Edgar Bodenheimer emprende una revisión crítica de los principales conceptos del derecho, su filosofía y su historia, poniendo especial atención en aquellos. Descargar Teoría del derecho Edgar Bodenheimer ebook online, Edgar If you are areader who likes to download teoría del derecho Pdf to any kind of device. Urgido por la alarmante avanzada del irracionalismo y provisto de un profundo conocimiento del Derecho y la filosofía política, Edgar Bodenheimer emprende.
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Natural law theorists tend to present the objectivity and absolute value of natural law as a matter of course. However, as soon as we cast the cold eye of reason on them, such alleged properties of natural law look deeply controversial.
In fact, both commit their supporters to ontological dualism. As we shall see in a moment, the former purports to deny ontological dualism any scientific plausibility by appealing to its historical origins in human societies and cultures.
The latter purports to explain the ever-lasting success of ontological dualism by appealing to human psychology: in particular, to two typical drives of the human mind. Where does ontological dualism come from? Like any human construct, it cannot be but the output of human thinking.
Which sort of thinking? From the standpoint of scientific-critical thinking, however, nature is a chaos of facts perceived and perceivable by our senses, and ordered by reason by means of the principle of causality and other principles of scientific inquiry. It must be a different kind of nature. Now, Kelsen claims, the idea of a norm-giving, norm-containing nature has its most ancient origin in primitive thinking.
Primitive men see the whole natural environment surrounding their villages trees, woods, sources, lakes, hills, wild animals, stars, etc. Primitive animism is the cradle of the idea that there are objective norms for human behavior, and, consequently, the cradle of ontological dualism of norms and values. Primitive thought has been gradually replaced, almost everywhere by now, by more sophisticated forms of religious thought, up to the great monotheistic religions.
Why generations of philosophers and people at large did endorse, and do keep endorsing, ontological dualism concerning norms and values? Why are they so watertight to the argument from strangeness and the genealogical argument?
Kelsen suggests that this is so not because ontological dualism is a true scientific claim, critical empiricism notwithstanding. Rather, this is so because ontological dualism, as suggested by the genealogical argument, is no scientific claim at all. It belongs to the realm of practice. It is an ideological device, whose grip on the said generations of philosophers and people at large may be explained by the interplay of two typical drives in the human mind.
Practical convenience would be, accordingly, the ultimate motive behind the persistence of ontological dualism of norms and values among humans. Some natural law theorists try, so to speak, to severe the destiny of natural law — or rather, of the peculiar natural law they argue for — from the destiny of theism the belief in a transcendent deity : they tend to deny any necessary connection between natural law, on the one hand, and any theological foundation thereof, on the other.
This is so, Kelsen suggests, for they wish to make the case for natural law stronger, by showing that natural law does not need a foundation of theological kind, which is philosophically controversial. Unfortunately, Kelsen claims, such a separation of natural law theory from a religious foundation is not possible.
The argument from the necessity of theism is quite complex. Kelsen brings to bear on it the key tenets of his empiricist Weltanschauung and theory of norms. In a nutshell, it may be recounted as follows. Natural law is a normative order whose norms are not man-made.
Natural law norms, by hypothesis, cannot be the meaning-contents of human acts of will. Consequently, they must be the meaning-contents of acts of will of some non-human willing entity. Unless we are primitive animists, believing in the souls and spirits of trees, rivers, mountains, etc. According to Kelsen, there are at least four good reasons to get rid of the idea that there exists a natural law as an objective normative order, endowed with absolute value.
First, it is a strange hypothesis from a strictly rational-scientific standpoint. Second, it originates from the animistic confusion between society and nature, which is typical of primitive thinking.
Third, it belongs to the realm of practice and ideologies, where it fits two typical drives of the human mind, converging on the convenience of postulating an objective order for human conduct. Absolute validity depends, as we have seen, on absolute value. Absolute value depends in turn on the existence of the objective order of natural law norms. In so doing, NLT shows a primitive, culturally under-developed, cast of mind, for the confusion between normative and causal connections, between society and nature, it typical of primitive thinking.
A natural law made of such statements about necessary human behaviors would be no law, no normative order, at all: it could not fulfill the normative function natural law theorists usually do ascribe to it.
