Thursday, July 31, 2008
Brian Bix has posted Will Versus Reason: Truth in Natural Law, Positive Law, and Legal Theory. (HT: Solum) From the abstract:
It seems probable, and perhaps inevitable, that theorists about the nature of truth in morality must choose between reason and will - that morality, at its core, is either one or the other. What makes law distinctive is that it is, as a practical matter if not by conceptual necessity, a mixture of both. And it is this intertwining of reason and will, of normative system and practical reasoning, which makes assertions about the nature of legal truth, and theories about the nature of law, so difficult.
The arguments about truth in law are as much disagreements about what it means to say that a legal proposition is truth as they are about what makes legal propositions true. Are declarations of truth in law statements about legal norms and legal sources, or are they statements about the results of particular disputes or particularized inquiries?
And from the text:
I would not purport to resolve debates within the natural law tradition that go back many centuries. I would note that Finnis is right to raise David Hume’s is/ought problem to traditional voluntarist natural law theory (Hume’s argument, it will be recalled, is that one cannot deduce a normative [‘ought’] conclusion from purely descriptive [‘is’] premises). However, rationalism escapes Hume’s is/ought problem only by entering its own foundational conundrum: what can replace God’s will as a foundational axiom, as a justification for following all the specific norms that natural law will offer as part of a moral code?
The volume in which this paper will appear, Truth: Studies of a Robust Presence (Catholic UP 2009)should be a must-read for MoJers with an interest in philosophy.