WHY STUDY PHILOSOPHY OF LAW

Introduction

The setting of Plato’s dialogue Crito is the following: Socrates has been convicted of the crime of corrupting the youth of Athens by teaching an impious about the gods. For this, he has been sentenced to death by poison. He is now in prison waiting the time at which he must drink the fatal cup. His friend and student Crito comes to visit him and explain that a “jailbreak” is all arranged. Crito offers various reasons as to why Socrates should escape. But is it right? Socrates asked. Is it right for someone who has been convicted of a crime, even if he believes his conviction was unjust to avoid punishment? More generally, is there an obligation to obey the law, and what can be the basis for such an obligation? The following questions are only answerable when one has understood what law is in the light of philosophy. “Why study philosophy of law” is a question this paper aims at answering. I begin with clarification of basic concept which leads us to the scope of philosophy of law, followed by the relationship between law and philosophy which provides us with the existential import as to why we ought to study philosophy of law, and then conclusion.

Conceptual Clarifications

Philosophy: Etymologically, philosophy is the combination of two Greek words, Philos (love) and Sofia (wisdom), which translates to mean lover of wisdom. It is pertinent to note that there is no universal definition of philosophy and thus relates to the fact that the more philosophers increase, the more such definition is likely to increase. On the other hand, various definitions share something in common with others. Philosophy can be said to be a rational, critical and logical evaluation of a subject matter for the aim of acquiring knowledge with leads to wisdom and happiness which is the goal of humans.

Law: The question “what is law” has had long history and many answers has been given to it. Many of these, however, are not alternative answers to the same question, but answers to different questions about nature of law.[1] Moreover, for Aquinas, law is a rule and measure of acts, whereby man is induced to act or is restrained from acting: for lex (law) is derived from ligare (to bind), because it binds to act.[2] In order words, law is an ordinance of reason for the common good, promulgated by him who has the care of the community.[3]

Philosophy of Law: This is also known as legal philosophy and is concerned with what the aim of law should be and also, of course, with what the law can actually do. It also concerned with the permissible scope of the law, with its limit.[4]

The Scope of Legal Philosophy

Plato’s dialogue Crito illustrates the fact that the field of the philosophy of law overlaps with other branches of philosophy. The Crito is not only one of the classics of legal philosophy; it is also one of the classics of ethics and political and social philosophy. The same holds for works by other writers, for instance, Hobbes’s Leviathan. There are no sharp lines of demarcation to the philosophy of law. Certain problems are common to all these subjects, though they are often dealt with in legal philosophy from a narrower perspective. This perspective also holds and perhaps even more narrowly, for many works on “jurisprudence” which are devoted to explaining the basic doctrines and principles of a given legal system.[5] These works are nevertheless of philosophical interest. Still, because of the ground they have in common, ethics and political and social philosophy has a great deal to learn from philosophical inquiry into law. The study of moral reasoning, for example, can be enriched by the study of legal reasoning.[6] The philosophy of law also shares another features with the above mentioned branches. It deals with two kinds of question:  normative (or justificatory) and analytic (or conceptual).[7]

Relationship between Law and Philosophy

Philosophy and law have a relationship shared among themselves as both are not devoid of reason. Reason is the connecting factor for both philosophy and law. The science of reason known as logic is a tool employed in the domain of law for proper and critical evaluation of how law ought to be. A just law is built on the foundation of good reason. Argument for the justification of a particular law is brought to realization by logical reason. Philosophy also obeys certain laws found in its domain in order to provide a sound reason for propounding or choosing a particular theory.

Natural Moral Law

The term natural law refers to those moral insights which man is able to know by means of his reason, independently of the verbal revelation of God. It is of fundamental importance to know that the term “natural” in this discuss has the meaning of (1) not supernatural, that is, not communicated in a supernatural way; (2) not positive, that is, not result of command of a legislative authority, as in positive human or divine law; (3) found in and derived from the nature of man. These explanations show that the doctrine of natural law deals with the question of natural ethics as a whole. Natural law, the moral law of nature, natural ethics and natural morality are synonyms.

            Natural law doctrine is of fundamental importance above all two on two accounts. First, it is the basis of moral order of universal character and constitutes a source of ethical wisdom which Christians share with all mankind, for its rest upon the reality which is shared by all humans: their common humanity and existential conditions. Secondly, natural law is the only adequate safeguard against arbitrary exercise of political and legislative power. It is the final court of appeal against unjust, prejudiced laws of human authorities. [8]

Why Study Philosophy of Law?

