Chapter 6 Chapter 2 Legal Philosophy in the Middle Ages

In the Middle Ages, all Christians shared a common view of the universe, that is, the idea established in the New Testament and the teachings of early Christian writers.Like other sciences and branches of thought, legal philosophy was dominated by the Church and its teachings.But the ancient tradition has not been lost, and the ideas of Plato, Aristotle, and the Stoics still had a great influence on many ancient and medieval Christian thinkers, although Christians followed the theology and Christian teachings. A reinterpretation or revision of concepts and concepts advanced by ancient philosophy.

As early as in the centuries before the Middle Ages, Christian legal philosophy had initially laid its foundation."Natural law" is already discussed in the Apostle Paul's Epistle to the Romans.In this letter, he points to a "law written in (man's) heart" and expects pagans - who have no holy book of laws - to "do according to nature what the law prescribes."This passage can be interpreted as an acknowledgment of an innate moral sense in man which, if properly developed, would guide man towards the good even in the absence of written laws known to man. Perhaps the most important and influential of early Christian writers is St. Augustine (St. Augustione, AD 354-430).He was born in North Africa, lived in the late Roman Empire, and died in Rome.St. Augustine firmly believed that the absolute ideal of "natural law" had been realized in a golden age of mankind, that is, before the fall of man.People lived in a state of sanctity, purity, justice; all equal and free, and they had no idea what slavery or any other form of domination of men was.All share the common wealth, and live together as brothers, guided by reason.Not even death patronizes them during this period.

Augustine taught that at the time of the Fall, human nature was also corrupted by original sin.Although the good factors in human nature have not disappeared, they have become relatively fragile and easily frustrated by evil tendencies.The former loving order gave way to a state of life in which lust, lust, avarice, passion, and the desire for power played a marked role, and death came upon man as punishment for his corruption and depravity.Natural law, which reflects the perfect, absolute goodness of the human soul, is no longer possible.People have to use rationality to design various feasible methods and systems to deal with new situations.Governments, laws, property, and nations arose out of this.Although government, law, property, and the state, etc., are by their origins products of evil, Augustine justifies these institutions in terms of the fallen condition of man.He believed that the church, as the protector of God's eternal law (lex aeterna), could interfere with the above-mentioned vicious system at will.The church has absolute authority over the state.The state is justified only as an instrument for the maintenance of peace among men.The state must defend the Church, enforce its orders, and maintain order among men by enforcing secular laws (lex temporlis).

According to Augustine, secular law must strive to meet the requirements of eternal law.If certain provisions of secular law are manifestly contrary to the law of God, then these provisions have no effect and should be abolished. "Since there is no justice then, what is the question of what is the kingdom of heaven but robbery?" Even if secular law tries to conform to the requirements of eternal law and achieve justice in human relationships, it can never be able to To that perfection of eternal law.Augustine hoped that at some point in the distant future the civitas terrena, the secular state, would be replaced by the civitas dei, the state of God.In that imagined nation where all are faithful and pious, God's eternal law will reign forever, and the original nature of man, stained by Adam's sin, will be restored to its perfection and sincerity.

Like Augustine, Isidore of Seville (d. 636) also pointed out that state institutions originated from the corruption of human nature.In order to keep the wicked from committing crimes for fear of punishment, government becomes necessary.At the same time, however, he argued that only a just ruler deserves to be respected as a true ruler, while a tyrant does not deserve such respect. Following in the footsteps of the Roman jurists, Isidore distinguished between natural law, civil law, and jus gentium (jus naturale, jus civile, and jus gentium).He defined natural law as: "Natural law is common to all peoples, because people realize it by an instinctive intuition, not by anyone's agreement. This is manifested in the following aspects: the union of man and woman; the begetting of children; the common possession of all goods; the general liberty of all; the acquisition of goods from the air, sea, and land; the restitution of property entrusted or loaned; the restraint of violence by force. These and the like shall never may constitute injustice, but must be considered consistent with the equality of nature".It is clear that Isidore in some sense expected to realize what was supposed to be an "absolute law of nature" in the early days of mankind, insofar as his definition dealt with "common possession of all things" and universal liberty. ", because at the time Isidor wrote this, neither in his country nor in any other country had communism and equal liberty for all been achieved.

The theology and philosophy of medieval Catholicism reached its zenith in the grand system of thought of Thomas.St. Thomas Aquinas (St.Thomas Aquinas, 1226-1274 AD) is the greatest representative of medieval scholasticism.His theory can still be regarded as the authoritative explanation of Roman Catholic theology, philosophy and ethics.His ideology is a clever combination of Christian Bible teachings and Aristotle philosophy.Aristotle's thought had a particularly significant influence on Aquinas' law and justice thought; however, Aquinas did not stop at Aristotle's thought, but put Fit the teachings of the gospel and integrate them into one grand system of thought.

