Natural law

2018 ◽  
Author(s):  
John Finnis
Keyword(s):  
Human Rights ◽  
General Theory ◽  
Natural Law ◽  
Legal Theory ◽  
Human Life ◽  
Moral Discourse ◽  
Crimes Against Humanity ◽  
Natural Law Theory ◽  
Higher Law ◽  
Good And Evil

When made within the discourse of ethics, political theory, or legal theory or philosophy of law, the claim that there is a natural law is an offer to explain and defend certain claims often made, in different terms, in the discourse of moral argument, politics or law. In pre-theoretical moral discourse, certain choices, actions or dispositions may be asserted to be ‘inhuman’, ‘unnaturally cruel’, ‘perverse’ or ‘morally unreasonable’. In pre-theoretical political discourse, certain proposals, policies or conduct may be described as violations of ‘human rights’. In international law and jurisprudence, certain actions may be described as ‘crimes against humanity’ and citizens may claim immunity from legal liability or obligations by appealing to a ‘higher law’. A natural law theory offers to explain why claims of this sort can be rationally warranted and true. It offers to do so by locating such claims in the context of a general theory of good and evil in human life so far as human life is shaped by deliberation and choice. Such a general theory can also be called a general theory of right and wrong in human choices and actions. It will contain both (1) normative propositions identifying types of choice, action or disposition as right or wrong, permissible, obligatory and so on, and (2) non-normative propositions about the objectivity and epistemological warrant of the normative propositions.

scholarly journals God, New Natural Law Theory, and Human Rights

Religions ◽  
2021 ◽  
Vol 12 (8) ◽  
pp. 613
Author(s):  
Christopher Tollefsen
Keyword(s):  
Human Rights ◽  
Natural Law ◽  
Two Dimensions ◽  
Natural Rights ◽  
Creative Activity ◽  
Adequate Account ◽  
Full Theory ◽  
Natural Law Theory ◽  
Epistemological Dimension

Critics of the “New” Natural Law (NNL) theory have raised questions about the role of the divine in that theory. This paper considers that role in regard to its account of human rights: can the NNL account of human rights be sustained without a more or less explicit advertence to “the question of God’s existence or nature or will”? It might seem that Finnis’s “elaborate sketch” includes a full theory of human rights even prior to the introduction of his reflections on the divine in the concluding chapter of Natural Law and Natural Rights. But in this essay, I argue that an adequate account of human rights cannot, in fact, be sustained without some role for God’s creative activity in two dimensions, the ontological and the motivational. These dimensions must be distinguished from the epistemological dimension of human rights, that is, the question of whether epistemological access to truths about human rights is possible without reference to God’s existence, nature, or will. The NNL view is that such access is possible. However, I will argue, the epistemological cannot be entirely cabined off from the relevant ontological and motivational issues and the NNL framework can accommodate this fact without difficulty.

On American Values, Unalienable Rights, and Human Rights: Some Reflections on the Pompeo Commission

2020 ◽  
Vol 34 (1) ◽  
pp. 13-31 ◽  
Author(s):  
Mathias Risse
Keyword(s):  
Human Rights ◽  
Foreign Policy ◽  
Natural Law ◽  
American Foreign Policy ◽  
Economic Rights ◽  
Declaration Of Independence ◽  
American Values ◽  
Natural Law Theory ◽  
Per Se ◽  
The U.S

AbstractIn July 2019, Secretary of State Mike Pompeo launched a Commission on Unalienable Rights, charged with a reexamination of the scope and nature of human rights–based claims. From his statements, it seems that Pompeo hopes the commission will substantiate—by appeal to the U.S. Declaration of Independence and to natural law theory—three key conservative ideas: (1) that there is too much human rights proliferation, and once we get things right, social and economic rights as well as gender emancipation and reproductive rights will no longer register as human rights; (2) that religious liberties should be strengthened under the human rights umbrella; and (3) that the unalienable rights that should guide American foreign policy neither need nor benefit from any international oversight. I aim to show that despite Pompeo's framing, the Declaration of Independence, per se, is of no help with any of this, whereas evoking natural law is only helpful in ways that reveal its own limitations as a foundation for both human rights and foreign policy in our interconnected age.

