LEGAL PHILOSOPHERS

1. PLATO
- Plato’s most important work on politics is his Republic, published around 380
B.C. Written as a dialogue among characters and set in a private home, the
book describes a small group of Athenians discussing political philosophy. The
main character is Socrates, who voiced Plato’s ideas. (The real Socrates never
wrote down his ideas. The Republic examines the meaning of justice, looks at
different types of government, and outlines the ideal state. It touches on
many subjects, including law and tyranny. Plato looked at four existing forms
of government and found them unstable. The best, in his view, is timocracy, a
military state, like Sparta, based on honor.
- Plato stressed the importance of law in his other works. In the Crito, a
dialogue between Socrates and his friend Crito, Crito offers Socrates a way to
escape his impending execution. Socrates refuses, explaining that when a
citizen chooses to live in a state, he “has entered into an implied contract
that he will do as . . . [the laws] command him.” In Plato’s Laws, his last book,
he summarizes his stance on the rule of law: here the law is subject to some
other authority and has none of its own, the collapse of the state, in my view,
is not far off; but if law is the master of the government and the government
is its slave, then the situation is full of promise and men enjoy all the
blessings that the gods shower on a state.
- He divided his ideal state into three classes. The lowest and largest class is
the producers: the farmers, craftsmen, traders, and others involved in
commerce. The next class is the warriors, those who defend the state. They
are educated in sports, combat, and philosophy and tested by both terrifying
and tempting situations. From the best of warrior class, the ruling class is
drawn. Its members will study philosophy and be given government and
military positions until age 50, when the best of them become philosopher
kings.

2. ARISTOTLE
- In The Politics, Aristotle rejected Plato’s ideal state. He said that it fails to
address conflicts that will arise among its citizens. He claimed Plato’s ideal
state will contain two states in one, each hostile to the other. Plato makes
the guardians [the warriors] into a mere occupying garrison, while the
husbandmen and artisans and the rest are the real citizens. But if so, the suits
and quarrels and all the evils which Socrates affirms to exist in other states,
will exist equally among them. He says indeed that, having so good an
education, the citizens will not need many laws, but then he confines his
education to the guardians.
- Unlike The Republic, The Politics does not depict an ideal system of
government. Instead, Aristotle explored practical constitutions that city-
states can realistically put into effect. His aim was to “consider, not only what
 form of government is best, but also what is possible and what is easily
attainable.
3. ST. THOMAS AQUINAS
- Aquinas describes law as "a certain rule and measure of acts whereby man is
induced to act or is restrained from acting." (q90, a1) Because the rule and
measure of human actions is reason, law has an essential relation to reason;
in the first place to divine reason; in the second place to human reason, when
it acts correctly, i.e., in accordance with the purpose or final cause implanted
in it by God. Law is directed by its nature to the good, and especially to the
universal or common good. (q90, a3) It is addressed not primarily to private
persons but to the whole people meeting in common or to persons who have
charge of the community as a whole. Promulgation is the application of the
law to those to whom it is applied and the communication of this law to
them--is essential to the nature of the law. The natural law is promulgated by
God: "God has instilled it into human minds so as to be known by them
naturally." Divine and human laws can be promulgated by word of mouth or,
even better, by writing
- Aquinas recognizes four main kinds of law: the eternal, the natural, the
human, and the divine. The last three all depend on the first, but in different
ways. Were we to arrange them in a hierarchy, eternal would be at the top,
then natural, then human. Divine law is not in conflict with natural law, but it
reaches human beings by a different route, revelation.
- Eternal law is identical to the mind of God as seen by God himself. It can be
called law because God stands to the universe which he creates as a ruler
does to a community which he rules. When God's reason is considered as it is
understood by God Himself, i.e. in its unchanging, eternal nature, it is eternal
law.
- Divine law is derived from eternal law as it appears historically to humans,
especially through revelation, i.e., when it appears to human beings as divine
commands. Divine law is divided into the Old Law and the New Law (q91, a5).
The Old and New Law roughly corresponding to the Old and New Testaments
of the Bible. When he speaks of the Old Law, Thomas is thinking mainly of the
Ten Commandments. When he speaks of the New Law, the teachings of
Jesus.
- Thomas' philosophy, as we should expect knowing how much he is indebted
to Aristotle, is pervaded with a sense of teleology. Nowhere is this clearer
and more important than in his discussion of human law. You might think
here that he would define human law as what we sometimes nowadays call
positive law, the laws actually enacted and put in force in our human
communities. But in fact human law fits just those so-called positive laws
which are what written and enacted laws should be. So-called laws which fall
short of what they should be are not true laws at all, according to Thomas.
- Natural law is less specific than human laws, but human laws are applications
of natural law and cannot deviate from what we might call the spirit of the
 natural law, as applied to the time and place of the human law's
promulgation. If a human law does deviate in this way, if it is not a proper
and rationally defensible application of the natural law, then it is a perversion
of law, which is to say, it is a law in name only.

