Legal Meaning Nature

Some responses to the question addressed in Section 2.1 suggest that legal theories are inherently evaluative in that they force proponents of these theories to make hasty claims about the law. As we shall see, this is most plausible in the constructive interpretation of the methodology. On the other hand, other answers to the question discussed in section 2.1 obviously do not imply that first-rate legal theories force their proponents to make thick hasty assertions. This applies in particular to the conceptual analysis and reductive perspectives of case-law methodology. At first glance, these two views seem to allow for purely descriptive legal representations—that is, relationships that capture the central features of the law without engaging in a moral or global evaluation of the law. Finally, one might think that a particular report captures a widely used legal concept, but that does not, of course, oblige us to say that the law is good at that concept. Similarly, one could advocate a reduction of legal facts to a more basic set of facts (e.g., certain social facts) without the need to think that the law is valid or morally justified. Because of its origins in the Old Testament, the early Church Fathers, especially those in the West, regarded natural law as part of the natural foundation of Christianity. The most remarkable of these was Augustine of Hippo, who equated natural law with the prelapsed condition of humanity; as such, living according to uninterrupted human nature was no longer possible and people had to seek healing and salvation through divine law and the grace of Jesus Christ.

Cicero influenced the discussion of natural law for many centuries, until the era of the American Revolution. The jurisprudence of the Roman Empire was rooted in Cicero, who „had an extraordinary grip. on the imagination of posterity” as „a means of disseminating the ideas that shaped the law and institutions of the Reich.” [28] Cicero`s conception of natural law „found its way into the following centuries, especially through the writings of St. Isidore of Seville and Gratian`s Decretum.” [29] Thomas Aquinas, in his summary of medieval natural law, quoted Cicero`s statement that „nature” and „custom” were the sources of the laws of a society. [30] Remarkably, the first premise of Dworkin`s general argument is highly questionable. Some legal philosophers have argued that legal reasoning is not interpreted as fully as Dworkin assumes. The interpretation, according to this view, long by H.L.A. Hart (1961, chapter 7) is an exception to the standard understanding of language and communication, which becomes necessary only when the law is unclear for some reason. In most common cases, however, the law can be easily understood and applied without mediating interpretations (Marmor 2011, Chapter 6). British polemicist Thomas Gordon „incorporated Cicero into the radical ideological tradition that traveled from the mother country to the colonies during the eighteenth century and decisively shaped early American political culture.” [35] Cicero`s description of immutable, eternal, and universal natural law was quoted by Burlamaqui[36] and later by the American revolutionary jurist James Wilson.

[37] Cicero became John Adams` „principal model of public service, republican virtue, and forensic eloquence.” [38] Adams wrote of Cicero: „Since all the ages of the world have not produced a greater statesman and philosopher united in the same character, his authority should carry great weight.” [39] Thomas Jefferson „first met Cicero as a schoolboy while learning Latin, and read his letters and speeches throughout his life. He admired him as a patriot, valued his opinion as a moral philosopher, and there is little doubt that he regarded the life of Cicero, with his love of study and aristocratic life in the country, as a model for his own. [40] Jefferson described Cicero as „the father of eloquence and philosophy.” [41] Universal law is the law of nature. For there really is, like everyone else to some divine extent, a natural justice and injustice that is imposed on all, even those who have no connection or covenant with one another. This is what Sophocles` Antigone clearly means when she says that the burial of Polynices, despite the prohibition, was a just act: she means that it was only by nature: when it comes to the methodology of jurisprudence, we find two main problems. Although one does not deal directly with normativity, it is the second. The first questions the objectives and success criteria of philosophical theories on the nature of law: According to Raz, the essential role of authority in our practical thinking is to mediate between the supposed subjects of authority and the good reasons that apply to them in the relevant circumstances. An authority is legitimate only if it helps its supposed subjects to better follow the right reasons relevant to their actions – that is, if they are more likely to act in accordance with those reasons by following the authoritative resolution than if they were trying to understand the reasons directly and react to them (without the mediation solution). For example, there can be many reasons related to the speed at which you drive on a particular road – the amount of foot traffic, upcoming turns on the road, etc. – but drivers are better able to maintain the balance of these reasons within the legal speed limit than if they were trying to figure out all the trade-offs at the moment.

The legitimacy of the legal speed limit would therefore derive from the way it helps people to act better by weighing the right reasons. Modern theories of natural law were strongly developed during the Enlightenment, combining the inspiration of Roman law with philosophies such as social contract theory. It was used to challenge the theory of the divine right of kings and became an alternative justification for establishing a social contract, positive law, and government – and therefore legal rights – in the form of classical republicanism. In the first decades of the 21st century, the concept of natural law is closely linked to the concept of natural rights. In fact, many philosophers, jurists, and scholars use natural law interchangeably with natural law (Latin: ius naturale) or natural justice,[6] although others distinguish between natural law and natural law. [7] Thus, the explanation of the conditions of legal validity and the explanation of the normativity of the law are the two main themes of any general theory of the nature of law. In Section 1, we will explain some of the most important debates on these two issues. In Section 2, we will discuss some of the methodological debates on the nature of general jurisprudence. In recent centuries, two rival philosophical traditions have emerged on the nature of legality.

The oldest, which dates back to Christian scholarship in the late Middle Ages, is called the tradition of natural law. Since the early 19th century, theories of natural law have been fiercely challenged by the tradition of legal positivism promulgated by scholars such as Jeremy Bentham and John Austin. However, the philosophical origins of legal positivism are found much earlier, probably in the political philosophy of Thomas Hobbes. The main controversy between these two traditions concerns the conditions of legal validity. Fundamentally, legal positivism and natural law deny that the conditions of legal validity are a purely social question of fact. Unlike positivism, natural law asserts that the conditions of legal validity are not exhausted by social facts; The moral content of supposed norms also affects their legal validity. As the famous saying commonly attributed to St. Augustine says: lex iniusta non est lex (The unjust law is not a law). (Augustine, De libero Arbitrio, I, 5; see also Thomas Aquinas, Summa Theologica, I-II, Q. 96, art. 4.) The New Testament contains another account of the Abrahamic dialogue and builds on the later Greek exposition on this subject, when Paul`s letter to the Romans states: „For if the Gentiles who do not have the law do by nature what is contained in the law, those who do not have the law are a law in themselves: Those who have written the work of the law in their hearts, who also bear witness to their conscience, and who, in the meantime, accuse or apologize to each other. [42] The intellectual historian A.

J. Carlyle commented on this passage: „There is little doubt that the words of St. John the Baptist are not the only words of St. John the Baptist. Paul implies an idea analogous to Cicero`s „natural law,” a law written in the hearts of men and recognized by man`s reason, a law distinct from the positive law of any state or from what St. Paul recognized as the revealed law of God. In this sense, the words of St. Paul are taken up by the fathers of the fourth and fifth centuries, such as St.

Hilary of Poitiers, St. Ambrose and St. Augustine, and there seems to be no reason to doubt the correctness of their interpretation. [43] The best proof that Aristotle thought there was a law of nature comes from rhetoric, where Aristotle asserts that, in addition to the „special” laws that each people has established, there is a „common” law that corresponds to nature. [18] Specifically, he quotes Sophocles and Empedocles: The Natural Moral Law deals with both external and internal actions, also known as action and motive.