Jurisprudence Revision

Topics: Law, Natural law, Legal positivism Pages: 28 (10018 words) Published: December 10, 2012
* 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 natural law to the extent that it was Christian and to the extent that it served the common good rather than vested interests The content of this ‘common good’ could be reasoned from man’s nature: the need to preserve life, to raise and educate the young and to establish a stable political order The specific content of particular legal systems cannot be reasoned from general ethical principles For Aquinas, the rules of different principalities could still all be law, despite their differences, provided that they had as their aim the furtherance of the common good

Aquinas married Aristotle’s natural law theory with the Christian tradition to develop the most refined theory of natural law before the twentieth century, and his work is a fundamental reference point for all natural law theorists. Aquinas’s natural law theory  shows man, because of his reason, to be a participant in divine  wisdom, whose purpose is to live in a flourishing Christian community. Law is a necessary institution in such a community, and just laws will reflect directly (specificatio) or indirectly (determinatio) the universal morality of natural law.

John Finnis
Oxford academic john Finnis offered a Natural Law theory that is not based on Christianity or any other theology It involves what is essentially a liberal conception of the good Rather than seeking to defend the particular practices of any society, Finnis seeks to identify the values that underlie all human activity, arguing that such activity affirms these values The values he identifies are:

aesthetic experience
religion (in the sense of a concern with things beyond the currently knowable) practical reasonableness (a desire to pursue the former values in an intelligent and ordered fashion) Our common ability to experience these things gives meaning to our understanding of a common good The task and responsibility of those involved in fashioning society, is to respect these values and seek to give...
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