The main purpose of the legal structure of criminal law rules (usually „prohibitions“) is to eliminate or, at the very least, deter specified types of acts (or omissions). In this phase of the legal institution of criminal law and sentencing, the objective can be described as deterrence. However, the fact that this objective works in part through the execution and enforcement of the threat of punishment for violations and convictions does not mean that deterrence is the overriding or even the primary purpose of the sentence. Indeed, the institution of punishment has its primary meaning and justification not in deterrence, but in restoring that supposedly just balance between burdens and benefits that disturbs perpetrators, precisely by choosing to give priority to their own objectives and benefits rather than to moderation of their actions in order to avoid breaking the law. By favouring this self-preference option, offenders are giving themselves an advantage over anyone who fails to comply with the law. In this way, the authors disturb the supposed fair balance of benefits and burdens between themselves and law-abiding people. The main objective of punishment may therefore reasonably be to restore this disturbed balance by depriving convicted persons of their unduly obtained advantage – excessive freedom of action – by imposing measures and penalties the primary objective of which is to restrict their freedom of action, whether by means of fines or imprisonment, in proportion to the degree to which they indulge in their own preference. have. In this way, the purpose of the sanction is to ensure that no one gains an advantage over his fellow citizens through a criminal offence in the period from the period preceding the offence to the penalty. Legal positivism holds that the source of a law should be the establishment of that law by a socially recognized judicial body. He also believes that there is no link between law and morality, since moral judgments cannot be defended or supported by rational arguments or evidence.
Legal scholars consider good law to be the law promulgated by good legal authorities who follow the rules, procedures, and constraints of the legal system. Although often associated with positivism, the thesis of discretion does not belong to the theoretical core of positivism. The theories of filiation and separability claim to be conceptual assertions that apply to all possible legal systems. These two claims together assert that in all possible legal systems, legal propositions are valid because they have been produced according to a set of social conventions. From this point of view, there are no moral restrictions on the content of the law that apply in all possible legal systems. The conflict between legal positivism and natural law is often treated as the most fundamental theme of legal philosophy, dividing the field into two hostile and irreconcilable camps. Positivists characterize the teachings of natural law as beliefs based on metaphysical or religious ideas that are incompatible with the principles of scientific thought. Proponents of natural law theory accuse their opponents of failing to understand the realm of mind and value, an area that is quite real although it cannot be discovered or described by sensory experience. To some extent, the discussion was confusing due to a lack of clarity about the meaning of „legal positivism,“ a term that is rarely, if ever, precisely defined.
The most acute aspect of the controversy – namely the criticism of the attitude reflected in the German slogan „Gesetz ist Getz“ as an attitude without morality and partly responsible for the Hitler regime – has nothing to do with properly understood legal positivism. Rather, it is a controversy between two divergent schools of natural law. This chapter takes the same line of investigation and conducts it in a way that is possible in an oral presentation. It focuses on the meaning and function of the concept of validity in legal theory. This need for a value-laden selection of terms and concepts to be used in a general theory of social realities such as law is evident in the work of Max Weber, the „worthless“ prophet of the social sciences. His representation of forms of government, for example, identifies three pure, central, and characteristic types (ideal types): charismatic, traditional, and rational (bureaucratic, legal). But the narratives of the first two types differ almost exclusively from the rational type, whose rationality is evident to Weber and his readers on the basis of their own knowledge of human goods (fundamental aspects of human well-being) and related practical truths. See Finnis 1985, pp. 170-72. Natural law theory, as already practiced in Aristotle`s ethics and politics, makes these theorist assessments open and explicit (unhidden and embarrassing) and subjects them to rational examination and debate.
Wouldn`t it be better to say: no philosopher of law should or should be a legal positivist? For the dependence of law on social facts is fully recognized and taken into account in the legal theories of natural law. And this is not a „concession“ on the part of natural law theorists, for their main positions were clearly articulated by Thomas Aquinas, several centuries before legal positivism emerged with its questioning of the theory of natural law. Positivist critiques of natural law theory, if not based on skepticism about the possibility of moral judgments, a skepticism implicitly disavowed in the above passage, are based on misunderstandings of passages in the works of natural law theorists. On these misunderstandings, see Finnis 1980, 23-55; Soper 1992. This thesis falls into the parts of legal theory that are accepted by contemporary but little studied legal positivists. It was ignored and even denied by earlier forms of legal positivism that were more ambitious to cover the entire philosophy of law, for example Kelsens. Kelsen denied that individuals are known to the law or to an appropriate legal theory or jurisprudence unless they are subject to an established rule of law. But against this limitation, which has misled some courts that have treated Kelsenian jurisprudence as a guide for legal argumentation, it can be said (Finnis 2000) that the fundamental equality and dignity of man should be defended within the framework of a rational understanding (concept) of the law.
This defense requires considering the difference between capacities that are activated here and now, or that are more or less willing to be exercised in this way, and radical capacities, such as those present in the epigenetic origins of the very young and in the genetic and somatic makeup even of severely disabled people. Although such a report makes it possible to defend the fundamental equality of man and thus a humanist theory of law, it is not a question of privileging a biological species as such, but of affirming the legal significance of the status of persons – substances of a rational nature – as intrinsically holders (subjects) of rights of another type and more respectable and definitive than rights. which often are. as technical means legally attributed to animals, idols, ships or other objects subject to legal proceedings.
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