Der Apriorist - Abstracts 06. Jan. 2011

The Lawful and the Legal

by Frank van Dun

Tags: logic of law, law and rights, natural law, social order, legal positivism
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Frank van Dun. The Lawful and the Legal. Journal des economistes et des études humaines 6.4 (1996): 555-579.


Abstract: This paper presents an etymological approach to the confusing language of law and rights. It attempts to uncover the archetypical situations and relationships that appear to have been the original referents of words such as 'law' and 'rights', 'legal' and 'just', as well as other words that are indispensable in discourses about law and justice: 'freedom', 'equality', 'peace', 'authority', 'society' and others. The concepts of the lawful and the legal can be clearly distinguished. The distinction between them sheds an interesting light, not only on the lawyer's conception of law, but also on the old controversy over natural law. From the analysis there emerges a distinctly liberal conception of social order as well as a a naturalistic, non-normative conception of natural law, with no metaphysical or theological connotations of a "higher law". The elements uncovered by the analysis provide a coherent scheme of law that can serve as the basis for a non-deontic, rights-based logic of law.




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