ESSENCE OF THE LAW

INTRODUCTION

The legal tradition has a long and venerable history. Its beginning can be found in the writings of
the ancient Greek philosophers Plato and Aristotle, and natural law was the dominant view of the
Greek stoics. It was widely adopted by Roman jurists and orators such as Cicero. It was something
like the official doctrine of the medieval scholastics. It had such powerful advocates as Hugo
Grotius, Samuel Pufendorf, Francisco Suarez, and John Locke in the 17th century, and it has many
thoughtful contemporary champions as well.

Natural law, as traditionally understood, has sometimes also been called higher law,
and for good reason. Traditional natural law theorists typically believed that there is a source of
law beyond human creation. The dictates of natural law have their source in divine command,
human nature, or the order of nature itself. Depending on which version of natural law is adopted,
there will be variation concerning how human beings come to know the natural law: through divine
revelation, by studying human nature, or by studying the order of the natural world itself. Despite
these differences of detail, however, all natural law theorists believe that there is a source of law
that is independent of human creation, and that it can be discovered by human beings through the
exercise of their reason. As rational creatures, human beings have access to the natural law.
Moreover, since the source of natural law (divine command, human nature, or the order of the
universe) is unchanging and universal, the natural law is also unchanging and universal. That is,
the natural law is the same for all people, in all places and times.

This unchanging and universal higher law is contrasted with human-made law, which of
course is often changing and only governs a particular group of people in a particular place and
time. The central task of much philosophy of law, or jurisprudence, has been thought to be that
of providing a definition, or general explication, of law. Because natural law theorists had to
provide a definition that covered both natural and human law, they were naturally led to provide a
normative definition of law. This was so because the natural law was understood to be
fundamentally normative. Natural law does not merely order the world, but orders it well.
Likewise, human law, which directs the behavior of persons, does not merely seek to direct
behavior, but to direct it aright. What is distinctive to the natural law position is the insistence that
the direction provided by law must be toward ends that are rationally defensible or objectively
good; law must direct behavior toward the common good. It is this requirement, that all genuine
law aims at what is truly good, not just for the ruler but also for the ruled, that sets natural law
theory apart from others. In short, natural law theorists believe that law, as law, must aim at morally
right ends.

We take our example of traditional natural law theory from St. Thomas Aquinas, whose writings
on law provide our first reading. Modern natural law theorists offer quite different accounts than
does Aquinas; some of these are presented later in the book.

St. Thomas Aquinas (c.1225–1275) was a Dominican monk who wrote extensively on both
theological and secular topics, including law, morality, and politics. Of particular interest for us
are his writings on law, which come from his greatest work, Summa Theologica. The following
excerpt from Summa Theologica is quite challenging for students first embarking on the study of
the philosophy of law. The effort is worthwhile, I believe, because Aquinas identifies and discusses
in the following passages many questions that have dominated jurisprudence from his time to ours.

Aquinas divided his treatise into several different questions. He poses a question and then provides
an answer. One question explores the essence of the law. In other words, when we call something
a 'law,' what exactly do we mean?

Aquinas decided that there are four characteristics of all law:

 An order of practical reason

 Directed toward the common good
 Made by someone who cares for the community
 Promulgated, or publicized

Let's look at these characteristics a little closer.

1. Law is an ordinance of reason. - Is law something pertaining to reason?

The word law derives from a Latin word which means to bind. Now, the rule or measure of human
acts is reason; what binds a man interference to human acts pertains to reason.
Thus, a law is an order, meaning it binds, or obligates, a person to a particular behavior. For
example, I still have free will and can voluntarily choose to speed down my street anyway.
However, my free will is bound to the obligation to obey the speed limit. I use my practical
reasoning skills to choose whether or not I will comply with this obligation. According to Aquinas,
I will choose based on what brings me the most happiness.

2. Law is an ordinance of reason for the common good of persons in a society - Is the law
always something directed to the common good?

Law is not directly for the benefit of individual persons as such, although it binds individual
persons. Law is primarily for the benefit of individuals in a group, in a society.

A law is directed toward the common good. This means the law is meant to further the interests
and the overall happiness of the community. It's in the best interests of the community to promote
safe driving, whether or not I individually find happiness from this law. Though our individual
'goods' might differ, they are all ultimately directed toward overall human happiness.

3. The Lawmaker – (Is the reason of any person competent to make laws?)

A law is made either by the society which it binds, or it is imposed on that society by the public
personage who has charge of the society and authority to rule it.

Law, properly speaking, regards first and chiefly an ordering to the common good. Now to order
anything to the common good belongs either to the whole people or to someone who is the
vicegerent of the whole people. And, therefore, the making of law belongs either to the whole
people or to a public personage who has care of the whole people, since, in all other matters, the
directing of anything to the end concerns him to whom the end belongs.

A private person cannot lead another to virtue efficaciously, for he can only advise, and if
his advice be not taken, it has no coercive power, such as the law should have in order to prove an
efficacious inducement to virtue, as the Philosopher says. But this coercive power is vested in the
whole people or in some public personage to whom it belongs to inflict penalties, as we shall state
further on. Wherefore, the framing of laws belongs to him alone.
Thus, a law is an order made by someone who cares for the community. Because laws are meant
to increase the common good, the community should be permitted to make their own laws. Aquinas
says this can be accomplished a couple of different ways. The people can enact their laws, or laws
can be made through a representative who works on behalf of the common good.

