Concept Of Natural Law Research Articles

La objetividadde la moral cristiana y la filosofía del ser

The rejection of the objectivity of moral norms, considering them to be incompatible with human freedom, is one of the clearest manifestations of the present moral crisis. This question, which is often posed in relation to those norms which relate to the natural law, finds its most profound answer in a christian perspective. In effect the Gospel implies a definite anthropology. In order to express the message revealed by Jesus Christ not every anthropology is valid. Man's conditions as creature is a necessary presupposition on the gospel message. 11 this is ignored it is impossible to understand the universality of the christian message which necessarily presupposes a common basis, that is human nature. The divine initiative of salvation does not present itself as something radically heterogeneous to man but rather in terms of fulfillment, realization and restoration. It presupposes the presence of ethical requirements in the natural and universal reality of man. These ethical requirements belong to the range of natural law, a concept which has been the object of particular attack in relativist circles. It becomes necessary then, as an important task for ethics, to delimit clearly the concept of nature since in it the concept of natural law is in the balance. In a special way it must be stressed that nature is not a univocal concept but rather it is essentially analogical. It is predicated of all creatures and of God, of things and of man. Human nature should be considered as an open reality, since it is spiritual, and the moral requirements which spring from it, while granting that they are in accord with fundamental tendencies of nature, should be regulated by human reason. In this sense the moral norms of the natural law should not be considered to have been given once and for all but rather as a task of human reason. This approach, which is also thomist, does not leed to any form of relativism as long as it is situated within the context of the metaphysics of being which respects the spiritual openness of man. The vacuum created by the abandonment of metaphysics is being filled by use of the positive sciences which thus usurp the role which corresponds to metaphysics in the determination of ethical norms. The consequence is relativism as the sciences study the events and attempt to give them normative value. The sciences do have an important service to render to morality but should not grant themselves a role which is no theirs. Specifically the particular competence which corresponds to reason should be respected and that of reason illuminated by faith in the christian context. It is precisely the relationship between reason and faith that is the key to interpret the impact of the New Law on the natural law as well as the competence of the Magisterium in moral questions.

The American Frontier as State of Nature

John Locke claims that “in the beginning, all the world was America.” If this were, in fact, the case, then the early American frontier ought to resemble the state of nature that Locke describes. Louis Hartz finds in early American settlement a sort of instinctive Lockeanism, while Frederick Jackson Turner sees in the frontier the primary determining factor in American development. Combining the two suggests that American society may well have developed along Lockean lines, but only if the frontier was in fact at least an approximation of Locke’s state of nature. The frontier does resemble such a state in certain respects, though Locke’s concepts of natural law and justice are conspicuously absent, or at least very weak. This helps to explain why the Americanized version of Locke described by Hartz, rather than a more accurate and complete reading, became the dominant ideological force in early American political development.

The Distorted Jurisprudential Discourse of Nazi Law: Uncovering the \u2018Rupture Thesis\u2019 in the Anglo-American Legal Academy

It has been remarked that the ‘rupture thesis’ prevails within the Anglo-American legal academy in its understanding of the legal system in Nazi Germany. This article explores the existence and origins of this idea—that ‘Nazi law’ represented an aberration from normal legal-historical development with a point of rupture persisting between it and the ‘normal’ or central concept of law—within jurisprudential discourse in order to illustrate the prevalence of a distorted (mis)representation of Nazi law and how this distortion is manifested within the discourse today. An analysis of the treatment of Nazi law in two major 50th anniversary publications about the 1958 Hart–Fuller debate, and a review of representations of the Third Reich within literature from the current discourse, demonstrates that the rupture thesis continues to be reproduced within jurisprudence. An examination of the role of Nazi law in the Hart–Fuller debate itself shows that it can be traced back to the debate, where it was constructed through a combination of conceptual determinism and historical omission. It concludes that the historical Nazi law has great significance for the concept of law, but neither positivism nor natural law has properly theorised the nature of the real Nazi legal system.

