Juris Prudence
practical wisdom or common sense, a system or body of law
4 jurisprudential Schools
- Historical-law expresses experience of the people
- Realist-law should do the greatest good for the greatest amount of people
- Positivist-social contract, Thomas Hobbes said “life is nasty brutish and short”. Gives up freedom for security. Concerned with self preservation
- Natural law-“an ordering of reason promulgated by the person in charge of a community for the common good”
Law
an ordering of reason, promulgated by the person in charge of the community, for the common good(Aquinas)
Characteristics of Law(Aquinas)
- All laws must (should) be reasonable
- All laws must (should) be publicly disclosed
- All laws must(should) issue from someone with authority
- All laws must (should) be for common good, not for self interest
Aquinas Types of laws
- Eternal law-god’s providential ordering of natures to their ends
- Divine law-for Christians it would be ten commandments, how god’s work is revealed
- Natural law-inner voice/part of nature as a human
- Human law-laws enacted by human political entities. “Positive or enacted laws” should never violate natural law
Defining what a “Person”/human is
• Boethius-“person is an individual substance of a rational nature”
o Individual-each being is distinct
o Substance-unified being
o Nature-kind of being
o Rational-acquire and use knowledge/make choices
• Person is a moral category which deserves protection by having an intrinsic dignity.
o All humans are persons, not all persons are human
English Common Law(Blackstone)-
empties natural law of its theological content speaks instead of pursuit of happiness
• Sacred and inviolable and changed to unalienable
Ways to think about natural law in a rational context (3 roots of law)
- the foundation of human law (posited) is moral law
- the foundation of moral law is conformance with the design (natural law end directedness) of the created order
- the foundation of created order is the creator(god)
What happens when human law is separated from its moral foundations?
- Human law when severed from its law moral basis becomes tyranny
- Ethics separated from the natural law of the created order is chaos
- Focusing on creation, and ignoring the creator is idolatry
