Claudio Sartea

Some Critical Remarks on Libertarian Natural Law

  • Abstract

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Keywords: Human Nature; Natural Law Paradigm; New Rights; Reason; Emotions.

In contemporary philosophy of law the complex problem of the relation among feeling, the will, and the rule of law has again gained prominence, affecting in significant ways the shifting balance between "polis" and "oikos", between the public and the private sphere (this is exemplified by the recent studies by Martha Nussbaum, among others). Before the problem can be adequately addressed, a correct anthropological framework must be established for the will: Here, this means recovering the classical distinction between "voluntas ut natura" "and voluntas ut ratio". As is known, the first perspective places the will at the level of the instincts and emotions, and can hardly provide a proper foundation for the rule of law (for its pretensions to justice and universality are incompatible with the subjectivity of feelings); the second allows for the rational processing of appetites and subjective claims, putting them to the test of natural law, or, from a Kantian perspective, the test of universalization. This framework helps us to criticize the new libertarian paradigm of natural law, far removed from the classical paradigm.

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