Legal Phil Readings 3/5: Aquinas, Murphy, Austin, Levi-Fuller-Levinson, Holmes

Aquinas Excerpts from Summa Theologiae

Thomas Aquinas, in his Summa Theologiae, weaves together reason and faith by arguing that all law—eternal, natural, human, and divine—is rooted in the rational order established by God. He posits that natural law reflects human participation in divine reason, guiding moral behavior toward the common good and the ultimate end of union with God. Aquinas' work systematically defends that truth is accessible through both revelation and rational inquiry, ultimately aiming to harmonize the insights of philosophy with the tenets of Christian theology.

What does law do and how does law relate to reason?

Law guides human actions toward the common good. It must be an ordinance of reason, since reason is the means by which humans discern what is just.

What is the “last end of human life?” (4)

The ultimate end of human life is happiness (beatitude), which is found in union with God.

How does Aquinas determine what is the last end of human life? (4)

By reasoning that all human actions seek some form of good, and the highest good must be something ultimate and perfect—which he identifies as God.

What must law be directed toward? (4)

Law must be directed toward the common good.

What two entities make the common law? (5)

The lawgiver (authority) and those who are subject to the law

What is Aquinas’ definition of the law? (6)

Law is “an ordinance of reason for the common good, made by one who has care of the community, and promulgated.”

What are the 4 levels of law according to Aquinas? (8-13)

• Eternal Law – God’s divine wisdom governing all creation

• Natural Law – Participation of rational creatures in eternal law

• Human Law – Laws made by human authorities based on natural law

• Divine Law – Laws revealed by God (e.g., Scripture) for guiding humans to their supernatural end

How is the natural law in us? (10)

It is part of human nature and implanted in reason. All people have an innate knowledge of basic moral principles.

According to Aquinas, the natural law is nothing else than _______? (10)

The rational creature’s participation in the eternal law.

If the rational creature understands the natural law, what is the role of human

law? (11)

Human law applies and specifies the general principles of natural law to particular situations.

Aquinas gives 4 reasons that explain why the divine law is needed. What are

they? (12-13)

Human law cannot direct internal acts

Human law is fallible and limited

Humans need certainty about moral truths

Divine law is necessary to guide humans to eternal happiness.

From context, what do you think that Aquinas means by “Fomes?” (16)

“Fomes” refers to the inclination to sin, often associated with concupiscence (disordered desires).

How does the natural law make men good? (19)

By guiding human actions toward virtue and aligning them with reason and the common good.

Why is the natural law not a habit? (33)

A habit is a disposition toward action, while natural law is a principle that governs moral reasoning.

What is the relationship between the natural law and virtue? (37)

Natural law directs humans toward virtuous actions, and virtue is the habitual disposition to act according to reason and natural law.

How does Aquinas qualify the claim that “the truth is the same in all men?” (38-

39)

The general principles of natural law are the same for all, but applications may vary due to differences in knowledge, culture, and circumstances

How can the natural law be changed? (41)

It cannot be abolished, but human law can specify and develop natural law principles in different ways.

How can the natural law be “blotted out?” (42)

In some cases, corruption of reason (due to sin, vice, or ignorance) can obscure people's ability to recognize natural law.

How does the Stoic view of nature relate to natural law theory? (lecture)

The Stoics believed that nature is rational and humans should live according to reason. Aquinas builds on this by arguing that natural law is a rational order placed by God in creation.

Mark C. Murphy: Excerpt from Natural Law in Jurisprudence and Politics;

Mark C. Murphy, in Natural Law in Jurisprudence and Politics, explores the foundations of natural law theory in relation to legal and political authority. He argues that laws must be grounded in moral principles derived from human nature and reason, rather than mere social conventions or commands. Murphy emphasizes that a legitimate legal system must align with the objective good of society, promoting justice and the common good. His work engages with both classical and contemporary perspectives, assessing how natural law theory influences legal interpretation, political obligation, and the limits of state power.

What is the central claim of natural law jurisprudence?

What is the central claim of natural law jurisprudence?

What is the central claim of natural law political philosophy?

Political authority must serve the common good and be justified by moral reasoning, rather than coercion or mere will.

What are the three readings of the natural law thesis?

• Weak Thesis – Law is influenced by morality but not necessarily dependent on it.

• Moderate Thesis – Law should align with moral principles for legitimacy.

• Strong Thesis – An unjust law is not a true law at all.

Why is practical reasonableness important?

• It helps humans determine right action based on moral reasoning and objective good, guiding lawmaking and ethical behavior.

What does Murphy mean by an “objectivist notion of an individual’s good?”

Human well-being is not purely subjective; there are objective goods essential to flourishing, regardless of personal preference.

