scholarly journals The Problem of Natural Law in the Works of Ivan Ilyin and Leo Strauss

2021 ◽  
pp. 105-119
Author(s):  
Il’ya V. Demin ◽  
Keyword(s):  
Religious Experience ◽  
Natural Law ◽  
Comparative Method ◽  
Research Process ◽  
Philosophical Tradition ◽  
Legal Consciousness ◽  
Leo Strauss ◽  
Positive Law ◽  
Main Challenge ◽  
Legal Thinking

This article provides a comparative analysis of two interpretations and methodological strategies of substantiating the idea of natural law, which belong to Ivan Ilyin and Leo Strauss. The comparative method was used in the research process, while the problem-topic method was applied to the analysis and presentation of the material. The two interpretations of natural law were compared on the basis of the following criteria: 1) interpretation of the principle of historicism and assessment of its prospects for substantiating natural legal thinking; 2) correlation between natural and positive law; 3) interpretation of the essence of philosophy, relationship between the general understanding of the nature of philosophical knowledge and the principles of natural legal thinking; 4) correlation between law and religion. Both Ilyin and Strauss saw in natural law an invariant basis of positive law. Criticism of the principle of historicism (understood as relativism) is a conceptual prerequisite for the reactualization of the idea of natural law in the works of both philosophers. However, Ilyin sees in historicism an annoying prejudice and a product of a “sick” legal consciousness, while Strauss views historicism as the main challenge facing the classical philosophical tradition. The differences in the substantiation of natural law by the two philosophers stem from the differences in their understanding of the nature of philosophical knowledge. For Ilyin, philosophy begins with studying the meaning of axioms, while for Strauss, philosophy as “knowledge of ignorance” begins with a critical formulation and comprehension of fundamental questions. The most significant differences in the philosophical and legal concepts of Ilyin and Strauss are associated with the problem of the relationship between law and religion. According to Strauss, the universal rationaltheoretical substantiation of the idea of natural law cannot refer to religious experience and be based on revelation. According to Ilyin, the reference of the philosophy of law to religious experience is necessary, because normal legal consciousness has an essentially religious nature.

scholarly journals Synergy of legal impact

2019 ◽  
Vol 15 (3) ◽  
pp. 23-31
Author(s):  
Lyudmila N. Berg
Keyword(s):  
Social Relations ◽  
Systems Approach ◽  
Research Process ◽  
Legal Consciousness ◽  
Legal Information ◽  
Legal Thinking ◽  
General Scientific ◽  
The Subject ◽  
Definition Of

Introduction. The modern legal system is unthinkable without the creation, transmission, exchange, movement of legal information. Indeed, the full cycle of legal development (from legal thinking to law enforcement) implies the perception, creation, change, transfer of legal information. Through legal influence a permanent and multidirectional movement of legal information is carried out, as well as its reflection in the legal consciousness of the subject and subsequent incarnation in behavior. The significance and role of legal influence is clearly manifested precisely in the fact that legal information, for example, contained in the text of the legal norm, being brought to the consciousness of a person, becomes an effective force directing and regulating the behavior of the subject.Materials and methods. Universal (philosophical), general scientific, private scientific (private law) methods of cognition were used in the research process, including dialectical, logical and formal-legal methods. The specificity of the subject of the study led to the use of information and systems approach.Results. The author formulates the definition of legal information as a set of information and other data that are presented in legal acts, regulatory and technical, reference and scientific materials, as well as legal information created and transmitted by subjects in the course of their interaction, which results in the streamlining of social relations of subjects. It is noted that legal information may be formal and informal.Discussion and conclusion. The author comes to the conclusion that the synergy of legal influence is the effect of increasing efficiency through the use of interconnection and mutual reinforcement of the «work» of different elements and components of legal influence based on the movement of legal information.

scholarly journals THE IDEA OF HISTORICAL AND THE THEORY OF NATURAL LAW IN THE TEACHING OF F.K. SAVIGNY

2021 ◽  
pp. 55-64
Author(s):  
А.М. Денисов ◽  
А.С. Комаров ◽  
Д.В. Масленников
Keyword(s):  
Natural Law ◽  
Historical Development ◽  
Legal Consciousness ◽  
Positive Law ◽  
Legal Science

В статье анализируется принцип историзма, введенный Ф.К. фон Савиньи в правовую науку, что позволило ему максимально сблизить естественное право и позитивное право, которые он трактовал как два момента исторического развития «всеобщего народного духа» и народного правосознания. Автор доказывает, что иррационализм Ф.К. фон Савиньи, распространенный на системообразующее понятие «народного духа», является следствием ограниченности его методологических возможностей в теоретической сфере. The article analyzes the principle of historicism introduced by F.K. von Savigny into legal science, which allowed him to bring natural law and positive law as close as possible, which he interpreted as two moments in the historical development of the "general popular spirit" and popular legal consciousness. The author proves that the irrationalism of F.K. von Savigny, extended to the system-forming concept of "folk spirit", is a consequence of the limited methodological capabilities in the theoretical sphere.

scholarly journals Human Rights and Human Nature

2016 ◽  
Vol 28 (4) ◽  
pp. 523-534
Author(s):  
Jean Rhéaume
Keyword(s):  
Human Rights ◽  
Human Nature ◽  
Natural Law ◽  
Historical Context ◽  
Human Being ◽  
Positive Law

At least two important consequences follow from the fact that human rights are based on human nature. First, they exist according to natural law even in cases where positive law does not recognize them. Secondly, they cannot evolve because the nature and purpose of the human being does not change: only their formulation and level of protection in positive law can vary according to the socio-historical context.

