Roles and Functions of Law Meaning, Nature and Scope of Jurisprudence (original) (raw)

The Significance of Natural Law in Contemporary Legal Thought

The theory of natural law has stood strong throughout different epochs, serving various purposes in each and every one of them. With the rise of positivism and the empirical spirit of the period, natural law was not to be found during the 19th century through to the mid-20th century. However, it was proved that order and stability cannot be preserved without the assistance of natural law. The events and atrocities that occurred during the 20th century forced a re-emergence of natural law under the guise of human rights and sparked new debates and a sustained academic interest in natural law which still thrives till this very day

Jurisprudence from Antiquity to Modernity: The Enduring Appeal of Natural Law Theory

The goal of this essay is to provide an account of the philosophy of law which establishes the moral and practical appeal of one legal theory, natural law theory, above another, legal positivism. It does not aim to definitively overturn legal positivism, to deny the value of that theory, or to establish natural law theory as the absolute paramount of legal theories. Its aim, rather, is to effectively argue that natural law theory provides a better means of achieving social happiness than legal positivism can. It is a systematic approach, rather than an historical one, although historical evidence is cited at various points. It locates the particular problems facing an account of the philosophy of law, and addresses those problems using practical reasoning. The essay consists of seven sections and a conclusion. Section one establishes the conceptual location of the philosophy of law, describes its methodology, and identifies the purpose and possible scope of that philosophy. Section two discusses the external parameters of law, focusing particularly upon the relation between law and morality as envisioned by legal positivism and natural law theory. Section three outlines the argument presented by Aristotle that natural law provides a concrete means of attaining happiness, thus providing a justification for participation in a political community as well as the adoption of natural law theory. Section four addresses the question of political obligation. Section five then provides an account of the necessary criteria of legal authority which makes that obligation binding. Section six proceeds to discuss the notion of human rights, while section seven considers the justification of punishment in the context of such rights. Finally, a conclusion is presented, which summarizes the main themes addressed and reaffirms why natural law theory is of greater moral and practical appeal.

Natural Law in Jurisprudence and Politics

This article reviews Mark Murphy's book, Natural Law in Jurisprudence and Politics (Cambridge University Press, 2006). I present a generally sympathetic account of Murphy’s natural law theory. However, I argue that his account could be improved in three key areas. First, Murphy is wrong to reject John Finnis’s hermeneutic strategy for analysing the concept of law. Second, Murphy fails to provide a convincing defence of his consent-based conception of political authority. The clearest route to establishing the possibility of non-defective law remains the salient co-ordinator account. However, this account does not establish that law has authority; rather, it supports the weaker conclusion that law claims authority and is backed by decisive reasons for compliance. Finally, Murphy is wrong to resist the super-political challenge to the common good principle. The argument from the super-political is not only logically sound, but also morally compelling.

Reason, Freedom, and the Rule of Law: Their Significance in the Natural Law Tradition

The American Journal of Jurisprudence, 2001

The idea of law and the ideal of the rule of law are central to the natural law tradition of thought about public (or "political") order.' St. Thomas Aquinas went so far as to declare that "it belongs to the very notion of a people {ad rationem populi} that the people's dealings with each other be regulated by just precepts of law." 2 In our own time, Pope John Paul II has forcefully reaffirmed the status of the rule of law as a requirement of fundamental political justice. 3 For all the romantic appeal of "palm tree justice" or "Solomonic judging," and despite the sometimes decidedly unromantic qualities of living by pre-ordained legal rules, the natural law tradition affirms that justice itself requires that people be governed in accordance with the principles of legality. Among the core concerns of legal philosophers in the second half of the twentieth century has been the meaning, content, and moral significance of the rule of law. The renewal of interest in this very ancient question (or set of questions) has to do, above all, I think, with the unprecedented rise and fall of totalitarian regimes. In the aftermath of the defeat of Nazism, legal philosophers of every religious persuasion tested their legal theories by asking, for example, whether the Nazi regime constituted a legal system in any meaningful sense. In the wake of communism's collapse in Europe, legal scholars and others are urgently trying to understand the role of legal procedures and institutions in creating and sustaining decent democratic regimes. It has been in this particular context that Pope John Paul II has had occasion to stress the moral importance of the rule of law. One of the signal achievements of legal philosophy in the twentieth century was Lon L. Fuller's explication of the content of the rule of law. 4 Reflecting on law as a "purposive". McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions, Princeton University. This essay is reprinted with permission from the American Journal of Jurisprudence. 1 The idea of law and the ideal of the rule of law have always been central to the political thought of Christian philosophers and theologians. This idea and ideal were by no means Christian inventions, however. They were articulated and developed in pre-Christian classical and Jewish traditions of thought. The treatment of the subject in the writings of St. Thomas Aquinas is, unsurprisingly, deeply indebted to Plato and, especially, Aristotle, as well as to the Hebrew Bible.

A naturalism fit for legal theory?

This paper was born out of a commitment to expose the dualist framework informing legal theory’s dismissive take on habit as neither necessary nor helpful. Not only is a habit-centered naturalism better equipped to construct an account of legal normativity that is receptive to the normative challenges raised by the fact that habit both enables and potentially compromises ethical agency. It also debunks the wrong-headed assumption that dualist premises are necessary to rescue ethical objectivity from “irrationalism” (a word which Habermas candidly associates with his experience of fascism). This paper argues that one can develop a naturalist understanding of moral values that preserves their objectivity while systematically opening the factual assumptions upon which moral thinking depends to scientific challenge. Now, given the range of possible ways of defining -and articulating the relationship between- “nature” and “science” respectively, naturalism comes in many shapes and colours. The type of moral naturalism defended here, which gives a central place to habit, rejects both non-naturalism and any kind of naturalism that lets the current results of our natural sciences define what belongs to nature and what does not. For only such a naturalism, it is argued, is capable of explaining our capacity to challenge widely accepted societal norms to trigger moral (and legal) change.