Cameron Miranda
Philosophy of law, also known as legal philosophy or jurisprudence, is a branch of philosophy that investigates the nature of law, especially in relation to human values, attitudes, practices, and political communities. While the abstract concept of law can be traced back to the poems of Homer and Hesiod in the 8th–7th century BCE, it was Plato (428/427–348/347 BCE) who first advanced philosophical claims about the nature of law. In the centuries that followed, philosophers such as Aristotle, Aquinas, Locke, Hobbes, Hugo Grotius, Francisco Suárez, Samuel von Pufendorf, and many others contributed to the development of the field. Today, philosophy of law continues to address problems internal to law and legal systems, as well as their relationship to the larger political and social context.
| Characteristics | Values |
|---|---|
| First to advance philosophical claims about the nature of law | Plato |
| First to articulate natural law theory | Thomas Aquinas |
| First to articulate the ideal of the rule of law | Aristotle |
| First to articulate the theory of adjudication | Common-law theorists |
| First to articulate the concept of legal interpretivism | Ronald Dworkin |
| First to articulate the concept of legal positivism | Joseph Raz |
| First to apply a historical method to the study of Roman law | Giambattista Vico |
| First to study legal institutions using a comparative historical method | Baron de Montesquieu |
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What You'll Learn
- Plato's philosophical claims about the nature of law
- Aristotle's articulation of the ideal of the rule of law
- Aquinas' theory of law as a command model
- Hugo Grotius' ideas about the characteristics of a person capable of imposing and being imposed upon by the law
- Locke's use of a version of the social contract to treat the question of the obligation to obey the law
Plato's philosophical claims about the nature of law
Plato (428/427–348/347 BCE), writing during the decline of the Athenian empire, was the first to advance philosophical claims about the nature of law. The Greek term nomos, during Plato's time, had acquired the specific sense of a statute or a proclaimed or written directive that established a standard for human action. In his dialogue Crito, Plato fictionally cast his teacher, Socrates, as imprisoned and sentenced to death, faced with a choice between accepting the death penalty and escaping, thereby disobeying the law. Socrates argues that since he has received the benefits and protections of living under the law for his entire life, he is obligated either to obey its laws or to persuade the state to change them. This dialogue is the origin of several enduring ideas in the philosophy of law, such as that the law by nature claims authority over its subjects and that the relationship between law and its subjects gives rise to an obligation of obedience.
Plato's philosophy of law is also reflected in his work "The Laws", which represents his vision of the best attainable political system. In "The Laws," Plato argues that correct legislation aims at developing virtue in the entire citizen body, expressing optimism about the average citizen's ability to be virtuous. This differs from his earlier work "The Republic", in which only philosophers possess fully-developed virtue. Plato also explores the role of private property in "The Laws", which, according to some scholars, results in more traditional roles for women than in "The Republic."
Plato's philosophy of law extends beyond the specific content of laws to the nature of law itself. He raises philosophical questions about the concept of law and its relation to other core concepts. For example, Plato includes a bad soul responsible for evil, inviting interpretations relating to the problem of evil and the nature of evil in the world. Plato's philosophy of law also reflects his views on political institutions and their role in shaping citizens' values. For instance, Plato's characters Clinias and Megillus, from cultures that centre on the military, hold that human conflict is a fundamental part of human nature, while the Athenian, from a culture of art and philosophy, values harmony and peace.
Plato's philosophical influence on the nature of law extended beyond his own writings. As the founder of Western philosophy's first systematic investigation of law, Plato's ideas laid the groundwork for subsequent philosophical debates about the nature of law, which grew and diversified considerably during the European Renaissance and continued to evolve up to the present day.
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Aristotle's articulation of the ideal of the rule of law
Aristotle is credited with first articulating the ideal of the rule of law. The rule of law has been an important ideal in political traditions for millennia, and Aristotle's work on the subject has been praised by later thinkers such as Locke, Dicey, Hayek, and Fuller.
In his work, Aristotle contrasted the rule of law with the rule of men, stating that "a man may be a safer ruler than the written law, but not safer than the customary law". He argued that the lawgiver must fashion a suitable constitution, and that the best constitution is one controlled by a numerous middle class that stands between the rich and the poor. This is because those who possess the goods of fortune in moderation find it "easiest to obey the rule of reason". Aristotle's ideal state is one where the "good life" is the end, consisting of noble actions. He believed that the correct conception of justice is aristocratic, assigning political rights to those who make a full contribution to the political community, that is, to those with virtue as well as property and freedom.
Aristotle also recognised that laws, due to their universal nature, may not always apply to novel cases unforeseen by the legislator. In such cases, he proposed a corrective exercise he called "equity", which involves speculating about how the deficient law would have applied if the lawmaker had considered the novel case, and then applying the law accordingly.
Aristotle's philosophy of law is part of a broader tradition of Greek and Roman philosophical thought on the subject. While the abstract concept of law is acknowledged in the poems of Homer and Hesiod in the 8th–7th century BCE, it is in the Greek histories and literature of the 6th and 5th centuries BCE that the first articulation of ideas about law with enduring influence in the West are found. Plato, Aristotle's teacher, was the first to advance philosophical claims about the nature of law, and his dialogue "Crito" explores the obligation to obey the law through the character of Socrates.
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Aquinas' theory of law as a command model
Plato was the first philosopher to advance philosophical claims about the nature of law, but it was Aquinas who developed the view that law should be understood on the model of a command, given by a superior to an inferior. This view, known as the command theory of law, asserts that the issuance of a command makes certain actions obligatory for the rational recipient.