4. THOMAS HOBBES
- For Hobbes, law was the primary instrument of a sovereign by which to serve
the ends of government, which were principally peace and the personal
security of all its citizens. Writing during and after the English Civil Wars
(1642–51), he developed the idea that government which ruled effectively by
law is the only bulwark against anarchy or, as he famously put it, “a war of all
against all.” Hobbes’s philosophy of law is in part an account of what law
must be like in order to serve that function. Many scholars credit Hobbes as
the founder of legal positivism, the dominant philosophical theory of law
since the 17th century. The core ideas of legal positivism are that law is
essentially a matter of social fact and that it bears at most a contingent
connection with moral norms: many actions that are legally proscribed (or
prescribed) can nonetheless be moral (or immoral). Insofar as this was
Hobbes’s view, it was because he was an adherent of the command theory of
law already discussed. In his magnum opus, Leviathan (1651), he wrote that
“law in general, is not counsel, but command” and that civil (i.e., positive)
laws are “those rules which the common-wealth hath commanded…by word,
writing, or other sufficient sign of the will” that certain actions are to be done
or not done. Since laws are “signs of the will” of the sovereign, Hobbes
placed particular emphasis on the requirement that those “signs” are
sufficiently public and intelligible to ordinary citizens.

5. JOHN LOCKE
- John Locke is one of the founders of “liberal” political philosophy, the
philosophy of individual rights and limited government. This is the philosophy
on which the American Constitution and all Western political systems today
are based. In the Second Treatise of Government, Locke’s most important
political work, he uses natural law to ground his philosophy. But there are
many different interpretations of the natural law, from the Ciceronian to the
Thomistic to the Grotian. What is Locke’s interpretation? What version of
natural law supports liberal politics?
- Some argue that this is a misguided question. They say that Locke’s political
philosophy is not based on natural law at all, but instead on natural rights,
like the philosophy of Thomas Hobbes. This is probably the greatest
controversy in Locke interpretation today. Natural law theories hold that
human beings are subject to a moral law. Morality is fundamentally about
duty, the duty each individual has to abide by the natural law. Thomas
Hobbes created a new approach when he based morality not on duty but on
 right, each individual’s right to preserve himself, to pursue his own good—
essentially, to do as he wishes.
- Is Locke a follower of Hobbes, basing his theory on right rather than natural
law? What difference does it make? One characteristic of a rights theory is
that it takes man to be by nature a solitary and independent creature, as in
Hobbes’s “state of nature.” In Hobbes’s state of nature, men are free and
independent, having a right to pursue their own self-interest, and no duties
to one another. The moral logic is something like this: nature has made
individuals independent; nature has left each individual to fend for himself;
nature must therefore have granted each person a right to fend for himself.
This right is the fundamental moral fact, rather than any duty individuals
have to a law or to each other. The priority of individual right reflects our
separateness, our lack of moral ties to one another. According to Hobbes,
one consequence of this is that the state of nature is a “war of all against all”:
human beings are naturally at war with one another. Individuals create
societies and governments to escape this condition. Society is not natural to
man, but is the product of a “social contract,” a contract to which each
separate individual must consent. The sole purpose of the contract is to
safeguard the rights of each citizen

6. CHARLES DE MONTESQUIEU
- The rule of law is a central theme of Montesquieu’s major work, The Spirit of
the Laws (1748), and in many respects it forms the conceptual core of his
political theory. For Montesquieu, the rule of law means that the use of
political power is subject to the formal constraint of standing rules that are
codified in the positive laws of the land. It means that no one is above the
law and that the actions of the state must conform in a consistent way to
publicly known standards. The rule of law is the single most important factor,
as Montesquieu sees it, in establishing moderation in government and
therefore in protecting political liberty.

