Anthony J. Lisska
- Published in print:
- 1997
- Published Online:
- October 2011
- ISBN:
- 9780198269670
- eISBN:
- 9780191683732
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198269670.003.0010
- Subject:
- Religion, Philosophy of Religion
This concluding chapter discusses the prospects and pitfalls of Thomas Aquinas' natural law theory. It highlights the renewed interest in natural law theory in contemporary philosophy of law and ...
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This concluding chapter discusses the prospects and pitfalls of Thomas Aquinas' natural law theory. It highlights the renewed interest in natural law theory in contemporary philosophy of law and suggests that the re-emergence of natural law in both meta-ethics and in jurisprudence indicate the need that more work should be undertaken in these areas and a substantive theory of natural law should be developed. One of the most noted pitfalls of natural law is its close association with morality, which can lead to a repressive system of both law and morality.Less
This concluding chapter discusses the prospects and pitfalls of Thomas Aquinas' natural law theory. It highlights the renewed interest in natural law theory in contemporary philosophy of law and suggests that the re-emergence of natural law in both meta-ethics and in jurisprudence indicate the need that more work should be undertaken in these areas and a substantive theory of natural law should be developed. One of the most noted pitfalls of natural law is its close association with morality, which can lead to a repressive system of both law and morality.
John Finnis
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199580088
- eISBN:
- 9780191729409
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580088.003.0006
- Subject:
- Law, Philosophy of Law
This chapter is a survey of what ‘natural law theory’ in its classical forms did or would say about the twenty-eight topics intended to be taken up in Coleman and Shapiro's Oxford Handbook of ...
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This chapter is a survey of what ‘natural law theory’ in its classical forms did or would say about the twenty-eight topics intended to be taken up in Coleman and Shapiro's Oxford Handbook of Jurisprudence and Philosophy of Law. It begins by differentiating the classical from the ‘modern’ (from Grotius on) theories of natural law, and from ‘exclusive’ and ‘inclusive’ legal positivism, surveys the methodology of legal philosophy, the relationship between legal and political philosophy, and then a series of substantive topics: authority; rights; institutionality; reasons, ‘formalism’; law and obligation; adjudication; law and epistemology; law and language; law and objectivity; law and rational choice; law and sexuality; tort law; contract law; criminal law; property law; international law; the common law; Zipursky's ‘recourse’ theory of private wrongs; constitutional and statutory interpretation; and responsibility.Less
This chapter is a survey of what ‘natural law theory’ in its classical forms did or would say about the twenty-eight topics intended to be taken up in Coleman and Shapiro's Oxford Handbook of Jurisprudence and Philosophy of Law. It begins by differentiating the classical from the ‘modern’ (from Grotius on) theories of natural law, and from ‘exclusive’ and ‘inclusive’ legal positivism, surveys the methodology of legal philosophy, the relationship between legal and political philosophy, and then a series of substantive topics: authority; rights; institutionality; reasons, ‘formalism’; law and obligation; adjudication; law and epistemology; law and language; law and objectivity; law and rational choice; law and sexuality; tort law; contract law; criminal law; property law; international law; the common law; Zipursky's ‘recourse’ theory of private wrongs; constitutional and statutory interpretation; and responsibility.
ROBERT P. GEORGE
- Published in print:
- 1999
- Published Online:
- March 2012
- ISBN:
- 9780198267713
- eISBN:
- 9780191683343
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198267713.003.0003
- Subject:
- Law, Philosophy of Law
This chapter focuses on the recent criticism on what this chapter, following Hittinger’s convention, refers to as the ‘the Grisez–Finnis natural law theory.’ The chapter claims that neither Weinreb ...
