Concept Of Natural Law Research Articles

Theories of constitutional interpretation in the United States of America

The article substantiates the judgment that in relation to that in relation to the theories of constitutional interpretation in the United States, paradigms constructed according to the type of binary opposition (originalism –the concept of natural law), are clearly insufficient. Therefore, private legal theories, which are theories of constitutional interpretation of the United States, should take into account the basic principles and institutions, doctrines of the branch of Constitutional Law of the United States: the concept of a “living constitution”, the theory of judicial precedent, procedural aspects of Constitutional Law, structuralist theories.

Restitution of African Cultural Heritage: Revisiting Natural Law Concepts of Statehood and Property in the Context of Colonial Spoliation

Abstract In the late nineteenth century, Western Powers launched military campaigns in sub-Saharan Africa resulting in the colonization of vast territories and the spoliation of cultural property. To justify the conquest, they asserted the supremacy of Western culture and disregarded principles of international law in their dealings with African states, communities, and individuals. This article examines colonialist legal justifications such as the denial of statehood of pre-colonial sub-Saharan African societies, the notion that conquest and spoliation were justifiable, and the belief that African legal systems lacked concepts of property. The article details why these arguments contradict well-established nineteenth-century legal principles, particularly state sovereignty and private property, which together form the conceptual basis for the prohibition of spoliation. The universal nature of those principles allows for the nondiscriminatory application and interpretation of historical law and consequently the protection of African pre-colonial states and private as well as public cultural property.

How to explain the phenomenon of law – part II

The following article is divided into two parts. Its purpose is to briefly review the competing ways of understanding the law. The first presents the concepts of natural law with its variant- the law of nature with variable content and legal positivism (classical, the theory of "pure law" by Hans Kelsen, refined positivism), Gustaw Radbruch's formulas and the relations between them.The second part discusses the realistic concept of law (American realism, legal psychologism of Leon Petrażycki and Scandinavian ones), the concepts of the so-called the third way (hermeneutics, communication theory of law, the rhetorical concept of Chaim Perelman's law) and a multifaceted approach to law.

Formation and development of the idea of guaranteeing human and civil rights and freedoms in the theoretical and legal heritage of Ukraine

The article is devoted to the analysis of historical development and formation of the ideas of guaranteeing human and civil rights and freedoms in the context of the theoretical and legal heritage of Ukraine. The author examines the key stages of the evolution of legal ideas, from ancient times to the present, noting the influence of different historical periods on the formation of the modern concept of human rights. Knowledge of the historical experience and theoretical foundations of human rights guarantees helps to formulate strategies and policies that can ensure real protection of fundamental rights and freedoms in conditions when they are threatened by external aggression and internal challenges. The article focuses on the importance of developing a natural law concept based on the principles of freedom, equality and justice, which are considered fundamental to understanding human rights. A special place in the analysis is occupied by the study of the Lithuanian Statute, Magdeburg Lawand the role of polemical works in the development of legal consciousness. The authors point to the multifaceted approaches to the study of human rights, their origin, content and relationship with the state, emphasising the importance of democratic regimes in the consolidation and enforcement of rights and freedoms. The conclusions emphasise that the notion of human rights as natural and primary is crucial for the development of Ukrainian political and legal thought, which contributed to the formation of the rule of law and civil society in Ukraine. In the context of post-war reconstruction, the authors emphasise the critical importance of respecting and ensuring human rights and freedoms as a basis for the restoration and development of a democratic society. Democratic regimes that uphold the principles of freedom, equality and justice are key to the effective reconstruction and stabilisation of society. The adoption of international human rights standards and their integration into national policies will be key to successful post-war reconstruction, while laying a solid foundation for Ukraine’s future development.

