Natural Law – Page 2 – Ius & Iustitium

Jurisprudence as a Subaltern Science

September 7, 2020February 16, 2021 Rafael de Arízaga2 Comments

Part of revitalizing the classical legal tradition, as Ius & Iustitium proposes to do, is recovering the classical conception of the science of law, traditionally named Jurisprudence, which was defined by the Roman jurist Ulpian as “divinarum atque humanarum rerum notitia, iusti atque iniusti scientia” (“the awareness of divine and human affairs, the science of what is just and what is unjust”) (Digest I, I, 10, § 2). The part of the classical view that we want to focus on here is the idea that Jurisprudence is a subaltern science, that is, a science epistemologically ordered to other, higher sciences.

This subalternation explains how, on the classical conception, the law is structurally arrayed at the service of metaphysically and theologically rich conceptions of the common good. We may dispense with the vulgar notion that political or judicial mandarins must “put” an otherwise neutral tool called “law” at the service of some external end of their choosing, which may or may not happen to coincide with our own preferences. The truth is that the law, properly understood, is formally ordered to an objective end, the common good, by virtue of its own rational nature. Thus, in order to be epistemologically consistent, classical Jurisprudence understands itself to be intrinsically ordered to the higher sciences that study that objective end.

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Lecturas introductorias de Derecho Natural, Derecho Romano, Derecho Canónico e Historia del Derecho

August 19, 2020October 8, 2020 Rafael de Arízaga

En Ius & Iustitium hemos preparado una lista de lecturas introductorias sobre Derecho Natural, Derecho Romano, Derecho Canónico e Historia del Derecho. En muchas facultades de Derecho —en el mundo hispánico y fuera de él— se ha ido desatendiendo poco a poco el estudio de estas materias, relegándolas a veces a asignaturas optativas o resumidas. En los Estados Unidos, lo más probable es que un alumno termine su formación jurídica sin haberse encontrado nunca con estas materias. Como dijera Álvaro d’Ors, las facultades de Derecho han pasado de formar “letrados” a graduar meros “gestores,” pues son estas materias fundamentales, enseñadas tradicionalmente en el primer curso de la carrera, la raíz de la formación de los letrados, de los juristas. La reputación que tienen de ser disciplinas arcanas y de poca utilidad solo se entiende desde la perspectiva del energético y superficial gestor.

Nos hemos enfocado aquí en obras secundarias de carácter propedéutico que puedan servir de entrada para el jurista (o estudiante de Derecho) que no ha estudiado estas materias a profundidad. No incluimos aquí una lista de fuentes primarias, que abordaremos en una entrada posterior. Aunque la lista está destinada a juristas, estas obras también pueden ser leídas con provecho por personas legas interesadas en la Jurisprudencia clásica.

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DACA and Leadership

July 21, 2020July 21, 2020 Pat Smith

In Department of Homeland Security v. Regents of the University of California, 591 U.S. ____ (2020), Chief Justice John Roberts struck down the actions of the Department of Homeland Security revoking the prior administrative actions popularly known as “DACA” (“Deferred Action for Childhood Arrivals”). The DACA program, established in 2012 and expanded in 2014, allows individuals who came to the United States illegally as children to defer their deportation and, having done so, regularize their immigration status. The program came to include access to benefits. Shortly after President Trump took office in 2017, the Department of Homeland Security rescinded its DACA orders. The Supreme Court struck down these rescissions, not as exceeding the government’s power, but as failing to comply perfectly with the Administrative Procedure Act.

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Against Judicial Dyarchy

July 16, 2020July 17, 2020 admin

Ius & Iustitium is happy to present this guest post by Jamie McGowan. Jamie McGowan is a postgraduate researcher in Constitutional Law at the University of Glasgow.

The recent debate about originalism in the US has triggered a lot of conversation about judicial deference. Adrian Vermeule recently clarified that the position of common good constitutionalism is that legislators of every kind ought to consider the common good and natural law when making legislative decisions. He rightly noted, however, that a very different question arises concerning the “institutional allocation” of that legislative power. Given the recent Bostock decision in the US, the question that inevitably enters the conservative legal debate is whether it is wise to allocate so much legislative power in the judiciary. In civil law countries, the judiciary deals mostly in the particularia of individual cases, determining moral right in its context, without establishing legal precedent. In most modern common law countries, however, an incredible amount of binding legislative power is bestowed upon judges, to the extent that the judiciary becomes a sort of supra-legislature. In classical legal theory, where law carries a telos of upholding the common good, the pertinent question is whether this judicial supremacy is friend or foe to the primacy of the common good and, by implication, the natural law.

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The Significance of Roman Law for the Development of European Law

June 28, 2020June 29, 2020 Wolfgang Waldstein1 Comment

by Wolfgang Waldstein[1]

The Roman jurists, quite matter-of-factly, recognized natural law to be an inherent normative order for mankind, recognizable through reason and, thus, applied it in concrete decisions. With this work, the Roman jurists developed a concrete knowledge regarding the practice of natural law, thereby making it a historic reality. Over time, the deviations from natural law, which existed in the old Roman law, were perceived more and more as being unjust. Through countless individual decisions, these were corrected by the Roman jurists, in order to be able to arrive at just decisions. This work by the Roman jurists was conducted over a time period of nearly 500 years, from the 2nd century BC to the 3rd century AD. As was mentioned in the introduction, the results of this work were published in the year 533 AD by Emperor Justinian as one of his codes of law, in a work known as the Digest. The rediscovery of this work in the Middle Ages and the study of it at the original academy of the artes in Bologna, resulted in this school’s becoming the very first university in Europe. This university then influenced the entire further development of legal culture in Europe. Upon this foundation, the “natural law codes ”, the General Prussian state law of 1794 (AL), the Napoleonic Code of 1804, and the 1811 Civil Code of Austria (ABGB) were created. Based on this, the ABGB, even today, can say in § 16: “Every person has innate rights, already intelligible through reason.”

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