Ovaj rad rekonstruise Modernu prateci njena dva najvaznija pravca filozofije prava: pravni naturalizam i idealizam.

In the debate on the origin of modern natural rights, the French philosopher Michel Villey became famous for his counter current theses: that the origin of modern subjective rights was a “deformation” or “degeneration” of the ancient and medieval concept of law; that those responsible for this rupture were Ockham and his nominalist disciples, as well as the Scholastics of Salamanca; that these last ones betrayed the thought of Aquinas on the right adhering to the nominalist. These theses serve the (...) purpose of justifying Villey’s radical opposition to the subjective foundations of modern human rights. The reply of the historian of medieval law, the Englishman Brian Tierney, is that Villey’s conception of ancient and medieval law is too restricted; that already in Roman law there was a notion of subjective rights; that the origin of modern subjective rights does not depend only on Ockham’s nominalism, but was already present in the medieval canonists; that the scholastics of Salamanca did not betray the Thomist thought, but they brought it up to the challenges of the new times; and that the idea of ​​subjective natural rights does not depend on a particular ideology, but is compatible with different ideologies and worldviews. In revisiting this debate, our main interest concerns the conclusions that Villey draws from the entire long historical trajectory he has studied, and the criticism that Tierney makes of his radical opposition to human rights. Finally the debate gives rise to some more general considerations about the history of concepts and the distinction between the historical genesis of the ideas and their validity. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Verum-factum and Practical Wisdom in the Early Writings of Giambattista VicoRobert C. MinerAs several contemporary writers have noted, Giambattista Vico defends the idea of practical knowledge, a type of knowledge that cannot be fully expressed by propositions and defies reductions to method. 1 The defense of practical knowledge, against Descartes and the rise of objectifying science, is most clearly articulated in a group of Vico’s early writings: the oration (...) De nostri temporis studiorum ratione (1709), the metaphysical book De antiquissima Italorum sapientia ex linguae latinae originibus eruenda (1710), and two rejoinders (Prima and Seconda risposte) to critics of the De antiquissima. In these texts Vico criticizes Cartesian method in terms that remind us of Aristotle, or at least the Aristotle of the Nicomachean Ethics and Politics. “If you were to import the geometrical method into practical life, you would do no more than exhaust yourself in becoming a rational lunatic” (A 7.5). 2This comment and many others like it seem to suggest that Vico is an “Aristotelian,” but any simple classification is problematic. In the same text in which Vico defends the Aristotelian topos he also announces that “the true and the made are convertible” (verum et factum convertuntur). The emphasis on the [End Page 53] role of “making” in truth seems incompatible with the Aristotelian idea of phronesis, whose knowledge is associated with praxis and cannot be reduced to techne. It would be simpler if Vico distinguished between a realm in which the verum-factum principle applied and one in which prudentia was supreme. However, Vico not only situates mathematics and experimental science within the metaphysical framework governed by verum-factum, but also implies strong connections between making and ethics. The prominence Vico assigns to making in all areas of human endeavor gives him a distinctly modern appearance in the fashion of Bacon, Galileo, and Hobbes.This gives rise to both hermeneutical and philosophical problems. Is Vico simply hesitating between the old and new? Does he coherently balance an Aristotelian perspective with the “modern” emphasis on artifice? 3 Perhaps Vico is caught in the middle of the querelle des anciens et modernes, somewhat like John Dunn’s version of Locke, a “tragic figure” who cannot reconcile his epistemological discoveries with a noninstrumentalist view of practical reason. 4 The purpose of this essay is to provide a sympathetic interpretation of Vico’s early writings on prudentia and its links to both verum-factum and rhetoric.Vico contra Rule-based EthicsThe denial that ethics is well understood as a matter of following or justifying general rules has become a commonplace among contemporary Aris-totelians and Wittgensteinians. 5 Against the Enlightenment ambition to construct a universally valid moral science, recent virtue ethics has emphasized the irreducibly contingent aspects of human life, aspects which resist the clutches of “method.” Although Descartes wrote little about morals directly, his influence can be detected in the ethical writings of Hobbes, Kant, Mill, and Sidgwick. These examples of modern moral philosophy presuppose the correctness of the Cartesian diagnosis of ancient and medieval writing on virtue. In the Discourse on Method Descartes compares previous moral teaching to “the most proud and magnificent palaces built on nothing but sand or mud.” 6 Descartes himself did not provide a rational justification of ethics, but he has had no shortage of successors who have tried to complete his foundational project. Jusnaturalism, Kantian deontology, and utilitarianism, as different as they are from one another, share the desire to ground ethics in principles as universal and certain as [End Page 54] those of mathematics. Each of these variants of post-Cartesian ethics claim to have discovered and justified such a principle or set of principles. Maxims deduced from the principle, if not the principle itself, will arguably enable moral agents to discover the right course of action in a particular situation.Vico did not live to witness the most articulate expressions of a Cartesian approach to ethics, but he did apprehend the shift in focus from prudence to method. In the De nostri temporis studiorum ratione, an oration delivered at the University of Naples in 1708 and published the following year, Vico criticizes approaches that locate... (shrink)

