultimately futile efforts to incorporate Kantian ideals of interpersonal respect into constitutional economics without imposing them as personal values.

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.

scholarly journals GROTIUS, DESCARTES E O PROBLEMA DO CETICISMO NO SÉCULO XVII: AS ORIGENS FILOSÓFICAS DO DEBATE JUSNATURALISMO VS. POSITIVISMO LEGAL

2011 ◽  
Vol 38 (120) ◽  
pp. 5
Author(s):  
Marcelo Araújo
Keyword(s):  
Natural Law ◽  
Rene Descartes ◽  
17Th Century ◽  
Political Authority ◽  
Legal Positivism ◽  
Historical Understanding ◽  
Hugo Grotius ◽  
René Descartes ◽  
Natural Law Theory

O objetivo deste texto é contribuir para uma compreensão da história do debate entre jusnaturalismo e positivismo legal. Esse debate teve sua origem no século XVII, mais especificamente no contexto do ceticismo moderno acerca dos fundamentos da legitimidade do exercício da autoridade política. As respostas de Hugo Grotius e René Descartes ao problema do ceticismo, como se pretende mostrar, contribuíram para a emergência do debate entre jusnaturalismo e positivismo legal.Abstract: This paper aims to develop a historical understanding of the debate between natural law theory and legal positivism. This debate has its roots in the 17th century, particularly in the context of the modern skepticism about the justification for the exercise of political authority. I intend to show that the answer given by both Hugo Grotius and René Descartes against the skeptical attack contributed to the emergence of the debate between natural law theory and legal positivism.

THE POSITION OF MORAL VALUES IN LAW

2021 ◽  
Vol 6 (1) ◽  
pp. 51-61
Author(s):  
Dian Latifiani ◽  
Raden Muhammad Arvy Ilyasa
Keyword(s):  
Natural Law ◽  
Moral Values ◽  
Legal Positivism ◽  
Moral Principles ◽  
Legal Science ◽  
Natural Law Theory ◽  
Law And Morality ◽  
The Law

Moral values in legal science are important. However, the flow of law sees a variety of moral values. This paper aims to see the position of moral values in the science of law. Legal positivism separates strictly between law and morals. According to him, there is no law other than the command of the authorities. Even extreme identifying the law (Recht) as the law (wet). Legal positivism activities are aimed at concrete problems, which are different when compared to natural law thinking which engages itself with the validation of man-made law. For adherents of natural law theory, an unjust law is not law. there is an absolute relationship between law and morality. the two cannot be separated, so the law must refer to moral principles.

Legal Teleology

2019 ◽  
pp. 45-64 ◽  
Author(s):  
David Copp
Keyword(s):  
Natural Law ◽  
Social Practice ◽  
Legal Positivism ◽  
Moral Principles ◽  
Natural Law Theory ◽  
Law And Morality ◽  
The Law

Legal Teleology seeks to embrace and to ground the most plausible tenets of both legal positivism and natural law theory. It is compatible with the positivist view that law consists at root in a social practice of a certain kind. Yet it also can accommodate at least some claims about the relation between law and morality that are advocated by opponents of positivism. Most important, it argues that law is “robustly normative”—roughly, law is a source of genuine reasons. Standard forms of positivism cannot account for this thesis, but, arguably, the central doctrines of positivism are compatible with it. Legal Teleology is an account of the normativity of law that is supported by “pluralist-teleology,” a naturalist account of normativity that has been proposed elsewhere (Copp 2009). Legal Teleology sees the law as having a purpose, and it says that law is defective insofar as it does not further that purpose. It agrees that jurists can sometimes help law better to serve its purpose when they invoke moral principles in interpreting law. Legal Teleology represents a kind of intermarriage between legal positivism and natural law theory.

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.

Sign in / Sign up

Export Citation Format

Share Document