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Justice and Reinach

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David Koepsell

on 20 May 2016

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Transcript of Justice and Reinach

Finally
As DuBois notes, Reinach smashes the positivists,
but does not align completely with typical, Natural Law theory. Groundedness, validity, and essential law offer a basis for oughtness in enactments, but not necessarily a means for opposing certain positive enactments that "deviate" from apriori law where those deviations may be "well suited" to the "concrete details of a given society" DuBois, p. 340

Does Justice require recognizing "necessary
states of affairs, grounded in the
essences of legal entities?"
The "problem" of justice
Validity as a link to Justice
in Reinach's Apriori Foundations of the Civil Law

What is the connection between law and morality? How can we discern when a law or legal system is just?
Reinach's Apriori Foundations
Reinach's work is arguably a broadside against positivism, and serves as the foundation for a phenomenology of Justice.
Positivism/Natural Law
A NEW Natural law theory?
Essential Law
Reinach claims that certain things, such as claim and obligation, arise as a matter of "essential law" and the positive law can do nothing to change this.
Validity
A link to morality
Since Plato and Aristotle, philosophers have at various times attempted to formulate various theories of Justice. A theory of justice should provide a basis for judgment of the relations between laws and morality, and provide a groundwork for creating good law.
Alternatives in modern debate:
Social Contract
"Natural" law
Legal positivism
"essential" law
"validity"
We'll examine this hypothesis in light of
his discussion of:
Then consider his critiques of positivism and natural law theory
"The obligation is grounded in the nature of promising as an act and not in its content; the immorality of the content can, therefore, in no way touch this essential law. And further, the moral rightness of fulfilling and also the moral duty of fulfilling is grounded in the essence of obligation and not in its content" Apriori Foundations, p. 45
"We can, therefore, not speak of a real contradiction between our essential laws and the propositions of the positive law. If the positive law allows the assignment of a claim, it does not assert that through the act of transferring, the claim changes its bearer and at the same time the obligation changes the person whom it faces - that would of course be a contradiction of an evident essential law - it rather enacts that wherever the act of transferring takes place, this effect should come about." Ibid., p 104
"Just as the absence of legal protection does not deprive a claim of its character as claim, so this absence does not deprive a right over a thing of its character as right over a thing. What we have here is a natural right over a thing {naturales Sachenrecht} We distinguish here as strictly as possible the following things: the rights which derive according to essential law from certain social acts but which are neither recognized nor protected by the positive law; the rights which are recog- nized and protected by the positive law; and finally the rights which are indeed recognized by the positive law but not protected by it." Ibid., p. 122
"There are norms which are grounded in the moral rightness of states of affairs. Because something is morally right, it ought to be, and if certain further conditions are fulfilled, I ought to do it. This oughtness of being and of doing exists by its nature in itself and apart from the knowing or the positing of any consciousness. An enactment, by contrast, necessarily presupposes a person who issues it. Of course even an enactment can have its "ground" in the rightness of states of affairs. But "ground" does not mean here that from which the objective ought-to-be derives; it rather designates the motive which moves a person to make an enactment" p. 105
"But it would be a very superficial and thoughtless objection If one were to question the validity of self-evident essential relations on the basis of such positive enactments." p. 31
"We have still to speak about the necessary presuppositions of such "validity." Here we will just show different possibilities of efficacy, and we will do this with reference to different possible contents of enactments.

We encounter among enactments all the differences which are grounded in the essence of social acts in general. *** Every enactment as such aims at the realization of that which it posits as something which ought to be. Thus the content of an enactment can never meaningfully be something which is apriori necessary or apriori impossible." p. 108
"We speak of an enactment being "grounded" when that which it posits, objectively ought to be; we speak of its "efficacy" or "validity" when the posited content has that characteristic objective oughtness ... which is restricted to the persons to whom the enactment is addressed and which is constituted exclusively among them." p. 114
"It is above all in two points that natural law theory is supposed to have failed: in the treatment of the positive law, and in the attempt to formulate law which is not formal but has content, and which is nevertheless unconditionally and generally valid. The apriori theory of right cannot be charged with either of these. Its distinctive character lies precisely in the fact that it is independent from all law, from the law which is "in force" not less than from some "valid" law, or one which is thought of as valid." p. 134
"Although that which holds apriori is at the same time prima facie some- thing which ought to be, the philosophy of right or valid law considers the apriori laws in the context of the concrete community in which they are realized and in which their ought-character can undergo very various modifications. Insofar as the apriori theory of right, therefore, does not even concern itself with the problems which have been brought up by natural law philosophy, it cannot be accused of the failings of this philosophy." p. 136
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