Exploring the nexus between law and morality: ethical considerations in legal studies

This publication aims to furnish a comprehensive examination of the ethical elements inherent in the roles of judges, prosecutors, attorneys, and notaries, elucidating their influence on the content of pertinent legal statutes governing the professional status of these legal vocations. The research employed various methodologies, encompassing the analytical method, the synthetic method, the method of scientific generalization, the method of interpreting legal norms, and the formal-logical method. The examination of legal understanding from a moral and ethical perspective involves the scrutiny of two principal concepts: the concept of natural law and the concept of legal positivism. This analytical framework enables the author to assert that a hallmark of progressive law-making lies in the adherence to not only the tenets of natural human rights but also moral and ethical principles during the formulation of legislative acts. In the context of the role and significance of ethics in the professional conduct of judges, prosecutors, attorneys, and notaries, the author undertakes an analysis of pertinent Ukrainian laws. It is asserted that within each of the examined legal enactments, ethical requirements assume a predominant role in the regulation of the legal status of practitioners in the specified legal professions. For instance, the non-violation of rules of professional ethics is delineated as a fundamental duty for specific categories of legal practitioners, with breaches serving as grounds not only for disciplinary consequences but also for the termination of the authority. Building upon the aforementioned observations, it is affirmed that the ethical dimensions of jurisprudence hold significance within contemporary legal discourse across three dimensions: adherence to moral and ethical principles in the crafting of legislative instruments; avoidance of breaches against ethical principles in the course of judicial, prosecutorial, attorney-at-law, and notarial activities; and the imperative that moral and ethical requirements remain inviolate during the preparation of legally consequential documents.

Концепт естественного права в контексте теории антисистем

The article offers and justifies a new version of the origin of the theory of natural law. The authors suggest con-sidering the ideological origins of the concept of human rights in the context of the theory of anti-systems. After all, the ideological basis of this concept both in antiquity and in the Middle Ages was precisely heretical anti-systemic movements. Analyzing the concept of natural law, the authors show that this concept is revolutionary not only in social, but also in structural terms, since its position calls into question the structural matrix of civiliza-tion, all cultural and historical institutions. Thus, this concept represents a structural revolution against a formal-ized cultural-historical existence. Besides, the article reveals the relationship between the ideology of natural law and modern “eco-ideology”, attempts to introduce digital slavery and esoterism. It justifies the idea that the concept of “natural man”, as the basis of natural law, is an esoteric mechanism when, without publicly renounc-ing the content of a cultural tradition, the main worldview issues are interpreted directly opposite to this tradition.

СОЦІОЛОГІЗАЦІЯ ПРИРОДНОГО ПРАВА: ДО ПИТАННЯ ПРО СУМІСНІСТЬ ТИПІВ ПРАВОРОЗУМІННЯ

The article presents research of the widespread tendency to justify the concept of natural law within empirical sociocultural and anthropological factors in order to deprive it of its metaphysical character, which corresponds to sociological methodology. Emphasis is laid on the assumption of fundamental compatibility of the concepts of natural and sociological law, which, according to the author, is false. This outlines the related goal of the thesis that lies in proving formal logical and methodological incompatibility of the aforementioned concepts as well as inability of the sociological interpretation of natural law to solve the problem of lack of trust therein. Emphasis is also laid on inability of sociological methodology to solve the problem of ethical justification of the correctness of legal standards and behavior, which is clearly manifested in the projections of legitimacy and values. It is emphasized that the ethical foundations of law are not derived from the actual condition and require absolute values of transcendent (metaphysical) nature. The conclusion is made that natural law and sociological law are comparable but logically incompatible concepts, since they are formed according to opposite essential features determining the oppositeness of the elements that constitute their scope. In addition, the notions and concepts under research are opposite according to the ontological principles of origin and essence as well as according to the cognitive ideals forming the principles of their methodology. Together, this makes it possible to insist on the oppositeness of their nature. However, their oppositeness does not exclude complementarity in performance of the methodological work they do, albeit in their own way. Therefore, the gaps in knowledge of the ontological foundations of the theory of natural law are not a reason to abandon its instrumental capabilities as a value-oriented measure for the norms established by people. To restore trust in natural law, sociologization thereof is not enough, since the empirical methodology of sociologism creates only the illusion of solution to the problem of justifying the ethical foundations of the legal order solved by the concept of natural law in a different cognitive way. Key words: natural law, sociological law, sociologization of natural law, sociological methodology, metaphysics, legitimacy, values.

