{"title":"The Rights of Women: Reclaiming a Lost Vision, Erika Bachiochi","authors":"Gabrielle M. Girgis","doi":"10.1093/ajj/auad003","DOIUrl":"https://doi.org/10.1093/ajj/auad003","url":null,"abstract":"","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46773247","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Justice is known to be an emblematic legal-philosophical criterion that forms part of the evaluative point of law for several prominent authors (such as Robert Alexy and Gustav Radbruch) who advocate that the nature of law is dual, namely, that law has at the same time an evaluative and descriptive nature. John Finnis, a proponent of a contemporary natural-law theory of law who supports a maximalist or full-range approach regarding the aspects of human good, acknowledges the legal importance of the requirement for justice. However, Finnis seems to conceptualize justice as a subset of what he deems the main evaluative standard within the nature of law—practical reasonableness. In this article, I argue that Finnis’s account of law and justice may be fruitfully upgraded by an emphasis on Thomas Aquinas’s texts that highlight the virtue of justice and its object, the juridical phenomenon (ius), as the central evaluative standard and the ideal end of positive law. I also show how a greater emphasis on justice is ultimately compatible with the role of practical reasonableness in explaining the nature of law.
{"title":"Reading Finnis and Aquinas on Justice as the Evaluative Standard for Positive Law","authors":"P. Popović","doi":"10.1093/ajj/auad005","DOIUrl":"https://doi.org/10.1093/ajj/auad005","url":null,"abstract":"\u0000 Justice is known to be an emblematic legal-philosophical criterion that forms part of the evaluative point of law for several prominent authors (such as Robert Alexy and Gustav Radbruch) who advocate that the nature of law is dual, namely, that law has at the same time an evaluative and descriptive nature. John Finnis, a proponent of a contemporary natural-law theory of law who supports a maximalist or full-range approach regarding the aspects of human good, acknowledges the legal importance of the requirement for justice. However, Finnis seems to conceptualize justice as a subset of what he deems the main evaluative standard within the nature of law—practical reasonableness. In this article, I argue that Finnis’s account of law and justice may be fruitfully upgraded by an emphasis on Thomas Aquinas’s texts that highlight the virtue of justice and its object, the juridical phenomenon (ius), as the central evaluative standard and the ideal end of positive law. I also show how a greater emphasis on justice is ultimately compatible with the role of practical reasonableness in explaining the nature of law.","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45575727","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the second edition of Natural Law and Natural Rights John Finnis observes that, whilst he expected criticism of his theory from positivists, he did not expect it from traditional natural law theorists who felt that the theory was insufficiently grounded in Aquinas’s doctrines. Finnis argued that the divergence was a mirage occasioned by his addressing topics out of the standard orders of treatment. This essay considers what Finnis’s theory would look like if placed back into Aquinas’s orders of treatment, and gauges the extent to which it conforms to Aquinas’s doctrines, and the extent to which it is divergent and “new.” This analysis may hopefully serve as a starting point for further study.
{"title":"Natural Law Theory, “New” and Old","authors":"S. Coyle","doi":"10.1093/ajj/auad004","DOIUrl":"https://doi.org/10.1093/ajj/auad004","url":null,"abstract":"\u0000 In the second edition of Natural Law and Natural Rights John Finnis observes that, whilst he expected criticism of his theory from positivists, he did not expect it from traditional natural law theorists who felt that the theory was insufficiently grounded in Aquinas’s doctrines. Finnis argued that the divergence was a mirage occasioned by his addressing topics out of the standard orders of treatment. This essay considers what Finnis’s theory would look like if placed back into Aquinas’s orders of treatment, and gauges the extent to which it conforms to Aquinas’s doctrines, and the extent to which it is divergent and “new.” This analysis may hopefully serve as a starting point for further study.","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42740320","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The distinction between the creation and application of law, as Paolo Sandro writes at the beginning of The Making of Constitutional Democracy, is a central part of everyday legal discourse (1).1 Yet this distinction is something that many legal theorists have either undermined or dismissed, by arguing that law-application is not really possible (in other words, that law-application is just a form of law-creation). This attitude is problematic—according to Sandro—on at least two levels (1-2). First, without the distinction, it is unclear how law can provide normative guidance to its addressees, given that laws would not be able to tell agents what to do unless and until they are the subject of adjudicative decisions. Second, without the distinction, it seems, we are forced to reject a central legitimating ideal behind representative democracy—namely, the idea that elected representatives make (most of) the law in the name of the people. If law-application is not possible, the idea that legislators make law that judges are bound to apply lacks any foundations (2). Sandro’s main goal, then, is to propose and justify the distinction, and to show how law’s action-guiding capacity and constitutional democracy are premised on it (17).