According to Kelsen, it is a problem NLT must cope with; but, unfortunately, it cannot do so without giving up the ontological claim of natural law as a normative order distinct and independent from positive law.
This as we may call argument from the necessity of positivization runs, roughly, as follows. Natural law, like any normative order, must contain general norms even the purest of dynamic systems must contain one general norm empowering its supreme norm-making authority, like, e.
NLT usually overlooks this problem, tacitly regarding natural law general norms as self-applying: as applying to individual cases by means of pure acts of cognition on the part of their addressees. Only relatively few men are wise and good for the task of applying natural law general norms.
Accordingly, in order to make the natural law order viable, these men must be entrusted with the application of natural law general norms in forms and ways that are universally binding.
This move, however, is tantamount to transforming these wise and good men into as many applying organs of natural law norms; furthermore, in order to make their judgments effective, some form of coercion must be provided for. This means, however, that natural law must become positive law: to be a viable normative order, it must undergo a process of positivization.
It points, however, to a capital technical problem for NLT. And if it may be shown that it cannot work in the form of a purely objective, self-applying, normative order, the whole NLT enterprise appears to promise more than it can maintain.
Its overall directive value appears illusory: consisting, at most, in pointing out a set of very abstract principles to be developed authoritatively by a selected set of wise and good interpreters, expositors and appliers. In fact, Kelsen is aware that natural law theorists usually maintain natural law does require the existence of positive legal orders.
The scientificity claim is parasitic upon the epistemological claim: it stands, or falls, as a consequence of the soundness or unsoundness of the latter; indeed, if men cannot know natural law, natural law theorists cannot act as its scientific expositors.
No one can be regarded, in other words, as a genuine method of scientific inquiry. Three main arguments are deployed here: 1 the logical fallacy argument, 2 the no self-evidence argument, 3 the argument from the self-contradiction of practical reason.
Now, taken at face value, such a claim cannot be accepted from the standpoint of rational-scientific philosophy, for it is logically flawed. The claim tacitly assumes nature to be a set of facts. Such an inference is possible if, but only if, some norm is being presupposed: like, e. The process of knowledge would be, rather, one of interpreting the transcendent will that, by hypothesis, has created nature and natural law norms, as suggested by the argument from the necessity of theism.
The logical fallacy argument seems, accordingly, to point to a serious methodological failure of NLT, whichever way one understands the key notion of nature. NLT also claims natural law norms, or, at least, its supreme principles, to be self-evident evidently existing, evidently valid, in and by themselves. All men would be able to grasp them by means of their rational understanding. The history of NLT, however, shows that a plurality of different, often incompatible, natural law norms have appeared as self-evident to different natural law theorists for instance, concerning equality, slavery, private property, autocratic government, social welfare, etc.
Accordingly, from a strictly scientific standpoint, one must conclude that self-evidence fails as a reliable, objective, test for telling true from false natural law norms. Indeed, they cannot provide any guidance whatsoever to human actions, unless and until they are duly interpreted, specified, concretized, individualized, and coordinated.
Unfortunately, as to the way of performing such necessary operations, NLT does not provide any reliable, scientific method. Sometimes, NLT supports the epistemological claim by appealing to practical reason. From the perspective of rational-scientific philosophy, however, knowledge by practical reason must be rejected as unreliable.
Indeed, the very idea of a practical reason, of a reason that simultaneously knows the good and wants it to be done, is self-contradictory. From a scientific standpoint, knowing and willing are two separate, though empirically related, faculties.
Any claim about their ontological combination in one and the same faculty is to be rejected as unscientific: only metaphysical arguments and acts of faith can support it. In so doing, it is a critique of the scientificity claim since it suggests that natural law theorists are in fact unable to do what they claim to be doing.
Taking stock of the critique of the epistemological claim, this one is directly addressed to the scientificity claim and completes it, so to speak, by suggesting that natural law theorists do in fact perform a different, and indeed heterogeneous, task from what they claim to be performing.
In short, they are participating in an ideological enterprise, consisting in doing normative, subjectively value-laden, moral, political and legal philosophy, under the pretense of scientific exposition of an objective order of human affairs. You can easily adjust the resistance of the band for each exercise by placing your hands farther apart or closer together. Featuring two adjustable step heights, the Weider Adjustable Step Deck delivers progressive training in the comfort of your home.
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