This chapter contains sections titled: Traditional Natural Law Theory Modern Natural Law Theory Conclusion References.

In lieu of an abstract, here is a brief excerpt of the content:146 BOOK REVIEWS Natural Law Theory: Contemporary Essays. Edited by ROBERT P. GEORGE. Oxford: Clarendon Press, 1992. Pp. 371. $39.95 (cloth). As the editor of this volume, Robert P. George points out in his foreword that this hook is yet another manifestation of the renewed and growing interest in natural law theory. But why this recent increased interest in natural law theory? What (...) purpose is this theory supposed to serve, or in what way do its proponents see it as an improvement on existing theories? First of all, it must be noted, as the variety of essays in this volume makes abundantly clear, that natural law theory, as it is presently conceived, most certainly does not represent anything like a unified, single theory of tightly knit principles and conclusions. In the present volume one can easily see a half-dozen or more different approaches to natural law theory. So different in tone and spirit are some of the essays that one can easily wonder if they have enough in common even to classify them as " family resemblances." But if they all in their different ways do indeed evidence, as the editor claims, an increased awareness of and interest in natural law theory, the question immediately arises, why this increased interest? What problems do the advocates of these theories hope to solve by them or what questions do they think their theories will better address than the theories currently in place? First of all, one may make a division which places the theories, however divers~ among themselves, into two general groups. The first of these groups wishes natural law theory to function as a general approach to morality. For this group natural law does the work of a moral theory. In this group I would place the essays of Joseph Boyle, Robert George, Russell Bittinger, John Finnis, and Hadley Arkes (probably). The second group uses natural law theory as a way of determining the connection between moral law and positive law or legal theory. The essays of Jeffrey Stout, Neil MacCormick, Jeremy Waldron, Michael Moore, Lloyd Weinreb, Joseph Raz, and Ernest Weinrib fall into this second category. In all there are twelve essays in this volume. Space will not permit me to give a detailed analysis and critique of each. At most I can only indicate very briefly some of their more salient features. The book is divided into four parts, the first of which is titled "Natural Law, Practical Reasoning and Morality." In the very illuminating first essay of this section, "Natural Law and the Ethics of Traditions," Joseph Boyle undertakes to clarify the question of the relation of natural law theory to tradition. Certain approaches to moral theory currently popular BOOK REVIEWS 147 which are called virtues ethics, of which Alasdair Macintyre would he an example, claim that natural law theory is tradition-dependent. If Macintyre and other virtues ethicists are correct, then since natural law theory is culture-hound, and since the culture in which it was horn and flourished, medieval culture, has irretrievably retreated into the pages of history, then natural law theory is equally dead, of interest, if at all, only in an antiquarian way. Boyle carefully points out that there is more than one sense of being tradition-dependent. It is true that natural law theory is tradition-dependent in the sense that it did indeed come into existence in a particular historic epoch and that its language and thought do indeed express the period of its flourishing, i.e. the medieval period. But this, Boyle is careful to point out, does not mean that its validity and meaning were exhausted with the end of that culture. Rather the tradition is a living tradition so that its rich resources can continue to be exploited as that tradition is enlarged by its application to present day moral problems. Boyle's conclusion then is that in some senses natural law is indeed dependent on an ancient and medieval tradition, hut not so totally dependent that it has lost all validity for contemporary moral theory. In the contribution by Robert George, "Natural Law and Human Nature," George tries to defend Germain Grisez's version of natural law... (shrink)

Evolutionary debunking arguments attempt to show from the fact of evolution either that there are no evaluative truths existing independently of our evaluative judgments or that we lack knowledge of such truths. In this paper, I consider whether Sharon Street’s influential evolutionary debunking argument threatens natural law theory. I argue that new natural law theory is vulnerable to her argument but that derivationist versions of natural law theory (sometimes referred to as “traditional” or (...) “old” natural law) have the resources to mount a defense. I show that new natural law theory’s account of how we know the precepts of natural law leaves the theory open to Street’s attack. I also show that derivationist natural law theory’s account—on which the precepts of natural law can be derived from facts about human nature and human fulfillment—gives deriviationists what they need for a defense. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Journal of the History of Ideas 62.3 (2001) 381-399 [Access article in PDF] Permissive Natural Law and Property: Gratian to Kant Brian Tierney In his Doctrine of Right Kant set out to formulate a theory of property that would be based on purely rational argumentation, that would abstract "from all spatial and temporal conditions," and that would be applicable to any person, "merely because and insofar as (...) he is free and has practical reason." But from the time when the work first appeared Kant scholars have found many difficulties in the teaching that he presented. Many of them relate to the idea of permissive natural law that Kant introduced at a key point to his argument.In a previous, complementary article I discussed in detail various apparent aporias that arose in Kant's treatment of this concept and suggested that we might understand his problems better by setting them in a broader historical context than those considered in standard works like those of Reinhard Brandt and Wolfgang Kersting. 1 This is the theme that I want to explore further in the present paper.To sum up briefly some of the difficulties in the Doctrine of Right: A central problem for Kant was to explain how rightful possession of individual property could emerge from a hypothetical state of nature where everything was common to all, where everyone had a right to everything. His argument was grounded on a concept of freedom understood as "a pure rational concept." Kant maintained that every person had an innate right to freedom and from this he deduced a universal law of Right: "[S]o act externally that the free use of your choice can coexist with the freedom of everyone." 2 But the person who first seized for himself what had been common to all evidently did encroach on the freedom of others (their freedom to use the property that had been taken). [End Page 381]To address this problem Kant formulated a "postulate of practical reason" concerning property. Citing the Roman law doctrine of res nullius he argued that external things could in principle be acquired. 3 Then he restated the postulate as a permissive law that obliged others to respect the claim of a first occupant. "This postulate can be called a permissive law (lex permissiva) of practical reason which gives us an authorization... to put all others under an obligation, which they would not otherwise have...." 4 But to put others under an obligation is to encroach on their freedom, which would be a violation of the universal law of Right. For Kant, laws that could be discerned by reason alone without promulgation by a legislator, were understood to be natural laws. 5 The universal law of Right and the permissive law of practical reason were both laws of this kind. It seems therefore that natural law contradicted itself. It prohibited and permitted an action at the same time.Other difficulties arose as the argument proceeded. Kant repeatedly asserted that rightful possession must depend on consent expressed in "a collective general (common) and powerful will," "a will that is united originally and a priori"; 6 but he acknowledged that such a general will would not exist in a state of nature before the institution of civil society and that an act of original acquisition would necessarily proceed from a unilateral will. "But the will that a thing is to be mine... can be only unilateral." 7 And yet Kant also wrote, "By my unilateral choice I cannot bind another to refrain from using a thing, an obligation he would not otherwise have." 8 Kant never did explain how a permissive law, allowing a person to act unilaterally, could impose an obligation on others.In my earlier discussion of Kant's work I indicated that it might be fruitful to approach these difficulties by investigating some previous ways of using the language of permissive natural law, especially as it related to the origin of property rights. There is indeed a whole earlier tradition of thought to be considered. An investigation of this material... (shrink)

