Essays On Natural Law

Essays On Natural Law-45
On the other hand they can justify the necessity of positive law with its coercive machinery only by the badness of man.Here, I believe, Kelsen offers a spectacularly poor argument (or pair of muddled together arguments).In the second section of his essay, Kelsen focuses on the natural law-doctrine of the relationship between natural and positive law.

On the other hand they can justify the necessity of positive law with its coercive machinery only by the badness of man.Here, I believe, Kelsen offers a spectacularly poor argument (or pair of muddled together arguments).In the second section of his essay, Kelsen focuses on the natural law-doctrine of the relationship between natural and positive law.

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But a defeated reason remains a reasonfor unreasonable choices are not necessarily utterly irrationalalbeit one that can be acted for by a person who, at some level, at least, understands the wrongfulness of his deed, only on the basis of emotional motives that compete with and cut back upon or fetter reason.

One need not suppose that people are inherently bad in order to acknowledge the evident truth that human emotions, when inadequately integrated in the human personality, can motivate people to perform immoral acts.

In performing this function most of the doctrines entangle themselves in a highly characteristic contradiction.

On the one hand they maintain that human nature is the source of natural law, which implies that human nature must be basically good.

For the sake of the common good, then, the relevant law making authority must stipulate that from among the various possible schemes shall be given the force of law.

In selecting a scheme, the law makers operate not by any process analogous to the deduction of demonstrable conclusions from premises, but, rather, by a process of choosing between reasonable, yet incompatible, optionsa process that Aquinas refers to as Although it is the case that but for the laws enactment no one would be under any general moral duty to behave as it requires, and despite the fact that the law maker(s) could, compatibly with the requirements of natural law, have stipulated a different requirement or set of requirements, its directiveness derives not only from the fact of its creation by some recognized source of law (legislation, judicial decision, custom, etc.), but also from its rational connection with some principle or precept of morality.It is entirely clear, then, that the existence of natural law, as Aquinas conceives it, does not render positive law otiose.On the contrary, Aquinas quite reasonably views positive law, and the institutions of government that enjoy the power of law making, to be indispensable to the common good of any societyeven a hypothetical society of saints.None of them has declared that the existence of natural law makes the establishment of positive law superfluous. All of them insist upon the necessity of positive law.In fact, one of the most essential functions of all natural-law doctrines is to justify the establishment of positive law or the existence of the state competent to establish positive law.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. Other positive laws, however, cannot be derived from the natural law in so direct and straightforward a fashion.Where law is required to resolve a co-ordination problem, it is often the case that a variety of possible solutions, all having certain incommensurable advantages and disadvantages, are rationally available as options.At the same time, it is important to see that in Aquinass account of the matter, positive law would remain necessary even in a human society in which people could always be counted upon to do the morally right thing.This is because any societyeven a society of saintsneeds law, and a system of law making, to provide authoritative stipulations for the coordination of actions for the sake of the common good.

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