Abstract
The paper examines the natural law tradition in ethics and legal theory. This tradition is shown to address two questions.
The first question is to do with the nature of law, and the kind of human capacity that is subject to legal direction. Is law directive of the voluntary – of what is subject to the will, or what can be done or refrained from on the basis of a decision so to do? Or is law directive of some other kind of capacity? The second question is about the nature of ethical normativity, and the relation within normativity of its directive and appraisive aspects. Is direction primary, and appraisal to be explained in terms of a theory of direction; or must a theory of ethical direction be based on a theory of ethical appraisal? Both issues are introduced by reference to Hume’s ethical theory, which raises them in a particularly sharp form.
The natural law tradition, in the form it reached by the early modern period, is shown to combine giving a primacy to the appraisive in normative theory, with, in legal theory, a detachment of law from any exclusive tie to the direction of the voluntary. At the heart of the theory of natural law is the idea of law as a distinctive form of normativity directive of a capacity not for voluntariness, but for self-determination. Combined with a view of the state not just as a coordinative authority but as a coercive teacher, this led to a distinctive and highly controversial view of the scope of positive law. The paper ends with Hobbes’s sharp opposition to this view of positive law – an opposition that focussed, in particular, on the coercive legal direction of belief.
The first question is to do with the nature of law, and the kind of human capacity that is subject to legal direction. Is law directive of the voluntary – of what is subject to the will, or what can be done or refrained from on the basis of a decision so to do? Or is law directive of some other kind of capacity? The second question is about the nature of ethical normativity, and the relation within normativity of its directive and appraisive aspects. Is direction primary, and appraisal to be explained in terms of a theory of direction; or must a theory of ethical direction be based on a theory of ethical appraisal? Both issues are introduced by reference to Hume’s ethical theory, which raises them in a particularly sharp form.
The natural law tradition, in the form it reached by the early modern period, is shown to combine giving a primacy to the appraisive in normative theory, with, in legal theory, a detachment of law from any exclusive tie to the direction of the voluntary. At the heart of the theory of natural law is the idea of law as a distinctive form of normativity directive of a capacity not for voluntariness, but for self-determination. Combined with a view of the state not just as a coordinative authority but as a coercive teacher, this led to a distinctive and highly controversial view of the scope of positive law. The paper ends with Hobbes’s sharp opposition to this view of positive law – an opposition that focussed, in particular, on the coercive legal direction of belief.
| Original language | English |
|---|---|
| Pages (from-to) | 1-28 |
| Number of pages | 28 |
| Journal | Jurisprudence |
| Volume | 5 |
| Issue number | 1 |
| DOIs | |
| Publication status | Published - 2014 |