stevestory
Posts: 13407
Joined: Oct. 2005
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These two comments are pretty much perfect:
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Kairosfocus May 17, 2019 at 5:45 pm
F/N: Food for thought from SEP on Natural Law approaches:
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Natural law theory accepts that law can be considered and spoken of both as a sheer social fact of power and practice, and as a set of reasons for action that can be and often are sound as reasons and therefore normative [–> duties to truth, right reason, prudence, justice etc pop up here] for reasonable people addressed by them. This dual character of positive law [–> laws as explicitly issued by a competent authority] is presupposed by the well-known slogan “Unjust laws are not laws.” Properly understood, that slogan indicates why—unless based upon some skeptical denial that there are any sound reasons for action (a denial which can be set aside because defending it is self-refuting)—positivist [–> note the distinction from positive law] opposition to natural law theories is pointless, that is redundant: what positivists characteristically see as realities to be affirmed are already affirmed by natural law theory, and what they characteristically see as illusions to be dispelled are no part of natural law theory. But because legal theories conceived of by their authors as positivist are, by and large, dominant in the milieux of those likely to be reading this entry, it seems appropriate to refer to those theories along the way, in the hope of overcoming misunderstandings that (while stimulating certain clarifications and improvements of natural law theorizing) have generated some needless debate.
The point made in the preceding paragraph is made in another way by Orrego (Orrego 2007). When the accounts of adjudication and judicial reasoning proposed by contemporary mainstream legal theories are added to those theories’ accounts of (the concept of) law, it becomes clear that, at the level of propositions (as distinct from names, words and formulations), those theories share (though not always without self-contradiction) the principal theses about law which are proposed by classic natural law theorists such as Aquinas: (i) that law establishes reasons for action, (ii) that its rules can and presumptively (defeasibly) do create moral obligations that did not as such exist prior to the positing of the rules, (iii) that that kind of legal-moral obligation is defeated by a posited rule’s serious immorality (injustice), and (iv) that judicial and other paradigmatically legal deliberation, reasoning and judgment includes, concurrently, both natural (moral) law and (purely) positive law. Orrego’s point seems to be confirmed by, e.g., the adjacent entry on Legal Positivism (Green 2003). Contemporary “positivist” theories are, it seems, natural law theories, distinguished from the main body of natural law theory (a) by their denial that the theory of law (as distinct from the theory or theories of adjudication, judicial duty, citizens’ allegiance, etc.) necessarily or most appropriately tackles the related matters just listed, and accordingly (b) by the incompleteness of their theories of law, that is, the absence from them (and usually, though not always, from their accounts of those related matters) of systematic critical attention to the foundations of the moral and other normative claims that they make or presuppose.
In short: a natural law theory of (the nature of) law seeks both to give an account of the facticity of law and to answer questions that remain central to understanding law. As listed by Green 2003 (having observed that “No legal philosopher can be only a legal positivist”), these further questions (which “legal positivism does not aspire to answer”) are: What kinds of things could possibly count as merits of law? What role should law play in adjudication? What claim has law on our obedience? What laws should we have? And should we have law at all? |
We need to do some serious thinking on the underpinnings of law and today’s dominant trends of thought (which are positivist) as first steps to sound reformation. Of course, if it is not too late.
KF
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Brother Brian May 17, 2019 at 7:53 pm
Taiwan just legalized same sex marriage. How many is that now?
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Kairosfocus blathering some dumb theoretical bulshit nobody will read or give a crap about, while imagining himself important, and a critic just briefly pointing out how KF's side continues to lose lose lose.
Edited by stevestory on May 17 2019,22:19
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