Documents

37 pages
182 views

Natural Law Human Rights

of 37
All materials on our website are shared by users. If you have any questions about copyright issues, please report us to resolve them. We are always happy to assist you.
Share
Description
-
Transcript
  NATURAL LAW, HUMAN RIGHTS AND JUSTICE SOME REFLECTIONS ON FINNIS S NATURAL LAW THEORY B.C. NIRMAL   INTRODUCTION Natural law theory has been remarkably influential in the evolution of the human thought on the conception of justice for more than 2,500 years since its inception. In fact, as Friedmann aptly says, 'the history of natural law is a tale of the search of mankind for absolute justice and its failure ° . To use his eloquent words further, 'again and again the idea of natural justice has appeared in some form during the last 2,500 years, as an expression of the search for an ideal, higher than positive law after having been rejected and revived in the interval' 2 . The revival of natural law in the late nineteenth and early twentieth centuries reflected itself in several modern theories. The skepticism of modern thinkers against an absolute idea of justice, their relativist view of world and above all their unflinching belief in the progress of mankind resulted in the rejection of the older notions of natural law as a law which is immutable, eternal and universa1 3 . In its modern incarnation natural law became 'an evolutionary ideal, and thus as a directive force in the development of positive law' 4 . As a consequence, modern natural theories could be seen as part of the never ending search for ideas of justice. While theorists belonging to the formal idealist school, such as Stammler in Germany, and Del Vecchio in Italy, sought to set up a formal structure of just law and then sought to give it a material content, empirical and sociological lawyers, such as Duguit and Geny re-established over-riding principles of natural law in the name of solidarity s . Lon L. Fuller, a post- positivist * B.Sc. L.L.M. Ph.D. (Law), Professor of Law, Banaras Hindu University, Varanasi-5, Executive Editor, Banaras Law Journal, Member, Executive Council, Indian Society of International Law, New Delhi; Member, Editorial Board, Indian Journal of International Law. W. Friedmann. Legal Theory (Third Indian Reprint 2003), 95. Ibid 3 1a . 153 4 Ibid 5 bid  lawyer, advanced the theory of 'procedural naturalisie. Even Hart, a positivist who expressed the goal of his theory as 'an improved analysis of the distinctive structure of a municipal legal system and a better understanding of the resemblances and differences between law, coercion and morality, as types of social phenomenon'', sought to examine the impact of moral questions upon the assessment of law's quality by introducing a 'minimum content of natural law' into his positivist theory 8 . But not all modern natural law theorist have abandoned the classical theories of natural law. Known as neo-scholastics jurisprudes like Dabin Maritaion and Finnis follow and refine the doctrine of Aquinas. The theory of law as a moral phenomenon, advanced by Deryok Beyleveld and Roger Brownsword 9 offers a more extreme thesis than those found in the classical naturalist spectrum or even that set by Finnis. John Finnis, a prominent living legal philosopher, who is presently a Professor of Jurisprudence at Oxford, has successfully managed to revivify the discussion on natural law with his own new theory of natural law. Drawing both on Oxonian and Catholic theorist philosophical traditions, he has not only challenged the dominant Anglo- positivist approach to legal philosophy taken by John Austin and H.L.A. Hart but has also sought to dispell misconceptions, slogans and illusions surrounding the natural law theory. His Natural Law and Natural Rights, first published in 1980, provides an important contemporary re-statement of natural law which is unique in its application of analytical jurisprudence to a body of doctrine usually considered to be its polar opposite. Although he disclaims srcinality and describes his book as introductory and admits that countless relevant matters are only discussed briefly or not discussed at all, it undeniably constitutes an invaluable contribution to contemporary legal philosophy. In his preface to his book he states, My hope is that a re-presentation and development of many elements of the 'classical' or 'mainstream' theories of natural law, by way of an argument on the merits (as lawyers say), will be found useful by those who want to understand the history of the idea as well as those interested in forming or reforming their own view of the matter . Finnis's theory of natural law has been so thought provoking that it has been critiqued by jurisprudes and scholars alike. The 6 Lon L. Fuller, The Morality of Law, rev.ed. (NewHaven : Comn. Yale University Press, 1969) 7 H.L.A. Hart, The Concept of Law (1961), 17. 