正如保罗·桑德罗(Paolo Sandro)在《宪政民主的形成》(The Making of Constitutional Democracy)一书的开头所写的那样，法律的创造与应用之间的区别是日常法律论述的核心部分(1)然而，这种区别被许多法律理论家所破坏或忽视，他们认为法律的适用实际上是不可能的(换句话说，法律的适用只是法律创造的一种形式)。根据sandro的说法，这种态度至少在两个层面上是有问题的(1-2)。首先，如果没有这种区别，法律如何能够为其对象提供规范性指导是不清楚的，因为法律无法告诉代理人该做什么，除非并且直到他们成为裁决决定的主体。其次，如果没有这种区别，我们似乎就被迫拒绝代议制民主背后的核心合法性理想——即民选代表以人民的名义制定(大部分)法律的想法。如果法律的适用是不可能的，那么立法者制定法官必须适用的法律的想法就缺乏任何基础(2)。因此，桑德罗的主要目标是提出和证明这种区别，并表明法律的行动指导能力和宪政民主是如何以这种区别为前提的(17)。
{"title":"<i>The Making of Constitutional Democracy: From Creation to Application of Law</i>, Paolo Sandro","authors":"Felipe Jiménez","doi":"10.1093/ajj/auad001","DOIUrl":"https://doi.org/10.1093/ajj/auad001","url":null,"abstract":"The distinction between the creation and application of law, as Paolo Sandro writes at the beginning of The Making of Constitutional Democracy, is a central part of everyday legal discourse (1).1 Yet this distinction is something that many legal theorists have either undermined or dismissed, by arguing that law-application is not really possible (in other words, that law-application is just a form of law-creation). This attitude is problematic—according to Sandro—on at least two levels (1-2). First, without the distinction, it is unclear how law can provide normative guidance to its addressees, given that laws would not be able to tell agents what to do unless and until they are the subject of adjudicative decisions. Second, without the distinction, it seems, we are forced to reject a central legitimating ideal behind representative democracy—namely, the idea that elected representatives make (most of) the law in the name of the people. If law-application is not possible, the idea that legislators make law that judges are bound to apply lacks any foundations (2). Sandro’s main goal, then, is to propose and justify the distinction, and to show how law’s action-guiding capacity and constitutional democracy are premised on it (17).","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136197238","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Legacy of John Finnis: Contemporary Engagements and Developments","authors":"","doi":"10.1093/ajj/auac015","DOIUrl":"https://doi.org/10.1093/ajj/auac015","url":null,"abstract":"","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47022288","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The fact that the most prominent brands of positivism and natural law theory, namely their Razian and Finnisian variants, are in agreement about some hitherto hotly contested issues has over the decades become more of an entertaining curio than an actual concern that ruffles any theoretical feathers. Whatever its benefits, this great convergence requires positivism to forfeit much of what has originally made it a theoretically appealing position. One of the many reasons for the curious alignment of positivism with natural law theory has been a focus on the explanatory power and theoretical import of the phenomenon of friendship. If we allow the countervailing forces of enmity to be given their due weight, a different model of law emerges, namely law as peace, which is more resistant to the contortions and ultimate self-abandonment that ensues from the alignment of positivism with natural law theory.
{"title":"Law as Peace (Or Why I Am Still a Hard-Core Positivist)","authors":"C. Kletzer","doi":"10.1093/ajj/auac011","DOIUrl":"https://doi.org/10.1093/ajj/auac011","url":null,"abstract":"\u0000 The fact that the most prominent brands of positivism and natural law theory, namely their Razian and Finnisian variants, are in agreement about some hitherto hotly contested issues has over the decades become more of an entertaining curio than an actual concern that ruffles any theoretical feathers. Whatever its benefits, this great convergence requires positivism to forfeit much of what has originally made it a theoretically appealing position. One of the many reasons for the curious alignment of positivism with natural law theory has been a focus on the explanatory power and theoretical import of the phenomenon of friendship. If we allow the countervailing forces of enmity to be given their due weight, a different model of law emerges, namely law as peace, which is more resistant to the contortions and ultimate self-abandonment that ensues from the alignment of positivism with natural law theory.","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41593706","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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