Katrina Jean C.

Miranda

1E

Legal Philosophies of Plato, Aquinas, Hobbes, de Montesquieu, Rousseau, Kant and Locke The central thesis of Platos philosophy of law is expressed in the Republic and Laws. An obvious characterization is that the Republic is a philosophical discussion of justice. Plato says, "we are seeking for justice .... " He proposes "that we enquire into the nature of justice and injustice, first as they appear in the state, and secondly in the individual, proceeding from the greater to the lesser and comparing them." Plato's Republic centers on a simple question: is it always better to be just than unjust? Plato according to Socrates asserts that societies have a tripartite class structure corresponding to the appetite, spirit and reason and they are classified as: Productive, which represents the appetite of the soul referring to workers; Protective, which represents the spirit of the soul referring to warriors or guardians; and the Governing which represents the reason part of the soul that refers to Rulers or Philosopher Kings. Plato clearly recognized that aspect of law as a normative proposition and, also, its enforcement by "the ruling power in each state." Conversely, The father of Thomistic Philosophy named St. Thomas Aquinas distinguished law into four kinds which are first, Eternal Law explained to be Gods plan for the universe. Second, Natural law which is the participation in the eternal law by rational being. Third, Divine Law which is revealed in the scriptures and is Gods positive law. Lastly, Human Law which refers to Man-made laws enacted for the common good. Aquinas great work, the Summa Theologiae, sometimes called the Summa Theologica, was begun in 1266. In his writing, Aquinas adapted the philosophy of Aristotle to the needs of the 13th century and its theology. The title, Summa Theologiae, means the Summary or Totality of Theology. Within this Summary, Aquinas lays out the key aspects of Christian theology such as the "Five Ways" (Aquinas arguments for the existence of God); the divinity of Christ; the relation between reason and faith; and the principle of analogy. The last item offers a theological foundation for knowing God through creation. Thomas Hobbes work Leviathan expresses a view of natural law as a precept or general rule found out by reason by which a man is forbidden to do that which is destructive of his life, or takes away the means of preserving the same; and to omit that by which he thinks it may be best preserved. His concept of the social contract was predicated on his theory of human nature. Hobbes believed that it was human nature to be in a state of war, where every person was in a permanent state of conflict with every other person for the limited resources available. In this state of nature, everyone has a right to everything and therefore there can be no security for anyone to enjoy his or her life What is the proper role of government? Montesquieu would say that the State should be a reflection of the people. In his great work, Spirit of the Laws, he describes his purpose for writing, I do not pretend to treat of laws, but of their spirit; and as this spirit consists in the various relations which the laws may bear to different objects, it is not so much my business to

follow the natural order of laws as that of these relations and objects. The Spirit of Laws is comprehensive of the many and diverse kinds of people and therefore, the many types of government that should exist for the diverse peoples. He describes that the physical laws are constant, patterned, ordered, and predictable. However, opposite are the laws that govern the intelligent. Human beings are unpredictable and subject to error. Mediocrity exists because excellence abounds; evil is present because good exists; ignorance throngs our society because intelligence reigns Rousseau's most celebrated theory was that of the "natural man." In his Discourse on the Inequalities of Men (1754) and Social Contract (1762) he maintained that human beings were essentially good and equal in the state of nature but were corrupted by the introduction of property, agriculture, science, and commerce. People entered into a SOCIAL CONTRACT among themselves, establishing governments and educational systems to correct the inequalities brought about by the rise of civilization. Kant's motivation by the "Good Will" to enact a duty differs from acting in accordance with duty. Such difference neglects motivation. For example, someone who saves the life of a woman from a murderous man so that he may rob her may be considered to act only in accordance with duty in regard to her deliverance from the murderer. He did not act out of the "Good Will" since his motivation was to rob her. Therefore, to take both intent and motivation into account in order to do the right thing considers one to be acting morally or dutifully. This act is said to proceed from that universal "Good Will." Kant presents us with a test or a method of determination on whether or not a particular act is considered to be morally right, morally wrong, or somewhere beyond the moral realm. For Kant the source of moral justification is the categorical imperative. An imperative is said to be either hypothetical or categorical. Kant writes, "If now the action is good only as a means to something else, then the imperative is hypothetical; if it is conceived as good in itself and consequently as being necessarily the principle of a will which of itself conforms to reason, then it is categorical. On the other hand, John Locke proposed a very different theory of the social contract in his Two Treatises of Government Lockes theory was developed as a legal philosophy to underpin the English Revolution of 1688, which put an end to the divine right of kingship and its denial of a popular base for government. Like Hobbes, Lockes social contract was also based upon his conception of human nature. Therefore man used his reason to live according to the law of nature. Under this law he was bound not to injure the life, liberty or property of others and would protect himself from the encroachment of others upon his rights

