Mark C. Murphy
Both Thomas Hobbes and John Austin identify civil law with commands issued by a sovereign; thus it is common to think of Austin’s theory of law as closely continuous with Hobbes’s view. Yet this “command of the sovereign” formulation masks deep differences between Hobbes and Austin, not only in their understandings of command and sovereign but also in the commitments that gave rise to their offering theories of law formulated in these terms. Nor is it correct to think that innovations in Hobbes’s conception of law paved the way for Austin’s more full-blown legal positivism: Hobbes’s jurisprudence is, in fundamentals, closely akin to Thomas Aquinas’s natural law jurisprudence. The idea that Hobbes and Austin are jurisprudential allies ought to be abandoned.
Aquinas's account of law as an ordering of reason for the common good of a community depends on the mereology that covered his theory of parthood relations, including the relations of parts to parts and parts to wholes. Aquinas argued that ‘all who are included in a community stand in relation to that community as parts to a whole’, and ‘every individual person is compared to the whole community as part to whole’. Aquinas held that the perfection of wholes through the proper ordering of their parts does not entail the elimination of diversity, but in many cases requires diversity. Aquinas argued that there are two ways of ordering parts within a whole. Firstly, the parts are ordered with respect to one another, and secondly, the parts are ordered toward an end. The ordering of a whole's parts to one another is always for the sake of the ordering of the whole to its extrinsic end. Aquinas argued that the good toward which the law directs a community is called the ‘common good’ of that community. The common good or common end toward which members of a community are ordered can be the sort of end that the agents bring into existence through their own actions such as justice within a community, or the sort of end that can exist apart from the actions of the agents.
Brian H. Bix
This article offers an overview of the major areas and approaches where American theorists have offered significant contributions to legal philosophy. The first section discusses American legal realism; the second section looks briefly at the legal process school; the third section gives brief overviews of law and economics and the other post-realist critical theories; the fourth section summarizes the approach of Lon Fuller; the fifth section examines the legal theory of Ronald Dworkin; and the fifth section summarizes some significant American contributors to schools of thought that originated in Europe, as well as American contributions to the analysis of legal concepts and doctrinal areas.
Alberto Artosi and Giovanni Sartor
This chapter discusses Leibniz’s contribution to legal theory and the significance of his legal engagements for his intellectual development. It opens by presenting Leibniz’s legal career, listing the sequence of legal offices he assumed and the series of often related writings addressing legal matters. It presents Leibniz’s early legal works, where a new approach to legal scholarship and decision-making is proposed that merges positive and natural law and enriches the law with methods and knowledge from logic, mathematics, physics, and philosophy. This new synthesis provides the basis of his proposed reform of legal education. Leibniz’s relation to Roman law is then considered, focusing on the role of Roman tradition in his approach to law and justice. The last two sections address Leibniz’s logic of deontic modalities and his view of legal reasoning as being both dialectical and presumptive.
Anthony J. Lisska
This article discusses the meta-ethical presuppositions necessary for understanding the ethical naturalism common to several contemporary natural law arguments. This analysis, while conscious of the historical antecedents in medieval Aristotelianism with special reference to Thomas Aquinas, concentrates on the contemporary thrust of natural law discussions. Natural law theory at its best has a realist foundation based on human persons; this moral theory has rationality articulated as a necessary condition and is thoroughly cognizant of the common good or the public interest. The article attempts to spell out the set of conditions necessary for natural law, and moral and legal theory, through an analysis of the writings of several contemporary analytical philosophers and the role these central metaphysical concepts play in the respective theories.
In this chapter, I argue that the laws of nature that comprise Hobbes’s moral philosophy and both ground and constrain his political philosophy articulate a requirement of reciprocity. Hobbes derives the reciprocity requirement as a theorem of reason from our human nature as rational agents necessarily concerned to make our agency effective. The laws of nature impose a demand to join political society, as well as impose duties on both subjects and sovereigns, and constrain behavior among nations. I explain the relation that the laws of nature bear to civil law and to divine positive law and offer an account of the source of their normativity that contrasts with familiar scholarly accounts.
Terence H. Irwin
Recent writers have commended Aristotle to the attention of contemporary moral philosophers on the grounds that he is a virtue theorist. If one commends Aristotle as a virtue theorist, one may be inclined to commend some medieval moralists as well. However, medieval moralists also raise difficulties for critics who seek to place them in a tradition of virtue theory, for they also connect morality with the requirements of natural law. Meanwhile, Thomas Aquinas's discussion of natural law makes it clear why it is reasonable to cultivate the virtues, and what difference they make to the right application of complex moral principles to specific situations. This article considers different versions of virtue theory, Aquinas and Aristotle, the link between virtue and law, natural law and its precepts, and the role of prudence.