7. JEAN JACQUES ROUSSEAU

- General will, in political theory, a collectively held will that aims at the
common good or common interest. The general will is central to the political
philosophy of Jean-Jacques Rousseau and an important concept in modern
republican thought. Rousseau distinguished the general will from the
particular and often contradictory wills of individuals and groups. In Du
Contrat social (1762; The Social Contract), Rousseau argued that freedom and
authority are not contradictory, since legitimate laws are founded on the
general will of the citizens. In obeying the law, the individual citizen is thus
only obeying himself as a member of the political community.
- The notion of the general will precedes Rousseau and has its roots in
Christian theology. In the second half of the 17th century, Nicolas
Malebranche attributed the general will to God. God, Malebranche argued,
 mostly acts in the world through a set of “general laws” instituted at the
creation of the world. These laws correspond to God’s general will, in
contradistinction to particular expressions of God’s will: miracles and other
occasional acts of divine intervention. For Malebranche, it is because God’s
will expresses itself mainly through general laws that one can make sense of
the apparent contradiction between God’s will to save all of humankind and
the fact that most souls will not actually be saved. Rousseau’s own
understanding of the general will emerged from a critique of Denis Diderot,
who transformed Malebranche’s understanding of the general will into a
secular concept but who echoed Malebranche by defining it in universalistic
terms. In his article “Droit naturel” (“Natural Right”) published in 1755 in the
Encyclopédie, Diderot argued that morality is based on the general will of
humankind to improve its own happiness. Individuals can access this moral
ideal by reflecting on their interests as members of the human race. The
general will, Diderot believed, is necessarily directed at the good since its
object is the betterment of all.

8. IMMANUEL KANT
- At the foundation of Kant’s system is the doctrine of “transcendental
idealism,” which emphasizes a distinction between what we can experience
(the natural, observable world) and what we cannot (“supersensible” objects
such as God and the soul). Kant argued that we can only have knowledge of
things we can experience. Accordingly, in answer to the question, “What can I
know?” Kant replies that we can know the natural, observable world, but we
cannot, however, have answers to many of the deepest questions of
metaphysics.
- Kant’s ethics are organized around the notion of a “categorical imperative,”
which is a universal ethical principle stating that one should always respect
the humanity in others, and that one should only act in accordance with rules
that could hold for everyone. Kant argued that the moral law is a truth of
reason, and hence that all rational creatures are bound by the same moral
law. Thus in answer to the question, “What should I do?” Kant replies that we
should act rationally, in accordance with a universal moral law.
- Kant also argued that his ethical theory requires belief in free will, God, and
the immortality of the soul. Although we cannot have knowledge of these
things, reflection on the moral law leads to a justified belief in them, which
amounts to a kind rational faith. Thus in answer to the question, “What may I
hope?” Kant replies that we may hope that our souls are immortal and that
there really is a God who designed the world in accordance with principles of
justice.

9. GEORG WILHELM FRIEDRICH HEGEL

- For Hegel, legal philosophy endeavours to show the legal concepts that judges and
lawyers apply, together with the results of the application of those concepts, to be
rational. Opposed to legal philosophy is the positive study of law: the study of legal
results or concepts without regard for their rational basis. One form of positivism,
according to Hegel, is legal history. Because legal philosophy is concerned with law’s
rationality, and legal history with the law’s historical causes irrespective of their
rationality, the two fields are “mutually indifferent.” Difficulties arise when one of
the fields overreaches: when a legal historian purports to improve or to challenge
the philosophical understanding of the law, or vice versa. For Hegel such
overreaching amounts to a sort of categorial error, which yields only obscurity. Yet,
despite his admonitions against mixing legal philosophy and history, Hegel also
envisages what we may call a “philosophical history” of the law. This is a story of the
law’s development that endeavours to show that process to be rational. (The sort of
“teleology” for which Hegel is notorious.) Arguably, an exemplar of this sort of
rational reconstruction is traditional common law reasoning: the marshaling of
precedents that judges and lawyers undertake in order to establish what the law is.
Hegel’s work suggests not only that the pursuit of a philosophical history of law is
legitimate, but that it may be obligatory for those who seek a full understanding of
the law’s rationality.