The Islamic Perspective on Freedom and Human Rights

2020 ◽  
pp. 43-90
Author(s):  
Rached Ghannouchi
Keyword(s):  
Human Rights ◽  
Legal Theory ◽  
Literal Meaning ◽  
Islamic Perspective ◽  
The Subject ◽  
Good And Evil ◽  
Legal Meaning

This chapter expounds on the Islamic perspective on freedom and human rights, and draws references from multiple Islamic thinkers on the subject. It asserts that freedom, according to the Islamic worldview, is a trust, a responsibility, an awareness of the truth, a commitment to follow it, and a dying to self for its sake. According to its literal meaning, freedom is permission and choice, or simply following one's instincts. Freedom is thus the power to choose between good and evil—a divinely appointed responsibility. Furthermore, according to the specialists in legal theory, in its ethical and legal meaning freedom means “conformity.” Freedom is to exercise responsibility in a positive way, fulfilling one's duty in in a spirit of obedience by following what is commanded and avoiding what is forbidden.

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.

scholarly journals GROUNDS OF LAW AND LEGAL THEORY: A Response

Legal Theory ◽  
2007 ◽  
Vol 13 (3-4) ◽  
pp. 315-344 ◽  
Author(s):  
John Finnis
Keyword(s):  
Natural Law ◽  
Common Good ◽  
Legal Theory ◽  
Moral Judgments ◽  
The Rule Of Law ◽  
Sound Theory ◽  
Questions And Answers ◽  
The Face ◽  
Natural Law Theory ◽  
Good For

Linking theses of Plato, Wittgenstein, and Weber, section I argues that identification of central cases and settling of focal meanings depend upon the theorist's purpose(s) and, in the case of theory about human affairs—theory adequately attentive to the four irreducible orders in which human persons live and act—upon the purposes for which we intelligibly and intelligently act. Among these purposes, primacy (centrality) is to be accorded (by acknowledgement, not fiat) to purposes which are, as best the theorist can judge, reasonable and fit to be adopted by anyone, the theorist included. Section II defends the reasonableness (and hence entitlement to universal assent) of practical and moral judgments, against Michael Perry's ultimately nihilist claims that egoism's challenge to moral normativity has gone unanswered and that “reason for A” does not entail “reason for” anyone else. Section III takes up Steven Smith's suggestion that such subjectivism is encouraged by the talk in Natural Law and Natural Rights of “pursuing goods,” talk which (he argues) is individualistic and neglectful of (other) persons, inimical to an understanding of friendship, and impotent in the face of egoism. Here as elsewhere the key is to grasp that understanding any basic or intrinsic human good is to understand it as good for anyone like me and thus—since as I instantiate and embody a universal, viz. human being—as a good common to (good for) anyone and everyone. Section IV argues that common good (which includes respect for human rights, and the Rule of Law) gives reason for exercise and acceptance of authority, and for allegiance, even (and in a sense, especially) in time of breakdown. Section V argues that natural law theory is no more dependent on affirming God's existence than any other theory is, in any of the four orders of theory, but equally that is not safe for atheists. For, like any other sound theory, it suggests and is consistent with questions and answers about its grounds, in this case about the source of its normativity and of the human nature that its normative universals presuppose and affirm; and the answers are those argued for, too abstemiously, in the last chapter of NLNR and, more adequately, in the equivalent chapter of Aquinas.

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.