New natural law theory holds that the basic moral principles are prescriptions to pursue the goods to which our nature orients us. Since God is the author of our nature and intelligence, these moral principles are part of his plan for creation. These principles can be known prior to knowing that God exists and prior to knowing that they are in fact directives from him. Nevertheless, since God’s plan includes our active cooperation, morally good acts cooperate with God’s (...) providence, and morally bad acts substitute one’s subjective preference for God’s truth. Thus natural law principles direct us to a unified ultimate end, namely, the fulfillment of God’s plan. Therefore God and our relationship with him have a central place in NNLT. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Bioethics and Natural Law: The Relationship in Catholic TeachingJ. Bryan Hehir (bio)In the discipline of Catholic moral theology, bioethics (traditionally described as medical ethics) has held a major place. The systematic development of bioethics has drawn principally upon a natural law ethic, supported by broader religious arguments. The purpose of this essay is to examine the status and role of natural law in Catholic teaching (...) as it bears upon bioethics.Natural Law and Catholic TheologyThe role of natural law in Catholic theology is rooted in a prior conviction about the complementary relationship of faith and reason. The conviction finds initial expression in patristic authors, then preeminently in Thomas Aquinas and consistently in modern papal teaching of the twentieth century. Flowing from this conviction, as a premise of Catholic theology and teaching, is the [End Page 333] notion that a second source of moral wisdom exists along side the revealed wisdom of the Hebrew and Christian scriptures. This second source of wisdom is the product of rational reflection upon human nature and experience. In the tradition of natural law ethics (expressed in a plurality of versions), such reflection affirms an objective moral order, accessible to reason and based upon a conception of the person as both spiritual and social. The spiritual nature, expressed in the capacity for reflection and free choice, is the foundation of the natural law ethic, providing the human person a unique status in the created order. The social nature of the person locates each human being in a framework of social relationships, articulated in a complex of rights and duties and finding expression in three basic communities: the family, civil society, and the human community.The fully developed framework of a natural law ethic has five dimensions. It yields a theory of society, a doctrine of the state, a charter of duties and rights, a jurisprudence, and an applied ethic. At each level of this framework, the natural law ethic is contested by other contemporary philosophical positions. In this article, space demands that stress must be placed on the natural law affirmations without trying to engage the critics.The centrality of the social nature of the person yields a theory of society that is organic in character, laying strong emphasis on the social fabric of existence. Hence the theory has traditionally emphasized both order and justice more strongly than claims of freedom. The doctrine of the state, in contemporary natural law arguments, supports a limited yet activist state, limited by constitutional restraints and human rights claims, yet activist in its conception of a broad range of social obligations, particularly to the poor. The charter of rights affirms a range of both political-civil and socio-economic rights; the traditional natural law emphasis on a structure of duties has been complemented in the twentieth century by its stress on the role of human rights. The jurisprudential theory of natural law has been its most prominent aspect; it affirms a moral grounding for civil law, but distinguishes precisely between the comprehensive nature of moral law and the more limited scope of civil law, restricted to the maintenance of public order in society. Finally, the natural law framework finds expression in Catholic teaching in three areas of applied ethics: social ethics (civil society and international relations), sexual ethics, and bioethics.History and StatusWhile a natural law ethic has been a staple of Catholic social and bioethical teaching, it has not held similar status in the wider arena of contemporary philosophical or theological ethics. Through the 1950s, therefore, one could find a strong consensus supporting natural law within the Catholic community and ongoing debates within the wider world of philosophy and bioethics. Since the 1960s, any description of the status and role of natural law must consider the debates within Roman Catholicism itself about the role and status of natural law. [End Page 334]It is possible to distinguish two stages of these internal arguments in the church. In the period from 1960 to 1990, three events in Catholicism directly influenced the standing of a natural law position: John XXIII’s encyclical Pacem In Terris (1963), Paul XI’s encyclical Humanae Vitae (1968), and the teaching of... (shrink)

A clearer case of a horrible event in nature, a natural evil, has never been presented to me. It seemed to me self evident that the natural law that animals must savagely kill and devour each other in order to survive was an evil natural law and that the obtaining of this law was sufficient evidence that God did not exist. If I held a certain epistemological theory about "basic beliefs", I might conclude from this experience (...) that my intuition that there is no God co existing with th is horror was a "basic belief" and thus that I am epistemically entitled to be an atheist without needing to justify this intuition, But I do not hold such an epistemological theory and believe that intuitive atheological beliefs, such as the one I experienced (and the corresponding intuitive theological beliefs, such as that God is providentially watching over this gruesome event) require justification if they are to be epistemically warranted. The following sections of this article present a justification for the atheological intuition I experienced that dark night. My justification will consist mostly in providing reasons to believe premise (3) in the following probabilistic argument.. (shrink)

In Section 1, I outline the history of natural law theory, covering Plato, Aristotle, the Stoics and Aquinas. In Section 2, I explore two alternative traditions of natural law, and explain why these constitute rivals to the Aristotelian tradition. In Section 3, I go on to elaborate a via negativa along which natural law norms can be discovered. On this basis, I unpack what I call three 'experiments in being', each of which illustrates the cogency of (...) this method. In Section 4, I investigate and rebut two seminal challenges to natural law methodology, namely, the fact/value distinction in metaethics and Darwinian evolutionary biology. In Section 5, I then outline and criticise the 'new' natural law theory, which is an attempt to revise natural law thought in light of the two challenges above. I conclude, in Section 6, with a summary and some reflections on the prospects for natural law theory. (shrink)

This paper argues for the superiority of natural law theory over consent -based approaches to sexual morality. I begin by criticizing the “consenting adults” sexual ethic that is dominant in contemporary Western culture. I then argue that natural law theory provides a better account of sexual morality. In particular, I will defend the “perverted faculty argument”, according to which it is immoral to use one’s bodily faculties contrary to their proper end.

Argument from analogy is a common and formidable form of reasoning in law and in everyday conversation. Although there is substantial literature on the subject, according to a recent survey ( Juthe 2005) there is little fundamental agreement on what form the argument should take, or on how it should be evaluated. Th e lack of conformity, no doubt, stems from the complexity and multiplicity of forms taken by arguments that fall under the umbrella of analogical reasoning in argumentation, (...) dialectical studies, and law. Modeling arguments with argumentation schemes has proven useful in attempts to refine the analyst’s understanding of not only the logical structures that shape the backbone of the argument itself, but also the logical underpinning of strategies for evaluating it, strategies based on the semantic categories of genus and relevance. By clarifying the distinction between argument from example and argument from analogy, it is possible to advance a useful proposal for the treatment of argument from analogy in law. (shrink)

This article considers natural law perspectives on the nature of law. Natural law theories are united by what Mark Murphy calls the natural law thesis: law is necessarily a rational standard for conduct. The natural law position comes in strong and weak versions: the strong view holds that a rational defect in a norm renders it legally invalid, while the weak view holds that a rational defect in a legal norm renders it legally defective. The article (...) explores the motivations for the natural law position, before considering three lines of natural law argument found in the literature. I conclude by examining the arguments offered by John Finnis and Murphy in support of the weak natural law view. I suggest that these arguments fail to impugn the strong natural law thesis. Indeed, the functional argument outlined by Murphy provides a plausible route to a hybrid natural law view that incorporates both weak and strong claims. (shrink)

Classical natural law theory derives moral conclusions from the essentialist and teleological understanding of nature enshrined in classical metaphysics. The paper argues that this understanding of nature is as defensible today as it was in the days of Plato, Aristotle, Augustine, and Aquinas. It then shows how a natural law theory of the grounds and content of our moral obligations follows from this understanding of nature, and how a doctrine of natural rights follows in turn (...) from the theory of natural law. With this background in place, the implications of the theory for questions about property rights and taxation are explored. It is argued that classical natural law theory entails the existence of a natural right of private property, and that this right is neither so strong as to support laissez faire libertarianism, nor so weak as to allow for socialism. Though the theory leaves much of the middle ground between these extremes open to empirical rather than moral evaluation, it is argued that there is a strong natural law presumption against social democratic policies and in favor of free enterprise. (shrink)

This thought-provoking Research Handbook provides a snapshot of current research on natural law theory in ethics, politics and law, showcasing the breadth and diversity of contemporary natural law thought. The Research Handbook on Natural Law Theory examines topics such as foundational figures in Western natural law theory, natural law ideas in a variety of religious and cultural traditions, normative foundations of natural law, as well as issues of law and governance. Featuring (...) contributions by leading international scholars, this Research Handbook offers a valuable resource for scholars in law, philosophy, religious studies and related fields. (shrink)

In a series of essays published from the late 1920s up to the mid-1960s, Hans Kelsen carried out a radical critique of natural law theory. The present paper purports to provide an analytical reconstruction and critical assessment of such a critique. It contains two parts. Part one surveys the fundamentals of Kelsen’s argumentative strategy against natural law and its theorists. Part two considers, in turn, two critical reactions to Kelsen’s criticisms: by Edgar Bodenheimer, on behalf of traditional (...) natural law theory; by Robert P. George, on behalf of “the new natural law theory”. As the analysis suggests, Kelsen’s critique stands up to the criticisms. (shrink)