Preliminary comments on the genesis of the concept of natural law in the approach taken by St. Isidore of Seville

Preliminary comments on the genesis of the concept of natural law in the approach taken by St. Isidore of Seville

Natural law and the rights of nature – in search of more effective environmental protection

The paper discusses innovative legal regulations that may contribute to increasing standards ofenvironmental protection. In the face of increasing nature degradation and climate change, current protection measures are insufficient. The dysfunction of the political system, international institutionalisation, and existing legal regulations, result in the strengthening of the global economy instead of increasing the extent of activities aimedattheprotection of nature. It is argued that the concept of natural law, which focuses on the protection of human rights, is not the same as the rights of nature. However, the analysis of the origins and axiological and legal assumptions of boththese concepts allows us to formulate the conclusion that both can form a common ethical perspective needed in order to protect the community of life on Earth. The aim of the considerations is to discuss the concept of the rights of nature, which are the basis for shaping the new environmental ethics. Appealing to common axioms, the idea of the rights of nature favours overcoming the limitations resulting from property law and the currently dominant economic and utilitarian factors. The paper arguesthat the environmentally-profiled rights of nature can become an ally in environmental protection.

In Search of Common Ground: How Can Eastern Orthodox Theology Develop a Natural Law Theory?

While natural law theory plays an important role for Catholic moral theology, it is true that Orthodox ethics has not endeavoured to develop its own theory of natural law. This article demonstrates the existence of the concept of natural law in Eastern Orthodox theology and argues that the main reason for this neglect is Eastern Christianity's traditional focus on faith rather than reason. In addition, the author, based on biblical and patristic grounds, highlights the necessity for a balance between the two to be found and provides a way in which Orthodox moral theology could develop a natural law theory, should it ever feel the need to do so, by first redefining its relationship with the science of philosophy, after so many years of disregard.

Human Rights in Islamic Law and the Integration of Muslims in European Countries

The steady growth of Muslim communities in European countries makes possible conflict situations due to the difference between Eastern and Western worldviews. The study of the European experience of finding possible ways to overcome intercultural crisis situations is relevant and expedient from the point of view of possible further implementation into national legislation. To achieve the goal, a set of methods was used: dialectical (for objectivity and comprehensive knowledge of the institution of human rights, taking into account various factors (in particular, religion), formal-legal method (for establishing the content of legal norms, analyzing the practice of their application), methods of analysis and synthesis (for the analysis of the constitutional legislation of foreign countries, which enshrines human rights and freedoms) and others. The comparative legal method was used as the leading one. The article compares Muslim and European approaches to the nature and content of human rights. The key characteristics of the legal status of a person, peculiar to Islamic law, are highlighted in the aspect of bringing such an understanding of human rights to the European environment. The constitutional-legal institution of human rights and freedoms in European states is based on the natural-law concept in the conditions of a liberal democracy and a secular state. Constitutional and legal norms on human rights in Muslim countries establish the inalienable influence of religion. The measures taken by the authorities of European countries are not effective enough. Only compromises, mutual respect for culture and preservation of religious foundations, and the use of primarily legal means of conflict resolution on both sides will help reduce tension and resolve disputes that arise between Muslims and European society. On the basis of the analysis and synthesis of constitutional and legal acts, scientific works, etc., possible ways of avoiding the problems of integration of Muslim minorities in Europe are suggested.

