CHAPTER IV

SEMINAL CONCEPTS (Philosophical Approach)

THE REPUBLIC By Plato

Classical Natural Law

According to Plato, when judgment of society takes the form of a public decision of
the state, it has the name law.

According to Socrates, public opinion is true opinion, and true opinion is discovery of
reality. He therefore concludes that law seeks to be the discovery of reality, or more
precisely, it is the true reality with respect to the administration of the state.

Law may not always achieve its ideal of discovering true reality, still, Socrates adds,
no society believes that that just can really be unjust. Whoever fails to reach reality,
fails it find the law. Those who know always accept the same views; they will not
write differently at different times on different matters. If we see some persons
anywhere doing this, we can say that they have no knowledge; and if they are
mistaken in what they describe as law, then that law is mere appearance and ought
not be accepted to be asserting a distinction between principles and rules.

Plato offers another definition of law as the opportionment of reason.

Reason is apprehension of reality. So what did Plato mean by reality?

Plato once tentatively defined reality as power, by which he meant that anything has
real existence if it has inherent in it the power of being affected or of affecting
others, no matter how small.

Plato asserted that law was the discovery of true reality, appearing to mean that the
moral value of law increases as it approximates the ideal law which exists in the
world is reality.

Plato puts forward the theory that law is an instrument of social control and thus
suggests the problem of the end of law. He held that the end of law was to produce
men who were “completely good”. He therefore rejected laws that did not incline to
the end, asserting that a bad law is a no law.

Was Plato hostile to law? Plato of the Republic preferred the adaptable intelligence of
the all-wise autocrat to the impersonality of the rule of law. Heknew well the simple
truth, as the trial of Socrates had shown him, that the debating method of the
courtroom, as distinguish from cross-examination, was perhaps the least likely to
lead to the discovery of truth.
However, in the Laws and Statesman, Plato realized that on this earth benevolent
dictatorship was a counsel of perfection and that he would better propose a solution
which had a possibility of realization: society should fall back upon law as second-
best. He asserted that fixed laws are to be preferred to the personal administration
of the unscientific ruler which is the type society usually receives.

For Plato, there was not a man among us whose natural equipment enabled him both
to see what was good for men as members of the community, and on seeing it,
always to be both able and willing to act for the best. As Acton puts it, “all power
corrupts and absolute power corrupts absolutely”.

Law the generality of it could not always do justice to particular cases.

The State for Plato is a man on large scale. It is a whole form of various individuals
and solidly built, as body is formed of several organs, which together make its life
possible. Both in the individual and in the State, there must reign that harmony
which is obtained through virtue. Justice is the virtue par excellence, insofar as it
consists in a harmonic relation between the various parts of a whole.

Three parts or faculties exist in the soul of the individual:

 Reason which dominates
 Courage which acts
 sense which obeys

Similarly, in the State three classes are distinguished:

 The wise to dominate
 Warriors to depend the social organisms
 Artisans and farmers who must feed it

The cause of participation in and submission of the individual to the State is the lack
of autarchy, the imperfection of the individual, his insufficient by himself.

For Plato, it is only the State which is a perfect being and sufficient unto itself, and
which absorbs and dominates all. The State, therefore, dominates human activity in
all its manifestations. Upon its rest the duty to promote good in its every form. The
power of the State is limitless. To render stronger and closer-knit the political
organization, Plato suppresses social entities which are intermediate between the
individual and the State. By Plato, at any rate, the personality of man is not
adequately recognized.

These briefly are the principal concepts formulated by Plato in the Dialogue,
Republic. The Dialogue Laws, composed later, when Plato was seventy, has character
different preceding one, because it does not trace out a pure ideal, but considers
instead historical reality, and there appear often an admirable sense of practical
experience.
In the Dialogue Laws, Plato shows a greater respect for individual personality,
always, however, that of free men only. Family and property are conserved, no
longer sacrificed to the sort of Statism, as in Republic. The authority of the State
however remains nevertheless very great and overpowering.

