Studying

So, I'm stealing forum space for my assignments, and since I have a habit of taking interesting courses, I'd like your comments on the subject matter. Firstly, we'll start with my philosophy of law course, this is basically my own review system.

Saint Thomas Aquinas' Summa Theologiae, Questions 90, 91, 94-96.
Translated and paraphrased from my text, as not many of you know latin, and this particular translator wrotes [sic] about as well as Bree.

Question 90
Law is basically 'a rule and measure of acts,' which either commits men to an action, or restrains them from one. The root, lex, is derived from the equally latin ligar, or to bind, because law 'binds' one to act, or to not act. The rule and measure of human acts is the reason, or Law is the reason, which is the first, most basic, principle of human acts. This is because reason directs action to an end, and without it, there is no action.
Reason has its power to accomplish due to the will, for it is due to the fact that someone wants what is to be accomplished that reason goes about making it accomplished. (Very bad translation ahead)But if that which is desired is to be law, it needs to be in accordance with some rule of reason. It is generally understood that the will of the sovereign provides the force of law, the will, because it makes no sense that a sovereign should not provide the will for the law. Else, they would be promoting lawlessness rather than law.
The first principle in life, which is the goal of practical reason, is happiness or 'beatitude.' Law, must therefore, concern itself with that which promotes 'beatitude.' Moreover, since we live in a world of imperfect parts combining to perfect wholes, law must concern itself with universal happiness, the happiness of the whole. Aristotle mentions happiness in regards to the 'body politic,' the people, and says that we call those things 'legal matters,' 'that which are adapted to produce and preserve happiness and its parts for the body politic.'
(This next argument follows the premise that there are only four carnal elements, although the point is the same regardless, take note that this was valid 'science' circa 900-1000 AD)In every genus, those things that are paramount to the genus are principle to others, and others belong to that genus as measured according to that which is paramount. Fire, which is chief among hot things, is the cause of heat in all things, and things are said to be hot only insofar as they contain some share of fire. Law is chiefly concerned with the common good, and thus any individual work must be bereft of possessing the nature of law, except insofar as it regards the common good. Therefore, every law must be involved with the common good.
Just as nothing can stand up to logic except that which has some root in an inarguable point, nothing can stand firm in reason except that which promotes the last end, the goal, which in this case is common good. Therefore, all that is reasonable has some sense of the nature of law.
A person cannot lead another to be virtuous, at least not efficaciously; he can only advice, and if his advice is not taken; it has no 'coercive power,' as Law should, to efficaciously induce virtue. This coercive power is vested in either the whole people or in some public person, to whom it belongs the power to impose penalties. To whatever group, the framing of laws belongs to them alone.
Law is imposed upon people as a rule and measure. A rule or measure is imposed by being applied to those that are are subordinate to it. Thus, in order for a law to obtain the binding force proper to it, it must be applied to the men who are ruled by it. Such an application is made known by the promulgation of the law amongst those men. Therefoce, promulgation is necessary for a law to obtain its force.
Thus, Law is nothing else other than the application of reason for the interest of the common good, promulgated by the leader charged with the care of the community.
Natural law itself is spread by the very fact that God has instilled its essence into man's mind so that we would know it instinctually. The promulgation of the present extends to future through writing, by which it is continually promulgated (spread, if you haven't figured it out).

Question 91
Every act of reason and every motivation in us is based upon those things that are natural to us. Every act of reasoning is based upon principles that are known naturally, and every act of desire is derived from a natural want. The first direction of our acts to their end must be through natural law.
Augustine distinguishes two kinds of law, that of the eternal, and that of the temporal, being human law. Just as in logic and science, where we draw conclusions based upon basic principles, the the actual principles may not be explicitly imparted to us, but can be acquired by the efforts of reason, so too do the precepts of natural law stem from common and basic principles that human reason needs to apply to specific matters. These 'particular determinations,' devised by human reason, are known as human laws, provided all other essential conditions of law are also fulfilled.

