Koncepcje „natury rzeczy” w zachodnioniemieckiej filozofii prawa

CONCEPTIONS OF “THE NATURE OF THINGS” IN WEST GERMAN PHILOSOPHY OF LAW

The article contains a critical analysis of two conceptions of “the nature of things”, as found in publications of West German philosophers of law: G. Radbruch and W. Maihoffer. In the first stage of the evolution of his thought Radbruch spoke of the “influence of the matter on the legal idea”. The function of “the nature of things” is identified by Radbruch with resistance by social reality to the implantation of the legal idea. In the next stage of his views Radbruch conceives of the nature of things as an objective sense of a certain social relationship, perceived from the point of view of a certain value. Now the nature of things serves as a bridge between the real world and the world of values. The nature of things has a minor role according to Radbruch, in legal thought. He emphatically opposes recognizing it as a source of law.

The conception offered by Maihoffer breaks away from legal positivism, it is rested on the premises of existential philosophy which lead the author to say that every social role produces a number of objectively „reasonable” expectations which are a yardstick to be applied when other people’s acts affect us. Objectivity of the expectations is founded on the golden rule and Kant’s imperative. They are the fundamental principles of every “genuine order”. These expectations generate certain natural norms of behaviour that are prior to legislated norms. The legislated norms bind citizens only in so far as they coincide with the natural norms regulating social behaviour.

The article refutes both these conception as well as the function ascribed to “the nature of thing” in legal thought. The concept of “the nature of things” is needless, claims the author.

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