Natural Law and Legal Reasoning

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Natural Law and Legal Reasoning

[T]he term “law” . refers primarily to rules adopted in accordance with regulatory legislation by a specific and effective authority (itself designated by legislation as an institution and constituted by default as an institution) for a “complete” community and supported by sanctions in accordance with the rule-based provisions of judicial institutions, with this set of rules and institutions aimed at adequately solving (and ratifying) all problems of community coordination, e.g. tolerance, regulation or going beyond the coordination solutions of other institutions or sources of norms for the common good of that community (Finnis 1980, 276). Criminal liability (guilt) is based primarily on the actions and consequences that the offender intends to do. Liability for negligence is relatively exceptional in modern criminal law, although it is the predominant form of liability in modern compensation law (“civil law”). (The duties and standards of care used to assign tort/tort/civil liability are partly merely moral and partly conventional—in no way are they source-based in the sense of sources to which unconditional priority is given in legal positivism.) All forms of natural law theory subscribe to the overlap thesis, which claims that there is some kind of unconventional relationship between law and morality. According to this view, the concept of law cannot be fully articulated without reference to moral ideas. While the overlap thesis may seem clear, there are a number of different ways to interpret it. The result of these judgments could be explained by (i) an exclusive positivism: the court had the moral authority to apply the moral rules, although the rules thus applied were not legal norms either at the time of the crimes or at the time of the indictment. But the terms of the judgments (as just summarized) can (ii) be explained by an inclusive positivism: the Charter was a positive right for the court and instructed it to apply moral rules which, under this legal direction, were also legal rules.

Nevertheless, (iii) the presentation of the theory of natural law seems to be the most explanatory: the moral rules applied were also rules of “superior law”, which at all times and in all places (and therefore in Germany and its territories, before and after the Charter) were considered the source of argumentation and judgment “according to the law”, if socio-factual sources, which are the normally dominant and almost exclusive source of law, In the judicial system, inadequate and inadequate guidelines for the performance of obligations such as the judicial obligation to administer justice in accordance with the law or the obligation for everyone to behave with elementary humanity, even if they are asked not to do so – even if these orders are based on the formal or socio-factual criteria of a The systems have intrasystemic legal validity. And if one has doubts about victorious justice, these same doubts can also refer to the principles of the same higher law, ius gentium or law of reason and humanity. Second, Fuller identifies the conceptual connection between law and morality at a higher level of abstraction than classical naturalists. Classical naturalists regard morality as essential limitations on the content of individual laws; From this point of view, an unfair norm is conceptually excluded from legal validity. In contrast, Fuller sees morality as a constraint on the existence of a legal system: “A total failure in one of these eight directions does not simply lead to a bad legal system; it leads to what is not called a legal system at all” (Fuller 1964, 39). Note that Dworkin`s views on legal principles and legal obligations do not conform to the three fundamental obligations of legal positivism. Each contradicts the thesis of conventionality insofar as judges are obliged to interpret the postulated law in the light of unstated moral principles. Each contradicts the thesis of the social fact because these moral principles are considered part of the law of a community, whether they have been officially proclaimed or not. More importantly, Dworkin`s view contradicts the separability thesis in that it seems to imply that certain norms are necessarily valid because of their moral content. It is his thesis of the denial of separability that places Dworkin in the camp of naturalists. Aristotle (Politics III.15.1286a–IV 4 1292a) vigorously debated whether political authority would be best exercised by a “rule [primacy, supremacy] of the law” or “a rule of men,” say of the best man, or a democratic assembly, or even (rhetoric I 1 1354a32–b16) a court. He takes his arguments to suggest the answer that in almost all societies, on almost every occasion and question, it is preferable that government be made by or in accordance with the law, since (i) laws are the product of reason(s) and not passion(s), (ii) the sovereignty of a ruler or assembly tends to tyranny (i.e.

governs in the interest of one party, B. (iii) equality requires that every mature person has a share in governance, and (iv) rotation of offices and civil servants is desirable and difficult to manage without legislation. Thus, for Aristotle, the central case of practical authority is the government of a polis by law and rulers regulated by law. The study of (i) how one legal system becomes independent of another through legal processes, and (ii) how parts of a legal system (e.g. its constitution or rules for identifying public officials) are replaced by the illegal processes of coup d`état or revolution shows (see Raz 1979, 100-109) that the identity of an existing legal system as a single system of legal norms is not explained by a representation (or even consistently). ) can be described. which concerns only standards and their interrelationships as validation standards and validated standards. The non-instantaneous identity of a legal system depends on the existing identity of the community in question. Legal theory moves towards the historical understanding (including self-understanding) of a community and its members as a community – paradigmatically this nation-state – and not as a random sequence or agglomeration of persons and events, and this understanding must not depend to some extent on the legal norms that the community can successfully constitute for itself and its members.