Having come this far in this paper, we are now faced with the epistemological question as “why study philosophy of law? In answering the above question, I’ll begin by stating that man in his nature is both a rational and social being. Man needs the basic knowledge which makes him relate to issues in his/her social consciousness. Again, since man is a political animal according to Aristotle, he/she is fully involved with what goes on in his/her society. Perhaps, ignorance is not an excuse for the law to take its due course. Philosophy of law as earlier pointed out is concerned with what law ought to be and its application to issues that arise in our society.

According to Aquinas, lawmaking is a purposive activity. Its basis is the fact that humans are goal-oriented. It is natural for creatures to seek ends that are appropriate to its nature or essence. The fixing of the essences of things, and of the inclinations of creatures toward end that complete their nature, is an aspect of the divine governance of the universe, i.e., eternal law.[9]  What gives content to the natural law is the rational apprehension of the essence of man and the human good. Aquinas developed this alongside Aristotelian lines that man is by nature a social animal: he desires to live a life in common with other men, and he satisfies his needs and wants only in co-operative enterprise with others.[10]

Augustine in supporting Aquinas says:

“That which is not just seems to be no law at all. Hence the force of a law depends on the extent of its justice….Every human law has just so much of the nature of law as it is derived from the law of nature. But if in any point it departs from the law of nature, it is no longer a law but a perversion of law.” (Summa Theologiae, I-II, q. 95)[11]

Hence, studying philosophy of law is aimed at establishing justice through just laws which is the end or goal of human beings. And so an unjust law will create violence and make the goal of man unachievable.

Again, the knowledge derived from philosophy of law will make man live a life of virtue as Thomas Aquinas stated in his treatise on laws with particular reference to the effect of law. He said:

“A law is nothing else than a dictate of reason in the ruler by whom his subjects are governed. Now the virtue of any subordinate things consists in its being well subordinated to that by which it is regulated: thus we see that the virtue of the irascible and concupiscible faculties consists in their being obedient to reason; and accordingly the virtue of every subject consists in his being well subjected to his ruler. So laws are meant to lead one to their proper virtue”.[12]

Conclusion

From the forgoing, it has been evidently shown that law cannot be removed from the existence of man. This is so given the fact that man is a rational being and a political animal, for he/she is responsible for what goes on his/her political environment. When made within the discourse of religion, ethics, political theory, legal theory or philosophy of law, the claim that there is a natural law is an offer to explain and defend certain claims often made, in different terms, in the discourse of moral argument and choices, politics or law. In pre-theoretical moral discourse, certain choices, actions or dispositions may be asserted to be ‘inhuman’, ‘unnaturally cruel’, ‘perverse’ or ‘morally unreasonable’. In pre-theoretical political discourse, certain proposals, policies or conduct may be described as violations of ‘human rights’. In international law and jurisprudence, certain actions may be described as ‘crimes against humanity’ and citizens may claim immunity from legal liability or obligations by appealing to a ‘higher law’. The knowledge derived from law theory offers to explain why claims of this sort can be rationally warranted and true. It offers to do so by locating such claims in the context of a general theory of good and evil in human life so far as human life is shaped by deliberation and choice.

Bibliography

Aquinas, Thomas, Treatise on Law (Summa Theological, Questions 90-97), U.S.A: Benziger Brothers, Inc., 1965

Pagis, Anton G. Basic Writings of St. Thomas Aquinas, ed. New York: Random House, 1954, Vol. II, 784

 Golding, Martin P., Philosophy of Law, U.S.A: Prentice-Hall, Inc., 1975

Wollheim, Richard, “The Nature of Law,” Political Studies, 2 (1954), 128-44.

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[1] Richard Wollheim, “The Nature of Law,” Political Studies, 2 (1954), 128-44.

[2] Thomas Aquinas, Treatise on Law (Summa Theological, Questions 90-97), (U.S.A: Benziger Brothers, Inc., 1965), P.3

[3] Cf. Martin P. Golding, Philosophy of Law, (U.S.A: Prentice-Hall, Inc., 1975), P. 30.

[4]Cf. Ibid., p.3

[5] Ibid., p.2

[6] Martin P. Golding, Philosophy of Law, (U.S.A: Prentice-Hall, Inc., 1975), Pg. 2.

[7] Ibid. pg. 2.

[8] Thomas Aquinas, Treatise on Law (Summa Theological, Questions 90-97), (U.S.A: Benziger Brothers, Inc., 1965),

[9]Cf. Martin P. Golding, Philosophy of Law, (U.S.A: Prentice-Hall, Inc., 1975), P. 32.

[10]Cf. Ibid.

[11] Basic Writings of St. Thomas Aquinas, Anton G. Pagis, ed. (New York: Random House, 1954), Vol. II, 784

[12] Cf. Thomas Aquinas, Treatise on Law (Summa Theological, Questions 90-97), (U.S.A: Benziger Brothers, Inc., 1965), P.31