What is Law?

Law is nothing else but an ordinance of reason for the common good, promulgated by him who has the care of the community.
- St. Thomas Aquinas, "Treatise on Law"; Summa Theologica

Are we morally obligated to obey the law? Or had we just better obey it, to avoid punishment?

St. Thomas Aquinas, whom we have discussed before, said that a law is "an ordinance of reason for the common good", The Renaissance philosopher Thomas Hobbes believed that laws are little more than orders backed by threats. Followers of Aquinas on this subject have been called natural law theorists, while followers of Hobbes are called legal positivists.

The question for us, then, is whether law is an "ordinance of reason" or "orders backed by threats". If the first alternative is true, we are obligated to obey the law. If the second is true, we are obliged to obey it, and these are two different, though not necessarily mutually exclusive, things. Where we are obligated to obey, we ought to obey. It is a moral thing. Where we are merely obliged to obey, we'd better obey, to avoid the threat of punishment, but we are not necessarily morally obligated to obey.

If this seems confusing, consider this example: suppose there is a draft law which says that all young men 18 and over must go to war if they are called. According to Aquinas, we ought to obey this law. I.e,, it is immoral not to obey. But according to Hobbes, whether we consider the law good or bad, right or wrong, we had better obey, or we might suffer the consequences, e.g., imprisonment.

This situation reminds us of -the moral plight of children in school. Some children believe they ought to obey the teacher's rules, and others merely feel that they had better not get caught breaking them. Some children think they should not chew gum in class because it disturbs the concentration of others. The rule makes sense to them. Others merely feel that they must not get caught, but to heck with others' concentration. Some children trust the teacher's rules to be good for everybody, others think of the teacher's rules as an unpleasant, perhaps arbitrary, reality,backed up by the teacher's paddle (or the threat of expulsion, or whatever).

Certainly sometimes we wish to evaluate the laws we have in terms of their goodness or badness. Some people say a draft law (a selective service law) is bad and should not be obeyed. Others feel the same about capital punishment. But the idea that there could be a bad law implies that there can be good law, law based on reason, for the common good. This implies that we accept Aquinas' position. On the other hand, suppose we are wrongly charged with a crime. Do we want a lawyer who is moral, i.e., one who will defend us only if he thinks we are innocent? Or do we rather prefer a lawyer who will defend us as best he can, whether we are guilty or not? Do we want our lawyers to be natural law theorists or legal positivists? The answer seems clear: we want the best defense we can get, and to heck with right and wrong. We want a lawyer to view the law as an unpleasant reality to be dealt with, rather than one who believes the laws to be written by the hand of God. So the issue is: are laws rules backed up by reason, or commands backed up by force?

Bibliography

Golding, Martin, Philosophy of Law;, Englewood Cliffs, New Jersey, Prentice-Hall, 1975.

Pegis, Anton C., (editor) Introduction to St. Thomas Aquinas, New York, The Modern Library, 1948.