Bibliography of Legal Theory Resources
Added on 2020-04-01
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Running head: JURISPRUDENCE Jurisprudence Name of the studentName of the universityAuthor note
1JURISPRUDENCE IntroductionThe true nature of natural law theory is often misunderstood while providing that naturallaw theories are not consistent with the theories of legal positivism. It has always been providedthat the concept provided by natural law theories is totally different from that of the theories oflegal positivism. There have been various studies conducted in order to prove that legalpositivism is totally different from natural law theory. Natural law theories emphasizes on justiceequality and morality where is legal positivism focuses on making law according to the needs ofthe society. Natural law theory has the primary function of securing justice. It provides that lawswhich are not just cannot be regarded as laws at all. Legal positivism on the other hand as thefunction of providing common good for the community. Therefore prima facie observation of aperson who is a believer of natural law theory would be that a positive law theory which is not inaccordance to the theories of divine law or natural law cannot be regarded as a law at all. Thepeople only have a moral obligation of obeying principles which are not consistent to natural lawand there is no legal obligation imposed on the people to obey them1. The purpose of this paper is to analyze various studies on both natural law theory andlegal positivism in order to showcase that natural law theories are not totally inconsistent withpositive law theories as it is generally depicted. The paper also analyses the gap in variousstudies to point out issues if any with such studies have ignored in relation to both natural lawand positive law theory.Natural law theory 1MacCormick, Neil, and Ota Weinberger.An institutional theory of law: new approaches to legal positivism. Vol. 3.Springer Science & Business Media, 2013.
2JURISPRUDENCE Natural Law is a wide-ranging and frequently misappropriated concept incorporatedround numerous schools of science, philosophy, history, law and theology. Truly, ImmanuelKant repeated to us,'What is law?' may be said to be about as embarrassing to the jurist as thewell-know question ‘What is Truth?’ is to the logician2.As per d'Entreves and Passerin natural law is a theory of moral with respect tojurisprudence which provides that low has to be based on ethics and morality3. It states that lawis made of and based on what is ethically and morally correct. Human can discover natural lawthrough the use of reasons and choosing between the good and the evil. Thus the power ofnatural law is derived from finding out specific universal principles in ethics and morality. Thedistinction between nature and law, convention and customs had been emphasized on byAristotle, Socrates and Plato. What is provided through law is diverse with respect to the place,however what is provided through nature has to be consistent everywhere. Many considerAristotle as the father of natural law. Aristotle provided the argument in the book Rhetoric that“separate from specific laws which each jurisdiction has made up for themselves there is a higherlaw or common law which exists in accordance to the nature”. Here he was talking about Naturallaw. According toAtkins the theory of natural law is interpreted as the theory which providesthat specific ethical and moral laws always transcend time, government and culture4. Theuniversal stands are applicable on mankind during all the time of their existence. The specificethical and moral standards are discoverable by and inherent in all of mankind and are thefundamental of a just and equal society5. 2Marske, Charles E., Charles P. Kofron, and Steven Vago. "The Significance of Natural Law in Contemporary LegalThought."The Catholic Lawyer24.1 (2017): 5.3d'Entreves, Alexander Passerin.Natural law: An introduction to legal philosophy. Routledge, 20174Atkins, Jed W. "Zeno’s Republic, Plato’s Laws, and the Early Development of Stoic Natural Law Theory."Polis:The Journal for Ancient Greek Political Thought32.1 (2015): 166-190.5Banner, Stuart. "Natural Law in Court: A History of Legal Theory in Practice." (2015): 428
3JURISPRUDENCE As stated by Kugler, Peter and Michael the concept of natural law is ambiguous. It pointsout to a form of ethical and morally correct theory along with a legal theory6. However thefundamentals of both the types of theory are independent of each other logically. Natural lawdoes not point out towards the law of nature all the laws which science objects to define. As perthe moral theory of natural law the ethical standards which guide human behavior are to someextent derived objectively from human nature itself along with the true nature of the world. Evenwhen the theories are logically independent of each other they intersect. As per the legal theoryof natural law the power of legal provisions mandatorily extracts to the least in part fromconsideration in relation to moral merit of such principles. There are various kinds of legaltheory in relation to natural law which are different from each other in relation to the role whichmorality place in finding out the authority of the legal provision.According to Wright and Fletcher a collection of mandatory and necessary situation forpresence of law which distinguishes law from unlawful provision in every world possible exist7.The natural law classical theories such as a Theory provided by Thomas Aquinas emphasizes onthe overlapping between legal theories and natural law moral theory. Another development of thenatural law classical theory is the theory of new natural ISM as provided by John Finnis. To thecontrary the theory of procedural natural ISM as provided by l fuller rejects the conceptualnaturalist idea which states that there are mandatory substantive model restrictions on the contentof law. Lastly the theory provided by Ronald Dworking is a critique and response of the theoriesrelating to legal positivism. All these theories Aryan relation to one or more fundamental tenantsof natural law legal theory and are significant to its influence and development 6Kugler, Peter N., and Michael T. Turvey.Information, natural law, and the self-assembly of rhythmic movement.Routledge, 2015.7Wright, Benjamin Fletcher.American Interpretations of Natural Law: A Study in the History of Political Thought.Routledge, 2017
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