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This chapter focuses on the recent criticism on what this chapter, following Hittinger’s convention, refers to as the ‘the Grisez–Finnis natural law theory.’ The chapter claims that neither Weinreb nor Hittinger represents the theory accurately or presents compelling arguments against it. It also describes Weinreb’s general argument and criticizes his treatment of Aquinas’s theory of natural law, before taking up criticisms of the Grisez–Finnis theory.Less
This chapter focuses on the recent criticism on what this chapter, following Hittinger’s convention, refers to as the ‘the Grisez–Finnis natural law theory.’ The chapter claims that neither Weinreb nor Hittinger represents the theory accurately or presents compelling arguments against it. It also describes Weinreb’s general argument and criticizes his treatment of Aquinas’s theory of natural law, before taking up criticisms of the Grisez–Finnis theory.
John J. Coughlin
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199756773
- eISBN:
- 9780199932177
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199756773.003.0004
- Subject:
- Law, Philosophy of Law
This chapter discusses the function of natural law as a dimension of the anthropological foundation of canon law. It focuses on the so-called new natural law theory, which has been developed by, ...
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This chapter discusses the function of natural law as a dimension of the anthropological foundation of canon law. It focuses on the so-called new natural law theory, which has been developed by, inter alia, Germain Grisez, John Finnis, and Robert George. The discussion concerns the following: human nature as the foundation of law, the naturalistic fallacy, and the response of the new natural law theorists; the role of natural law in shaping the fundamental law of the church; and the relation between the natural and theological foundations of natural law.Less
This chapter discusses the function of natural law as a dimension of the anthropological foundation of canon law. It focuses on the so-called new natural law theory, which has been developed by, inter alia, Germain Grisez, John Finnis, and Robert George. The discussion concerns the following: human nature as the foundation of law, the naturalistic fallacy, and the response of the new natural law theorists; the role of natural law in shaping the fundamental law of the church; and the relation between the natural and theological foundations of natural law.
Stanley L. Paulson (ed.)
- Published in print:
- 1999
- Published Online:
- March 2012
- ISBN:
- 9780198763154
- eISBN:
- 9780191695209
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198763154.001.0001
- Subject:
- Law, Philosophy of Law
Hans Kelsen's efforts in the areas of legal philosophy and legal theory are considered by many scholars of law to be the most influential thinking of recent years. This book makes available some of ...
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Hans Kelsen's efforts in the areas of legal philosophy and legal theory are considered by many scholars of law to be the most influential thinking of recent years. This book makes available some of the best work extant on Kelsen's theory, including chapters newly translated into English. The volume addresses in detail the topic where debate on Kelsen's work has been liveliest: ‘normativity’ as Kelsen's alternative to both traditional legal positivism and natural law theory. The book covers such topics as competing philosophical positions on the nature of law, legal validity, legal powers, and the unity of municipal and international law. It also throws much light on Kelsen's intellectual milieu — as well as his intellectual debts.Less
Hans Kelsen's efforts in the areas of legal philosophy and legal theory are considered by many scholars of law to be the most influential thinking of recent years. This book makes available some of the best work extant on Kelsen's theory, including chapters newly translated into English. The volume addresses in detail the topic where debate on Kelsen's work has been liveliest: ‘normativity’ as Kelsen's alternative to both traditional legal positivism and natural law theory. The book covers such topics as competing philosophical positions on the nature of law, legal validity, legal powers, and the unity of municipal and international law. It also throws much light on Kelsen's intellectual milieu — as well as his intellectual debts.
Linda Zagzebski
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780199248452
- eISBN:
- 9780191600524
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199248451.003.0014
- Subject:
- Religion, Theology
Linda Zagzebski proposes a formal framework for an ethical theory in which the incarnation is central and the imitation of Christ the basic normative idea. Her formal framework of exemplarism makes ...
