scholarly journals Asupra existenței și utilității dreptului natural: evoluția unui concept

2021 ◽  
Vol 65 (4) ◽  
pp. 1006-1059
Author(s):  
Cristina Tomuleț ◽  
Keyword(s):  
Natural Law ◽  
Fundamental Rights ◽  
Legal Positivism ◽  
Final Part ◽  
Recent History ◽  
Legal Systems ◽  
Positive Law

In this article, I approached the concept of natural law, starting with the analysis of some of its first definitions developed by Cicero. Moving toward recent history, I demonstrated the usefulness of this concept in the context of dealing with legal systems specific to dictatorial regimes. Next, I presented arguments proving the existence of natural law and I determined its content, referring to the general principles included in it, which underpin positive law, and to its importance in terms of ensuring respect for fundamental rights. In the final part of this article, I analyzed the confrontation between jusnaturalism and legal positivism in order to highlight even more clearly the features of natural law. Last but not least, I stressed the importance of choosing a jusnaturalistic legal mindset in order to prevent and fight against legal systems that are manifestly contrary to natural law.

Rights

2011 ◽  
Author(s):  
Kenneth Pennington
Keyword(s):  
Human Rights ◽  
Natural Law ◽  
Natural Rights ◽  
Legal Positivism ◽  
Individual Rights ◽  
Legal Systems ◽  
Human Beings ◽  
Group Rights ◽  
Constitutional Jurisprudence ◽  
Theological Thought

One of the most notable characteristics of Western societies has been the development of individual and group rights in legal, theological, and philosophical thought of the first two millennia. It has often been noted that thinkers in Non-Western societies have not had the same preoccupation with rights. The very concept of rights is laden with numerous problems. Universality is the most basic and difficult. If human rights are only a product of Western ideas of justice, they cannot have universality. In an age that is dominated by conceptions of law embracing some form of legal positivism, many scholars recognize only individual rights that have been established by the constitutional jurisprudence of individual countries or their legal systems. Historically, the emergence of rights in European jurisprudence is intimately connected with the terms ius naturale and lex naturalis in Western jurisprudence and theological thought. Human beings may never agree on universal rules of a natural law, but they might agree on universal precepts that shape the penumbra of rights surrounding natural rights.

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.

Legality Without The Rule of Law? Scott Shapiro on Wicked Legal Systems

2012 ◽  
Vol 25 (1) ◽  
pp. 183-200
Author(s):  
David Dyzenhaus
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Natural Law ◽  
Legal Order ◽  
Legal Positivism ◽  
Legal Systems ◽  
The Rule Of Law ◽  
Moral Quality ◽  
Legal Positivist

InLegality,Scott Shapiro – a leading legal positivist – analyses the problem of a wicked legal system in a way that brings him close to natural law positions. For he argues that a wicked legal system is botched as a legal system and I show that such an argument entails a prior argument that there is some set of standards or criteria internal to law which are both moral and legal. As a result, the more successful a legal order is legally speaking, the better the moral quality of its law, and the more it is a failure morally speaking, the worse the legal quality of its law. It is such moral features of law that Shapiro concedes make it plausible to account for law’s claim to justified authority over its subjects. However, Shapiro cannot, as a legal positivist, accept this entailment. His book thus brings to the surface and illuminates a central dilemma for legal positivism. If legal positivists wish to account for the authority of law they have to abandon legal positivism’s denial that law has such moral features. If they do not, they should revive a form of legal positivism that specifically abjures any claim to account for law’s normative nature.

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.

Legal positivism

2018 ◽  
Author(s):  
Mario Jori
Keyword(s):  
The State ◽  
Legal Positivism ◽  
Legal Systems ◽  
Value Judgments ◽  
Legal Decisions ◽  
Positive Law ◽  
A Value ◽  
The Law ◽  
Definition Of ◽  
Conceptual Confusion

Legal positivism is the approach in the philosophy of law which treats ‘positive law’ – law laid down in human societies through human decisions – as a distinct phenomenon, susceptible of analysis and description independently of morality, divine law or mere natural reality. It shares with philosophical positivism the aim of dealing in facts, but these are facts about legality and legal systems. Insistence on the distinctness of positive law has been integral to the ‘rule of law ideal’ because of the aim of clear law applied by neutral legal officials. However, debates about positivism have been marred by a degree of conceptual confusion: positivism often appears to mean something different to its supporters and to its enemies, and many attacks are launched against straw men. Consequently, much depends on the definition of legal positivism that is used. Attempts have been made to put some order into the discussion. Consider, for instance, H.L.A. Hart’s list of meanings of legal positivism (which cumulatively count as features of positivism): (1) law as human commands; (2) absence of any necessary connection between law and morals; (3) the study of law as meaning, as distinct from sociology, history and evaluation; (4) the contention that a legal system is a closed system, sufficient in itself to justify legal decisions; (5) non-cognitivism in ethics (Hart 1958). Norberto Bobbio’s list is shorter and more orderly, but at first sight not too different (Bobbio 1960): legal positivism has been conceived as: (1) a neutral, scientific approach to law; (2) a set of theories depicting the law as the product of the modern state, claiming that the law is a set of positive rules of human origin, and ultimately amounting to a set of statutes, collected in legal systems or orders; (3) an ideology of law that gives a value to positive law as such, implying that it should always be obeyed. However, in this list, unlike Hart’s, the ‘meanings’ cannot be added together, the first and last being incompatible. The connection between the three points is as follows: for positivists the theories of Bobbio’s second point (law is made up of rules produced by the state) yield a scientific and value-free approach to law; for the adversaries of legal positivism they yield only ideology, that is hidden value judgments in favour of the power of the State. The shortest way to understand what is at issue in these abstract discussions is to proceed by contrasting legal positivism with its main critics’ approach to law. It is noteworthy that on this point legal realists and natural law theorists, although starting from different and even opposite points of view, agree in concluding that legal positivism is an ideological, covertly evaluative, thesis.

