Rousseau's Moral Realism: Replacing Natural Law with the General Will

1983 ◽  
Vol 77 (3) ◽  
pp. 633-651 ◽  
Author(s):  
Arthur M. Melzer
Keyword(s):  
Social Contract ◽  
Rule Of Law ◽  
Natural Law ◽  
Moral Realism ◽  
General Will ◽  
Classical View ◽  
Natural Goodness ◽  
The Absolute ◽  
Do So

The Social Contract is reinterpreted by emphasizing its relation to Rousseau's other writings and doctrines. In the spirit of Hobbesian realism, Rousseau regards natural law and other forms of “private morality” as ineffectual, invalid, and in practice dangerous tools of oppression and subversion. But, still more realistic than Hobbes, Rousseau thinks it impossible to build a nonoppressive state on men's selfish interests alone and embraces the classical view that morality or virtue is politically necessary (as well as intrinsically good). Rousseau's doctrine of the natural goodness of man, however, which traces all vice to the effects of oppression, leads him to conclude that the non-oppression more or less guaranteed by the absolute rule of general laws is also sufficient to make men virtuous. Thus Rousseau can declare law as such (General Will) infallible and “sovereign”—and he must do so in order to protect rule of law from its greatest danger, the subversive appeal to “natural law.”

scholarly journals Property beyond princely authority: the intellectual and legal roots of Ulrik Huber’s fundamental law

2016 ◽  
Vol 84 (1-2) ◽  
pp. 225-244
Author(s):  
Gustaaf van Nifterik
Keyword(s):  
Seventeenth Century ◽  
Property Rights ◽  
Rule Of Law ◽  
Natural Law ◽  
Private Property ◽  
Common Law ◽  
Legal Context ◽  
Fundamental Law ◽  
Do So

In this paper I argue for a rule-of-law-reading of Ulrik Huber’s fundamental law on freedom of property. My aim is to show that there is enough contemporary intellectual and legal context for such a reading. I do so by arguing along three lines: the medieval tradition that rooted the origin of private property in natural law, protection of property in the constitution of Holland in the seventeenth century, and property rights protected by fundamental law in English common law.


Cardinal Richelieu between Vattel and Machiavelli

2018 ◽  
Author(s):  
Anthony Carty
Keyword(s):  
Seventeenth Century ◽  
International Law ◽  
Rule Of Law ◽  
Natural Law ◽  
Historical Research ◽  
Practical Implementation ◽  
The Rule Of Law ◽  
God's Will ◽  
Legal Thought ◽  
Rule Of Reason

The view that no form of international law existed in seventeenth-century France, and that this time was a part of ‘prehistory’, and thus irrelevant for international legal thought today is challenged. In addition, the traditional claim of Richelieu to be an admirer of Machiavelli and his Ragion di Stato doctrine to the detriment of the aim of concluding treaties and keeping them (as sacred), is refuted by careful historical research. In Richelieu’s thinking, there is a role for law to play but it is law as justice, law in the classical natural law tradition. Those who rule are subject to the rule of law as justice, the rule of God, or the rule of reason. In Richelieu’s world, kings and ministers are rational instruments of the practical implementation of God’s will on earth.

Frequency and Tense Use in French

1998 ◽  
Vol 12 ◽  
pp. 43-60 ◽  
Author(s):  
Arie Molendijk ◽  
Henriette E. de Swart
Keyword(s):  
General Rule ◽  
Concrete Situation ◽  
Dependent Frequency ◽  
Temporal Relationships ◽  
The Absolute ◽  
Do So

Abstract. This paper deals wilh the use of Ihe passé simple and the imparfait of French in frequentative sentences. It is argued that frequency implies sentence-internal quantification, meaning that frequentative sentences report just one (complex) eventuality. This claim is related to the fact that, as far as establishing temporal relationships between eventualities is concerned, sentences containing frequency adverbs behave like sentences that don't imply quantification at all. So they may establish all kinds of temporal relationships between eventualities. Given the claims put forward in this paper about the temporal meaning of the passe* simple and the imparfait (Molendijk 1990), it naturally follows that, as a general rule, frequency adverbs combine with both tenses. But they do not always do so under exactly the same circumstances. In this regard, a distinction can be made between dependent frequency adverbs {tout le temps 'all the time' etc.), which imply reference to a contextually determinable concrete situation, and independent ones (toujours 'always', etc.), which may be used without any reference to such a situation. This distinction helps us to understand, for instance, why dependent frequency adverbs do not easily combine with the 'absolute' (non-narrative) passe simple, whereas they do combine with the imparfait and the 'narrative' passé simple.