Thomas Aquinas divided laws into four types: eternal law, natural law, divine law, and human law. Eternal law (lex aeterna) is the "plan of government in the Chief Governor," the reason and wisdom of God that directs all movements and activities in the universe.All the heaven and earth and all things that belong to the jurisdiction of the gods are governed and adjusted by the eternal law.Only God knows the Eternal Law as a whole.In fact, no one can know it except "those who went up to heaven after death and saw God himself with their own eyes." It needs to be pointed out that although mortals are unable to know the whole of the eternal law, they can rely on the rational ability endowed by God to understand part of it.St. Thomas calls this participation of rational animals in eternal law natural law (lex naturalis).Natural law is only an incomplete and imperfect reflection of the rational commands of God, but it enables at least some principles of eternal law to be known.

Natural law relies on certain general rules to guide human activity.The most basic of these general rules is to do good and avoid evil.But what is the criterion of what should be considered good and what must be considered evil?St. Thomas is convinced that the revelation of reason given to us by God enables us to discern morally good from evil, because reason gives us insight into some principles of eternal law.According to his theory, what people are naturally inclined to must be considered good and must be regarded as part of the law of nature.First, man has a natural instinct for self-preservation that must be recognized by the law; second, man has a tendency to attract opposites and have children; third, man has a natural desire to know the truth about God, that is, a tendency to Man has a tendency to avoid ignorance; finally, he wishes to live a social life, so he has a natural tendency to avoid harming those with whom he lives.St. Thomas holds that the fundamental rules of natural law are immutable, but at the same time he admits that under certain conditions it is possible to change the secondary rules—that is, certain detailed conclusions deduced from the primary principles.

Clearly, according to Thomas, natural law consists of the physical and psychological characteristics of man.In addition, natural law also includes some rational commands that guide people towards the good.Aquinas considered these commands to be "natural," in the same way that the instinct of self-preservation or the sexual instinct is natural.He states, "Every human being has a natural disposition to act according to reason, that is, to act according to virtue. From this consideration, therefore, all good deeds are regulated by the law of nature, since every man's reason naturally commands He did a good deed."According to this view, irrational, antisocial, and criminal behavior are interpreted as pathological deviations from the normal nature of man, just as the inherent instinct of self-preservation may be present in certain situations and in some people. Driven and annihilated by the urge to end one's own life.

Thomas Aquinas supplemented in his philosophy natural law, which was a rather general and abstract system of principles, with some more specific commands issued by God—commands about how man should live.This function is carried out by divine law, which God revealed to mankind through the Bible and recorded in the Old and New Testaments. The last kind of law is the law of man (lex humana).Aquinas defined the law of man as "a rational decree for the public good, made and promulgated by those charged with governing society." Thus, like Aristotle, Aquinas Incorporated the idea of ​​reason into his legal definition.In order for a government order to have the character of law, it must be subject to a certain demand of reason.A law that is unjust, irrational, and in contradiction to natural law is no law at all, but a perversion of law.Arbitrary, oppressive, sacrilegious statutes are certainly not binding, according to St. Thomas, "except in order to avoid scandal or disturbance, for to avoid such a man ought even to renounce his own right".In other words, the certainty of exercising a right of resistance must be weighed against the nuisance caused by public disturbance and disruption of order, which may cause great harm to society.St. Thomas, however, argues that if the laws enacted by the tyrant lead to idolatry or whatever is prescribed is contrary to divine law, then the right to rebel or resist becomes a real duty of disobedience. "Such laws must not be obeyed, because...it is God, not man, who is to be obeyed."

