Natural Law Jurisprudence Research Articles

A Natural Lawyer Takes a Sympathetic Look at Post-Modernism

The piece argues that classic natural law jurisprudence, with its historic concern for a just social order, has more in common with post-modern thinking than either school has acknowledged.

Legal naturalism: a Marxist theory of law

Legal Naturalism advances a clear and convincing case that Marx's theory of law is a form of natural law jurisprudence. It explicates both Marx's writings and the idea of natural law, and makes a forceful contribution to current debates on the foundations of law. Olufemi Taiwo argues that embedded in the corpus of Marxist writing is a plausible, adequate, and coherent theory. He describes Marx's general concept of law, which he calls legal naturalism. For Marxism, natural law isn't a permanent verity; it refers to the basic law of a given epoch or social formation which is an essential aspect of its mode of production. Capitalist law is thus natural law in a capitalist society and is politically and morally progressive relative to the laws of preceding social formations. Taiwo emphasizes that these formations are dialectical or dynamic, not merely static, so that the law which is naturally appropriate to a capitalist economy will embody tensions and contradictions that replicate the underlying conflicts of that economy. In addition, he discusses the enactment and reform of positive law-law established by government institutions-in a Marxian framework.

Group Rights and Individual Rights in Japan

IN JAPAN, as in other functioning democracies, law and society combine to promote, protect, and restrict individual rights. With the striking degree of group orientation in Japan, many strengths and weaknesses in the status of individual rights are manifested in contexts defined by a group's sense of its own rights as a collectivity. Since cross-cultural communication on human rights issues is at best difficult, and since later descriptions of problems involve interpretive comment and value judgment on law and social patterns in Japan, it seems important to state at the outset my underlying assumptions. In this article, which stresses society more than law, the first assumption concerns human rights theory. Diversity among nations in cultural preferences and in social, economic, and political conditions must be taken into account for fair assessment of rights under law in any given country; but at the same time a transcultural natural law jurisprudence grounded in explicit or implicit recognition of each person's intrinsic dignity is an essental element in an intersubjectively persuasive and interculturally reasonable human rights theory.1 As here

A Lawyer Looks at Natural Law Jurisprudence

A Lawyer Looks at Natural Law Jurisprudence

Thomas Hobbes and the Modern Theory of Natural Law

Thomas Hobbes and the Modern Theory of Natural Law FREDERICK A. OLAFSON IT IS WIDELYAGREEDthat in the course of the seventeenth century there took place an extensive re-casting of some of the most fundamental assumptions with respect to the nature of law that had come down from classical antiquity and had been incorporated into the principal philosophies of law of the High Middle Ages. What is not always so clearly understood is the fact that this change was effected as an internal transformation of the theory of natural law and that the writers whose names are most closely associated with this change---Grotius, Pufendorf, and others--were merely the most illustrious representatives of a flourishing school of natural law jurisprudence that dominated political and legal thought in Western Europe down to the end of the eighteenth century. Some commentators have suggested the special character of this modern theory of natural law by describing it as essentially a doctrine of natural rights. Others have argued that the crucial innovation that inspired that theory was a shift from a substantive to a formal interpretation of the norms on which the positive law depends for its moral validity. Such characterizations undoubtedly contain much that is both true and important and yet it must be admitted that they do not by themselves afford much insight into the properly philosophical motives that led to the change they summarize. Too often the explanations offered are more sociological or political than philosophical and relate the distinctive features of modern natural law theory to the preoccupations of some special interest group that needed a theory of law tailored to its own aspirations . This is unfortunate to the extent that it blocks an understanding of the genuine and unavoidable theoretical issues which the older, medieval theory of natural law posed for its continuators in the early modern period as well as of the reasoning by which the latter were led to re-formulate that theory in their own distinctive way. In this paper I propose to reconstruct some of the considerations that led to the reinterpretation of natural law as a set of formal or procedural directives and for this purpose I propose to use as my guide the political philosophy of Thomas Hobbes. This choice may occasion some surprise. There is a long tradition that attributes to Hobbes the view--also imputed, rightly or wrongly, to Machiavelli before him and later to the legal positivists from Austin onward--that the state and its laws are subject to no moral controls at all; and if this imputation were well-founded, then ttobbes would indeed have to be classified with those writers [15] 16 HISTORY OF PHILOSOPHY who, by denying the reality of any higher moral law to which the sovereign authority is responsible, reject the fundamental premise of all natural law theory. Largely as a result of the remarkable study of Hobbes's political philosophy by Professor Howard Warrender, however, we are in a position to see just how inadequate and often flatly mistaken this version of Hobbes's achievement really is.1 It becomes apparent that the extraordinary power and permanent interest of Hobbes's theory are due, not to the simple absence of any theory of moral, as distinct from legal, obligation but to the way Hobbes transformed the notion of a higher law and the obligation it imposes so as to avoid the difficulties attendant upon this notion in its earlier forms. What emerges from this re-appraisal of ttobbes's thought is a figure with strong affiliations to the natural law tradition which he subjects to searching criticisms and equally profound revisions. If Professor Warrender's account places primary emphasis on the elements of continuity with the older tradition he has also clearly revealed the general nature of the innovation through which Hobbes set his stamp on so much subsequent political thought in the modern period. There is no single figure that illustrates as clearly as the Hobbes Professor Warrender has taught us to understand both the transformation of the older tradition of natural law and the initiation of a new one. What this paper undertakes to provide is simply a fuller statement of...

Contemporary Juristic Theory, Civil Rights, and American Politics

The severe disputations which rage in contempo rary jurisprudential thought revolve primarily around certain vexing philosophical and ethical questions which cast jurispru dential thought into various philosophical molds or schools. The viewpoints of contemporary juristic theories, however, are also definitely colored by ideological factors of a conservative or of a liberal character, although, in most instances, these fac tors have remained either unclarified or completely lost in the intricacies of philosophical disputation. A significant feature of jurisprudential thought today is the strong revival of inter est in natural-law theory. Sharp differences of opinion center particularly around the implications and consequences of natu ral-law jurisprudence for liberalism and conservatism as well as for civil rights and racial desegregation. Despite the fact that natural-law theories might embrace essentially different phenomena or that they might be used for contradictory pur poses, in all their forms they are marked by characteristics which make natural-law doctrine essentially and fundamentally conservative. Sociological jurisprudence and legal realism, on the other hand, may be regarded as the principal forms of ex pression of liberalism in the area of juristic thought. The liberal implications and consequences of these lines of thought for civil rights and desegregation cases are especially evident.