Cecily Zamora
The concept of 'man's law' has evolved significantly since the Middle Ages, with early philosophers such as Plato and Aristotle debating the idea of a rule of man versus a rule of law. Aristotle's student, Plato, championed the rule of man, believing that a capable individual could rule better than the best laws. Over time, the understanding of man's law has shifted from being considered the lowest form of law, subordinate to natural or divine law, to being viewed as primary in modern times due to its human origin. Thomas Aquinas, in Summa Theologica, expounded on the concept of Human Law, distinct from Natural Law and Eternal Law, asserting the primacy of natural law over man-made laws. The European and American conceptions of man-made law have undergone radical changes, with modern societies generally favoring the rule of law over the rule of man.
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What You'll Learn
Man-made law vs. natural law
The concept of "man's law" has been discussed by many philosophers and legal theorists throughout history, with varying interpretations. The term "man-made law" refers to legislation created by humans, often in contrast to the concepts of natural law or divine law. The European and American perspective on man-made law has evolved significantly since the Middle Ages. Initially, during the Medieval period, the Thomistic viewpoint held man-made law as the lowest form of law, derived from natural or divine positive law. However, in modern times, man-made law is often regarded as primary precisely because it is a product of human creation. This shift in perspective is exemplified by the French and American Revolutions, which embraced the notion of the sovereignty of the people.
Notably, Marxist legal theory in the Soviet Union took a more extreme stance, denying the existence of divine or natural law and recognising only man-made law, enacted by the state. In contrast, several Islamic countries continue to view man-made law as secondary to divine law, with Allah as the ultimate sovereign power. This diversity in perspectives underscores the dynamic nature of legal interpretations across different cultures and historical periods.
Natural law theorists advocate for the primacy of natural law over man-made law. They argue that man-made laws that deviate from the principles of natural law are described by Thomas Aquinas as "spoilt laws" that do not hold moral authority. This perspective is reflected in the works of Thomas Aquinas, who asserted that human law is a determinatio of divine or natural law, and thus, a lower law cannot contradict a higher one. Aquinas introduced the concept of Human Law in his Summa Theologica, positioning it alongside Natural Law and Eternal Law.
Man-made laws are susceptible to human fallibility and the potential for immoral or erroneous beliefs. They are created to regulate human behaviour and adapt to changing circumstances. In contrast, natural laws are believed to define universal truths that transcend race, colour, and creed, providing a morally correct path to co-create a harmonious world. Proponents of natural law argue that mankind has a moral obligation to challenge dogmatic beliefs imposed by external authorities and defend sovereign freedom.
The debate between man-made law and natural law is a complex and ongoing discussion. While man-made laws provide a framework for societal order and governance, natural laws offer a guiding moral compass. The interplay between these two legal concepts shapes the philosophical and ethical foundations of legal systems worldwide.
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Rule of man vs. rule of law
The concepts of "rule of man" and "rule of law" have been competing for acceptance since the beginning of civilisation. The rule of man, where "man" is used in a genderless manner, refers to a society in which rules are established by an individual, regime, or group, often arbitrarily and with no accountability. This type of governance is associated with negative concepts such as tyranny, dictatorship, and despotism, exemplified by regimes like Joseph Stalin in the Soviet Union and Adolf Hitler in Nazi Germany.
In contrast, the rule of law advocates for a society governed by laws established by a legislative power, with no individual or group standing above the law. This concept promotes the idea that even the government must follow the laws it creates and that these laws should apply equally to all citizens. The rule of law also allows individuals to challenge administrative orders through the court system.
The debate between rule of man versus rule of law has a long history, dating back to ancient Greek philosophy. Plato, Aristotle's teacher, championed the rule of man, believing that an exceptional ruler could govern better than the best laws. Aristotle, on the other hand, favoured the rule of law, emphasising the importance of institutionalised impersonal rules over personal fiat. The discussion continued with philosophers like Thomas Hobbes, who advocated for an absolute monarch, and John Locke, who discussed the rule of law.
