Sample Academic Essay on English Jurisprudence

Question no. 1:

Natural law theory, like other legal theories, uses a philosophical approach to attempt to answer two fundamental questions – what is law and what constitutes good law. According to most natural law theorists, law is based on moral philosophy and moral philosophy is derived from two sources, human reason and God. As long as the core moral principles used to make law are eternal, universal and immutable, law will be deemed to be good. Like the Ancient Greek and Roman Natural law theorists before them, Aquinas and other Classical law theorists like Augustine have based their theories on a similar model. However, they have gone beyond the Ancients, in some aspects, by inculcating Christian theological themes into the Natural law theory. Furthermore, since they lived in a more complex societies politically and economically, as compared to the Ancients, their theories mirror themes of political order and stability. This essay will attempt to highlight and elaborate upon the Natural law theories of Aquinas and Augustine, both of them being classical natural law theorists, and conclude that their theories indeed echo with the two themes mentioned in the statement above. It will also attempt to comment on Augustine’s idea of ‘An Unjust law is no law’, being contradictory to the theme of order and stability and how Aquinas’s theory modifies this idea to discourage the upheaval of order and stability in a society.

Thomas Aquinas is one of the classical Natural law theorists whose theories are inspired by Aristotle and Augustine. However, unlike Aristotle, who pre-dated Christianity itself, Aquinas marries Aristotle’s theory of rationalism with Christian tradition. He believes man, because he possesses reason, to be a participant in divine wisdom whose purpose is to live in a flourishing Christian community. Much like Aristotle’s theory, Aquinas’s also possesses a teleological approach, in that he focuses more on an idealistic end goal and what a perfect legal system ought to be. He argues that law is a necessary institution in a community and just laws will reflect directly (specifiato) or indirectly (determinato), the universal morality of natural law. The fact that he considers law to be an essential part of a society indicates that his theory is concerned with stability because law is needed to regulate the society. In his attempt to explain what law is, he divides law into four categories; eternal law, which is concerned with the laws of nature such as gravity, divine law which is contained in Holy scripture like Bible, natural law which is discovered through human reason and human law which is an amalgamation of divine law and natural law. He also categorizes truth to be of three kinds: divine truths, truths that man can discover through speculative reason and truths that man can discover through practical reason and it is upon the basis of these truths that there can be order in society as these truths will lead man to exercise correct judgement. For Aquinas, a human law would be unjust where it furthers the interests of the law-giver only, exceeds the power of the law- giver and imposes burdens unequally on the government. Like Augustine before him, he believes that an unjust law is no law. However, interestingly enough, he states that this does not give a license to the public to disobey the law because, disobeying the law would lead to anarchy and upheaval of the natural order of things. He states that unless the Church steps in and declares a law invalid, it is the duty of the public to follow it. Practically speaking, in the time that Aquinas lived, it is not everyday that the Church would step in to interfere in the legal systems of other States as that would usually lead to war. Thus, the statement above rings true; Aquinas’s theory concerns itself with political stability and order to the extent that at some places, it contradicts itself and risks being called insincere towards natural law. Hans Kelsen criticises this approach because of the inconsistencies present within it.

The second Classical Natural law theorist whose theory concerns itself with political stability and order is Augustine and that is not a surprise since Aquinas gets much of his inspiration from Augustine. Augustine delves deeper into Christian theology by drawing analogies between the real World and themes present within the Bible. One of the recurring themes that he keeps mentioning is the fall of Adam and Eve from the garden of Eden due to their sins. This he claims is the punishment that every man in the real World is destined for and this is what explains man’s suffering. However, he also claims that since Jesus died for the sins of man, there is a redemption that man can earn by following the commandments of God and exercising reason. According to Augustine, the State is a divinely ordained punishment for man and serves two purposes: to punish the wicked and to refine the behaviour of the righteous. It also attempts to provide some sort of stability and peace for the fallen man so that absolute chaos does not ensue. Again, this resonates with Augustine’s theory concerning itself with order and stability. He puts the concept of justice at the heart of a society, without which, there is no purpose of the ‘body politic’ (which is a name that he gives society). He states ‘In the absence of justice, what is sovereignty but organised robbery?’ Law and order are two tools that attempt to uphold justice and regulate the body politic in order to create universal order. Universal order is, again, governed by morals which are eternal, immutable and universal in nature. If there is no prevailing universal order, it leads to the creation of unjust law and according to him, an unjust law is no law. However, like Aquinas, he too contradicts himself by claiming, for instance, that the minor sins of Princes must be forgiven, in order for stability and peace to prevail. Therefore, the statement above rings true in Augustine’s case as well. While, ‘an unjust law is no law’ rings a charismatic revolutionary tone, it is insincere since the primary things that his theory is concerned with are justice and law and order and by extension, maintaining the status quo. In a way, he lays out that a perfect society does not contain unjust laws, he provides no ways to tell how to avoid unjust laws without disobeying them. This is the ‘is-ought’ fallacy that David Hume so ardently criticises because the gap that exists between what is and what ought to be, is not bridged by either Aquinas or Augustine.

Thus, both Aquinas and Augustine inculcate Christian theology into the more rationalistic natural law theories of the Ancients and concern themselves with the prevailing political stability and order, exactly like the statement in the question highlights. While they both declare that they do deem an unjust law to be invalid, they give no alternative method to bypass unjust laws because not following unjust laws is not an option as it ensues chaos and revolution. This leads to many legal positivists criticising their theories for being inconsistent and insincere to the Natural law theory in general