The Foundations of Law

Better Essays
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.

You May Also Find These Documents Helpful

  • Powerful Essays

    In the Treatise on Law, Aquinas concerns himself with the origins of law. He wants to know the source of the obligation that law imposes. The questions are these: “By what warrant does the human legislator bind the consciences of people? Doesn’t this power belong to God alone? If people possess it, what are the limits within which they may exercise it?”…

    • 2039 Words
    • 9 Pages
    Powerful Essays
  • Good Essays

    explicitly noted in his writings, that he was influenced by the work of 13th century philosopher St. Thomas Aquinas. King’s functional definition of natural law was taken from Aquinas’ seminal and most known work, “Summa Theologica”. King agrees with St. Thomas Aquinas’ key precepts of natural law that good should be promoted and carried out, while evil must be identified and avoided. It was King’s view that he had not broken a moral or legal law. King strongly believed in Aquinas teachings, stating that “an unjust law is a human law that is not rooted in eternal and natural law”. King’s arguments in his letter accurately reflect Aquinas’ philosophy on natural…

    • 1019 Words
    • 5 Pages
    Good Essays
  • Better Essays

    Aquinas developed the Natural law Theory, with which he proposed five ‘telos’ that he believed were our duty to follow. His 5 primary precepts- ‘Worship God Ordered society, Reproduction, Learning and Defend the innocent’ are deontological. However, whilst being deontological, Natural Law does have some flexibility with the more teleological, secondary precepts.…

    • 1013 Words
    • 5 Pages
    Better Essays
  • Powerful Essays

    PHL 612: Philosophy of Law

    • 5890 Words
    • 24 Pages

    PHL 612 Philosophy of Law [Calendar Description]: What is law? What makes something a legal norm? Should citizens always obey the law? What is the relationship between law and morality? This course will explore competing theories of law, such as natural law and positivism, and touch on crucial debates over civil disobedience, purposes of punishment, and interpretation of legal texts. It will deal with contemporary controversies over the legal regulation of human behaviour, for instance in matters of sexual morality.…

    • 5890 Words
    • 24 Pages
    Powerful Essays
  • Good Essays

    As defined by the Philosophical Dictionary, the Natural Law Theory is "In moral philosophy, a norm, custom, or set of beliefs shared by people living in different cultures or eras. Such a “law” is supposedly derived from Nature (via reason or some other natural human faculty) and is considered binding on all humans everywhere. Ancient Stoicism, for example, held that there are eternal laws that govern all human actions and that happiness depends on recognizing and living in harmony with these fundamental “laws of nature.” Similarly, Aquinas argued that God established a set of universal laws – ascertainable through reason alone (hence available to everyone, regardless of their religion) – that operate for the welfare and benefit of all creatures.”…

    • 197 Words
    • 1 Page
    Good Essays
  • Good Essays

    The original concept of Natural law was thought of by Aristotle and was then adapted by Thomas Aquinas to fit the teachings and views of the Roman Catholic Church. Who was concerned with moral law of how human beings should behave .It is understood by reflecting on human nature and by rationally working what will lead to fulfilling your purpose. According to natural law “good” can only be achieved when the subject has fulfilled its end purpose, the end purpose of human beings is to be rational and achieve Eudemonia. Eudemonia is human flourishing, when they achieve happiness. Aquinas also believed natural law was in everyone, so everyone is good. Human’s unconsciously aim for perfection, to avoid evil and aim for god. Because we are made in god’s image, we are unable to knowingly go for evil. As Animals and humans share desires and wishes it’s only the ability to be rational that separates the human beings from the beasts. Aquinas also believed that the only way to discover divine design in nature, would be through human reason. The divine design was created to the essence/the idea before its actual existence. So the only way reason discovers what is right, is by interpreting nature.…

    • 1069 Words
    • 5 Pages
    Good Essays
  • Satisfactory Essays

    Natural Law is a deontological theory of ethics. According to Thomas Aquinas it is absolutist and depends on the idea that God created everything with a purpose and supreme good is found when that purpose is fulfilled. For Aristotle, who heavily influenced Aquinas’ ideas, he believed that supreme good for humans is happiness. Thomas Aquinas agreed with Aristotle, but saw a human’s supreme purpose to be perfection.…

