No full-text available
To read the full-text of this research,
you can request a copy directly from the author.
Is You Is or Is You Ain't Hart's Baby? Epstein's Minimum Content of Natural Law
Abstract
In this paper the author re-examines Hart's famous description of The Minimum Content of Natural Law and defends its extremely limited ambit against the attempted inflation of Richard Epstein.
... The fact that men wish to live in biological terms, there being no need to construct thick teleological natural law theories that present a preordained, perfectionist conception of the human good, is neither a self-evident nor irrelevant consideration from a normative standpoint. The minimal objective of living one's life biologically (Hart's thin teleology is concerned only with this 3 ) [32] derives from a biological fact, and it is simultaneously a normative fact because "is reflected in whole structures of our thought and language, in terms of which we describe the world and each other. We could not subtract the general wish to live and leave intact concepts like danger and safety, harm and benefit, need and function, disease and cure; for these are ways of simultaneously describing and appraising things by reference to the contribution they make to survival which is accepted as an aim" (p. ...
... 6. Richard Epstein (2005) has argued that we ought to infl ate Hart's "natural necessity" to a more robust, yet still libertarian, notion of human welfare. In response, James Allan (2007) argues that it is a mistake to expand Hart's minimalist approach. ...
Chaïm Perelman resuscitated the rhetorical tradition by developing an elegant and detailed theory of argumentation. Rejecting the single-minded Cartesian focus on rational truth, Perelman recovered the ancient wisdom that we can argue reasonably about matters that admit only of probability. From this one would conclude that Perelman's argumentation theory is inalterably opposed to natural law, and therefore that I would have done better to have written an article titled "Perelman's Theory of Argumentation as a Rejection of Natural Law."
However, my thesis is precisely that Perelman's theory of argumentation connects to the natural law tradition in interesting and productive ways. Perelman referred to natural law in a number of his essays as an example of the excessively rational focus that he sought to correct with his theory of argumentation, but he also noted the power of natural law claims in legal argumentation. To my knowledge, he never offered a detailed account of the connections between his theory of argumentation and natural law. However, Perelman's deep and abiding concern with justice suggests that he could not help but be interested in lines of argumentation that challenge positive laws from some other standpoint—that, in some manner, he must embrace some elements of the natural law tradition.
I wish to outline the ways that a natural law account can fit with Perelman's theory of argumentation in order to address an ontological crisis that grips contemporary legal theory. Steven Smith (2004) has persuasively described "law's quandary" now that legal practice purports to be divorced from the natural law contexts in which it developed. Smith provocatively contends that there is "at least a strong prima facie case that modern legal discourse is operating in a sort of 'ontological gap' that divides our explicit or owned ontological commitments (which preclude us from recognizing the reality of 'the law' [that stands distinct from empirical legal practices]) from the ontological assumptions not only implicit in but essential to our discourse and practice (which seem to presuppose the reality of 'the law')" (1994, 63). In a similar vein, Peter Goodrich describes the plight of contemporary legal theory with concise accuracy, observing that we have abandoned natural law foundations originally constructed in ecclesiastical venues only to find that the project of developing a secular legal language capable of transforming the management of social conflict into questions of technical rationality is doomed to failure (1996, 160–61).
I contend that by working through a conception of natural law that fits with Perelman's philosophy of argumentation we can find a promising way to address law's ontological crisis. The philosophy of the new rhetoric is a rich resource for describing the ontological space in which law operates and also for providing normative guidance to those engaged in legal practice.
The term "natural law" generally calls to mind a philosophical account that bloomed in ancient Rome, was absorbed into the Christian tradition, reached full expression in Aquinas, and then was secularized and rationalized as a philosophy of natural rights. Cicero offered a succinct definition of pre-Christian natural law based on the Stoic tradition, arguing that natural law is universal, eternal, and unchanging and that these characteristics of reality follow from the fact that natural law is authored and administered by a deity.
True law is right reason in agreement with Nature; it is of universal application, unchanging and everlasting. … [W]e need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times, and there will be one master and one ruler, that is, God, over us all, for He is the author of this law, its promulgator, and its enforcing judge.
Cicero's account was easily accommodated to Christian principles that were embraced and propagated by the Roman Empire. Centuries later, Aquinas differentiated eternal law, natural law and positive law, arguing that God's divine will is beyond our ken but that we are capable of determining...
