Natural Law Approach Research Articles

The natural law and positivist approaches to legal understanding in the context of revealing the category of legal personality of professional participants in capital markets

This article aims to analyze the main philosophical concepts used in understanding the legal category of legal personality and to conduct a descriptive study of the concepts related to this category that prevail in domestic science. The author of the article substantiates the position that the approaches to the theoretical and legal developments of the category of universal legal personality of legal entities should be based on the natural law type of legal understanding. At the same time, the article analyzes domestic authors’ approaches to understanding the legal category of legal personality and compares these approaches with those prevailing in Western countries. Furthermore, the author attempts to justify the expediency of distinguishing exclusive legal personality, given the positivist approach that underlies the construction of the model of the exclusive type of legal personality of professional participants in capital markets. In our opinion, establishing the exclusive legal personality of legal entities is a state-imposed limitation on their universal legal capacity, such as the ability to participate in certain civil-law relations, considering the social importance of the type of activity carried out by these entities. After all, the proper functioning of capital markets is crucial to the financial stability of the country. Capital markets, along with commodity markets, directly influence the formation of exchange rates by attracting foreign investment into the country’s economy. They can also act as a catalyst for economic growth by accumulating financial resources from the population to create capital-intensive productions with high value-added end products. However, achieving such results depends on the balanced state policy in the field of regulating the activities of professional participants in capital markets. To limit the speculative nature of such entities and ensure sustainable economic development, the scope of their legal capacity is narrowed by directly specifying in the law the types of activities they are permitted to engage in.

A/the Common Good

Abstract The emerging school of “common good constitutionalism” takes a classical natural law approach of identifying the central case of law and constitutionalism, recognizing that a state may make positive law in part based on circumstance, convenience, or a need for social coordination. While law under the classical approach is rooted in realizing the common good of the complete community, this ideal does not dictate all of law’s specifics. Nevertheless, there is a difficulty within the emerging school of common good constitutionalism in the way it seeks to respect the diversity of constitutional orders while retaining a single reference point of the common good. Adrian Vermeule and others appeal to positive law as the determinatio through which public authorities make concrete the state’s pursuit of the common good. But there is often a gulf between common good principles and the determinatio of law. The move from principles to the legitimacy or justness of positive law lies, for Vermeule, in joining-up the central case method of natural law with a singular notion of the common good. The article criticizes this reliance, arguing that the central case method cannot be used to determine law in the sense of the determinatio of positive law. In his articulation of central case methodology, John Finnis is, by contrast, careful to leave space for varieties of coordination and forms of justice, such that the central case method plays a limited role in establishing what counts as common goods. Rather, the central case method identifies what law is. The same delicacy is present in Aquinas, who does not in fact define law as an ordinance of reason for the common good in the way that common good constitutionalists so far would like it to mean, because there are no articles in Latin grammar. In this regard, common good constitutionalism’s mistake is unfortunately in keeping with the majority of jurisprudence, which commits the logical fallacy that an internally consistent account of law is externally authoritative—in other words, that harmony in the way in which laws and legal principles relate to themselves can act as a basis to the body politic’s prioritization of some goods over others.

Legal Axiology: General Characteristics

This scientific article explores the meaning of legal axiology as a doctrine about the values of law, the legal (value-legal) meaning of law (positive law), and the state. The author examines both legal (positivist) and natural law approaches to legal axiology, emphasizing the features of these concepts. Additionally, the article considers the concepts of equality, freedom, and justice, determined by the principle of formal equality of participants in this form of relations. The author also presents the viewpoints of famous philosophers and jurists on legal axiology, including G. Hegel, I. Kant, H. Kelsen, etc.

The Rights of Women: A Natural Law Approach

The Rights of Women: A Natural Law Approach

Herkules jest nieposłuszny! Istota sędziowskiego oporu oczami Ronalda Dworkina

In global jurisprudence and legal theory, we are currently observing a renaissance of interest in the thought of Ronald Dworkin, an outstanding legal philosopher, lawyer and humanist with an incredible sense of justice. There is still debate over the practical application of integral legal philosophy. Dworkin’s philosophy marks the “third way” in the dispute between legal positivism and the natural law approach. Using Dworkin’s concept of law, an attempt can be made to answer the question to what extent can the conscience of a person holding the office of a judge influence the process of making/applying law? The desire to look for positive patterns of creating and reforming law pushes us to analyze recent changes through the prism of Dworkin’s philosophy. The previous years have revealed to us a universal value and feature of our legal system a judge who interprets the law becomes the central figure of legal culture.

