Be that as it may, the conceptual analysis of law remains an important, albeit controversial, project in contemporary legal theory. Conceptual legal theories have traditionally been characterized by their attitude to the overlap thesis. Therefore, conceptual legal theories have traditionally been divided into two main categories: those such as the theory of natural law, which confirms that there is a conceptual relationship between law and morality, and those such as legal positivism, which deny such a relationship. If Aquinas` point of view is paradigmatic for the position of natural law, and these two theses – that from God`s point of view it is the law through its place in the scheme of Divine Providence, and from the point of view of man represents a set of naturally binding and recognizable commandments of practical reason – the fundamental characteristics of natural law are, As Aquinas understands, it follows that the paradigmatic theory of natural law is incompatible with several points of view in metaphysics and moral philosophy. On the metaphysical side, it is clear that the vision of natural law is incompatible with atheism: one cannot have a theory of divine providence without a divine being. It is also clear that the paradigmatic view of natural law excludes a deism in which there is a divine being, but that divine being has no interest in human affairs. Nor can one be agnostic while affirming the paradigmatic view of natural law: for agnosticism is the refusal to engage in the existence or non-existence of God, while the paradigmatic view of natural law implies a commitment to the existence of God. On the side of moral philosophy, it is clear that the vision of natural law is incompatible with a nihilism about value, that is, the rejection of the existence of values. It is also incompatible with relativistic and conventionalist views, where the status of value is completely relative to one`s own community or entirely determined by conventions. It is also incompatible with a global skepticism about value, because the view of natural law requires the assumption that certain claims to the property are in fact recognizable to all, even recognizable to all.
Dworkin believes that his theory of judicial obligation is a consequence of what he calls the rights thesis, according to which court decisions always apply pre-existing rights: “Even if no fixed rule decides the case, a party may still have the right to win. It remains the duty of the judge, even in difficult cases, to know the rights of the parties and not to invent new rights retroactively” (Dworkin 1977, p. 81). It may be true that through the virtue approach, we can learn some general rules of natural law. What is more interesting is whether an advocate of the virtue approach would be right to reject the claims of the master rule or methodological approaches. (After all, one might learn that lying is wrong, either by moral arguments or by the clever insight of practical wisdom.) And it does not seem that the defender of the master rule or the approach of the method should be particularly careful to discredit the approach of virtue. For if the defenders of the master rule or methodological approach recognize the existence of a capacity for judgment such as practical wisdom, then it would be strange to allow it to be exercised correctly on a number of special occasions, while denying that we can learn general rules by observing the patterns of their exercise on various occasions. 54We might ask ourselves why “natural” is important? We can think of things that are not “natural” but are perfectly acceptable, and things that are natural, that are not. For example, wearing clothes, taking medication, and piercing are certainly not natural, but we wouldn`t want to say that such things are morally wrong.
When a child screams in tears, “It`s not fair [that].” Or when we watch a documentary about the suffering of war, we feel pain because we remember the horrors of human evil. And in doing so, we also provide evidence for the existence of natural law. A well-accepted example of natural law in our society is that it is wrong for one person to kill another person. There are, of course, reasons to worry about these two ways of knowing the basic goods – worries that go beyond general skeptical doubts about how we might even know normative truths. Derivationists must explain how we determine what counts as an update of human power and explain how we relate it to human goods through bridging principles. Inclinationists have their own problems. In particular, they have to deal with the fact that, even if they are not concerned with deriving goods from inclinations or identifying goods precisely with what we tend to pursue, they start from human direction. And it has been rightly pointed out that human frankness is not always a beautiful thing. Power and prestige seem to be a matter of human direction – at least as much as, say, aesthetic enjoyment and speculative knowledge – but they do not appear in the natural law theorist`s catalogue of commodities (although they seem to be part of the good in the image of Aristotle; cf. discussion in Hare 2001, p. 14). Although these difficulties remain for inclination-oriented and inferential relationships on the knowledge of basic goods, they can certainly be mitigated if both relationships are confirmed: one might be able to use inclination-oriented knowledge to create a basis for bringing together the principles between knowledge of human nature and knowledge of human goods, and one might be able to: Use the derived knowledge to modify, in a non-ad hoc manner, the offensive elements of the report that could be given if one proceeds only on an inclination-oriented basis.
(Reconciling inclination and derivation approaches is a theme in Murphy 2001 and Wall 2010.) Ronald Dworkin`s so-called third legal theory can be better understood as a response to legal positivism, which essentially consists of three theoretical obligations: the thesis of the social fact, the thesis of conventionality and the thesis of separability. The social fact thesis asserts that it is a necessary truth that legal validity is ultimately a function of certain types of social facts; The idea here is that what ultimately explains the validity of a law is the existence of certain social facts, especially the formal promulgation by a legislator. Aquinas says that the basic principle of natural law is that good must be done and evil must be avoided (ST IaIIae 94:2). It is, one might say, a principle of comprehensibility of action (cf. Grey out 1965): Only actions that can be understood as corresponding to this principle, as they are carried out under the idea that good must be sought and evil must be avoided, can be understood as an understandable action. But no one can simply strive to act for the good – you have to pursue a certain good.