Monday, 2 April 2012

Philosophy of law

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· Both Aquinas and Aristotle believe that humans act with a particular end in mind

· To move you need memory? (Clams)

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Unless you are hard wired as to the way to get to an end you have choices. Aquinas thought there were choices…

· These choices are what Aquinas calls reason

Science = true knowledge obtained from reasoning

Practical reasoning is reasoning from an end. I.e. I want to go X. Conclusion is judgment of what you can do now?

Function of practical reason is to determine the means to achieve an end


1. Humans are social b/c we can’t survive on our own. We are born dependent � we need each other to survive

Rational resistance to just authority

. We need a community to flourish, community needs an ongoing principle � that to him is a political forum

. Humans are social and political; political can be just and unjust. All of this is aimed towards and end � this is a human characteristic � a polity is also aimed towards an end

What makes a political end just or unjust?

- If the ruler of a multitude of free men is the common good of the multitude, the rulership will be right and just

- If the rulership is aimed at the private good of the ruler, it will be unjust

One unjust ruler = tyrant

- Unjust gov carried on by several is an oligarchy (Rule of the rich)

- Bad government led by the multitude is democracy

A polity is equal to our democracy (Gov administered by many)

Aristocracy � gov ruled by few men of virtue � the few men are the optimates

Aquinas, Aristotle and Plato call a government with the aim of achieving the good of the rules, not a real government

· Family needs a village

· Distribution of labor in villages/cities free up leisure time. This enables cultural, academic etc… advancement

o This is why Aquinas thinks a city is a perfect community

NOTE Temporal law is to provide resources so everyone can survive

---------------------------- End of letter to king -----------------------------------------------------

Is HL inconsistent with morality?

- Begins treatise with a definition of law


This is the only time Aquinas gives a definition

1. Whether law is something pertaining to reason

à Acts as a vehicle for which the choice is made

à Reason is the organizational principle that makes law and not violence

à The end of law is the common good (final cause)

à Who makes the law? (Article III Q)

· Who ever is good is made from law

· Law is at the consent of the governed

à Promulgation � you can’t be ruled by law w/o knowing what it is

DEFINITION OF LAW Ordinance of reason made for the common good


Think about how successful a claim that the NL has changed would be


#1 Of the various kinds of law � 6 points of inquiry

Why does reason have anything to do with desire?

à If you have the faculty, you have the inclination to use that faculty � same with reason?

How does he differentiate HL from NL and EL?

à HL � positive, laid down, legislation

à HL function is to make the NL concrete

How is DL differentiated from EL?

à EL is god’s plan for the universe explained through and accessible by humans

à DL is revelation i.e. trinity

NOTE The way he is using “law” means “plan” he wants to see the contrast between HL and DL

Why does he say DL is necessary?

QUESTION � Of the Effects of Law

NOTE Professor isn’t sure what he means by “effects”

To make men good, what does he mean by that?

à To make them obey? This would depend on the aim of the law

Is the purpose of the law for Aquinas to make citizens good?

- The proper effect of the law is to lead its subjects to their proper virtue…the proper effect of law is make those to whom it was given good. Either simply or in some particular respect

Acts of law suitably assigned?

à Law is dictate of reason commanding something

kinds of human acts good, evil and indifferent

à It is the fear of punishment that law makes use of in, order to ensure obedience, in which respect punishment is an effect of the law

· this becomes a major contingent in philosophy of law � whether coerciveness is a contingent part of HL

· Aquinas thinks that punishment is not essential to of law itself but is aware of humans irrationality and the need


Considering each law by itself EL, NL, HL, Old L and New L which is the law of the gospel and the “law of fames”

6 Points of Inquiry

Is EL sovereign?

Is EL known to all?

à A thing may be known in ways, in itself and in its effect i.e. sun known by its rays by someone who could not see it

à No one can know EL in itself except those who see God, but every rational creature knows its reflection

à Every knowledge of truth is a kind of reflection and participation of the EL

Every law derived from EL?

