Aquinas - nature of law - My own Notes PDF

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2. Natural Law:Thomas Aquinas Thomas Aquinas reconstructed the classical natural law theory. He borrowed the Aristotle’s telos (goal) and replaced it with another telos. According to Thomas Aquinas, who espouses the proposition of Aristotle held similar views that man has goals in life to pursue. Aristotle is based on nature of man that is what they want to achieve in life. The central idea is that the grace of God was held not to conflict with or abolish man’s nature, but to perfect it, and in this way a Christianised version of natural law could be seen to bring to fruition/ achievement the natural law tradition. Aquinas modified Aristotle’s teleological perspective so that man’s end was not only to live socially and seek knowledge, but to live in a Christian community in which one would come to know, and presumable adore, God. Aquinas extended Aristotle’s telos (goal) of man by suggesting that man’s goal is not solely to lead a social life, political life and to seek knowledge but also to live in a Christian community, in which one would adore God. Any goal achieved must be done in a Christian way. Aquinas continued in the same line of Aristotle but later replaced and re-adapted the model of Aristotle theory. It is the same version but do it in a Christian way. Aquinas for the purposes of his theory classified the law in multi-layered states. Aquinas identified 4 Types of Laws:    

Eternal Law Natural Law Divine Law Human Law

Aquinas said that human beings were endowed with reasons in order to participate in the moral enterprise designed by God. Aquinas described orders of law as eternal, natural law, divine and human law, which purported to show the way in which human reason was able to appreciate what was good and godly – according to Aquinas, man, by his reason, was able to participate in the moral order of nature designed by God.

The orders of law were as follows: 1) Eternal law: The whole universe is governed by divine providence or divine reason, which is the ultimate order imposed by the Creator.  All around us: it is about the world or universe being created by God. It is the Law of God for man. Eternal law is unwritten law by God. Example: Does the sea one day decide to cross the shore: Never Does the leaves one day stop producing oxygen: Never 2) Natural law: Humans are special creatures (with moral values)and have a special relationship with God as they are able to participate in the divine wisdom as they are gifted with reason (man uses reasoning).  Natural Law: We judge what is good and bad. It is about feeling. Natural Law can be universally understood through human reasons Human being must differentiate what right and wrong and then took a decision. Natural Law means law moral law. Any law that is good is moral and any moral law is good. It is inherent in human nature that is ethically binding law such as killing someone is wrong. 3) Divine Law: It is the law that is properly revealed by God to man. Such law emanates from the supreme law. They are contained in the Bible, Quran and other holy scriptures. The best example of divine law is the Ten Commandments. Divine law most directly concerns man in his relation to God and achieving paradise. It lays down how man is to act in relation to God. Divine law is written law that is revelation contained in holy books “Will of God” and related to cultures may change perception of a human. However, divine law is not subject to change and it is contained in Bible and Quran.

4) Finally, there is Human Law: It is that set of law that enables man to make a deduction from the general precepts of natural law in order to conveniently deal with particular matters For example, it is a natural law precept that crimes must be punished with a severity that corresponds with the seriousness of a crime, but it is necessary to specify the actual punishment that, say, a thief will receive under a particular legal system, and the use of reason to provide a punishment of, say, two years is the use of reason called ‘human law’. This might also be called ‘positive’ law, as it is the actual law posited by legal institutions. Human Law means law regulating behaviour of man for man. What man creates such as laws, punishment that is how to punish an accused. Humans cannot exist without “human law”, but the organism is alive. Aquinas insists that human laws are genuine laws only if they do not contradict natural law. Under Human Law, the law is powerful and people make use of natural law for justification Human Law justifies himself with natural law.

Human Law flowing from Natural Law- How the human law and natural law can interconnect  A deductive process: Human law is a deductive process from the broad general principle of Natural Law. Killing is wrong which is a natural law but to determine the right sentence, the judge will make deductive conclusions regarding the length of the sentence through a deductive process/procedure. Therefore, the most appropriate sentence in these circumstances is determined by Human Law. The court deduces by making a deduction on the duration of the sentence. Thus he uses the human law. To better illustrate the deductive analysis of human law flowing form natural law, Aquinas takes the analogy of an Architect who has to design a house. In order to build a house, the architect will start with the general idea surrounding such a construction that is for example, the house must have rooms, doorways, windows, corridors. So these may be termed as the ‘Natural Law’requirements of house building. The natural law does not say precisely the number of room, the height of doors. Hence it is subject to variation to make a deduction by using the human law. Therefore from the general house building, the architect is deducing how to construct the house through the human law However from this general idea, the architect must decide for himself the appropriate height of the doors, length of windows. For such details are not given in the ‘Natural Law’requirements. Although to some degree which might be of very little help, the natural law requirement might require that the door must not be more than 1.5m and for a door, any lower door would not be functional. The ‘Natural Law’requirement does not specified any height by mere general idea of height and this specification needs to be done by the architect and in the same way, while natural law requires that thieves be punished, the ‘Natural Law’does not specified what particular punishment should be given. Then we must apply Human Law which is a deductive process. Aquinas makes a distinction between what natural law lays down as Specificatio(Natural Law) and what must be determined by man from it (human law) as Determinatio(Human Law). Determinatio Deductive process comes from Human Law.

