Essays On Natural Law

Essays On Natural Law-58
One solution, however, must be authoritatively chosen by the legislator if the problem is to be solved.

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In selecting a scheme, the law makers operate not by any process analogous to the deduction of demonstrable conclusions from premises, but, rather, by a process of choosing between reasonable, yet incompatible, optionsa process that Aquinas refers to as Although it is the case that but for the laws enactment no one would be under any general moral duty to behave as it requires, and despite the fact that the law maker(s) could, compatibly with the requirements of natural law, have stipulated a different requirement or set of requirements, its directiveness derives not only from the fact of its creation by some recognized source of law (legislation, judicial decision, custom, etc.), but also from its rational connection with some principle or precept of morality.Natural law theory is enjoying a revival of interest in a variety of scholarly disciplines including law, philosophy, political science, and theology and religious studies.This volume presents twelve original essays by leading natural law theorists and their critics.The first principles of practical reason and basic precepts of natural law, which direct choice and action to the goods of knowledge, friendship, and other more-than-merely instrumental reasons for action, far from being inferred from anthropological, historical, metaphysical, theological, or any other theoretical premises, are grasped in non-inferential acts of understanding whereby the practical intellectones single intelligence directed towards answering the question what is to be chosen and done grasps the intelligible point of a possible action in its promise to instantiate a human benefit, viz., something (e.g., knowledge, friendship) humanly fulfilling and, as such, worthwhile for its own sake.Now, the fact that there are goods for human beings which, as such, provide reasons for action, does not entail that there are no bads; on the contrary, the privations of human goods (e.g., ignorance, muddleheadedness, misunderstanding, animosity) are bads that provide reasons (which may or may not in any particular case be conclusive) for people to avoid them, where possible.On the other hand they can justify the necessity of positive law with its coercive machinery only by the badness of man.Here, I believe, Kelsen offers a spectacularly poor argument (or pair of muddled together arguments).It likely tells against no historically important natural law theorist. We have already seen that Kelsens particular account of human nature as the source of natural law in natural-law doctrines has no applicability to Aquinass teaching.Again, though it is true that, for Aquinas, human goods are what they are because human nature is constituted as it is, there is no sense in which Aquinas proposes to deduce knowledge of human goodspractical knowledgefrom methodologically antecedenttheoreticalknowledge of human nature.because actual human beings sometimes need the threat of punishment to deter them from doing what the natural law already proscribes (or require them to do what it prescribes) as a matter of basic justice This work of giving effect to the principles of natural law is accomplished in two distinct ways, two forms of derivation.Some laws, such as those prohibiting murder, rape, theft, and other grave injustices which are straightforwardly contrary to natural law, are derived from the natural law by a process akin to the deduction of demonstrable conclusions from general premises in the sciences.

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