Aquinas's theory of law as a command model is closely tied to his understanding of natural law and divine law. Aquinas identifies four main kinds of law: eternal law, natural law, human law, and divine law. According to Aquinas, human law is valid only insofar as it aligns with natural law. He states, "Every human law has just so much of the nature of law as is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law." Natural law, for Aquinas, is more general than human law and deals with necessary rather than variable things. It is derived from eternal law, which governs the nature of the eternal universe and is identical to the mind of God.
Divine law, on the other hand, is derived from eternal law as it appears to humans, especially through revelation. It is through divine law that God's commands are revealed to humans, helping them to understand what is morally right and wrong. Aquinas rejects the idea that God's commands determine morality, instead arguing that they illuminate what is morally acceptable. This is known as the Divine Command Theory (DCT).
Aquinas's concept of law as a command model is further supported by his belief that humans are created by God to reason. According to Aquinas, humans do the morally right thing when they act in accordance with reason and the morally wrong thing when they don't. This idea is central to his Natural Law Theory, which asserts that actions in accord with natural law are morally correct, while actions that go against natural law are morally wrong.
In summary, Aquinas's theory of law as a command model is based on the hierarchy of eternal, natural, human, and divine law. Human law is derived from natural law, which in turn reflects eternal law. Divine law, revealed through God's commands, illuminates moral principles, guiding humans to act in accordance with reason and natural law.
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Hugo Grotius' ideas about the characteristics of a person capable of imposing and being imposed upon by the law
Hugo Grotius (1583–1645) was a towering figure in philosophy, political theory, law, and associated fields during the seventeenth century and for hundreds of years afterward. His work ranged over a wide array of topics, though he is best known for his contributions to the natural law theories of normativity.
Hugo Grotius, along with other philosophers such as Francisco Suárez (1548–1617) and Samuel, Baron von Pufendorf (1632–94), developed theories of what constitutes a person capable of imposing and being subjected to law. These philosophers shared certain assumptions, agreeing that law is directed at beings who are free, intelligent, and self-directing. In other words, these beings have the capacity to recognize law as a command addressed to them, understand it, and then act upon that recognition.
Grotius believed that a person capable of imposing and being imposed upon by the law is one who has the capacity to choose among a range of available actions. This implies that they are free and possess the intelligence and self-direction necessary to recognize and understand the law, as well as the ability to deliberate and act based on that understanding.
Grotius' view of the law as a command given by a superior to an inferior, making certain actions obligatory for the rational recipient, is consistent with the command theory of law. This theory, first articulated in ancient Greece and later developed by Aquinas, holds that the content of the law is determined by the will of the "commander," or lawmaker. Grotius' ideas on this subject are considered part of the early modern development of natural law philosophy.
In addition to his thoughts on the characteristics of individuals subject to the law, Grotius also made significant contributions to the understanding of war and punishment. He reconceived punishment as a natural right that exists prior to civil authority, empowering individuals or groups to police and punish crimes affecting society in circumstances beyond civil jurisdiction. Grotius' work on the law of war and peace, "De iure belli ac pacis," is particularly notable in this regard.
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Locke's use of a version of the social contract to treat the question of the obligation to obey the law
The first philosophical claims about the nature of law can be traced back to Plato (428/427–348/347 BCE). In his dialogue "Crito", Plato casts his teacher, Socrates, as imprisoned and sentenced to death, facing a choice between accepting the death penalty or escaping and thereby disobeying the law. In the dialogue, Socrates argues that since he has received the benefits and protections of living under the law, he is obligated either to obey its laws or to persuade the state to change them.
In the centuries that followed, philosophers continued to develop and diversify their ideas about the nature of law. During the European Renaissance and up to the end of the 18th century, philosophical debates about the law flourished, with contributions from English and continental European theorists. One of the key developments during this period was the emergence of the command theory of law, which holds that the law should be understood as a command given by a superior to an inferior, with the latter being obligated to obey.
John Locke, an English philosopher of the 17th century, played a significant role in shaping modern political theory, particularly regarding the concept of the social contract. In his "Two Treatises of Government" (1689/1690), Locke presents a version of the social contract theory, which treats the question of the obligation to obey the law. Locke's theory differs from that of Thomas Hobbes, as he conceives of the state of nature not as a condition of complete license but rather as a state in which humans are free, equal, and independent, with natural rights to life, liberty, and property.
According to Locke, individuals voluntarily agree to form a commonwealth and leave the state of nature in order to establish a civil society governed by impartial laws. This social contract creates a mutual obligation between citizens and their government: citizens agree to obey the laws created by their government, while the government is obligated to protect the natural rights of its citizens. Locke emphasizes that the legitimacy of the government depends on its ability to safeguard these rights, including the right to private property. If the government violates these terms, citizens have the right to rebel and overthrow it.
Locke's social contract theory thus establishes a fundamental principle of political liberalism: that there can be no subjection to power without consent. This theory has had a lasting influence on political thought, shaping our understanding of the relationship between individuals, their rights, and the authority of the state.
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Frequently asked questions
Plato (428/427–348/347 BCE) is considered the first philosopher of law, as he was the first to advance philosophical claims about the nature of law.
Plato's dialogue *Crito* casts his teacher, Socrates, as imprisoned and sentenced to death. Socrates argues that, having received the benefits and protections of living under the law for his entire life, he is obligated either to obey its laws or to persuade the state to change them.
Aristotle was the first to articulate the ideal of the rule of law. In ancient Greece, it was also argued that law is a kind of command or prohibition, with at least the threat of punishment or coercion by the state. This view was developed to some extent by Aquinas in the Middle Ages.
Modern philosophers of law include Locke, Montesquieu, Kant, Vico, Burke, and Dworkin.
