St Thomas Aquinas Theory of Law
Thomas Aquinas` theory of 53 is based on the idea that if something is „natural,“ that is, if it fulfills its function, it is morally acceptable, but there are a number of unanswered questions about naturalness. In any case, conceptual analysis of law remains an important, albeit controversial, project in contemporary legal theory. Conceptual theories of law have traditionally been characterized in terms of their attitude toward the overlap thesis. Thus, conceptual legal theories have traditionally been divided into two main categories: those such as natural law theory, which claim that there is a conceptual relationship between law and morality, and those such as legal positivism, which deny such a relationship. The second thesis, which is at the heart of the moral theory of natural law, is the assertion that moral norms are somehow derived or implied by the nature of the world and the nature of man. St. Thomas Aquinas, for example, identifies the rational nature of man as what is defined by the moral law: „The domination and measure of human actions is reason, which is the first principle of human actions“ (Thomas Aquinas, ST. I-II, Q.90, A.I). Since humans are rational beings by nature, it is morally appropriate that they behave in a manner consistent with their rational nature. Thus, Thomas Aquinas draws the moral law from the nature of man (i.e.
from the „natural law“). According to Finnis, the conceptual point of law is to facilitate the common good by providing binding rules that solve the coordination problems that arise in the common pursuit of these fundamental goods. Thus, Finnis summarizes his legal theory as follows: Of course, as Brian Bix (1999) points out, the Austin case does not work because it is always possible for a court to apply a law against a person who does not conform to Austin`s own theory of legal validity. Like classical naturalism, Finnis naturalism is both an ethical theory and a theory of law. Finnis distinguishes a number of equally valuable basic goods: life, health, knowledge, play, friendship, religion and aesthetic experience. Each of these goods, according to Finnis, has an intrinsic value in the sense that, in the face of human nature, it should be valued for itself and not just for another good to which it can contribute. Moreover, each of these goods is universal in the sense that it governs all human cultures at all times. The purpose of moral principles, from this point of view, is to give an ethical structure to the pursuit of these fundamental goods; Moral principles allow us to choose between competing goods and to define what a person can legitimately do in pursuit of a fundamental good.
10Thomas Aquinas thinks that everything has a purpose and follows a plan. He is, like Aristotle, a teleologist (the Greek term „telos“ refers to what we might call a goal, a goal, an end / or the true final function of an object) (see chapter 3; not to be confused with a telelogical ethical theory such as utilitarianism) and believes that every object has a telos; the acorn has the telos to become an oak; the eye is a telos to see; a rat eating and breeding, etc. (note that this refers to his view of sex, see chapter 10). When something accomplishes its purpose/plan, it follows the Eternal Law. According to the legal theory of natural law, the authority of legal norms necessarily derives at least in part from considerations related to the moral value of those norms. There are a number of different types of legal theories of natural law that differ from each other in terms of the role that morality plays in determining the authority of legal norms. John Austin`s conceptual jurisprudence provides a number of necessary and sufficient conditions for the existence of law that distinguish law from lawlessness in all possible worlds. Classical theory of natural law, such as the theory of Thomas Aquinas, focuses on the intersection between moral and legal theories of natural law.
Similarly, John Finnis` neo-naturalism is an evolution of classical theory of natural law. In contrast, the procedural naturalism of Lon L. Fuller is a rejection of the conceptual naturalistic idea that there are necessary material moral constraints on the content of the law. After all, Ronald Dworkin`s theory is a response and critique of legal positivism. All these theories support one or more fundamental principles of natural law theory and are important for its development and influence. Conversely, although unusual, one could accept a theory of natural law without advocating a theory of natural law of morality. One could argue, for example, that the conceptual point of law is partly to reproduce the requirements of morality, but also a form of ethical subjectivism (or relativism). According to this particular view, the conceptual purpose of the law would be to apply standards that are morally valid on the basis of cultural consensus. For this reason, the theory of natural law is logically independent of the theory of morality of natural law. The remainder of this essay will deal exclusively with theories of natural law.
Ronald Dworkin`s so-called third legal theory is best understood as a response to legal positivism, which essentially consists of three theoretical obligations: the social fact thesis, the conventionality thesis, and the separability thesis. The social fact thesis asserts that it is necessary that legal validity should ultimately be a function of certain types of social facts; The idea here is that what ultimately explains the validity of a law is the existence of certain social facts, in particular formal promulgation by a legislator. Indeed, Austin explicitly supported the view that it is not necessarily true that the legal validity of a norm depends on the conformity of its content to morality.