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 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 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.

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 DEVELOPMENT OF CIVIL SOCIETY AND COMMUNICATION PROPERTIES OF LEGAL SCIENCE

2021 ◽  
Author(s):  
Nataliia Onishchenko
Keyword(s):  
Civil Society ◽  
Civic Education ◽  
Legal Culture ◽  
The State ◽  
Legal Consciousness ◽  
Legal Science ◽  
Law Making

The article is devoted to the value-communicative potential of modern legal science in building a mature, active civil society. In particular, the role of legal science in establishing the general discussion between man, civil society and the state is emphasized. A separate vector of consideration is the coverage of the role of legal science in modern law-making processes: increasing the role of legal culture, legal consciousness, overcoming the phenomena of legal nihilism and legal pessimism, as well as the importance of civic education in modern democratic processes.

scholarly journals Historical development of administrative dispute in legal science

Bastina ◽  
2018 ◽  
pp. 181-190
Author(s):  
Milena Jakšić ◽  
Milan Macura
Keyword(s):  
Historical Development ◽  
Legal Science

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.

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.

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