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Linda Zagzebski proposes a formal framework for an ethical theory in which the incarnation is central and the imitation of Christ the basic normative idea. Her formal framework of exemplarism makes it possible to utilize the advantages of narrative ethics within a formal theory. She then sketches a practical form of exemplarist virtue theory that she calls Divine Motivation (DM) theory. In this theory, all evaluative concepts are derived from the concept of a good motive, and God's motives are the metaphysical ground for all value. Zagzebski argues that DM theory is more distinctively Christian than such law‐based theories as divine Command theory and Natural Law theory.Less
Linda Zagzebski proposes a formal framework for an ethical theory in which the incarnation is central and the imitation of Christ the basic normative idea. Her formal framework of exemplarism makes it possible to utilize the advantages of narrative ethics within a formal theory. She then sketches a practical form of exemplarist virtue theory that she calls Divine Motivation (DM) theory. In this theory, all evaluative concepts are derived from the concept of a good motive, and God's motives are the metaphysical ground for all value. Zagzebski argues that DM theory is more distinctively Christian than such law‐based theories as divine Command theory and Natural Law theory.
Cara Nine
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199580217
- eISBN:
- 9780191741456
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580217.003.0003
- Subject:
- Political Science, Political Theory
Chapter 2 defends the general collective right to territory from the perspective of natural law theory. A general right to territory is a claim to be self-determining over some territory, even if the ...
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Chapter 2 defends the general collective right to territory from the perspective of natural law theory. A general right to territory is a claim to be self-determining over some territory, even if the particular territory is not yet identified. Natural law theory is well suited for the task of explaining and justifying territorial rights because it establishes a universal method for the appropriation of exclusive rights over goods. However, modern natural law theorists did not carry out a sustained investigation of territorial rights. Consequently, this chapter utilizes capability theory to develop a naturalistic perspective from which we can derive a general principle regarding the acquisition of territorial rights. This principle tells us that exclusive territorial rights are justified if they are essential for the provision of individual basic needs.Less
Chapter 2 defends the general collective right to territory from the perspective of natural law theory. A general right to territory is a claim to be self-determining over some territory, even if the particular territory is not yet identified. Natural law theory is well suited for the task of explaining and justifying territorial rights because it establishes a universal method for the appropriation of exclusive rights over goods. However, modern natural law theorists did not carry out a sustained investigation of territorial rights. Consequently, this chapter utilizes capability theory to develop a naturalistic perspective from which we can derive a general principle regarding the acquisition of territorial rights. This principle tells us that exclusive territorial rights are justified if they are essential for the provision of individual basic needs.
Robert George
- Published in print:
- 1999
- Published Online:
- March 2012
- ISBN:
- 9780198267713
- eISBN:
- 9780191683343
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198267713.001.0001
- Subject:
- Law, Philosophy of Law
Making Men Moral questioned the central doctrines of liberal jurisprudence and political theory. This new work extends a critique of liberalism, and also goes beyond it to show how ...
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Making Men Moral questioned the central doctrines of liberal jurisprudence and political theory. This new work extends a critique of liberalism, and also goes beyond it to show how contemporary natural law theory provides a superior way of thinking about basic problems of justice and political morality. Not content merely to defend natural law from its ‘cultural despisers’; the book turns the tables and deploys the idea to mount a stunning attack on regnant liberal beliefs about such issues as abortion, sexuality, and the place of religion in public life.Less
Making Men Moral questioned the central doctrines of liberal jurisprudence and political theory. This new work extends a critique of liberalism, and also goes beyond it to show how contemporary natural law theory provides a superior way of thinking about basic problems of justice and political morality. Not content merely to defend natural law from its ‘cultural despisers’; the book turns the tables and deploys the idea to mount a stunning attack on regnant liberal beliefs about such issues as abortion, sexuality, and the place of religion in public life.
Rufus Black
- Published in print:
- 2001
- Published Online:
- October 2011
- ISBN:
- 9780198270201
- eISBN:
- 9780191683947
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198270201.003.0001
- Subject:
- Religion, Theology
This chapter brings into focus the discussion about the renewal of Christian ethics participated in by three figures namely: Stanlely Hauerwas, one of the most influential Christian ethicists; ...
