Roman Law in the State of Nature offers a new interpretation of the foundations of Hugo Grotius' natural law theory. Surveying the significance of texts from classical antiquity, Benjamin Straumann ...argues that certain classical texts, namely Roman law and a specifically Ciceronian brand of Stoicism, were particularly influential for Grotius in the construction of his theory of natural law. The book asserts that Grotius, a humanist steeped in Roman law, had many reasons to employ Roman tradition and explains how Cicero's ethics and Roman law - secular and offering a doctrine of the freedom of the high seas - were ideally suited to provide the rules for Grotius' state of nature. This fascinating new study offers historians, classicists and political theorists a fresh account of the historical background of the development of natural rights, natural law and of international legal norms as they emerged in seventeenth-century early modern Europe.
Se estudia el tratamiento doctrinal de los presupuestos y garantías de la expropiación forzosa realizado por los juristas del derecho natural moderno. Se examina una gran cantidad de fuentes directas ...y se concluye que, frente a la nitidez con que fueron establecidas por uno de sus primeros representantes (Vázquez de Menchaca), dichos presupuestos y garantías no se configuraron con la firmeza que cabría esperar por parte de los iusnaturalistas posteriores. Más bien parece que la primera disciplina constitucional de la materia trató de reaccionar contra ciertas malas prácticas, en parte respaldadas por algunas de esas propuestas doctrinales.
Most theorists agree that our social order includes a distinctive legal dimension. A fundamental question is that of whether reference to specific legal phenomena always involves a commitment to a ...particular moral view. Whereas many philosophers advance the 'positivist' claim that any correspondence between morality and the law is just a function of political circumstance, natural law theorists insist that law is intrinsically moral. Each school claims the crucial advantage of consistency with our folk concept. Drawing on the notion of dual character concepts, we develop a set of hypotheses about the intuitive relation between a rule's moral and legal aspects. We then report a set of studies that conflict unexpectedly with the predictions by legal positivists. Intuitively, an evil rule is not a fully-fledged instance of law.
At the conclusion of his
, a treatise on the law of nature, how it is grasped by the human mind, and how it coheres with the Decalogue, Niels Hemmingsen claims to have eschewed the use of theological ...sources in his argument, claiming instead to have demonstrated ‘how far reason is able to progress without the prophetic and apostolic word’. Yet the reader of the treatise will notice several citations of theologians alongside those of pagan poets and philosophers. This essay demonstrates that there is less here than meets the eye, that is, that Hemmingsen quotes theologians only to buttress what one can know from natural reason or the classical tradition, even when he is discussing God, and thus he does not violate his own stated principle.
The article discusses the notion of ‘legal humanism’, i.e. the encounter between jurisprudence and fundamental ideas of Renaissance humanists. Legal historians are fundamentally divided over the ...impact of humanistic thought on legal development. While some influential authors regard the insights and ideas of Renaissance humanists as largely irrelevant to legal thinking, others identify a group of ‘legal humanists’ and describe them as modernisers whose innovative forms of ‘humanistic’ legal thinking initiated developments that ultimately led to modern law. In view of this debate, the article analyses writings of Valla, Budé, Zasius, Alciato and other humanists in their historical contexts. It will be shown that these authors cannot be properly described as ‘modernisers’ as they did not advance new ideas that transformed legal thinking. Nevertheless, the conceptions of time and the philological insights of Renaissance humanism irritated established forms of scholastic legal thinking and made jurists reflect on their scholarship. The new forms of legal thinking that emerged from those 16
-century discussions did not make use of specifically humanistic, philological techniques, but should rather be seen as specifically legal responses to the humanistic irritation.
Critics of the “New” Natural Law (NNL) theory have raised questions about the role of the divine in that theory. This paper considers that role in regard to its account of human rights: can the NNL ...account of human rights be sustained without a more or less explicit advertence to “the question of God’s existence or nature or will”? It might seem that Finnis’s “elaborate sketch” includes a full theory of human rights even prior to the introduction of his reflections on the divine in the concluding chapter of Natural Law and Natural Rights. But in this essay, I argue that an adequate account of human rights cannot, in fact, be sustained without some role for God’s creative activity in two dimensions, the ontological and the motivational. These dimensions must be distinguished from the epistemological dimension of human rights, that is, the question of whether epistemological access to truths about human rights is possible without reference to God’s existence, nature, or will. The NNL view is that such access is possible. However, I will argue, the epistemological cannot be entirely cabined off from the relevant ontological and motivational issues and the NNL framework can accommodate this fact without difficulty.
El artículo ofrece una introducción al conjunto de los comentarios a la Ética a Nicómaco escritos por autores protestantes durante el siglo XVI. Se corrige así la unilateral impresión que el ...antiaristotelismo de Lutero ha dejado sobre la historia intelectual del periodo. Exponemos el modo en que estos comentadores tratan la idea de lo justo por naturaleza en EN V, 7, y en particular la singular tesis aristotélica sobre la mutabilidad de lo justo natural.
This article responds to four criticisms of the Catholic view of natural law: (1) it commits the naturalistic fallacy, (2) it makes divine revelation unnecessary, (3) it implausibly claims to ...establish a shared universal set of moral beliefs, and (4) it disregards the noetic effects of sin. Relying largely on the Church’s most important theologian on the natural law, St. Thomas Aquinas, the author argues that each criticism rests on a misunderstanding of the Catholic view. To accomplish this end, the author first introduces the reader to the natural law by way of an illustration he calls the “the ten (bogus) rules.” He then presents Aquinas’ primary precepts of the natural law and shows how our rejection of the ten bogus rules ultimately relies on these precepts (and inferences from them). In the second half of the article, he responds directly to each of the four criticisms.
This work is the first English monograph on Franciscus Junius's (1545-1602) theology in more than 40 years, and also is the first monograph on Junius's use of Thomistic moral concepts to date.
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