Plato criticizes both monarchy and democracy, and proposes a sort of synthesis, a
mixed government. Just like in Sparta, aside from two kings, there were the Senate
and the Ephors.

COMMENTS ON PLATO BY CAIRNS, THE REPUBLIC

How much Plato owed to his predecessors?

From Solon: Happiness of the state depended upon the faithful observance of sound
laws, and that it was the duty of the good citizen to see that such laws were made.

From Herodutos: Law is the master.

From Pindar: Law is the lord of all.

Aquinas follows Aristotle in thinking that an act is good or bad depending on

whether it contributes to or deters us from our proper human end—the telos or
final goal at which all human actions aim. That telos is eudaimonia, or happiness,
where “happiness” is understood in terms of completion, perfection, or well-
being. Achieving happiness, however, requires a range of intellectual and moral
virtues that enable us to understand the nature of happiness and motivate us to
seek it in a reliable and consistent way.

On the other hand, Aquinas believes that we can never achieve complete or final
happiness in this life. For him, final happiness consists in beatitude, or
supernatural union with God. Such an end lies far beyond what we through our
natural human capacities can attain.

According to Aquinas, every law is ultimately derived from what he calls

the eternal law (ST IaIIae 93.3). The “eternal law” refers to God’s providential
ordering of all created things to their proper end. We participate in that divine
order in virtue of the fact that God creates in us both a desire for and an ability to
discern what is good (he calls this ability the “light of natural reason”). According
to Aquinas, “it is this participation in the eternal law by the rational creature that
is called the natural law” (ST IaIIae 91.2; Cf. 93.6). On this view, natural law is
but an extension of the eternal law.
For by it God ordains us to final happiness by implanting in us both a general
knowledge of and inclination for goodness.
ARISTOTLE’S POLITICS
Classical Natural Law

In the Platonic Minos, his definitions of law are partial. They are always relative to
the problem before him, and the aspect of law which they emphasize constantly
shifts in order to permit different consequences to be drawn.

In the Rhetoric to Alexander, it is pointed out that in a democracy the final appeal is
to reason. A self-governing community is directed along the best path by its public
law, and so as king, as the embodied of reason, guides along the path of their
advantage those who are subject to this rule.

In a clumsy attempt to bring the two ideas together, law then is defined as the
common consent of the community, regulating action of every kind.

And later, in the same treatise, law is defined as the common agreement of the state
enjoining in writing how men are to act in various matters.

Aristotle agreed with Plato that legislation should teach virtue. Goodness, in men, he
thought, could be secured if their lives were regulated by certain intelligence, and by
a right system, invested with adequate sanctions. He therefore suggests that, in a
general sense, the la itself is a kind of contract, so that whoever disregards or
repudiates a contract is repudiating the law itself. Aristotle however said that law
was much more than a contract. He pointed out that if the state did not pay
attention to virtue, the community became merely an alliance.

Aristotle developed a distinction between “constitution” and “laws”:

Constitution – the organization of offices in a state, and determines what is to be the

governing body, and what is the end of each community.

Laws – are the rules according to which the magistrates should administer the state,
and precede the offenders.

To the extent his works have survived, it is clear that Aristotle did not reach any final
definition of law. He saw the inherent complexity of legal phenomena, and he found
no single description of it could embrace its manifold aspects.

 Aristotle thought of law as a rule of conduct for the individual

 Stressed the ideal reason, the doctrine that legal precepts should have some
basis in intelligibility and not be the mere expression of arbitrariness, force, or
custom
 Presented law as a contract
 Distinguished law from constitution and defined as the rules in accordance
with which court determine cases
 Pointed out law as a form of order.
Law itself, like everything in the Aristotleian system has its end and to Aristotle it
was very clear that its task was to make men good. And to Aristotle, the highest
good is happiness or well-being.

Aristotle defined happiness as an exercise of the powers of life in accordance with

the virtue throughout the whole life-time. Happiness takes its origin in virtue, it
issues in pleasure, and material good-fortune is its ordinary equipment.

