scholarly journals Between Natural Law and Legal Positivism: Dworkin and Hegel on Legal Theory

2006 ◽  
Author(s):  
Thom Brooks
Keyword(s):  
Natural Law ◽  
Legal Theory ◽  
Legal Positivism

scholarly journals General Principles of EU Law: The Ghost in the Platonic Heaven in Need of Conceptual Clarification

2013 ◽  
Vol 2 (1) ◽  
Author(s):  
Constanze Semmelmann
Keyword(s):  
Natural Law ◽  
General Principle ◽  
Legal Theory ◽  
Legal Positivism ◽  
Legal Philosophy ◽  
Eu Law ◽  
Conceptual Clarification

General principles are en vogue in EU law – and in need of conceptual clarification. A closer look at several concepts of principle in legal philosophy and legal theory sheds light upon the concept of general principles in EU law. A distinction between an aprioristic model of principle and a model of principle informed by legal positivism may contribute to clarifying the genesis of a (general) principle in EU law, as well as its nature and functions. This paper demonstrates that an evolution has taken place from a reliance on seemingly natural law inspired reflections of general principles via the desperate search to ground general principles in various kinds of sources based on a more or less sound methodology  towards an increasing reliance on strictly positivistic approaches. Against this backdrop, general principles are likely to lose significance where there are other norms while retaining an important yet uncontrollable role where the traditional canon of sources is silent.

Natural Law

2019 ◽  
pp. 174-203
Author(s):  
Lenn E. Goodman
Keyword(s):  
Natural Law ◽  
Legal Theory ◽  
Natural Theology ◽  
Human Freedom ◽  
Naturalistic Fallacy ◽  
Legal Positivism ◽  
Human Beings ◽  
Theology And Science ◽  
Great Tradition

Natural law links moral and legal theory with natural theology and science. It is critical to thinking about God’s sovereignty and human freedom. Tracing the roots of the natural law idea, I defend the approach against conventionalism and legal positivism. For they leave human norms ungrounded. Chapter 7 opens by disarming Hume’s elenchus about ‘is’ and ‘ought’. I do not deny the reality of a naturalistic fallacy, but I do argue that facts make rightful claims on us and that the unity of reality and value central to Jewish thinking and to the philosophical great tradition does not confuse facts with values but does appreciate the preciousness of being—of life and personhood most pointedly. Once again here transcendence consorts with immanence. For we find God’s law writ subtly in nature, not least when we discover what it means to perfect ourselves as loving and creative human beings.

scholarly journals Hart's Methodological Positivism

Legal Theory ◽  
1998 ◽  
Vol 4 (4) ◽  
pp. 427-467 ◽  
Author(s):  
Stephen R. Perry
Keyword(s):  
General Theory ◽  
Natural Law ◽  
Legal Theory ◽  
Legal Positivism ◽  
Social Phenomenon ◽  
Modern Times ◽  
Theory Of Law ◽  
Michael Moore

To understand H.L.A. Hart's general theory of law, it is helpful to distinguish between substantive and methodological legal positivism. Substantive legal positivism is the view that there is no necessary connection between morality and the content of law. Methodological legal positivism is the view that legal theory can and should offer a normatively neutral description of a particular social phenomenon, namely law. Methodological positivism holds, we might say, not that there is no necessary connection between morality and law, but rather that there is no connection, necessary or otherwise, between morality and legal theory. The respective claims of substantive and methodological positivism are, at least on the surface, logically independent. Hobbes and Bentham employed normative methodologies to defend versions of substantive positivism, and in modern times Michael Moore has developed what can be regarded as a variant of methodological positivism to defend a theory of natural law.

Choosing a Legal Theory on Moral Grounds

1986 ◽  
Vol 4 (1) ◽  
pp. 31-48 ◽  
Author(s):  
Philip Soper
Keyword(s):  
Natural Law ◽  
Moral Theory ◽  
Legal Theory ◽  
Moral Authority ◽  
Legal Positivism ◽  
The Other ◽  
Law And Morality ◽  
The Cost ◽  
Practical Implications

I. INTRODUCTIONTwenty-five years is roughly the time that has elapsed since the exchange between H. L. A. Hart and Lon Fuller and the subsequent revival in this country of the natural law/positivism debate. During this time, a curious thing has happened to legal positivism. What began as a conceptual theory about the distinction between law and morality has now been turned, at least by some, into a moral theory. According to this theory, the reason we must see law and morality as separate is not (at least not entirely) because of the logic of our language, but because of the practical implications of holding one or the other of the two traditional views in this area. The natural law theorist, it is said, can connect law and morality only at the cost of investing official directives with undeserved moral authority, thus encouraging obedience where there should be none. The natural law position should therefore be rejected – and the positivist's accepted – on moral grounds.