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This chapter brings into focus the discussion about the renewal of Christian ethics participated in by three figures namely: Stanlely Hauerwas, one of the most influential Christian ethicists; Germain Grisez, an American lay Roman Catholic; and Oliver O'Donovan, a third party who asked penetrating questions of both natural law theory, including that produced by Grisez and his collaborators, and key features of Hauerwas's thought. It professes that the effect of the Grisez School's affirmation, of what is widely understood as Hume's contention that it is not logically possible to derive an ‘ought’ and from an ‘is’, is that the starting-point of moral reasoning must be practical reason (the sort of reason people use to plan action) and not theoretical reason (the type of reason that tests the truth of a proposition by seeking to establish its conformity to some prior reality, for example scientific reason).Less
This chapter brings into focus the discussion about the renewal of Christian ethics participated in by three figures namely: Stanlely Hauerwas, one of the most influential Christian ethicists; Germain Grisez, an American lay Roman Catholic; and Oliver O'Donovan, a third party who asked penetrating questions of both natural law theory, including that produced by Grisez and his collaborators, and key features of Hauerwas's thought. It professes that the effect of the Grisez School's affirmation, of what is widely understood as Hume's contention that it is not logically possible to derive an ‘ought’ and from an ‘is’, is that the starting-point of moral reasoning must be practical reason (the sort of reason people use to plan action) and not theoretical reason (the type of reason that tests the truth of a proposition by seeking to establish its conformity to some prior reality, for example scientific reason).
John Finnis
- Published in print:
- 2001
- Published Online:
- March 2012
- ISBN:
- 9780199243006
- eISBN:
- 9780191697203
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199243006.003.0001
- Subject:
- Law, Philosophy of Law
This chapter discusses natural law theory. The chapter also contains sections that provide a detailed discussion of the moral principles and norms that natural law theory considers to be principles ...
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This chapter discusses natural law theory. The chapter also contains sections that provide a detailed discussion of the moral principles and norms that natural law theory considers to be principles and norms of reason, the common good of the political community, and the concepts of non-liberal and liberal character, among others.Less
This chapter discusses natural law theory. The chapter also contains sections that provide a detailed discussion of the moral principles and norms that natural law theory considers to be principles and norms of reason, the common good of the political community, and the concepts of non-liberal and liberal character, among others.
Wil Waluchow and Stefan Sciaraffa (eds)
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199675517
- eISBN:
- 9780191757280
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199675517.001.0001
- Subject:
- Law, Philosophy of Law
In recent years we have witnessed major developments in philosophical inquiry concerning the nature of law and, with the continuing development of international and transnational legal institutions, ...
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In recent years we have witnessed major developments in philosophical inquiry concerning the nature of law and, with the continuing development of international and transnational legal institutions, in the phenomenon of law itself. This book takes stock of current debates on the nature of law and the aims and methods of legal philosophy. The book covers four broad themes. The chapters within the first theme address and develop the traditional debates between legal positivism, natural law theory, and Dworkinian interpretivism. Chapters within the second theme focus on the power of coercion, often overlooked in contemporary legal philosophy. The third set of chapters addresses the aims and methods of legal theory, and the role of conceptual analysis. The final section explores new methods and issues in the subject, and offers fresh starting points for future work in the field.Less
In recent years we have witnessed major developments in philosophical inquiry concerning the nature of law and, with the continuing development of international and transnational legal institutions, in the phenomenon of law itself. This book takes stock of current debates on the nature of law and the aims and methods of legal philosophy. The book covers four broad themes. The chapters within the first theme address and develop the traditional debates between legal positivism, natural law theory, and Dworkinian interpretivism. Chapters within the second theme focus on the power of coercion, often overlooked in contemporary legal philosophy. The third set of chapters addresses the aims and methods of legal theory, and the role of conceptual analysis. The final section explores new methods and issues in the subject, and offers fresh starting points for future work in the field.