Question 94
The precepts of natural law are like the basic scientific tenets, in that they are both self-evident. For the same reason that being is the most basic concept to understanding, so too is good the basic concept of reason that directs action. Consequently, the first principle of reason is founded on the nature of the good. The good is that which all things seek. Hence, the first precept of law is that the good is to be promoted, and the evil is to be avoided. All other precepts of natural law are based around this one, such that all things related to man's good belong in some way to natural law as things either to be done or to be avoided.

Question 95
Augstine says, 'that which is not just seems to be no law at all.' The force of a law depends on the extent of its justice. In human affairs, a thing is said to be just as a result of being right, according to reason. But the first rule of reason is the law of nature, so consequently, every human law has its degree of the nature of law to the extent it is derived from the law of nature. If, however, it departs from the law of nature, at any point, it is no longer law, but a perversion of law.
The principles of natural law cannot be applied to all men identically because of the 'great variety of human affairs,' and due to the diversity of positive (human) law amongst various peoples. In this many, there are various human laws according to various forms of government, wich exception to the tyrannical government, which, altogether corrupt, has no corresponding law.

Question 96
Human law, by its nature, falls short of eternal law. Laws that are framed for the government of states allow and leave unpunished many things that are punishable by divine providence. The fact that the law does not attempt to do everything is not a reason for criticism or blame about that which it does do. Human law, likewise, does not prohibit everything that is forbidden by natural law.
Laws are framed by man and are either just or unjust. If they are just, they have the power to bind the conscience, derived from the eternal law. Otherwise, laws may be unjust in two ways, the first being contrary to the human good, as when an authority imposes upon his subjects with burdensome laws that are conducive not to the common good, but instead to his own 'cupidity or vainglory.' Such are 'acts of violence' instead of acts of laws, because, as Augustine says, 'a law that is not just seems to be no law at all.' Such laws do not bind in conscience.
Secondly, laws may be unjust due to opposition with the divine good. Laws of this kind must not be observed in anyway because 'we ought to obey God rather than men.'

And that would be Thomas Aquinas' thesis on natural law, or rather a portion of it.

 

Well, to somewhat clarify the marathon post I made, allow me to respond to some discussion questions that basically sum the shit up.

I should have precursored by saying this section is currently on natural law, the basic pro argument being: If there were no laws telling you that murder, theft, and lying were wrong, although lying is rarely against the law, would those actions still be morally wrong? There is a sense that, even without the law to tell us so, certain things are just innately right and certain things are innately wrong, by virtue of some higher law that doesn't exist as a written legal code, a code of ethics. Cicero spoke of Law as the highest reason, the which commands us to do what ought to be done, and that which forbids us from doing things that shouldn't be done.

Cicero argued that a law that is not just is not really a law, but merely a clever semblance of one. A wax dummy might look remarkably like a person, but it is not human. The important difference is akin to the difference being just makes in a law, so much so that an unjust 'law' is truly only a shoddy imitation thereof.

1.
Anyway, according to Aquinas, the purpose of law is to induce man to act or to restrain him from acting. Since law itself is binded to the furthering of universal happiness or 'the common good,' then the actions induced by the law follow suit. Law, therefore, incites men to act in ways that promote goodness, and prevents them acting in ways that would threaten the common good.

2.
By promulgation, Aquinas is talking about the open declaration of those things that are law, so that all men subject to the law might be able to obey it. Natural law, in Aquinas' view, needs no promulgation, since God Himself accomplishes that task by investing every man with an innate sense of understanding it inside his mind. Human law, however, needs promulgation, because even if it is understood that the leader of a community bases his judgements and enacts rules and measures based upon the common good, those measures cannot be followed by the people of the community unless they are clear and known by all.

3. Natural law differs from human law in the simple sense that natural law is the direct human cognition of God's eternal law, whereas human law is mankind's flawed attempt at simulating eternal law. Natural law is binding due to its inherent moral strength, based upon possession of the nature of law, being reason, and by uncompromisingly fulfilling the first nature of reason, which is to strive for some desired goal, in this case, the common good. Human law, however, is binding only in the sense and to the degree that it also complies with the nature of law. Aquinas' conception of binding stems from his belief that the strength of a law is based upon its inherent justice, and that just laws bind the conscience of men by their innate morality.

