The natural law tradition underwent considerable refinement in the 20th century, largely because its classical and popular version had an obvious objection to its fundamental insight: it is difficult to argue that the morally wrong law is not the law. The idea that the law must, so to speak, pass through some kind of moral filter to be considered a law seems incompatible with the legal world as we know it. Therefore, contemporary natural jurists have proposed different and more subtle interpretations of the main teachings of natural law. For example, John Finnis (1980) considers natural law (in its Thomistic version) not as a limitation of the legal validity of positive laws, but primarily as an explanation of a legal ideal in its fullest or highest sense, which focuses on how law necessarily promotes the common good. However, as we have already mentioned, it is not clear that such a vision of the necessary moral content of law is contrary to the broad principles of legal positivism. To the extent that there is a debate here, it is a metaphysical debate about what is essential or necessary for the law and whether or not the essential features of the law should be explained teleologically. Legal positivists are not inclined to seek profound teleological legal representations as articulated by Finnis, but it is far from clear whether they should deny such metaphysical projects. Closely related to questions about the usefulness of general normative theory is the question of how we should understand the enterprise of moral life and action. While Kantians and utilitarians focus on adhering to appropriate rules and principles, more and more philosophers in the field of applied ethics argue that we should focus on acquiring virtues that fit our role in certain cultural and institutional environments. This conception is consistent with a general contextualist orientation in rejecting the deductive model of moral deliberation. To the extent that proponents of virtue ethics deal with ethical theory, it is a much more empirical theory than what moral philosophers have traditionally sought. Such a theory attempts to understand the instrumental implications of different ways of conceptualizing and judging action and character in the context of the social and institutional roles that people play.
Unlike contextualism, however, virtue ethics tends to view right action as indirectly determined by considering what actions would result from the functioning of the relevant virtues, rather than focusing directly on the structure of moral reasoning about right action. Most law students begin to realize that consent is a powerful legal and moral concept at the beginning of the first year of law school. A physical blow to the person is a battery – unless the blow was delivered during a boxing match, in which case consent turns the battery into something that is legally permissible and not punishable, even if it results in serious harm. Sexual intercourse without consent is the very serious crime of rape; Consensual sex is something else entirely. In view of the above-mentioned doubts about conceptual analysis, several views have been suggested that first-order legal theories are primarily about describing and explaining the nature of the right itself, and not any concept of it. Reductionist and naturalist views fall into this category. (As mentioned below, such views should not entirely avoid the salon methods just described, but to the extent that these methods remain feasible, a very different explanation of their defensability should be given.) There are five main families of views on this issue. A viewpoint adopts case law as a form of conceptual analysis, meaning that legal theories aim to explain a legal concept. This approach is often associated with Hart`s influential book, The Concept of Law (1994). A second view takes a more skeptical attitude toward the methodology of conceptual analysis, assuming that legal theories offer a reductive explanation of the law itself, not a concept of it. Another more recent view considers general jurisprudence as another branch of metanormative research, which it continues with other philosophical fields such as metaethics.
Fourth, the normative view assumes that the purpose of a legal theory is to clarify the concept of law that we would most like to adopt. A fifth view associated with Dworkin`s work assumes that legal theories are intended to offer a constructive interpretation of legal practice. These five perspectives and some of the key issues they face are discussed in more detail below. Although some libertarians are consequentialists, many others consider deontological moral theory to be the basis of their libertarianism. There are many different strategies for arguing for libertarianism based on ethical premises. One method begins with the idea of self-ownership or autonomy. Each of us has the moral right to control our own bodies, free from unlawful interference by others. This could mean that every individual has the right against theft, assault, wrongful imprisonment, slavery, etc. Of course, these rights could justify some type of government – a government that protects us from interference with our rights. But if the government goes beyond protecting these rights, then the government itself acts by force or threat of force.
For example, income redistribution could be achieved by taxing income to finance a social protection system. Taxes are not voluntary; The payment of taxes is “forced” by threats of violence and imprisonment. Without consent, it could be argued that these threats are illegal acts. In my opinion, the ethical approach to the foundations of libertarian political theory is most closely associated with the late Robert Nozick and his great book Anarchy, State, and Utopia (see reference below). Ronald Dworkin played a key role in this movement with his famous distinction between the criteria of “aptitude” and “justification”. If two or more views of the law “match” sufficiently to the cases, bylaws and other legal documents, Dworkin argued, difficult cases must be resolved by asking which point of view agrees with the best justification for the law. So if there are two or more interpretations of the equality safeguard clause that fit the text and the cases, we should choose the interpretation that fits our best equality theory – and that`s probably a great normative theory. As a result, we seem to be left behind in the following dialectical situation. Whether legal theory is inherently evaluative in the relevant sense depends on the success of the interpretive argument. Again, the success of this argument depends on its central premise, that is, the assertion that understanding the law necessarily requires constructive interpretation. If an indisputable argument can be advanced in support of this assertion, then there would be reason to believe that legal theory is necessarily evaluative in nature. If, on the other hand, no unequivocal argument can be advanced that understanding the law requires constructive interpretation, then one would be free to claim that there can be purely descriptive legal theories of the first order.
Positive Legal Theory Type 1: Descriptive Theories – The first type of legal theory, called “positive,” is simply a theory that describes the law in some way. There are many subgenres of descriptive legal theories, but one of the most important is doctrinaire: a theory of teaching describes in general and abstract terms the content of a particular area of jurisprudence. Therefore, a free speech theory might simply attempt to explain the form of the existing First Amendment doctrine.
