What is a doctrine of natural law
Structures of law and power
6. Political theory and modern natural law
6.7 Modern natural law
6.7.2 WHAT IS MODERN NATURAL LAW?by Tim Neu
The idea of a natural law ’(ius naturae) and arguments based on natural law did not only emerge in the FNZ, but can be traced back to antiquity. Nevertheless, in the middle of the 17th Jhs. there has been such an epoch-making change in this way of thinking that it seems justified to publish the Leviathan of Thomas Hobbes in 1651 to be chosen as an incision and only afterwards from modern To speak natural law. So it must first be clarified what is generally understood by ‘natural law’ and then what the specifics of the modern Natural law.
|What is natural law?|
"Natural law" means a "system of legal norms that are binding for all people (...), even without and in the event of a conflict even against all positive, in particular state laws and instructions, everywhere and at all times" ( Ilting, Naturrecht, 245). The term becomes understandable only through the comparison of natural law vs. positive law: Positive law applies by virtue of human positing ’(lat. ponere = set, lay, set), i.e. only within spatial and temporal limits. Natural law, on the other hand, is supposed to be characterized precisely by the fact that it lacks this particularity and applies everywhere and always.
Such a, as it were, over-positive law can be different Functions fulfill. The most important one is likely to be that one gains a standard of assessment against which one can measure positive law: natural law can thus criticize positive law (if there is no agreement) or legitimize it (if there is agreement).
Of course, such a natural law requires the Reason, because it is not immediately obvious which norms it should contain and how their validity could be justified - and the Legal positivism, for example, denies such a possibility at all. In the history of natural law one can roughly distinguish three different justifications, the last of which is modern natural law.
- The teleological natural law: This concept, first formulated in pagan antiquity, traces the content and validity of natural law back to the being ’of nature itself, hence the name natureLaw. In ancient times, nature was imagined as a cosmos (gr. cosmos = Jewelry, order): an eternal order, the parts of which have their own purposes (cf. 6.3.3). → Natural law applies because nature itself contains its norms.
- The theonomous natural law: In the late Middle Ages, the foundation of natural law was changed considerably in a now Christian context. Its validity was no longer based on ‘being’, but on wanting ’- the will of God as the creator of nature. → Natural law applies because God wills and has ordered it that way.
|What is modern natural law?|
Modern natural law differs from these older variants in two essential points, both in the justification itself and in the scientific method with which concrete norms are derived from this justification.
Reason: No matter how different the older conceptions of natural law may be, what they "have in common is the appeal to an entity independent of human will: the order of nature or creation, the will of God (...). Th. Hobbes puts an end to this tradition and puts an end to it N [aturrecht] (...) on a new foundation: the will and the insight of the individual. " ( Kühl, Naturrecht, 585). That's the revolutionary twist that this modern Natural law justifies: → Natural law applies because every single person wants it or can rationally see that he has to want it.
method: The break with tradition that such a completely new justification meant was deepened by the fact that the new method was used to develop this approach, as it is in the Scientific revolution had been developed. This "recognizes only a single principle, which forms the basis of the entire legal system" and "derives all legal provisions from the first principle through a logical procedure and builds a consistent system, the parts of which are mutually and logically dependent" ( Scattola, Natural Law, 215).
In summary it can be said: "The [modern] natural law is therefore rational, methodologically stringent, systematic and secular." ( Denzer, Late Aristotelianism, 239).
- It is on the one hand rational and secular (= worldly) because it applies to reason (ratio) who founds people without in principle needing an extra-worldly component.
- It is on the other hand methodically stringent and systematicallybecause it is used to develop its system of standards ‘More geometrico’, thus proceeding according to the new understanding of science of the 17th century.
Since modern natural law rests on these foundations, this has the following consequences for the structure of a natural law political theory as a whole:
- Political rule should first be justified from the insight and the will of the individuals, so the individuals must first be presented in a state without community: the doctrine of Natural state (see. 6.7.3).
- If individuals want to leave this imagined natural state, they will do so out of well-understood self-interest only in one form of mutual obligation: the doctrine of contract (see. 6.7.3)
On which specific supreme principles in relation to the constitution of the human being ( 6.7.4) such a system is set up, however, and what concrete legal and political norms for the community ( 6.7.5) can be derived from this, which is very different for the individual natural law theorists.
Sources: Thomas Hobbes and Samuel von Pufendorf
|© 2003 by Barbara Stollberg-Rilinger • mail: [email protected]|
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