4. Aquinas believes largely with Cicero's belief that a human law in violation of natural law possesses nothing more lawful than a name, but rather any human law that departs from natural law is 'no longer a law but a perversion of law.' Another natural law philosopher, William Blackstone, an English theorist of the 1700s, believed that human law in violation of natural law is simply not a valid law, implying it should be repealed or amended to gain compliance with natural law principles. Aquinas would likely disagree with there being anything to amend, however, as the 'law' simply does not exist by his definition. The difference would likely be that Blackstone would obey the human law as it was reformed, while Aquinas would ask what exactly he would be obeying, since the 'law' is simply a few bits of letters on a piece of paper, and lacks the moral binding force necessary to truly be a law.

 

Well, perhaps, but I would argue that certain things are merely not covered by natural law, they are outside of its scope. For example, we have a road system, and cars that people drive on it. What side of the road should we drive on? I doubt God really cares whetehr we choose the left or the right-hand side of the road, but driving on the wrong side of the road is sure to wind up with a lot of dead drivers. That's an area where human law would extend beyond natural law.

The problem with imposing natural law is that we don't have explicit knowledge of it, which would make everything easier. We can only intuit it in a moral sense, at least as far as St. Aquinas is concerned. There are MANY natural law philosophers, as well as the other sides of the argument. I briefly mentioned Cicero, the Roman statesman and writer of De Legibus, possibly the most respected legal book no one has ever read. Cicero (106-43 BC) was a very wise man, but was persecuted in Rome for opposing corruption. Blackstone (1723-1780) was a theorist and legal commentator, but I believe he was also a member of the English church, which might cast political aspirations on his belief that God's law was supreme over man's. Blackstone spoke of God as the source of morality far more than Aquinas does in the passage above; Aquinas seemed to just imply it.

I was wrong on the years of Aquinas though, he lived in the 1200s (1225-1274). My next topic is going to be on Finnis, a good guy, much more modern, who has this very long-winded way of slightly expanding Aquinas' ideas. In the study of philosopher, it's very rare that you can assume one guy is completely right, or covered all the bases. Instead, it's more the slow distillation of ideas from many sources until you finally arrive at one that strikes you as correct.

 

Perhaps it isn't clear, Saint Aquinas drew his conclusions to Catholicism as he was a Catholic, but no one particular belief system is required by natural law. There is a man, his name escapes me, it may have been Austin, that went to lengths to actually prove that the idea of a higher morality actually didn't need ANY support from a higher power, but since I can't support that, I'll let that issue drop.

Natural Law cannot be said to be 'God's Law,' because that is merely the Christian interpretation of it. You have to stipulate that God exists, and then, following some rather simple semantics relating natural law and God, you can say that natural law is God's Law. However, that case only follows if you stipulate God exists, and the natural law argument is not strictly bound to that argument. As Aquinas stated, humanity is very diverse, and there are many ideas, both about gods and about morality. At first the only stipulation necessary to acknowledge the existance of some higher code of right and wrong was the belief in at least SOME higher power, but as I said, I believe it was Austin who posited that even that stipulation is unnecessary.

I think your logic is slightly backwards, perhaps you could clarify

because I BELIEVE you are saying that the reason positive law is limited is because natural law is essentially up in the air due to conflicting versions of it. That isn't really the case, because natural law is offered as something not necessarily limited by the fact that its religion of origin isn't prevalent everywhere.

Gods vary from one place to another, and so do the specific rules of morality. Natural law, however, is more or less the same, albeit applied differently. No where on Earth is cold-blooded murder smiled upon, or is lying a 'good' thing to engage in. Specific societies might rank the gravity of such offenses differently than others, but there is a general sense of what is right and wrong that pervades, regardless of cultural boundaries.

That last sentence you quoted isn't really speaking about other creeds, it simply refers to the fact that if I asked you, or you asked me what natural law is, we couldn't spill it out verbatim onto a piece of paper, in fact the more I know the less likely I feel like I would be able to get down. Natural law is not a formula, it deals a lot with the 'all-things-considered' that keep it from being like an equation. You just have a sense of it, and if I gave you a million and one situations you could probably tell me who was right and who was wrong, or if both were right or both were wrong, and possibly even why, but the idea is just a sort of nod to the fact that you can't codify reason into law, but you can aspire to have a set of laws that attempts to uphold morality and tries to prevent immoral behavior. 'Morality' is a very touchy word nowadays, especially in the United States, but there is no assumption of religion or ethics attached beyond the common human understanding of that which is morally right and allowable, and that which is not.

