juris study 120223

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Florida Gulf Coast University *

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4850

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Law

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Feb 20, 2024

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docx

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Explain the distinction between conclusions and determinations of natural law principles in Aquinas’ treatise on law Q. 95, A. 2 Aquinas distinguishes four kinds of law: eternal law, natural law, human law, and divine law, with natural law, the law with moral content, being derived from the eternal law, and governing human behavior based on reason and free will. Aquinas tells us the first precept of the natural law, derived from human beings' rational nature, is the imperative to do good and avoid evil. Natural law is considered more perfect than human laws because of the variable subject matter of human laws and is thus considered to be universally valid and known. On the other hand, human laws are considered conclusions from the natural law when they pertain to matters about which the natural law offers a clear precept. Human laws are valid only to the extent that they conform to natural law. In working out human laws, human practical reason moves from the general principles implanted in natural law to the contingent commands of human law. Human laws are further specifications of natural law and are made by man. They are derived from the natural law, which in turn is a participation in the eternal law of God. Aquinas, in his treatise on law, explains the relationship between natural law and human laws. He distinguishes between two types of human laws: those that are conclusions of natural law principles, and those that are determinations of natural law principles. According to Aquinas, human laws are considered conclusions when they are derived from matters about which the natural law offers a clear precept. In other words, conclusions are drawn from the principles of natural law, similar to how demonstrated conclusions are drawn from principles in sciences. Determinations, on the other hand, are more directly derived from the natural law and constitute a more specific application of the natural law to particular situations. They are likened to the way in which general forms are particularized in the arts. Therefore, the distinction between conclusions and determinations is based on the fact that conclusions are more general and abstract, while determinations are more specific and concrete. This differentiation is important in understanding the relationship between natural law and human laws, and how human laws can reflect the natural law.

Explain why and when one may and when one must disobey an unjust human law as per Aquinas’ treatise on law Q. 96, A. 4 Thomas Aquinas developed a framework that helps us understand when disobeying an unjust human law might be acceptable. According to Aquinas, an unjust law is one that is not rooted in eternal and natural law. He argued that such laws are not binding in conscience, and individuals have a moral obligation to disobey them. Aquinas believed that unjust laws go against divine good and must not be observed, as one should obey God rather than man. However, he also emphasized the importance of avoiding scandal or inflicting more grievous harm while disobeying unjust laws. Aquinas' theory justifies civil disobedience based on natural law, provides a strong moral foundation for challenging unjust laws, and recognizes the need to balance this with the common good and moral obligation. Aquinas' stance on civil disobedience is complex. He acknowledged the significance of assessing the common good, authority, and moral obligation while justifying disobedience. While he supported the notion that individuals have a moral responsibility to disobey unjust laws that are not binding in conscience, he also stressed the importance of acting for the common good and avoiding harm to others. According to Aquinas, civil disobedience may be permissible when it is essential to uphold the divine good and natural law, but it should be approached with caution, considering the possible consequences and overall impact on society. Compare and contrast originalism with common good constitutionalism There are two different approaches to constitutional interpretation: Originalism and common good constitutionalism. The difference between originalism and common good constitutionalism lies in how they interpret the Constitution. Originalism states that the Constitution should be interpreted based on its original meaning at the time it was written. On the other hand, common good constitutionalism believes that the government should lead society towards the common good and that strong rule is justified in the pursuit of this end. Some say originalism is a more transparent standard of interpretation compared to common good constitutionalism. That is because originalism provides a clear and defined basis for determining the accuracy of claims about what the Constitution means. At the same time, common good constitutionalism's reliance on morally and politically loaded terminology makes it harder to interpret. An article from The Atlantic suggests that originalism has become an obstacle to the development of a substantive, conservative approach to constitutional law and interpretation, while common good constitutionalism is seen as a promising approach that emphasizes the government's role in directing society towards the common good.

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