ДУАЛИЗМ ЕСТЕСТВЕННОГО И ПОЗИТИВНОГО ПРАВА: ПЕРИОД АНТИЧНОСТИ И СРЕДНЕВЕКОВЬЯ

Reviewed by: Debating Medieval Natural Law: A Survey by Riccardo Saccenti R. S. White Saccenti, Riccardo, Debating Medieval Natural Law: A Survey, Notre Dame, University of Notre Dame Press, 2016; cloth; pp. xiii, 155; R.R.P. US $45.00; ISBN 9780268100407. Natural law is an ancient and abiding way of thinking about the relationship between morality and law. Extremely simple in its premise, that knowledge of the difference between right and wrong is innate and 'written on the heart' as a way of preserving existence, the doctrine has led to vast amounts of commentary on its endless complexities and its very existence or otherwise. As Aquinas put it, 'Good is to be done and pursued, and evil is to be avoided'. However, natural law was also argued for in pre-Christian times, by Plato, Cicero, and others, using not Christian notions of God's divine purposes nor conscience, but reason alone to deduce its existence. Within the later Christian cosmology, conscience was considered central as the innate, God-given faculty, but some Christian thinkers did not draw the conclusion that natural law itself is also innate, insisting instead that God's emissaries on earth are needed to pass down divine law. Meanwhile, after its heyday in medieval and early modern times there have been revivals of natural law and its more civic equivalent, natural rights, which in turn underpinned human rights. Throughout history political applications have been based on the justification offered by natural law for resistance to unjust positive (man-made) laws and for issues like conscientious objection, since the argument runs that positive law must be consistent with natural law or it is no law at all, and can—indeed in some cases must—be broken. However, it needs to be said that Riccardo Saccenti's book is probably not the best place for beginners. Despite its inviting subtitle (A Survey) and its brevity (eighty pages of text, and almost the same of notes), the account presupposes some acquaintance with the mountain of scholarship on the subject. In particular, its intended audience is most likely those in the Natural Law Forum at Notre Dame, which has its own important journal. The subtitle could really be limited to 'A survey of twentieth-century literature' on medieval natural law theories, rather than implying a history of natural law. Furthermore, given the medieval lens, generally speaking the primary concentration is on theological approaches rather than historical, secular, or philosophical ones. Even more specialized, there is a focus on a particular medieval debate on distinctions between lex naturalis (natural law) and ius naturale (natural rights). Within its chosen parameters, Debating Medieval Natural Law is a challenging and important analysis. [End Page 243] R. S. White The University of Western Australia Copyright © 2019 Parergon

I think it has not yet become entirely banal, though it is certainly starting to seem awfully familiar, to claim that there is some kind of causal or at least instrumental relation between the development of biology, medicine and statistics since the nineteenth century, with their attendant sociological concepts of Man and the population, and the emergence of the idea of positive law and forms of government that appear to be nothing more than its scientiŽ c and statistically-oriented application. Thanks to science, we are now in a good position to see the increasing tendency of positive law and natural law to converge; such that positive law (as practice) seems to have become functionally responsible for the disclosure of natural law. Indeed, we have observed that the most basic axiom for the theorist of positive law, that “law is a thing of man,” is becoming ever more attenuated. Because the notion of a relation between science and positive law has become so familiar, the notion of the convergence of positive and natural law (as ideas) may give the impression of espousing a kind of teleology, or at least a theory of some open-ended variety of progress. Such a claim is beyond the scope of this essay. Focusing on the rhetoric surrounding the issue of human reproductive and therapeutic cloning (for no reason other than that the promise of these technologies provides an adequate occasion), this essay will serve as a preliminary framework for study of the developing amalgamation of ideas and forces that has been characterized at one time as positive law, at another as government, at another as religion, and at another as science, which at the present moment collaborate to offer a challenge to the conventional sociology and to the conventional deŽ nitions of law, via a strange promise for the real transformation of human life and concomitant deŽ nitions of the living. This essay will tell the story of a sort of