 

That's a more developed notion than St. Aquinas would have dealt with. The ideas of innate, inalienable rights has it's base in natural law, but the idea was much more refined by later philosophers, like Locke, and Voltaire, etc. The premise you are kind of hedging at goes something like this.

The 'common good' is a very vague and fuzzy term. One aspect of it, however, would be that people, when not entangled in those duties society calls them too, and not wrapped up in the active betterment of mankind, should be able to do as they please, provided that they don't infringe upon anyone else in doing it. This is known as the right to self-determination, or in layman's lyrical terms, "if it makes you hap-py, then it can't be that ba-aa-ad."

The First Amendment is a complicated device, which has many reasons, probably the foremost being that, since the question of natural law is essentially 'exactly what should people do in every situation to promote common good?' and since either no one can answer that, or if you accept certain pompous declarations as an answer, anyone could answer that, we find it best, as a society, to give people the freedom to make up their own mind. In this case, the best way to have positive law mirror natural law is to have it actively avoid impeding upon the right to self-determination.

And so, yes, to a degree, what you say is valid, but the explanation of why is far beyond the scope of Aquinas, who would have been content to say, 'that's up to the king or the people to decide, so long as it's for the common good.'

 

Heh, somehow I think the long sentences are scaring off the other members.

All valid questions, DE, and I wish I was authority enough to answer them except as my opinion. Natural Law is difficult to pinpoint, however, at least Aquinas' argument is, that even though we can't express the tenets of Natural Law, we know them inherently, and an adjudicator who was free from all perverting influences, such as money, or politics, etc, and educated enough to not be confused on any matter of the case, or of law, would be able to render a fair and impartial decision based upon the facts of the case.

The question of who wins a legal case, the right or the persuasive, is a very basic one, and more concerned with our methods of adjudication than with Natural Law theory. These are again, above the scope of that which I've posted, but we can discuss them if you'd like. I believe one of the greatest problems with the modern system of determining guilt or innocence, or for that fact finding favor or disfavor in non-criminal cases, are the prejudices and/or conflicting interests of the judges and juries in the cases. That is my own belief based upon the widespread lack of nonpartiality I see in the American justice system, and on my inferences, for I have no proof, of the corruption in some facets thereof.

We have always run the risk of wrongful convictions, and of wrongful acquitals, in justice, which is why I feel the 'beyond a shadow of a doubt' clause is so vital to the legal system, and why I am troubled at it being so often neglected. American justice was founded upon the principle that it is less heinous to let a killer loose on the streets than to deprive an innocent man of his liberty and throw him in prison, but fear and short-sightedness often overrule that principle in the hearts of citizens.

On number 3, you're touching on a fear I have every day for my country, that well-meaning people who have grown too intellectually lazy to realize what they're giving up are just going to roll over in their obesity and give up their most prized possession to some of the more articulate forces of evil. I remember the conservative chant building up to Iraq, "Freedom isn't free," and I almost want to cry sometimes because it's so ironic that the very people who want to reduce their citizens down to intellectual slavery are the same ones waving flags and screaming about patriotism. I've stood toe to toe with tanks and not been injured, but that type of irony hurts me.

Off of that and back to Natural Law... No where in Natural Law does it state that Positive Law is unncessary. IDEALLY, it would not be, however, as Finnis states rather eloquently, I'll post him tomorrow, Natural Law is not about ideals, it's about crafting morally sound positive law. There are many reasons why positive law is necessary, the second of which, as a set of procedural guidelines for those laws which are primary, I won't cover for some time, if only because there are more basic issues to go over first, but the second is very widely discussed, which is that positive law can go further than natural law would hope to.

There are no cars in Natural Law. Or guns, or airplanes, or boats. Natural Law can't regulate many things that need regulation to allow for the type of society we live in today. Also, in the cases of certain statutes, like murder and manslaughter, it is obvious that the offence is wrong, but what determines a million and one other things about the law? How culpable are the mentally ill for their actions? These are things that positive law does that natural law is unable to.