6. Hermeneutics and law

2015 ◽  
Author(s):  
Jens Zimmermann
Keyword(s):  
Natural Law ◽  
Legal Positivism ◽  
Moral Law ◽  
Democratic Ideal ◽  
Legal Realism ◽  
Legal Rules ◽  
Greco Roman ◽  
Positive Law ◽  
Roman Culture ◽  
John Austin

‘Hermeneutics and law’ begins with natural law in Greco-Roman culture and God’s moral law of Christendom. It then explains legal positivism as espoused by John Austin (1790–1859) and the more democratic ideal of Herbert L. A. Hart (1907–92). For Hart, society operates two sets of legal rules: primary rules that tell us not to steal or not to kill, and secondary rules ‘of recognition’ by which primary positive law is recognized and applied in a regulated manner. Critics of legal positivism—legal realism and natural law—are discussed, before concluding that a legal judgment involves more than the mere application of rules. To judge is to interpret.

scholarly journals EXPLORING THE FULL LEGAL PROTECTION OF REFUGEES AND ITS LIMITATIONS WITH REFERENCE TO NATURAL AND POSITIVE LAW

Obiter ◽  
2018 ◽  
Vol 39 (1) ◽  
Author(s):  
Callixte Kavuro
Keyword(s):  
South Africa ◽  
National Security ◽  
Natural Law ◽  
Legal Protection ◽  
Democratic Governance ◽  
Legal Positivism ◽  
Constitutional Rights ◽  
Effective Protection ◽  
Economic Rights ◽  
Positive Law

This article seeks to explore the limitation of the theory of full legal protection by illustrating with facts that the theory does not lack legal force, but rather that various concepts such as citizenship, national security, sovereignty, affirmative action, legal positivism, and democratic governance severely limit the application of theory. In particular, the limitation of full legal protection is analysed through the lens of legal positivism and the natural law doctrines whereby it is argued that the laws of South Africa are framed in the context of legal positivism which does not take cognisance of the moral values on which the natural law doctrine is based. As a result, the full legal protection of constitutional rights of refugees remains in theory. In order to convert this theory into an effective protection, it is argued that although the state has the power inherent in its sovereignty to design and frame laws as it deems best, South Africa should, with the natural law in mind, develop social transformative or remedial measures in such a way that extends constitutional socio-economic rights to refugees in a more favourable way. The article concludes by suggesting the manner in which the severe limitations imposed on the concept of full legal protection can conceptually and rationally be addressed.

scholarly journals Legge morale e legge civile a difesa dell’uomo in Giovanni Paolo II

2007 ◽  
Vol 56 (5) ◽  
Author(s):  
Laura Palazzani
Keyword(s):  
Human Nature ◽  
Natural Law ◽  
Legal Positivism ◽  
Moral Duty ◽  
Individual Autonomy ◽  
Human Being ◽  
Moral Pluralism ◽  
Philosophy Of Law ◽  
Positive Law ◽  
Law And Ethics

L’autore analizza nella prospettiva della filosofia del diritto la questione del rapporto tra diritto e morale nella Evangelium Vitae. In particolare si sofferma ad analizzare le teorie che tematizzano la neutralità del diritto (nella pretesa di separare il diritto dalla morale pluralistica), quali la teoria liberalelibertaria che identifica il diritto con la garanzia dell’autonomia individuale e la teoria democratico-procedurale che fa coincidere il diritto con il voto di maggioranza. Giovanni Paolo II critica i percorsi postmoderni del diritto, riprendendo sul piano filosofico e teologico la dottrina del diritto naturale (in contrapposizione al giuspositivismo), che riconosce nell’uomo i diritti inviolabili e la dignità intrinseca. Nell’orizzonte giusnaturalista, esiste un dovere morale da parte del cittadino a criticare e a non obbedire alle leggi ingiuste e da parte del giurista e del politico ad operare per abrogare, riformarle e riformularle, al fine di adeguare il diritto positivo alle esigenze intrinseche della natura umana. ---------- The author analysis the question of the relation between law and ethics in Evangelium Vitae in the perspective of the philosophy of law. In particular, it focuses on the theories that speak about neutrality of law (separating law from moral pluralism), such as libertarian-liberalism which identifies law with individual autonomy and procedural democracy which identifies law with opinions of majority. John Paul II criticizes postmodern patterns of law, reaffirming on philosophical and theological level the doctrine of natural law (against legal positivism) which recognises in human being the inviolable rights and intrinsic dignity. In this perspective, there is a moral duty on the part of citizen to criticize and not to obey to unjust laws and on the part of jurist and politician to work for an abolition, reform and reformulation of law, to adequate positive law to the intrinsic instances of human nature.

The Political Jurisprudence of Thomas Hobbes

2018 ◽  
Author(s):  
Martin Loughlin
Keyword(s):  
Natural Law ◽  
Thomas Hobbes ◽  
Legal Positivism ◽  
Clear Distinction ◽  
The Political ◽  
Positive Law ◽  
Modern School ◽  
Legal Positivist ◽  
Political Right

What is the significance of Thomas Hobbes’ contribution to jurisprudence? Although often treated as a founder of the dominant modern school of legal positivism, positivists remain embarrassed by the prominence he gives to natural law. This chapter maintains that rather than arguing about whether he is a natural lawyer or a legal positivist, scholars should consider how he drew a clear distinction between natural law and positive law for the purpose of crafting a rich, ambitious, and comprehensive science of law. The chapter’s basic thesis is that Hobbes is engaged in the task of constructing a science of ‘political right’.

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.

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