Fuller proposed a purely procedural theory of natural law, although he did not deny that a substantial theory of natural law is possible and appropriate. And indeed, there is no sufficient reason to follow it by limiting the scope of practical and theoretical reflection on what is necessary for a political society worthy of the restraint and assumption of responsibility that the law requires of those to whom it applies. For it is clear that legal procedures and institutions serve material objectives: the limitation of violence, theft and fraud, the recovery of property misappropriated by its rightful owners or possessors and unjustly imposed losses, the protection of intangible property such as reputation against unjustified defamation and immature persons, mentally handicapped and other vulnerable persons from sexual or other exploitation, and so on. If, faced with this argument, we want to abandon the idea that first-order legal theories are semantic theories, there are two obvious ways to proceed. First, one could simply abandon the idea that legal theories are exercises in conceptual analysis. This was Dworkin`s preferred response, although, as we shall see, one can reject conceptual analysis without adopting Dworkin`s preferred methodology. (See subsection 2.1.2.) Second, if one still wants to say that legal theories are in the realm of analyzing the notion of law, then the obvious answer to the thorny semantic argument is to deny that possession of the term is only a question of how to apply the word “law” in its legal sense. This suggests a second, richer form of conceptual analysis in which legal theorists could engage. Reductionist views, in particular, assume that in order to shed light on the nature of law, one must explain what law is and how it works, in terms of more basic facts. As a result, first-rate legal theories succeed to the extent that they achieve this in an explicatively powerful way (Marmor 2013). The purpose of a theory of the first order is to offer, from this point of view, a metaphysical reduction of the law: that is to say, to show that the phenomenon of the law is in reality constituted by another type of phenomenon, more fundamental, and that it is completely reducible to it (in the same way that chemistry could, in principle, be reduced to particle physics). Interpreted in this way, positivism would attempt, for example, to explain the nature of the law by reducing the facts about what the law is, how it works, and what it requires to more basic social facts—for example, about people`s behavior, beliefs, and dispositions. By such a reduction, a theory such as positivism claims to illuminate the phenomenon of law itself, break it down into its components and explain how they together constitute the complex social practice of law.
(For metaphysical reduction in general, cf. Schroeder, 2007, pp. 61-83; See also the entry on scientific reduction.) In response, one path that positivists who want to be reductionists might take might be to claim that legal facts are really descriptive in nature, not really normative. In particular, these positivists might argue that the facts about legal obligations we have are merely descriptive facts about what the law says we should do – not normative facts about what we should really do (Shapiro 2011, 188; see also Hart 1994, 110). Teaching in the form of lectures and legal exercises will revolve around these theories and the associated points of criticism. At university, you will also examine how these legal theories affect the English legal system, past and present. The study of (i) how one legal system becomes independent of another through legal processes, and (ii) how parts of a legal system (e.g. its constitution or rules for identifying public officials) are replaced by the illegal processes of coup d`état or revolution shows (see Raz 1979, 100-109) that the identity of an existing legal system as a single system of legal norms is not explained by a representation (or even consistently). ) can be described. which concerns only standards and their interrelationships as validation standards and validated standards.
The non-instantaneous identity of a legal system depends on the existing identity of the community in question. Legal theory moves towards the historical understanding (including self-understanding) of a community and its members as a community – paradigmatically this nation-state – and not as a random sequence or agglomeration of persons and events, and this understanding must not depend to some extent on the legal norms that the community can successfully constitute for itself and its members. There is no doubt that the common goal of coexistence based on the rule of law and the common memory of common recognition or recognition of laws such as ours are generally important elements of such a common understanding of political-community and legal identity. But other common goals, memories and a will to act must also be essential if the phenomena of legitimate independence and revolutionary constitutional amendment are to be what they are. Deontology is the “theory of moral duty or obligation.” [60] The philosopher Immanuel Kant formulated an influential deontological theory of law. He argued that every rule we follow can be applied universally, that is, we must be willing for everyone to follow that rule. A contemporary ethical approach can be found in the work of legal philosopher Ronald Dworkin. In such a case, does the law, as regulated by social facts, lose its authority over judges and citizens, does it also lose its legal validity? The answer depends on the discursive context in which the question arises.
If a reflection or a discourse makes it possible to recognize the “fixed” or “postulated” character of the rule as recognizable by reference to socio-factual sources, it can be said that it is legally valid, although too unfair to be followed or applied. Or if the discursive context makes it appropriate to emphasize instead its lack of direction for judges and subjects, it can be said that the rule, despite its links to social sources of fact, is not only morally non-directive, but also legally invalid. Each way of speaking says an important part of the truth, or rather, tells the truth with an accent that is different from that of the others. Finnis 1980 (273-4) and Simmonds 2004, 2005, 2006, 2007 challenged the quasi-empirical claim that even evil tyrants need or consider it appropriate to meet the requirements of the rule of law for the effectiveness of their rule. The eighth of the elements of Fuller`s rule of law, namely the adherence of leaders to their own rules of governance, is particularly obstructive and does not support the goals of tyranny. But the object of Fuller`s preoccupation, and the most fruitful place of debate, is not so much about historical or sociological phenomena or causalities, as about the “internal” and practical reasons at play. If leaders, somewhere, do not respect the rights and interests of some of their subjects with regard to substantive issues (life, physical security, liberty, property, etc.), why should leaders – what reason do they have – respect the procedural rights or interests of their subjects (give them adequate information about what is expected of them and, as leaders, comply with the promulgated law, when judging the behavior of these subjects and in other state relations with these subjects)? A more or less contradictory willingness of leaders to tie their hands through conscientious respect for procedural justice and to be always unfair in terms of content is, of course, psychologically possible. But Fuller`s main concern, like that of the broader tradition of natural law theory, is rationality and the specific implication of perfectly coherent reasonableness: morally rational judgment and choice. Although the core of classical and traditional theory of natural law is therefore not tainted by a “naturalistic error” (Finnis 2018, 2.4.2), the non-practical knowledge of the facts in this theory counts in different ways. Knowing the factual possibility of acquiring (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 the realization of this possibility would be good for oneself and for others. Other relevant types of facts include facts about certain human radical abilities and their absence in other animals – these facts are the data for understanding the meaning and limits of the class (persons, persons) of “others” to “good for oneself and for others”.
Or, facts about the limited supply of resources and the limited strength of human will (the need for incentives, etc.) 1.5° the appropriation of resources to certain owners as a normal demand of justice towards non-owners and owners. Modern jurisprudence began in the 18th century and focused on the first principles of natural law, civil law and international law. [2] General jurisprudence can be divided into categories according to the type of question researchers seek to answer and the theories of jurisprudence or schools of thought on how best to answer these questions. Contemporary philosophy of law, which deals with general jurisprudence, deals with problems within the legal and legal system, as well as problems of law as a social institution linked to the broader political and social context in which it exists. [3] The meaning of “an unjust law is not a law” is essentially identical to Hart`s meaning “This is a law, but too unjust to be enforced or respected” (or to be used as a defense). The excitement and hostility caused by the earlier way of speaking among modern legal theorists (especially Hart) is unwarranted. No one has trouble understanding phrases like “an invalid argument is not an argument,” “a disloyal friend is not a friend,” “a quack is not a medicine,” etc.
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