THE WIDENING GYRE: COUNTER-TERRORISM, HUMAN RIGHTS AND THE RULE OF LAW

2008 ◽  
Vol 67 (1) ◽  
pp. 69-91 ◽  
Author(s):  
Arthur Chaskalson
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
The Internet ◽  
The Rule Of Law ◽  
Counter Terrorism ◽  
Daunting Task ◽  
The Subject ◽  
Google Search ◽  
Is Value ◽  
Do So

There are two themes that recur in previous Sir David Williams lectures. First, that it is a considerable honour to be invited to give the lecture. Secondly, that it is a daunting task to do so in the presence of Sir David, particularly in a field in which he has expertise. Since that covers most of the law there is no escape from this dilemma. Let me then acknowledge the privilege of having been asked to give this year's lecture, and confess that it is with some trepidation that I do so. The subject, terrorism and human rights, is not exactly uncharted territory. When I looked into the internet for some guidance on what might be relevant to terrorism and human rights, the response to my Google search informed me that in .03 seconds 32,900,000 references had been found. This seemed to indicate that it was unlikely that I would be able to say anything that has not already been said. But there are some subjects that are of such importance that there is value in reminding ourselves of the issues that are at stake, and if necessary for that purpose, repeating what others have said. And it is with that in mind that I approach my chosen topic.

scholarly journals The contstructivistic defence of the objectivity of moral standards and natural law that does not require the debate on moral realism

2017 ◽  
Vol 28 (3) ◽  
pp. 653-663
Author(s):  
Slavenko Sljukic
Keyword(s):  
Natural Law ◽  
Moral Realism ◽  
Categorical Imperative ◽  
Moral Relativism ◽  
The Other ◽  
Moral Sentiments ◽  
Theory Of Justice ◽  
Social Fact ◽  
Moral Standards ◽  
Theories Of Justice

The main goal of Kenneth R. Westphal?s How Hume and Kant Reconstruct Natural Law: Justifying Strict Objectivity without Debating Moral Realism is to defend the objectivity of moral standards and natural law and thus avoid the discussion about moral realism and its alternatives by interpreting Hume and Kant in a constructivistic sense. The reason behind the author?s disagreement with both: moral realism and non-realism (its alternative) is our inability to properly understand and answer one of the two parts in Socrates? question to Euthyphro: ?Is the pious loved by the gods because it is pious, or is it pious because it is loved?? Moral realists cannot provide an answer to its second part, since it is not possible to prove that moral standards are not artificial; conversely, moral non-realists cannot provide an answer to its first part, since it is not possible to avoid the relatitvity of moral standards. The author tends to solve this problem by avoiding the confrontation between moral realism and non-realism and thus choosing the constuctivistic stance that, as he argues, can be found in both Hume?s and Kant?s theories. The main point of this stance is that moral standards are indeed artificial, yet not arbitrary. He proves this by pointing out that both Hume and Kant treat the moral standards as a social fact (that is, artificial), but also as objective. Westphal points out that Hume explicitly writes about moral standards as a social fact, while showing that, at the same time, his theory of justice, which precedes all of the moral standards, is established independently of his theory of moral sentiments (potentially leading to moral relativism). In this manner, he provides the objectivity of those standards. On the other hand, Kant?s theory is interpreted as advanced, yet similar to Hume?s in its structure. The crucial similarity is that both Hume and Kant interpret the moral standards as a social fact (that is, as an artificial) and, at the same time, as the objective ones. Kant, unlike Hume, provides this objectivity by using a specific moral criterion - a categorical imperative. Those assumptions will be used as the main premises of a distinctively inspiring interpretation of Hume?s and Kant?s theories of justice.

