Natural Law and Legal Theory: An Historical Overview - Prof. Mestre, Apuntes de Teoría del Derecho

¡Descarga Natural Law and Legal Theory: An Historical Overview - Prof. Mestre y más Apuntes en PDF de Teoría del Derecho solo en Docsity! Theory of Law – Seminar 2 Seminar 1 – Recap - Legal Theory – Sources • Absolute moral knowledge YES • Arguments based on duty (deontological arguments) • Based on religion = don't use rational arguments • Not based on religion = rational answers to the moral questions • KANT – Categorical, Imperative • Arguments based on consequences • Arguments based on virtue NOT • Emotivism Yes but not absolute • Relativism Natural Law Tradition – Main Ideas 1. Beyond and superior to the laws made by man are certain higher principles, immutable and eternal = the principles of natural law 2. They appeal to a higher code which can come from God but not necessarily 3. Man has a nature. This nature inclines him towards certain ends. Laws which assist the achievement of these ends constitute natural law 4. Man made laws can vary from one community to another with respect to matters of everyday importance – Natural Law regard to the highest matters and it has universal validity and applicability 5. Man-made laws should be in accord with principles Ancient Greece – Plato and Aristotle Plato • Theory of Forms – reliance on reason instead of perceptions to avoid error • Forms – eternal, immutable, universal validity, unaffected by changing human actions Aristotle • Notion of Political Justice • Natural – Justice is universal and unaffected by human perception • Legal – variety of forms, once laid down = decisive Rome – The Stoics • There is an impersonal force of reason which is the fundamental guiding principle of the whole universe • Their ideal is based on the fact that individuals should not exercised their reason but should do so in such a way that they are in harmony with the wider order of things Cicero • Defines law as the highest reason, inherent in nature, which orders what ought to be done and forbids the opposite • Natural law is unchanging eternal, cant be rescinded, it must be accepted by all peoples at all times • Concept of the nature of human laws and its obligatory Christianity • Men should respect another since this is in accord with nature and consequently a men’s duty • Death was an end and the reward for living a good life was to be able to die knowing that one had done one’s duty • Stoicism but it added – if you do this you will have a reward: life everlasting • The reward was Heaven together with the satisfaction of knowing that the sinner will go to hell St Augustine • Lex injusta non es lex • In temporal or man made law, nothing is just nor legitimate if it conflicts with natural law, that is, it is invalid • He considers natural law the ideal law • Ideal law with the law of the Christian God Thomas Aquinas • The final synthesis of the doctrine of natural law and the doctrine of the Christian church is achieved • God is the creator. The world the universe everything is his creation. He created men and enable them to know the truth • Three types of truth, by the exercise of practical reason • Truth man can discover by the exercise of practical reason • Eternal, divine, natural and human law • Eternal law puts order in the universe • Distinguishes between the three other types of law Human Law • Distinction between two types of human law • Determination • Conclusion from premises The validity of law The duty of obedience Seminar 2 - Secularization • The earliest formulations of natural law tradition tended to link reason with some notion of deity