Natural Resources and Natural Law Part II: The Public Trust Doctrine

The dialectic of cyclicity in the system of dual natural and positive law, as the transition from one opposite to another, involution to evolution, quantitative transformations into qualitative and actually regular cyclicity of crises and stability in the legal system is studied. The dialectic of cyclicity in law occurs as constant oscillating processes of transition from one opposite to another, natural law into positive, involution into evolution, quantity into quality, crisis into stability, and development in a circle gradually turns into a spiral. Defining and substantiating the phases and stages of the cycle allows us to demonstrate the development of a particular cycle and the driving mechanisms of this transformation – the laws of dialectics, in particular, the unity and struggle of opposites in law, the transition from quantity to quality, denial of the old and so on. Oscillatory processes are manifested in opposites of phases and stages of cycles, and small cycles of development of law are embedded in large ones, where each cycle is part of a larger cycle, and that in turn is even larger, and so on. The end of one cycle leads to the transformation of the legal system and its manifestation in a new form and content at a new level of the spiral of development. Ways to overcome the crisis in the legal system should be sought, first of all, in the updated methodological principles of cyclicality in jurisprudence based on the ideas of natural law, based on the principles and laws of dialectics, laws of philosophy of law, and in combination with other branches of modern knowledge.

This chapter explores how natural law worked in the legal system of the 18th and 19th centuries. It discusses how lawyers believed natural law could be discerned, how natural law related to positive law, why natural law seemed so plausible, how natural law figured in legal education, and how natural law was used in practice. Natural law was understood to consist of general principles found in nature, like the principles we call “scientific” laws today. They formed a backdrop against which positive law was enacted and interpreted. These general principles guided courts’ decisions where positive law did not yield a clear answer.

The specifics of the interpretation of the phenomenon of natural law in the works of outstanding thinkers of the Middle Ages were studied, and the medieval interpretation of natural law was determined by Christianity, as an expression of God’s Wisdom and justice as a higher moral precept. Considered related to the formation of the main strategic principles of the Christian norm. The problems of interpreting the principles of natural law in the works of theologians of the Middle Ages are demonstrated. It is analyzed that the main merit of Christian law-making is the selection of natural law as a criterion of positive norms, the creation of a hierarchical order of the legal system, and natural law is a manifestation of the eternal, universal law that expresses the Divine mind. The article examines the issue related to the form of the main principles of Christian law-making. Attention is drawn to the special attitude of Christians to the Bible as the primary source of normativity and the development of a special method of legal analysis and synthesis, with the help of which the medieval law professor formulated the basic principles of law. It was noted that the most characteristic feature of philosophical searches became the idea of God, who absolutely rises above nature, which in itself does not possess any laws and lives only to the extent that God wants it. It is also shown that in the Middle Ages the idea of natural law had a theocratic character, and its system was based on the developments of Roman lawyers and the truths of the Holy Scriptures. The article is devoted to the problems of interpreting the principles of natural law in the works of theologians of the Middle Ages. In the Middle Ages, the concept of natural law acquired mainly a narrow theoretical and theological orientation, which supplemented natural law views with a moral and philosophical color. However, gradually consideration of natural law as a manifestation of divine will is replaced by an analysis of the legal nature of natural law and its comparison with positive law.

