Document Type

Working Paper

Publication Date

4-26-2006

SSRN Discipline

Legal Scholarship Network; PRN Subject Matter eJournals; *Humanities - Forthcoming Areas; Philosophy Research Network; Religious Studies Research Network; Law School Research Papers - Legal Studies; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Humanities Network

Abstract

Despite modernitys longstanding aversion to metaphysics legal scholars are increasingly questioning whether law can be understood in isolation from wider questions about the nature of reality This paper examines perhaps the most famous of metaphysical legal texts Thomas Aquinas stillwidelyread Treatise on Law with a view toward tracing the influence of Thomas metaphysical presuppositionsThis article shows that Thomas account of human law cannot be fully understood apart from his metaphysics Attention to Thomas hierarchical view of reality exposes tensions between Thomas topdown account of law and his sophisticated bottomup observations For example Thomas grounds human laws authority in its foundation in the higher natural and eternal laws On the other hand he is well aware that many if not most legal questions involve determination of particulars the resolution of questions that might reasonably be answered in more than one way Thomas metaphysics sometimes works against his inclination to give place to human freedom in the creation of lawThomas metaphysical approach also raises important questions for contemporary legal theory His insistence on addressing the question of laws ontological status for example challenges the reductionism of much contemporary jurisprudence and provides a vocabulary for accounting for the wide variety of analytical approaches legal philosophers employ

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