The European and American conception of man-made law has evolved significantly since the Middle Ages. In the Medieval period, man-made law was considered subordinate to natural law or divine positive law. However, in modern times, man-made law is often viewed as primary simply because it is man-made. This shift in perspective has led to a reevaluation of the relationship between man-made laws and concepts like natural law and divine law.
While the rule of law is now the accepted norm in civilised societies, there have been deviations and transitions. For example, China has progressed from the 'rule of man' during Mao Zedong's Cultural Revolution to a 'rule by law' and eventually a ''rule of law' from the 1970s onwards. Similarly, several Islamic countries continue to view man-made law as subordinate to divine law. The evolution of these concepts highlights the ongoing dialogue between the rule of man and the rule of law in different societies and historical contexts.
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The view of ancient Greek philosophers
Ancient Greek philosophers were the first to discuss the concept of 'rule of man' versus 'rule of law', with the debate extending to Plato and his student, Aristotle. Plato championed the rule of man, believing that a sovereign who exists outside the law and exercises absolute authority can rule better than the laws themselves. Aristotle, on the other hand, associated individual rule with the absence of reason, stating that investing a man with authority is akin to introducing a beast.
Plato's dialogue "Crito" is particularly notable in the philosophy of law, as it is the origin of several enduring ideas. In "Crito", Plato fictionally casts his teacher, Socrates, as facing a choice between accepting the death penalty and escaping, thereby disobeying the law. Socrates argues that since he has lived under the protection of the laws of Athens his entire life, he is obligated either to obey those laws or to persuade the state to change them. This exchange gave rise to the idea that the law inherently claims authority over its subjects and that this relationship creates an obligation of obedience.
Aristotle, in contrast to his teacher, provided a more systematic expression of influential ideas about law. James Harrington, in his work "Oceana" (1656), drew principally on Aristotle's "Politics" to argue that an "Empire of Laws, and not of Men" was preferable to an "Empire of Men, and not of Laws".
The ancient Greeks also had their own unique legal systems, with the law of Athens being the best known. While there was never a unified legal system across the numerous independent states of the Hellenic world, there were shared basic approaches to legal problems, methods for producing legal effects, and a common legal terminology. The existence of a multiplicity of city-states, each with its own laws, was a defining feature of Greek legal life. Solon of Athens, Draco, Zaleucus of Locri Epizephyrii, Charondas of Catana, and Lycurgus of Sparta are all famous lawgivers from this period.
Greek legal life in the 5th and 4th centuries BCE was influenced by three dominant factors. Firstly, there was a great movement for legal codification that swept the Greek world from the 7th century BCE, resulting in written statutes that set forth procedural methods and substantive rules for the administration of justice. Secondly, the Attic orators were skilled at presenting arguments to persuade mass juries, rather than seeking deeper insights into the legal system. Finally, the Greek philosophers were more interested in discovering abstract standards of justice than in analysing the existing legal system.
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The view of modern philosophers
The concept of 'man's law' has been discussed by philosophers for centuries, with the term itself being used in a variety of ways. The idea of 'man's law' or rule of man has been associated with negative concepts such as tyranny, dictatorship, and despotism. In ancient Greek philosophy, the idea of the 'rule of man' was championed by Plato, who viewed it as a positive concept, believing that a ruler could "rule better than the best laws". This idea was also debated by his student, Aristotle, Confucius, and the Legalists in Chinese philosophy.
Over time, the European and American conception of 'man's law' has evolved significantly. During the Middle Ages, in the Thomistic view, 'man's law' was considered the lowest form of law, subordinate to natural law and divine positive law. However, in the modern era, 'man's law' or man-made law is often regarded as primary precisely because it is man-made. This shift in perspective reflects a move away from the notion that man-made laws are inherently inferior due to their human origin.
