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)

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 chapter contains section titled: Aquinas's Theory of Natural Law The Meaning of the Natural Law Thesis Natural Law Theory and Legal Positivism Defending the Natural Law Thesis Note References.

Some critics question new natural law theorists’ conception of the common good of the political community, namely, their interpretation of St. Thomas Aquinas and the conclusion that the political common good is primarily instrumental rather than intrinsic and transcendent. Contrary to these objections, the common good of the political community is primarily instrumental. It aims chiefly at securing the conditions for human flourishing. Its unique ability to use the law to bring about justice and peace and promote virtue in (...) individuals may make the common good of the political community critically important. Nevertheless, it is still not an intrinsic aspect of human flourishing. Unlike the family or a religious group, membership in a political community is not an end in itself. (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)

This chapter contains section titled: Continental and Noncontinental Perspectives The English Perspective: The Rejection of Natural Law and Natural Rights The Continental Perspective: Kant on Natural Law and Natural Right The Continental Perspective: The Critique of Natural Right and Natural Law The Revival of Natural Law: The Thomistic Perspective The Transformation of Natural Law: Stammler's Doctrine of the Social Ideal Natural Law as a Worldview: Radbruch's Theory of Law and Justice (...) Conclusion References Further Reading. (shrink)

This book offers the first sustained jurisprudential inquiry into Islamic natural law theory. It introduces readers to the central figures in the Islamic natural law tradition and their canonical works, analyses the historical development of Islamic jurisprudence and explains the major contrasts with Western traditions of natural law.

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)

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)

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 book focusses on conceptual shifts in the successive formulations of natural law theory by Aquinas, Suárez, Grotius, Pufendorf, and Finnis, and reveals the accumulation of problems, inherent in natural law and theory, which ultimately led to its demise.

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.

Johannes Althusius, a German legal theorist and political thinker in the early 1600s, attempts in his Politica to create a chain of increasingly large communal associations that could constitute a universally applicable political order. He founds this system on a natural law theory of behavioral guidelines. Many elements of his body of work, from its federalist structure to the granting of a right of sovereignty to the people, bear marks of an early connection to modern Western thought meriting (...) further exploration. Upon close inspection, the natural law theory at play in Politica also contains oddities and inconsistencies worthy of note. His Theory of Justice, a work on law and ethics, contains a similar theory with slight yet significant variations at the core level. Ultimately owed to weaknesses in the derivation of duties to self and a lack of evidence for the reasoning of the hierarchy of duties to others in Politica, the Theory of Justice model, though not without its own internal inconsistencies in the moral authority of positive law, is found to present a more philosophically sound model. (shrink)

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

New natural lawyers--notably Grisez, Finnis, and George--have written much on civil marriage's moral boundaries and grounds, but with slight influence. The peripheral place of the new natural law theory (NNLT) results from the marital grounds they suggest and the exclusionary moral conclusions they draw from them. However, I argue a more authentic and attractive NNLT account of marriage is recoverable through overlooked resources within the theory itself: friendship and moral self-constitution. This reconstructed account allows us to (...) identify the relation between marriage and human flourishing and the morality of same-sex marriage without making marriage infinitely plastic. (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)

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)

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)

Abstract. For the past two decades, I have been developing an integrative Christian marriage theory, based in part on a grounding concept of natural law and an overarching theory of covenant. The natural law part of this theory starts with an account of the natural facts, conditions, interests, needs, and qualities of human life, interaction, and generation—what I call the “premoral” goods or realities of life. It then identifies the natural inclinations of humans (...) to form enduring and exclusive monogamous marriages and to preserve these units as the central site for intimacy, procreation, and nurture of children. In this paper, I first summarize this natural law theory of marriage and then compare it to the formulations of other modern Christian thinkers. I also defend this theory against various modern critics of natural law—in part by reinterpreting some traditional natural law teachings that in my view have been misunderstood, in part by looking at the interesting convergences between the insights into sex, marriage, and family life offered by contemporary Christian theological ethicists and by evolutionary biologists and biological anthropologists. (shrink)

This essay examines two dominant traditions in legal philosophy, the natural law theory and legal positivism, in terms of how they account for the normativity of law. I argue that, although these two traditions generally take the question of the normativity of law seriously and try to account for it, they are not successful in doing so. This failure in the prevailing literature on the philosophy of law, I suggest, nevertheless has an implicit reconstructive impact: the insights into (...) the failure of natural law theory and legal positivism imply an alternative philosophical framework that may provide a positive answer to the question of the normativity of law. (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.

