Classical Law Theory
The theory of natural law agrees with Raz and Gardner in rejecting the inclusive restriction as unfounded, but contradicts them by stating (as does Dworkin: Dworkin 1978, 47) that any moral rule or principle that a court must (or can reasonably apply) can be counted or recognized as a law, precisely as a court, that is, as a rule or principle that should already be considered part of our law. Against positivists in general, she notes that (i) little or nothing depends on whether or not the moral principles that bind the courts should be part of our law, just like the courts; but (ii) if something revolves around the name – for example, if it is recalled that courts cannot “take note judicially” of a rule or principle that is not “part of our law” (and therefore, as with rules of foreign law, must hear evidence of the existence and content of the rule) – it is more reasonable to say, that the moral rules and principles applicable judicially (as opposed to the applicable foreign law) are ipso iure legal norms (i.e. equally morally and judicially applicable). Such rules are part of the ius gentium part of our law. A theory of the morality of natural law will account for how the first principles of practical reason take on moral force by considering them not one after the other, but in their unified (“integral”) directivity. This integral directivity receives a specific (though very general) articulation in principles such as the commandment to love one`s neighbor as oneself; or the golden rule of doing for others what you want them to do for you, not for others you don`t want them to do to you; or the “categorical imperatives” to respect humanity (the fundamental aspects of human flourishing) in oneself and in others and to treat it as precious in itself, so that each of its own communities is treated as a kingdom of ends in itself – of people who each end up in themselves. These high-level moral principles, but far from being meaningless, can be specified in two ways: (1) by identifying what they imply in the face of certain largely stable characteristics of human reality (see 1.2-4), and (2) by a rational but more or less non-deductive selection between alternative specifications, a choice made by Aquin determinatio (plural, Determinations) (see 1.5). Political communities are a type of institution whose rational status as a normally desirable and obligatory objective and context for collaborative action (and tolerance) can easily be seen as concomitant with basic practical and moral principles. In these communities, the normal way to make the necessary decisions is the institution of governmental power, which acts primarily through laws and other forms of legislation, that is, acts as a source of social facts of positive law (postulated). 32 To explain exactly how and why this is the case (and what its implications are for the debate on `same-sex marriage`), a digression of the classical approach to the natural law of sexual morality would be necessary, which would be beyond the scope of this essay.
Readers interested in explaining this approach are referred to Chapter 4 of Feser, The Last Superstition. Ronald Dworkin`s so-called third legal theory can be better understood as a response to legal positivism, which essentially consists of three theoretical obligations: the thesis of the social fact, the thesis of conventionality and the thesis of separability. The social fact thesis asserts that it is a necessary truth that legal validity is ultimately a function of certain types of social facts; The idea here is that what ultimately explains the validity of a law is the existence of certain social facts, especially the formal promulgation by a legislator. Raz, Dickson and others accept that such an assessment is necessary, but deny that it is moral: Dickson 2001. But once you start dealing with the reasons, can anything other than good reasons count? If moral reason is nothing more than a burgeoning practical reason, entirely critical and appropriate like reason, moral reasons will have a crucial place in the formation of concepts in the social sciences, including descriptive general legal theory. And this will not have the effect hart feared, which is to leave the study of laws or evil institutions to another discipline: Hart 1961, 205; 1994, 209. On the contrary, they are the subject of close attention in such a theory, precisely because of their opposition to morally good (substantial and procedural) legal systems. Aristotle`s politics, while not methodologically flawless on the whole, is a major witness to this kind of far-sighted recognition and presentation of inappropriate social forms, practices, and institutions in a descriptive theory based on the theorist`s moral judgments. Although the core of the classical and dominant theory of natural law is therefore not tainted by any “naturalistic error” (Finnis 2018, 2.4.2), non-practical knowledge of facts counts in this theory in various ways. Knowing the factual possibility of gaining (say) knowledge or losing or saving lives is a date (not really a premise) to understand that such a possibility is also an opportunity – that realizing the possibility would be good for oneself and for others.
Other types of relevant facts are facts about certain radical human abilities and their absence in other animals – these facts are the data to better understand the meaning and limits of class (people, people) from “others” to “good for themselves and for others”. Or make facts about the limited supply of resources and the limited strength of human will (the need for incentives, etc.) (1.5) the allocation of resources for certain owners to a normal requirement of fairness to non-owners and owners. This thesis fits into the parts of legal theory that are recognized by contemporary legal positivists, but little studied. It has been ignored and even denied by earlier forms of legal positivism that were more ambitious to cover the entire philosophy of law, for example Kelsen. Kelsen denied that the persons were known either to the law or to the appropriate legal theory or jurisprudence, unless they had been the subject of a postulated legal norm. But against this limitation, which has misled some courts that have treated Celtic jurisprudence as a guide to legal reasoning, it can be said (Finnis 2000) that the fundamental equality and dignity of the human being should be defended within the framework of a rational understanding of the law. This defense requires a representation of the difference between the abilities that are activated here and now or that are more or less ready to be activated in this way, and the radical abilities as they exist in the epigenetic primordiums even of the very young and in the genetic and somatic makeup even of severely disabled people. Although such a report allows a defense of the fundamental equality of human beings and therefore a humanistic legal theory, the report does not aim to privilege a biological species as such, but the legal meaning of the status of people – substances of a rational nature – as intrinsic holders (subjects) of rights of a different nature and more respectful and more final than rights, which are often to be affirmed. with regard to the technical means legally allocated to animals, idols, vessels or other subjects of legal proceedings. As Dworkin understands, the judge must view judicial decision-making as something similar to an exercise in moral philosophy. For example, the judge must rule on cases on the basis of moral principles that “play a role in the strongest legal theory that can be provided as justification for the explicit substantive and institutional rules of the court in question” (Dworkin 1977, 66).
What does the mainstream of natural law theory intend to use the word “natural” in this name for the theory? The shortest exact answer is “reason,” as in “the law of reason” or “the requirements of reason.” Aquinas is particularly clear that, in this context, the “natural” depends on something (e.g., a law or virtue) only if and because what it is based on is consistent with reason, practical reason, or the requirements of practical reason: see Finnis 1980, 35-6. In addition, he uses a methodical axiom in all his works: the nature of X is understood by understanding the abilities of X, which are understood by understanding their actions, which are understood by understanding their objects. But the objects of the chosen actions are the understandable intrinsic goods (aspects of human flourishing) to which we are directed by the first principles of practical reason. The equation of the “natural” and the “rational” and their parents in this context is therefore not a simple confusion, but is based on a differentiated distinction between ontology and epistemology: in the order of being, what is good and reasonable for us is the result of what is fundamental, our given nature; But in order to get to know ourselves, our knowledge of our nature is to a large extent the result of our understanding of the types of possible objects of choice that are good.