Last week we talked about Aquinas hierarchy of law. This idea that law has multiple levels from which it’s derived is an interesting one if thought about from a positivist perspective. In natural law there are 4 levels, according to Aquinas, Eternal law, Divine law, Natural law, and Human law. Now the question is, what levels are there as a positivist?
The purpose of law, since I am rejecting morality as a basis, is social order. At the top of my list I would put a modified form of natural law. My version of natural law would have to be based on human urges. For example, humanity will always have various passions such as love, hate, lust, pride, etc. If I spent a lot of time on this I could probably hash out 14 virtues and vices. If I wanted to follow Aquinas example I could use Aristotle’s version of virtues and vices.
So at the top level is natural law, which is the virtues and vices of humanity. From this I would derive two kinds of tangible law. First, social law, which would be law governing the vices. More simply, law that helps us control the negative side of humanity and live together peacefully. The second level would also include the contrast to social law, which would be chivalrous law. Chivalrous law would be much like divine law. It would be a way to conduct oneself in society to achieve the illustrated virtues. Much like divine law, this would not be codified. It would be understood culturally to various societies in the world.
Now the largest difference between Aquinas’ structure and mine is the final tier of law. Aquinas has human law on the bottom as the result of the top levels. In my structure there is no law as the result, instead I put social order on the bottom. The higher levels of my system culminate in the end goal. Anyway, it is interesting to interpret Aquinas structure of law through the eyes of a different legal philosophy.
P.S: this is for last week
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This is indeed very interesting! I thing talking about virtues and vices would explain why we have laws really well. I like the post!
ReplyDeleteIs natural law really basic human urges?
ReplyDeleteI don't think that is an accurate definition of natural law, mainly because of your claim. You used the word "always," the phrase "humanity will always have various passions," and then listed these passions-three of which are deadly sins in the Catholic church. Religion aside though, the desires of a natural man wouldn't include these sins simply because the natural man has no need for these vices.
I don't believe feelings such as hate or pride, or the desire to hate or to feel prideful are natural. Maybe through hormones, biologically, but even then the human body has the ability to inhibit such hormones, and even stop producing them all together. Unless you are using the terms very ambiguously, I think that your natural law is inaccurate as a basis for common or positive law.