Natural Law Theory Research Articles

Bondage by Degree: From Chattel to Wage Slavery in Seventeenth-Century English Thought

ABSTRACT This paper seeks to provide a framework to understand how institutions of bondage were perceived in the seventeenth century, focusing centrally on the ambiguities and nascent distinctions that arose in the wage-labour discourse. Many assumed that the emergence of wage labour was simply a novel reiteration of classical institutions of bondage. While there was a great deal of ambiguity around how institutions of domination were characterised, there was widespread agreement that wage-compensated labour was a form of bondage. There were meaningful differences to be made between captive slavery and wage labour, but these were almost universally understood to be differences in degree rather than in kind. This paper identifies three interrelated literatures that help to illuminate how wage labour was perceived in this period: texts on political economy and legal treatises; servant manuals and devotional literature, and finally, natural law theory. These discourses help to show that wage-compensated labour was understood to be a lesser form of bondage, one bound by different terms and conditions than captive slavery. Despite its differences to other forms of servitude, wage labour was clearly located on the same spectrum of bondage by degree.

New Natural Law, Derivationist Natural Law, and Evolutionary Debunking

Evolutionary debunking arguments attempt to show from the fact of evolution either that there are no evaluative truths existing independently of our evaluative judgments or that we lack knowledge of such truths. In this paper, I consider whether Sharon Street’s influential evolutionary debunking argument threatens natural law theory. I argue that new natural law theory is vulnerable to her argument but that derivationist versions of natural law theory (sometimes referred to as “traditional” or “old” natural law) have the resources to mount a defense. I show that new natural law theory’s account of how we know the precepts of natural law leaves the theory open to Street’s attack. I also show that derivationist natural law theory’s account—on which the precepts of natural law can be derived from facts about human nature and human fulfillment—gives deriviationists what they need for a defense.

Natural Law with and without God

There is a common perception of natural law theory as characteristically (if not necessarily) theistic. This is sometimes presented as a drawback by secular critics of natural law thinking. Natural law authors themselves differ on the role of theism within their theories. Some have argued that natural law theory presupposes theism, while others have sought to give their views a secular basis. This article explores the relationship between natural law theory and theism. I begin by defining the characteristic features of the natural law outlook. I show that these core aspects of natural law thought can be rendered consistent with both theistic and non-theistic worldviews. However, these worldviews may yield different responses to some fundamental questions about natural law, such as where natural law comes from; how (and to what extent) humans can know about natural law; why humans should follow natural law; and whether natural law changes. I explore the consequences for natural law theories of theistic and non-theistic answers to these questions. I then offer some reasons for thinking that a version of theism incorporating what I term ‘qualified teleological perfectionism’ provides the most coherent foundation for the natural law outlook.

Interpretation of law: From legal foundationalism to legal hermeneutics

This paper will explore the relationship between natural law theory, legal positivism, and legal hermeneutics in interpreting legal norms. This work investigates the transition from foundationalism, which bases law on specific objective values, to legal hermeneutics, which emphasizes the importance of interpretation in understanding law. The focus is on the change in perception of law, from an idea founded on objective norms to an understanding of law as a concept that relies on philosophical rather than solely legal interpretation. The central question of the paper - ?What is the essence of law?? - serves as a starting point for examining the history and evolution of the idea of law, reevaluating its significance through the prism of legal hermeneutics. The paper also explores how legal interpretation is vital in the philosophy of law, highlighting the differences between traditional theories of natural law and legal positivism and the newer, increasingly present legal hermeneutics.

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.

