Contemporary Natural Law Research Articles

Natural law and unwritten law in Classical Greek thought

AbstractIt is a common mistake of contemporary natural law scholarship to overestimate the ancient Greeks' contribution to a meaningful theory of natural law and to mistake an appeal to unwritten law with natural law's criteria for normative validity. This paper was designed to elaborate on two interrelated queries. On the one hand, it labours to reconstruct the ancient Greeks' understanding of a hierarchy of law, which is answered in the affirmative. On the other hand, the paper inquires whether there existed any meaningful sense of natural law in the Classical period, to which question the Archytean nexus of law and natural justice is offered as a palpable compromise.

Religion as a Basic Human Good

Abstract: For the sake of defending the political-ethical legitimacy of religious exemptions, this article analyzes what contemporary natural law theorists call the good of religion—harmony with the transcendent source of existence and meaning. This good serves as a principle in practical judgments, not as a premise in a deductive argument, but as an end of action. Practical familiarity and explicit understanding of this good can differ among individuals, and variations of such familiarity and understanding lead to differing practical judgments concerning what constitute reasonable choices in its pursuit. This in turn affects judgments of fairness concerning burdens on that same pursuit. It is optimal for judgments about religious exemptions to presuppose a more paradigmatic understanding of this good so that one can better assess what is really at stake in the minds of religious believers when their religious liberty is burdened. In making a case for a more paradigmatic understanding of religion, this article draws attention to existential data from which practical insight into the good of religion arises.

El iusnaturalismo tomista del siglo XX en Estados Unidos

En este trabajo presentamos, en una visión panorámica, el iusnaturalismo tomista en la doctrina filosófico-jurídica de Estados Unidos desde princi- pios del siglo XX hasta nuestros días. Se concibe como una herramienta de trabajo para el estudioso del iusnaturalismo contemporáneo, una especie de “estado del arte” sobre la materia. Hay tres partes claramente diferen- ciadas: en la primera (apartados 1 al 7), la más extensa, después de una diferenciación conceptual básica entre la tradición de la ley natural (Natu- ral Law Tradition) y la tradición de los derechos naturales (Natural Rights Tradition), se estudian cada uno de los autores más representativos, y se muestra el debate actual entre “neoclásicos” (Grisez, Finnis, George...) y “neoescolásicos” (Veatch, McInerny, Hittinger, Long, Jensen, etc.). En la segunda parte (apartado 8), se exponen los congresos o las conferencias periódicas que están teniendo lugar actualmente en Estados Unidos para debatir temas relacionados con el iusnaturalismo. Y en la tercera (apartado 9), se muestra una selección de los textos que consideramos más relevan- tes sobre el iusnaturalismo norteamericano del siglo XX.

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.

From Pluralism to Consensus in Beginning-of-Life Debates: Does Contemporary Natural Law Theory Offer a Way Forward?

From Pluralism to Consensus in Beginning-of-Life Debates: Does Contemporary Natural Law Theory Offer a Way Forward?

The Planning Theory and Natural Law

The practical, normative dimension of planning is a plausible source of the ‘family resemblances’ noted by a number of legal theorists between Scott Shapiro’s Planning Theory and natural law jurisprudence. Foremost among these resemblances is Shapiro’s contention that the law, necessarily, has a moral aim. The moral aim thesis is at first glance surprising given Shapiro’s intention to defend exclusive legal positivism and unequivocal rejection of what he takes to be the core commitments of natural law theory. Shapiro’s claim, however, is that although the law necessarily has a moral aim, this does not entail that it is successful in satisfying that aim. In order to assess this thesis, it is helpful to compare the Planning Theory with contemporary natural law approaches. Bringing Shapiro’s Planning Theory into dialogue with contemporary natural law theories can demonstrate some of the Planning Theory’s weaknesses as an alternative explanation of the ultimate grounds of the authoritativeness of legal norms. Some of these weaknesses, moreover, are instructive beyond the specific contours of the Planning Theory insofar as they generalise to other legal positivist approaches. In section one I consider Shapiro’s treatment of the so-called ‘Possibility Puzzle’ regarding the grounding relation between authoritative norms and legal authority. Shapiro’s denial of the capacity of earlier jurisprudential theories to resolve this puzzle overlooks what is – I suggest – a plausible solution developed by John Finnis on the basis of Joseph Raz’s theory of practical reason and norms. Section two then demonstrates why Shapiro’s attempt to combine a robust construal of the social facts thesis with a commitment to the thesis that law necessarily has a moral aim is ultimately unsuccessful.