What are some commonly cited human goods

Life, knowledge, friendship, play, aesthetic experience, and religion are often cited as intrinsic goods that contribute to human flourishing.

What is Murphy’s point about the Fugitive Slave Act?

The Act, which required the return of escaped slaves, violated moral principles, showing how positive law can be legally valid but morally illegitimate.

Why is Robert George’s argument that the natural law claim is a moral thesis “excruciatingly uninteresting?”

Because it is an obvious and uncontroversial claim—natural law theory inherently assumes a moral foundation for law.

How does the stronger thesis imply that “an unjust law is no law at all?”

• If law must be rooted in moral truth, then an unjust law fails to meet the criteria of true law and lacks real authority.

What is Murphy’s point about “the duck is a skillful swimmer?”

Just as ducks are naturally good at swimming, humans have natural moral capacities, which are essential to their function.

Explain the “notion of defect is kind-specific” in relation to the duck with ugly feathers?

A defect must be judged within the nature of its kind—ugly feathers are not a defect in function, but being unable to swim would be.

How does the phrase “glass diamond” potentially save the strong natural law thesis?

A glass diamond is not a real diamond—likewise, an unjust law is not truly law in the fullest sense.

What are “bligers?”

Hypothetical fictional creatures used as an analogy to explore how natural function defines law and morality.

How could the strong natural law thesis use “bligers?”

If bligers have a natural function, their failure to fulfill it is a defect, just as unjust laws fail in their function as true laws.

What is the difference between a natural kind concept and a hermeneutic concept?

Natural kind concepts (e.g., human, duck) are based on essential characteristics, while hermeneutic concepts (e.g., legal systems) depend on interpretation and social context.

If positivism claims to be a complete descriptive theory of law, why does it need to describe the requirements of practical reasonableness?

Because law is not just a set of rules; it is a rational institution that aims to guide behavior, requiring moral reasoning for coherence.

John Austin

Excerpt from The Province of Jurisprudence Determined

John Austin, in The Province of Jurisprudence Determined, presents his theory of legal positivism, arguing that law is a command issued by a sovereign, backed by sanctions, and independent of morality. He distinguishes positive law (human-made law) from divine law and moral rules, emphasizing that legal validity depends on authority rather than ethical considerations. Austin rejects the natural law tradition, asserting that law should be studied scientifically, without relying on moral reasoning. His work laid the foundation for modern legal positivism, influencing debates on the separation of law and morality.

What do you think Austin means by “political superiors?” (2)

The sovereign authority that commands obedience from a political society. Political superiors are those who issue laws and enforce compliance through power and sanctions.

What does Austin mean by “positive morality?” (3)

Social norms and customs that influence behavior but lack legal authority. Unlike laws, positive morality is not enforced by a sovereign but is upheld by societal expectations.

How does Austin describe the meaning of the word “command?” (5)

A command is an expression of the sovereign’s will, requiring compliance and backed by a threat of sanctions in case of disobedience.

Why is “being liable to evil” important? (6)

It establishes the force of law—people comply with laws because failure to obey results in punishment or negative consequences.

How can one judge the efficacy of a command? (7)

A command is effective if it is generally obeyed. The sovereign’s authority depends on the habitual obedience of the governed.

What does Austin mean by “right” at the bottom of page 8?

A right exists when a law imposes a duty on others to act in a certain way. Rights and duties are two sides of the same coin in Austin’s legal framework.

Why are command, duty, and sanction inseparably connected? (9)

Commands impose duties, and sanctions ensure compliance. A law without a sanction is merely a suggestion, not an enforceable rule.

What does it mean to oblige generally? (10)

To oblige means to impose a legal duty, backed by the authority of the sovereign, requiring compliance under threat of punishment.

Why is an act which displeases the sovereign and leads to punishment not a law? (12)

Laws are general commands that apply systematically, not arbitrary acts of punishment. If an action simply angers the ruler but lacks a legal basis, it is not a true law.

What does Austin mean by superiority? (16)

• Superiority refers to the sovereign’s ability to command obedience, meaning laws derive authority from those who hold the power to enforce them.

What is an imperfect obligation? (20)

An obligation without legal enforcement. It may be a moral duty or a social expectation, but it lacks legal consequences if ignored.

Why is Austin suspicious of customary law? (24

He argues that customs become law only when recognized by a sovereign. Unwritten traditions lack legal force unless officially adopted.

13. How is Hobbes’ conception of sovereignty a refutation of traditional natural law theory? (lecture)

Hobbes asserts that law comes from sovereign power, not moral principles. This directly contradicts natural law theory, which claims laws must be grounded in morality.