Modern philosophers and legal theorists have continued to explore the complexities of 'man's law' and its relationship with natural law, divine law, and positive law. They have also examined the origin, necessity, teleology, and accessibility of laws. For example, Galileo asserted that the laws of nature could be understood by studying the geometric-mathematical language of the universe. This raised questions about how humans could discover and comprehend these laws.
In modern times, the concept of civil society has become a significant source of law. Deliberative democracy, facilitated by freedoms such as freedom of speech and association, allows people to gather, discuss, and lobby for the laws they believe in. This has been referred to as a "primary modern source" of international law by Geoffrey Robertson QC.
The notion of the 'rule of law' has also emerged as a competing viewpoint to the 'rule of man'. This concept asserts that no individual or group is above the law and that laws should be applied equally to all. This idea has gained widespread acceptance in civilized societies, with countries like China transitioning from the 'rule of man' to the 'rule of law'.
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The view of religious figures
Religious figures have long been involved in discussions about the law and its origins. In the Medieval period, the Thomistic view held that man-made law was the lowest form of law, subordinate to natural law and divine positive law. This perspective, attributed to the philosopher Thomas Aquinas, asserted the primacy of natural law, considering man-made law as a determinatio of divine or natural law. Aquinas himself conflated man-made law (lex humana) and positive law, viewing positive law as law established by the will of its creator, whether divine or human.
In contrast, modern conceptions of man-made law, particularly in Europe and America, have evolved to rank it as fundamental and supreme. This shift in perspective places emphasis on the authority of man-made laws due to their human origin. However, it's worth noting that some societies, such as several Islamic countries, continue to view man-made law as secondary to divine law.
The concept of natural law, which forms a basis for Aquinas' views, has roots in the works of ancient Greek philosophers like Aristotle and Plato. Aristotle's association with natural law is influenced by Aquinas' interpretation of his work, particularly regarding the distinction between natural law and natural right. Plato, Aristotle's teacher, championed the rule of man, believing in the capacity of an exceptional individual to rule better than the best laws. This idea of a ruler existing outside the law also appears in the writings of Thomas Hobbes, who advocated for an absolute monarch.
Another influential figure in the discussion of law is Cicero, whose ideas on natural law had a lasting impact, extending through the era of the American Revolution. Coke, an English Chief Justice, defined law as "perfect reason," and his interpretation of natural law included the belief that human nature determined the purpose of law. Coke's views are reflected in his report of Calvin's Case (1608), where he stated that the law of nature was infused by God into the heart of man for his preservation and direction.
Additionally, the Stoics contributed to the concept of natural law, believing in the presence of a "divine spark" within individuals that guides them to live in accordance with nature. This belief in a universal design and the role of natural law in harmonizing human actions with nature is also reflected in Livy's "History of the Roman Republic."
The Catholic Church has adopted the view of natural law introduced by Albertus Magnus and elaborated by Aquinas, particularly in his "Summa Theologica." This perspective is shared by some Protestants and has been discussed by Anglican writer C. S. Lewis in his works "Mere Christianity" and "The Abolition of Man."
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Frequently asked questions
Man-made law, or 'lex humana', is a law made by humans, as opposed to divine or natural law.
The idea of 'man's law' was first discussed by Thomas Aquinas in the Medieval period. Aquinas introduced the concept of Human Law, a form of law distinct from Natural Law and Eternal Law.
Aquinas viewed man-made law as the lowest form of law, only legitimate insofar as it expressed and concurred with higher, divine laws. In modern times, man-made law is often considered primary because it is made by humans.
The European and American conception of man-made law has changed significantly since the Middle Ages. While Islamic countries still consider man-made law subordinate to divine law, countries like China have transitioned from 'rule of man' to 'rule by law'.
Man-made law is not absolute and is subject to change over time. It is created by humans to regulate their actions, behaviour, and the ordering of things. It must be generally known and take into account both anthropological and chronological factors.