"Human beings are a part of nature and apart from it." The argument of Natural Law and Justice is that the philosophy of natural law and contemporary theories about the nature of justice are both efforts to make sense of the fundamental paradox of human experience: individual freedom and responsibility in a causally determined universe. Professor Weinreb restores the original understanding of natural law as a philosophy about the place of humankind in nature. He traces the (...) class='Hi'>natural law tradition from its origins in Greek speculation through its classic Christian statement by Thomas Aquinas. He goes on to show how the social contract theorists adapted the idea of natural law to provide for political obligation in civil society and how the idea was transformed in Kant's account of human freedom. He brings the historical narrative down to the present with a discussion of the contemporary debate between natural law and legal positivism, including particularly the natural law theories of Finnis, Richards, and Dworkin. Professor Weinreb then adopts the approach of modern political philosophy to develop the idea of justice as a union of the distinct ideas of desert and entitlement. He shows liberty and equality to be the political analogues of desert and entitlement and both pairs to be the normative equivalents of freedom and cause. In this part of the book, Weinreb considers the theories of justice of Rawls and Nozick as well as the communitarian theory of Maclntyre and Sandel. The conclusion brings the debates about natural law and justice together, as parallel efforts to understand the human condition. This original contribution to legal philosophy will be especially appreciated by scholars, teachers, and students in the fields of political philosophy, legal philosophy, and the law generally. (shrink)

Philip Devine argues for a return to natural law as the best, and perhaps only, solution to the current moral crisis that threatens to undermine modern life. Natural law, however, needs updating. To this end, he proposes a natural law theory that “assimilates some post-Kantian epistemological insights”. Such a theory will appeal not only to believing Christians but also to atheists, feminists, and citizens of modern liberal democracy. While agreeing with many of the conclusions of (...) Aristotle and Aquinas, his theory has the advantage of presupposing neither the existence of God nor a naturally knowable moral code. (shrink)

The major difference between “new” and “old” natural law approaches to sexual ethics is that for new natural law theorists the moral evaluation of sex acts is always determined with reference to that basic form of human flourishing which is called marriage; old natural law theorists determine the morality of sex acts also with reference to the natural purpose of the sexual faculties. Ultimately, the old approach relies implicitly on prior value judgments to distinguish biological facts (...) that are axiologically or morally relevant from those that are not. It also appeals to values to ground the wrongness of immoral sex acts. In its pure form, the old natural law approach to sexual ethics lends itself to a misunderstanding of the unitive aspect of marriage. More broadly, an accurate understanding of new natural law does not run afoul of the correct interpretation of “nature” in natural law. (shrink)

It is not clear, on the face of it, whether Thomas Hobbes's legal philosophy should be considered to be an early example of legal positivism or continuous with the natural-law tradition. On the one hand, Hobbes's command theory of law seems characteristically positivistic. On the other hand, his conception of the "law of nature," as binding on both sovereign and subject, seems to point more naturally toward a natural-law reading of his philosophy. Yet despite this seeming ambiguity, (...) Hobbes scholars, for the most part, have placed him within the legal-positivist tradition. Indeed, Hobbes is usually regarded as the father of legal positivism. Recently, however, a growing number of commentators has begun to question this traditional classification. Although it is clear that Hobbes is not a natural lawyer of the same mold as Thomas Aquinas, it is, nevertheless, increasingly becoming evident that the traditional characterization of Hobbes as a positivist in the same vein as Jeremy Bentham or John Austin is also incorrect. There are important naturallaw aspects of Hobbes's view that one ignores only at the cost of a proper understanding of his theory of law. (shrink)

Many prominent proponents of Old and New Natural Law morally condemn sexual acts between people of the same sex because those acts are incapable of reproduction; they each offer a distinct set of supporting reasons. While some New Natural Law philosophers have begun to distance themselves from this moral condemnation, there are not many similarly ameliorative efforts within Old Natural Law. I argue for the bold conclusion that Old Natural Law philosophers can accept the basic premises (...) of Old Natural Law without also being committed to morally condemning sexual activity between people of the same sex. I develop an argument from analogy that shows how we can draw metaphysically distinct sub‐categories based on someone's capacity to experience the unitive goods of sex. This unitive capacity constitutes the sub‐category and provides a distinct principle for evaluating how members of that sub‐category (X) act as members of that sub‐category, rather than as acting as defective members of another category (Y). Even though my argument is ‘internal’ to Old Natural Law, I conclude by showing how these conclusions can also address some of the objections to same‐sex sex in New Natural Law. (shrink)

The paper presents an interpretation of Aristotle's views on natural justice in the Nicomachean Ethics. It focuses, in particular, on Aristotle's understanding of the relationship which exists between natural justice and political justice, or between natural law and positive law. It is suggested that Aristotle's views on this subject are often misunderstood. It is also suggested that, contrary to what some commentators might think, Aristotle's comments on natural justice are actually central for our understanding of his (...) political thought as a whole. It is argued that Aristotle is, therefore, definitely a natural law theorist of some description. However, Aristotle's natural law theory is unconventional in certain respects. In particular, Aristotle does not consider natural law to be a critical standard by means of which positive law might be evaluated. This places Aristotle outside the mainstream of natural law theory as it has been traditionally understood. Aristotle is not, in this sense at least, the forerunner of the Stoic natural law tradition and of the individualistic, liberal natural law theory of the modern era. He is, rather, the founding father of what might best be described as the conservative natural law tradition, the most well known adherents of which in modern times are Montesquieu, Burke and Hegel. (shrink)

To cut a convincing figure again in jurisprudence — which is my present field of concern— natural law theory, by which I mean and shall mean throughout, traditional natural law theory, basically the theory of St.Thomas, must be made convincing again in ethics.

Thomas Hobbes’s laws of nature dictate the making and keeping of the social contract. In addition, Hobbes’s natural law theory considers traditional moral virtues, such as mercy and gratitude, as being conducive to peace. Some Hobbes scholars have argued that these other natural laws call for ‘forgiveness’ and facilitate ‘reconciliation’. However, as this essay shows, Hobbes does not use these terms to mean the reparation of broken relationships between victims and perpetrators. Rather, Hobbesian reconciliation refers to efforts (...) to propitiate enemies in order to win their favour, while forgiveness is a synonym for pardon, in the sense of punishment-forbearance. It is argued that neither of these requires true remorse and reparation of the wrong done. By contrasting Hobbes’s conception of anger with that of Aristotle, the article provides an explanation for why Hobbes maintains that the rage of enemies could be appeased by instrumental calculations of expected benefits, thus ignoring more deep-seated resentments caused by moral wrongs. (shrink)

Samuel Pufendorf’s major work on natural law, De jure nature et gentium, included a long chapter on the power of the civil sovereign to determine the value of citizens. There, Pufendorf identified several forms of esteem (existimatio), according to which human beings are ranked in social life. The article argues that behind Pufendorf’s discussion of this topic was the idea that the way people esteem others and want others to esteem them has profound consequences for maintaining peaceful social life (...) and is therefore morally regulated by the fundamental natural-law duty to maintain sociality. The article explores the key elements of Pufendorf’s multifaceted analyses of esteem, making apparent how they were connected to sociality. The article also analyses Pufendorf’s argument for the duty to esteem other humans as one’s equals by nature, questioning the view that this relied on the idea of human dignity understood as an intrinsic value of human beings. Pufendorf’s argument for this duty was a part of same project as his analyses of existimatio, namely, to define how natural law regulates the way human beings esteem each other, and it relied on his observations concerning the character of human self-esteem. (shrink)