True-to-Hume laws and the open-future (or Hypertemporal Humeanism)

Take open-future Humeanism to comprise the following four tenets: (T1) that truth supervenes on a mosaic of local particular matters of fact; (T2) that there are no necessary connections between distinct existences; (T3) that there is a dynamic present moment; and (T4) that there are no future facts; that is, contingent propositions about the future obtain truth values only when their referents are actualised. Prima facie this is a deeply problematic metaphysic for the Humean, since given that the widely accepted Humean conception takes all truths (inclusive of nomological truths) to supervene on an omnitemporal mosaic of local particular matters of fact, if there are no future facts, then the Humean can neither provide laws of nature, nor justify many everyday inductive inferences. However, I argue that this eternalist metaphysic is in tension with at least one of Hume’s central metaphysical claims concerning causation, e.g. that causal regularities may cease to hold at any time. In this paper I propose and defend one possible open-future Humean metaphysic which admits of “true-to-Hume” causal and nomological facts. Furthermore, although I am happy to concede that induction is problematic for the open-future Humean, I demonstrate that it poses no greater threat to the open-future conception than it does to the popular Lewisian conception of natural law.

Normativnost in transcendenca naravnega prava: primerjava pristopov Tomaža Akvinskega in Francisca Suáreza

The concept of something »just by nature« enjoys a long philosophical tradition, from Plato to Thomas Aquinas, but only in Aquinas do we find the notion of natural law as participation of the eternal law in the rational being. Based on this notion, we deal with the relationship between natural law and eternal law in Thomas Aquinas and Francisco Suárez. Particularly relevant is the issue of the basis of the natural law since it relates to the question of the foundation of moral law and, ultimately, of ethics. Precisely this reflection on the foundation is needed, because since the 1980s, natural law has been considered above all as a law of practical reason, focusing on a reflection on the connection between natural law and virtue, or between natural law and human law. However, the metaphysical dimension of natural law, and with it, the question of the ultimate basis of normativity has yet to be addressed satisfactorily. Suárez was the last great scholastic follower of Aquinas and, consequently, to some extent responsible for the modern reception of the natural law of Aquinas. Thus, the comparison with Suárez aims to find out differences for the subsequent knowledge of the classical concept of natural law.

Securing the Foundations: Karol Wojtyła's Thomistic Personalism in Dialogue with Natural Law Theory

Securing the Foundations:Karol Wojtyła's Thomistic Personalism in Dialogue with Natural Law Theory Petar Popoviß Introduction Any attempt to exhaustively present the contributions of Karol Wojtyła's Thomistic personalism as elaborated in his pre-pontifical philosophical writings to the theory of natural law is surely not a task that can be easily reduced to a summary overview of Wojtyła's ready-made arguments. In his writings, John Paul II did not, in fact, reflect extensively on the topic of "natural law" as an immediate object of his philosophical enquiries. We can find only a few explicit references to it in his 1969 magnum opus The Acting Person, while a substantial philosophical argumentation on this subject in the immediate textual context of these references is virtually nonexistent. In his only philosophical text explicitly dedicated to the topic of natural law, entitled "The Human Person and Natural Law,"1 also from 1969, a more extensive elaboration on brief references to St. Thomas Aquinas's definitions of natural law is completely absent. Even in his later pontifical documents, John Paul II hardly ever extensively referred to natural law in its classic Thomistic formulation until his 1993 encyclical letter Veritatis Splendor.2 However, such a notable absence of explicit references [End Page 231] to natural law did not discourage Kenneth L. Schmitz, the author of one of the most significant studies of Wojtyła's philosophical project, from repeatedly highlighting the importance of Wojtyła's "personalist approach to natural law" and of his underscoring the "personal dimension within the metaphysics of natural law."3 How can an author who is so reluctant to avail himself of classical natural law discourse be, at the same time, celebrated as an important contributor to its more adequate comprehension? In this paper, we will aim to postulate that Wojtyła enters into an enriching dialogue with the Thomistic theory of natural law, in both its classical and its contemporary formulations, on a specific systematic level that does not directly engage the classic elements of natural law theory (such as natural inclinations, first precepts of natural law, etc.). We will show that Wojtyła, rather, grounds his most important contributions to this theory within the framework of his specific methodology of Thomistic personalism,4 which he held to be essential [End Page 232] to secure more completely the foundations5 that natural law and its adequate understanding offer to the moral and legal normative "grammar" of the humanum. The Personalistic Value of the Human Act as the Immediate Conceptual Context of Wojtyła's Contributions to Natural Law Theory In order to present Karol Wojtyła's contributions to natural law theory, we will first have to delimit the immediate conceptual context of his arguments on the topic. In his writings, he touches upon the topic of natural law in three distinctive ways. First, he sometimes only incidentally refers to some general topics of natural law theory while pursuing his personalistic line of argumentation, only to arrive at the already firmly established conclusions within the theory itself.6 Second, he sometimes, though seldom, explicitly refers to the concept of "natural law" (Polish: prawo naturalne) in order to invoke elements of the classical theory of natural law and to touch upon elements of his philosophical contribution to the theory from the perspective of Thomistic personalism.7 Finally, Wojtyła, at times, and without explicitly invoking the [End Page 233] term, provides arguments that represent his genuine, more developed contributions to the theory of natural law from his own specific philosophical perspective of Thomistic personalism. The first approach to the concept of natural law is not taken into consideration in this paper, while the second has already been thoroughly researched at length by other authors.8 Instead, this paper seeks to present the key elements of Wojtyła's third approach to the understanding of natural law—namely, his arguments on the enriching potential of viewing natural law from the perspective of the analysis of the personalistic value of the human act as the immediate object of philosophical analysis. We have elaborated at greater length on Wojtyła's concept of "the personalistic value of...