I propose and defend a new combination of natural law ethics and virtue epistemology. While all contemporary natural law theories recognize knowledge as one of the basic human goods, none of them provide a detailed explanation for the value of knowledge, which would greatly enrich such theories. I show that virtue epistemology is able to deliver the required solution to the value problem, which makes this combination project very attractive. I also address two major worries about this approach: (...) it commits one to a type of virtue ethics that is incompatible with natural law theory; and it results in a fragmented, pluralistic account of normativity. I attempt to alleviate both worries, arguing that the first is unfounded and the second, while true, is not a genuine cause for concern because the combination of natural law ethics and virtue epistemology is more unified than it may appear. (shrink)

This volume presents a selection of previously published essays by Joseph Boyle, a crucial contributor to 20th century Catholic moral philosophy through his development of the New Classical Natural Law Theory.

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.

The “New Natural Law” Theory (NNL) of Germain Grisez, John Finnis, Joseph Boyle, and their collaborators offers a distinctive account of intentional action, which underlies a moral theory that aims to justify many aspects of traditional morality and Catholic doctrine. -/- In fact, we show that the NNL is committed to premises that entail the permissibility of many actions that are irreconcilable with traditional morality and Catholic doctrine, such as elective abortions. These consequences follow principally from two (...) aspects of the NNL. The first aspect is its distinctive version of the planning theory of intention, in which adopting the 'first-person perspective' of an agent is a sufficient, and not merely necessary, condition for determining the nature of his intentional action; this planning theory rests upon an implicitly Cartesian conception of human behavior, in which behavior chosen by an agent has no intrinsic “intentionalness” apart from what he confers upon it as part of his plan. The second aspect is the NNL's distinctive account of basic human goods' incommensurability, according to which there is no common factor shared by basic human goods that allows them to be comparatively ranked in any way that directs practical deliberation. -/- The entailments of these two aspects of the NNL, we argue, amount to a reductio ad absurdum. Pace the proponents of the NNL account, we sketch an alternative hylomorphic conception of intentional action that avoids untoward moral implications by grounding human agency in the exercise of basic powers that are either (a) essential constituents of human nature or (b) acquired through participation in social practices. This conception of intentional action provides a stronger foundation for natural law theory. (shrink)

The study of natural law theories is presently one of the most fruitful areas of research in the studies of early modern intellectual history, and moral and political theory. Likewise the historical significance of the Enlightenment for the development of `modernisation' in many different forms continues to be the subject of controversy. This collection therefore offers a timely opportunity to re-examine both the coherence of the concept of an `early Enlightenment', and the specific contribution of natural law (...) theories to its formation. The works of major thinkers such as Grotius, Hobbes, Locke, Malebranche, Pufendorf and Thomasius are reassessed, and the appeal and importance of the discourse of natural jurisprudence both to those working inside conventional educational and political structures and to those outside - such as in the Huguenot diaspora - is evaluated. This volume will therefore be of importance to all those readers concerned to study the character of the debates in the period 1650-1750 surrounding moral and political agency, sovereignty and obligation, and the legitimation of religious toleration in the divergent states and patriotic contexts of Europe. (shrink)

While natural law theory plays an important role for Catholic moral theology, it is true that Orthodox ethics has not endeavoured to develop its own theory of natural law. This article demonstrates the existence of the concept of natural law in Eastern Orthodox theology and argues that the main reason for this neglect is Eastern Christianity's traditional focus on faith rather than reason. In addition, the author, based on biblical and patristic grounds, highlights the necessity (...) for a balance between the two to be found and provides a way in which Orthodox moral theology could develop a natural law theory, should it ever feel the need to do so, by first redefining its relationship with the science of philosophy, after so many years of disregard. (shrink)

The extent to which God grounds normativity within natural law theory is analyzed. I examine Hugo Grotius’s understanding of natural law and human nature and show that Grotius makes few explicit metaphysical commitments which makes his view open to development in at least two different ways. Then a Thomistic view of natural law and human nature is developed. It is shown that Grotius’s position could be developed as a proto-new natural law theory, but this (...) leaves it open to powerful objections from Fulvio Di Blasi and other Thomistic philosophers. Finally, I argue that a view can be developed in such a way as to take on certain elements of the Thomistic view, particularly its metaphysics, but still maintain the famous Grotian claim that human nature can establish normativity without God. The key to this is the distinction between the order of knowing and the order of being. (shrink)