Search

The objective of this paper is to analyze some dimensions of the general Hervadian principle that nature as essence is both the principle of action of the human being and its own purpose. To this effect, the first part of the paper is intended to glean the main meanings of nature in the classical world, and how it joins the idea of finality in Aristotle; and then in medieval thought represented by Aquinas. The second part, from the affirmation that nature is a measure of order and proportion, briefly develops four aspects of the problem in the context of the work of the great jurist of the University of Navarra. These aspects are: (a) empirical nature and nature as ratio; (b) nature as a measure of order and conduct; (c) nature and universal order (immanence and transcendence, and (d) finality in the world to come (a new civilization). [ABSTRACT FROM AUTHOR]

Javier Hervada has been outlined for his research in natural law history; its theory and its application. The last two aspects become inseparable and lead to the following three functions of natural law: as a source of «positive» law or, more properly, «institutional » law; as a critical instance of positive law, and as an integral part of the juridical system. This paper deals with this last aspect for two reasons: it is the least well known in the field of comparative natural law theory, and it is where Hervada’s contribution is most innovate. For this purpose, a presentation will be made of the Hervada’s theory that there is a single juridical system, that is composed of natural «titles» and «measures» and positive «titles» and «measures»; then, within the first above-mentioned, it is considered one of its components or factors, «time», that recognized this integration of natural law in the juridical order and, also, the aforementioned duty to guarantee the material justice of the «Institutional» law. Finally, this notion is illustrated with legislative and jurisprudential cases of argentine law, although, the exercise is perfectly applied to any comparative juridical system. [ABSTRACT FROM AUTHOR]

In recent years we have witnessed the emergence of new rights that affect such essential human rights as life and physical integrity. Examples of this can be seen in the current regulation of abortion, the attempts to regulate surrogate pregnancy or the recently approved right to euthanasia in Spain. These rights arise under laws that recognise the validity of express, informed and free consent to renounce physical integrity, the life of the unborn child or life itself. However, there are certain goods inherent to human dignity which cannot be disposed of in favour of third parties, even with the consent of their owner. Therefore, we must conclude that the simple individual will, expressed through informed consent, or the collective will, expressed in the text of a law, is not enough to constitute a right when it affects certain very personal property. This paper is a brief critique of the Organic Law regulating euthanasia from the thesis of the recently deceased Professor Javier Hervada, trying to distinguish between the concepts of euthanasia and death with dignity. [ABSTRACT FROM AUTHOR]

The paper’s central argument is that Hervada’s doctrine on the existence of subsequent natural rights – and the necessity to posit these rights for their historical enforcement– offers better parameters and standards for the justification and determination of implied rights in the IACtHR’s opinions. On the one hand, it allows to justify such rights based on a universal human nature as well as to determine the right’s content through their inherent ends with better claims of objectivity. On the other, it permits to verify the indispensable role of positive law for the determination of human rights which have not been expressly recognized in the Convention. [ABSTRACT FROM AUTHOR]

This paper describes and critically analyses the process of formation of J. Hervada’s thought on the essence and ground of law. Hervada’s work constitutes, from its beginnings as a canonist, an endeavour to determine the nature of the juridical and, in connection with it, to deal with the question of the radical foundations of law which he places on the condition of a person proper to the human being and in his or her dignity. This perspective allows to confront in a satisfactory way some nuclear questions of the theory and philosophy of law that continue to be controversial to the present days: the relationship between justice and law or, more broadly, between law and morality, the question of natural law and its insertion in the legal system, the critique of legal positivism, etc. [ABSTRACT FROM AUTHOR]