Monday, April 25, 2005

The Law: Aristotle and Aquinas

All right, here it is, the director's cut version of my answer to my philosophy of law final exam question.

Asking after the nature of the law is a surprisingly complex task. At least, it was to me. There is a long list of sub-questions involved, ranging from fundamental issues of ontology and epistemology to more everyday problems like the authority of judges.

What, exactly, is a legal system? Quick answer: a discourse. You knew I was going to say that, right?

The long answer means teasing out all the peripheral questions surrounding the main question, and people have been doing that for literally thousands of years. This post is part one of I'm not sure how many, and here I'll kill two birds with one stone. I'll give a whirlwind tour of past thinkers, which will let me list the peripheral questions and give my own ultimate answer some historical context.

So let's go allll the way back to the Greeks. They began the western intellectual tradition when they decided the universe was ordered rather than random. Figuring out reality was a matter of figuring out how it was ordered.

Following from this, Aristotle said everything had four "causes" This doesn't quite mean the obvious "cause" of "cause and effect," but instead think of "responsibility." Everything has four things responsible for it, and is in turn responsible to these four things. The only one of the causes that concerns this whirlwind tour is the fourth one, the Final Cause. This is the inherant purpose of each thing that exists.

Man's Final Cause is to contemplate the good. Aristotle taught that man is a civic animal - we are dependant on others. The concept of rights didn't exist - in its place, the Greeks taught "duty." So, man is dependant on other men, and therefore he has duties towards them. So, the "good" means the "common good." Man's purpose is to work towards the common good, and this was the purpose of the law for the Greeks: to make society good so that each man could fulfill his final cause.

There's an important concept that comes from Aristotle - "equity." He knew that there is always a gap between general rules and actual life; no set of rules can cover every situation that arises in human life. So sometimes a judge needs to employ equity and go past a rule, and react to a specific situation. But how much freedom do judges have? That question was unsettled.

So do you see the two subquestions here? Aristotle was concered with the purpose of the law, and the amount of authority - or "discretion" - that judges have.

In the 13th century, Thomas Aquinas tried to synthesize Christianity and Aristotle. His philosophy of law is known as "natural law". Aquinas of course believed everything was designed and had a purpose. Everything from individuals to the state to the law has a purpose.

Aquinas discussed four levels of laws that are distinct, but work together.

1) Eternal law. The rational structure of the universe - only God has access to this.
2) Natural law. Relates specifically to humans; we all have it within us. We are designed to pursue good and avoid wrong.
3) Divine law. This is revelation, from the Bible and the Pope. It helps clarify the Natural law.
4) Human law. This is specific to society - trying to implement both Natural and Divine law. There is a gap between the abstract principles of Natural and Divine law, and Human law tries to make them concrete.

There are two types of wrongs for Aquinas. Something can be Mal in se wrong in itself. Or something can be Mal in prohibitum - wrong because it is illegal.

Laws flowing from the Mal in se can be just or unjust; they are valid to the extent that they conform to Natural and Divine law. If these laws violate Natural and Divine law, then they aren't really laws at all and the invidual is not under obligation to follow them.

Mal in prohibitum laws, however, can be fair or unfair. If a law is merely stupid or unfair, then moral obligation remains. An example is the restriction of smoking in downtown bars - Aquianas might agree it's a stupid law, but you still have to respect it.

So along with the purpose of the law, Aquinas brings in three more concerns. First, the law and morality are intertwined. The purpose of the law is to implement natural and divine morality. Secondly, he sets up a test for the validity of a given law; is it in comformity with natural and divine law? Third, he discusses the source of the law.

It's my bedtime, so I'll sum up. The relavent issues so far: the purpose of the law, its source, a test for validity, and the role of judges.

I'll skip ahead to 20th century writers next post.

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