Justnaturalisme

[Sabato]

Exemple de philosophe refusant, ou plutôt ne se voyant pas attribuer le monopole de la morale au jusnaturalisme ; texte sur le fondement des droits de l'homme (warning, 'lu qu'en partie) :

http://www.tannerlectures.utah.edu/lectures/muguerza89.pdf

… my major disagreement with Pérez Luño’s definition [des droits de l'homme] has

to do with the general meaning he attributes to it. In his opinion,

“the proposed definition is intended to unite the two main dimen-

sions of the general notion of human rights, that is, the jusnatu-

ralist requirement as to their grounding and the techniques of its

positive support in law and protection that assure their enjoy-

ment.”6 Of course, Pérez Luño has every right, natural or not, to

extract jusnaturalist implications from his definition, but not all

of us who accept his definition can be expected to accept the

burden of those implications.

From his definition it follows - or, more exactly, it is under-

stood - that the demands of human dignity, liberty, and equality

alluded to are prior to the process of positive support in law and

that the reason why they ought to be legally recognized provides

the grounding for the rights in question. But is that all? Jusnatu-

ralism, as we will see, is nowhere in view, or at least not unless

one acknowledges beforehand - as a jusnaturalist would un-

doubtedly be inclined to do -that the fact that those demands

are prior to the process of legal recognition makes them natural

rights.

To me such a presupposition seems gratuitous. But before

taking up this point, I want to deal with another, less important,

one. That is, the presupposition that values such as dignity,

liberty, or equality are the exclusive patrimony of the jusnaturalist

tradition.

To concentrate for the moment on the first of these, who would

assert that the jusnaturalist tradition and the tradition of human

rights are coextensive? Pérez Luño adduces the case of Samuel

Pufendorf, whose system of human rights indeed rests on the idea

of the dignitus of man.7 And there is no doubt about Pufendorf’s

representing an important stage in the history of modern natural

law. But, on the other hand, it is not as clear that we can discern

the same jusnaturalist filiation in the Kantian notion of Würde,

nor in Kant’s philosophy of law.

….

In my view, Pérez Luño has too generous a notion of jusnatu-

ralism, which leads him to swell unnecessarily the number of its

adepts…