Laws beyond Relativity. Command or Fairness?

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

Invincible ignorance is defined as the state in which one cannot overcome his ignorance, despite one’s utmost diligence, and hence cannot be blamed for the acts resulting from that circumstance. It is particularly relevant with regard to law and principles that one is bound to know. The main problem with the admission that such a state may occur results from the difficulty of assessing the subjective element present in such a state: How can we know that one applied his diligence to the utmost extent? This notion emerged in the 12th century. But while medieval theologians elaborated such a notion, they nonetheless stressed that in reality no one could be guiltlessly ignorant of natural and divine law. The arrival of the Spaniards to the Americas triggered the awareness that entire nations could, in fact, be invincibly ignorant of Christianity. The Spanish theologians then started to use this notion, admitting the existence of invincible ignorance of some principles of divine and natural law. Their argumentative strategy rested on emphasising the subjective element of invincible ignorance. In this article, I examine Vitoria’s Relectio de Indis against the medieval doctrinal background. I also analyse Vitoria’s, Domingo de Soto’s and Juan Gil de Nava’s unedited lectures on Aquinas’s Summa theologiae as well as the works by Matias de Paz, Juan Lopez de Palacios Rubios, Juan de Celaya and Bartolome de Las Casas.

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...

Antigone: Nor did I think your orders were so: strong that you, mortal man, could over-run gods' unwritten and unfailing laws. Not now, nor yesterday's, they always live, and no one knows their origin in time (Sophocles, Antigone, lines 453-57). Karl Marx was convinced that private ownership of capital goods was social and moral evil. There thesis that this conviction of Marx rests predominantly upon natural law. This paper accepts that thesis. The discussion in this paper meant to substantiate natural law foundation of Marx's property position. There will be no elaborate attempt, however, to prove thesis. The purpose of this paper to discuss why Marx postulated that private property an evil institution which had to be eradicated from society. Before judging Marx's conclusion helpful to know various logical steps by which that conclusion derived. It important to realize that arguments put forth here are meant to be, primarily if not exclusively, logical and neither psychological nor psychoanalytical. In other words, what being sought logical unfolding of Marx's thought, not psychological factors influencing it. This paper contains three parts and final comments. First, there an exposition of concept of natural law. This done since natural law theory enters only limited areas of contemporary economic analysis and may not be familiar to many readers. Secondly, there discussion of thesis that Karl Marx's views on private property are based on natural law. Thirdly, reasons Marx rejected private property are put forth. The fact that this third pan in nature of reflection makes somewhat difficult to substantiate. I. The Concept of Natural Law(1) Natural law came originally from Greek philosophers, was furthered by Roman jurists, and received more ordered presentation from scholastic philosophers of twelfth through seventeenth centuries. The writings of St. Thomas Aquinas will be used here as basis for natural law explanation. The thought of St. Thomas does not represent culmination of thinking on this subject, but does provide wholly adequate background to topic. There are two general meanings of law.(2) When we speak of law of diminishing marginal productivity or law of gravity, term law means that specific outcome will take place granted certain conditions. Diminishing marginal productivity occurs at some point for each and every type of firm. It law because always takes place; at some level of input marginal product diminishes. Obviously this not type of law meant when speaking of natural law. The other general meaning of law which pertinent here that law rule or norm which prescribes some specific action or avoidance of action. Of this latter type of law one definition states: That which must be obeyed and followed by citizens, subject to sanctions or legal consequences, 'law' (Black's Law Dictionary, 1968, Law). While this definition of law refers to positive, human law, St. Thomas similarly defined law as a rule and measure of acts, whereby man induced to act or restrained from acting (I-II, q. 90, art. 1).(3) Again, he stated that law is nothing else than an ordinance of for common good, made by him who has care of community, and (I-II, q. 90, art. 4). St. Thomas organized law under four different categories: eternal law, natural law, divine law, and human (positive) law. We are concerned here primarily with first two of these four categories. Eternal law was defined by St. Thomas as the eternal decrees of God concerning government of universe (I-II, q. 91, art. 1). Eternal law supposes that there God who rules world by intelligence. The plan which God has for world called law: . . an ordinance of reason for common good; promulgated by its being imbedded in natures of creatures governed by it (Fagothey/Gonsalves, 1981, p. …

Hitherto natural law in early modern Poland-Lithuania has not been systematically researched. This is due to the usual problems in defining natural law, all the more so in Poland-Lithuania where natural law tended to merge with divine law and law of nations. Moreover, unlike in Western Europe, natural law was not seen as a systematic basis for positive law. Nevertheless, ideas of natural law found fertile ground in the specific circumstances of Poland, Lithuania and, especially, their various unions between 1386 and 1795: the vast geographic, cultural and religious diversity, the traditions of self-governance, the plurality of legal systems, the republican order of the monarchy and, from the mid-seventeenth century, the growing social tensions. Therefore, natural law should be defined otherwise than in the Western context, with more emphasis on the multi-cultural practices. After an overview of these factors, the chapter analyses selected sources for sixteenth-century humanism (Frycz Modrzewski, Roisius) and seventeenth-century school philosophy (an anonymous source of 1612, Olizarowski, Modzelewski, Puciłowski). Finally, after an outlook on the eighteenth century, I attempt a sketch of the specific understanding of natural law in the Polish-Lithuanian Commonwealth.