Arbitrariness, Irrationality, and the Sterility Objection: A Reply to Anderson

Does the contemporary Natural Law position that only heterosexual couples are capable of marriage rest upon an “arbitrary and irrational distinction between same-sex couples and sterile heterosexual couples?” Anderson (Ethical Theory and Moral Practice 16 (4):759–775, 2013: 759). There are many who think so. In a recent article in these pages, Erik Anderson offers his case that these critics are correct. In what follows I examine Anderson’s argument and conclude that, whether or not one ultimately agrees with the New Natural Law account of marriage, the distinction found there between same sex couples and sterile heterosexual couples is neither arbitrary nor irrational.

Lewis, Barth, and the Natural Law

C. S. Lewis and Karl Barth each left a significant mark on Protestant Christianity’s engagement with the perennial natural law tradition. A 1947 cover story for Time magazine described Lewis as “one of the most influential spokesmen for Christianity in the Englishspeaking world.” Though less popular than Lewis, Barth was arguably the twentieth century’s most influential academic Protestant theologian. In this article, I recreate the dispute between Lewis and Barth regarding the place and role of natural law in modern politics and Christian theology. Although each was hostile to the other’s position, I conclude that Lewis and Barth agreed that the divine nature is the ultimate ontological foundation for ethics. Lewis and Barth, however, remained bitterly divided about the compatibility of Christianity with natural law philosophy. Because Lewis and Barth continue to have a profound influence on evangelical engagement with politics, particularly in the United States, the debate between Lewis and Barth is of continued relevance to scholars who study the intersection of politics and religion. One significant debate in contemporary natural law theory concerns the relationship between theology and natural law. In the natural law tradition associated with Thomas Aquinas, for example, God creates and maintains the moral laws of nature by his eternal law. This is the tradition within which Lewis wrote, and his

The natural moral law: the good after modernity

1. The postmodern challenge: from modernity to postmodernity 2. Traditional natural law: differences in Aristotle and Aquinas 3. Patterns in historical thinking about the good 4. The challenge of modernity: religious wars and the need for universal law 5. The challenges of naturalism: legal realism or natural law 6. Objectivity without a metaphysical foundation 7. Contemporary natural law: practical rationality and legal opinions 8. Natural law as a theory with metaphysical baggage: postmodern law 9. Natural law as the moral law 10. Natural moral law in a postmodern world.

A Particle of Freedom: Natural Law Thought and the Kantian Theory of Transfer by Contract

Modern contract law theorists frequently invoke Kantian ideas to conceptualize contract as a form of immediate transfer. The Kantian theory of contract itself is eclectic: Kant makes use of the main conceptual building blocks of Natural Law (in particular Grotian) contract doctrine – promise and transfer. Yet Kant re-arranges and adapts them to his own epistemology and conceptual system. I submit that because of this connection, additional light can be shed on Kant’s theory of contract by placing it in the context of contemporary Natural Law discourse. One of the most outspoken critics of contract theory in the Grotian tradition was then famous (and now apocryphal) legal philosopher Theodor Schmalz. Schmalz faulted Natural Law thought for conceptualizing contract as transfer by fallaciously – “subreptively”– explaining the normative event of creating an obligation through the model of the empirical transfer of physical objects. Kant’s theory reads like a response to this critique: Kant avoids modelling contract on the transfer of property. Rather, he explains any transfer as contractual, brought about by a unified will.