The Science of Comparative Law

1939 ◽  
Vol 7 (1) ◽  
pp. 94-110 ◽  
Author(s):  
M. Schmitthoff
Keyword(s):  
Comparative Method ◽  
Comparative Law ◽  
The Other ◽  
Definite Function ◽  
Special Study ◽  
Legal Systems ◽  
Legal Problem ◽  
Positive Law ◽  
Legal Science ◽  
The Law

In the course of the recent revival of the study of Comparative Law, repeated attempts have been made to define the nature and province of this branch of the law. Some writers maintain that Comparative Law represents a method of study rather than a department of legal science. They point to the fact that the technique of comparing different legal systems can be employed in almost every branch of the law and that Comparative Law, unlike the branches of positive law, does not fulfil a definite function in the life of society. In particular, writers on jurisprudence and history such as J. Bryce, Holland and Professor Jenks are inclined to subscribe to this view. Among the jurists who have made a special study of Comparative Law, Professor Gutteridge and Professor Kaden are strongly in favour of this view. Professor Gutteridge says: ‘The comparative method lends itself to the study of any branch of legal learning.’ According to Professor Kaden, it is the province of Comparative Law to disclose the points of agreement and difference in the solution which is provided by several legal systems for the same legal problem. The learned writer denies, however, that it is the function of Comparative Law to found a system of legal abstractions on the results of factual comparison. On the other hand, a number of students of Comparative Law consider their subject as a special branch of the science of law. Professor Saleilles, Professor Lambert and Professor Rabel support this view.

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.

Substitutes for Natural Law

2021 ◽  
pp. 188-221
Author(s):  
Stuart Banner
Keyword(s):  
Natural Law ◽  
Legal Thought ◽  
Positive Law ◽  
Fresh Perspective

This chapter offers a fresh perspective on some familiar aspects of the legal thought of the late 19th and early 20th centuries, by connecting them to the decline of natural law. Much of what we now call classical legal thought can be understood as the profession’s attempt to find a substitute for natural law, either by replicating the method of natural law with principles found elsewhere than in nature or by bringing natural law into the courtroom indirectly through positive law. At the same time, the decline of natural law led to the emergence of the view that judges are makers, not finders, of law.

Review of Hans J. Morgenthau, Dilemmas of Politics, and Correspondence (University of Chicago Press; and London, Cambridge University Press, 1958)

2021 ◽  
pp. 321-323
Author(s):  
Martin Wight
Keyword(s):  
Political Science ◽  
Natural Law ◽  
Political Action ◽  
National Interest ◽  
The State ◽  
Leo Strauss ◽  
Cambridge University ◽  
Factual Error ◽  
Moral Principles ◽  
University Of Chicago Press

In Wight’s view, ‘Perhaps the most interesting thing about this book is that it does not mention Morgenthau’s colleague at Chicago, Leo Strauss [ … ] Agreed in their concern about the retreat of political science into “the trivial, the formal, the methodological, the purely theoretical, the remotely historical”, they are divided by the gulf of natural law.’ Morgenthau asserted, however, that Wight in his review had made ‘a factual error’. Morgenthau quoted another one of his books, In Defense of the National Interest: ‘There is a profound and neglected truth hidden in Hobbes’s extreme dictum that the state creates morality as well as law and that there is neither morality nor law outside the state. Universal moral principles, such as justice or equality, are capable of guiding political action only to the extent that they have been given concrete content and have been related to political situations by society.’ Morgenthau wrote in criticism of Wight’s review: ‘To say that a truth is “hidden” in an “extreme” dictum can hardly be called an endorsement of the dictum. To call a position “extreme” is not to identify oneself with the position but to disassociate oneself from it. In the quoted passage I was trying to establish the point, in contrast to Hobbes’s, that moral principles are universal and, hence, are not created by the state.’ Wight replied: ‘I am sorry to have misinterpreted Professor Morgenthau, but I rejoice that my error has evoked an authoritative exegesis of a disputed passage.’

Sources and the Legality and Validity of International Law

2018 ◽  
Author(s):  
Mary Ellen O’Connell ◽  
Caleb Day
Keyword(s):  
International Law ◽  
Natural Law ◽  
Ancient Greece ◽  
Global Community ◽  
Positive Law ◽  
History Of

This chapter posits that international law, like all law, can be understood as a hybrid of positive and natural law. The history of natural law from Ancient Greece to today’s global community reveals that the method used for centuries to explain extra-positive features of law consists of three integral elements. The method uses reason, reflection on nature, and openness to transcendence. Certain contemporary natural law theorists, however, prefer to focus on reason and nature alone. Yet, the history of natural law thinking shows that transcendence is integral to the method. History also reveals that religion is not the only avenue to transcendence. Transcendence completes a natural law method capable of explaining persuasively why law binds in general and why certain principles are superior to positive law.

Deriving natural law from the Decalogue, natural inclination and God's silence

2019 ◽  
Vol 72 (03) ◽  
pp. 265-276
Author(s):  
Nicholas E. Lombardo
Keyword(s):  
Natural Law ◽  
Practical Reasoning ◽  
Proper Understanding ◽  
Human Thought ◽  
Positive Law ◽  
Concrete Experience ◽  
Natural Tendency ◽  
The World ◽  
Natural Inclination

AbstractAmanda Perreau-Saussine de Ezcurra saw positive law as a resource for uncovering natural law. She also saw our natural inclinations, especially our natural sociability and our natural tendency toward benevolence, as crucial to a proper understanding of natural law. Drawing on these two foundational ideas of hers, this article will look at the Decalogue, the pre-eminent example of divine positive law, and then our concrete experience of desire, as revelatory of what she called ‘a law-like ordering of the world prior to human thought and action, a natural ordering that constrains practical reasoning’. To her characteristic concerns, it will add attention to God's silence.

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