The Act Of Existence, Essence And Conceptual Structure Of Law

Of various schools of legal philosophy, Classical Natural Law Theory, which was founded by Thomas Aquinas, is the most profound one. Thomas Aquinas, who is the greatest philosopher and jurist in the Middle Ages and is also the greatest Aristotelian in the history of western philosophy, absorbed in not only the spirit of philosophy of ancient Greek, but also the spirit of theology of Christianity. So the Classical Natural law Theory that Thomas Aquinas argued syncretizes the two great western traditions of thought: the one is the tradition of Athens and the other Jerusalem. It is therefore necessary for us to investigate the classical natural law theory of Thomas Aquinas. For it will contribute not only to our understanding the western legal philosophies but also to improving our apprehension of the western civilization.The legal ontology of Thomas Aquinas that investigates the essence of law, that is to say, which is about the theoretical problems of'Is law?'and'What is law?', is the foundation of Classical Natural law Theory. In Summa Theologiae,â… -â…¡, q.90, which is the most important work of philosophy of Thomas Aquinas, he discusses the essence of law. This dissertation aims at the interpretation of Summa Theologiae,â… -â…¡, q.90. In that text Thomas Aquinas argues a classical concept of law, which is that law is a certain dictate of reason for the Common Good, made by him who has the care of the community and promulgated. My interpretation of the legal ontology of Thomas Aquinas, which is stated in that Latin text, consists of ten points:â… .We cannot apprehend the legal ontology of Thomas Aquinas until we apprehend his metaphysics. John Finnis, who is the important representative of new classical natural theory and who interprets the legal theory of Thomas Aquinas from the point of view of anti-metaphysics of classical philosophy, misinterprets the spirit of the legal ontology of Thomas Aquinas.â…¡.It is just the characteristic of metaphysics of Thomas Aquinas that it distinguishes the essence of a thing from the act of existence of a thing. Thomas Aquinas holds that a being means that which is, that is to say, a being not only means that it has essence which is indicated from the'that which'of'that which is', but also means that it is, which is indicated from the'is'of'that which is'. He calls a being ens, the essence of a being essentia, and the act of existence of a being esse. The most important difference of metaphysics between Thomas Aquinas and Aristotle, who is Aquinas's philosophy teacher, is called Philosopher by Aquinas, and has a significant influence on Aquinas, is that the metaphysics of Aristotle focuses on the essence of a being, and thinks that the essence of a being is its form, but the metaphysics of Aquinas is concerned not only with the essence of a being, but also with the act of existence of a being, and thinks that whether the essence of a being is its form depends on its act of existence.â…¢.There are two levels in the legal ontology of Thomas Aquinas: the one is the level of basic ontology, and the other the level of general ontology. At the first level, Thomas thinks about the act of existence of law, which is about the problem'Is law?', and at the second level he thinks about the essence of law, which is about the problem'What is law?'. Thomas thinks that the word essence means not only the conditions of existing of a thing but also the intelligibility of a thing. So the essence of law has two senses, the conditions of existing of law and the intelligibility of law. I call the second sense of the essence of law the conceptual structure of law.â…£.The Analysis of the essence of law is based on the analysis of the act of existence of law in the legal ontology of Thomas Aquinas. Thomas Aquinas thinks that the universe is a system which consists of beings of many kinds that have different essences and participate in the act of existence in some degree. The system of beings signifies properly the system of substances which are from accidents that have no essence. Thomas discovers that there are two kinds of substance which have different essence in the university. The first kind of substance is the composite substance whose essence is the composite of matter and form which constitute that substance. The second kind of substance is the simple substance whose essence is the form itself which constitutes that substance. Thomas thinks that the simple substances include God, who is existence itself, angel and mind. The law belongs to the mind. Because law is a kind of simple substance, its essence is the form which constitutes law.â…¤. In Summa Theologiae,â… -â…¡, q.90, Thomas Aquinas thinks that there are four points of inquiry concerning the essence of law: (1) whether law is something belonging to reason; (2) concerning the end of law, or whether law is always ordered to the common good; (3) concerning its cause, or whether anybody's reason can legislate; (4) concerning its promulgation. R.J. Henle, S. J., who is Professor Emeritus of Philosophy and Jurisprudence at St. Louis University, believes that the aforementioned four points of inquiry concerning the essence of law is an explanatory type based on the methodology of the Four Causes which is argued by Aristotle. I believe that the analysis of R. J. Henle, S. J. is wrong, because we cannot find the material cause of law from that structure of inquiry about the essence of law. For Thomas Aquinas believes that law is a kind of simple substance, so there is no impossibility that there is something relating to matter in the essence of law. The essence of law is the form itself, which relates to the aforementioned four points of inquiry.â…¥.Thomas Aquinas uses the model of logical genus-differentia to discuss the essence of law. The first point of the aforementioned four points of inquiry is about the logical genus of law. Concerning the logical genus of law, Thomas Aquinas thinks that it is the general propositions of practical reason which are self-evident. He argues against the view that the logical genus of law is something belonging to will.â…¦.Thomas Aquinas thinks that there are three logical differentiae of law, the first of which relating to the end of law, that is to say, law is ordered to the Common Good, the second of which concerning with the cause of law, that is, law is legislated by him who has the care of the community, and the third of which concerning with promulgation, that is, law must be promulgated.â…§.In the legal ontology of Thomas Aquinas, the definition of law is that law is a certain dictate of reason for the Common Good, made by him who has the care of the community and promulgated.â…¨. Thomas Aquinas believes that all concepts of metaphysics are concepts of some analogy. There are two types of analogy. The first is the analogy of extrinsic attribution and the second is the analogy of proportionality. The analogy of concepts of metaphysics is the second one. The concept of law is a concept of analogy of proportionality. Legal positivism thinks that there is logical contradiction in the proposition that the bad law is not a law. Because according to the law of identity the same concept in the subject and the predicate of a proposition should have the same meaning, but that proposition is against the law of identity. Thomas thinks that because the concept of law is a concept of analogy of proportionality, the concept of law in the predicate of that proposition properly signifies law, and the concept of law in the subject of that proposition does not properly signifies law. So that proposition is identical to the proposition that the improper law is not proper law. But Thomas is not the same as John Finnis who thinks that it is necessary to distinguish the'is'and'ought'. So the proper law is not the same as the law of focal meaning.â…©.Thomas Aquinas thinks that there are several improper laws, that is, bad laws: (1) laws which are the wills of someone, some group or some class; (2) laws which are ordered to the goods of someone, some group or some class; (3) laws which are legislated by someone who has the care of the interest of someone, of some group or of some class; (4) laws which are not promulgated.Chapter 1 of the dissertation discusses the object of my investigation, the status quo of the investigation of legal ontology of Thomas Aquinas, and the basic principles of interpretation. Chapter 2 treats ofâ… andâ…¡, chapter 3 treats ofâ…¢andâ…£, chapter 4 treats ofâ…¤andâ…¥, chapter 5 treats ofâ…¦, and chapter 6 treats ofâ…§,â…¨andâ…©.