Fundamental events, which have happened during the ХХ-ХХI centuries, made the radical changes in the existed legal thought. The classical legal studies represented law as changeless ground of the world, aprioristic content of the moral consciousness (natural law), or as hard and stable system of the social norms, which are fulfilled on the basement of the official enforcement(positive law). At the same time, current situation demonstrates the weakness of law directly. World wars, totalitarianism, death camps, genocide, terrorism express itself much more clearly, that the abstract legal norms and values. So, it is possible to presuppose, that law exists not as continual, but as discrete phenomenon, which is reproduced through the human interaction. In the similarsituation legal researchers couldn’t consider changeable and inconsistent legal reality by the way of the dogmatic constructions of the natural or positive law. The legal philosophers are forced to create the new methodological approaches, which give possibility to understand the specifics of legal Being. It’s worth to mention, that the predicate “legal” or “law” doesn’t mark the correspondence ofits subject to the norms of law, whether positive or natural, but means its legal relevance, its ability to be considered in the frames of the legal constructions. From the similar point of view the such non-classical sense figures as “law communication” (A. V. Polyakov), “law event” (A. V. Stovba), “legal reality” (S. I. Maksymov), “legal dialogue” (I. L. Chestnov) already include in itself not legalphenomena only, but illegal phenomena also – such as crimes, law-breakings etc. To the named phenomena corresponds the living experience of the human co-existence. Inside the frame of the similar experience it is worth to mark the “rightless” experience, experience of law-breaking, experience “not-of-law-but-something-else”. Thus, the reasoning of the experience of “unlaw”, whichis experienced in the living corporal co-existence, is perspective direction of the legal researches.

The End of the Law? Law, Theology, and Neuroscience

BOOK REVIEWS 103 mutual implication of ideas, became the Logos, the perhaps infinite total of all the ideas that govern the universe, or the cosmopolis. The lawyers and statesmen of Rome were more skeptical than Virgil. They did not trust the responsibility for their affairs to the gods.... They never doubted the necessity to seek the reasons for their laws; they asked their questions :of nature rather than of the gods. The liberties under law of the American citizen are not only a slogan to be sold but a model to be loved, hated, feared, and emulated around the world, We and all the other peoples in the world are driven to think cosmopolis. The dialectical speculation of the Middle Ages did not deny the historical order, but added to it the nontemporal : dialectical hierarchy of laws, positive laws of custom and statute, the jus gen~ium, the natural law, and the divine law. The dynamic strivings of history take place continually and simultaneously under these legal auspices. The levels of law provide an order of appeals from lower to higher cosmic tribunals. We split the natural world into two parts, one that is drained of values, and one that is haunted by errant emotions and wishes. This split is the work of about one century of the late Renaissance. The defenders of the classical tradition of natural law, who should assert teleology as a parallel and coextensive interpretation with mathematical physics, actually defend teleology only in man.... The classical doctrine of human nature then exists in the modern world as a mere humanism. This, I believe, is what paralyzes the doctrine of natural law in the modern world." "If we conceive natural law as a body of rules for the making, administration, and adjudication of positive laws, we have something like a solution.... Regulation by natural law then.., does not dictate positive law, but it sets the processes of law in operation and directs their activity and influence through dialectic, analogy, and example.... Natural law, as reason, sits within the mind of the magistrate, lawyer, and citizen as the internal teacher (Buchanan, pp. 90-93, 96-97, 99, 111-=12, 120, 130,136--137). The logical stages in the production of common law are very similar to the logical stages for the production of natural law: the projection of the abstract functioning principles of institutions and the counter-projection of those principles as standards of behavior. The standards of behavior (the common law) carry the obligation of a functional ethic stating the behavioral norms which are logically entailed by a social system. But the functional source of the eth!c (the law) announced by judges is not perceived. And although the ethic is enIoreea vy tne s~a~eit aoes not appear to be producedby the state. The common law sometimes appears to be an ethic which is announced by, not produced by, man. The common law appears to express an autonomous ethic which exists apart from politics as a higher law (Wheeler, pp. 231-233). In addition to these (and many more) gleanings from the history of natural law, we call attention to a critical history of the technical legal meaning of "public consensus" by John Courtney Murray. The aim of his historical analysis is to find a sharp distinction between "publicopinion" and "the public consensus." His conclusionis: The quality of being in accord with reason is the noneontingentelement in the body of thought that constitutes the consensus. Brute fact or sheer experience have no virtue to elaborate themselves into controlling rules of public conduct. The transcendence of experience and the transformation of fact is the work of reason. The act whereby the doctrine of the consensus is formulated is not the act of inquiry into the facts, nor the act of reflection on the experience. It is an act of judgment, an exercise in moral affirmation or denial.... The key to the most curious aspect of the whole matter is that the economic powers in society accept the judgments , directions, and corrections of the public consensus, even when these are not backed by the coercive force of the supreme public power (Murray, pp. 79-80). HERBERT W...