à One thing can’t move if not moved by another � same with gov, the plan of gov is derived by secondary governors from governor in chief � same with art etc…

à Since EL is the plan of gov in the chief governor, all plans government in the inferior governors must be derived from the eternal law

If the law in question

à HL (civil legislation) can allow immoral acts to proceed as long as they don’t sanction them



(Comparison b/w speculative and practical reasoning)

à Professor says they are both self-evident

à Speculative reasoning Knowledge, the way the world works

- One reason that had different modes

- There are foundational principles but one that is the most foundational

à Practical reasoning Will or Action (Applied to)

- Same thing but the most fundamental is that action, desire is aimed at that which is benefiting/good

How do we determine what is benefiting good?

à By looking at whatever we have a natural inclination towards

NOTE Seems circular but just as we can naturally identify distinguishing factors using rationalization we can also do that using natural inclination

- Humans are rational animals w/ inclination to protect, perfect atc,,,

What does he mean by acting in a rational fashion for a living creature to desire being itself

à These inclinations, humans have natural inclinations to perfect, communicate, and protect the being they have

NOTE Human inclination is sparse


Soul is the animating feature of human body

- It is what distinguishes humans from other animals

The next level of soul is the animal or sensitive soul

There are animals that lack memory, therefore they lack locomotion � if animals don’t move, and they have no memory, i.e. clams

The characteristic that distinguishes organic things from inorganic is the taking in of nutrition, growing and the communication of their being

Sensation characterizes humans

Human is distinguished from non-living b/c it has inclination to keep in existence

àAnimals communicate their being � humans through intercourse, plants through something else

à Humans can be extended through action and experience


The NL and how it proceeds is similar to deductive/speculative reasoning � not entirely the same

àIf you see a human being, you know that they are rational b/c that is their distinguishing feature

- Human beings are fallible and prone to irrational acts

NL prohibits incest � unless there are circumstances that permit it � i.e. only people left on the planet are brother and sister

à Then, NL changes

The other way NL can change is through human frailty

Revelations can make NL clearer


· Human law can extend NL � many things beneficial to human beings have been identified by HL.

o What he means is if it turns out that a particular rule of legislation and it is needed for peaceful interaction of humans in society, at some point you could say it is necessary

Can NL be erased from the hearts of men?

à No, b/c if you could then they would not be human beings

You can erase the basic principles below NL but you can’t erase the knowledge that they were there. (You can commit adultery but you can’t erase the knowledge that it was there)

Coercion is an essential characteristic of law

St. Thomas does no think it is essential characteristic of law but is of HL

Law � essential aspect is to regulate reason and instruct

- The key is under the rule of reason

- When we are talking about HL v. NL, HL’s distinguishing characteristic is that it is coercive

In Article , what is the relation between HL and NL?

· the force of the rule in the article

· You have a conscious obligation to abide by these rules

· Society imposes a moral obligation as well

· Since this is directly derivable from natural principles


Aquinas � Ambiguity

Relationship between HL and NL

For HL to be consistent, it needs to be derived from NL. This is done in ways

· General principles �derivative process looks like syllogistic reasoning

· Force � bound by conscience

· To make concrete, once embodied in the system, obligated.

· Moral force � not quasi-syllogistic fashion

Does HL have to prohibit all vices?

· Where HL exist, its realm is in personal acts (Q6-A)


If L in Q is rational creature, derived from EL, binds person in conscience, if not derived from El, don’t have to follow.

Example If L not for the common good or not duly promulgated then not derived from EL, also if it is irrational.

To be binding in conscience has to be law

If not binding in conscience, then law, can be disregarded if it won’t cause scandal

· Can disobey if action is rational � if acting would cause more harm than good, not rational

If contrary to divine law, you can never follow it. God’s intent is reason � you could never act reasonably if acting contrary to god’s intent b/c god’s intent is reason

Tradition � notion � Aquinas says this is a way the sovereign represents its will

· Reflects (not precisely) sovereign intent

· Custom can be used to create, interpret or prohibit

· Can trump legislation

· Sovereign reflects will through conduct not words

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