Tuesday, March 26, 2024
Year : 2, Issue : 13
by SADIA J. CHOUDHURY
Aquinas believed the central relationship between Natural Law and Human Law is that Human Law gets its authority from Natural law. According to Aquinas’ theory of Natural Law, there are four kinds of Law which are Eternal law, Natural Law, Human Law, and Divine Law. Divine Law is the law given by God directly. Aquinas keeps Divine law completely separate and believed that it is possible to explain the nature of law without believing in God. According to him, Eternal Law consists of all the laws that exist in nature. It is beyond human’s capabilities to understand all eternal law. Natural law is a part of eternal law that is accessible to human’s understanding. Therefore, Natural law is every law that exists in nature that humans are capable of understanding. There are two types of Natural Law which are Descriptive and Prescriptive. Descriptive laws are the ones that describe nature, and prescriptive laws are the ones that explain how to deal with nature. Examples of descriptive laws are the laws of physics, biology, etc. Examples of prescriptive laws are the laws of morality and ethics. Human laws are prescriptive laws that are made by humans. According to Aquinas, human law gets its authority from Natural Law and natural law gets its authority from reality. He believed that authority exists only in nature, and it’s derived from the truth of reality. He believed in objective universal truth. According to his theory, Human laws don’t have authority on its own and if only it maintains conformity with natural law, it has authority. Human law exists to interpret Natural Law. According to Aquinas, Nature is always Just, Justice is inherent in Natural Laws. Therefore, an unjust law is not law.
John Austin is a legal positivist who criticized Aquinas’ theory of natural law as he believed that law and morality are two separate things. He formulated a separation thesis that separates two questions of the law, “What is the Law” which is a factual question and “What ought to be the Law” which is a moral question. He rejected Aquinas’ theory that law gets its authority from an objective moral truth. He believed that the laws are commands of the sovereign of the state and the legitimacy of the laws depends on the fact that it was given by the sovereign that was identified by the fact that he was obeyed. Austin proposed a command theory of law that the law consists of the commands of the sovereign and every command is backed up with sanction. Austin opposed Aquinas and believed the morality of laws is irrelevant and it’s the sovereign that makes laws legitimate. According to Austin, connecting law and morality is a misjudgment of the nature of the law. To understand the law, one needs to focus on society’s structure and find the person at the top who is followed by everyone, known as the sovereign and the commands given by him which come with sanctions.
I do not agree with Austin’s criticism of Aquinas’ natural theory of law. Aquinas’s belief of objective truth is not necessarily incontrovertible, but Austin’s rejection of morality in the law seems limited to a particular kind of political society. In order to understand the essence of law, one must look beyond the confines of a specific social paradigm. It is important to consider every aspect of reality of the law and its effects on the larger society. Throughout history, there have been immoral laws and then revolutions happened for a moral cause that helped change the law. There is a moral truth to most laws even if it’s a command from the hierarchy. Human laws are created to help human societies function more efficiently which involves moral value. If the law is nothing but the commands of the sovereign, the law barely has any relationship with the greater society and humanity. The very purpose of creating laws is directly connected to the citizens of a state. According to Aristotle, eudaimonia, which means human flourishing is the ultimate goal of human life and can be best accomplished by cultivating virtue and pursuing moral excellence. Aristotle believed that the purpose of the state is to advance the common good and create the circumstances necessary for people to achieve eudaimonia. In this view, the state is in charge of establishing laws and organizations that support the welfare and flourishing of its people. Since the beginning of time, rules and regulations have been created to direct humans towards civilization. Laws have always had value that can lead people to a better way of living. Therefore, even if I do not believe in Aquinas’ view of objective truth, I do not agree with Austin’s criticism that laws are only the commands of the sovereign and have nothing to do with morality.
Author: Editor, The Generation