What is the relationship between legal positivism and utilitarianism? (lecture)

Legal positivism and utilitarianism both focus on practical consequences rather than moral absolutes. Austin, influenced by Bentham, saw laws as tools for promoting social utility, not moral truth.

Levi

Levi talks about three types of law: case law (the precendents used in the common law),

statutory law (laws passed by a legislature), and Constitutional law

Levi, in An Introduction to Legal Reasoning, examines how legal precedents evolve, emphasizing that judicial decisions shape and redefine the law through reasoning by analogy.

Lon Fuller

Fuller, in The Case of the Speluncean Explorers, presents a fictional legal dilemma to illustrate competing judicial philosophies, questioning whether law should be strictly applied or interpreted based on justice and morality.

Sanford Levinson

Levinson, in On Interpretation: The Adultery Clause of the Ten Commandments, challenges the rigidity of legal texts by arguing that all laws require interpretation influenced by cultural and historical context. Together, these works highlight the complexity of legal decision-making and the tension between formalism and moral reasoning in law.

Why do you think Levi thinks, if a rule has to be clear before it could be imposed, society would be impossible? (501)

Laws must have flexibility to adapt to changing circumstances. If rules had to be perfectly clear before application, society would struggle to function, as laws often require interpretation and evolution over time.

What are the 3 steps of reasoning by example? (501-502)

• 1) Recognizing similarity between cases

• 2) Announcing the rule that applies

• 3) Applying the rule to future cases, modifying it when necessary

Why is it disturbing that a rule may change from case to case? (502)

It challenges the predictability and stability of the legal system. If laws shift too much, people may lose confidence in the legal process.

What is the relationship of facts to the determination of similarity or difference? (502)

Judges must analyze facts to decide whether a new case is similar to past ones, shaping how laws are applied and refined.

Why does Levi think that legal reasoning is imperfect? (503)

What is the benefit of the fact that categories used in the legal process must be left ambiguous? (503)

How do litigants participate in law-making? (504)

By bringing cases to court, litigants force judges to interpret and refine the law, effectively shaping legal precedents.

How does Levi describe the relationship between court and legislature? (505)

Courts interpret and apply laws, while legislatures create them. However, judicial rulings can influence legislation by shaping legal concepts.

How does the Constitution permit the Courts to be inconsistent? (506)

By allowing reinterpretation and precedent overturning, the Constitution enables courts to adapt to societal changes, ensuring laws remain relevant.

What are the facts of the case discussed here? (616-619)

• Five spelunkers were trapped in a cave due to a landslide. With no rescue in sight and facing starvation, they agreed (via a dice roll) to kill and eat one of their own, Whetmore. After being rescued, they were charged with murder under a statute that mandates the death penalty for unlawful killing.

Chief Justice Truepenny goes first. How would you characterize his argument?

He takes a strict legal positivist stance, arguing that the law must be applied as written—they are guilty of murder. However, he suggests the executive could grant clemency to correct the harshness of the law.

Justice Foster is next. What are his grounds for saying that the men are innocent of any crime? (620)

He argues that natural law applies, not human law, since they were in an extreme situation where society’s laws no longer governed them. He also claims that the statute should be interpreted in line with its purpose, which is to deter murder—not to punish survival-driven acts.

What does Foster say about civil society? (621)

Civil society exists to promote human survival and well-being. Since these men had to resort to cannibalism to survive, punishing them would go against the fundamental purpose of law.

What could it mean to say that a man could break the letter of the law without breaking the law itself? (624)

Foster suggests that literal readings of laws can contradict the spirit or intent behind them. The law should be interpreted in context rather than applied rigidly.

How is self-defense relevant here? (624)

Foster argues that just as killing in self-defense is excusable, the men’s actions were a form of collective self-preservation.

What does Foster say about deterrence? (625)

Laws deter crimes by discouraging people from making bad choices, but deterrence does not work in a situation where no real choice exists, such as survival cannibalism.

Justice Tatting is next. Why does he reject Foster’s first argument? (626)

He finds the “state of nature” argument unconvincing, arguing that laws cannot be suspended based on whether people are inside or outside of society.

Why does Tatting think that Foster’s legal code is odious? (627)

He believes that allowing survival cannibalism opens the door for arbitrary justifications of murder, weakening the moral foundation of law.

Why does Tatting discuss different theories of punishment? (628

To illustrate the complexity of deciding a just punishment—should the law be retributive (punishing wrongdoing) or utilitarian (promoting social good)?

How does Tatting use precedents throughout his argument?

He cites past cases to show inconsistencies in the legal system, which make it difficult to rule based purely on precedent.