    • 343 Words
    • 2 Pages
    Satisfactory Essays
  • Better Essays

    Although Aristotle did not use the term ‘natural law’ many medieval philosophers considered him as one of the first exponents of the fundamentals of natural law. Stoic philosophy was the first to introduce the term ‘natural law’ with the Stoics emphasising nature and the moral requirement to accept and conform to what is given in nature. This Greek philosophy spanned several centuries and greatly influenced the Roman philosopher Cicero. Cicero (d. 43BC) was a strong advocate of natural law and spoke of natural law as the innate power of reason to direct action. Catholic natural law theory was formulated by St. Thomas Aquinas over seven centuries ago. He identified one fundamental norm of natural law: do good and avoid evil. Doing good in this context is following reason’s lead to actualise human…

    • 2320 Words
    • 10 Pages
    Better Essays
  • Good Essays

    Thomas Aquinas proposes a number of laws that exist in the world. He believes that God is responsible for eternal law. Aquinas points out that eternal law the way the universe is structured. He understands that a rational being must exist, who is responsible for the structure of the universe, and that rational being must be God. This category of law applies to all things in the universe ranging from rocks to human beings. All of these things have natural tendencies that…

    • 1257 Words
    • 6 Pages
    Good Essays
  • Satisfactory Essays

    TRUE/FALSE QUESTIONS A1. The stability and predictability of the law is essential to business activities. ANSWER: T PAGE: NAT: AACSB Analytic B1. 2 TYPE: AICPA Critical Thinking =…

    • 4405 Words
    • 18 Pages
    Satisfactory Essays
  • Powerful Essays

    Aquinas also believed that we can use our rationality to know Natural Law. It is inherent within our human nature, God reveals specific commands but these do not go against natural law but rather, further develop it. Aquinas said that a moral life is a life entirely followed ‘according to reason’.…

    • 922 Words
    • 4 Pages
    Powerful Essays
  • Satisfactory Essays

    In Thomas Aquinas’s On Law, Morality, and Politics, Aquinas agrees completely with Aristotle’s notion of natural law. Like Aristotle, he believes that everything has a purpose, which is determined and fulfilled by natural law. However, he makes a very clear contradiction to Aristotle’s beliefs when it comes to the issue of what the purpose of justice is. Aristotle believes that justice is the presence of all virtue, while Thomas believes that Justice is one thing on its own, he believes that it is specifically the virtue of a good citizen.…

    • 322 Words
    • 2 Pages
    Satisfactory Essays
  • Powerful Essays

    The relationship between justice and the law is one that has been debated for hundreds, if not thousands of years. Many theorists have attempted to explain the exact characteristics of this relationship in order to outline a system of just law. However, this relationship is far too intricate for any one theory to dominate the field. The values used to formulate a system of just law are often times based upon personal preference, unseen biases, or self-motivation. Law is such an intrinsic facet to so many different aspects of life that finding a theory of justice capable of covering the entirety of law is impossible. The fact is that, man has neither the impartialness nor the capability of creating such a complete theory. Without a complete theory for application we are forced into using elements from several theories to debate even the most minuet topics of just law. The issue that arises when using several theories at once is the inherent contradictions that can be found when comparing and contrasting them. Every theory has a theorem which is used to outline its most basic principles. With the vast number of theories it is only rational that contradictions occur.…

    • 2367 Words
    • 10 Pages
    Powerful Essays
  • Good Essays

    Explain Natural Law Theory

    • 1143 Words
    • 5 Pages

    It is important to highlight that Natural Laws differ from acts which occur naturally. There are many aspects to Natural Law, the first being the concept that it is absolute; therefore it includes set rules to follow. Thomas Aquinas believed that these rules were the primary precepts, along with the secondary precepts, which are obtained from natural morality within humans. Natural Law is also seen as absolute for atheists, as they believe, through the ability to reason, humans can determine the most ethical thing to do. The second aspect of Natural Law is that it is considered deontological; therefore it focuses on the intent behind an action, rather than the final outcome. Although Natural Law’ has a deontological focus, it also involves aspects that are teleological, because one of the main concepts behind Natural Law theory, argues that everything has an end purpose to be fulfilled.…

    • 1143 Words
    • 5 Pages
    Good Essays
  • Good Essays

    Essentially, they argue that the law must be moral to be valid, a belief best exemplified by the saying “lex iniusta non est lex,” meaning unjust law is not law. Natural law theory therefore assumes some universal morality and has, as a result, largely been criticized as idealistic and impractical. Because it would be near impossible to establish a universal test of morality for laws, many natural law theorists in recent years have slightly modified their approach and instead treated natural law theory as a framework for the development of ideal of law as a moral good. Nonetheless, for the purpose of our analysis, we will focus on natural law theorists’ views on the validity of law and the importance of…

    • 1599 Words
    • 7 Pages
    Good Essays