Philosophy 362-001 Philosophy of Law Spring, 2008 Take home Essay Paper Assignment By Harshil Parikh Case

: In 1944 a woman wishing to be rid of her husband denounced him to the authorities for insulting remarks he had made about Hitler while home on leave from the German army. The wife was under no legal duty to report his acts, though what he had said was apparently in violation of statutes making it illegal to make statements detrimental to the government of the Third Reich or to impair by any means the military defense of the German defense of the German people. The husband was arrested and sentenced to death, apparently pursuant to these statutes, though he was not executed but was sent to the front. In 1949 the wife was prosecuted in a West German court for an offense which we would describe as illegally depriving a person of his freedom. This was punishable as a crime under German criminal code of 1871 which had remained in force continuously since its enactment. The wife pleaded that her husband’s imprisonment was pursuant to the Nazi statutes and hence that she had committed no crime. The court of appeals to which the case ultimately came held that the wife was guilty of procuring the deprivation of her husband’s liberty by denouncing him to the German courts, even though he had been sentenced by a court for having violated a statue, since, to quote the words of the court, the statue “was contrary to the sound conscience and sense of justice of all decent human beings.” Q. Judging this case is on my opinion on the basis of John Aquinas and John Austin’s Jurisprudence.


The act committed by the Nazi's been certainly inhumane and unjust, with murderous intent. By creating the court and laws, Nazi’s were able to use them as instruments for expedient means as ways to fulfill their illicit motives. I find that Austin's and Aquinas theories contradict each other. First I will go through Aquinas jurisprudence and his argument in judging the case and second I will discuss Austin's jurisprudence and his argument. According to Aquinas, law must be obeyed only when it tends to “human happiness”. Law is a part of social structure. Law is obedience maintained only when it involves safety and happiness. Jurisprudence is derived from evaluation of human acts by humans. Nazi was a socialism ideology and practices by Nazi’s came up in post World War-I. Nazi laws were unjust laws which deprived citizens from their rights, like freedom of speech in this case. The people who were following Nazi laws were breaking laws according to Thomas Aquinas jurisprudence. In jurisprudence there are various kinds of laws, eternal law, natural law, human law and divine law. Nazi laws is a human or positive law, law made by men to men. So according to theory of Aquinas, laws like Nazi laws are unjust because they are not for human happiness. Instead, these laws are obeyed because people are compelled to follow. “A tyrannical law, through not being according to reason, is not a law, absolutely speaking, but rather a perversion of law; and yet in so far as it is something in the nature of a law, it aims at the citizens being good.” (On the Effects of Law: Book Treatise of Law pp. 33) Very often compelling conditions makes humans follow laws. But in this case conditions were not compelled for the wife. The wife was under no legal duty to report her


husband’s acts. Though she complained about her husband in court, the only reason was to get rid of him. The wife, understanding Nazi law: deprives a person’s freedom of speech is unjust, took the husband to prison. In one of the lectures Prof. Robert Ladenson gave a vivid example of analogy to this case. A person is compelled to obey a command set forth by a robber holding a gun. The person is forced to obey the command (law) even though it’s unjust. Thus in my opinion Aquinas theory will surely support the husband and accuses the wife of depriving his freedom of speech. Austin took a positivist approach to jurisprudence. He has viewed law as a strict command set by political superiors to political inferiors. A command (law) is generated by group/individual having a higher intelligence to an individual having inferior intelligence. “The matter of jurisprudence is positive law: law, simply and strictly so called: or law set by political superiors to political inferiors”. (Legal Positivism by Austin: pp. 55 Lect. 1) Austin’s analysis of jurisprudence has raised many questions in philosophy. Analytically Austin has divorced the law from morals and political authority (like governments). In my opinion, Austin’s analytical views are very practical in modern society. Austin’s philosophy has also strongly supported the divine law and positive law (human law). Human laws are defined as laws set by men to men that are sometimes also denounced by unauthorized or un-commanded officers. Austin has formulated legal positivism and has given very short definitions of perfect and imperfect laws. The definition of law as per legal positivist approach is as follows: “Laws to repeal laws, and to release from existing duties, must also be excepted from the proposition “that laws are a species of commands.” (Legal Positivism by Austin: pp. 62 Lect. 1)


“Imperfect laws, or laws of imperfect obligation, must also be excepted from the proposition “that laws are a species of commands.” (Legal Positivism by Austin: pp. 62 Lect. 1) When law is denounced by sovereignty it is not followed, and then there are sanctions (or evil) followed. Evils are backed by laws to make people obey. “Being liable to evil from you if I comply not with a wish which you signify, I am bound or obliged by your command, or I lie under a duty to obey it.” (Legal Positivism by Austin: pp. 57 Lect. 1) Like two sides of a coin are complementary to each other both command and duty are bound to each other. Whenever a command is signified a duty is imposed; similarly whenever a duty lies, a command has been signified. Thus an evil is incurred when one of the proceedings is not followed. In this case, Nazi’s were cruel and unjust sovereign that had denounced laws during 1930’s. These laws were backed by heavy sanctions. “The evil which will probably be incurred in case a command be disobeyed or (to use and equivalent expression) in case a duty be broken is frequently called a sanction, or an enforcement of obedience.” (Legal Positivism by Austin: pp. 57 Lect 1) In my opinion, as Austin’s theory has defined law separate from moral, Austin would support the wife for following the law. Thus according to Austin the existence of law is one thing and its merits or demerits are another. If a law exists whether perfect or imperfect, like or dislike, it has to be obeyed by which we regulate our approbation and disapprobation. To conclude with one more example discussed by Prof. Robert Ladenson in class about obedience, and distinguishes the Aquinas theory and Austin’s legal positivist approach is as follows. Parents are authority to children. Parents are commanded or uncommanded is a different perspective but they are required to be obeyed. Aquinas jurisprudence will judge the command in perspective of child’s happiness. On other hand


Austin’s jurisprudence would say to obey the command without seeing the merit or demerit behind it. This provides little vivid analogy in judging whether Nazi laws should be obeyed or not.

Bibliography: 1) Philosophy of Law, Eight Edition by Joel Feinberg and Jules Coleman. Speical Quotes are taken from Chapter 2 Legal Positivism. 2) Treatise on Law by St. Thomas Aquinas. Special Quotes are taken from Chapter On the Effects of Laws)