John Finnis
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199580088
- eISBN:
- 9780191729409
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580088.003.0008
- Subject:
- Law, Philosophy of Law
This chapter begins with a detailed history of the emergence of the term ‘positive’, in relation to law, in the 12th and 13th centuries, most richly and subtly in Aquinas, whose texts are described ...
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This chapter begins with a detailed history of the emergence of the term ‘positive’, in relation to law, in the 12th and 13th centuries, most richly and subtly in Aquinas, whose texts are described and analysed in detail. A concluding purely theoretical section sets out, illustratively, the basic reasons why the alleged debate between ‘natural law theory’ and ‘legal positivism’ is misplaced and futile, through inattention to ambiguities which, once noticed, enable it to simply dissolve. Though human law is largely artefact and artifice, not a conclusion from moral premises, neither its positing nor the recognition of its positivity can be understood without reference to the moral principles that ground and confirm its authority or challenge its pretention.Less
This chapter begins with a detailed history of the emergence of the term ‘positive’, in relation to law, in the 12th and 13th centuries, most richly and subtly in Aquinas, whose texts are described and analysed in detail. A concluding purely theoretical section sets out, illustratively, the basic reasons why the alleged debate between ‘natural law theory’ and ‘legal positivism’ is misplaced and futile, through inattention to ambiguities which, once noticed, enable it to simply dissolve. Though human law is largely artefact and artifice, not a conclusion from moral premises, neither its positing nor the recognition of its positivity can be understood without reference to the moral principles that ground and confirm its authority or challenge its pretention.
John Finnis
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199580088
- eISBN:
- 9780191729409
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580088.003.0018
- Subject:
- Law, Philosophy of Law
This chapter responds to criticisms of Natural Law and Natural Rights, Chapter 16 of this volume, and a version of Chapter 14 in Volume I of this text. The topics debated are method in natural law ...
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This chapter responds to criticisms of Natural Law and Natural Rights, Chapter 16 of this volume, and a version of Chapter 14 in Volume I of this text. The topics debated are method in natural law theory; ‘rational choice’ and incommensurability (an important section engaging with a number of hypothetical pertinently raised by David Luban); consequentialism; fairness, and the decision about ‘affirmative action’ in City of Richmond v Croson (1989) 488 US 469; easy cases at law; and the obligation to obey the law.Less
This chapter responds to criticisms of Natural Law and Natural Rights, Chapter 16 of this volume, and a version of Chapter 14 in Volume I of this text. The topics debated are method in natural law theory; ‘rational choice’ and incommensurability (an important section engaging with a number of hypothetical pertinently raised by David Luban); consequentialism; fairness, and the decision about ‘affirmative action’ in City of Richmond v Croson (1989) 488 US 469; easy cases at law; and the obligation to obey the law.
ROBERT P. GEORGE
- Published in print:
- 1999
- Published Online:
- March 2012
- ISBN:
- 9780198267713
- eISBN:
- 9780191683343
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198267713.003.0001
- Subject:
- Law, Philosophy of Law
The book’s main concern is with the defense of natural law theory against criticism from various quarters and its application to problems at different levels of philosophical abstractness. The method ...
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The book’s main concern is with the defense of natural law theory against criticism from various quarters and its application to problems at different levels of philosophical abstractness. The method used is primarily dialectical and the book proceeds by engaging arguments against the positions it seeks to defend and when possible, examines the arguments advanced by scholars who are critical of these positions. The book identifies plausible arguments against the view expressed here and tries to rebut these arguments, when that is not possible. The theory that the book defends and applies was originally adumbrated by Germain Grisez and substantially developed by the latter, often in formal or informal collaboration with Joseph M. Boyle, Jr., John Finnis, and others.Less
The book’s main concern is with the defense of natural law theory against criticism from various quarters and its application to problems at different levels of philosophical abstractness. The method used is primarily dialectical and the book proceeds by engaging arguments against the positions it seeks to defend and when possible, examines the arguments advanced by scholars who are critical of these positions. The book identifies plausible arguments against the view expressed here and tries to rebut these arguments, when that is not possible. The theory that the book defends and applies was originally adumbrated by Germain Grisez and substantially developed by the latter, often in formal or informal collaboration with Joseph M. Boyle, Jr., John Finnis, and others.