Remarks on the uniformity of natural law concepts in the history of legal philosophy

Remarks on the uniformity of natural law concepts in the history of legal philosophy

Метафизическое осмысление становления концепции естественного права

Метафизическое осмысление становления концепции естественного права

Мораль как основной регулятор договорных отношений в рамках нормативной теории обещания в правовом дискурсе стран общего права

This article describes the main provisions of the normative theory of promises in the Anglo-American legal discourse. Under this theory, which going back to the origins of natural law concepts, the nature of a civil contract expresses in the volitional act, and the reasons of the obligation of promises are the principles of morality.
 The author has made a critical evaluation of the position of the normative theory of promises which puts the morality as the primary regulator of the Institute of the contract. As a result the author shows that only morality in a legal dimension, namely the dimension of justice, may act as regulators of the private law. The concept of justice evolves, and today in a civilized society is expressed in two maxima: equality and freedom. And if the first dimension is known back to Roman law and its details was developed by Aristotle, but the humanity has realized the individual freedom as the manifestation of justice not so long ago.
 The question on relationship of morality and law is as relevant as ever for Russian legal reality, which has been subject of expansion of the good faith principle. Violation of the good faith principle in law enforcement often means the moral condemnation of the behavior of the civil turnover participant. Thus, the morality often goes beyond the justice, and, therefore, outside the scope of legal regulation.
 In present article the author proves the inadmissibility of such approach. The assumption of morality in the regulation of private legal relations enhances the feeling of legal uncertainty, and becomes a reason of a number of practical problems, in particular, the problem of the source of attitudes, which were conventionally recognized as a moral attitudes, and the problem of the court decision in case of presence of antagonistic moral attitudes, which are equally recognized by the law enforcement authority.

Les fondements naturels de la loi divine dans l’œuvre de Rabbi Josef Albo

The aim of the article is to analyze the concepts of natural law, political law, and divine law in the thought of Rabbi Josef Albo. The article concludes that according to R. Albo, the true divine law has something natural. Humans can understand by themselves that natural law is not developed enough to assure their needs. They can comprehend as well that only divine law can be a good political law, and thus they draw the natural conclusion that they need divine revelation and divine law.

Revisita a Suárez y Vico

El artículo analiza la influencia del pensamiento de Francisco Suárez sobre el de Giambattista Vico, y se ocupa básicamente de analizar los conceptos de derecho natural y de gentes en el primero, que en el segundo se acaba convirtiendo en Derecho natural de gentes. La concepción de Suárez sobre el derecho natural se sustenta en afirmar la no inmutabilidad plena de éste y se combina con el derecho de gentes, en el que se comprenden las costumbres de los distintos pueblos. La idea viquiana del derecho natural de gentes abre las puertas al historicismo y al culturalismo como la base en la que sustenta dicho derecho, lo que supone una visión claramente humanista y pluralista del orden normativo, frente al abstractismo racionalista ilustrado.