I believe it would be impossible to have a lasting government of more than a handful of people without positive law, although the reasons why have not been explored yet. And so I think positive law is an absolute necessity for more reasons than the one you cited, but that is correct, albeit not for the principles of St. Aquinas.

Good questions, I like the feedback, it's forcing me to think. Maybe I should make the original post more readable so it doesn't scare so many people away. Maybe an intellectual sub-forum or something would pull the other members in, although I think I'd be the only one in there with you. It'ld be all gay-like.

 

Not really Blinky, I just have no desire to debate the philosophy of law, and therefore have nothing to contribute.

Hence this useless, useless post.

EDIT: Clearly there are people willing to debate such things though, such as the religion/God discussion that seeped into like 4 other threads.

 

I just don't have anything to say about this that wouldn't be considered spam, except;

The way in which law is imposed seems flawed. It's almost as if there's no one law for everyone, no law that everyone needs to follow. While it is said that law gains its force through promulgation, there's no further mention of how the law would affect everyone.
"It must be applied to the men who are ruled by it," is a tad open-ended. To me, at least. What about those that apply the law?

 

It's true, Aquinas doesn't really take a very strong stance on practical implementation, he kind of leaves that open to other people to expound further. The fact that they do is a good thing. The fact that law gains force through promulgation merely is a nod to the fact that people aren't telepathic; a leader might have a very good idea, but unless he makes it a public degree of whatever sort is customary, people won't recognize it as such, and therefore they won't obey it.

Depending upon the system of government, the leader may be except or covered under the law. My thoughts are that Aquinas would have preferred the latter, but didn't want to cross anyone with a title in a feudal Europe.

 

Apologies for the double-post, again, but it's time for Finnis. I edited St. Aquinas to make it more easy to read, imo. If nothing else it's prettier now.

Natural Law and Natural Rights

Probably much to the chagrin of those members who were interested in natural rights, namely DE, the except I have in front of me is from the beginning of Finnis' book, and doesn't actually deal with that, but rather exclusively with Natural Law, and it clears up a few poignant misconceptions that a prominent, but perhaps undereducated, man named Kelsen liked to point out in Natural Law. Think of him as natural law's Bill O'Reilly. The fact that he didn't know what he was talking about in no way kept him from talking about it.