Burke and Natural Rights

1951 ◽  
Vol 13 (4) ◽  
pp. 441-456 ◽  
Author(s):  
Russell Kirk
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Natural Law ◽  
Natural Rights ◽  
Edmund Burke ◽  
Close Attention ◽  
Human Race ◽  
Moral Principles ◽  
Natural Law Theory ◽  
The Church

Edmund Burke was at once a chief exponent of the Ciceronian doctrine of natural law and a chief opponent of the “rights of man.” In our time, which is experiencing simultaneously a revival of interest in natural-law theory and an enthusiasm for defining “human rights” that is exemplified by the United Nations' lengthy declaration, Burke's view of the natural juridic order deserves close attention.Unlike Bolingbroke and Hume, whose outward politics in some respects resembled the great Whig statesman's, Burke was a pious man. “The most important questions about the human race Burke answered … from the Church of England's catechism.” He takes for granted a Christian cosmos, in which a just God has established moral principles for man's salvation. God has given man law, and with that law, rights; such, succinctly, is Burke's premise in all moral and juridical questions.

scholarly journals Jhon Austin's Positivism Legal Policy: Convergence of Natural Law

2021 ◽  
Vol 8 (9) ◽  
pp. 401
Author(s):  
Arief Budiono ◽  
Dewi Iriani ◽  
Nunik Hariyani ◽  
Erma Ullul Janah
Keyword(s):  
Natural Law ◽  
Legal Theory ◽  
Human Life ◽  
Ancient Greece ◽  
Legal Positivism ◽  
Legal Research ◽  
Legal Policy ◽  
The Law ◽  
State Of Power ◽  
John Austin

Legal positivism is influenced by natural law from Ancient Greece, natural law comes from God to regulate human life. Humans were created by reason by God to make rules, John Austin stated that to make a rule sourced from orders or policies in the field of law by the king or parliament as the highest authority. This influenced the thinking of Hans Klesen with a pure legal theory that complies with hierarchical rules and sanctions, Hart's legal positivism explains that law comes from morals that regulate one's behavior. This paper is in the form of legal research in literature studies in the form of books and journals that discuss positivism legal policy, which is legal research, then analyzed using the John Austin doctrine. The advantage of the influence of natural law on legal positivism according to Austin is that it divides the law into two forms, namely the law from God for humans (the divine law), the law created by God for His creatures. Laws are compiled and made by humans, which consist of: Laws that are actually positive laws (properly so called), and laws that are not actually laws (improperly so called). 2. The doctrine of legal positivism, state power must be limited and controlled by law, the state must be constructed as a state of law and not a state of power. Every citizen is considered to have the same position, law enforcers to think and act legally formalistically, by placing legal justice as the goal of law.

scholarly journals A teoria do direito natural no tempo pós-moderno

2018 ◽  
Vol 1 (39) ◽  
Author(s):  
Carlos I. Massini Correas
Keyword(s):  
Modern Philosophy ◽  
Natural Law ◽  
Legal Theory ◽  
Current Status ◽  
Contemporary Philosophy ◽  
Modern Conception ◽  
Modern Age ◽  
The Subject ◽  
Natural Law Theory ◽  
Almost All

RESUMOAssim como em quase todas as matérias, é conveniente fazermos um pouco de história para compreendermos a situação atual da teoria do direito. No caso deste trabalho, vamos remontar apenas até a Idade moderna, pois, como bem diz Daniel Innerarity, “a filosofia contemporânea transformou-se numa reflexão sobre a modernidade”. Esquematizando muito, por razões elementares de brevidade, podemos afirmar que é possível diferenciar três traços centrais na filosofia moderna: a) perda da noção teleológica de natureza; b) aparição da concepção moderna do sujeito; c) imanentização do pensamento. PALAVRAS-CHAVEDireito Natural. Pós-modernidade. Filosofia contemporânea. Jusnaturalismo.ABSTRACTAs in almost all disciplines, it is convenient to study a bit of history in order to understand the current status of legal theory. In the case of this paper, we will remount only until Modern Age, for, as says correctly Daniel Innerarity, “contemporary philosophy has turned itself into a reflection on modernity”. Outlining considerably, for elementary reasons of brevity, we can affirm that it is possible to discriminate three central features in modern philosophy: a) the loss of the theological notion of nature; b) the emergence of the modern conception of the subject; c) the immanentization of thought.KEYWORDSNatural Law. Post-modernity. Contemporary philosophy. Natural Law theory. 

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