Minimalist natural law: A study of the natural law theories of H. L. A. Hart, John Finnis, and Lon Fuller.

摘要

This dissertation identifies H. L. A. Hart's express rejection of unified teleology and natural theology (in The Concept of Law, 1961) as the critical formal element in natural law minimalism. It then considers the relation between Hart's conclusions and those to which other Anglophone natural law theorists are impelled by their rejection of unified teleology and natural theology within natural law doctrine. Examining the natural law theories of John Finnis (Natural Law and Natural Rights, 1980) and Lon Fuller (The Morality of Law, 1964) it develops a typology and etiology of minimalism in natural law theory that is predicated on the reasons behind the particular species of minimalism and the core content of nature that the given species is ordered to explicate and preserve.; The dissertation analyzes the relation between formal minimalism (rejection of the constitutive role of unified teleology and natural theology in understanding natural law) and material minimalism or maximalism (the more or less expansive treatment of the human good). It also differentiates three pure species of minimalism in natural law theory. These are the survivalist (as in Hart's theory), the autonomist (stressing the independence of practical reason from speculative reason as e.g. Finnis), and proceduralist (identifying subordinate teleologies in social and institutional life prescinding from moral and cosmic order, as e.g. Lon Fuller's "morality of law"). Each of these three approaches is insufficient for explicating legal and moral order. Since these theories reject unified teleology they cannot avoid dichotomizing the legal and moral orders and falsifying the nature of the common good. Nor can they explicate the character of natural order precisely as lex. Yet because proceduralist minimalism cognizes subordinate telic order, it alone of the three may be reintegrated within a synthetic doctrine of natural law. Proceduralist study in precision from the wider natural order may thus augment genuine natural law doctrine through its consideration of subordinate telic realms. But these subordinate realms must not be construed as sufficient of themselves to ground natural law theory.