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

In my study, The Natural Law Tradition and the Theory of International Relations, reviewed in Hedley Bull's interesting article, there are no chapters devoted to natural law thinkers before the thirteenth century. Any lengthening of an already long manuscript might have diminished its prospects of publication. In the absence of a full survey of the strengths and weaknesses of earlier theories, there are various explicit or implied judgements on positions of Aristotle, the Stoics, Cicero and Augustine in chapters dealing primarily with other matters. Whilst referring to sources of Aquinas's doctrine, I did not give a detailed account of the historical formation of his teaching. I concentrated upon St. Thomas's discussion of the various kinds of law and especially upon the doctrine of eternal law which he brought to a certain perfection. In doing this, I was consoled by the view which I shared with Vincent McNabb that “it was always the thought of Aquinas never the history of that thought which seemed of greatest worth…” Indeed, given the incompleteness of so much of the discussion on the intellectual reconciliation of natural and divine law before Aquinas, it is arguable that McNabb was hardly exaggerating very greatly when he wrote that Aquinas's treatise on law in the Summa theologiae “would seem be the first great treatise ever written on law”.

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

ABSTRACTThis article examines the controversy surrounding Andreas Hojer, the future professor of natural law, and his youthful work on the non-prohibition of incestuous marriages by divine law that took place in 1719–1720 in Copenhagen. The article discusses manuscript sources from the theological faculty and central government to show how the controversy concerned not just Hojer's allegedly dangerous arguments but also embodied a heated debate about the liberty to discuss such matters in print. The controversy moreover reveals the significant presence of followers of Christian Thomasius in influential positions in Denmark in the decades around 1700. These Thomasians combined natural law with a strong criticism of the authority of orthodox theologians and, arguably the earliest and most radical, arguments for a wide-ranging liberty of thought, libertas philosophandi, in early modern Denmark. This was in turn met by proponents of a more conservative natural law supporting the theological authorities. The article concludes by discussing how Hojer and the controversy surrounding him illustrate the wider significance of Thomasian natural law for the intellectual culture, for freedom of thought, and for religious and legal reform in early eighteenth-century Denmark.

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

This chapter describes biblical discourses of divine law. It begins by examining those biblical texts that emphasize the emergence of divine law from the divine will. These texts stand as resources for later readers who seek to construe biblical divine law as positive law. It then turns to texts that emphasize elements of divine wisdom in the Law. These texts stand as resources for later readers who seek to construe biblical divine law in terms of natural law. Finally, it examines texts that narrate the historical circumstances under which this multifaceted law came into being and its role in the divine plan for Israel and humankind.

Abstract: Corruption is included as a crime which expands into a transnational crime, destroying the moral values of the nation, hampering and harming the development of the nation, a creation of a closed path of justice, prosperity and welfare of the Indonesian people. Death penalty is an option of criminal sanctions applied in the legal system in Indonesia. The death penalty attached and integrated in the legal system in Indonesia which was formerly influenced by the complexity of its background. At the philosophical level it shows that all legislations related to the formulation of corruption and death penalty have the background of moral values based on Pancasila as a philosophical footing. The death penalty of corruption in Indonesia within the perspective of a legal justice, contained in the formulation of Law No. 20 year 2001 about the Amendment of Law No. 31 year 1999 about eradication to corruption, chapter II, article 2, paragraph (2), shows a part of the positive law. The image of the positive law in Indonesia recognizes the existence of natural law. It is reflected in the philosophical values of the nation, Pancasila (believe in one God). Consequently, the products of the positive law in Indonesia must be derived from the natural law, and the natural law is derived from the eternal law (divine law).Keywords: Law, corruption, criminal act, justice

General Justice is a virtue that leads people to the community order and goods through which they can achieve well-being. This article explains the theory of general justice from the perspective of Aquinas and examines the common good and its role as the subject of general justice in directing and regulating the law. Aquinas counts general justice with the influence of Aristotle and Christian theology as a general virtue that has a particular subject, i.e., the common good. General Justice is the same as virtue which is the same in substance but different in concept. The theory of general justice according to Aquinas is both a kind of legal debt that obliges a person to obey the law and a kind of moral debt that obliges a person to observe the virtue of moral virtue. Aquinas’ theory of general justice finds meaning in societies that meet the criterion of general justice if the ruler formulates a positive law according to divine law and natural law. Thus this theory ultimately depends on the intentions of the ruler and the type of government that lead individuals to a common good in society and well-being. The purpose of this article is to explain the theory of general justice from the perspective of Aquinas and to examine the common good and its role as the subject of general justice in the regulation of law. To achieve goods, we can consider three types of command in the community, which correspond to three types of justice. One commands the components among themselves; another commands the whole to the components and command the components to the whole. Commutative justice is a virtue that regulates the goods of the components among themselves. Distributive justice is a virtue that regulates the goods of the whole into its components. Finally, general justice regulates the goods of the components into the goods of the whole. General Justice is more important than these two virtues of justice because the subject of general justice is the common good. The common good is a kind of order that is necessary for human society so that human beings can achieve their moral, political, and legal goals. The virtues that are private to the individual when they occur in society are directed to the common good through general justice; therefore, general justice is a general virtue. In Aquinas’s works can find different interpretations of general justice being a general virtue. In this article, it is shown that Aquinas’ theory of general justice finds meaning in societies that meet the criterion of general justice if the ruler formulates a positive law according to divine law and natural law. When the rulers and the government are properly instructed to act according to the principles of this society, both the government and the rulers achieve their goal of common good and well-being. When we consider God’s commandments to be the criterion of the common good, then the ruler must be able to interpret the divine law correctly.

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.

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.