Aristotle’s definitions satisfy the Platonic conditions for a happy life, but as a juristic
formula it has several defects:
The tasks of law can no more can be caught within the net of a single formula than
its numerous and contradictory aspects can be confined within the limits of one
definition.
The idea of the end of law is that it breaks down as it is put into practice.

Aristotle held that the law has no power to command obedience except of that habit.

Education also assists in making obedience to law second nature to the citizens.

In the doctrine of the categories, conduct comes under the heading of Quality. Virtue
is a Quality and Aristotle assumes that the category has four divisions: habits, or
tendencies to do a thing; capacities for doing a thing; feelings, passions and
emotions prompting us to do a thing; and external form or shape.

Habituation is the only method of acquiring that settled tendency to do acts of a

certain kind.

Theory of Legislation

Aristotle’s normative view of the law is clearly apparent in his theory of legislation.
That law prescribes certain conduct: that conduct of a brave man; that of a template
man; that of a gentleman, and so with all the other virtues and vices, prescribing
some actions and prohibiting others.

Plato held that legislation should be so framed that it could be incorporated in a

manual of instruction for the young.

Legislation is a branch of political science.

Collections of laws and constitutions may be serviceable to students capable of

studying them critically and judging what measures are valuable or the reverse, and
what kind of institutions are suited to what national characteristics. But those who
examine such compilation without possessing a trained faculty cannot be capable of
judging them correctly, unless, indeed, by accident, though they may very likely
sharpen their political intelligence.

Aristotle laid down a series of principles to control and guide the legislative process:

 The legislators he believed were from middle class--- ought to have his eyes
directed to two points – the people and the country.

 Legislator’s state must have a political life, a life of intercourse with other
states

 A legislator must make sure that the nation’s arms should be such as enable
it to meet its foes in its on territory.

 The legislator must pay attention to the foreign relations of the state

 The legislator should not make conquest the aim of the state.

Cicero’s principal thesis is that Law is not a product of choice, but is given by nature.
According to him, Law is noted based on arbitrary opinion, but there is a natural,
immutable and necessary “just” as is proved by testimony taken from the very
conscience of man.

Besides this jus naturale, there exists jus gentium observed by all people which
serves as a basis for their mutual relations because it based upon their common
needs. And there is jus civile, that which is in force for each people in particular.

There is therefore a law of nature, immutable, not artificially made but already
existing, inborn. It is a uniform law, not subject to change by the action of men.

THE ROMAN JURISTS

CICERO – DE LEGIBUS

Law is the highest reason implanted in nature. It is the mind and reason and mind of
an intelligent man, the standard by which Justice and Injustice are measured.

Reason when perfected is rightly called wisdom.

Those creatures who have received the gift of reason from Nature have also received
right reasons, and therefore they have also received the gift of Law, which is right
reason applied to command and prohibition. And if they have received Law, they
have received Justice also.

COMMENTS ON CICERO BY CAIRNS

Cicero maintains that nothing can be nobler than the law of the state. Law is the
bond of the society, and the state may be defined as an association or partnership in
law. If a state has no law, it cannot be considered a state at all.

KANT’S THE PHILOSOPHY OF LAW

PROLEGOMENA
LAW AND ETHICS
General Introduction to the Metaphysics of Morals

Laws of morality are not drawn from observation of oneself or of our animal nature,
nor from perception of the course of the world in regard to what happens, or how
men act. But Reason commands how we ought to act, even although no example of
such action were to be found; nor does Reason give any regard to the Advantage
which may accrue to us by acting, and which Experience could alone actually show.

GENERAL DIVISIONS OF THE METAPHYSICS OF MORAL

GENERAL PRELIMINARY CONCEPTIONS DEFINED

Nature and Positive Laws – Obligatory Laws for which an external Legislation is
possible, are called generally External Laws. Those External Laws, the obligatories of
which can be recognized by Reason a priori without an external Legislation, are
called Natural Laws. Those Laws, again, which are not obligatory without actual
External Legislation, are called Positive Laws.

Maxims – The Principle which makes a certain action a Duty, is a Practical Law. The
Rule of the Agent or Actor, which he forms as a Principle for himself on subjective
grounds, is called his Maxim.