Thomas' conception of justice differs from his legal theory because his conception of justice is heavily influenced by Cicero and Aristotle.He defines justice as "the habit by which a man, by an eternal and unchanging will, gives to each his due."Justice consists of two parts: the first is distributive justice, that is, "distributing different things to different people according to their status"; the second is commutative or corrective justice, It is concerned with issues in transactions and interactions between individuals and how to adjust in the event of inappropriate or illegal behavior.Like Aristotle, Aquinas also believed that the equality implicit in the concept of distributive justice was not a mechanical equality, but a proportional equality. "In distributive justice, something is given to an individual because something that belongs to the whole is due to the part. The amount of this thing he gets must be in proportion to the importance of the person's position in the whole. Therefore , in distributive justice, the more prominent and important a person's position in society is, the more he will get from the common property".But on the other hand, in corrective justice, one must arithmetically equalize things so that one can be compensated for what one suffers from another's injurious conduct, and one can be compensated for what one injures another. Unjust enrichment is corrected. One of the recurring themes in medieval philosophy was the famous polemic over "universals."The focus of the debate is the nature of general concepts and the relationship between these concepts and specific objects that exist in reality.In the process of addressing this question, two important schools of thought have emerged, although within both schools there are radical and moderate views, and there are sometimes attempts to bridge the gap between the most extreme views of the two schools. A communication bridge effort. In this debate, the main opposing factions are "realists" and "nominalists".According to the medieval realists, there is a strict correspondence between the world of human thought and the world of external reality.The general concepts that people form, that is, the mental expressions that people make about external objects and phenomena, correspond to the external spiritual and objective counterparts in the real world.Therefore, such general concepts as truth, virtue, justice, humanity, etc., are not merely constructs of the human mind, but also the real things of objective reality in themselves, which exist independently of their concrete manifestations in the empirical world. But on the other hand, the medieval nominalists denied the reality of general concepts.For them, the only real substances in nature are those individual things and the cognition of human feelings that people know through observation.The general generalizations and classifications that people use to describe the external world are just a kind of name, that is, an appellation.These appellations do not have direct and faithful copies and counterparts in objective nature.In the real world, there can only be justice but not justice, and there can only be living people but not human beings.They believe that any general and abstract description cannot properly reflect a world in which individuality is the governing principle. Because this debate raised fundamental questions about the origin of human intellectual knowledge and its objective validity, it also had important implications for questions of natural law.Realists (or rationalists) believe in the possibility of human beings to know the true nature of things, and to gain insight into the coherences and laws at work in nature through the exercise of reasoning; Name theorists are more inclined to admit the existence of natural law.Nominalists doubt man's ability to ascertain the nature of things, and deny propositions that cannot be verified by immediate sensations and concrete observations about individual facts. From the writings of the Scottish Franciscan monk John Duns Scotus (John Duns Scotus, AD 1270-1308), we can clearly see the development of such an idea in theology and social ethics. Tendency, that is, a trend of thought that deviates from Thomas's realism and tends towards nominalism and positivism.Scotus pointed out that the individual has a complete and sufficient reality in essence, while general concepts and abstract ideas are only products of thought.Starting from the above premises, Scotus constructed a philosophy in which individual decisions based on general laws (such as the law of reason) play a secondary role, while decisions based on free individual will have the supreme role. important role.Scotus believed that the main purpose of the Creator was to create individuals.However, the unique individual cannot be deduced from general concepts and general laws, but can only be naturally experienced by the human soul.The concrete decisions that give rise to an individual's actions are produced by his will, not by his intellect.According to Scotus, it is impossible to explain the vagaries of individual will by appealing entirely to general concepts of reason.If, as Thomas postulates, the will is subordinate to reason, then, for Scotus, truly free decision and truly moral action are impossible, since any rational action must be determined by some sufficient reason Therefore, such behavior is not free.Scotus pointed out that the view that reason governs the will is wrong, because the fact is, on the contrary, that the will governs reason.Even from the point of view of the sequence of values, the will must be above the intellect, because the will is the only unfettered driving force of human behavior. According to Duns Scotus, this primacy of the will applies not only to human beings but also to God.God is not subject to the supreme and eternal laws of the universe, because his own will is the only source of all laws, and his justice is only the product of his power.All laws are the result of God's accidental actions, not the inevitable result of logic. "The laws governing the kingdom of heaven are made according to the will of God and not according to the wisdom of God."All works of divine providence are to be regarded as just, and therefore it is a mistake to ask why God has ordained a certain order of things and not a quite different order.According to Scotus, there is only one principle of natural law, and that is to love God, no matter how harsh and incomprehensible God's treatment of human beings may be.The natural law which divides things according to their essence into good and evil, as conceived by Thomas Aquinas, was something Scotus could not admit.In so far as Scotus' arguments are concerned, there seems to be a danger in his theory of substituting divine arbitrariness for divine law, but he is not troubled by this, since he believes that God is always merciful. In the philosophy of William of Occam (c. 1290-1349 AD) we can also find a more radical voluntarist and nominalist view of theology.Any rational attempt by man to know the kingdom of heaven according to the demands of reason was firmly rejected by him.William points out that it is quite possible that God is in the shape of a stone, a slab, or a donkey, but that our religious beliefs must not be blamed for the possibility.God may one day decide to approve murder, theft, and adultery instead of prohibiting them, and in that case we too will have to consider them good and praiseworthy.According to his view, the concept of criminal law has nothing to do with the substantive moral characteristics of human behavior, but only reflects the existence of a prohibition.If this command is changed, the nature of the act itself will also be changed.In other words, moral imperatives are valid only if a certain order exists.William maintains that since God has already revealed his present will to us in the Bible, these laws constitute the only true source of determination of divine providence.There is no natural law that can be discovered by human reason, except divine law actually manifested. The close relationship between the above views and the later ethical relativism and positivism is obvious.But as with Scotus's theory, its underlying nihilistic outlook is tempered by William's belief that God is essentially a benevolent ruler rather than an overbearing tyrant.William also believed that there was a real moral basis in human subjective benevolence or malice, guided by the dictates of individual conscience. Occurs in the writings of later Catholic scholars such as Spaniards Francisco de Vitoria (died 1546) and Francisco Suarez (1548-1617 AD) There was a tendency to return to rationalism and the Thomas natural law view.In the writings of these men the debate as to whether reason or the will represents the higher instincts was once again resolved in favor of reason, and the view that there was a possibility of objective natural law was reiterated.Sarris pointed out that "natural law includes all precepts or moral principles, and these precepts or principles are obviously characterized by virtues necessary for upright conduct, just as the opposite precepts obviously include immorality or morality. as evil.” He also pointed out that the promulgation of laws and their enforcement through sanctions both expressly require people to carry out the will of the ruling authority.However, the sovereign's will is not sufficient to make laws unless "it is a just and righteous will." stand.