Justice is a natural virtue. Well-functioning humans are just, as are well-ordered human societies. Roughly, this means that in a well-ordered society, just humans internalize the laws and social norms (the nomoi)--they internalize lawfulness as a disposition that guides the way they relate to other humans. In societies that are mostly well-ordered, with isolated zones of substantial dysfunction, the nomoi are limited to those norms that are not clearly inconsistent with the function of law--to create the conditions for human (...) flourishing. In a radically dysfunctional society, humans are thrown back on their own resources--doing the best they can in circumstances that may require great practical wisdom to avoid evil and achieve good. Justice is naturally good for humans--it is part and partial of human flourishing. All of these are natural ethical facts. "Natural Justice" develops these claims in four stages. Part I contextualizes the claim that justice is a natural virtue in relationship to David Hume's famous argument about deriving ought from is, G. E. Moore's open-question argument, and the so-called fact-value distinction. The upshot of the discussion in part I is the claim that there are no clearly decisive objections to existence of natural ethical facts. Part II traces the movement from neo-Aristotelian virtue ethics to virtue jurisprudence by articulating a theory of the judicial virtues. Among these are the virtues of practical wisdom and of justice. Practical wisdom or phronesis is best understood on the model of moral vision, which in the context of law is legal vision or situation sense. The virtue of justice is best understood as lawfulness. Just humans are law-abiding or nomimos--in that they internalize the widely shared and deeply held social norms of their social groups. This part concludes with the claim that a legally correct decision is the decision that characteristically would be rendered by a fully virtuous judge under the circumstances of the case. Part III argues that natural justice can be understood on the model of natural goodness as articulated in the work of Philippa Foot and Michael Thompson. The intuitive idea is that justice as lawfulness is naturally good for reason--using social creatures in human circumstances. This part also articulates and responds to a variety of objections. Part IV concludes by articulating the sense in which an aretaic theory of law that incorporates a natural virtue of justice as lawfulness can be viewed as an expression of the natural law tradition. The natural law idea that an unjust enactment is not a true law corresponds to two senses in which positive laws can fail to be nomoi (in the technical sense specified by virtue jurisprudence). First, a given enactment may contravene deeply held and widely shared social norms. Second, such enactments may be fundamentally inconsistent with the purpose of law--the promotion of human flourishing. (shrink)

This article makes a moral argument for universal access to health care and for the legitimate function of government to guarantee that access. Constructed as a reply to the libertarian argument against universal access, this article utilizes the moral and political theory of John Locke, favored by libertarianism, to develop a Lockean argument for a view contrary to the libertarian philosophy. In particular, the argument here shows how libertarianism’s neglect of a crucial element of the natural-law tradition, to (...) which Locke adhered, not only undercuts the libertarian objection to universal access to health care but also underwrites an alternative argument in favor of such. (shrink)

SUMMARYThis article discusses the works of the first two lecturers on natural law in Copenhagen, Henrik Weghorst and Christian Reitzer. Contrary to the existing scholarship which characterises their works as derivative of either Grotius or Pufendorf, the article argues that the character and significance of these works can only be grasped when understood in light of the local intellectual traditions which they built upon. Seen against this background, it becomes clear that Weghorst and Reitzer developed significantly different theories of (...) natural law, disagreeing on such fundamental issues as the definition of law, the moral good, and the role of sociality in natural law. Following a tradition of Christian natural law in Kiel, Weghorst developed a theory of natural law fundamentally critical of the secularising theories of Grotius and Pufendorf, while Reitzer followed Pufendorf and his disciple Christian Thomasius in Halle. The article concludes by indicating how Weghorst’s and Reitzer’s works established the framework for discussions of natural law in the first decades of the eighteenth century, suggesting the need for further research into the significance of natural law for the early enlightenment in Denmark–Norway. (shrink)

Pre-eminent among European political philosophers, Norberto Bobbio has throughout his career turned to the political theory of Thomas Hobbes. Gathered here for the first time are the most important of his essays which together provide both a valuable introduction to Hobbes's thought and a fresh understanding of Hobbes's place in the theory of modern politics. Tracing Hobbes's work through De Cive and Leviathan , Bobbio identifies the philosopher's relation to the tradition of natural law. That Hobbes must (...) now be understood in both this tradition as well as in the seemingly contradictory positivist tradition becomes clear for the first time in Bobbio's account. Bobbio also demonstrates that Hobbes cannot be easily labelled "liberal" or "totalitarian" in Bobbio's provocative analysis of Hobbes's justification of the state, Hobbes emerges as a true conservative. Though his primary concern is to reconstruct the inner logic of Hobbes's thought, Bobbio is also attentive to the philosopher's biography and weaves into his analysis details of Hobbes's life and world--his exile in France, his relation with the Mersenne circle, his disputes with Anglican bishops, and accusations of heresy leveled against him. The result is a revealing, thoroughly new portrait of the first theorist of the modern state. (shrink)

Pre-eminent among European political philosophers, Norberto Bobbio has throughout his career turned to the political theory of Thomas Hobbes. Gathered here for the first time are the most important of his essays which together provide both a valuable introduction to Hobbes's thought and a fresh understanding of Hobbes's place in the theory of modern politics. Tracing Hobbes's work through _De Cive_ and _Leviathan_, Bobbio identifies the philosopher's relation to the tradition of natural law. That Hobbes must now (...) be understood in both this tradition as well as in the seemingly contradictory positivist tradition becomes clear for the first time in Bobbio's account. Bobbio also demonstrates that Hobbes cannot be easily labelled "liberal" or "totalitarian"; in Bobbio's provocative analysis of Hobbes's justification of the state, Hobbes emerges as a true conservative. Though his primary concern is to reconstruct the inner logic of Hobbes's thought, Bobbio is also attentive to the philosopher's biography and weaves into his analysis details of Hobbes's life and world—his exile in France, his relation with the Mersenne circle, his disputes with Anglican bishops, and accusations of heresy leveled against him. The result is a revealing, thoroughly new portrait of the first theorist of the modern state. (shrink)