The Categorical Imperative – The Categorical Imperative only expresses generally

what constitutes Obligation. It may be rendered by the following formula: “ Act
according to a Maxim which can be adopted at the same time as a Universal Law”.

INTRODUCTION TO THE SCIENCE OF RIGHT

General Definitions and Divisions

A. WHAT THE SCIENCE OF RIGHT IS?

The Science of Right has for its object the Principles of all the Laws which it is
possible to promulgate by external legislation…
B. WHAT IS RIGHT?

All this may remain entirely hidden even from the practical Jurist until he abandon
his empirical principles for a time, and search in the pure Reason for the sources of
such judgments, in order to lay a real foundation for actual positive Legislation.

The conception of Right:

External and practical relation of one Person to another, in so far as they can have
influence upon each other, immediately or immediately, by their Actions as facts.
The relation of his free action to the freedom of action of the other.
In this reciprocal relation of voluntary actions, conception of Right does not take into
consideration the matter the act of Will in so far as the end which any one may have
in view in willing it, is concerned.

Right, therefore, comprehends the whole of the conditions under which the voluntary
actions of any one Person can be harmonized in reality with the voluntary actions of
every other Person, according to a universal Law of Freedom.

C. UNIVERSAL PRINCIPLE OF RIGHT

“Every Action is right which in itself, or in the maxim on which it proceeds, is such
that
it can co-exist along with the Freedom of the Will of each and all in action, according
to a universal Law".

Or it can be expressed as “Act externally in such manner that the free exercise of thy
Will may be able to co-exist with the Freedom of all others, according to universal
Law.”

D. RIGHT IS CONJOINED WITH THE TITLE OR AUTHORITY TO COMPEL

Everything that is wrong is a hindrance of the freedom, according to universal Laws;

and Compulsion or Constraint of any kind is a hindrance or resistance made to
Freedom.

COMMENTS BY PATON ON KANT

To define law we must distinguish between form and matter. Form is being the
complex
of universally valid principles presupposed in any legal judgment; Matter is the
changing world of social experience which those principles construe legally.
Rodulf Stammler regards Philosophy of Law as the “theory of those propositions
about law which have universal validity”.

According to Stammler, law belongs to the realm which chooses end and determines
Mean; that law is the notion of purpose. It exists to bind together the community.
Since by definition law exists to harmonize the purposes of individuals, law itself
strives
towards justice. The fundamental basis of law and of just law are, therefore, the
same.

Law exists to coordinate, it can operate only by unifying all possible acts of men.

These principles of just law are based on the doctrines of respect and of
participation.

Points of Stammler’s Theory on Law:

Law can exist only if actual society exists.
The realm of law and the natural world are distinct.
Most systems do assume that law is complete and exclusive system in itself.

HEGEL’S THE PHILOSOPHY OF RIGHT

Hegel believed that philosophy possessed a logic or method of its own, one that was
peculiar to itself, and which constituted philosophy’s own kind of scientific proof. This
was the dialectic method, which proceeds through the development of concept. It is
the process by which from the first member of the triad, say Being, a second
element, Nothing, is deduced. This is possible because Being in its completely
abstract form, devoid of all qualities is, Nothing. But we are able to at this point to
perceive the presence of the member of the triad, Becoming. In fact we are forced to
take this step according to Hegel because unless we do so, we are asserting the
paradoxical proposition that Being and Nothing are the same – that a thing is both is
in and is not. We must therefore search for what Hegel calls the unity of opposites.
In the present case it is found in Becoming; a thing both is and is not when it
becomes.

Rational is actual and actual is rational.

So far as jurisprudence is concerned with the truth is nothing new. Philosphy’s

problem is to isolate those truths and to exhibit their logical necessity.

The laws of nature are given and their measure is outside man.

Positive law, on the contrary is posited, it originates with man.

We cannot know the truth through the method of either intuitionalism or
subjectivism. Philosophy’s concern is with the rational. This means that it is an effort
to apprehend the actual.