Laws and Power

Different theorists have different perspectives about the nature and importance of laws in the society. However, majority theorists support that laws are essential in promoting the overall good of the society. Thomas Aquinas and John Austin, for instance, supports the view that laws help govern the society by promoting social order and stability. This paper will focus on the two theorist’s perspectives. The paper will first present a critical argument about how Aquinas and Austin’s theories account for the existence of international law. The paper will then present an analysis of the relationship between law and power.

Aquinas and Austin Theories and existence of international Law

Both Aquinas an Austin maintain divergent views with regard to the jurisprudence of international law. Aquinas subscribes to the doctrine of natural law which inscribes his understanding of God as well as his relation to his creations. Aquinas recognizes four types of laws namely: Natural, Human, Devine an eternal law.[1] Aquinas bases his suppositions about the jurisprudence of law on these types of laws. Austin, on the other hand, subscribes to the Legal positivism doctrine. In this doctrine, Austin builds his case that law is a social fact that reflects the relationships between power and obedience. Overall, though both Aquinas and Austin hold divergent views about law, their propositions about law account for the existence of international law.

Aquinas validates the existence of international law through his supposition that law is presumably directed by its nature to the good, and particularly to the common good. In this supposition, Aquinas believes that law is not necessarily addressed to private persons but to the whole people meeting in common or to individuals who are in charge of the community as a whole. In simple terms, Aquinas means that laws are not enacted for private profit, but for the common benefit of the community. In this sense, the purpose of the law is to enhance the wellbeing of the community and protect its interests[2]. This supposition supports the existence/importance of the international law. The purpose of international law is to enhance the wellbeing of the world community by ensuring that humanity’s fundamental goals of maintaining peaceful coexistence, prosperity, human rights as well as environmental protection are adequately met[3]. This assertion connotes that the primary aim of the law is to enhance the wellbeing of the world community. This point of view is in line with Aquinas concept that the purpose of the law is to enhance the wellbeing of the community.

Aquinas supposition that the existence of law requires a rational discourse and agreement about certain fundamental things sets basis for the existence of international law. Aquinas gives an example that if there exist no reasonable and agreed rules among different people from different nations in a market, then no trade can take place. The implication of this remark is that there should be laws that bind reasonable people together. This viewpoint proposes the idea that there should be reasonable and agreeable rules to govern the undertakings of different people from different nations to enhance their wellbeing and their overall interconnectedness. This ideology is reflected in International law. Particularly, the international law comprises of rules that are generally agreed-upon and accepted by nations, to guide their relations with each other. In this regard, it is arguable that Aquinas proposition validates the existence of international law.

Austin theory of law also accounts for the existence of international law. In particular, Austin’s theory on law argues that laws are a type of command issued by a sovereign to the members of a society, and are usually backed up by threats of punishments or sanctions in the event of non-compliance. The sovereign, according to Austin may include a person, a group of individuals, who are obeyed by the population. A Command, on the other hand, includes a declared wish by a sovereign. This wish is expected to be followed by the bulk population. The wishes are often accompanied by threats if not adhered to.

Austin identifies two types of laws: ‘Laws properly so called’ and ‘laws improperly so called’. Austin argued that the former laws are created by political sovereigns or political superiors to relevant subordinates as well as laws set by private citizens in their quest for their rights. Laws improperly so called include laws that are not directly or not indirectly set by a political superior an often include international laws, the law of fashion among others[4]. International law specifically confers to Austin’s doctrine of Law improperly so called. In international laws, all states are sovereign an equal. These sovereign states, on a voluntary basis, formulate, maintain and enforce relevant laws. The states often agree and accept the rules as binding. However, although a member state is not obliged to abide by the international law, the state is required to obey the laws if it has consented to a certain code of conduct. Abiding by such laws guarantee peace in the world community.

Law and Power

Austin’s argument about the relationship between law and power is persuasive and convincing. Specifically, Austin’s argument about Positive law clearly defines the relationship between the law and power. Positive law, according to Austin, includes three critical constituents: Political sovereign, command, and sanction. Positive law signifies the command from a political superior. The command itself includes the expressed desire of the superior to another person who is inferior. The command often specifies that the inferior should act or refrain from doing certain things. In essence, the desire of the sovereign is often backed up by a threat of force, sanction or coercion. The sanction, threat of punishment or use of force is what distinguishes a sovereign command from other forms of authority. It is because of the threat that the person to whom the command is given is supposed to obey[5]. The ability of the sovereign to command the inferior is what symbolizes power.