사회변동과 입헌주의

Revolutionary social changes have led to reformations in the constitutional system of countries in human history. In this sense, Constitutionalism has had a direct impact not only on the countries and their people, but also on the lives of the mankind as a whole. Constitutionalism in the modern sense, a concept that is based on a society in which people are the masters of their own and that guarantees human freedom and rights, originates from the American Revolution of 1787 and the French Revolution of 1789. The bourgeois revolution brought about a fundamental social transition from monarchical sovereignty dominated by absolute monarchies to popular sovereignty. Modern constitutionalism has gone through many kinds of “challenges and responses”. Firstly, the industrial revolution of the 19th century led to the Proletarian Revolution. In the 20th century, after World War I, the world was split into people's democracy and liberal democracy. After World War II, the world was divided even more sharply. After the fall of the Berlin Wall in 1989, however, communist people's democracy virtually came to an end. In the early 21st century, as the 9/11 terrorist attacks made a new inflection point, the traditional legal system and legal theory also brought about fundamental changes. In addition, with the progress of the intelligent information society, drastic changes are coming to human life.
 The Constitutionalism which is resulted from gradual social reform in Britain and radical social reform in the United States and France, has been the model one for other countries in the world. Yet, the establishment of Constitutionalism is still far away in the Middle East and Africa. Constitutionalism in Latin America also remains unstable. Constitutionalism in Asia is entering a stable stage in many countries. The discussion on whether globalization of Constitutionalism, “Global Constitutionalism”, is feasible, will be enabled only by considering both the current situation of the human world and the present status of individual Constitutionalism in each country simultaneously. As each country is developing its own Constitutionalism, global Constitutionalism must substantially guarantee the freedom and rights of each members of people based on popular sovereignty. Since the actual meaning of Constitutionalism very diverse in each country and the essence of Constitutionalism, in some country, could be seriously distorted, Global Constitutionalism is still far away and its implementation is also unclear.
 Unlike the nature of revolution, Constitutionalism is an ideology that is established on the continuity of history. People should internalize constitutional values for the success of Constitutionalism. It is time to develop a theory based both on a general understanding of foreign constitutional theories and on the norms and reality of Korean Constitution. In other words, while being based on modern natural law theory that is the common value of the modern constitution, it must be based on legal existentialism which recognizes and adapts to the existential legal norms and legal realities that are unfolding in Korea. By doing so, a theory of balance can be established in the understanding and practice of constitutional law through the harmonious development of legal ideology and legal stability that are sought to be established in the contemporary era. Only when the Constitution, the country's basic law and highest law, is implemented in the country and breathes with the people, does the Constitution become the “people's charter for life.” At that time, the Constitutionalism of a democratic rule of law based on popular sovereignty can open the way for the rule of law to take root in the lives of the people.

Novels 1914-1916 to the General Civil Code of the Austrian Empire 1811

The article is devoted to clarifying the reasons and prerequisites for the adoption of the Novels of 1914-1916 to the Austrian General Civil Code of 1811, a general characterization of their content and substantiation of their historical and legal significance.
 The author analyzed the state of problem processing; first of all, the author used the works of two professors of Lviv University of 20th century - the outstanding Polish civilian Ernest Till, who published the German text and the Polish translation of the Novel with his own explanations, as well as the prominent Ukrainian jurist Stanislav Dnistrіanskyі, who in 1919 translated the Code of 1811 and three Novels to it into Ukrainian. At the same time, the main attention in the article is given to the figure of the Austrian lawyer and statesman, professor of the University of Vienna, Joseph Unger, who presented the program of novelization of the Code of 1811 in his article of 1904 and later acted as its main developer at the head of the Special Commission.
 The author revealed the decisive influence of J. Unger on the spread of the historical school of law in the legal science of the Austrian monarchy, including its fundamental provisions regarding the reception of Roman law, the tradition of German pandectism; and, instead, critics of the theory of natural law; as well as on the introduction by scientists of a comparative legal approach in Austrian civil studies, thanks to which the reform of the General Civil Code of the Austrian Empire in 1811 was initiated. The author considered the 10-year codification process of changing the Code, which resulted in its novelization in 1914-1916.
 Therefore, the article elaborates the main content of the three Novels to the Code: the First Novel of October 12, 1914, the Second Novel of July 22, 1915, and the Third Novel of March 19, 1916, which made certain changes to personal, family, property, inheritance and obligation law. At the same time, the author stated that the revision of the General Civil Code of the Austrian Empire in 1811 did not fundamentally change its structure, nor the main principles and provisions, but was only aimed at adapting the Code to the contemporary conditions and needs.

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.

