The slogan is unintelligible save as an expression of and incitement to engaging in such critiques; Dependent for its legal status on the fact that it has been authoritatively posited by some persons(s) or institution, nonetheless shares in law's characteristic of entailing albeit presumptively and defeasibly a moral obligation of compliance. Theories steven c. Basic human needs and circumstances powerfully suggest to people in virtually all times and places that they should make and uphold some norms of the kind we call law, norms which will depend directly and for the most part on social facts such as custom, authoritative rule-making, and adjudication. Such an understanding will clarify the often somewhat crude accounts given in criminal law dogmatics (case law and textbooks) of actus reus and mens rea, accounts which often fail to distinguish been action as a physically or conventionally demarcated chunk of behavior and action as the carrying out of the choice of an option, that is of a proposal shaped and thus given a privileged description in the deliberations of the acting subject. Be given shape And see I. 3 below. ) Classic and leading contemporary texts of natural law theory treat law as morally problematic, understanding it as a normally indispensable instrument of great good but one that readily becomes an instrument of great evil unless its authors steadily and vigilantly make it good by recognizing and fulfilling their moral duties to do so, both in settling the content of its rules and principles and in the procedures and institutions by which they make and administer it.
Theories of critical and creative thinking. Thomas Aquinas' account of human positive law treats the central case of government as the self-government of a free people by the rulers and institutions which that people has appointed for that purpose, and the central case of law is the co-ordination of willing subjects by law which, by its public character (promulgation), clarity, generality, stability and practicability, treats those subjects as partners in public reason ( Summa Theologiae I-II q. 90 a. 4c; Unfortunately, the surface of Fuller's text gives more prominence to effectiveness than to fairness, and many critics (e. When the accounts of adjudication and judicial reasoning proposed by contemporary mainstream legal theories are added to those theories' accounts of (the concept of) law, it becomes clear that, at the level of propositions (as distinct from names, words and formulations), those theories share (though not always without self-contradiction) the principal theses about law which are proposed by classic natural law theorists such as Aquinas: (i) that law establishes reasons for action, (ii) that its rules can and presumptively (defeasibly) do create moral obligations that did not as such exist prior to the positing of the rules, (iii) that that kind of legal-moral obligation is defeated by a posited rule's serious immorality (injustice), and (iv) that judicial and other paradigmatically legal deliberation, reasoning and judgment includes, concurrently, both natural (moral) law and (purely) positive law. All this seems to have been overlooked by Hart in his polemic (Hart 1961, 204 7; 1994, 208 12) against lex iniusta non est lex. It is thus law only in a sense that should be judged especially when law is regarded, as by Hart himself, as a kind of reason or purported reason for action to be a distorted and secondary, non-central sense.
So for Aristotle, the central case of practical authority is government of a polis by law and legally regulated rulers. g., Hart, Dworkin), overlooking the moral connotations of Fuller's allusions to reciprocity between rulers and ruled, thought his book's title, The Morality of Law, a misnomer. This does not involve an unqualified and simple originalism in constitutional interpretation, or a simple denial of the characteristic insistence of legal dogmatics that the intention of the parties to agreements or declarations is to be ascertained objectively (not subjectively), But (ii) if something does turn on the name if, for example, it be recalled that courts cannot take judicial notice International Relations Reader, ed The fact is that these elements of our law are both positive (made and part of official practice) and natural (rationally required for at least minimal human flourishing). Natural law theory of law has its most distinctive characteristic in its account of purely positive law which, though entirely Dickson 2001. These issues are discussed further in Section 3 below. These writers, among many others, are critical of aspects of postmodern theory but find some elements extremely useful.