scholarly journals John Finnis y la defensa ética del «Rule of Law». «Natural Law and Natural Rights» y otros escritos posteriores

2020 ◽  
pp. 435-461
Author(s):  
Carlos-I. Massini-Correas
Keyword(s):  
Rule Of Law ◽  
Natural Law ◽  
Natural Rights ◽  
John Finnis

En el presente artículo, escrito en homenaje a los 40 años de la aparición de la primera edición de Natural Law and Natural Rights de John Finnis, se estudian varias de las versiones elaboradas por el iusfilósofo australiano para analizar, explicitar, desarrollar y defender la noción de rule of law. Luego de este desarrollo, se efectúa una valoración de las aportaciones de Finnis en este punto, en especial las referidas al carácter principalmente ético de ese instituto, y a la maestría con la que ha sabido integrar la tradición clásico-realista del iusnaturalismo, los planteos metodológicos de la analytical jurisprudence y la reflexión contemporánea sobre la idea del gobierno limitado por el derecho.

scholarly journals RUDOLF VON JHERING E A GENELOGIA DA ÉTICA: O DEVIR HISTÓRICO COMO DETERMINANTE DA PROCEDÊNCIA DO SENTIMENTO JURÍDICO * RUDOLF VON JHERING AND THE GENELOGIA ETHICS: THE BECOMING HISTORY AS DETERMINING THE ORIGIN OF THE LEGAL SENSE

2015 ◽  
Vol 4 (3) ◽  
pp. 101
Author(s):  
Henrique Garbellini Carnio
Keyword(s):  
Natural Law ◽  
Historical Development ◽  
Philosophy Of Law ◽  
Natural Laws ◽  
Em 12 ◽  
The Absolute ◽  
The Law ◽  
Legal Sense ◽  
The Way

<p><strong>Resumo:</strong> O presente artigo tem como base a conferência dada por Rudolf von Jhering em 12 de março de 1884 para a Sociedade Jurídica de Viena, intitulada "Sobre o nascimento do sentimento jurídico". O objetivo é demonstrar algumas reflexões surpreendentes e pouco conhecidas deste importante jurista, enfatizando, em especial, a importância que ele atribui ao devir histórico na formação do sentimento jurídico, apostando que o sentido do direito é modelado pela história e não proveniente das leis naturais eternas. Jhering, propondo uma tarefa genealógica, defende de forma contundente um historicismo ético e jurídico que o distancia de um relativismo absoluto como o das clássicas posições jusnaturalistas, completamente ahistóricas, que se revela extremamente interessante para as reflexões atuais sobre a filosofia do direito.</p><p><strong>Palavras-chave:</strong> Rudolf von Jhering; sentimento jurídico; historicismo ético-político.</p><p><strong>Abstract:</strong> This article is based on a lecture given by Rudolf von Jhering on March 12, 1884 for the Law Society of Vienna, entitled "About the birth of the legal feeling." The objective is to demonstrate some surprising and little-known reflections of this important jurist, emphasizing, in particular, the importance he attaches to the historical development in the formation of the legal feeling, betting that the sense of law is shaped by history and not from the eternal natural laws. Jhering proposing a genealogical task, forcefully defends an ethical and legal historicism that distances him of the absolute relativism as the way of classic natural law positions, completely ahistorical, that reveals itself highly interesting for the current reflections on the philosophy of law.</p><p><strong>Keywords:</strong> Rudolf von Jhering; legal feeling; ethical and political historicism.</p>

scholarly journals THE IMPACT OF THE LAW VALUES TO OVERCOME LEGAL NIGILISM

2019 ◽  
Keyword(s):  
Civil Society ◽  
Rule Of Law ◽  
Natural Law ◽  
Negative Attitude ◽  
Legal Culture ◽  
Social Value ◽  
The Rule Of Law ◽  
Potential Strength ◽  
Objective Property ◽  
High Level