JEREMY BENTHAM’S UTILITY THEORY AND ITS INFLUENCE
 ON ANALYTICAL LEGAL POSITIVISM

The article deals with the question of the philosophical foundations of the theory of utilitarianism and its influence on the development of analytical jurisprudence. The author notes that the theory of utility was first fully formulated in the views of Jeremy Bentham, and lies in the fact that the powerful subject in the formation of a mandatory regulatory system must create real effective models of behaviour and grounds for the actions of subjects, useful for society as a whole. In many respects, this thesis in the current onto-epistemological conditions became a positive response to the emerging theories of natural law and significantly influenced the development of British legal positivism. At the same time, the question of the content of useful and effective law at the stages of formation and development of analytical positivism was perceived in different contexts. The classical theories of John Austin and Hans Kelsen emphasised the formal legal aspect of law, associated with the construction of an optimal enforcement system. Subsequently, in the theory of H. L. A. Hart, who revolutionised the British legal philosophy tremendously, the rational-utilitarian aspect was perceived and integrated into the concept of law. The author concludes that the theory of utility has become, in fact, in Western legal positivism, an alternative to natural law axiology, focusing on rational arguments for the conscious adoption of the normative system if it is effective.

Human Rights: From the Origins of Philosophical and Legal Thought to Modern Geopolitical Reality

The paper presents the author’s understanding of the unity of the logical and historical connection between the processes of formation of the institution of human rights and the formation of the idea of human rights in philosophical and legal concepts. The idea of human rights has historically been formed and put into practice as a result of several mutually dependent processes: firstly, the confrontation of social actors, the human struggle for the normative establishment of acceptable, decent standards and quality of life; secondly, the formation of the concept of «social justice» in the public consciousness on ethical and moral grounds that have developed in society; thirdly, the conceptualization of the worldview, philosophical, theoretical, ideological justification of human rights based on their understanding as natural, inalienable; fourthly, the international institutionalization of human rights; fifthly, the recognition of the institution of human rights in national legal systems. The significance of the social conflict that existed throughout the history of mankind as a source and driving force for the emergence of the idea of human rights is shown. The genesis of philosophical and legal ideas, starting from the period of Ancient Greece, expressing various aspects of the concepts of «justice», «freedom», «equality», «law», is investigated. The impossibility of formation is shown the formalized concepts of human rights before the formation of the theory of natural law. It is noted that the decisive factor in the beginning of the formation of the institution of human rights was the formation of natural law, the assertion of its influence on public consciousness. The importance of the bourgeois revolutions in Europe, which led to the formation of the Declaration of the Rights of Man and of the Citizen in 1789, is emphasized. The paper shows the fundamental difference between the socialist understanding of rights and freedoms from their understanding, which developed in the depths of bourgeois societies; the historical conditionality of the adoption of the Universal Declaration of Human Rights in 1948 after the Second World War is shown. The importance of the ideological foundations of human rights, the philosophical and legal explanation of the need for this institution is emphasized. A clash of worldviews in the understanding of human rights in the context of modern geopolitical reality is stated and an assumption is made about the possibility of forming a new concept (model of human rights).

Tom Angier’s Natural Law vs. the Natural Law Formula

This article presents a comprehensive overview and analysis of Tom Angier’s latest book, “Natural Law Theory”, published in 2021 by Cambridge University Press, and also compares its main conclusions with another study that analyses how natural law scholars have argued over the last century. To achieve this goal, the article initially outlines the core ideas of Angier’s book, which seeks to elucidate and assess the most significant theories of natural law throughout history, with an emphasis on the traditional approach rooted in Aristotle and the Stoics. Angier introduces the innovative “via negativa” method for identifying natural law principles within this framework. Following the exposition of the book’s content, the article draws parallels between Angier’s conclusions and the findings of another research project about the “Natural Law Formula” (or methods) currently used by natural law experts in legal literature. Both Angier and this research observe that contemporary authors face challenges in grounding the principles of natural law in the physical and spiritual human nature. Lastly, the article evaluates the “via positiva” and “via negativa” methodologies, highlighting their potential contradictions and concordances, while suggesting avenues for further refining Angier’s arguments.

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.