The Significance and Role of Natural Law Doctrine in the Development of International Law

Natural law, which has played a significant role in the formation and development of international law, continues to be a subject of debate due to the specific definition of it sessence as a legal ideology that transforms depending on the course of history and the tasks set in this process. This ideology is an integral part of legal thought exclusively within Western civilization, the creation of which began with the encounter of Medieval Europe, represented by the Catholic Church, with the ancient philosophy of Ancient Greece, particularly Stoicism, which was utilized by Ancient Rome in the formation of jusgentium as a component of Roman law by magistrates. It was particularly during this period that the doctrine of natural law, in line with the Romans' understanding of jusgentium as a universal law for all of humanity, acquired a universal significance and continues to be one of the pillars of Western legal thought to this day. The spiritual, social, and political revolution in Europe marked by the Renaissance, the Reformation, and the rise of nation-states reshaped the concept of natural law,presenting it as a product of human intellect, namely, as human reason. Consequently,a new philosophical foundation emerged to justify international law among sovereign states, solidified by the Peace of Westphalia in 1648. The new paradigm of relations between states, influenced by the doctrine of natural law, found expression in Hugo Grotius' system of international law, characterized by objective causal connections. In this system, the doctrine of natural law underwent a shift where the postulates of God,while remaining recognized as a basis for its application, lost their decisive significance that characterized the medieval period. The subsequent stages of the development of international law, gradually assuming a contractual character, are associated with the abandonment of the ideology ofnatural law, which in the 19th century was entirely replaced by theories of positivism such as empiricism, pragmatism, and logical positivism. After World War II, a process of "rebirth of positive law" is observed, characterized by the emergence of human rights protection at the international level, the functioning of the international judicial system, and the necessity of interpreting customary international law and general principles of law. Discussions surrounding the principles of the Nuremberg Tribunal Statute, adopted in 1945, have become a significant factor in the reassessment of natural law ideology. Various, often contradictory, views regarding the content and form of natural law compared to the positive norms of international law continue to be expressed. The current crisis of international order and, consequently, international law it selfis leading to the emergence of separate economic and political enclaves, signifying a decline in the importance of universalism in international relations and marking the culmination of the revival period of natural law doctrine. This transition also demonstrates a shift towards a new form of regionalism independent of the UN Charter. Key words: Roman law, jus gentium, nature law, international legal order,international law, international law philosophy, crisis of international relations andinternational law.

SAHKAH HUKUM YANG BURUK SECARA MORAL ? PERDEBATAN ANTARA LON LUVOIS FULLER DAN H.L.A. HART

The concept of natural law, which was inherited by Thomas Aquinas, is still attractive. In the 20th century, his thoughts were re-examined and used as a basis by several legal philosophers, one of whom was Lon Luvois Fuller. Fuller is considered successful in actualizing Aquinas' thoughts in the realm of 20th century thought. Natural law is understood as a theory which states that law and morality have an absolute relationship (necessary relation); that the validity of law (rules, precedent, judge's decision) depends on its conformity with morality. The absolute link between law and morality according to Fuller is evident in the procedures that apply in the contemporary legal system which according to him reflects moral principles or legal morality. Fuller's thoughts were met with strong resistance from H.L.A. Hart stated that the moral principles according to Fuller are legal morality not as moral principles, but as legal principles.

Understanding of the obligation in natural law concepts of John Locke and Jan-Jak Russo

The article is devoted to the analysis of the problems of obligations in the light of the natural legal concepts of John Locke and Jan-Jak Russo. Thus, within his theory of the social contract, John Locke notes about the natural state of people, from which the law of nature follows, is obligatory for everyone. Such the obligation comes from the human nature or from the harmony between natural law and the rational human nature. The reason for the formation of a civil society is to prevent a state of war, when force, not supported by law, is used contrary to natural law. Therefore, John Locke assigns obligations to the supreme authority, to which people entrusted a part of their freedom in order to fulfill the goals of the state - to ensure peace,security and welfare of the people.
 Thus, John Locke mainly considers the obligation through the prism of laws - first of all natural (not to cause harm to others), and later also civil, which is established by the supreme authority. The individual in the state is entrusted with the obligation to carry out the prescriptions determined by the government, while the government is supposed to ensure peace, protect property, and justly resolve (through judicial institutions) disputes between citizens. In this way, the freedom of individuals is guaranteed by the state, because real freedom, according to the thinker, is possible only in a legal state.
 On the example of the concept of Jan-Jak Russo’s social contract а certain feature can be traced. It is about a significant strengthening of the collective factor over the individual one, when a union of individuals who have mutual rights and obligations in relation to each other is formed in the manner of a corresponding contract. Obligation, therefore, is not only what binds a person, subjecting him to the supreme authority, but, above all, what serves as a factor of cooperation of people in a perfect union. Based on the concept of popular sovereignty, the principles of direct democracy, which the French thinker advocated, individuals should not just fulfill certain prescriptions, but also be called to be active participants in the state-legal reality, in particular, to participate in the creation of laws. Such laws, as the personification of the expressions of the general will, can ensure justice, equality and freedom of individuals.