The Role of Virtue in Legal Justification

The concept of a virtue is central in contemporary ethics and epistemology. The revival of virtue ethics was launched by Anscombe’s important article “Modern Moral Philosophy”, in 1958, and has been developed, since then, into one of the three major approaches in normative ethics, together with deontology and consequentialism. Virtue ethics puts a primary emphasis on aretaic concepts rather than emphasizing duties or rules or the consequences of actions. In epistemology, there has also been a turn to virtue. Sosa, in 1980, first vindicated the relevance of the concept of a virtue in epistemology in his seminal paper “The Raft and the Pyramid”. The central idea of virtue epistemology is that normative properties of beliefs should be understood in terms of the epistemic virtues of agents, rather than the other way around. Virtue epistemology is one of the most important developments in contemporary epistemology. In law, however, with few exceptions, there has not been a comparable trend towards explaining normativity on the model of virtue theory. The concept of a virtue is a quite neglected one in contemporary philosophy of law. Nonetheless, the importance of the virtues in law was recognized from the very beginnings of the philosophical reflection about the law. Both Plato and, above all, Aristotle gave to virtues an important role in explaining law and adjudication. Virtues were also central to Aquinas’ theory of natural law, but their role has been at best marginal in contemporary natural law theories. In the dominant approach to philosophy of law in the 20th Century, i.e., legal positivism, virtues do not have any place within the theory.

Natural Law Beyond Finnis

The natural law tradition in ethics and jurisprudence has undergone a revival in recent years, sparked by the work of John Finnis and the 'new natural law theorists' in the early 1980s. The ensuing decades have seen the emergence of an increasingly rich body of natural law scholarship, but this diversification has gone unnoticed by many outside the field. This article seeks to clarify the relationship between the core claims of the new natural law outlook and the more specific views of individual authors. It begins by discussing the place of the new natural law theory within contemporary natural law scholarship. It then offers an account of the core elements of the new natural law framework that emphasises their compatibility with a range of ethical and philosophical viewpoints.

Book Review: Lawrence S. Cunningham (ed.), Intractable Debates about the Natural Law: Alasdair MacIntyre and Critics (Notre Dame, IN: University of Notre Dame Press, 2009). xiii + 374 pp. £25.50 (pb), ISBN 978-0-268-02300-3

This book is more important than its title suggests. For it is not so much a book about intractable disputes about natural law, but how contemporary natural law theory might help us explain, respond to and even help solve the intractable moral disputes that are wrenching the social and political fabric of the United States, growing in post-Christian Europe, and constraining the opportunities for global collaboration based on ethical norms rather than self-interest or power.

Natural law and non-aggression

Natural law theory can render the so-called “non-aggression principle” (NAP), which prohibits the initiation of force against person or property, intelligible and can ground a robust, even if not exceptionless, version of the principle. Natural law and natural rights theories share common roots, but are often seen as divergent, if not antagonistic. But I believe it can plausibly be maintained that claims about natural rights find their home within the context of more comprehensive natural law theories. I seek to illustrate this claim by showing how a central claim about natural rights can be defended using the resources provided by the best contemporary version of natural law theory. I consider the significance of the NAP and its place in natural rights theory. I outline the contours of one contemporary natural law position, the new classical natural law (NCNL) theory. I go on to indicate what form I suspect a version of the NAP framed using the categories provided by the NCNL theory might take.