This paper takes as its starting point the particular place of woman in the legal norms since Antiquity, including in sacred texts, especially in the legislation on marriage and adultery. We then present, from De Cive, the Hobbes’ theistic jusnaturalism as an original attempt to found in God and in reason the laws to which women are subjected. But at the moment of his exegesis of verses 5,31-32 of the Gospel of Matthew on repudiation, it seems that his conceptual arsenal (...) wavers : between temporal reign and divine authority, the figure of Jesus threatens the Hobbesian edifice with collapse. We conclude with the idea that it is still positive legislation around women that crystallizes the crucial problems of the anthropology of law and, more generally, of the relationship between the human and the divine. (shrink)

RESUMO É certamente hegemônica na recepção do pensamento político rousseauniano, de seus primeiros momentos à exegese contemporânea, a tese segundo a qual o contrato social seria incompatível com a negação do direito natural. A convicção comum a esses intérpretes, herdada da tradição jusnaturalista moderna, é a de que, na ausência de uma obrigação moral prévia - a lei natural - e, portanto, de uma sanção que confira força vinculante à promessa daqueles que se engajam no ato de contratar, o pacto (...) fundamental não passaria de um formulário vão, cujos termos seus celebrantes dificilmente cumpririam. As teorias contratualistas da origem do corpo político encontrar-se-iam, assim, necessariamente atreladas ao jusnaturalismo. Na contramão desse viés de leitura, pretendemos neste artigo desenvolver e sustentar a hipótese de que o contrato social concebido por Jean-Jacques Rousseau, distinto da forma contratual clássica em aspectos cruciais, dispensa a sanção da lei de natureza. Será o caso, para tanto, de esmiuçar a estrutura sui generis do pacto rousseauniano, revelando, finalmente, de onde emana seu poder coercitivo. ABSTRACT The conception according to which the social contract would not be compatible with the refusal of natural right is widely hegemonic in the reception of the Rousseaunian political thought, from its beginnings to the present day exegesis. The common contention of these interpreters, inherited from the modern jusnaturalistic tradition, is that, in the absence of a previous moral obligation - the natural law - and therefore of a sanction able to procure binding force to the promise of those who engage in the act of contracting, the fundamental pact would be but a vain form, whose terms its celebrants would hardly keep. Thusly, the contratualist theories of the origin of the political body would necessarily find themselves linked to jusnaturalism. As a counterpoint to this interpretative bias, we intend in the present article to develop and sustain the hypothesis that the social contract conceived by Jean-Jacques Rousseau, distinct from the classical contractual form in some crucial aspects, dismisses the sanction from the law of nature. To that end, it will be relevant to unravel the sui generis structure of the Rousseaunian pact, elucidating, lastly, the source of its coercive power. (shrink)

O presente trabalho trata, em linhas gerais, da filosofia do direito de Immanuel Kant (1724- 1804), discutindo seu enquadramento no jusnaturalismo ou no juspositivismo. Para tanto, analisa o contraste entre a fundamentação do direito em Kant, fortemente marcada pela ideia de liberdade como legitimadora do Estado e da ordem jurídica, e sua estrutura, caracterizada pelo formalismo, pelo rigor lógico, pela importância exagerada da coação e pela manutenção da validade da ordenamento mesmo diante de um rompimento com a ideia de justiça (...) que o sustenta (negação do direito de resistência). (shrink)

Pretende-se aqui articular os elementos da crítica de Rousseau à doutirna do direito natural, tal como ela aparece em Hobbes e na tradição jusnaturalista.