Thomas Aquinas, Natural Law And Legal Positivism

Aquinas believed in five natural laws. Natural laws are certain things you can’t prove or demonstrate but that you must regard as facts. The first is that good and evil exist. The second is it is better to live than to die. Thirdly, it is good to have children and care for them. Fourthly, it is unnatural to live in solitude all our lives. Lastly, people have a desire for the

This is similar to Locke’s outlook on the social contract which is directly related to his theory about the state of nature, but his outlook also differs from Aquinas’s understanding of eternal and natural law. Locke believes that God has made every person equal, and the owner of themselves which is their own property. Because of this they need to give certain right to the government or a “social contract” in exchange for protection of their own property. This includes themselves and their gained properties which are gained by

This is the major difference between positivist and natural law thinkers. Natural law is the combination of laws and morals while legal positivism is the seperation of laws and morals. Legal positivism declares that morality is irrelevant to the identification of what is valid law and that the criteria for the validity of a legal rule or law in a society is that it has the warrant of the sovereign and will be enforced by the sovereign and its agents. Raz, a positivist, stated that ‘the validity of a law can never depend on its morality’ 6 Positive law or positivism is

It is imperative to understand Aquinas’ definition of just and unjust laws. Through defining these terms, we will be able to understand Aquinas’ claim. A law that is just has the power of “binding in conscience” (Aquinas in Dimock, ed., 2002, p.20). It is derived from eternal law and therefore inherently morally correct. An unjust law lacks this integral quality. Aquinas is willing to say that an unjust law is a so-called law, but a just law is a law proper in its entirety.

Are we naturally moral creatures? Do we always act towards the common good of others? I am positive that we do not, and in fact, as much as society wants to, we go against our morals and lead with our ‘feelings’. These feelings may feel right, but it doesn’t mean they will lead you in the right path to fulfil your ultimate end, true happiness. Hitler was a passionate man driven by feelings, but what he felt and did during the World War Two era was not for the sake of the common good, and was not morally right. In today’s society we often struggle between what is legally right and what is

Thomas Aquinas's philosophy was that law existed for the common good of the particular community, and he separated law into four main sections; Eternal law, Natural law, Divine law, and Human law. Eternal law is the law of God that exists universally. Thomas said that God rules over creation like a ruler would govern their community, equating Eternal law to Human law in a sense. Divine law is dirived from eternal law, and is unchangeable by man. It is the will of God and it is usually revealed though revelations such as the Ten Commandments, or the teachings or Jesus. Human law is the section of law that deals with law that involves human rules on a societal scale. Unlike the previous two sections, human law can, and oftentimes should, be changed to better work for the common good of the community. Thomas also states that "human law cannot punish or forbid all evil deeds: since while aiming at doing away with all evils, it would do away with many good things", meaning that human laws cannot change the consience of people, and that they don't hold as much power or influence as the other three categories of law. When explaining human law, Thomas Aquinas is acknowledging positive law, but in order for those laws to be worthy of the name law, they have to closely match the natural laws that exist

The biggest difference between the writings of Austin and Hart might be that the former while setting the framework for a plausible theory, fails to elaborate on its most basic premises. Hart expanded on legal positivism by enhancing the theory suggested by Austin and making it more credible, all while debunking natural law theory. One example is the manner in which Austin argues that the concept of law is subject to the command of a higher authority backed by threats. Although this is a way in which law can be presented, it is also a simplistic definition. Hart argues that although Austin’s definition of the law might be applicable to criminal law, it fails to justify other variants of legal process such as contracts or marriage licenses. He argues that “Such laws do not impose duties or obli­gations. Instead, they provide individuals with facilities for realizing their wishes, by conferring legal powers upon them to create, by certain specified procedures and subject to certain (p. 27)” It is difficult to associate laws such as the ones concerning marriage to the idea of a command backed by threat. The differentiation between laws that grant liberties when compared to those that might take them away is something that is not taken into account by Austin or explored in depth by natural law theorists such as Aquinas.

morality, and we come to the natural law through conscience and reason. Essentially, Aquinas incorporates Aristotle's

Oliver Wendell Holmes Jr (1963:5) states, “the law embodies the story of a nation development through many centuries. The law reflects the intellectual, social, economic, and political climate of its time.” According to the book Law and Society, written by Steven Vago. The law is all walks of life it governs and exists in our every action. Laws protect the spouse, children, private and public property, political, legal system, businesses and social institution. The law originates to protect citizens from injustice events and punish individuals who committed unlawful acts. Sociology and law are concerned with norms rules that prescribe the appropriate behavior for people in a given situation. (Vago, 2011, pg. 3). The law is to embody rules of

The world does not function in absolutes, therefore, I find myself aligning with St. Thomas Aquinas over Immanuel Kant. Aquinas’ Natural Law is based on God and the laws of nature. Aquinas identifies five primary precepts: reproduction, life, education, justice and worship. The primary precepts, then break down into secondary precepts that are flexible and realistic. Aquinas views the laws that affect man as coming from one of four areas. Eternal law is the mind of God and what he was thinking when he made us. Divine law is found in the Bible and acts as a guide for life. Natural law is our conscience and helps guide our daily actions. The final law is the human law which incorporates the laws written by man.

Natural law theorists believe that all law must be morally justified if it can be legitimised as law at all. Legal positivism means the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have otherwise done so. (Hart, DATE)

The first principle of law according to Aquinas is that "good is to be done and pursued, and evil is to be avoided. All other precepts of the natural law are based upon this” (ST I-II.94.2). The other precepts are self-preservation, procreation, education of offspring, seek truth avoid ignorance, and live in society. Aquinas believes the natural law is written on every human and every human has equal knowledge of good and evil; however, once individual circumstances are factored in, it is dependent upon humans to follow or ignore it. However, Aquinas believes that “the natural law, in the abstract, can nowise be blotted out from men 's hearts” (ST I-II.94.6) but through bad habits of the society it could be weakened. According to Aquinas, the natural law has two main aspects. The first of these is that “the natural law is altogether unchangeable in its first principles” (ST I-II.94.5), which means God can add to, but not take away from, the law. This only applies to the primary precepts; the secondary precepts may change in some particular aspects. The second aspect is that “the written law is said to be given for the correction of the natural law” (ST I-II.94.6.ad 1); to put it simply, human laws are necessary to fill in the gaps/loopholes left from the natural law. Aquinas’ teachings shows that the actions of human is either good or bad depending on whether it conforms to reason.

Society today in America is ruled by media and government. We abide by the law out of fear of being arrested. Some people may abide by the law by the goodness of their hearts but most do not. Aquinas believes that law is power and though his writings were done years ago, it still applies to today’s society in many aspects. It is important to know this because humans work systematically. When people do good, they get rewarded and when they do bad, they get punished. Aquinas talks about eternal law, which is the divine law, he also talks about natural law, and then the human law in his book Treatise of Law and I will be referring to questions 90-94.

Since we were kids and became conscious of our surrounding, our parents and grandparents instilled in us an awareness of what is right and wrong. In other words, it is a trait of all human beings and fosters from our desire to get along with each other to live a harmonious life. Laws are a set of rules and behaviors set by governments that society illustrate on what people can or cannot do. The purpose of this paper is three-fold: it will identify and define what distinguishes law from ethics and what similarities they share. The second is an analysis of examples of where law and ethics either meet or diverge. Third is the role where law and ethics either meet or diverge.

Law is the expression of the will of the society. Its virtue or vice depends on the social conscience at a given time. A bad law is a manifestation of an aberration in a body politic of the conscience of the society.