Since last year, major initiatives have been undertaken by the chair of theoretical philosophy at the University of Tübingen in order to enhance the reception of analytic metaphysics in the European landscape. Here we review the 2013 summer workshop, intended to be the first of an annual series, on “Existence, Truth and Fundamentality”, the invited speakers being Graham Priest (Melbourne), Stephan Leuenberger (Glasgow), Dan López de Sa (Barcelona), Francesco Berto (Aberdeen), Friederike Moltmann (Paris – Pantheon Sorbonne) and Jason Turner (...) (Leeds). The workshop’s scope is fairly large, focusing on three different aspects of contemporary research in metaphysics. However, the underlying idea of organizers Thomas Sattig and Alessandro Torza consisted in exploring their interconnections and even new areas which possibly share the same problem spectrum. Also, they thought of bringing together both young and senior protagonists of the contemporary debate. In this sense, the main thread followed by the speakers consisted in enquiring the ideas of fundamentality, dependence and grounding with respect to ontology (Berto, López de Sa, Turner) and the truthmaking debate (Priest, Moltmann, Leuenberger), thus pretty much in line with some latest tendencies in metaphysics, such as, prima inter paria, the works of Kit Fine. When we say that something is more fundamental than something else, we move into a non-conventional (for the standards of 20 th century philosophy) metodological framework, hardly focusing on the question about what there is, and rather tackling the issue of how fundamentally there is what there is, or how the existence of something is required as a ground for the existence of other things. Here is how Jonathan Schaffer explains the methodological transition in his influential “On What Grounds What” (2009): -/- Among the many assumptions Quine and Carnap share is that metaphysical questions are existence questions, such as whether numbers exist. They only disagree on the further issue of whether such questions are meaningful (at least as the metaphysician might pose them). But why think that metaphysical questions are existence question of this sort? Return to Aristotle’s Metaphysics. There are virtually no existence question posed. The whole discussion is about substances (fundamental units of being). At one point Aristotle pauses to ask if numbers exist, and his answer is a brief and dismissive yes. [. . . ] For Aristotle, the question about numbers is whether they are transcendent substances or grounded in concreta. The question is not whether numbers exist, but how. (Schaffer, 2009, p. 347) -/- The conference opened with Graham Priest’s intriguing and peculiar review of Buddhist cornerstone “The Fundamental Verses of the Middle Way” (Mūlamadhyakamakārikā) by Nāgārjuna (ca. 150-ca. 250 AD), seen as a unrecognized forerunner of multi-valued semantics and dialetheism. Priest shows that Nagarjuna’s thought indeed has valuable analytic grip (contrary to the traditional mystical dismiss of his works altogether) and is even in accord to some formal schemas rejecting both the laws of excluded middle and non-contradiction. Dan López de Sa was interested in the topic of grounding, raising concerns about how to explain the kind of “reality” exemplified by what is not fundamental, but rather derivative on something else. He proposes a conceptual and non-primitive analysis of grounding as linked to fundamentality and derivation, and argues that the view can be advocated along with the acceptance that at least something is not fundamental. Subsequently, he illustrates an impressive range of applications linked to contemporary debates in meta-ontology, truthmaking and philosophy of time. Stephan Leuenberger discussed a semantics for “total logic”, a variant of first order logic which is claimed to have several applications with respect to the issue of excluding negative existentials from the scope of theories accounting for a given ’totality’ of facts. For example, materialism is the claim that everything there is can be traced back to physical facts or to truth implied by those facts. What about the claim that “There are no angels”? According to Leuenberger, ordinary logic falls prey of modal arguments (if it is possible that there are angels, by modus tollens, that it is not metaphysically necessary that everything there is is physical). So, there is space for the introduction of a new operator, the totality operator, claiming of what enters its scope that “that’s the whole truth”. Consequently, total logic’s semantics tackles David Chalmers’ well-known conceivability-based argument in favour of zombie’s (subjects producing behaviour but experiencing no qualia) possible existence. Friederike Moltmann presented a massive array of natural language-based examples on the role played by case-constructions, such as “it is the case that Caesar crossed the Rubicon”, “the case of the stolen statue”, “the case in which it might rain”, and so forth. She suggests that we should take surface phenomena of our language very seriously with regard to the determination of ontological categories and truth-makers. Cases are provided by many natural languages with their own existence predicates (“to occur” and “to present itself ”), and these do not apply to other kind of entities, such as objects and events. Trying to derive a substantive thesis on their nature, she claims that they are filtered entities, a structure taking into account some features of the corresponding objects and events and preserving their relational pattern. Jason Turner discussed meta-ontological concerns against the claim that ontological debates are defective. Analysed the structure of a metaphysical theory and identified two different forms of defectiveness that can occur in ontological questions, the defection from without and the defection from within, the author provided an original solution in order to avoid such difficulties. He argued thus in favor of a logical constancy, a translation principle thanks to it would be possible reconceive an ontological defection. Lastly, Francesco Berto’s talk closed the workshop with a sagacious discussion of meinongian quantification. He substains that Meinongians and Quineans experience no conceptual equivocation. Even if the former claims that “There are things that do not exist”, something that the latter contrasts with the interpretation of existential quantifiers as all-including, they still rely upon the same concept of “existence” and they understand each other when they are outside the ontology room, so that it cannot be that they lack competence. Subsequently, Berto deals with the objection that Meinongians commit analytic falsehood in separating the meaning of “to be” from that of “exists”. The Quinean has no independent evidence for analytic equivalence aside from her emphatic stress on the “is” in “there is”. Meinongians, however, can retort to linguistic considerations and claim that existence predicates display fairly different functions. -/- As for what regards our internal division of the “philosophical labor”, Fabio Ceravolo reviewed Moltmann and Berto’s talks; whereas Mattia Cozzi took care of Priest’s and Leuenberger’s, and Mattia Sorgon of those given by López de Sa and Turner. Conclusively, we would like to thank Thomas Sattig and Alessandro Torza for all of their organizational efforts and the kind welcome they reserved to us. We hope we will have further opportunities to collaborate with Tübingen in supporting similarly innovative and valiant european initiatives. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Aquinas and Black Natural LawThomas S. HibbsIn 1857, after the United States Supreme Court ruling in Dred Scott, Frederick Douglass chastised the court for arrogating to itself the role of God, that of being absolute judge. While the Supreme Court has its own authority, he argued, "the Supreme Court of the Almighty is greater. Taney can do many things but he cannot change the essential nature of things—making (...) evil good and good, evil."1 The passage is one of many in Vincent Lloyd's Black Natural Law that underscore the appeals of African American leaders, as part of their critique of slavery and segregation, to a higher or more fundamental law than that of human law. Lloyd describes the function of natural law reasoning, which he traces through the writings of Douglass, Anna Julia Cooper, W. E. B. Du Bois, and Martin Luther King Jr., in this way: From the careful examination of a "particular view of human nature" and its implications, they "apply those implications to the specifics of an ethical or political debate."2 That sounds similar to the way some contemporary Catholic proponents of natural law depict their own deployment of it. Early in the book, Lloyd suggests that "European and Catholic natural law traditions can learn much from the black natural tradition."3Concerning what might be learned, he focuses on an expansive conception of reason in the African American tradition, a conception of reason that is integrated with the role of emotion or passion and that is not [End Page 943] individualistic, but communal. He also underscores the epistemic privilege of the oppressed, the way suffering injustice attunes us to justice. Beyond the themes mentioned explicitly by Lloyd, I would add the paradoxical claim that natural law teaching is not just about the accessibility of fundamental precepts of justice, but also about the human capacity for moral blindness and the way in which the violation of the natural law is in important ways its own punishment. Because of the regularity of such blindness, attention to the obstacles to the perception of the natural law must become "part of the very activity of natural law." The ways in which these matters are articulated by African American authors can be, as Lloyd suggests, highly instructive. I would add that Lloyd's treatment of natural law in the African American tradition can also be fruitful for recovering neglected features of Aquinas's account. In what follows, I want to take up each of these themes and set them in conversation with the texts of Aquinas. As Alasdair MacIntyre, among others, has urged, seeing one's own tradition from the perspective of another, can, at a minimum, help us see it more clearly.4 As MacIntyre also notes, any such attempt faces the difficulties of translating from one tradition or community of inquiry to another. I must, accordingly, stress the limitations to the current essay, which can be nothing more than a preliminary investigation. I will largely be taking Lloyd's interpretation of the authors he studies as my assumed starting point, although in some cases I will offer my own reading of texts and authors he considers.5 What I will provide will be no more than an initial conversation, a first reading of Lloyd's theses in relation to germane themes and arguments in Aquinas. A much longer exchange, based on an immersive study of selected African American texts and the chief commentaries on them would be needed to advance the [End Page 944] conversation further. Before doing so, however, I want to provide a further reason that Catholic natural law thinkers should be eager to engage the Black natural law tradition, a reason derived from Joseph Ratzinger's reflection on the strange situation of natural law in the modern world.Ratzinger on the Vanishing Evidence for Natural Law and the Engagement of Wisdom TraditionsAs the contemporary Catholic natural law theorist Russell Hittinger has shown,6 Ratzinger, as a ressourcement theologian, is a critic of "rationalism," with "little confidence" in the older, "moral-juridical manualist and casuistical approach to natural law, which was prominent in casuistical approaches."7 In fact, he thinks that... (shrink)

This article argues that James Seth provides illuminating contributions to our understanding of law and, more specifically, the natural law tradition. Seth defends a unique perspective through his emphasis on personalism that helps identify a distinctive and compelling account of natural law and legal moralism. The next section surveys standard positions in the natural law tradition. This is followed with an examination of Seth's approach and the article concludes with analysis of its wider importance for scholars of (...) Seth's work as well as legal philosophers more generally. (shrink)

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 contributors discuss natural law theories of morality, law and legal reasoning, politics, and the rule of law. Readers get a clear sense of the wide diversity of viewpoints represented among contemporary theorists, and an opportunity to evaluate (...) the arguments and counterarguments exchanged in the current debates between natural law theorists and their critics. Contributors include Hadley Arkes, Joseph M. Boyle, Jr., John Finnis, Robert P. George, Russell Hittinger, Neil MacCormick, Michael Moore, Jeffrey Stout, Joseph Raz, Jeremy Waldron, Lloyd Weinreb, and Ernest Weinrib. (shrink)