FILOZOFIA PRAWA W ŻYCIU I NAUCZANIU ULPIANA

The Philosophy of Law in Ulpian’s Life and TeachingSummaryThe purpose of this article, is to show, taking into account Ulpian’s life and teaching, that the Roman jurisprudence was interwoven with some elements of philosophy. The first part of the article illustrates the influence of Ulpian’s life history on his philosophical and legislative views, whereas the second part presents the latter.His knowledge of law, the posts which he occupied, and numerous works prove that Ulpian was preoccupied with studying „law through its first causes”. He asked about the essence of the law, about what the natural law is, and what justice is. He described the juridical reality using the language of law and philosophy. His concept of lawfulness can be perceived as integral, combining material and formal legality He did not depart from the ethical dimension of law although he respected the rigours of the formalised norms. Referring to aequitas did not disturb him in paying attention to certitudo legalis. In his concept of lawfulness one can see a reference to Cyceron’s ideas and in his concept of natural law one can observe a reference to the Stoics. In the field of the penal lawfulness one can perceive Ulpian as a precursor of the ability to perceive the human equality in the sphere of natural law, the concept elaborated as late as several centuries afterwards. Perceiving the equality of people, approximates him to the Christian’s philosophical idea.

Public Reason and Religion: The Theo-Ethical Equilibrium Argument for Restraint

Most public reason theorists believe that citizens are under a ‘duty of restraint’. Citizens must refrain from supporting laws for which they have only non-public reasons, such as religious reasons. The theo-ethical equilibrium argument purports to show that theists should accept this duty, on the basis of their religious convictions. Theists’ beliefs about God’s nature should lead them to doubt moral claims for which they cannot find secular grounds, and to refrain from imposing such claims upon others. If successful, this argument would defuse prominent objections to public reason liberalism. This paper assesses the theo-ethical equilibrium argument, with a specific focus on Christian citizens. I argue that Christians should seek theo-ethical equilibrium, but need not endorse the duty of restraint. I establish this in part through examining the important theological concept of natural law. That discussion also points to more general and persistent problems with defining ‘public reasons’.

Natural Law and Goodness in Thomistic Ethics

The purpose of the essay is to recover a correct conception of natural law and goodness in the ethics of Saint Thomas Aquinas. It suggests that the dominant interpretation of Thomism known by legal philosophers—that of John Finnis—is importantly at variance with Aquinas’s true account. Against the dominant interpretation, a true account of natural law must (i) differentiate between natural law and ethics in the full sense (moral theology), and (ii) interpret references to human good as references to virtuous goodness rather than non-moral goodness. The main body of the essay explores the place of these concepts in Aquinas’s account of ethics.

Нормативистская концепция права Х. Кельзена: облик современной юриспруденции

The article describes the state of modern jurisprudence as mainly positive (normative). Further the article shows the crucial role of Austrian jurist Hans Kelsen’s (1881–1973) theory in forming the idea of “pure law” in the mid-20th century. Normativity declares systematic, logic and gapless character of law as its basic qualities. However, these qualities of law are formed only at the expense of denial of religious and moral prehistory of law. The concept of natural law (including the one implied in the text of the Constitution of the Russian Federation) is currently declared as primary, though in fact it does not determine any practice of law enforcement. The result of such utilitarian view of law will be its total “purification” in Hans Kelsen’s terms when the content of a specific rule of law will be determined not by timeless values, but by expediency. The principles of justice, humanity, mercy, good faith and morality declared by law acquire, in fact, a new — inhumane — content. Hans Kelsen’s Pure Theory of Law continues to dominate in the national science of law.DOI 10.14258/izvasu(2017)6-01

Creating Justice in an Emerging World The Natural Law Basis of Francisco de Vitoria’s Political and International Thought

This article outlines Francisco de Vitoria’s conception of natural law and natural right in an effort to amend a number of interpretations in the academic literature on his political and international thought that misapprehend Vitoria’s iusnaturalism. In this view, his use of the Thomist doctrine of natural law and justice lays the founda­tion for his works on politics, society and international relations since the doctrine itself espouses equality and justice both within the domestic realm and between discrete communities. In an implicit appeal to the link between ethics and politics, his doctrine of natural law, moreover, fulfills a critical and constitutional role by designating justice and the common good as a pattern of order to which power and authority must conform in order to be legitimate.