Ancient Chinese Concepts of Understanding Law

The article studies political and legal thought in Ancient China. Ancient Chinese thinkers in their works reflected their approaches to understanding law. Shang Yang in "Shang jun shu" ("The Book of the Ruler of the Shang Region") considers the law as the only regulator of social relations. Legalists equate the concept of law and law, law is considered as a set of rules of conduct emanating from the state and protected by it, which corresponds to the normative concept of legal understanding.
 Another version of legal understanding was developed by representatives of Taoism. Lao Tzu in his work “Tao Te Ching” (“The Book of the Way and Grace”) paid special attention to the exposition of his teaching about Tao as the highest law of the development of the universe, nature, society and man. Tao acts as a natural law of immediate, direct action. Taoists are supporters of the natural law concept. In Confucius' work "Lun Yu" ("Conversations and Judgments"), the main regulator of social relations is not the Tao or the law, but the norms of ritual li. The right is not reduced to the law, but is considered as a set of legal relations, and the legal order that develops on the basis of them. Legal understanding of Confucius can be attributed to the sociological concept.
 In the work of Xun Tzu, there are attempts to bring together the Confucian rules of the ritual "li" and the Legalist law "fa". A new, orthodox Confucianism is emerging, which no longer completely denies the law, but advocates management both on the basis of li and on the basis of fa, with the dominant role of li. In China, a new type of legal understanding is emerging - integrative or synthetic.
 The article concludes that within the framework of the political and legal thought of Ancient China, there were various approaches to understanding law. After the proclamation in II BC. updated Confucianism with the official ideology of China, the integrative type of legal understanding becomes dominant, both in theory and in law enforcement practice.

Justice as an element of the legal field

The material of this article is devoted to basic concepts in jurisprudence, namely the concepts of "justice" and "law". The peculiarities of each of them were analyzed and they were demarcated according to certain characteristic principles. It was investigated and revealed which of these concepts is derived from the other, i.e. is a constituent element of a larger system. The scientific article clarifies which concept is basic. The central issue of the article is the relationship between these two concepts, that is, whether they are identical to each other, or on the contrary, one of them prevails over the other when considering and applying the norms of the law. The author defines the role of the concept of "justice" in the modern legal system and shows its evolution within the framework of the development of society. The main achievement of the research was finding a deterministic definition of the concept of "justice". It is defined as a moral and legal category of positive law, which is a central part of economic, political and social relations. This definition, in turn, allows us to distinguish the concepts of natural and social law and positive law in jurisprudence. Law must always coexist with justice, because it is the criterion for its evaluation. It should be noted the high relevance of this issue for the modern legal concept of the state. It is still not resolved and needs a deeper analysis and clarification, especially in the conditions of total integration of the Ukrainian legislative system into the system of international law. The scientific article examines various interpretations of the concept of "justice" that have been formed over a long period of development of society and law. The question of application of the concept of "justice" in the legal system, due to its multifaceted nature, was the subject of research by scientists of various fields and specialties. It became a question of life for philosophers and lawyers, sociologists and psychologists, and even representatives of economics and mathematics. At the same time, a large number of studies still did not build a unified approach to the classifications of these two categories. Therefore, this question is still relevant, especially the problem of the relationship of justice with other fundamental principles of law in the conditions of the formation of the foundations of statehood and the development of the national legal system.