The Need to have Law according to Aquinas: According to Aquinas,people are sometime virtuous and sometimes, which we might all perhaps be in certain moods or times of our life. Thus the law must have a disciplinary force rather than a mere guiding force. Despite Aquinas is a natural law thinker, we have to understand and explain the presence of law. For Aquinas, people are always in a particular mood of life. The same people we meet later, have a different way of thinking. The code of conduct must be fixed and disciple. However, Aquinas stressed that the Human Law cannot be a counsel of perfection. True Aquinas says that Human law can be a counsel of sanction. It should attend to the more serious matter of human conduct and not try to prohibit every vice or insist on every virtue: Its task is to ensure a framework of rules which provides for a human community that is capable of flourishing and not to create heaven on earth. However, surprisingly Aquinas wearing the badge of natural thinker gave a faint/weak hint that he might be verging towards soft legal positivism. That is, Aquinas says that even if the law is cruel or immoral, one ought to follow the law. According to Aquinas, a law only obliges in conscience, in so far as it is not at odds with the natural law. Aquinas did not say “do not follow the law” but he rather says, for him the law may be immoral/cruel on one side but finally this will disrupt the whole legal system if not following the human law.The law might be cruel or immoral but one must follow the law. Hence we need natural law together with human law in order for a legal system to work well in a society. However, Aquinas refrains from stating that an unjust law is not a law as he sees the law from a moral perspective as a necessary human institution which everyone has a duty to support and ensure its success. This means that his particular law is cruel but follow it so as not to disrupt the whole legal system. This is Aquinas’ philosophy He says that the mere fact that a law is unjust does not provide someone with an absolute licence to disobey and challenge it. Aquinas invites us to look at it from a more general point of view as a project of law in which disobedience might create an enthusiasm amongst people to disobey and escape the grip of the law for their own selfish motives. Aquinas says that imagine that the law becomes cruel or immoral whenever you cannot achieve your selfish motive and to satisfy it. Aquinas says advance your selfish motive that is hiding the moral law. Follow some cruel law and not to view all laws as immoral/ cruel.

In such a system, no one would come to respect law and law would be difficult to administer properly thus causing a manifestly greater prejudice to the overall enterprise of law. Despite being a cruel law, Aquinas admits the human law as good law.

Question 1 – Explain, distinguish and identify the overlapping between the different orders of Aquinas: Eternal law refers to divine providence that is unwritten law coming from the creator. Natural law refers to the relationship of man with God. Divine Law refers to law derive from holy scriptures, Bible, testaments. Human Law refers to law derived from the general principles of natural law. 1.Natural law, divine law and human law have their foundations in Eternal law. 2.We can say that eternal law and divine law overlap because they are both derived from divine providence. While eternal law is law coming from the creator himself, divine law is obtained from holy books and scriptures. The common element is God (holy). 3. Natural law and human law  Human law is a deductive process and is derived from the general principles of natural law. 4.Natural Law Divine Law  Divine law is found in scriptures and it is therefore different from natural law which is one obtained from the conduct of human being, it is determined by the intrinsic nature of man. 5. Divine law and Human Law differ  Divine law bears a closer connection to God while Human law is more closely related to natural law. 6. While eternal law comes from God, Natural Law and Human Law comes from man’s ability to reason and create different rules.

Q2. With reference to the analogy of the Architect by Aquinas, explain the deductive process of human law? The deductive process is shown through the analogy of the Architect by Aquinas whereby Human Law flows from natural law. Aquinas considers that the Architect in designing a building has to include doors, windows, corridors, walls in his plan. These requirements represent the Natural Law principles of a house building by the Architect. However, these requirements laid down by Natural Law (Specificatio) are not enough for building the house. Another process is required which is essential to mount the house. These are deductive process/ analysis as to what the heights of the doors would be, the width of the windows or the length of the corridors. The natural law does not specify these requirements and this is called the Determinatio that is what theArchitect has to deduce by himself by using his power of reasoning. Similarly, the natural lawyer has to make reasonable estimations such as length of a sentence for the breach of the natural law in order to make the law a functional mechanism Q3. What is Aquinas’ view on the moral obligation to obey the Human Law? A classical natural law lawyer in his most extreme form clings to latin expression ‘Lex injusta non estlex’ to judge the character of the law before following it. However, Aquinas seems to distance himself slightly from this extremist view and verges towards soft legal positivism. He speaks of the law as not being a counsel of perfection that is it should not insist on every virtues and condemn every vice and should not seek to create heaven on earth. Though a law is an unjust one, it must be followed according to Aquinas because the overall project of the law will be compromised/jeopardised and people will think of it as a free licence not to follow the law whenever it is at odds with morality such as a temptation must be resisted if you want society to progress peacefully because there is a higher morality (to follow the law) than the intrinsic morality of the law....