The Foundations of Law
The Foundations of Law Over the course of many centuries, theorists and philosophers had come up with several different justifications to explain an unclear relationship that exists between law and justice. Thomas Aquinas, a thirteenth century theorist, enlightened everyone with his opinion about this relationship when he wrote Treatise on Law. Breaking down law into four different types, eternal, natural, divine, and human law, Aquinas created an order of laws that society must follow in order to be just. There are also four elements of the law that ought to be pursued in order for there to be a just law. Laws must be created by the leader of the community, are reasonable for the common good, and are known by everyone to be just. According to Aquinas, “laws have binding force insofar as they have justice. Things are just because they are right according to the rule of reason” (Aquinas 47). Understanding Aquinas’ reading, law and justice are connected with one another through natural law. Laws have the power to bind a community only if they are just. Unjust laws are not laws according to Aquinas. Although Thomas Aquinas made a clear distinction between what is just and what is not, theorist, H.L.A. Hart took a different approach in understanding this relationship. In a more complex understanding, H.L.A. Hart wrote his book, A Concept of Law, to clarify his reasoning of legal positivism. There are three main foundations to legal positivism to understand if a law is just or not. The first foundation is that law must be separated from morality. When trying to understand a law one must separate their own ideas of what the law is from what the law ought to be. Having people bring there own morals into understanding laws will make the laws unjust when applied to the people. The second foundation of legal positivism is the command theory where laws are backed by threat. In order for a law to be a law it needs a command, sovereign, and a sanction for it
Cited: Regan, Richard. Introduction. Treatise on Law. By Thomas Aquinas. Indianapolis: Hackett Publishing Company, Inc., 2000. ix - xxvi. Rpt. in Treatise on Law.