The feature of the law as a command, as per Austin’s argument, is what dictates power. In this view, Austin supposes that laws are based on superiority as well as sovereignty; something that implies the might and power of the superior to inflict pain on the individual of the inferior status. By forcing the inferior person to comply with the commands given either by the threat of punishment or the threat of fear, the superior or the sovereign is able to exercise power over the subject. Without such power, it would become impossible for the subjects to obey orders.

Aquinas also builds a relatively persuasive case about the relationship between law and power. In one way or another, Aquinas also recognizes the aspect of positive law that embeds the virtue of power. Aquinas argument on human law fits what is today referred to as positive law, that is, the laws that are put in force in the human community. In fact, Aquinas argument on human law perfectly describes the so-called positive laws, as described by Austin. In this definition, Aquinas brings the argument that human laws, particularly, the so-called positive laws are promulgated and enacted by various jurisdictions in the society. By recognizing the aspect of positive law, particularly, the so-called positive laws, Thomas inherently or unconsciously recognizes the virtue an essence of power in laws. In particular, Thomas notices that the so-called positive laws help govern human behavior through power ordained by the superiors in the society. The latter accepts Aristotle’s notion that most individuals are kept away from crime by the fear of the law, particularly, the punishments and sanctions that result in breaking the law. But where do these punishments come from? Again, these punishments and sanctions are inherently inscribed in virtue of power, whereby, the superiors dictate a command and issues threats and punishments to the subordinates in case they transgress against the commands. In this perspective, Aquinas recognizes that power is a critical aspect of enforcing human law.

Aquinas also notices the essentiality of state power in enforcing laws to promote the overall good of the society. In particular, Aquinas notices that state power helps regulate the external and internal actions that distort social stability by breaking the laws set in the society[6]. In this supposition, Aquinas believes that the existence of the state and its capacity (power) to enforce the so-called laws helps promote the overall good.  By setting clear rules, rights and through power, the state helps create a context in which individuals in the society can flourish and without fearing the risks of violence an instability. In this point of view, Aquinas makes a point that the general welfare of everyone is dependent on the power of the state to enforce laws.

In summary, both Aquinas and Austin maintain divergent views about the law; however, their theories account for the existence of international law. Aquinas maintains the idea that laws aim at promoting the overall common good. Given that the international law aims at enhancing the wellbeing of the world community by promoting peaceful co-existence among people, promoting human rights and enhancing environmental protection, then Aquinas theory supports the existence of international law. Austin’s theory also accounts for the existence of international law by noting that it aims at enhancing the peaceful co-existence between nations. Overall, both Austin and Aquinas note the critical relationship between law an power. In particular, both theorists agree that power is essential in enforcing laws. The theorists note the importance of sovereign power to set an enforce laws in the society, to bring social order and social stability.

 

 

 

 

 

 

 

 

 

 

 

 

Bibliography

Austin, John Langshaw. “Philosophical papers.” (1961).

Birnie, Patricia W., and Alan E. Boyle. International law and the environment. 1994.

Finnis, John. “Aquinas: moral, political, and legal theory.” (1998).

George, Robert P. “Kelsen and Aquinas on the Natural-law Doctrine.” Notre Dame L. Rev. 75 (1999): 1625.

Lisska, Anthony J. “Aquinas’s theory of natural law: An analytic reconstrution.” (1996).

Schauer, Frederick. “Was Austin right after all? On the role of sanctions in a theory of law.” Ratio Juris 23, no. 1 (2010): 1-21.

 

[1] Lisska, Anthony J. “Aquinas’s theory of natural law: An analytic reconstrution.” (1996).

[2] Finnis, John. “Aquinas: moral, political, and legal theory.” (1998).

[3] Birnie, Patricia W., and Alan E. Boyle. International law and the environment. 1994.

 

[4] Schauer, Frederick. “Was Austin right after all? On the role of sanctions in a theory of law.” Ratio Juris 23, no. 1 (2010): 1-21.

[5] Austin, John Langshaw. “Philosophical papers.” (1961).

[6] George, Robert P. “Kelsen and Aquinas on the Natural-law Doctrine.” Notre Dame L. Rev. 75 (1999): 1625.

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