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Author: R. H. Helmholz
Publisher: Harvard University Press
ISBN: 0674504615
Category : Law
Languages : en
Pages : 285
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Book Description
The theory of natural law grounds human laws in the universal truths of God’s creation. Until very recently, lawyers in the Western tradition studied natural law as part of their training, and the task of the judicial system was to put its tenets into concrete form, building an edifice of positive law on natural law’s foundations. Although much has been written about natural law in theory, surprisingly little has been said about how it has shaped legal practice. Natural Law in Court asks how lawyers and judges made and interpreted natural law arguments in England, Europe, and the United States, from the beginning of the sixteenth century to the American Civil War. R. H. Helmholz sees a remarkable consistency in how English, Continental, and early American jurisprudence understood and applied natural law in cases ranging from family law and inheritance to criminal and commercial law. Despite differences in their judicial systems, natural law was treated across the board as the source of positive law, not its rival. The idea that no person should be condemned without a day in court, or that penalties should be proportional to the crime committed, or that self-preservation confers the right to protect oneself against attacks are valuable legal rules that originate in natural law. From a historical perspective, Helmholz concludes, natural law has advanced the cause of justice.
Author: R. H. Helmholz
Publisher: Harvard University Press
ISBN: 0674504615
Category : Law
Languages : en
Pages : 285
Get Book Here
Book Description
The theory of natural law grounds human laws in the universal truths of God’s creation. Until very recently, lawyers in the Western tradition studied natural law as part of their training, and the task of the judicial system was to put its tenets into concrete form, building an edifice of positive law on natural law’s foundations. Although much has been written about natural law in theory, surprisingly little has been said about how it has shaped legal practice. Natural Law in Court asks how lawyers and judges made and interpreted natural law arguments in England, Europe, and the United States, from the beginning of the sixteenth century to the American Civil War. R. H. Helmholz sees a remarkable consistency in how English, Continental, and early American jurisprudence understood and applied natural law in cases ranging from family law and inheritance to criminal and commercial law. Despite differences in their judicial systems, natural law was treated across the board as the source of positive law, not its rival. The idea that no person should be condemned without a day in court, or that penalties should be proportional to the crime committed, or that self-preservation confers the right to protect oneself against attacks are valuable legal rules that originate in natural law. From a historical perspective, Helmholz concludes, natural law has advanced the cause of justice.
Author: Tony Burns
Publisher: Bloomsbury Publishing
ISBN: 1441107169
Category : Philosophy
Languages : en
Pages : 225
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Book Description
Aristotle and Natural Law lays out a new theoretical approach which distinguishes between the notions of 'interpretation,' 'appropriation,' 'negotiation' and 'reconstruction' of the meaning of texts and their component concepts. These categories are then deployed in an examination of the role which the concept of natural law is used by Aristotle in a number of key texts. The book argues that Aristotle appropriated the concept of natural law, first formulated by the defenders of naturalism in the 'nature versus convention debate' in classical Athens. Thereby he contributed to the emergence and historical evolution of the meaning of one of the most important concept in the lexicon of Western political thought. Aristotle and Natural Law argues that Aristotle's ethics is best seen as a certain type of natural law theory which does not allow for the possibility that individuals might appeal to natural law in order to criticize existing laws and institutions. Rather its function is to provide them with a philosophical justification from the standpoint of Aristotle's metaphysics.
Author: James Bernard Murphy
Publisher: Yale University Press
ISBN: 0300138016
Category : Law
Languages : en
Pages : 254
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Book Description
In this first book-length study of positive law, James Bernard Murphy rewrites central chapters in the history of jurisprudence by uncovering a fundamental continuity among four great legal philosophers: Plato, Thomas Aquinas, Thomas Hobbes, and John Austin. In their theories of positive law, Murphy argues, these thinkers represent successive chapters in a single fascinating story. That story revolves around a fundamental ambiguity: is law positive because it is deliberately imposed (as opposed to customary law) or because it lacks moral necessity (as opposed to natural law)? These two senses of positive law are not coextensive yet the discourse of positive law oscillates unstably between them. What, then, is the relation between being deliberately imposed and lacking moral necessity? Murphy demonstrates how the discourse of positive law incorporates both normative and descriptive dimensions of law, and he discusses the relation of positive law not only to jurisprudence but also to the philosophy of language, ethics, theories of social order, and biblical law.
Author: Stuart Banner
Publisher: Oxford University Press
ISBN: 0197556493
Category : Common law
Languages : en
Pages : 265
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Book Description
The law of nature -- The common law -- The adoption of written constitutions -- The separation of law and religion -- The explosion in law publishing -- The two-sidedness of natural law -- The decline of natural law and custom --Substitutes for natural law -- Echoes of natural law.
Author: Richard Berquist
Publisher: Catholic University of America Press
ISBN: 0813232422
Category : Law
Languages : en
Pages : 264
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Book Description
From Human Dignity to Natural Law shows how the whole of the natural law, as understood in the Aristotelian Thomistic tradition, is contained implicitly in human dignity. Human dignity means existing for one’s own good (the common good as well as one’s individual good), and not as a mere means to an alien good. But what is the true human good? This question is answered with a careful analysis of Aristotle’s definition of happiness. The natural law can then be understood as the precepts that guide us in achieving happiness. To show that human dignity is a reality in the nature of things and not a mere human invention, it is necessary to show that human beings exist by nature for the achievement of the properly human good in which happiness is found. This implies finality in nature. Since contemporary natural science does not recognize final causality, the book explains why living things, as least, must exist for a purpose and why the scientific method, as currently understood, is not able to deal with this question. These reflections will also enable us to respond to a common criticism of natural law theory: that it attempts to derive statements of what ought to be from statements about what is. After defining the natural law and relating it to human or positive law, Richard Berquist considers Aquinas’s formulation of the first principle of the natural law. It then discusses the love commandments to love God above all things and to love one’s neighbor as oneself as the first precepts of the natural law. Subsequent chapters are devoted to clarifying and defending natural law precepts concerned with the life issues, with sexual morality and marriage, and with fundamental natural rights. From Human Dignity to Natural Law concludes with a discussion of alternatives to the natural law.