For most of us today a law means a rule that is enacted by some legislature. If the law proves to be a flaw, then a new law would replace it. Earlier a law was a command which could not have been replaced by another law at will. In this we can detect the difference between the ancient and the modern understanding of law and law-making. The explanation must be sought by pointing out the relativity of law in our modern conception of law compared to ancient perception of how a law must be treated once framed – it has the force of a command. In what follows the three aspects of law – the divine, natural and positive laws – will be discussed with the assumption that the dominant idea of law today is based on the conception of the relativity of law which fits most the newly emerging third concept of nature that tends to suit modern man’s need to oust both religion and philosophy. This third meaning of nature is best expressed by the concept of virtual reality. It is a covering term for all the arts of modern man that he has been creating by modern sciences and technological developments. Thus the state of religion (divine law) and the state of nature (natural law) are to be understood by exploring the state of modern politics which provides the actual conditions of modern virtual reality, and presupposes the dominance of the relativity of laws.

In this chapter we will critically examine natural law theory and the proposal that there is a necessary connection between positive (human-created) family law and natural family law (objectively valid, universal moral rules not created by humans). Natural law theory, as it applies to family law, proposes that the rules of positive family law are valid only if they conform to the rules of natural family law. Our question is whether this theory can be successfully defended. We begin with a description of a Supreme Court case invalidating a state statute prohibiting sexual activity and marriages between persons of different races, in which the prohibition was partly based on appeals to natural law. We will then test several versions of natural law theory, beginning with a classical version originally proposed in the seventeenth century by the English philosopher John Locke. We conclude with a discussion of two modern versions of the theory proposed and defended in the twentieth century by American philosophers Lon Fuller and Ronald Dworkin.

The Silmarillion and the Lord of the Rings as a Lens into Constitutional Interpretation: A Possible Synthesis of Natural and Positive Law

Recent debates in the United States and Canada bear witness to a renewed interest in the moral foundations of legal interpretation. This article offers a contribution to the ongoing debate in Canadian legal circles, responding to critiques by Leonid Sirota and Mark Mancini of the emergent theories of “common good originalism” and “common good constitutionalism”. Contrary to our interlocutors’ view, the natural law tradition does not “look to extraneous moral and policy commitments as guides for legal interpretation” nor does it see the law as a mere instrument to achieve “pre-determined outcomes.” Rather, it regards the positive law and natural law as reciprocally interrelated; natural law lends intelligibility to the positive law, while positive law makes concrete the abstract precepts of natural law. This perspective provides valuable insights into the activity of legal interpretation, as directed toward understanding and giving effect to the legislature’s reasoned choices for the common good.

This chapter focuses on Emer de Vattel’s analysis of customary ius gentium. Relying and expanding on Wolffian philosophy, Emer de Vattel clarifies the relationship between natural law and positive law, by insisting on the fact that, as a source of law, custom is both compliant with natural law and effective as positive law. Furthermore, another important element is Vattel’s insistence on the added value that nations annex to custom, which would otherwise be nothing but a mere usus, carrying no legal meaning or obliging force whatsoever. On the contrary, Vattel manages to bind the persuasive force of custom into compliance with natural law and, ultimately, with the pursuit of self-interest. Finally, Vattel’s concept of custom calls into question the idea of an international legal order where normative principles coexist with practical considerations of expediency.

One can readily appreciate that the tradition of legal positivism has defined itself in terms of an antagonist: natural law theory. Binding laws are considered cognitive objects (rules, principles, doctrines, policies) that human authors have posited. Natural laws are said to transcend such humanly posited objects. If inconsistent with the natural law, a humanly posited rule is void or unauthorized. As such, the humanly posited rule does not exist.