[金牌原创]An Introduction to the Law and its Sources.ppt

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Four answers: NATURAL LAW POSITIVISM COMMON LAW LEGAL REALISM NATURAL LAW Aristotle Cicero St Thomas Aquinas Finnis Dominated Western thought until the 18th Century Assertions about natural law were often the basis of the argument for individual or human rights and for imposing limitations on government Groundwork for the principles of international law Cicero, De Re Publica “True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting. It summons to duty by its commands, and averts from wrongdoing by its prohibitions….It is a sin to try to alter this law, nor is it allowable to repeal any part of it, and it is impossible to abolish it entirely.We cannot be freed from its obligations by Senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment” Thomas Aquinas: 4 types of law The Eternal – God’s plan for the universe The Natural- that part of the eternal law which is discoverable by reason and which is to be found in the human mind The Human - the law created by humans on the basis of natural reason, (or positive law) and The Divine – that law revealed in scripture. The problem of “unjust laws” Lex iniusta non est lex: an unjust law is not a law A just law : is consistent with the requirements of natural law Does not exceed the authority of the law maker Imposes burdens on citizens