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Date Submitted: 05/06/2014 04:00 PM

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Aquinas vs. Austin

What is law? This question has been debated for many years because of the fact that there is not a right or wrong answer. Theories of law can be dated back to 1265 when Thomas Aquinas began writing his most well known work, Summa Theologica. Thomas’s work paved the way for other scholars to create their own views on law, but more specifically which rules should be addressed as laws and which should be disregarded. John Austin is one of these great scholars that expanded and critiqued Aquinas’s views to create the style of law most prominent in society today. Both men wrote about the structure of law, but their views are very different. Even though Austin came up with a different view of how law should be designed, one must be familiar with Aquinas’s views to truly understand how and why Austin developed a different analysis of law.

The four types of law developed in Summa Theologica are eternal, natural, human, and divine. These categories are based off Aquinas’s strong Catholic beliefs, and are prevalent through out his analysis. For example, three of the four main types of law Aquinas develops involve faith in God. The first of these being eternal, which Aquinas associates with reason as follows, “Law is a rule and measure of acts, whereby man is induced to act or is restrained from acting; lex (law) is derived from ligare (to bind), because it binds one to act. Now the rule and measure of human acts is the reason.” (Aquinas 11) When Aquinas refers to reason, he is talking about the ability humans have to decide, which separates us from all other creatures, and was given to us by God. Secondly, Natural law is developed by Aquinas stating, “good is to be done and promoted, and evil is to be avoided. All other precepts of natural law are based upon this; so that all the things which the practical reason naturally apprehends as man’s good belong to the precepts of the natural law under the form of things to be done or avoided.” (Aquinas 17)...