Abysmal jurisprudence: On the genesis of John Finnis’s practical guide to statesmen

John Finnis’s central role in Brexit was only the latest intervention in a long life of practical action that recommends a closer examination of the genesis of his distinctive philosophy. He always insisted that it was intended ‘primarily to assist the practical reflections of those concerned to act, whether as judges or as statesmen or as citizens.’ In this article, I argue that Finnis crafted his philosophy as a practical guide for conservative actors in the disenchanted Cold War world of the 1960–70s. My first aim is to excavate the theoretical foundations of his Thomist theory of natural law. While his turn to practical rather than speculative reason is well known, few if any appreciate how Finnis radically refounded Thomist natural law on an implicit theory of history. By accepting that the world was historically contingent and changing, he needed to show how we could know the timeless truth of practical reasonableness and the basic goods. In the final chapter of Natural Law and Natural Rights, Finnis introduced an ‘abysmal’ philosophy of history that explained how a spoudaios (wise man) could reason his way out of the historical contingency of the human world to access the timeless moral truths that transcended it. My second aim is to show how Finnis used his Thomist theory of natural law as a practical guide for action in our contingent world. He followed Eric Voegelin in describing humanity as two ‘hostile camps’ – the ‘transcendental’ Christians and their secular allies versus the ‘immanentist’ liberals, communists, and fascists all committed to ‘consequentialist’ ideologies. In this eternal battle of good versus evil, Finnis saw his philosophy as a practical guide for this ‘creative minority’ of transcendentalists for collective action against the heretical faith of immanentist movements aiming to perfect mankind and build heavens on earth.

Human rights and divine holiness

Abstract Theists commonly hold that God endows humans with rights. Standard explanations draw on natural law theory or divine command theory. However, the natural law account does not give God a central role in explaining our rights, and the divine command account does not assign human nature a significant explanatory role. A successful theistic explanation of human rights must meet three conditions: (1) God must directly explain human rights; (2) human nature must also directly explain human rights; (3) this dual contribution must explain why morality forbids rights violations by grounding the deontic reasons associated with rights. I propose a holiness account of rights. On this view, God endows human nature with rights by making human nature holy, and God does so by fashioning humans with one of God's essential properties: the capacity to love. This theory satisfies all three conditions and explains the deontological character of rights.

The principle of justice in wartime legislation: theoretical and legal analysis

The article considers the principle of the fundamental principle of law ¬ – justice in the state wartime regulation. The concept of justice is one of the cornerstones and most relevant issues of jurisprudence worldwide. The system of fundamental principles of law includes the principles of justice, equality, freedom and humanism. Their valuable combination is the principle of the rule of law. Existential conditions of war determine the aggravation of the public need for justice and its reflection in the current legislation. The legislator must take them into account in the rulemaking work. This applies to both institutional and subjective justice. It is also important to take into account the understanding of the principle of justice in law as freedom, and law as a measure of freedom. In the context of justice, both positive and negative freedom acquire meaning. The war increases psycho-emotional tension in the society to the maximum level. Under such circumstances, Leon Petrażycki’s Psychological Theory of Law takes on special significance. As the human psyche adapts to social life, law changes accordingly. Attention to the issues of justice in legislation increases the importance of natural law. Just as the Second World War caused a return to natural law theories, the events of the Russian-Ukrainian war are going to increase attention to human rights and increase the social role of natural law theories. In the conditions of war, Ukrainians demonstrate a high level of legal culture. There was no rise in mob violence or illegal establishment of justice in the society. Therefore, it is in the context of the legal procedure that ensuring procedural justice and the requirements of the rule of law gain their particular importance. In the conditions of war, the value features of law acquire special importance compared to the instrumental ones. Ensuring the moral value of the law, strengthening the role of the fundamental principles – the principle of justice and the principle of the rule of law should be the way to satisfy the increased public demand for justice in legislation. Key words: fundamental principles of law, justice, institutional justice, principle of rule of law, Psychological Theory of Law, Natural Law Theories.

Radical Natural Law

Abstract: Natural law theory has a long history, going back to the Stoics. Ernst Bloch, a twentieth-century Marxist theorist, offered a compelling radical reconstruction of natural law, locating its source in the resistance of those whose natural law entitlements are being denied. That resistance, Bloch held, constitutes a critical standpoint, which forms the basis for radical natural law. Bloch restricted the concept to humans, but it is here proposed that animals too have critical standpoints which constitute the basis for radical natural law.