My main goal in this paper is to vindicate Humes belief that morality is exclusively
a matter of sentiment, when it is apparent that the reflective or general perspective necessary
to making a moral judgment requires reason. My solution to the supposed inconsistency is to
show that reason is understood in two ways: in the preliminary understanding, reason is
opposed to sentiment; in the final understanding, reason is actually reduced to sentiment, or
explained away in favor of it. In this final sense, when reason affects morality, it consists in
bringing to the mind imaginary sensations and sentiments to which we react sympathetically.
A legal theory, any legal theory, necessarily adopts one of two perspectives or vantages or points-of-view. The author of a legal theory may take up the internal, engaged vantage or the external, detached vantage. If he seeks to explore, say, how judges should decide hard cases then his theory, explicitly or implicitly, will adopt an internal participant’s perspective. Most likely, he will be putting himself in the shoes of the judge (or alternatively, asserting that we are all judges of a sort) in order to convince others of how best this role can be performed. Less likely, will be he who is a revolutionary and who thinks that the judge should decide cases in such a way as to contribute to the subversion of the legal system. In either event, both will be prescribing. Prescription, answering the ‘ought’ and the ‘should’, presupposes an involvement in the question and a concern with some evaluative dispute (though the revolutionary clearly does not accept the norms of his legal system as binding).
The major theoretical presupposition of our model of foreign-policy decision-making is that the beliefs of the decision-makers are central to the study of decision outputs and probably account for much of the variance in international politics. Beliefs represent both the congealed experiences of the decision-maker and his expectations about the decision environment. In the former sense, they are his decisions about the significance of past "events". In the decision-making process the belief system as a whole acts like a template for receiving and channeling information, and for relating possible policy options to perceptions about the intentions and behavior of other nations, as well as to the policy objectives of the decision-maker.
I have been lecturing and teaching on the subject of this essay for many years, and more people have discussed and criticized my ideas than I can acknowledge or remember. Particular thanks are due to Paul Boghossian, Ruth Chang, G. A. Cohen, Donald Davidson, James Dreier, Stephen Guest, Derek M t, Thomas Scanlon. Nicos Stavropoulos, Sigrun Svavarsdottir, and David Wiggins, to the members of the New York University Law School Colloquium on Legal, Political, and Social Philosophy, and to my teaching colleagues Thomas Nagel and Bernard Williams. The essay will appear in a collection of essays on incommensurabilty, edited by Ruth Chang, to be published by Harvard University Press in the fall of 1997.
A Treatise of Human Nature / David Hume Note: The University of Adelaide Library eBooks @ Adelaide.
This volume is organized around five major themes: the SDI, ICBM's, the politics, procurement and science of nuclear weapons and arms control, Europe and NATO, and the dynamics of the arms race. The focus is strongly on the scientific questions surrounding weaponry and arms control.
The search for a moral standard of right and wrong which is external to any particular evaluator, and so escapes subjectivity, has a long history. Jeremy Bentham, in trying to find such a standard, opted for utilitarianism, which at least provides an inter-subjective standard of right and wrong. Everything else, thought Bentham, however dressed up, collapses into the purely subjective principle of sympathy and antipathy - "I like it" or "I don't like it". The essays in this book seek to show this principle of sympathy and antipathy continues to be alive and well in legal philosophy. This is the central theme of the book and the author uses it throughout to illuminate a host of questions ranging from the worth of constitutional rights to the merits of scepticism to the acceptability of spanking.
This article examines Hart’s claim that it is possible to identify a core set of moral principles that constitute the minimum content of natural law. It argues that there is no reason to link natural law solely to self-preservation when its principles could be extended to maximize social welfare. The article then shows how these so-called minimum rules of property, contract, and tort have in fact large generative powers that allow them to explain many of the salient features of any complete legal system. The article also shows how the relevant principles in this regard can be developed by an appeal to Hart’s principles of defeasibility and causation. Both of these concepts organize the orderly and incremental expansion of legal rules from their initial core into a complete legal system.
Hume. A Collection of Critical Essays. London: Macmillan. Crowe, Jonathan. Unpublished. The Argument from Interpretation or Why It Is
- Chappell
- C Vere
Chappell, Vere C., ed. 1966. Hume. A Collection of Critical Essays. London: Macmillan. Crowe, Jonathan. Unpublished. The Argument from Interpretation or Why It Is Good To Be a Natural Lawyer.
The Argument from Interpretation or Why It Is Good To Be a Natural Lawyer
- Jonathan Crowe
- Unpublished
Crowe, Jonathan. Unpublished. The Argument from Interpretation or Why It Is Good
To Be a Natural Lawyer.
Unpublished.The Argument from Interpretation or Why It Is Good To Be a Natural Lawyer
- Crowe Jonathan