Kenneth Einar Himma
- Published in print:
- 2019
- Published Online:
- April 2019
- ISBN:
- 9780198723479
- eISBN:
- 9780191790089
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198723479.003.0003
- Subject:
- Law, Philosophy of Law
This chapter challenges the traditional interpretation of classical natural law theories and Dworkinian interpretivism. It argues that these theories are best construed as explicating a different ...
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This chapter challenges the traditional interpretation of classical natural law theories and Dworkinian interpretivism. It argues that these theories are best construed as explicating a different concept of law than the one positivism seeks to explicate. The concept that positivism seeks to explicate is a purely descriptive concept that applies to any norm that has been recognized, applied, or enforced in something that counts as a legal system. In contrast, the concept that classical natural law theories and interpretivism seek to explicate is more aptly construed as grounded in the descriptive concept that positivism seeks to explicate but also has evaluative content that applies only to valid norms that can be characterized as law “in the fullest sense.” Thus construed, these theories complement rather than rival positivism and are hence misleadingly characterized as “anti-positivist.”Less
This chapter challenges the traditional interpretation of classical natural law theories and Dworkinian interpretivism. It argues that these theories are best construed as explicating a different concept of law than the one positivism seeks to explicate. The concept that positivism seeks to explicate is a purely descriptive concept that applies to any norm that has been recognized, applied, or enforced in something that counts as a legal system. In contrast, the concept that classical natural law theories and interpretivism seek to explicate is more aptly construed as grounded in the descriptive concept that positivism seeks to explicate but also has evaluative content that applies only to valid norms that can be characterized as law “in the fullest sense.” Thus construed, these theories complement rather than rival positivism and are hence misleadingly characterized as “anti-positivist.”
David William Bates
- Published in print:
- 2011
- Published Online:
- November 2015
- ISBN:
- 9780231158053
- eISBN:
- 9780231528665
- Item type:
- chapter
- Publisher:
- Columbia University Press
- DOI:
- 10.7312/columbia/9780231158053.003.0002
- Subject:
- Political Science, Political Theory
This chapter draws on three exemplary seventeenth-century texts written in the natural-law tradition (by Grotius, Hobbes, and Pufendorf) to examine how these authors isolated the logical development ...
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This chapter draws on three exemplary seventeenth-century texts written in the natural-law tradition (by Grotius, Hobbes, and Pufendorf) to examine how these authors isolated the logical development of social and civil forms of organization, paying particularly close attention to their understanding of human bodies and human cognitive functioning. Both Grotius and Hobbes rely on very strict conceptions of the natural, rational human being. But on close inspection, their hugely influential accounts of political states and sovereign power are not, in fact, political at all. Only with the more complex portrait of human nature in Pufendorf do we begin to see how an independent concept of the political could ever emerge in an origin narrative that begins at the absolute beginning—in other words, with the individual human being alone in a pure state of nature. Thus, it is Pufendorf who exemplifies the shift to a whole new way of understanding the logic of human community, opening up the way to an Enlightenment conception of an autonomous political being.Less
This chapter draws on three exemplary seventeenth-century texts written in the natural-law tradition (by Grotius, Hobbes, and Pufendorf) to examine how these authors isolated the logical development of social and civil forms of organization, paying particularly close attention to their understanding of human bodies and human cognitive functioning. Both Grotius and Hobbes rely on very strict conceptions of the natural, rational human being. But on close inspection, their hugely influential accounts of political states and sovereign power are not, in fact, political at all. Only with the more complex portrait of human nature in Pufendorf do we begin to see how an independent concept of the political could ever emerge in an origin narrative that begins at the absolute beginning—in other words, with the individual human being alone in a pure state of nature. Thus, it is Pufendorf who exemplifies the shift to a whole new way of understanding the logic of human community, opening up the way to an Enlightenment conception of an autonomous political being.