The Personalist Basis of the Church's Teaching on Human Sexuality and the Natural Law in the Work of John Paul II. Part I.

Responding to Pope John Paul II's call to give the "ethical grounds and personalistic reasons" behind the Church's teaching on sexual morality, this reflection written over the span of two articles analyzes the norms of the natural law related to human sexuality from a personalist perspective. The key ideas of this study are drawn from two passages: one from Gaudium et spes which states that "The sexual characteristics of man and the human faculty of reproduction wonderfully exceed the dispositions of lower forms of life", the other from Humanae vitae stating that "Conjugal love reveals its true nature and nobility when it is considered in its supreme origin, God, who is love … and it is of supreme importance to have an exact idea of these." Part I provides an overview of natural law theory, explaining what it means that the natural law is not arbitrary, but the moral norms governing our actions in relation to the beings in the world are rooted in the nature and value of those things. Second, on the background of John Paul II's idea that "the body is the person," this article brings to light a type of bodily act (which I call an "embodying act") that is not only bodily, but one that forms an organic union with an act of the spirit. Finally, we examine here the nature of love as consisting of two dimensions: of mutual self-giving as well as the fruitfulness arising from mutual self-gift. The analysis of "embodying acts" together with the analysis of love will be crucial for arriving at one of the main conclusions in Part II, namely, that the Church's moral norms governing the use of the spousal act are not grounded in the biological structure of sex, but in the laws of love.

Философия «возрожденного» естественного права Рудольфа Штаммлера

The relevance of the research topic lies in the fact that in the modern world there is a clear distinction between law and non-law. The study of R. Stammler’s works reveals a new variant of approach to this issue. The aim of the study is to analyze the classical theory of natural law and the theory of “revived law” of Rudolf Stammler. In the domestic literature there are practically no works on the legal doctrine of the thinker, which makes the pre-sent study valuable for modern science. R. Stammler created a formula of the legal ideal, which is based on the evaluation of right or wrong conclusions. The approach to law developed by the thinker can be called neo-Kantian, as it reinterprets the philosopher’s ideas concerning natural law. In addition, it seems to be systematic for the development of this direction in science. It is emphasized that the R. Stammler’s concept can be used in lawmaking of the Russian Federation.

Mediated Morality as a Middle Position in Understanding the Relation between God and Morality

How should we understand the relation between God and morality? This article aims to address this question by constructing a theistic metaethical theory informed by postphenomenological mediation theory. According to postphenomenological mediation theory, properties and values are not independent entities but are instead mutually constituted through the relationships that they participate in. By emphasizing relationships and understanding goodness as harmony, the theory allows God and creation to jointly constitute goodness. This alternative theory is compared to the metaethical theories proposed by Robert M. Adams and Mark C. Murphy, which represent the two primary strands of theistic metaethics: theological voluntarism and natural law theory, respectively. The alternative theory exhibits certain advantages and resolves some of the issues found in Adams’ and Murphy’s theories.

Связь государства и права в концепции правопонимания Н.Е. Чижова

Law, as a phenomenon of civilization and culture, has been studied in science for more than one century. The greatest minds of mankind have tried to penetrate into the essence of law, to know the nature and define its concept. The scientific article is devoted to the analysis of the concept of law, set forth by the outstanding Russian jurist N.E. Chizhov (1853–1910). Scientific searches of N.E. Chizhov are associated with a legal understanding based on the norms of law, because they determine the external behavior of people in their life together. The scientist criticizes the theory of natural law, believing that the right is realized only in collective education with the interaction of people. This approach is consistent with the modern development of society, the values of which are: social partnership, economic, political and social solidarity, mutual trust of the state and society. The purpose of the study is to analyze the scientific works of N.E. Chizhov devoted to the concept of law and its relationship with the state. Emphasis is placed on understanding the nature of law through the nature of society and the state. The research methodology includes a wide range of scientific methods, in particular, universal (dialectical method), general scientific (analysis and synthesis), special (historical-legal, source-based method) and other methods of scientific cognition. The result of the conducted research was the conclusion about the demand for scientific knowledge of N.E. Chizhov in modern jurisprudence.