The article substantiates the idea that in the process of the formation and development of the foundations of a civil society and the rule of law, legal nihilism continues showing to a certain extent its potential and thus inhibiting progressive legal changes. Attention is focused on the peculiarities of the stability of legal nihilism and the problems of its gradual overcoming. It is emphasized in the offered article the importance of the law values priority, of the legal ideal, of the principle of social justice in the process of eradicating the manifestations of legal nihilism in the relevant areas of society life activity and personality. The authors came to the following conclusion: Values of law is a phenomenon of objective property, to be based on the ideas of the natural law, arising from the fact of human existence and directed exclusively to a person, to his rights and needs. Value entity of law really manifests itself only under operating conditions of civil society and legal state, recognising a person, his rights and freedoms as the highest social value. Legal nihilism begins losing its potential strength only when the majority of members of civil society recognize the priority of values of law. Confrontation of values of law and legal nihilism decisively narrows the scope of negative legal phenomena in all forms of their manifestation. Basing on the values of law, civil society institutions can solve problems being in the field of interests and needs of each person, so creating favourable conditions to eradicate legal nihilism. Using the truly valuable potential of law (first of all, legal law), civil society and legal state carry out transformations that ensure decent existence of any individual and by this minimizing the manifestation of legal nihilism. Even with a sufficiently high level of development of civil society and legal state, the practical negative attitude to legal nihilism should not weaken, because in the face of any social and legal reality, various offenses (including serious crimes) can be committed. Overcoming legal nihilism is associated with constant increase in the level of legal awareness and legal culture of the majority of members of civil society, which is a consequence of the following conclusions. Values of law is a phenomenon of objective property, based on the ideas of natural law, arising from the fact of a person’s existence and directed exclusively to a person, his rights and needs. The value essence of law really manifests itself only in the conditions of the functioning of civil society and the rule of law, recognize a person, his rights and freedoms as the highest social value. Legal nihilism begins to lose gradually its potential strength only when the majority of members of civil society recognize the priority of the values of law. The confrontation of the values of law and legal nihilism decisively narrows the scope of negative legal phenomena in all forms of their manifestation. Based on the values of law, civil society institutions can solve problems that are in the field of interests and needs of each person, which creates favourable conditions for the eradication of legal nihilism. Using the truly valuable potential of law (first of all, legal laws), civil society and the rule of law carry out those transformations that ensure the worthy existence of the individual and thereby minimize the manifestation of legal nihilism. Even with a sufficiently high level of development of civil society and legal law any negative attitude to legal nihilism should not be weaken, since in the conditions of any social and legal reality, various offenses (including serious crimes) can be committed. Overcoming legal nihilism is associated with permanent increase in the level of legal awareness and legal culture of the majority of civil society members which is a consequence of increase of quality of legal education and upbringing.

scholarly journals Private Law for Public Ends

2019 ◽  
Author(s):  
Alvin Y.H. Cheung
Keyword(s):  
Rule Of Law ◽  
Private Law ◽  
Constitutional Level ◽  
Do So

How might a canny would-be autocrat implement new measuresin service of an illiberal or authoritarian agenda, when overtly illiberal orauthoritarian measures are likely to attract international condemnation? Writing in 2016, Kim Lane Scheppele suggested that one answer was the conscious adoption of “constitutional worst practices”: practices that are extant in jurisdictions with (apparently) unimpeachable constitutionalist credentials, but which undermine the operation of constitutionalism in their transplanted context. Yet even "constitutional worst practices" face a problem: it is not always feasible to change the constitution. Even if it were possible to do so, the very fact that a change to the constitution has occurred will inevitably result in greaterscrutiny. Far better to adopt the “worst practices” approach at a sub-constitutional level, with ordinary law: esoteric enough to evade most scrutiny, and sufficiently resembling norms or institutions in jurisdictions with ironclad "rule of law" credentials to pass muster. This chapter addresses "constitutional worst practices" and "isomorphic mimicry", before turning specifically to how private law can be used as a means to obfuscate repression.

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