This major addition to Ideas in Context examines the development of natural law theories in the early stages of the Enlightenment in Germany and France. T. J. Hochstrasser investigates the influence exercised by theories of natural law from Grotius to Kant, with a comparative analysis of the important intellectual innovations in ethics and political philosophy of the time. Hochstrasser includes the writings of Samuel Pufendorf and his followers who evolved a natural law theory based on human (...) sociability and reason, fostering a new methodology in German philosophy. This book assesses the first histories of political thought since ancient times, giving insights into the nature and influence of debate within eighteenth-century natural jurisprudence. Ambitious in range and conceptually sophisticated, Natural Law Theories in the Early Enlightenment will be of great interest to scholars in history, political thought, law and philosophy. Natural Law Theories in the Early Enlightenment has been selected as the winner of the annual Morris D. Forkosch Prize for the best book in intellectual history published in 2000. (shrink)

The past in which theory of this kind had its origins is notably similar to the present. For this is theory–practical theory–which articulates a critique of critiques, and the critiques it criticizes, rejects and replaces have much in common whether one looks at them in their fifth century B.C. Hellenic (Sophistic) or their modern (Enlightenment, Nietzschean or postmodern) forms.

This essay systematically reformulates an earlier argument about Locke and new world slavery, adding attention to Indians, natural law, and Locke's reception. Locke followed Grotian natural law in constructing a just-war theory of slavery. Unlike Grotius, though, he severely restricted the theory, making it inapplicable to America. It only fit resistance to "absolute power" in Stuart England. Locke was nonetheless an agent of British colonialism who issued instructions governing slavery. Yet they do not inform his (...) class='Hi'>theory--or vice versa. This creates hermeneutical problems and raises charges of racism. If Locke deserves the epithet "racist," it is not for his having a racial doctrine justifying slavery. None of this makes for a flattering portrait. Locke's reputation as the champion of liberty would not survive the contradictions in which new world slavery ensnared him. Evidence for this may be found in Locke's reception, including by Southern apologists for slavery. (shrink)

This collection contains studies on justice, juridical reasoning and argumenta tion which contributed to my ideas on the new rhetoric. My reflections on justice, from 1944 to the present day, have given rise to various studies. The ftrst of these was published in English as The Idea of Justice and the Problem of Argument. The others, of which several are out of print or have never previously been published, are reunited in the present volume. As justice is, for me, the (...) prime example of a "confused notion", of a notion which, like many philosophical concepts, cannot be reduced to clarity without being distorted, one cannot treat it without recourse to the methods of reasoning analyzed by the new rhetoric. In actuality, these methods have long been put into practice by jurists. Legal reasoning is fertile ground for the study of argumentation: it is to the new rhetoric what mathematics is to formal logic and to the theory of demonstrative proof. It is important, then, that philosophers should not limit their methodologi cal studies to mathematics and the natural sciences. They must not neglect law in the search for practical reason. I hope that these essays lead to be a better understanding of how law can enrich philosophical thought. CH. P. (shrink)

Kainz’s handling of natural law thinking in ancient Greece and Rome is precise, for although he uses as his chapter heading “Concepts of Natural Law in Ancient Greece and Rome,” he is careful not to ascribe explicit natural law thinking to the Presocratics, Plato, or Aristotle, though in the case of the latter two thinkers, especially Aristotle, they were arguing for what is the essence of natural law thinking: an eternal, unchanging, absolute standard for human conduct. (...) Kainz does use the caption, “Natural Law and Natural Justice in Aristotle”, but he qualifies it: “it is conceivable that natural human sociability itself constitutes a significant element of a latent natural law theory in Aristotle [but]... explicitly Aristotle neither enunciates nor expands on any natural law theory in the traditional sense”. This parsing is prudential since, if a thinker does not explicitly refer to a theory or position, it is not correct to say that he holds it. But when it comes to the Stoics, there is no need to temporize, as they were explicit, full-fledged natural law theorists. Kainz appropriately accords them the attention they deserve. It is remarkable to find overviews of natural law that omit the Stoics entirely. Chapters 2 and 3 reveal the bridge from natural law, as treated by Aquinas and Suarez, seen as part of divine law, to the secularization of natural law theory at the hands of Grotius and Hobbes. Although acknowledging that earlier thinkers like Robert Bellarmine and other scholastics had adverted to the possible validity of natural law without God, Kainz limns Grotius’s bold assertion of the independence of the natural law theory from any grounding in theological or religious premises as the decisive proclamation of the secularization of the natural law theory. Kainz’s discussion of Aquinas includes the very important question of whether Aquinas is “actually ‘deriving’ moral laws from natural inclinations—thus falling into the ‘naturalistic’ fallacy”? He puts that question to rest with the observation that Aquinas does not suppose that any deductions from natural law principles rely on the necessity used in theoretical reasoning but rather apply “for the most part” and thus have exceptions. Chapter 4 provides a glossary of frequently misunderstood concepts that are basic in natural law discussions, such as “nature,” “natural,” and “perversion.”. (shrink)

This article is based on a Lecture given as part of the Franklin J. Matchette Foundation Lecture Series on Truth at the Catholic University of America, School of Philosophy, in 2002. It explores what theorists in the natural law tradition and modern legal theorists have argued about what makes propositions of morality and law true, focusing on the rubric of "reason" as opposed to "will." It seems probable, and perhaps inevitable, that theorists about the nature of truth in morality (...) must choose between reason and will - that morality, at its core, is either one or the other. What makes law distinctive is that it is, as a practical matter if not by conceptual necessity, a mixture of both. And it is this intertwining of reason and will, of normative system and practical reasoning, which makes assertions about the nature of legal truth, and theories about the nature of law, so difficult. The arguments about truth in law are as much disagreements about what it means to say that a legal proposition is truth as they are about what makes legal propositions true. Are declarations of truth in law statements about legal norms and legal sources, or are they statements about the results of particular disputes or particularized inquiries? There are obvious complilcations in speaking of truth in a context like law, where there is simultaneously an effort to create a coherent normative system and a decision-making procedure that can modify that system in the course of resolving disputes. (shrink)

Fifty years of debate have strengthened Germain Grisez’s 1965 interpretation of St. Thomas Aquinas’s famous article on the natural law in Summa theologiae I-II.94.2. Revisiting Grisez’s argument in light of these developments reveals that his “gerundive interpretation” of the first principle of practical reason is not only Thomistic, but essentially Aquinas’s interpretation.

The relationship between the political theory of Rousseau and modern natural law continues to be the subject of debate, both with regard to Rousseau's faithfulness to the idea of natural law itself and regarding the precise extent of the debt he owed to his predecessors. In this article the author re-examines this relationship by focusing attention on what has been defined as the protestant tradition of natural law. In particular she concentrates on the political and theoretical (...) exercise that Jean Barbeyrac had sought to perform by constructing a particular version of this tradition, namely that of using the science of natural law to promote a policy of tolerance between protestants and to justify the right of citizens to resist catholic sovereigns who denied them religious freedom, as well as the right of protestant countries to come to the aid of persecuted fellow believers. The thesis asserts that Rousseau was fully aware of this exercise, just as he was aware that some of Barbeyrac's ideas had been adopted and reworked by another illustrious Genevan, Jean-Jacques Burlamaqui, a member of the Small Council, to support anti-populist and antidemocratic politics in Geneva. Viewed in this way it is possible to perceive in Rousseau's political thought not so much a “first crisis” of natural law as an intention to reformulate this science from a republican perspective in order to derive rigorous principles of political law from it. And in developing his republican political theory Rousseau took up and overturned the analysis of democratic sovereignty carried out by Pufendorf, who in opposing the “pro-monarchist” excesses of authors such as Hobbes and Horn had unhesitatingly demonstrated the complete validity of democratic sovereignty. ☆ I would like to thank Matthew Armistead for his excellent English translation. The article is a revised version of ‘Rousseau, Pufendorf e la tradizione giusnaturalistica settecentesca’, in M. Ferronato (ed.), Dal “De Jure naturae et gentium” di Samuel Pufendorf alla codificazione prussiana del 1794, Padova, Cedam, 2005, pp. 115–185. (shrink)