In Plato's legal philosophy, each person's social role should be determined by the element dominant in his or her soul. Everyone should act in accordance to their classification in order to have a just society. While Aquinas criticizes the form of naturalism that holds that the goodness of any reality is whatever belongs to it in keeping with its own nature without need for faith. On the other hand, according to Hobbes human nature, everyone has a right to everything and therefore there can be no security for anyone to enjoy his or her life. Montesquieu believes

that physical laws are constant, patterned, ordered, and predictable. However, opposite are the laws that govern the intelligent. Human beings are unpredictable and subject to error. Conversely, Rousseau maintained that human beings were essentially good and equal in the state of nature but were corrupted by the introduction of property, agriculture, science, and commerce. Kant's moral theory is , deontological: actions are morally right in virtue of their motives, which must derive more from duty than from inclination. Lockes theory is similar to Hobbes ,man used his reason to live according to the law of nature. Under this law he was bound not to injure the life, liberty or property of others and would protect himself from the encroachment of others upon his rights. In the Scarborough Shoal issue, the struggling of possession between China and the Philippines can be best mirrored by the legal philosophies of Locke and Hobbes which say , man used his reason to live according to the law of nature and indeed he is naturally good. He exercised respect to the law where he is bound not to injure the life, liberty or property of others and would protect himself from the encroachment of others upon his rights. Claims of both countries regarding the sovereignty and jurisdiction over Scarborough shoal just manifest how both countries are willing to defend their rights on their claims regarding it. The two countries have presented their substantial claims regarding the shoal for they both believe that one of them has a better right than the other. Philippines and China have a harmonious relationship before not until when the dispute over the shoal arose, The decision of the government to agree in the creation of ARMM and to enter in a framework agreement between the MILF is an example of Montesquieus legal philosophy The Spirit of laws which defines that physical laws are constant, patterned, ordered, and predictable. However, human beings are unpredictable and subject to error. Thus, the government found it necessary that in order for the rebels to pacify, a need for settlement and halfway agreement should be instituted. In this move, the government and the rebels can cooperate with one another to be able to address the latters needs. The passage of Cybercrime Prevention Act is a valid exercise of police power by the state in accordance or patterned from the legal philosophies of Kant and Rousseau which tell that human actions are morally right in virtue of their motives, which must derive more from duty than from inclination and human beings were essentially good and equal in the state of nature but were corrupted by the introduction of property, agriculture, science, and commerce. Indeed humans are naturally good and just. However, due to the modernization of todays era, the need to suppress and control the acts of the society must be immediately addressed to prevent dispute and disorder among each and every individual. This theory of being morally right in virtue of motives became now subjective because people nowadays tend to twist the truthfulness of their motives by sugar coating lies and ill motives. The passage of the act is a necessity which the government saw to organize the society and promote its welfare.

On the other hand, the proposal of Freedom of Information Bill is again an example of the application of Rousseaus philosophy that human beings were essentially good and equal in the

state of nature but were corrupted by the introduction of property, agriculture, science, and commerce. The idea in the creation and introduction of such bill is mainly to assure the public and to be transparent in the transactions in the government and also the transactions of the government officials. It is a part of the campaign of todays administration in lessening the corruption in the government. Considering the philosophy of Rosseau, it can be said that government officials as they are humans are naturally good and equal in the state of nature. Thus, the people must rest their trust and confidence on them. However, when they start to get tempted of all the powers of commerce, money, influence and fame, they become acquainted to it and little by little they are starting to make unjust actions. Thus, the other part of the state which is the people found the reason for the proposal of this bill for them to defend their right against the ill/ corrupt motives of the officials in the government.

References:
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2. http://plato.stanford.edu/entries/plato-ethics-politics/

3. http://www.cliffsnotes.com/study_guide/literature/republic/about.html

4. http://www.aquinasonline.com/Topics/natlaw.html

5. http://www.law.murdoch.edu.au/walta/articles/vol_1_2010/WAJ_Vol1_2010_Steve%20Olynyk %20-%20Convenient%20Fictions.pdf

6. http://www.preservearticles.com/201104235909/notes-on-the-montesquieu-theory-ofseparation-of-powers.html

7. http://www.trincoll.edu/depts/phil/philo/phils/rousseau.html

8. http://sguthrie.net/kant.htm