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Drawing on Natural Law theory, this volume argues that moral meaning resides in very basic, essential, natural facts about our existence as human beings. The author demonstrates the validity of this belief, its significance for normativity and illustrates how early natural lawyers implicitly suggested a sophisticated and largely successful reason-based solution to Hume's 'is/ought' problem. The work provides a new approach to Natural Law theory which addresses the problematic reliance on 'essential' facts. "A Natural Approach to Normativity" presents an original perspective on new natural law theory and will be of interest to academics in philosophy of law/moral philosophy, natural law theorists, and students of jurisprudence internationally.
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A NATURAL LAW APPROACH TO NORMATIVITY
In Memory of my Grandmother, Margo
A Natural Law Approach to Normativity
BEBHINN DONNELLY Swansea University, UK
© Bebhinn Donnelly 2007 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Bebhinn Donnelly has asserted her right under the Copyright, Designs and Patents Act, 1988, to be identified as the author of this work. Published by Ashgate Publishing Limited Gower House Croft Road Aldershot Hampshire GU11 3HR England
Ashgate Publishing Company Suite 420 101 Cherry Street Burlington, VT 05401-4405 USA
Ashgate website: http://www.ashgate.com British Library Cataloguing in Publication Data Donnelly, Bebhinn A natural law approach to normativity 1. Law and ethics 2. Natural law 3. Normativity (Ethics) I. Title 340.1'12 Library of Congress Cataloging-in-Publication Data Donnelly, Bebhinn. A natural law approach to normativity / by Bebhinn Donnelly. p. cm. Includes bibliographical references and index. ISBN: 978-0-7546-4313-5 1. Natural law. I. Title. K450.D66 2007 340'.112--dc22 2006031600 ISBN: 978-0-7546-4313-5
Printed and bound in Great Britain by MPG Books Ltd, Bodmin, Cornwall.
Contents Acknowledgements
vi
1
Introduction
1
2
Hume and Natural Facts
7
3
Kant and Natural Facts
29
4
Early Natural Law: The Fusion of Fact and Value
46
5
Early Natural Law: Principles of Practical Reason
69
6
New and Traditional Natural Law: Epistemological Comparisons
96
7
Natural Law’s Contribution to Normativity and Law
121
Bibliography
162
Index
165
Acknowledgments I am indebted to colleagues at Swansea University, School of Law and to former colleagues at Birmingham University, School of Law for their support during the preparation of this book. The advice and assistance of Prof Iwan Davies has been particularly valuable. Gratitude is due to Andrew Simmester, Stephen Shute, John Gardner, Andrew Halpin and, particularly, Gordon Woodman for assisting, at various points, with the development of ideas contained herein. Bebhinn Donnelly
Chapter 1
Introduction The Evaluative Viewpoint, External to the Institution of Law Law, whatever else it does, has the effect of regulating human behaviour. It might be hoped that it would at least seek to perform this role well and morally. Certainly those citizens subject to law ought to be free to consider and to reflect upon whether law’s aims are good and whether it meets them prudentially. This process of reflection and evaluation seems important enough to warrant a central role in legal philosophy too. Of course, to evaluate law in this way, legal philosophy requires support in the form of an accomp