In his 2009 encyclical letter Caritas in Veritate, Pope Benedict XVI calls for a deeper, theological and metaphysical evaluation of the category of “relation” to achieve a proper understanding of the human being’s “transcendent dignity.” For some contemporary thinkers, this position might seem to be hopelessly paradoxical or even incoherent. After all, many contemporary thinkers are apt to believe that the human creature can have “transcendent dignity” only if the being and goodness of the human creature is not conditioned by (...) or dependent upon any relation or relatedness to anything else, including the natural environment. This chapter seeks to show that apparent paradoxes in Benedict XVI’s statement will begin to disappear if one resists the rather understandable temptation to interpret his thought by relying on presuppositions borrowed from contemporary ethical theories. More specifically, this chapter aims to show that Benedict XVI’s teachings— embedded as they are within a rich tradition of Catholic “natural law” thinking—are importantly distinguishable from contemporary utilitarian and deontological views. Furthermore, this chapter seeks to demonstrate that Benedict XVI’s “natural law” account offers an intellectually defensible alternative to contemporary modes of environmental thinking. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Journal of the History of Philosophy 40.1 (2002) 126-127 [Access article in PDF] Book Review Natural Law Theories in the Early Enlightenment T. J. Hochstrasser. Natural Law Theories in the Early Enlightenment. New York: Cambridge University Press, 2000. Pp. xiii + 246. Cloth, $54.95. In a worthy addition to Cambridge's Ideas in Context series, T. J. Hochstrasser undertakes an excavation. His aim is to provide a description, (...) and to demonstrate the importance within the German Frühaufklärung, of a largely forgotten philosophical approach: eclecticism. Hochstrasser argues that the triumph of Wolffian rationalism in the Protestant universities in the middle of the eighteenth century occluded the importance of eclecticism for Kant, who in turn occluded it for everyone afterward. But the price of forgetting eclecticism is high. Not only are we left with no account--or a skewed account--of the development of German thought from the first stirrings of the Enlightenment to the emergence of the Critical philosophy, but our understanding of the development of the historiography of philosophy is badly compromised. For among their many accomplishments--in natural jurisprudence, in university reform--the eclectics were the first critical historians of philosophy, their distinctive genres being historically aware treatises on natural law and Whig histories of natural jurisprudence. Hochstrasser's study traces the development of eclecticism, from the work of its founders, Samuel Pufendorf and Christian Thomasius, through a devolution in the hands of Thomasius's later disciples, to the eventual oblivion in the middle of the eighteenth century. This review will focus on the beginning of this narrative, as Pufendorf is the leading figure in the book.Eclecticism began with Pufendorf's attempt, in his mature work on natural law, to reconcile his conflicting inheritances from Grotius and Hobbes without simply endorsing the work of either. He was impressed both by Grotius's explanation of the law of nations in terms of human sociability--but also by Hobbes's criticisms of Grotius, rooted in the latter's analysis of the state of nature. At the same time, he wished to reject Grotius's method of induction from sociological observation and Hobbes's minimally constrained voluntarism. Contributing further to his perplexity was his increasing disaffection from the geometric approach he had adopted in his Elementa Jurisprudentiae Universalis.The way out of this impasse, Hochstrasser contends, was revealed to Pufendorf in correspondence with Hermann Conring, the leading constitutional lawyer of his time, and Johann Böcler, Grotius's most erudite commentator. Böcler chastised Pufendorf for his neglect of history, and both of Pufendorf's correspondents pointed out his need for some non-Hobbesian criterion by which he could validate his first principles, whatever they turned out to be. Stung particularly by Böcler's remarks, Pufendorf returned to the Stoics and there discovered a via media between Hobbes's pessimism and Grotius's optimism: a synthesis anticipating Kant's doctrine of "unsocial sociability." For the purposes of Hochstrasser's study, the key aspects of Pufendorf's solution are these: first, it avoids mere voluntarism; second, it does this by means of a moral epistemology that sharply distinguishes natural law [End Page 126] from moral theology; finally, the validating criterion for Pufendorf's first principles is located in critical appropriation of the history of moral philosophy. These were to be hallmarks of Pufendorf's school.On the first and second points, Hochstrasser seems to me substantively correct, though I think he misunderstands the nature of Pufendorf's escape from mere voluntarism and thereby underplays the religious dimensions of Pufendorf's theory. Among recent Anglo-American commentators on Pufendorf, only Robert Adams has in my view properly construed Pufendorf's thought: that it involves a command theory of obligation proper, but posits the natural advantageousness of some hierarchies as a buttress against mere voluntarism. Hochstrasser is thus right to insist, against Leibniz, that Pufendorf's account of obligation is coherent. But he is wrong to suggest that "there was nothing in Pufendorf's theory... to oblige him to introduce fear of punishment by a superior... " (105). He is... (shrink)

Chapter 1 serves as an introduction to the vast topic of laws of nature. Thus, it first outlines the alleged characteristics of the laws of nature, namely truth, objectivity, contingency, necessity, universality, grounding counterfactuals and their role in science. Among these aspects, the peculiar modal status of laws of nature will be identified as the ‘holy grail’ of the debate. The second part of this chapter is concerned with the three main families of theories of laws of nature – neo-humean, (...) ADT and dispositional theories – which are introduced and evaluated in regard to the aforementioned characteristics. It will then be argued that among those theories, the dispositional ones show the greatest promise of being able to account for the natural necessity of the laws of nature. -/- Before a dispositional account of laws of nature can be given, dispositions themselves need to be understood. Consequently, Chapter 2 introduces various analyses of dispositions. As dispositions are pre-theoretically close to conditionals, a lot of analyses try to reduce dispositions to conditionals. This chapter critically assesses some chosen accounts: the simple conditional analysis, Carnap’s reduction sentences, the simple counterfactual conditional analysis, Lewis’ reformed conditional analysis, Malzkorn’s sophisticated con- ditional analysis, Choi and Gundersen’s context-dependent analysis, Manley and Wasserman’s gradable dispostion ascriptions, and Fara’s habituals. The prevention problem, which poses a threat to any account of dispositions, is depicted. It is argued that, ultimately, none of the conditionalising attempts is able to convince since they all exclude the problem cases which leads to explanation gaps and outlaw areas. -/- Chapter 3 contains the synchronic part of my preferred solution to the prevention problem. The notion of ‘component causes’ is introduced, and the ontological status of components discussed. Millikan’s oil drop experiment is depicted en detail. In a first step, making a distinction between dispositions and the resulting behaviour is advocated. Via the symmetry argument, mani- festations and masks are shown to be ontologically on a par. In a second step, a triadic account consisting of dispositions, wirkungen and resultant behaviour, is established. Finally, the ontological interpretation of the trias is given. It is in the nature of the dispositions to bring about the wirkungen. These interact via combinations rules like the functions f and fa or vector addition, which are built-in into to dispositions. -/- The diachronic part of my favourite interpretation, the triadic process picture of dispositions (TPD), is presented in chapter 4. The dynamics of dispo- sition manifestation are discussed and it is argued that fiddling with the trigger works only up to a certain point. Diachronic masking cases turn out to be no- torious. An excursus to action theory shows that the ontology needs to include processes, as understanding disposition manifestations as processes solves the diachronic prevention problem. The (TPD) can account for all counterexamples by taking the stimulus as the beginning of the manifestation process. -/- Chapter 5 applies the (TPD) to the debate about laws of nature. In order to judge its adequacy, the characteristics of laws of nature given in chapter 1 are consulted. As a first step, the criteria truth, objectivity, universality, grounding counterfactuals and their role in science are covered. It is sketched how the (TPD) can account for these. The second part of the chapter deals with the modal status of the laws of nature. The dispositional essentialist’s view that laws of nature are metaphysical necessary is depicted and then criticised. It is argued that metaphysical necessity is not the appropriate modal status of the laws of nature. Finally, the (TPD) account of the necessity of the laws of nature is presented: laws of nature are naturally necessary and metaphysically contingent. (shrink)