scholarly journals Mapping Legal Theory

1994 ◽  
Vol 32 ◽  
pp. 602 ◽  
Author(s):  
Richard F. Devlin
Keyword(s):  
First Nations ◽  
Natural Law ◽  
Legal Theory ◽  
Legal Positivism ◽  
Legal Realism ◽  
Canadian Charter ◽  
Social Existence ◽  
Legal Studies ◽  
Recent Trends

In this essay, the author briefly outlines recent trends in Canadian jurisprudence. Beginning with a brief overview of the classical jurisprudential debate between natural lawyers, legal positivists, and legal realists, the author then provides an introduction to a new theoretical tradition which he terms "Artifactualism", as well as a survey of contemporary "Artifactualist Jurisprudence". He argues that there has been a significant theoretical shift away from the classical conceptualization of law as morality (as embodied in natural law, and challenged by legal positivism and legal realism), toward the conceptualization of law as politics (as promulgated by artifactualism). This new conceptualization of law as the "terrain of struggle over the meaning and quality of social existence" has informed the works of Artifactualist jurisprudents in the areas of Liberalism, Marxism, Feminism, First Nations and Critical Legal Studies, and serves to elucidate some of the tensions in the Canadian Charter of Rights and Freedoms.

scholarly journals El problema de la relación entre derecho y moral

2021 ◽  
pp. 65-80
Author(s):  
José Luis López Fuentes
Keyword(s):  
Natural Law ◽  
Legal Theory ◽  
Legal Positivism ◽  
Ronald Dworkin ◽  
Law And Morality ◽  
The Relationship

RESUMEN: En el presente trabajo, con base en las teorías iusnaturalistas y del positivismo jurídico, se busca ofrecer un breve acercamiento al desarrollo que han tenido a través del tiempo las tesis más importantes en torno al problema de la relación entre derecho y moral, hasta llegar a lo que actualmente es denominado antipositivismo jurídico, pues el objetivo de este documento es presentar un análisis y exposición de las aportaciones de esta corriente de pensamiento a la teoría jurídica contemporánea, para lo cual, se analizan las propuestas de Ronald Dworkin y Robert Alexy, en especial de la tesis de los principios, y su relevancia en la interpretación y aplicación de la ley.ABSTRACT: In this work, based on natural law theories and legal positivism, I seek to offer a brief approach  to the development that the most important theses have had throughout time regarding the problem of the relationship between law and morality, arriving at what we now call legal anti-positivism, the objective of this document is to present an analysis and exposition of the contributions of this current of thought to contemporary legal theory, for which the proposals of Ronald Dworkin and Robert Alexy are analyzed, specially the thesis of the principles, and its relevance in the interpretation and application of the law.Keywords: Natural law theories, legal positivism, legal antipositivism, moral, thesis of principles.

scholarly journals Hobbes’s Third Jurisprudence: Legal Pragmatism and the Dualist Menace

2020 ◽  
Vol 33 (1) ◽  
pp. 183-214
Author(s):  
B.L.S. Nelson
Keyword(s):  
Natural Law ◽  
Legal Theory ◽  
Civil Law ◽  
Legal Positivism ◽  
Third Way ◽  
Trade Offs ◽  
Pragmatic Interpretation ◽  
Legal Pragmatism

This paper explores the possibility that Hobbesian jurisprudence is best understood as a “third way”? in legal theory, irreducible to classical natural law or legal positivism. I sketch two potential “third theories”? of law—legal pragmatism and legal dualism—and argue that, when considered in its broadest sense, Leviathan is best viewed as an example of legal pragmatism. I consider whether this legal pragmatist interpretation can be sustained in the examination of Leviathan’s treatment of civil law, and argue that the pragmatic interpretation can only be successful if we can resolve two textual issues in that chapter. First, while Hobbes argues that law entails the existence of public (sharable) reasons, he does not adequately defend the view that the sovereign is the unique authority over such reasons in all cases, especially as far as they concern known collective emergencies. Second, Hobbes both affirms and denies that a sovereign can fail to do justice, which is paradoxical. Both problems are best resolved by legal pragmatism, though the second problem resists a fully satisfying resolution. The upshot is that, although Leviathan ought to be regarded as an episode of legal pragmatism, there are trade-offs on every reading.

scholarly journals Jhon Austin's Positivism Legal Policy: Convergence of Natural Law

2021 ◽  
Vol 8 (9) ◽  
pp. 401
Author(s):  
Arief Budiono ◽  
Dewi Iriani ◽  
Nunik Hariyani ◽  
Erma Ullul Janah
Keyword(s):  
Natural Law ◽  
Legal Theory ◽  
Human Life ◽  
Ancient Greece ◽  
Legal Positivism ◽  
Legal Research ◽  
Legal Policy ◽  
The Law ◽  
State Of Power ◽  
John Austin