On the Nature of Human Rights with Regard to Types of Law Understanding

The article raises the problem of understanding human rights in their relationship with the type of law understanding. Legal positivism, sociological positivism, theory of natural law and philosophical understanding of law (libertarian theory of law) stand out as the main approaches of law. It is noted that the normative approach involves the direct dependence of human rights on the will of the state; it does not matter the content of the right, but its formal consolidation in the law. The sociological approach, also within the framework of the legalist direction of law understanding, in contrast to legal positivism, connects human rights not with the state, but with social life, as a product of the development of society, and considers their existence not in law, but in legal relations. The natural law approach to understanding law is considered primarily as a definite stage in the development of ideas about law. Human rights in this context are considered as an expression of human freedom of choice and action, having a natural nature. However, in the modern world, such rights should be formally enshrined, reflecting the value aspect of law. The libertarian theory of Professor V.S. Nersesyants also reflects the idea of the meaning of freedom for the existence of a right that is different from the law, but recognizes the existence of human rights both natural and dependent on the will of the state. The authors conclude that the essential characteristics of human rights derived from the content of these types of law understanding in modern constitutional law have formed a symbiotic approach, In other words, the modern conception of human rights is based on all these types of law understanding.

Contribution of Hersch Lauterpacht to the Development of International Protection of Human Rights

The article is devoted to Hersch Lauterpacht's contribution to the development of the concept of international protection of human rights and international human rights law in general. The study analyzes relevant norms of international law and scientific works of Hersch Lauterpacht; considerable attention is paid to the reviews of leading scientists on Hersch Lauterpacht's books "An International Bill of the Rights of Man" published in 1945 and "International Law and Human Rights" in 1950. The purpose of the article is to, based on the analysis of Hersch Lauterpacht's scientific works, investigate his contribution to the development of the concept of international protection of human rights. Both general (dialectical and systemic-structural) and special (historical-legal, comparative-legal and formal-dogmatic) scientific methods were used in the research. The article defines the prerequisites for Hersch Lauterpacht's choice of international human rights protection as his scientific interest, explores the peculiarities of the scientific environment within which Hersch Lauterpacht developed the concept of international human rights protection, outlines the main doctrinal approaches to the control mechanism of human rights protection. Particular attention is paid to the progressiveness of Hersch Lauterpacht's concept of international control over the observance of human rights and obstacles to its establishment at the universal level. On the basis of the conducted research, the conclusion was formulated that Hersch Lauterpacht, among a number of scientists of the middle of the 20th century who developed the concepts of international legal regulations of human rights, most thoroughly, after investigating the genesis of the formation of human rights and using natural law approaches, proposed a model of effective international protection of human rights. Hersch Lauterpacht's views on the need for real guarantees of human rights at the universal level, rather than a simple declaration, were quite advanced and far ahead of their time. To a certain extent, they can be perceived as idealistic since even today, the achievement of the same universal international standard of guaranteeing human rights (especially economic, social and cultural) is improbable.

The Correlation of Morality and Law in the Works of I. A. Ilyin and G. F. Shershenevich: Comparison of Natural Law and Normative Approaches

The article substantiates the need to address the political and legal heritage of pre-revolutionary Russian legal thought and offers an analysis of the scientific heritage of the classics of domestic political and legal thought I. A. Ilyin and G. F. Shershenevich on the relationship between morality and law. The concepts of social norms, their purpose and place in the system of social regulation are investigated. The social nature of morality, its regulatory function and historical variability, means of influencing persons who do not comply with the norms of morality are noted. The difference between legal regulation and moral regulation is carried out. The social utility of morality, the concept of moral behavior and its motives are investigated. In the context of understanding the law, attention is focused on its coercive nature and types of legal sanctions. Within the framework of the close interaction of morality and law, it is emphasized that giving a moral norm a legal sanction gives this norm a mixed character — ethical and legal. It is noted that the requirements of morality and law in some cases may contradict each other.

Comparing & Contrasting Economic and Natural Law Approaches to Policymaking

Eric Claeys’s monograph, Natural Property Rights, offers a comprehensive and thoughtful articulation of a general theory of property rights rooted in the natural law tradition. This detailed review compares Claeys’s work with the consequentialist law and economics perspective on property. After contrasting their objectives, assumptions, and methodologies this article concludes that, unlike more absolutist approaches, Claeys’s flavor of natural property rights places a modicum of weight on the welfare effects central to economic analysis. This restrained nod in the direction of practicality, however, does not eliminate some of the long-known weaknesses of natural law. Perhaps the most glaring gap in Claeys’s book is its failure to acknowledge and analyze the modern law of nuisance with its enriched set of remedies capable of making everyone a winner. At a macro level, Claeys (like most other natural law theorists) offers no substantive case against redistribution as an optimal method for addressing the fact that charity is a public good. The book, again in keeping with the natural law tradition, eschews any serious empiricism—indeed not a single argument it makes contains any empirical support. This is a fatal flaw for anyone with the ambition to offer practical advice on tougher property law issues for which the right answers depend on myriad social parameters whose values lie beyond the reach of deduction.

