Jurisprudence Notes

Topics: Law, Natural law, Jurisprudence Pages: 53 (16555 words) Published: April 24, 2013

Important aspects of natural law can be traced back to Aristotle, Plato and the stories of Sophocles, Antigone & Oedipus. They offered arguments for the existence of a higher form of law, a set of standards against which existing legal norms can be compared and judged.

Plato argued that individual objects (e.g. individual trees and chairs and individual instances of equality or beauty) were imperfect reflections or instances of an eternal Idea or Form (of “Tree”, “Chair”, “Equality” or “Beauty”) (Bix).

Gods actively involved in controlling aspects of people’s lives. Problem with this approach to natural law is that one cannot prove that a model concept is the foundation of a real rule. No correlation between the laws in the ideal and the real world.

Cicero was a Roman orator, writing in the first century BC. He was strongly influenced by the Greek stoic philosophers and best remembered for his elegant restatement of their ideas, that being: • Natural law is derived from the exercise of human rationality in harmony with nature. Notion of a higher rationality “rectaratio”. Not necessarily God but a law of a higher order. o “If the city legislature makes a law that says that rape, theft and robbery is legitimate then that law is false. It may be compared to the arrangements made by a band of robbers amongst themselves” • Natural law is universal, unchanging and everlasting- the Ius Gentium. o Ius Naturale looks to the origin of the law in natural reason/rationality and the Ius Gentium to its universal application (interlinked). • It summons to duty by its commands and averts wrongdoing by its prohibitions- law as a reformative spirit. • It is a sin to alter or repeal natural law and it is impossible to abolish it entirely • We need not look outside ourselves for its content or interpretation; • God is the author, promulgator and enforcer of natural law. However, God plays a passive role and does not actively influence positive law. For Cicero, only just laws (laws not in conflict with the higher law/rationality) were worthy of the title ‘law’. However, it follows from his logic that if an unjust man-made law is not a ‘law’ then there can be no legal obligation to follow it. At most there is potential for a moral obligation.

St. Thomas Aquinas & Early Church Writers
The currency which overtook Roman Materialism was Christian Morality- God was held to the be the central figure in existence. St Thomas Aquinas, St Augustine and the early church writers believed that God shares his divine rationality with mankind through the revelation of scriptures and endowing man with rationality. God is separate from nature but actively involved in affecting it.

Aquinas (Summa Theologica) is the most influential writer within the traditional approach to natural law. Aquinas proclaimed that the Civil Govt is not guilty of original sin as there were no relations between man and woman which begot it, as it is an entity founded upon rationality.

Aquinas identifies four different kinds of law:
1) Eternal law - Higher reason known only to God
2) Divine law - Law of God as manifested in scriptures
3) Natural law - Rational participation of men in eternal law*(important) 4) Human law - Man made or positive law*(important)
• Just
• Virtuous
• Necessary
• Useful
• Clear
• For the common good

Aquinas argues that positive law is derived from natural law in 2 ways: 1) Sometimes natural law dictates fully what positive law should be. For example, natural law requires a prohibition on murder and also settles the content of the prohibition. 2) Other times, natural law leaves room for human choice to make particular norms more concrete or specific.

Aquinas’ view of the Unjust Law
For Aquinas, just positive laws are those...
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