THE
PHILOSOPHY
OF LAW
NATURAL LAW PHILOSOPHERS
PLATO (427 – 347 BCE)
 Student of Socrates
 Wrote as the voice of Socrates
 Believed that human law should strive to reflect certain universal and
eternal truths.
 Nature is inherently reasonable and good.
 Law is the moral imperative and the ideal that humans must attempt to
achieve. The most basic law is to do good and avoid evil.
Socrates
Plato
 The purpose of law is to serve as a moral guide on how to live the good
life.
 A human being achieves a state of justice through reason. The state
achieves a state of justice through law.
 Plato believed that there is a hierarchy of obedience. First people follow
the law out of fear, then out of habit and then out of the realization that law
is just.
 Since law should reflect a moral quality, Plato argues that it is just to
disobey an unjust law that does not produce harmony and justice. (Civil
Disobedience)
Aristotle (384 – 322 BCE)
 Student of Plato
 Law is derived from
Nature and is inherent in
all things animate and
inanimate.
 Law and justice are
meant to produce human
happiness. This
happiness is gained
through being virtuous
and controlling our “inner
beast”.
Unlike Plato, Aristotle
believed that justice was
within the grasp of human
beings.
Human beings are
endowed with the ability
to think and reason.
Therefore humans can
recognize their own nature
and make laws that are
suitable to that nature.
The perfect standard of
law is revealed through the
exercise of human reason
guided by observation.
This is called rationalism.
The laws of the state
must regulate human life
to help citizens to use their
reason to its greatest
potential.
Cicero (106 – 43 BCE)
Roman politician, lawyer and
legal philosopher.
Law is rooted a divine source;
Jupiter.
Natural Law is universal and
unchanging. Nature ensures the
common good.
Law is in the mind of “wise
and intelligent men” and they
are the standard by which justice
and injustice are measured
(philosopher kings).
If in the minds of “wise and
intelligent men” the law is in
conflict with the laws of nature it
should be disobeyed.
Civil disobedience should be used to
force the government to make laws that
conform to natural law.
St. Thomas Aquinas
(1224 – 1274)
Dominican Monk.
Influenced by Aristotle and
Christian teachings.
Natural Law and Rationalism
are consistent with Christian
truth.
Law must mirror a natural
world order made known
through reason and the revelation
of the prophets. Law has a moral
purpose.
Law gains its legitimacy
through reason. The validity of
law is based on its moral content
or justness.
Four kinds of Law:
Eternal Law
Natural Law
Divine Positive Law
Human Positive Law
•Eternal law comes from God and is unchanging.
•Natural law is eternal law that can be known to humans.
•Divine Positive law is the part of eternal law revealed through the
scriptures.
•Human positive law is the laws made by the state.
The Order of Natural Law
First Principle:
others,
ignorance, etc.
Do good and avoid evil.
For example preserving life, caring for children,
knowing the truth about God, not harming
helping the poor and the sick, shunning
Second Principle:
How to act based on the first principle.
For example the enforcement of the law, making of
laws, functioning of society.
Unlike Aristotle, Aquinas did not believe that the state leads
people to their greatest potential. The state is subordinate to
the Catholic church who is in charge of moral matters on
Earth. Therefore an unjust law does not have any binding
force. Such laws are an act of violence against the people of
the state.
Aquinas defines
human law as “the
ordinance of
reason for the
common good,
proclaimed
publicly by a ruler
who has care for
the community”.
English Philosopher and
Political Theorist
All people have natural rights
given to them by birth from God.
The most fundamental rights are
life, liberty and property.
Natural law states that no person
should deny these rights to
another therefore the main goal of
the state is to preserve these rights.
In the state of nature, people’s
passions often get the better of
their reason which leads to the
oppression of the weak. People
enter into civil society to hand over
authority to the state to preserve
rights.
John Locke (1632 – 1704)
Locke recommends that if the ruler violates the
natural rights of the people, the people are justified in
rebelling and replacing an unjust government with one
that will respect their rights.
“The Taking of the Bastille”
during The French
Revolution (1789)
R. M. Dworkin (1931 - )
Political and Legal Philosopher
Law must possess a moral content.
Legal reasoning is interpretive as we
try to make political and moral sense
out of difficult situations or cases.
Law has to have political integrity.
Law should be a union of widely held,
coherent political decisions that show a
consistency of moral choices and a
shared vision of social justice. Law
cannot focus on individual wants and
desires.
POSTIVE LAW PHILOSOPHERS
Thomas Hobbes (1588 – 1679)
English Political
Philosopher
The state of nature is a state
of perpetual war where the
strong prey on the weak. In
the state of nature life is
solitary, poor, nasty, brutish
and short.
In order to survive, people
must give up their rights to
the state. The sole purposes
of law is to maintain order
and strengthen government.
All people must obey
the law at all times. To
not follow the law would
only lead the world into
chaos.
The weakness of natural
law is that it allows people
to find their own meaning
of the law. This makes
law ineffectual and
legitimizes tyrants.
Jeremy Bentham
Jeremy Bentham (1748 – 1832) and John Austin (1790 – 1859)
Legal Philosophers
Utilitarianism – the greatest good for the greatest number of people.
The purpose of law is to maintain social order and the social good.
The function of law is more important than its quality.
Law is separate from morality. Natural law and individual morality
are too subjective to secure the happiness of the majority.
Law requires:
1) The existence of an authoritative body that is in
the habit of being obeyed.
2) Legal pronouncements given to political
inferiors.
3) There is an imposition of the duty to obey.
4) There is enforcement through penalties.
Obedience to the law is demanded of all. (Rule of Law)
The governed are superior to the governor therefore
abuses are kept in check by the fear of active resistance.
“The mischief of a bad government are less than the
mischief of anarchy.”
H.L.A Hart (1907 – 1992)
Law is made up of rules of general
application that are backed up by
threats given by people that are
generally obeyed.
Law can be defined by Primary
Rules which define what an
individual can or cannot do and
Secondary Rules that set out how
primary rules will be made valid
and enforced.
Hart tries to prove that there can
be a precise set of rules to define
human conduct. He does recognize
that law has an open texture or there
are limits to define human conduct.
His goal is to take to subjectivity
(morality) out of law.