The Goodness of Rights and the Juridical Domain of the Good

Essays in Thomistic Juridical Realism

Petar Popović

• Publisher: EDUSC
• Year: 2021
• eBook ISBN: 9788883339677
• Topic: Theology & Religion
• Subtopic: Christian Canon & Ecclesiastical Law

This collection of essays, most of which are previously published in distinguished scholarly journals, explores the possible or necessary intersecting points between the concept of ius (the juridical phenomenon, in the broadest sense) and the concept of good. These intersections are first researched from the standpoint of Thomistic juridical realism. The author presents how these intersecting points establish the legal-philosophical framework for an analysis of topics such as the goodness of rights, the law's goodness, the juridicity of the common good, and the ecclesial juridical goods.The essays then bring into dialogue the Thomistic focal meaning of the concept of ius—namely, rights understood as rei-centric juridical goods—and other foundational accounts of the essence of the juridical phenomenon presented by scholars in the field of legal philosophy, Catholic social teaching, and canon law.Petar Popovi? was born in Rijeka, Croatia, in 1983. He is a priest of the Diocese of Pore? and Pula in Croatia, ordained in 2015. In 2008 he obtained a master degree in legal studies at the Faculty of Law, University of Rijeka, and in 2019 he successfully completed his doctorate degree at the Faculty of Canon Law, Pontifical University of the Holy Cross in Rome (Italy), where he currently works as an adjunct professor. He teaches and writes in the areas of legal philosophy, foundations of the law and rights in the Church, and deontology of canon law.

Chapter 1


The Focal Meaning
of the Concept of “Ius”

Plural Focal Meanings of Ius and Aquinas’s Concept of the Juridical Good

The term ius, according to its relevant historical and doctrinal instantiations and translations,1 usually denotes a juridical phenomenon of primary, almost paradigmatic significance for jurisprudence and legal culture in general. This term denotes a domain of the human relational reality whose peculiar relevance becomes intelligible from a viewpoint that is specifically juridical. Thus, to understand this viewpoint and this human relational reality—in other words, to understand what it means to say that something, some thing or an aspect of reality, is juridical—it is necessary to comprehend the focal meaning of ius and the constitutive criteria set by this meaning for establishing what things, and how exactly, may be said to be juridical.

Among plural meanings of the term ius, it may be said that at least three denotations have been historically and conceptually identified as the focal meaning of this term. Accordingly, each of these denotations points to a different set of essential constitutive criteria for juridicity, that is, for the viewpoint from which, broadly speaking, a thing or an aspect of reality may be conceptually understood to be juridical.

According to one possible focal meaning, ius may be understood to denote lex, the law—i.e., the social-factual sources that contain instances of human positive law, such as constitutional norms, legal norms of international treaties, state laws in the strict sense of the term, customs, judicial decisions that interpret or create the law, as well as judicial, administrative, or executive acts or decisions that develop or apply the law in a political community, etc. From this viewpoint, juridical would be synonymous with legal; a thing, act, sphere of conduct, or any state of affairs would be relevant for the juridical domain once it is brought into the focus of positive law as its object. In addition, the adjective juridical—denoting the domain of juridicity—would refer only to those objects or realities that are determined precisely as such-and-such by positive legal norms.

Another frequent focal meaning of ius is that of a right understood in a subjective sense, namely, as a domain of faculties and powers over certain aspects of the human relational reality that one person, a beneficiary or a subject somehow in control of this domain, is entitled to with respect to a certain duty or with regard to a more or less determinate behavioral pattern of another person (or a set of other persons, or erga omnes). Sometimes it is thought that this focal meaning of ius is a mere reflection or a simple conceptual transposition of the juridically relevant pre...

Table of contents

• Abbreviations
• A Note from the Author, Acknowledgements, and Credits
• Foreword
• Chapter 1: The Focal Meaning of the Concept of “Ius”
• Chapter 2: Natural Juridical Goods: The Juridical Status of Basic Human Goods in Aquinas’s Jusnaturalist Philosophy
• Chapter 3:The Goodness of Rights from Kelsen to Finnis and Beyond: The Concept of Rights as Juridical Goods
• Chapter 4: The Three Levels of Law’s Goodness and Then One More: Exploring John Finnis’s Account of Good Juridical Reasons for Action
• Chapter 5: Exploring the Aspects of Law’s Goodness in Ronald Dworkin’s Critique of the “Strong” Natural-Law Theory
• Chapter 6: Priority of the Legal Realm over Ideas of the Good: The Conceptual Status of Law and Rights in John Rawls’s Juridical Constructivism
• III. The Juridical Domain of the Common Good
• Chapter 7: The Juridical Domain of the Intrinsic Common Good of the Political Community: Hervadian Perspectives
• Chapter 8: Rethinking the Juridical Anthropology of the Family from the Viewpoint of the Bonum Commune Familiae
• Chapter 9: Bonum Commune Ecclesiae and the Juridical Domain of the “Things” That Are Made Common in the Church
• IV. The Concept of “Ius” in Catholic Social Doctrine and in Canon Law
• Chapter 10: Human Rights as Natural Juridical Goods and the Juridical Domain of the Principles of Catholic Social Doctrine
• Chapter 11: Some Proposals for Achieving a Greater Unity regarding the Conception of the Juridical Phenomenon in the Church
• Chapter 12: Canon Law, “That Which Ought to Be” in the Church, and the Ecclesial Juridical Goods
• Bibliography
• Subsidia Canonica