Tracts relating to Popery Laws 1765

Burke, Edmund; McDowell, R. B.; Todd, William B.

doi:10.1093/oseo/instance.00040505

Cited by 2 publications

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“…The sacred and the profane are then made one and span the totality of what is human, so they become totalitarian. That is exactly the idea in Edmund Burke's famous phrase (Burke 1991, 467–8).…”

Section: Illiberal Elements In Bentham's Criminal Law Theorymentioning

confidence: 67%

The Purposes of Legal Punishment

Escamilla-Castillo¹

2010

Ratio Juris

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There is a vast literature on the meanings of legal penalties. However, we lack a theory that explains them according to the formation of the modern state. Oakeshott's theory can help explain this phenomenon, leading to an attempt of the individual to take over as many powers of the state as possible. Thus, Kant's and Smith's retributivism is the most consistent of all those theories. Nevertheless, the preventive and resocializing theory of Bentham succeeded eventually. But is this a liberal theory? We contrast the explanations of H.L.A. Hart and Frederick Rosen in order to lay the groundwork for a liberal theory of the meaning of legal sanctions. Theories of PunishmentAll theories on the purposes of punishment are divided into three parts: One is called the theory of retribution, another is called prevention, while the third is that which the criminal law theoreticians in their language call rehabilitation, and in the organic theory we call punishment.All these theories have had varying fortunes over time as regards their acceptance by the community of legal theorists, that of legal practitioners, and the man in the street. Today, for example, the opinion reigns almost indisputably that punishment should be oriented to rehabilitation of the delinquent and to his social reintegration, whilst the opinion of Enlightened Modernity was that the aim of punishment should be retribution. Moreover, there seems always to have existed an agreement that whatever may have been the theory predominating over the other two, punishment also had to have a preventive purpose, even if not preponderant.To be able to undertake an orderly discussion of the respective merits of these theories and an exposition and evaluation of Jeremy Bentham's point of view on this question, which is the aim of the present work, it is necessary to bear in mind something that is invariably ignored, and that is that the division of the theories on punishment is a heterogeneous division arising from distinct perspectives that differ from one another.The retributive theory establishes that the harm caused by the crime must be compensated by harm suffered by the person responsible for the

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Section: Illiberal Elements In Bentham's Criminal Law Theorymentioning

confidence: 67%

The Purposes of Legal Punishment

Escamilla-Castillo¹

2010

Ratio Juris

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“…As we know that books by such figures were in his library (Burke 1813, 1833), we must also assume that Burke had not read, understood, or absorbed them 9 . Suarez (1548–1617) is justly considered one of the final flowerings of scholastic philosophy; presumably we must consider it insignificant that Burke quotes Suarez approvingly—“It is inherent in the nature and essence of law that it be enacted for the sake of the common good” (1765/1991b, 457)—directly after rooting the normativity of law in the “will of Him who gave us our nature” (1765/1991b, 455). Hansard reports a speech given in the Commons in 1780 by “Mr Burke,” where he “quoted the opinion of Thomas Aquinas, in the twelfth century, against breaking the law of nature .…”

Section: Reading Burke Theologicallymentioning

confidence: 99%

“…Consent does not establish truth; even if a whole community has explicitly approved certain political arrangements, Burke will still appeal to the natural law to resist the legitimacy of the agreement. In his Tracts on the Popery Laws , Burke resists penal laws against Roman Catholics in Ireland, arguing that the authority of law never comes from consent alone. It is not enough that the laws against Catholics have been passed by parliament.…”

Section: Burke and Natural Law Theologymentioning

confidence: 99%

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have no right to make a law prejudicial to the whole community, even though the delinquents in making such an act should be themselves the chief sufferers by it; because it would be made against the principle of a superior law, which it is not in the power of any community, or of the whole race of man, to alter—I mean the will of Him who gave us our nature, and in giving impressed an invariable law upon it [1765/1991b, 455].…”

Section: Burke and Natural Law Theologymentioning

confidence: 99%

“…If this quote was fabricated for the purposes of refuting any suggestion of anti‐realism in Burke, it could not be more beautifully crafted; it is not in the power even of the whole race of man to go against the superior law indelibly written onto the creation by God. And Burke has more to tell us:…”

Section: Burke and Natural Law Theologymentioning

confidence: 99%

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TWO CONCEPTIONS OF LIBERALISM: Theology, Creation, and Politics in the Thought of Immanuel Kant and Edmund Burke¹

Insole

2008

Journal of Religious Ethics

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Constitutional liberal practices are capable of being normatively grounded by a number of different metaphysical positions. Kant provides one such grounding, in terms of the autonomously derived moral law. I argue that the work of Edmund Burke provides a resource for an alternative construal of constitutional liberalism, compatible with, and illumined by, a broadly Thomistic natural law worldview. I contrast Burke's treatment of the relationship between truth and cognition, prudence and rights, with that of his contemporary, Kant. We find that in each case where Kant's system is constructed from the first principle of autonomy, Burke's thought is oriented toward an end that is not of our making. Readings of Burke as a natural law thinker are currently out of fashion among Burke commentators; without relying, for the main thesis, on historical claims about Burke's "Thomism," I nonetheless explore and challenge some of the assumptions that underlie the current orthodoxy.

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Tracts relating to Popery Laws 1765

Cited by 2 publications

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The Purposes of Legal Punishment

The Purposes of Legal Punishment

TWO CONCEPTIONS OF LIBERALISM: Theology, Creation, and Politics in the Thought of Immanuel Kant and Edmund Burke¹

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Tracts relating to Popery Laws 1765

Cited by 2 publications

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The Purposes of Legal Punishment

The Purposes of Legal Punishment

TWO CONCEPTIONS OF LIBERALISM: Theology, Creation, and Politics in the Thought of Immanuel Kant and Edmund Burke1

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TWO CONCEPTIONS OF LIBERALISM: Theology, Creation, and Politics in the Thought of Immanuel Kant and Edmund Burke¹