Natural Law in Jurisprudence and Politics

The central text of contemporary natural law theory remains John Finnis's Natural Law and Natural Rights. In that respect, it is a field in need of reinvigoration. The comparison with legal positivism, natural law theory's modern counterpoint, is instructive. Although the paradigmatic positivist text is still H. L. A. Hart's The Concept of Law, Hart's theory has largely been superseded in current debates within positivism, most notably by the (arguably more philosophically sophisticated) writings of his erstwhile student, Joseph Raz. The current vibrancy of the positivist tradition owes much to this changing of the guard.Mark Murphy's recent book, Natural Law in Jurisprudence and Politics, provides perhaps the best hope yet for a similar development within natural law theory. Murphy's writing is clear, elegant and precise; in fewer than 200 pages, he covers the central questions confronting the natural law view, including the definition of law, the nature of the common good, the basis of political authority and the legitimacy of legal punishment. On each of these points Murphy clearly frames and contextualizes his position, systematically considers leading alternatives and carefully explains his positive argument. He is honest and clear-headed about shortcomings in and challenges to his theory, acknowledging openly where there is further work to be done.The book is rigorous and sophisticated without being overly technical; it represents the best in philosophical style. There is a great deal of interest here for specialists (for whom the work is primarily intended); however, the text would not be out of place as the basis for an advanced undergraduate course in the area, such is its clarity and breadth of coverage. Murphy's natural law view combines philosophical resourcefulness with a strong adherence to the core elements of the tradition. He draws significantly on key classical (Aristotle, Aquinas) and contemporary (Finnis) theorists; but his argument also exhibits considerable innovation — he departs significantly from all the above figures on key points.An overview of Murphy's natural law theory is provided in the following section 2. As I have indicated, there is much to admire in Murphy's argument; my main aim in this article, however, is to focus on my points of disagreement. These fall into three main areas: Murphy's rejection of Finnis's hermeneutic strategy for defining law (section 3); his views on the claims of law and the foundations of political authority (section 4); and his (qualified) defence of the common good principle against the challenge from the super-political (section 5). By considering these points, I hope to illustrate what Murphy's work has to offer as a focal point for future debates in natural law theory — as well as venturing my own modest contribution.

God's Bridle: John Calvin's Application of Natural Law

Natural law has made a comeback in legal philosophy. The revival of natural law thinking in the legal academy began about thirty years ago and has managed to gain a seat at the table in current jurisprudential discussions. Defining natural law, Brian Bix declares that it “claims that there are fundamental and evaluative connections between the universe, human nature, and morality.” These connections need not have a Christian or even a theistic foundation. A belief in moral realism, that is, the propositions that “(1) there is an objective reality, (2) human beings can know something about it, and (3) there are some things that everyone can, and some things that everyone ought to, do in response to what they know,” ties together theistic and non-theistic versions of natural law. Yet many prominent contemporary natural law theorists—J. Budziszewski, John Finnis, Robert George, and Russell Hittinger —are Roman Catholic. Despite the fact that Finnis and George develop their natural law arguments without reference to any metaphysical states of affairs or transcendent truth claims, natural law continues to be associated with Thomas Aquinas and the subsequent scholastic tradition. Thus, even standards that Finnis and George derive from the internal rationality of law strike some as disguised theology.

Is Contemporary Natural Law Theory a Beneficial Development?: The Attempt to Study Natural Law and the Human Good Without Metaphysics

Is Contemporary Natural Law Theory a Beneficial Development?: The Attempt to Study Natural Law and the Human Good Without Metaphysics

Care Ethics and Natural Law Theory: Toward an Institutional Political Theory of Caring

Feminist care ethics have generally been considered too particular and situational to provide the basis for an institutional political theory. In recent years, however, a number of feminist authors have demonstrated care ethics’ applicability to general moral and political problems. Yet they have not yet developed an institutionally based caring political theory. This article outlines such a theory by drawing upon contemporary natural law theory. It is argued that contemporary natural law theory provides a framework for formulating a caring political theory, and, alternatively, that care theory provides a foundation for justifying a form of natural law theory.

Natural Law Theory: The Modern Tradition

The works of contemporary Natural Law theorists, including Lon Fuller, Michael Moore, Ronald Dworkin, and John Finnis, are discussed critically and their views are placed within the context of a tradition thousands of years old. In the summary of the broader context, the paper considers the connections and relationships between natural law theory and nature, God, natural rights, law, and legal positivism. The article also includes an extensive (but not exhaustive) bibliography.

The Principle of Subsidiarity and Contemporary Natural Law

Journal Article The Principle of Subsidiarity and Contemporary Natural Law Get access Arthur Utz Arthur Utz Search for other works by this author on: Oxford Academic Google Scholar The American Journal of Jurisprudence, Volume 3, Issue 1, 1958, Pages 170–183, https://doi.org/10.1093/ajj/3.1.170 Published: 01 June 1958