PP213 – Legal Philosophy
Week 2 – January 15, 2014
Chapter #1 – Aquinas’ Theory of Natural Law
A Legal System ▯all parts of the law put together; the things you need to put together to explain
the legal phenomenon (police officers, courts, plaintiff, defendant, rules, etc.)
Basic Building Block of the Legal System = Legal Rules
Legal Rule = Legal Norm
Norm = any kind of standard.
(Social Norms, Religious Norms, Cultural Norms, Gender Norms [implicit], Manners, etc.)
What makes legal norms distinct?
A legal norm is “Nothing else than an ordinance of reason, for the common good, promulgated,
by him who has the care of the community” (Question 90, 4 Article ▯Aquinas)
4 Components of a Legal Norm:
Ordinance of Reason
Not about our private reasons for wanting something; not a preference. Has to be justified in a
very rich sense ▯morally justifiable.
For the Common Good
Has to be in the interest of the whole community.
Rule has to be made known.
Care of the Community
If the rule doesn’t come from someone who cares for the community it can’t possibly be a rule.
They must be acting out of care for the best interest of the community.
For Aquinas, all law begins with God.
“..the whole community of the universe is governed by Divine Reason. Wherefore the very idea
of the universe, has the nature of law. And since the Divine reasons’ conception of things is not
subject to time but is eternal.. therefore it is that this kind of law must be called eternal”
Eternal Law – gods divine plan for existence ▯supposed to be God’s laws for the universe; a set
of legal laws, supposed to be a set of norms.
Physical laws – governs the behaviour if inanimate objects. Animal Instincts
Moral Laws – meant to govern the behaviour is rational creatures, like us (humans)
He does not mean to suggest that all laws are promulgated. All laws have different sorts of
capacities, and functions. We need to take the broad view of promulgation.
Aquinas says all we have to accept is that there are 2 different categories of beings in the
NonRational Beings ▯beings that don’t understand/comprehend; they merely are. They come in
all shapes and sizes; plants, animals and inanimate objects. They can’t comprehend, but that does
not mean that they are ignored by laws that are promulgated. Built in course of action.
Rational Beings ▯beings that are able to appreciate their state of affairs; communicate, reason
(humans) ▯occurs when we are made aware of the enteral law that applies to our behaviour. We
engage with the eternal law; not encoded to us, we appreciate them and learn how to understand
them. We have an awareness of the eternal laws, and we have the capacity to choose it or not (a
rock cannot choose). We have to be made aware, because instincts don’t just cut it for humans.
Promulgating the Eternal Law to Rational Agents:
3 distinct manners in which the laws of the eternal law are made known to us:
The Natural Law (FIRST)
The primary way in which human beings can come to understand God’s divine plan.
“The rational creature’s participation in the Eternal Law”
It consists of those legal principles that are discernable through reason alone.
The answer begins by turning to a self evident truth ▯something so obvious that it doesn’t
Ex: Happiness is self evidently good.
Fundamental Principle of Natural Law = “That Good is to be done and pursued, and Evil is to be
Metaphysical Claim = a claim about the nature of reality.
Teleological = the idea that everything has an end or a purpose.
That all things within the universe are naturally inclined towards certain states of being, AND
that the good of an object is defined or understood in terms of end state towards which it is
All humans should do what we are naturally inclined to do; how we are naturally oriented
towards the world as a human being.
Primary Principles of Natural Law:
Observations about the what counts as being good for human beings.
Example: Humankind “seeks the preservation of its own being, according to it’s nature” Tell us what’s important for the flourishing of life, they do not tell us how to behave.
Secondary Principles of Natural Law:
Prescriptions about how to order a community, which are deduced from the primary principles of
Natural Law ▯Application:
Directly: X is an end (and thus a good) toward which S is naturally inclined; TEHREFORE it is a
principle of Natural Law that we ought to provide for X.
Example: X = human life.
Indirectly: X is a means of achieving Y, and Y is an end (and thus a good) towards which S is
naturally inclined; THEREFORE it is a principle of Natural Law that we must provide for X.
Example: Health (X) is a means to life (Y).
The Divine Law (SECOND)
The direction that God gave to his humans subjects through the process of divine revelation.
Divine Revelation = When God comes down and give direct instruction to a prophet or comes
down and writes something on a stone; When God gives us specific content (Ex: 10