Aquinas and Austin on Human Law

Aquinas's View of Human Law

• Human law is derived from natural law and deals with "temporal" communities or states.
• Natural law dictates that harming others is wrong, leading to human laws against murder, assault, and rape.
• Punishing evil doers is another natural law premise, resulting in specific punishments determined by human law.
• Acts like adultery, theft, and "unisex" lust (homosexuality) are considered against natural law, but Aquinas does not explicitly state which should be criminalized.
• Aquinas lists human law's purposes as:
  • Protecting people from harm
  • Correcting vices by habituating criminals to return to virtue
  • Cultivating certain virtues
  • Establishing and maintaining arrangements for general welfare.

John Austin's Legal Positivism

• Austin rejects metaphysical and theological approaches to law like Aquinas.
• He favors "conceptual analysis," a method that demystifies law and morality by separating legal theory from moral theory.
• Austin champions utilitarianism as a practical and empirical moral framework.
• He criticizes natural law for its ambiguity and confusion between human law and morality.
• Natural law derives an "ought" from an "is" which he views as problematic.
• He argues that unjust laws are laws, contradicting those who claim otherwise.

Austin's Province of Jurisprudence Determined

• Revisits the fundamental nature of law, emphasizing clarity and simplicity.
• Defines law as "a rule laid down for the guidance of an intelligent being by an intelligent being having power over him."
• This differs from Aquinas's definition by focusing on power dynamics and omitting moral considerations.
• Identifies two basic types of laws:
  • Laws set by God for people (Divine Law)
  • Laws set by people for other people (Positive Law + Positive Morality)

The Rule of Recognition

• A crucial but unstated element of law that serves as the foundation for identifying valid rules within a legal system.
• It is not itself identifiable in the same way as other rules within the system.
• The rule of recognition exists in the practices and beliefs of officials within the legal system.
• Its existence is factual, based on the consistent practices and beliefs of officials.
• It plays a normative role, but not necessarily a moral one.

The Existence of a Legal System

• Requires two conditions:
  • Rules validated by the rule of recognition are generally accepted and obeyed by society.
  • The legal machinery, including the rule of recognition, are in place to generate and enforce the rules.

Raz's Formal Conception of the Rule of Law

• Focuses on law's ability to effectively guide conduct.
• Presents eight principles divided into two parts:
  • Part 1: Principles that enable law to guide conduct effectively.
    • Laws should be prospective, open, and clear (promulgation, not secret laws).
    • Laws must be relatively stable, facilitating understanding and adherence.
    • The making of laws should be guided by open, stable, clear, and general rules (consistent with the previous two).
  • Part 2: Principles that ensure the legal machinery is capable of effective guidance.
    • An independent judiciary.
    • Principles of natural justice (fair and open hearings).
    • Review powers (not fully explained).
    • Further details on the remaining principles are not presented.

Explore the contrasting views of Aquinas and Austin on human law. This quiz delves into Aquinas's perspective on natural law's influence on human laws and Austin's legal positivism, which emphasizes conceptual analysis. Perfect for students of philosophy and legal studies.