Justice Keen is next. What is his criticism of the Chief Justice? (632)

He criticizes Truepenny for relying on clemency rather than making a firm legal decision, arguing that courts should apply the law, not expect political interventions.

Why is “right” or “wrong” irrelevant for Keen? (632)

• He believes that courts should apply the law as written, without considering moral judgments—whether the law is just or unjust is a legislative question, not a judicial one.

14. What does Keen mean by the principle of legislative supremacy? (633-634)

The courts must follow laws as written and leave changes to the legislature. Judges should not reinterpret laws based on personal views.

What is the point of Keen’s quip about shoes? (634)

He compares judges making moral judgments about the law to shoe salesmen judging whether customers deserve shoes—both are stepping outside their role.

How do you think that Keen understands the law?

As an absolute set of rules that should be enforced without interpretation or moral consideration.

Finally, we have Justice Handy. How does he think that the judiciary loses touch with the common man? (638)

By focusing too much on abstract legal principles instead of practical, real-world considerations.

18. What do you think that Handy means when he says that forms and abstract concepts should be treated as instruments? (639)

• Legal principles should be tools for justice, not rigid doctrines that prevent fair outcomes.

19. How does Handy cite public opinion? (639-640)

He argues that public sentiment overwhelmingly favors acquittal, so the court should align with social expectations rather than strict legal rules.

How are emotions implicated in the law? (640)

Handy believes that laws affect people’s lives, so judges must consider compassion, common sense, and social impact in their rulings.

Is what Handy says really common sense?

It depends. Some may see his approach as practical and humane, while others may argue that law should not be swayed by emotions and public opinion.

Why does Holmes say that the study of law is about prediction? (991)

• He argues that law should be viewed from the perspective of a “bad man”—someone who only cares about the consequences of breaking the law. Since law determines what courts will do in response to actions, it is best understood as a prediction of judicial decisions.

How does Holmes define a legal duty? (992)

A legal duty is not a moral obligation but rather a forecast of consequences—what will happen if someone violates a law, particularly in terms of enforcement and punishment.

What is Holmes’ conception of the relationship between morality and the law? (992)

He believes that law and morality are distinct. While moral principles may influence law, they should not be confused—law is about practical enforcement, not moral truth.

Why does Holmes argue that you must look at the “bad man” to know the law? (993)

The bad man cares only about avoiding punishment, so his perspective helps reveal how law functions in reality—not as an abstract moral system, but as a set of predictable consequences imposed by the courts.

Pick out the parts of Holmes’ argument that suggest agreement with Austin.

Like John Austin, Holmes views law as a command backed by sanctions rather than a reflection of morality. Both emphasize legal positivism, where the force of law comes from authority and enforcement, not moral reasoning.

Explain the context of Holmes’ famous “prophecies of what the courts will do” line. (994)

Holmes asserts that law is best understood as a prediction of how courts will rule in the future. He dismisses the idea that law is a set of abstract principles and instead sees it as a practical tool for guiding behavior based on judicial trends.

What does Holmes mean by “wash duty with cynical acid?” (995

He means that we should strip away moral illusions about law and view it pragmatically, as a system of enforceable rules rather than a moral guide.

Why isn’t the development of law logical? (997)

Holmes argues that law evolves based on experience, social needs, and historical pressures, not through pure logic or abstract reasoning. Courts often make decisions based on practical considerations, not strict logical deductions.

What does Holmes say about the public mind? (998)

He suggests that the law must align with public opinion and societal needs, as laws that lack public support will ultimately fail.

What are considerations of social advantage? (999)

These refer to the practical benefits of laws—how they affect society’s welfare, stability, and progress. Holmes sees law as an evolving institution that adapts to social needs rather than remaining fixed.

Is Holmes a utilitarian? (1000-1001)

Partially. He believes law should promote social welfare, which aligns with utilitarianism, but he rejects strict moral theories and focuses on practical outcomes rather than abstract ethical principles.

12. Who is the man of the future? (1001)

The future legal thinker, according to Holmes, is one who understands law as a practical and evolving system influenced by economics, sociology, and social progress, rather than rigid doctrines.

Give some examples of the kinds of questions that Holmes thinks are important.

• What are the actual consequences of a law?

• How do judges shape legal decisions based on experience?

• What role do economic and social factors play in the evolution of law?

Why is Holmes skeptical of the use of history in studying law?

He argues that legal rules often persist beyond their usefulness, and studying law historically can trap judges in outdated thinking instead of adapting to present realities.

Why is the study of theory important? (1008)

Even though he emphasizes practical outcomes, Holmes believes that legal theory helps us critically analyze and improve the legal system, ensuring laws remain relevant and effective.