К вопросу о развитии естественно-правовых концепций в эпоху Просвещения (взгляды Т. Гоббса и Дж. Локка)

The article uses the views of outstanding English philosophers and politicians of the 17th century T. Hobbes and J. Locke as an example to show the process of development of the natural law approach as an independent concept of legal consciousness that has greatly influenced further establishment of the theory and philosophy of law.

Enshrining legal coercion as a prerogative of the rule of law

Purpose of the article is to study legal coercion as one of the traditional state management methods from the standpoint of the exclusive prerogative of the state to implement it. Methodology. The research uses a natural-law approach and a number of methods aimed at a systematic and meaningful analysis of the problems of state coercion, the most important of which are generalization, dialectical, historical and integrative methods. Results: it is resoned that the following grounds are necessary for the application of coercion: 1) the legal basis presupposes the presence of legal norms that provide for the possibility of applying coercion to certain subjects in concrete cases; 2) the factual basis presupposes the occurrence of the legal event provided for in the law - the event or act which generated the legal relationship; 3) the formal basis implies the issuing by the state body of the act of application of the law ordering the application of the constraint to a specific subject. The coercion as a physical action is applied by special state bodies on the basis of a court decision or administrative act. In the absence of such acts, coercion cannot be exercised. It is emphasized that the legal coercion applied by the state must involve proportionate measures and sanctions, in such a way that, on the one hand, it creates the necessary inhibiting factors in the conscience of those who would try to break the law and, on the other hand, it strengthens the feeling of security in others, inspiring them with the conviction that the law, the state, protects them and that they should not resort to non-state, unofficial means in order to take the law into their own hands. It is absolutely essential that the application of coercion should not be used to infringe the rights and freedoms of individuals or to cause physical or mental suffering. Only in such a situation will legal coercion contribute to the formation of the ethical attitude of citizens, increasing their psychological readiness to respect the law. Originality. This is one of the first studies devoted to the issue of legal coercion as the context of its use by the state in order to exercise its power in modern political and legal realities, including taking into account the experience of state formation in the Republic of Moldova. Practical significance. The results of the study can contribute to the improvement of law enforcement and human rights protection activities, to increase the level of legal culture at the current stage of social development, primarily in countries freed from communist totalitarianism. Key words: state, law, rule of law, legality, legal act, coercion, legal coercion, normativity.

Biolaw, Digital Hyperconsuption and Cognitive Vulnerability: Towards a Biojuridical Resignification of Bioethical Principles for the Protection of Cognitive Health

Cognitive health is necessary for human development. However, the hyperconsumption of biotechnologies (smartphones, internet, video games, social networks, virtual reality) can cause damage to cognitive health and, therefore, to human health and development. Consequently, such research focuses on limiting the consumption of specific technologies in minors in order to protect their health. This research is divided in five parts: the contextualization on the colonization of biotechnological consumption; a diagnosis of neuronal violence and consequences for human development; a review of the cognition sequelae due to the abuse of biotechnologies, based on selected medical research; an exposition on the necessary relationships between the moral order and the legal one, from philosophical realism and natural law approaches; proposal of minimum fundamental rules, based, in turn, on a biojuridical specification of principles to protect cognitive health, which serve as preliminary support to elaborate a future Universal Declaration for the Protection of Cognitive Health, as an essential biological basis for human development.

The Institutional Natural Law Approach to Constitutional Interpretation

The Institutional Natural Law Approach to Constitutional Interpretation

On the Connection between Legal Understanding and Politics and Economics

The paper is devoted to the fundamental issues of modern legal regulation, in particular, its grounds and limits. The author substantiates the position according to which the absence of certain essential imperatives of law that help direct and restrict the functioning of public authorities and other subjects, complicates the activities of the latter, concedes its inconsistency and spontaneity, creates conditions for the perception of law as a kind of "designer" of economic, political and other relations. According to the author, the lack of unified conceptual criteria in determining the essence of law leads to an imbalance in public relations, to their turbulence at all levels (national, international, etc.) and as a result has a detrimental effect on the life and security of a person, society and the state.The author notes that at the present stage of civilization development, it is the economy with its interests and principles that acts as the "nerve", as the main driving mechanism in recognizing the status of the subject state. From the author’s point of view, economic interests and relations today form the world agenda, set the tone for political and legal relations, and often directly correct the value bases of other social regulators.The author summarizes that in general, the current situation in the international legal space, associated with the lack of a generally recognized doctrine of legal understanding alongside the variability and inconsistency of views in the field of human rights and freedoms based on the natural law approach, allows some subjects to arbitrarily interpret and impose certain decisions and positions in the course of their political activities, based on their own resources and potential. This supports law usurpation, making it an instrument of manipulation and blackmail in the field of politics, economics, culture, ecology, etc. in order to create the most profitable conditions and obtaining the expected results.Thus, the natural law approach, on the one hand, needs to be rethought, transformed, on the other hand, it needs to be refined or analyzed in detail when building an original concept of legal understanding.