The Concept of Natural Law and its Development in the History of Moral Philosophy

The article deals with the logical structure and the development history of the concept "natural law" (jus naturale) within the framework of the paradigm that preceded the New Europe history of European moral philosophy: Greek- and Latin-speaking periods. The author identifies practical-legal and theoretical-philosophical aspects of the concept of natural law. The author insists on the necessity to study the second aspect with a view to clarifying the general theoretical foundations of jurisprudence and ethics, as well as enhancing their interdisciplinary communication. The paper substantiates an approach to the analysis of the concept «natural law" in the light of methodology of the discipline "History of Concepts." The author briefly outlines the paradigm on which the study has been built. The article provides an analysis of contradiction of the concept «natural law" that was fixed in the so-called "discussion physis-nomos" (nature vs. an establishment) in ancient Greek philosophy. The author demonstrates the role of this contradiction in the development of the theory of natural law. He differentiates two lines of the development of the theory of natural law in accordance with two sides of this controversy: the theory of human nature (reasonable and social), on the one hand, and the theory of natural normativity (subject and object as the requirement of natural law), on the other hand. The author demonstrates the role of Greek philosophy and Christian theology in the development of these theories. He explicates the link of «natural law" with key concepts, provides its theoretical context: human nature, reasonable nature (natdra rationalis) is a natural "society" (societas) of a human, moral action (actus moralis, actio moralis), natural law (lex naturalis), divine law (lex divïna), and conscience (conscientia). A historical and philosophical context of the development of the theory of natural law is illustrated with a number of paradigmatic wordings borrowed from the works of the most significant thinkers that developed different sides of the theory -- from Aristotle to Hugo Grotius. The paper notes terminology and conceptual gap between antique, medieval and early New European moral philosophy, on the one hand, and modern humanities and social sciences, on the other. The author highlights the necessity to overcome it by means of analyzing philosophical foundations of ethical and legal thoughts defined in the philosophical tradition of natural law.

Anti-metaphysical foundation of contemporary theory of natural law: Theory of law and practical rationality in works of John Mitchel Finnis

The contemporary natural law theory was grounded in the philosophical and the jurisprudential work of Australian legal and moral philosopher John Mitchell Finnis. He reaffirmed the natural law and also corrected some of false notions about it which were dominant through the history of legal philosophy. Finnis moral and legal philosophy could be understood by the specific theoretical figure - moral argument for law. This theoretical concept implies unity of two mutually connected moments which are necessary for a philosophical treatment of any socially relevant phenomena: methodological and epistemological as well as practical. The meeting point of these two philosophically relevant dimensions is theory of practical rationality exposed in the philosophy of John Mitchell Finnis. By grounding his concept of natural law on the theory of practical rationality, John Finnis historically contextualize it. He made some sort of specific anti metaphysical concept of natural law theory that is alternative to the classical natural law as well as to the legal positivism, which mainly exposed in the legal theories of Hans Kelsen and H.L.A Hart.

Refleksije društvenog ugovora Ruso kao naš savremenik

In this paper the author attempts to analyze Rousseau's theory of social contract, elaborated in Rousseau's work with the same title. In order to understand this issue, it was necessary to compare the most important theories of contract - Grotius, Hobbes and Locke, in order to fully understand Rousseau's point of view. The work consists of two parts. The first part analyzes the chronology of concept of natural law, natural status and common features of new era contract theories - from the ancient times until the Rousseau himself. The second part is fully dedicated to Rousseau's idea of contract. In this segment of the paper, the author elaborates on issues of social and historical circumstances that had the major impact on the creation of Rousseau's theory, his understanding of the natural status, creation of civil society and origin of inequality, idea of contract, problem of law, freedom and status of the executive power on in the ideal state.

The limits of the law and literature movement: An example of Sophocles

The limits of the law and literature movement: An example of Sophocles