Author: Dr Ana Marta González
Publisher: Ashgate Publishing, Ltd.
ISBN: 1409485668
Category : Philosophy
Languages : en
Pages : 338
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Book Description
Resorting to natural law is one way of conveying the philosophical conviction that moral norms are not merely conventional rules. Accordingly, the notion of natural law has a clear metaphysical dimension, since it involves the recognition that human beings do not conceive themselves as sheer products of society and history. And yet, if natural law is to be considered the fundamental law of practical reason, it must show also some intrinsic relationship to history and positive law. The essays in this book examine this tension between the metaphysical and the practical and how the philosophical elaboration of natural law presents this notion as a "limiting-concept", between metaphysics and ethics, between the mutable and the immutable; between is and ought, and, in connection with the latter, even the tension between politics and eschatology as a double horizon of ethics. This book, contributed to by scholars from Europe and America, is a major contribution to the renewed interest in natural law. It provides the reader with a comprehensive overview of natural law, both from a historical and a systematic point of view. It ranges from the mediaeval synthesis of Aquinas through the early modern elaborations of natural law, up to current discussions on the very possibility and practical relevance of natural law theory for the contemporary mind.
Author: Kody W. Cooper
Publisher: University of Notre Dame Pess
ISBN: 0268103046
Category : Philosophy
Languages : en
Pages : 413
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Book Description
Has Hobbesian moral and political theory been fundamentally misinterpreted by most of his readers? Since the criticism of John Bramhall, Hobbes has generally been regarded as advancing a moral and political theory that is antithetical to classical natural law theory. Kody W. Cooper challenges this traditional interpretation of Hobbes in Thomas Hobbes and the Natural Law. Hobbes affirms two essential theses of classical natural law theory: the capacity of practical reason to grasp intelligible goods or reasons for action and the legally binding character of the practical requirements essential to the pursuit of human flourishing. Hobbes’s novel contribution lies principally in his formulation of a thin theory of the good. This book seeks to prove that Hobbes has more in common with the Aristotelian-Thomistic tradition of natural law philosophy than has been recognized. According to Cooper, Hobbes affirms a realistic philosophy as well as biblical revelation as the ground of his philosophical-theological anthropology and his moral and civil science. In addition, Cooper contends that Hobbes's thought, although transformative in important ways, also has important structural continuities with the Aristotelian-Thomistic tradition of practical reason, theology, social ontology, and law. What emerges from this study is a nuanced assessment of Hobbes’s place in the natural law tradition as a formulator of natural law liberalism. This book will appeal to political theorists and philosophers and be of particular interest to Hobbes scholars and natural law theorists.
Author: Olufemi Taiwo
Publisher: Cornell University Press
ISBN: 1501701746
Category : Law
Languages : en
Pages : 228
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Book Description
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 legal 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.
Author: Petar Popovic
Publisher: CUA Press
ISBN: 0813235502
Category : Law
Languages : en
Pages : 328
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Book Description
This book proposes a rather novel legal-philosophical approach to understanding the intersection between law and morality. It does so by analyzing the conditions for the existence of a juridical domain of natural law from the perspective of the tradition of Thomistic juridical realism. In order to highlight the need to reconnect with this tradition in the context of contemporary legal philosophy, the book presents various other recent jurisprudential positions regarding the overlap between law and morality. While most authors either exclude a conceptual necessity for the inclusion of moral principles in the nature of law or refer to the purely moral status of natural law at the foundations of the legal phenomenon, the book seeks to elucidate the essential properties of the juridical status of natural law. In order to establish the juridicity of natural law, the book explores the relevant arguments of Thomas Aquinas and some of his main commentators on this issue, above all Michel Villey and Javier Hervada. It establishes that Thomistic juridical realism observes the juridical phenomenon not only from the perspective of legal norms or subjective individual rights, but also from the perspective of the primary meaning of the concept of right (ius), namely, the just thing itself as the object of justice. In this perspective, natural rights already possess a fully juridical status and can be described as natural juridical goods. In addition, from the viewpoint of Thomistic juridical realism, we can identify certain natural norms or principles of justice as the juridical title of these rights or goods. The book includes an assessment of the prospective points of dialogue with the other trends in Thomistic legal philosophy as well as with various accounts of the nature of law in contemporary legal theory.
Author: Kenneth Einar Himma
Publisher:
ISBN: 0198854935
Category : Law
Languages : en
Pages : 289
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Book Description
Oxford Legal Philosophy publishes the best new work in philosophically-oriented legal theory. It commissions and solicits monographs in all branches of the subject, including works on philosophical issues in all areas of public and private law, and in the national, transnational, and international realms; studies of the nature of law, legal institutions, and legal reasoning; treatments of problems in political morality as they bear on law; and explorations in the nature and development of legal philosophy itself. The series represents diverse traditions of thought but always with an emphasis on rigor and originality. It sets the standard in contemporary jurisprudence. Book jacket.