Surrogacy and human flourishing

Opposition to legalizing surrogacy often involves the argument that it commodifies or objectifies women and children. When surrogacy involves consenting parties claiming to benefit from the transaction, commodification- or objectification-based arguments seem unpersuasive. This article argues that new natural law theory offers an alternative case against legalizing surrogacy based on the violation of basic goods of human flourishing, a notion which unpacks afresh what is really at stake in the commodification/objectification arguments. Exploring the new natural law approach through John Finnis’s theory, this article suggests that the new natural law case against surrogacy hinges on the link between childbirth and raising children, which turns out to be the major bone of contention in the surrogacy debate. The establishment of the link turns on answers to empirical questions as to what is in the best interests of the child, as well as on contested notions of motherhood, raising questions of a philosophical or normative nature. This article elucidates for policy makers and legislators the precise issues they must face squarely in order to determine whether to legalize or prohibit surrogacy arrangements.

Natural Law and Ethical Non-Naturalism

There is a lack of clarity in the literature about what constitutes the natural law approach to ethics and what is incompatible with it. The standard, and largely historical, way of understanding the natural law approach risks overlooking theoretical differences of fundamental importance regarding what the natural law approach is usually taken to uphold. Against Craig Paterson, I argue that a necessary condition for an ethical account to uphold fully the natural law approach is that it does not contain any dependence upon the metaethical category of non-naturalism understood in non-supernaturalist (secular) terms. Using the ‘new natural law’ theory of John Finnis to illustrate my case, I also argue that an ethical theory can be largely in keeping with the natural law approach but nonetheless contain elements at odds with it: the issue is more complex than a simple binary. This is an under-explored possibility in natural law ethics.

PECULIARITIES OF THE INTERRELATION BETWEEN INTERNATIONAL LAW AND MORALS IN TIME OF MODERN CHALLENGES

The article highlights the issue of interrelation of morality and international law in today’s challenges. It is pointed out that modern research is characterized by a variety of concepts and theories, which can be reduced to three approaches: denial of universal moral values as the basis of international law (positivism and realism), recognition of the most important moral norms as the fundamental foundations of international law (natural law approach) and correlation of rights and moral in various forms as a social fact (sociological concepts).The author proceeds from the fact that morality, which has become a fundamental basis of international law, without a sense of law is not able to ensure compliance with international law. The degree of observance of international law largely depends on how high its authority, how it corresponds to the legal culture of a particular society and how it expresses in the minds of people universal values and interests of mankind as a whole.Analyzing the relationship between morality and international law, the author highlights such issues as: moral principles and values of international law, the moral factor in the lawful and illegal behavior of international law, the relationship between international morality and power, international legal morality, war and intercivilizational conflicts. In order to better understand the state of modern international law, these issues are covered on the example of modern challenges: the Yugoslav events(the bombing of Kosovo in 1999), Russia’s aggression against Georgia and Ukraine, the Covid pandemic19 and others.The author argues that the international law of the XXI century under the influence of universalism, the process of globalization, human rights should develop in response to new challenges a system of truly equal relations based on universal moral principles and by overcoming the monopoly of states. The creation of a fair world order is impossible without the development of a clear code of conduct for states in the international arena. The reform of international law must be accompanied by the creation of new, effective and even rigid influencing mechanisms for state-violators of this code

Загальні принципи права: природно-правовий та позитивістський підходи до їх розуміння

Журнал «Публічне право» – фахове періодичне (щоквартальне) юридичне видання. Авторські матеріали науково-теоретичного та практичного характеру, узагальнення судової, правореалізаційної та правозастосовної діяльності з метою розвитку української національної юридичної науки та практики, удосконалення чинного законодавства.

The Limits of Natural Law: Liability for Wrongdoing in the Inleidinge

This article focuses on Grotius’s treatment of obligations arising from wrongdoing in his Inleidinge. The work has clear parallels with the natural law formulation of the same topic in De Jure Belli ac Pacis, and this article explores the extent of the similarities. It focuses on points of divergence, suggesting that the theoretical coherence of the natural law approach to obligations arising from wrongdoing was challenged primarily by extant legislative enactments. These provided either for region-specific doctrines, or rules that proved difficult to reconcile with the underlying principles of natural law, especially the primacy of fault. While much of the Inleidinge’s treatment of liability arising from wrongdoing is consonant with Grotius’ approach to the topic in De Jure Belli ac Pacis, these discrete points of dissimilarity serve as a reminder of the limits of theoretical accounts of private law.

Brian Besong. An Introduction to Ethics. A Natural Law Approach. [Book Review

Brian Besong. An Introduction to Ethics. A Natural Law Approach. [Book Review