D. Human Rights in a Legal Theoretical Systematic Approach: Natural Law Theory and Legal Positivism

2017 ◽  
pp. 157-205
Author(s):  
Despoina Glarou
Keyword(s):  
Human Rights ◽  
Natural Law ◽  
Systematic Approach ◽  
Legal Positivism ◽  
Natural Law Theory

On the Artifactual—and Natural— Character of Legal Institutions

2018 ◽  
Author(s):  
Corrado Roversi
Keyword(s):  
Natural Law ◽  
Common Ground ◽  
Legal Positivism ◽  
Legal Institutions ◽  
Human Beings ◽  
Legal Realism ◽  
Natural Law Theory ◽  
The Law ◽  
Theory Of Law

Are legal institutions artifacts? If artifacts are conceived as entities whose existence depends on human beings, then yes, legal institutions are, of course, artifacts. But an artifact theory of law makes a stronger claim, namely, that there is actually an explanatory gain to be had by investigating legal institutions as artifacts, or through the features of ordinary artifacts. This is the proposition explored in this chapter: that while this understanding of legal institutions makes it possible to find common ground between legal positivism and legal realism, it does not capture all of the insights offered by these two traditions. An artifact theory of law can therefore be necessary in explaining the law, but it will not suffice to that end. This chapter also posits that legal artifacts bear a relevant connection to certain conceptions of nature, thus vindicating one of the original insights behind natural law theory.

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.

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.

scholarly journals Rozumowanie prawnicze jako rozumowanie praktyczne w świetle nowej teorii prawa naturalnego Johna M. Finnisa

2020 ◽  
pp. 84-98
Author(s):  
Michał Sopiński
Keyword(s):  
Natural Law ◽  
Practical Reasoning ◽  
Legal Reasoning ◽  
Legal Positivism ◽  
Contemporary Philosophy ◽  
Critical Approach ◽  
New Approach ◽  
Joseph Raz ◽  
Natural Law Theory ◽  
The One

This paper presents practical reasoning in the light of John M. Finnis’ new natural law theory. Finnis’ views were shaped by Aquinas’ thoughts on natural law but he was also strongly inspired by Germain Grisez’ new approach, so his theory could be named a new natural law theory. The aim of this paper is to analyse the concept of legal reasoning as practical reasoning, which Finnis intended mainly as a strong critique of Ronald Dworkin’s theory of legal reasoning based on the concept of the one right answer. According to the author of this paper, Finnis’ critical approach to Dworkin leads to a gradual extension of the former’s concept of legal reasoning to include positivistic aspects (rapprochement with Joseph Raz’ views) and institutional aspects (rapprochement with Neil MacCormick’s views). Therefore, Finnis’ theory of legal reasoning seems to be a model example of the rapprochement between natural law and legal positivism in contemporary philosophy of law.

scholarly journals One Myth of the Classical Natural Law Theory: Reflecting on the “Thin” View of Legal Positivism

Ratio Juris ◽  
2018 ◽  
Vol 31 (1) ◽  
pp. 9-32
Author(s):  
Veronica Rodriguez-Blanco ◽  
Pilar Zambrano
Keyword(s):  
Natural Law ◽  
Legal Positivism ◽  
Natural Law Theory

scholarly journals The logical foundations of constitutional democracy between legal positivism and natural law theory

Public Choice ◽  
2021 ◽  
Author(s):  
Hartmut Kliemt
Keyword(s):  
Natural Law ◽  
Constitutional Law ◽  
Legal Positivism ◽  
Veto Power ◽  
Constitutional Economics ◽  
Constitutional Democracy ◽  
Substantive Content ◽  
Logical Foundations ◽  
Natural Law Theory ◽  
Knowledge Claims

AbstractRejecting all knowledge claims concerning right and wrong in matters practical James Buchanan concurred with legal positivism that invalid law cannot be identified by its substantive content but only by an inherited defect in its factual creation. Beyond correct creation Buchanan proposed as a quasi-natural law constraint that unanimity in the shadow of individual veto power must at least be conceivable if a norm is to be law. The emerging hybrid conception of constitutional law is symptomatic for Buchanan’s never-ending but ultimately futile efforts to incorporate Kantian ideals of interpersonal respect into constitutional economics without imposing them as personal values.

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.

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