Естественные свободы человека как основа правового регулирования

The article provides a new approach to understanding natural human rights. The author reviews the existing concepts of natural law: ancient philosophers, religious figures of the Middle Ages and the New Age, philosophers of the Enlightenment, I. Kant, the views of modern lawyers, reflected in fundamental international documents and national constitutions. It is concluded that the existing concepts are based on assumptions, many of their provisions are outdated and often contradict each other, and the content of the natural human rights themselves is not disclosed. The author is critical of the opinion that natural law is morality or divine law. Instead, it is proposed to build a concept based on the biological characteristics of the human body. To substantiate the new approach, the author applies the method of R. Descartes — denial until the very denial becomes absurd. Thanks to this method, an objective basis was found — «a person exists while he lives», from which further reasoning is conducted. The article provides a logically justified and integral system of natural human rights, which the author calls “human natural freedoms”. These include natural freedoms: life, consumption, labor, worldview, knowledge and selfdefense. The author proves that they are inalienable, absolute, independent in use and permanent. The article also shows how the objectively existing system of natural human freedoms interacts with positive law. The author notes that the role of such a “bundle” is played by the principles of regulation, which include: universality, equality and fairness. In conclusion, a conclusion is made about the theoretical and practical significance of the presented concept.

Translating the Law in the Inns of Court Play Gismond of Salerne (1566–68)

Abstract: Gismond of Salerne (1566–68) was a dramatic adaptation of Giovanni Boccaccio’s Tancredi and Ghismunda novella produced at the Inner Temple. Positing that the legal background of the authors was reflected in their reception of Boccaccio, this essay investigates the representation and use of various significations of the law in the play. It argues that the Inns authors were receptive to the presence of the Natural Law concept in the background of Boccaccio’s novella and that they intensified its role in the play, emphasizing its conflict with man-made law. The latter is also investigated in its own right, showing its impact on a thematic, rhetorical, and dramaturgical level. Further, the Inns writers’ political interests as members of a community revolving around common law explain why the play idealizes and justifies specific legal notions and practices.

A Stoic Reading of Internal Obedience in Romans 1:18–2:29

Romans 1:18-2:29 connects with Stoic philosophy in a way that would be unmistakable to a Gentile audience. While acknowledging the Hellenistic tone of the passage, this paper focuses on the Stoic elements of natural law that were broadly recognized in Rome. Particularly, Cicero’s speeches, rhetorical handbooks, and philosophical treatises provide a comprehensive account of the connections between Hellenistic philosophy and Roman law and declamation. Although no direct evidence exists to show that Paul had read Cicero, these texts reveal the culture of the Roman Christians to whom Paul was writing. Key concepts of natural law appear in Romans that contextualize Paul’s message on internal obedience in 2:27-29, although he reworks them. Paul emphasizes spirit ‘πνεῦμα’ as the generating force of obedience. Two interpretations of πνεῦμα echo Stoic perspectives as the intent opposed to the letter of the law and as the inward motivation of the person obeying the law. The third interpretation as a foreshadowing of the Holy Spirit would be new for Paul’s Roman audience. This paper demonstrates that by incorporating Stoic elements on natural law, Paul presents the central significance of internal obedience in a way that would be understandable to his Christ-believing auditors and readers in Rome.

The The Influence of Petrus Iohannis Olivi (1248-98) upon the Formulation of a Radically Voluntarist Conception of Natural Law

The Franciscan thinker, Petrus Iohannis Olivi (ca. 1248–98), was the first latermediaeval thinker to propose a radically voluntarist theory of natural law. While his Franciscan predecessors, in particular Alexander of Halles (ca. 1185–1245), John of La Rochelle (end of 12th century–1245) and Saint Bonaventura(1221–1274) prioritised the higher will (voluntas) over the intellect in respect both to God himself as the providential giver of natural law, and of the human being as the recipient of God’s gift of natural law as an aspect of his eternal law, all these Franciscan thinkers regarded the operation of the intellect and will, first in the Divine and then in human nature in co-operative terms. Olivi is the first thinker to propose the absolute and not simply relative priority of the will in both the Divine creation of the natural law and how it impinges upon, and operates within the human rational faculty. In this brief introduction of Olivi’s theory, I focus on the first of these two perspectives.