Legal positivism is influenced by natural law from Ancient Greece, natural law comes from God to regulate human life. Humans were created by reason by God to make rules, John Austin stated that to make a rule sourced from orders or policies in the field of law by the king or parliament as the highest authority. This influenced the thinking of Hans Klesen with a pure legal theory that complies with hierarchical rules and sanctions, Hart's legal positivism explains that law comes from morals that regulate one's behavior. This paper is in the form of legal research in literature studies in the form of books and journals that discuss positivism legal policy, which is legal research, then analyzed using the John Austin doctrine. The advantage of the influence of natural law on legal positivism according to Austin is that it divides the law into two forms, namely the law from God for humans (the divine law), the law created by God for His creatures. Laws are compiled and made by humans, which consist of: Laws that are actually positive laws (properly so called), and laws that are not actually laws (improperly so called). 2. The doctrine of legal positivism, state power must be limited and controlled by law, the state must be constructed as a state of law and not a state of power. Every citizen is considered to have the same position, law enforcers to think and act legally formalistically, by placing legal justice as the goal of law.

The Acceptance of a Legal System

1990 ◽  
Vol 3 (2) ◽  
pp. 81-106
Author(s):  
Roger A. Shiner
Keyword(s):  
Political Theory ◽  
Legal System ◽  
Natural Law ◽  
Legal Theory ◽  
Legal Positivism ◽  
Separation Thesis ◽  
Natural Law Theory ◽  
The Right ◽  
Independent Account

The interest of political theory in the acceptance of law is obvious. If one believes that a regime is legitimate only if it governs with the consent of the governed, then the notion of acceptance is deeply linked with the notion of legitimacy, a fundamental concern of political theory. The interest of legal theory in the notion of acceptance is less obvious. I construe it to arise in the following way. One central tradition in legal theory is that of positivistic or content-independent theories of law. Positivism, crudely speaking, is characterized by some form of the Separation Thesis—that the existence of law is one thing and its merit or demerit another. But if it is important for positivistic legal theory to mark the separation of law and the merits of law, then it must also be important to mark the separation between law and the acceptance of law. The existence of law must be one thing and its acceptance as meritorious another. In deference to the separation of existence and merit, positivism tries to find a content-independent account of the validity of law. Equally, in deference to the separation of law and acceptance, positivism tries to find a content-independent account of the acceptance of law. The topic of this paper is whether the separation of law and the acceptance of law is possible. I shall try to suggest, in service of a non-positivistic or content-dependent approach to law, that this separation is not possible. I will attempt to argue on the basis of points which legal positivism itself has acknowledged to form valid constraints on any theory of acceptance. My ambitious thesis is that positivism has presented us with the reasons for rejecting it. Even if that thesis is not made out, I have a less ambitious thesis which I am confident of securing, that the demand for an account of law which permits law to be accepted ‘for any reason whatever’ is not a theoryneutral demand which might decide between positivism and natural law theory. Rather, it is an expression of a prior commitment to positivism. It is the familiar demand of natural law theory that the convergence of attitudes towards law which makes for acceptance of law must be a convergence for the right kind of reasons; ones that have to do with the value of law.

scholarly journals In Praise of Jus Cogens' Conceptual Incoherence

2018 ◽  
Author(s):  
Jens David Ohlin
Keyword(s):  
Natural Law ◽  
Legal Theory ◽  
Modern Human ◽  
Point Of View ◽  
Legal Positivism ◽  
Legal Norms ◽  
Moral Content ◽  
Jus Cogens ◽  
Noble Lie

The most compelling account of jus cogens is that it flows from natural law and constitutes the “ethically minimum” content of international law. Although natural law was once considered an acceptable and obvious approach to jurisprudence, its significance has waned at the expense of legal positivism. However, the hierarchical quality of jus cogens is best explained by some element of natural law—and its explicit invocation of moral content—rather than anything one might find in legal positivism.Of course, international lawyers have persistently refused to recognize the latent naturalism within jus cogens. While rueful from the point of view of legal theory, the obfuscation was nonetheless essential for jus cogens to succeed. In an alternate world where jus cogens was correctly viewed as a vestige of natural law, modern international lawyers would never have accepted it.One might lament the failure to recognize the natural law origins of jus cogens because it hampered the development of standards for identifying which legal norms counted as jus cogens. However, no account of jus cogens offers compelling, unambiguous criteria, and second, the lack of clarity on its criteria was a good price to pay in exchange for the legal category’s widespread adoption. In the end, the notion that jus cogens is consistent with international law’s legal positivism was a useful fiction, a “noble lie” that gave us modern human rights law.

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