Joshua D. Goldstein
- Published in print:
- 2017
- Published Online:
- May 2018
- ISBN:
- 9780262036689
- eISBN:
- 9780262341981
- Item type:
- chapter
- Publisher:
- The MIT Press
- DOI:
- 10.7551/mitpress/9780262036689.003.0010
- Subject:
- Philosophy, Moral Philosophy
We normally think of the so-called new natural law theory (NNLT) for its as a relentlessly conservative sexual ethic, one which argues both for the rightness only of “reproductive-type” sex (and that ...
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We normally think of the so-called new natural law theory (NNLT) for its as a relentlessly conservative sexual ethic, one which argues both for the rightness only of “reproductive-type” sex (and that only within a different-sex marriage) as well as the moral impossibility of masturbation, sex outside of marriage, and sex of a non-reproductive-type. On the face of it, the human intent behind the creation of sexbots, let alone with the act of having sex with them, would seem to be wrong on all these counts. However, this chapter argues that matters are not so simple. NNLT can reveal the intrinsic moral importance of sexbots. If sexbots and human each are beings capable of choosing and remaining committed to complete friendship, and of loving, then the embodied union that we do achieve will not be morally objectionable even according to NNLT properly understood.Less
We normally think of the so-called new natural law theory (NNLT) for its as a relentlessly conservative sexual ethic, one which argues both for the rightness only of “reproductive-type” sex (and that only within a different-sex marriage) as well as the moral impossibility of masturbation, sex outside of marriage, and sex of a non-reproductive-type. On the face of it, the human intent behind the creation of sexbots, let alone with the act of having sex with them, would seem to be wrong on all these counts. However, this chapter argues that matters are not so simple. NNLT can reveal the intrinsic moral importance of sexbots. If sexbots and human each are beings capable of choosing and remaining committed to complete friendship, and of loving, then the embodied union that we do achieve will not be morally objectionable even according to NNLT properly understood.
Timothy Endicott
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199675500
- eISBN:
- 9780191757228
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199675500.003.0021
- Subject:
- Law, Philosophy of Law
John Finnis says that central cases of the concepts of social theory fully instantiate values that are instantiated in more-or-less watered-down ways in peripheral cases. This chapter argues that the ...
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John Finnis says that central cases of the concepts of social theory fully instantiate values that are instantiated in more-or-less watered-down ways in peripheral cases. This chapter argues that the central case of a concept essential to social theory may excel in some specific good or in some specific ill, or in neither, or in both. As for law, the central cases of a legal system, or of a law, do indeed involve goods that Finnis ascribes to them; the central cases also involve certain ills. That is the irony of law. It secures essential goods for a community, and also (and, in fact, by the same token) it incurs certain ills that are necessarily involved in its specific techniques for securing those goods. The chapter concludes by pointing out a resulting tension over a legal system's regulation of the validity of its own legal norms.Less
John Finnis says that central cases of the concepts of social theory fully instantiate values that are instantiated in more-or-less watered-down ways in peripheral cases. This chapter argues that the central case of a concept essential to social theory may excel in some specific good or in some specific ill, or in neither, or in both. As for law, the central cases of a legal system, or of a law, do indeed involve goods that Finnis ascribes to them; the central cases also involve certain ills. That is the irony of law. It secures essential goods for a community, and also (and, in fact, by the same token) it incurs certain ills that are necessarily involved in its specific techniques for securing those goods. The chapter concludes by pointing out a resulting tension over a legal system's regulation of the validity of its own legal norms.
