THE ETHICAL CHARACTER AND THE ETHICAL VALIDITY OF LAW IN THE CONTEXT OF THE NATURAL LAW THEORY


Yildirimer S.

JOURNAL OF ISTANBUL UNIVERSITY LAW FACULTY-HUKUK FAKULTESI MECMUASI, vol.73, no.1, pp.249-258, 2015 (Journal Indexed in ESCI) identifier

  • Publication Type: Article / Article
  • Volume: 73 Issue: 1
  • Publication Date: 2015
  • Title of Journal : JOURNAL OF ISTANBUL UNIVERSITY LAW FACULTY-HUKUK FAKULTESI MECMUASI
  • Page Numbers: pp.249-258

Abstract

The main purpose of the positivist and the normative approaches in law is to separate law from its metaphysical and metajuridical elements. According to Hans Kelsen (1880-1973), one of the founders of Normativism and a NeoKantian, there are two aspects of norm: form and context. For him, the ethical aspect of norm is related to the context. The subject matter of jurisprudence and the jurist, however, is not context, rather it is form. On the other hand, in the natural law theory law has a technical and an ethical aspect. It is for this reason that the analysis of logical consistency of the legal norms immediately follows the analysis of the formal consistency of the legal norms. Yet, it does not mean that every norm which has these two qualities meets the criteria of necessary and sufficient condition. In addition to these qualities, the ethical aspect of norm is taken into consideration as well. As a matter of fact, the ethical aspect of norm in the narrow sense, and the ethical aspect of law in the broad sense have been taken into consideration. Following, the consent of the subject that this moral norm will be applied to is considered. In the light of all these, this paper is concerned with both the moral aspect of law, its ethical character, and acceptance and adoption of law by the community, its ethical validity.