4. A law must be promulgated – (Is promulgation essential to a law?)

That is, it must be sufficiently announced and made known to those upon whom it lays obligation.
Without knowledge of a law, a person cannot be guided by it in his human acts. The full definition
of law is: an ordinance of reason, made and promulgated for the common good by one who has
charge of a community or society. Thus, the law must be publicized. I cannot be bound, or
obligated, to a set speed limit if that speed limit has not been communicated to me. The people
must be notified of the laws in order to be obligated to follow them.

As stated above, a law is imposed on others by way of a rule and measure. Now a rule or measure
is imposed by being applied to those who are to be ruled and measured by it. Wherefore, in order
that a law obtain the binding force which is proper to a law, it must needs be applied to the men
who have to be ruled by it. Such application is made by its being notified to them by promulgation.
Wherefore promulgation is necessary for the law to obtain its force.

Those who are not present when a law is promulgated are bound to observe the law, in so far as it
is notified or can be notified to them by others, after it has been promulgated.

The promulgation that takes place now extends to future time by reason of the durability of written
characters, by which means it is continually promulgated.

Aquinas identifies four kinds of laws that are of interest to us: eternal law, natural law, human law,
and divine law. To fully understand Aquinas’s theory of law, it is necessary to understand not only
the essences of each kind of law but also the relations between them. One way of working through
this somewhat difficult discussion of the various kinds of law is to ask the following five questions
of each kind: (1) who makes it? (2) To whom is it directed, or whom does it bind? (3) To what end
is it directed? (4) How is it promulgated? And (5) is it a dictate of reason?
Eternal Law

Eternal law is identical to the mind of God as seen by God himself. It can be called law because
God stands to the universe which he creates as a ruler does to a community which he rules. When
God's reason is considered as it is understood by God Himself, i.e. in its unchanging, eternal nature,
it is eternal law.

Divine Law

Divine law is derived from eternal law as it appears historically to humans, especially through
revelation, i.e., when it appears to human beings as divine commands. Divine law is divided into
the Old Law and the New Law. The Old and New Law roughly corresponding to the Old and New
Testaments of the Bible. When he speaks of the Old Law, Thomas is thinking mainly of the Ten
Commandments. When he speaks of the New Law, the teachings of Jesus.

Human Law

You might think here that he would define human law as what we sometimes nowadays call
positive law, the laws actually enacted and put in force in our human communities. But in fact
human law fits just those so-called positive laws which are what written and enacted laws should
be. So-called laws which fall short of what they should be are not true laws at all, according to
Thomas.

Law is directed to the common good, and human law is no exception. The promotion of virtue is
necessary for the common good, and human laws are instruments in the promotion of virtue.
Aristotle already pointed out that most people are kept from crime by fear of the law. Thomas
accepts this judgment, suggesting that by coercion even men who are evilly disposed may be led
in the direction of virtue.

Everyone is subject to human law and ought to obey the human law, that is, the true human law,
not the occasional perversion of it which is sometimes presented as law. But the ruler (charged
with stating and enforcing the law) is in a special position. Normally, he is obliged to follow the
law which he himself has stated. But there is nobody over him to judge him in this life. However,
he is not exempt, since he will be held accountable by God.
Human law can be changed, and occasionally should be changed, but it should not be lightly
changed. The reason is that respect for the law is largely a matter of custom or habit, and inessential
change undermines this custom. The common good is not served by a more finely tuned,
theoretically better law, if people have less respect for law and follow it less faithfully.

Natural Law
Natural Law is a moral theory of jurisprudence, which maintains that law should be based on
morality and ethics. Natural Law holds that the law is based on what’s “correct.” Natural Law is
“discovered” by humans through the use of reason and choosing between good and evil.
Therefore, Natural Law finds its power in discovering certain universal standards in morality and
ethics.

Change in Laws - of Change in Laws

While eternal law, natural law, and divine law are unchanging, human laws, it seems, are often
changed. Aquinas considers a number of questions concerning the desirability of such changes.
He also addresses a question that, as we shall see, has perplexed other philosophers of law; namely,
the question of whether custom and long-established past practice can become law.

The Role of Judges in Making Law

In this Question, Aquinas addresses a series of issues concerning the role of judges in a legal
system. As we shall see, there is an ongoing debate concerning the proper principles by which
judges ought to interpret the law, as well as the role judges ought to play as lawmakers rather than
mere interpreters of the law that other people make.

The Judge as Embodiment of Justice - (Is judgment an act of justice?)

Judgment properly denotes the act of a judge as such. Now a judge [judex] is so called because he
asserts the right [jus dicens] and right is the object of justice . . . Consequently the original meaning
of the word “judgment” is a statement or decision of the just or right. Now to decide rightly about
virtuous deeds proceeds, properly speaking, from the virtuous habit; thus a chaste person decides
rightly about matters relating to chastity. Therefore judgment, which denotes a right decision about
what is just, belongs properly to justice. For this reason the Philosopher says that “men have
recourse to a judge as to one who is the personification of justice.”
When a Judgment is Just (Is it lawful to judge?)

Judgment is lawful in so far as it is an act of justice. Now . . . three conditions are requisite for a
judgment to be an act of justice: first, that it proceed from the inclination of justice; secondly, that
it come from one who is in authority; thirdly, that it be pronounced according to the right ruling of
prudence.

Conclusion:

Thus, from the above observations, the essence of law lies in the fact that the definition of law may
be gathered; and it is nothing else than an ordinance of reason for the common good, made by him
who has care of the community, and promulgated.