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13 Law & Phil. 1 (1994)

handle is hein.journals/lwphil13 and id is 1 raw text is: OTA WEINBERGER

In this paper I deal with the question of why it is that members of our
society everywhere and repeatedly ask and discuss questions of justice.
What are the anthropological characteristics or the institutional facts
that enable man - or even impel him - to reflect about justice and to
demand it? What structures or immanent preconditions of our minds
induce us to strive for justice and to insist on it?
To interpret my way of addressing the problem as a search for the
foundations of a theory of natural law would be to misunderstand my
approach. My intentions in writing this paper have nothing to do with
natural law. A brief digression into an analysis of the tenets of natural
law will allow me to prove this point.
The definition of the tenets of natural law is disputed, so is the
question what exactly could be said to be the central concern of the
representatives of natural law.
Hans Kelsen believes that all doctrines of natural law are, in fact,
based on the premises of a religious faith.1 It is undoubtedly true that
most religiously based legal scholars have a leaning toward natural law,
believing, as they do, that the creator defines not only what is, the
material world, but that God rather than human attitudes and deci-
sions determines that which ought to be good and evil. Standards
of justice and definitions of good and evil are posited for the religious
thinker - not, though, creative acts and decisions undertaken by man.
Conceptions of a more or less positivist nature are, nevertheless, to be
found even among religious legal philosophers.
' H. Kelsen, Allgemeine Theorie der Normen, ed. by K. Ringhofer (Vienna: Manz,
1979), pp. 4-5.

Law and Philosophy 13: 1-25, 1994.
© 1994 KluwerAcademic Publishers. Printed in the Netherlands.

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