Thomas Aquinas Dual Foundations Of Law

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Dual Foundations of Law One of the more interesting aspects of law in general is how the subject both evolves and is consistently marked by debate on multiple levels. As ideologies in a society change, so too does the law follow, as witnessed by the legal actions prompted by women’s suffrage, the civil rights movement, and a vast range of other social and political issues. As this occurs, however, the debate invariably ensues as to the moral correctness of any potential change. Some, like Thomas Aquinas, insist that an adherence to morality is essential to ensure validity of law. Others, like H. L. A. Hart, are legal positivists who attach meaning to law apart from any moral platform or focus. It is unlikely that this central debate will ever …show more content…
In this theory, the law is validated, not by morality, but by the shifting demands of the society. Hart then has no issue in confronting Aquinas. At the same time, his arguing against Aquinas is questionable at best. He essentially asserts that the belief that an unjust law is not a law is an exaggeration so extreme, it cannot be upheld as rational. Hart recognizes that morality and law share qualities, as in duties and obligations, but he holds that Aquinas confuses the two to an unreasonable extent. He goes so far as to equate the statement regarding the unjust law with one expressing that a statute is not a statute (Hart 8). This is not an especially strong refutation of Aquinas, if only because Hart is exercising here the same exaggeration he charges Aquinas of presenting. It is arguable that a more valid opposition would refer to the reality that what is moral alters in any society over time, and thus any reliance on morality to determine the worth of law is inherently suspect. As noted, this reality is certainly evident in American history. It was once morally right to own slaves, as it was morally right to view women as little more than property. This inevitably shifting quality of the moral, then, should in fact be the legal positivist’s chief argument for the need to establish law based on social facts. Interestingly, and ironically, this in itself attaches morality to law, in that the morality derives from how the law addresses the social realities. As the society evolves and changes, morality plays a significant part in the changes, and the law acting upon social facts then reflects this same aspect. In a very real sense, then, the legal positivism of Hart merely reverses how morality exists in the thinking of

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