ANCIENT LAWS
Author: Tanya Raj
Introduction:-For man to be able to live in a society there must be laws that govern man. If these laws cease to exist, then there will be chaos. This concept of law has drawn the attention of different scholars over time, such as Plato, Aristotle, The Stoics, Aquinas, to mention but a few.
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. Immanuel Kant says that this question cannot be answered from the empirical point of view, rather from the metaphysical arena. Kant says “like the wooden head in Phedrus fable, is a head that may be beautiful but alas! Has no brains”.
For Jeremy Bentham and his disciple Austin, say law is essentially a command backed by sanction or the threat of punishment, which implies that anybody who is able to issue a command and is able to back it up with the threat of punishment has, ipso facto, made a law!
Now, all these definitions lacked one thing and that is the essential feature of law. If we agree with Justice Holmes and say it is a sanction, then we begin to see law as prediction, a systematized prediction as to what would happen to a person (sanction) if he does a given thing that is forbidden. But sanction is only an appendage of law, hence the only feature of law is obligation; this obligation is gotten from natural law. This brings us to see that talking about legal philosophy with the exclusion of Aquinas would be disastrous, as we see the idea of natural law, which he formulated being in play here.
Aquinas is an important figure in the philosophy of law and cannot be left out; this would bring us to understanding his idea of natural law. Natural Law is a moral theory of jurisprudence, which maintains that law should be based on morality and ethics. Natural Law holds that the law is based on what’s “correct.” Natural Law is “discovered” by humans through the use of reason and choosing between good and evil. Therefore, Natural Law finds its power in discovering certain universal standards in morality and ethics.
It is worthy of note that Aquinas was not the first to approach this idea of natural law; this shows that this concept of natural law is as old as Western philosophy. The Sophists made a distinction between laws of the State and nature, but placed laws of nature on higher priority over laws of the State. They said laws of the State must conform to laws of nature. In other words the laws of nature are the ideal. The laws of the State make men do things that are unnatural. The laws of nature make no distinction between Greeks and barbarians rather the laws of the State would.
Plato was one of the founders of philosophy of law and natural law doctrine. For him, laws are only necessary when reason fails, for the law of reason is the ideal law. This clearly shows he is the originator of the natural law which sees the law of nature as law of reason. Plato condemns positive laws which are only used when men are weak; he says thus that if men are perfectly rational and ready to submit to the law of reason, there would be no need for positive laws.
Now, the idea of Aristotle follows from that of his master, Plato. He makes use of the law of reason. Teleologically, there is always some end to natural phenomena. By studying a thing we come to know what it is intended for by nature. Each being has its own proper end intended for it by nature. What Aristotle has in mind is to bring natural law to this idea. That is natural law is nothing else than this “intention” of nature of things expressed through the natural tendency of things. And for the Stoics, their natural law was indifferent to the divine or natural source of the law.