8 1d, at pp. 188-189 9 D. Beyleveld, and R. Brownsword, Law as a Moral Judgment (1986) 2  present study is an humble attempt to understand his views on natural law, human rights and justice.  DEFENCE OF NATURALISM Finnis commences his analysis with a defence of naturalist jurisprudence and then offers new insights into what positivism is and what is its relationship with natural law theories. He convincingly and forcefully shows that the positivists' opposition to natural law is redundant because what positivists see as realties to be affirmed are already affirmed by natural law theory, and what they describe as illusions to be affirmed are not part of natural law 9a . As is well known, natural law theorists treat law as a prescription deriving its ultimate authority from a purpose morality, by reference to which its 'law' quality may be judged 1° . By contrast, positivism concentrates upon a description of law as it is in a given time and place by reference to formal, rather than to moral or ethical criteria of identification and for its proponents there is no connection between law and morality 12 . Yet it does not follow from this that a legal positivist is 9a See Finnis, Natural Law Theories , Stanford Encyclopedia of Philosophy, http:/plato.stanford.edu/ entries/ naturallaw. theories. For his other major works, see 'Positivism and 'Legal Rational Authority'. Oxford Journal of Legal Studies, 5 (1985), 74-90, Natural Law Vol. I & II, (1991), The International Library of Essay in Law and Legal Theory); 'Natural Law and Legal Reasoning' in Robert George (ed.), Natural Law Theory Contemporary Essays (1992), 134-157; 'The Truth in Legal Positivism' in George (ed.) The Autonomy of Law : Essays on Legal Positivism (1996); 'Commensuration and Public Reason', in Ruth Chang (ed.), In commensurability, Comparability and Practical Reasoning (1997), 215-233; 285-289; 'The Priority of Persons', in Jeremy Horder (ed.) Oxford Essays in Jurisprudence Fourth Series (2000), 1-15; 'Natural Law. The Classical Tradition in Coleman and Scott Shapiro Oxford Handbook of Jurisprudence and Philosophy of Law (2002), 1-60; 'Acquinas's Moral, Political and Legal Philosophy', The Standford Encyclopedia of Philosophy (Spring 2006 ed. Edward N. Zalta (ed.)). 'Law and What I Truly Should Decide', American Journal of Jurisprudence, 48(2003), 107-129. McCoubrey & N.G. White, Text Book on Jurisprudence (First Indian ed. 2002). For an account of natural law theories, see, Lord Lloyd of Hampstead and M.D. A. Freeman, Lloyd s. Introduction to Jurisprudence (1985), Ch. 3.; H. McCoubrey, The Development of Naturalist Legal Theory (1987); D'Entreves, Natural Law (Rev. ed. 1970); R. Tuck, Natural Rights Theories (1979). Raymond Wacks, Philosophy of Law : A Very Short Introduction (2006), Ch. 1. McCoubrey and White, n.10, at 11. On Positivism, see. Friedmann.n.1 at 253-366, Lloyd et al, n. 10, chapters 4 to 6; Denise Meyerson, Understanding Jurisprudence (2007). 61-88. Raymond Wocks, n. 10, Ch. II 12 This view is sometimes called the 'separability thesis', its adherents are Austin, Hart, Kelsen and Bentham. But modern positivism has several versions : inclusive positivism, exclusive positivism and ethical positivism. Supported by Coleman and Waluchow inclusive positivism concedes that there can be moral criteria of legal validity. By contrast exclusive positivism of which Joseph Raz is the most influential defender, supports the 'sources thesis', Ethical positivists like Campbell and Waldron hold that moral criteria of legal validity are conceptually possible but not morally desirable. See also, Andrei Marmor, Exclusive Legal Positivism', in Coleman and Shapiro, n 10 at pp. 104-124; Kenneth Einar Himma, 'Inclusive Positivism', in Coleman et al (eds), n. 10, at pp. 125-165. For major works of Raz, an influential exponent of exclusive 4
We Need Your Support
Thank you for visiting our website and your interest in our free products and services. We are nonprofit website to share and download documents. To the running of this website, we need your help to support us.

Thanks to everyone for your continued support.

No, Thanks
SAVE OUR EARTH

We need your sign to support Project to invent "SMART AND CONTROLLABLE REFLECTIVE BALLOONS" to cover the Sun and Save Our Earth.

More details...

Sign Now!

We are very appreciated for your Prompt Action!

x