|Natural justice: natural justice is an expression for a philosophical or theological justification of legal principles as opposed to a human implementation of law by constitutional, i.e. democratically legitimate, organs. See also right, laws, society, history._____________Annotation: The above characterizations of concepts are neither definitions nor exhausting presentations of problems related to them. Instead, they are intended to give a short introduction to the contributions below. – Lexicon of Arguments. |
|Gadamer I 324
Natural Law/Aristotle/Gadamer: [Aristotle] does not already recognize the true law par excellence in a set law, but sees at least in the so-called consideration of equity a task of supplementing the law. Thus he opposes extreme conventionalism or law positivism by explicitly distinguishing between a natural law and a legal law.(1) The difference he has in mind, however, is not simply that between the immutability of natural law and the mutability of positive law.
Gadamer: It is true that Aristotle was generally understood in this way. But the true depth of his insight is missed. He may well know the idea of an absolutely unchanging law, but he expressly limits this to the gods and declares that among humans not only the law as it is laid down but also natural law is changeable. According to Aristotle such changeability is quite compatible with the fact that it is "natural" law. The meaning of this assertion seems to me to be the following: There is indeed law which is entirely a matter of mere agreement (e.g. a traffic rule such as driving on the right) - but there is also and above all that which does not permit any human agreement, because "the nature of things" defends itself.
Gadamer I 325
[Aristotle gives this example, among others] (...) the best state [is] "everywhere one and the same (...)" and yet not in the way "in which the fire burns everywhere in the same way, here in Greece as there is in Persia".
Gadamer: The later theory of natural law, in spite of Aristotle's clear wording, referred to this passage as if he had thereby compared the immutability of law with the immutability of the laws of nature!(2)
GadamerVsTradtion: The opposite is the case. In truth, as this very comparison shows, the idea of natural law according to Aristotle has only a critical function. One must not make dogmatic use of it, i.e. one must not label certain legal contents as such with the dignity and inviolability of natural law.
Gadamer: [the function of natural law in Aristotle] is a critical one in that only where there is a discrepancy between law and justice is it legitimate to invoke natural law. >Morality/Aristotle, >Self-Knowledge/Aristotle, >Techne/Aristotle.
1. Eth. Nic. E 10. As is well known, the distinction itself is of sophistic origin, but through the Platonic "binding" of the Logos it loses its destructive meaning and through Plato's "Politikos" (294ff) and with Aristotle its positive inner-legal meaning becomes clear.
2. Cf. Melanchthon Ethik, ed. by H. Heineck (Berlin 1893). p. 28._____________Explanation of symbols: Roman numerals indicate the source, arabic numerals indicate the page number. The corresponding books are indicated on the right hand side. ((s)…): Comment by the sender of the contribution. The note [Author1]Vs[Author2] or [Author]Vs[term] is an addition from the Dictionary of Arguments. If a German edition is specified, the page numbers refer to this edition.
Wahrheit und Methode. Grundzüge einer philosophischen Hermeneutik 7. durchgesehene Auflage Tübingen 1960/2010
H. G. Gadamer
The Relevance of the Beautiful, London 1986
Die Aktualität des Schönen: Kunst als Spiel, Symbol und Fest Stuttgart 1977