Anyway, (paraphrased to remove such unnecessaries as Finnis repeatedly mentioning the fact that this is his book, I think he was overly proud)
"What are the principles of natural law?" The sense that 'natural law' has in this book can be converyed in the following assertions, which perhaps seem empty or question-begging. (Finnis explains these in Part Two, which I of course don't have. Open for debate if you wish it, I feel they're rather explanatory)
They are (i) "a set of basic, practical principals which indicate the basic forms of human flourishing as goods to be pursued and realized, and which are in one way or another used by everyone who considers what to do," although the first declaration does not regard the soundness or unsoundness of the person's conclusions; (ii) "a set of basic methodological requirements of practical reasonableness" (itself a basic form of human flourishing) which can distinguish sound practical thinking from unsound thinking, and which, when considered in all, provide the criteria for distinguishing between such actions which are, either always or in a particular circumstance, "reasonable-all-things-considered (and not merely relative-to-a-particular purpose) and actions which are unreasonable when all things are considered. I.e. between actions and ways of acting that are morally right or morally wrong. Thus (ii) enables us to formulate, (iii) a set of general moral standards.
To avoid a misunderstanding, Finnis does not apply the principles of natural law merely to moral philosophy, ethics, and individual conduct, but traces them out also into political philosophy and jurisprudence, political action, adjudication, and the life of the citizen. These principles justify the exercise of authority in a community, and they require that such authority be exercised according to the manner labelled the Rule of Law, and with the respect due for the human rights that embody the requirements of justice, and and for the purpose of promoting the common good, in which respect for rights is invariably a component. The principles of natural law also explain that obligatory force which positive law possesses, even when the law cannot be clearly deduced from natural law. It also justifies regarding certain positive laws as radically defective, for want of conformity to these principles.
Finnis then goes on to ramble for some length about how natural law has no history. There can be a history of those who would try to understand it, but the inherent structure of natural law is eternal. I don't feel the need to devote the four paragraphs he does to this point, but the crux is there is a very important distinction between talking about natural law and talking about what other people have already said about natural law, and he would like to focus on the former for most of his book, although he does presently send some welcoming shots over Kelsen's bow for misinterpreting natural law philosophy.
Joseph Raz, the Robin to Kelsen's Batman, is quoted, "Kelsen correctly points out that according to natural law theories there is no specific notion of legal validity. The only concept of validity is validity according to natural law, i.e., moral validity. Natural lawyers can only judge a law as morally valid, that is, just or morally invalid, i.e. wrong. They cannot say of a law that it is legally valid, but morally wrong. If it is wrong and unjust, it is also invalid in the only sense of validity they recognize." He later went on to add that a natural law theorist finds it a "criterion of adequacy" that every law has a "moral worth." Meaning that parking regulations wouldn't be law because they don't speak to a higher moral code. Unfortunately for Raz, his acquaintance with Kelsen had only served to make him stupider.
Kelsen himself goes on to say that a cardinal point of natural law is that it attempts to found positive law upon a natural law delegation. He states it is 'logically impossible,' on the grounds that it would mean ascribing legal validity to the laws not because they are just, but because they follow natural law. This would mean that natural law supplants justice, and that's all hogwash, because positive law isn't limited in it's content.
If you've read that and don't get it, don't worry, Kelsen's an idiot. He appeals to a minor principal, a "petitio principii" in Finnis' terms, and does so in a very stupid way. Finnis references Aquinas, the "paradigm natural law theorist:"
'The legal validity of positive law is derived from its rational connection with natural law, and this connection holds good, normally, if and only if (i) law originates in a way which is legally valid and (ii) the law is not materially unjust either in its content or in relevant circumstances of its posting."
The point is somewhat unelaborated, but basically justice is an innate part of natural law, and so having an unjust positive law that complies with natural law is an oxymoron. Aquinas pretty much says a positive law is only valid if it complies with the inherent moral character of natural law, AND is legally valid. As Finnis puts it "to delegate is not to delegate unconditionally," or in layman's just because you say A is a requirement for B, doesn't mean A is the only requirement for B. You need a basketball to have a basketball game, but if you have a ball and no people, you still don't have a game.
Kelsen again messes up natural law, in a not uncommon way, which will perhaps clarify a fine line or two for anyone who might be confused; "[According to natural law philosophers] positive law derives its entire validty from natural law; it is essentially a mere emanation of natural law; the making of statutes or of decisions does not freely create, it merely reproduces the true law which is already somehow in existence..." Finnis has a small fit after reading that, "this is travesty," is his actual response. He again turns to Aquinas, who asserted that positive law does indeed derive its validity from natural law, at least part of it, but it is not a mere emanation from it, and that the legislator has "all the creative freedom of an architect." The reasons positive law is necessary are two-fold, according to Aquinas, one that natural law doesn't provide "all or even most of the solutions to the co-ordination problems of communal life," i.e. what side of the street should we drive on, where can planes land, if there are two thirsty men and only one beer, who gets it, that kind of shit.
Secondly, positive law can fulfill the "need for compulsion, to force selfish people to act reasonably." This is a somewhat more provocative area of natural law, but I wouldn't edit it simple because I'm not in total agreement. Positive law, Aquinas posits, has the ability to exert coercive influence over people and force them to conform to moral principles.
Kelsen of course finds another 'necessary contradiction between positive and natural law,' in that he finds one justification coercive while the other, ideally, is not only non-coercive, but actually forbids coercion among people. This is another distorted perception, because, as Finnis puts it, he actually speaks for himself on this one, "a sound theory of natural law is an attempt to express reflectively the requirements and ideals of practical reasonableness, not of idealism." Basically, we're trying to find something that works for humans, not the Rainbow Brite.

Finnis is actually a little over three pages of double-columed, small fonted repition. I distilled it for you because most of what he says goes in circles, but he does manage to defend natural law three times from three understandable, but inherently flawed judgements on the part of Mr. Kelsen and his bat-buddy, Raz.