David Copp
- Published in print:
- 2019
- Published Online:
- February 2019
- ISBN:
- 9780190640408
- eISBN:
- 9780190640439
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190640408.003.0003
- Subject:
- Law, Philosophy of Law
Legal Teleology seeks to embrace and to ground the most plausible tenets of both legal positivism and natural law theory. It is compatible with the positivist view that law consists at root in a ...
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Legal Teleology seeks to embrace and to ground the most plausible tenets of both legal positivism and natural law theory. It is compatible with the positivist view that law consists at root in a social practice of a certain kind. Yet it also can accommodate at least some claims about the relation between law and morality that are advocated by opponents of positivism. Most important, it argues that law is “robustly normative”—roughly, law is a source of genuine reasons. Standard forms of positivism cannot account for this thesis, but, arguably, the central doctrines of positivism are compatible with it. Legal Teleology is an account of the normativity of law that is supported by “pluralist-teleology,” a naturalist account of normativity that has been proposed elsewhere (Copp 2009). Legal Teleology sees the law as having a purpose, and it says that law is defective insofar as it does not further that purpose. It agrees that jurists can sometimes help law better to serve its purpose when they invoke moral principles in interpreting law. Legal Teleology represents a kind of intermarriage between legal positivism and natural law theory.Less
Legal Teleology seeks to embrace and to ground the most plausible tenets of both legal positivism and natural law theory. It is compatible with the positivist view that law consists at root in a social practice of a certain kind. Yet it also can accommodate at least some claims about the relation between law and morality that are advocated by opponents of positivism. Most important, it argues that law is “robustly normative”—roughly, law is a source of genuine reasons. Standard forms of positivism cannot account for this thesis, but, arguably, the central doctrines of positivism are compatible with it. Legal Teleology is an account of the normativity of law that is supported by “pluralist-teleology,” a naturalist account of normativity that has been proposed elsewhere (Copp 2009). Legal Teleology sees the law as having a purpose, and it says that law is defective insofar as it does not further that purpose. It agrees that jurists can sometimes help law better to serve its purpose when they invoke moral principles in interpreting law. Legal Teleology represents a kind of intermarriage between legal positivism and natural law theory.
Corrado Roversi
- Published in print:
- 2018
- Published Online:
- October 2018
- ISBN:
- 9780198821977
- eISBN:
- 9780191861147
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198821977.003.0005
- Subject:
- Law, Philosophy of Law
Are legal institutions artifacts? If artifacts are conceived as entities whose existence depends on human beings, then yes, legal institutions are, of course, artifacts. But an artifact theory of law ...
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Are legal institutions artifacts? If artifacts are conceived as entities whose existence depends on human beings, then yes, legal institutions are, of course, artifacts. But an artifact theory of law makes a stronger claim, namely, that there is actually an explanatory gain to be had by investigating legal institutions as artifacts, or through the features of ordinary artifacts. This is the proposition explored in this chapter: that while this understanding of legal institutions makes it possible to find common ground between legal positivism and legal realism, it does not capture all of the insights offered by these two traditions. An artifact theory of law can therefore be necessary in explaining the law, but it will not suffice to that end. This chapter also posits that legal artifacts bear a relevant connection to certain conceptions of nature, thus vindicating one of the original insights behind natural law theory.Less
Are legal institutions artifacts? If artifacts are conceived as entities whose existence depends on human beings, then yes, legal institutions are, of course, artifacts. But an artifact theory of law makes a stronger claim, namely, that there is actually an explanatory gain to be had by investigating legal institutions as artifacts, or through the features of ordinary artifacts. This is the proposition explored in this chapter: that while this understanding of legal institutions makes it possible to find common ground between legal positivism and legal realism, it does not capture all of the insights offered by these two traditions. An artifact theory of law can therefore be necessary in explaining the law, but it will not suffice to that end. This chapter also posits that legal artifacts bear a relevant connection to certain conceptions of nature, thus vindicating one of the original insights behind natural law theory.