My intention in this essay will be to explore the role that consent-based arguments perform in Kant's political and legal philosophy. I want to uncover the extent to which Kant considered that the legitimacy of the State and of its laws depends upon the outcome of intersubjective deliberation. Commentators have divided over the following question: Is Kant best viewed as a member of the social contract tradition, according to which the legitimacy of the state and of the laws it (...) promulgates derives from the consent of those people over whom it claims authority, or should he be read as having put forward a secularized version of natural law theory, according to which the state and its laws are legitimate to the extent that they are attained by standards of sound reason and supported by an objective account of the human good? (shrink)

One of the best-known members of the United Nations Commission which drafted the 1948 "Universal Declaration of Human Rights," Jacques Maritain, famously held that the "natural rights" or "human rights" possessed by every human being are grounded and justified by reference to the natural law.' In many quarters today, the notion of the natural law, and arguments for a set of natural rights grounded in the natural law, have come under fierce attack. One common (...) line of attack is illustrated by the arguments of some utilitarians, for whom "natural law thinking" is mistaken insofar as it implies that there is an absolute moral prohibition against violating any human being's "natural rights." Even if there is such a thing as "natural rights," these utilitarians argue, such rights - including even the natural "right to life" - are necessarily relational, and thus have meaning only within the context of a larger social whole. As a result, the argument goes, the supposed "natural rights" possessed by individual human beings are never inviolable or unconditional, but instead always negotiable and subject to being "traded away" for the sake of greater social utility. Consider just one alleged counter-example to the notion that there are inviolable or unconditional "natural rights": it is well-known that approximately 36,000 people in the United States die every year as a result of influenza infections or influenza-related complications.' There is little doubt that hundreds, and probably even thousands, of human lives would be saved every year if local governments were to pass laws requiring flu vaccinations for all members of at-risk populations (e.g., the very young and the very elderly). It would seem that there would be broad support for mandated flu vaccinations- no matter what the expense - if human lives would be saved and if the natural "right to life" is inviolable or unconditional.' And yet no such life-saving laws exist, apparently because citizens and legislators believe that the social costs and inconveniences would be too great. According to the utilitarian position, this demonstrates - contrary to what Ronald Dworkin and others say about rights' - that rights do not trump utility, but in fact are quite regularly and reasonably trumped by utility. In light of such contemporary understandings and policies, can natural law thinking about natural rights be made credible? In what follows, I shall argue that utilitarian thinkers are correct to hold that rights are intrinsically relational; but they are wrong to conclude that the relational character of rights entails that "natural rights" are not inviolable or not unconditional. (shrink)

G. W. F. Hegel developed a new understanding of natural law that departs from both traditional and more contemporary accounts. Natural lawyers defend standards that are external to the law in order to survey the merits of law. Call these accounts theories of natural law externalism. Hegel offers a very different account where we survey the merits of law through a standard that is internal to law. This essay will explain Hegel’s natural law internalism and whether (...) it marks an advance on existing natural law accounts. I will argue that Hegel offers us a novel understanding of natural law that is compelling, but ultimately unstable and problematic. -/- This chapter contains sections titled: Introduction Classical Natural Law Modern Natural Law Hegel's Natural Law Internalism Natural Law Internalism or Externalism? Conclusion Notes References. (shrink)

This book breaks new ground in the study of Judaism, in philosophy, and in comparative ethics. It demonstrates that the assumption that Judaism has no natural law theory to speak of, held by the vast majority of scholars, is simply wrong. The book shows how natural law theory, using a variety of different terms for itself throughout the ages, has been a constant element in Jewish thought. The book sorts out the varieties of Jewish natural (...) law theory, illuminating their strengths and weaknesses. It also presents a case for utilising natural law theory in order to deal with current theological and philosophical questions in Judaism's ongoing reflection on its own meaning and its meaning for the wider world. David Novak combines great erudition in the Jewish tradition, the history of philosophy and law, and the imagination to argue for Judaism in the context of current debates, both theoretical and practical. (shrink)

-/- The term “natural religion” is sometimes taken to refer to a pantheistic doctrine according to which nature itself is divine. “Natural theology”, by contrast, originally referred to (and still sometimes refers to)[1] the project of arguing for the existence of God on the basis of observed natural facts. -/- In contemporary philosophy, however, both “natural religion” and “natural theology” typically refer to the project of using all of the cognitive faculties that are “ (...) class='Hi'>natural” to human beings—reason, sense-perception, introspection—to investigate religious or theological matters. Natural religion or theology, on the present understanding, is not limited to empirical inquiry into nature, and it is not wedded to a pantheistic result. It does, however, avoid appeals to special non-natural faculties (ESP, telepathy, mystical experience) or supernatural sources of information (sacred texts, revealed theology, creedal authorities, direct supernatural communication). In general, natural religion or theology (hereafter “natural theology”) aims to adhere to the same standards of rational investigation as other philosophical and scientific enterprises, and is subject to the same methods of evaluation and critique. Natural theology is typically contrasted with “revealed theology”, where the latter explicitly appeals to special revelations such as miracles, scriptures, and divinely-superintended commentaries and creedal formulations. (See DeCruz and DeSmedt 2015) -/- Philosophers and religious thinkers across almost every epoch and tradition (Near Eastern, African, Asian, and European) have engaged the project of natural theology, either as proponents or critics. The question of whether natural theology is a viable project is at the root of some of the deepest religious divisions: Shi’ite thinkers are optimistic about reason’s ability to prove various theological and ethical truths, for instance, while Sunnis are not; Roman Catholic theologians typically think that reason provides demonstrations of the existence of God, while many Protestant theologians do not. Unlike most of the topics discussed in an encyclopedia of philosophy, this is one over which wars have been fought and throats have been cut. -/- The most active discussions of natural theology in the West occurred during the high medieval period (roughly 1100–1400 C.E.) and the early modern period (1600–1800 C.E.). The past few decades have witnessed a revival of natural theological debate in the public sphere: there are now institutes promoting “Intelligent Design Theory”, popular apologetics courses, campus debates between believers and agnostics, a “New Atheist” movement, Youtube debates between apologists and atheists regarding new books in natural theology (such as the one between Nathan Lewis and Bernie Dehler on the Blackwell Companion to Natural Theology),[2] and TED talks by famous atheists on how to resist natural religion (such as the one by Richard Dawkins in February 2002).[3] -/- Among professional philosophers (who aren’t typically part of these more popular debates), arguments over our ability to justify positive or negative answers to religious questions have become fairly technical, often employing sophisticated logical techniques in an effort to advance the discussion instead of retreading the same old ground. The prestigious Gifford Lectures series hosted by a consortium of Scottish universities, however, has tried to feature new but still accessible work in natural theology for over 100 years (it too has a Youtube channel!)[4] -/- In this article, we aim to avoid most the more recent complexities but also explain their origins by focusing on some central developments in the early modern period that helped to frame contemporary natural theological debates. We are focused here only on theoretical arguments (both a priori and a posteriori or empirical ones). It is controversial whether moral arguments are also part of natural theology, but we set them aside here (see also the entry on God, arguments for the existence of: moral arguments). (shrink)

The idea of natural law, says the author, "is based on a belief that there exists a moral order which every normal person can discover by using his reason, and of which he must take account if he is to attune himself to his necessary ends as a human being." This notion has supported the philosophy and behaviour of men in all cultures since the beginning of society. It is implicit in the Mosaic code; is fundamental in the thought (...) of Aristotle, Thomas Aquinas, Rousseau, Newton and Mill; served as the "higher law" basis for English common law and the American Constitution; and is still relevant today. It is to natural law and to its relation to the condition of our society that the seven distinguished contributors to this volume address themselves. In keeping with their widely divergent backgrounds and different faiths, the writers reveal a refreshing range of opinion within a fundamental unity. (shrink)