Jurisprudence Revision
* General comments:
Exploring the question of how particular laws come to be included within legal systems is a characteristic question of some theories known as theories of legal positivism
The question of whether all legal systems or even all laws, partake of some more general moral qualities is characteristic of some theories known as natural law theories
Hybrid theories (that of Dworkin) suggest that the manner in which any and every particular law becomes part of a legal system can only be understood in terms of the enterprise of law at its most general level
Natural Law
The development of natural law as a jurisprudence usually brings together a range of theories or theoretical insights from early Greek thinkers right up to the present day that are labelled as Natural Law theories
Selecting the legal aspects of such theories and attempting to unify them under a single label, inevitably simplifies an extremely complex intellectual history
The trouble with NLT is that the range of ideas represented by it are so wide, and involve such wide ranging arguments, that it tends to offer confusion rather than clarity
Natural law theory is not a single theory of law
It is the application of ethical or political theories to the question of how legal orders can acquire, or have legitimacy.
Which of the ideas presented by the different theories best serves as a source for the legitimacy of law?
What are the implications for themes such as justice, or claims that citizens ought to obey laws?
* Aquinas
Natural law was based on reason, and could be understood by reflecting on the nature of man and God’s purpose in creating him.
Law is, ‘a rational ordering of things which concern the common good; promulgated by whoever is charged with the care of the community’
To the extent that human law partook of natural law, it would ‘oblige in conscience’
For Aquinas, a law that did no ‘oblige in conscience’ was not really a law at all
Human law partook of
Exploring the question of how particular laws come to be included within legal systems is a characteristic question of some theories known as theories of legal positivism
The question of whether all legal systems or even all laws, partake of some more general moral qualities is characteristic of some theories known as natural law theories
Hybrid theories (that of Dworkin) suggest that the manner in which any and every particular law becomes part of a legal system can only be understood in terms of the enterprise of law at its most general level
Natural Law
The development of natural law as a jurisprudence usually brings together a range of theories or theoretical insights from early Greek thinkers right up to the present day that are labelled as Natural Law theories
Selecting the legal aspects of such theories and attempting to unify them under a single label, inevitably simplifies an extremely complex intellectual history
The trouble with NLT is that the range of ideas represented by it are so wide, and involve such wide ranging arguments, that it tends to offer confusion rather than clarity
Natural law theory is not a single theory of law
It is the application of ethical or political theories to the question of how legal orders can acquire, or have legitimacy.
Which of the ideas presented by the different theories best serves as a source for the legitimacy of law?
What are the implications for themes such as justice, or claims that citizens ought to obey laws?
* Aquinas
Natural law was based on reason, and could be understood by reflecting on the nature of man and God’s purpose in creating him.
Law is, ‘a rational ordering of things which concern the common good; promulgated by whoever is charged with the care of the community’
To the extent that human law partook of natural law, it would ‘oblige in conscience’
For Aquinas, a law that did no ‘oblige in conscience’ was not really a law at all
Human law partook of