HEGEL’S AND T. AQUINAS’ LAW SYSTEM | İlim ve Medeniyet

​Hegel was lived in a century which includes several important events such as historical and intellectual. French Revolution and Industrial Revolution set good examples to these events. At that time, in Europe there were wars. Because of these, countries didn’t complete their political configuration, so French Revolution and Industrial Revolution affected the European countries socially and economically, and these events have some effect on Hegel’s theories and thinking way. Although Hegel and Thomas lived in different centuries and terms, their ideas’ basis lean on the same principle. Religion and education of theology influenced Thomas. That’s why, they were separated in a way. In addition, this article involves what affected Hegel and Thomas, who has an impression on them and when Thomas and Hegel separated from them, and the most substantial part of this essay is that what they suggest for system of law. The last part is about differences between Thomas and Hegel.  

Age of enlightenment showed up and developed at 18th century in Europe, and widespread with the idea of enlightenment. Age of enlightenment indigenised the “mind” as a founding principle, and this adoption shaped whole people’s thinking ways and society’s life. The main idea of age of enlightenment was mind which is people can reach the truth with. Also, age of enlightenment helped the science to grow, but the most significant innovation of 18th century is about the emerging developments on religion. This developments were gradually decrease thanks to the effect of growing enlightenment movement, and the end, religion lost its power. This developments that started with renaissance and reform affected philosophy of the mind which are developed by Descartes and Kant. Immanuel Kant affected Hegel on his early age with his ethical and social theory, but then in opposition of Kant, Hegel lost his faith on age of enlightenment because of the fact that he saw Napoleon’s violence at French Revolution. Kant protects his faith on age of enlightenment owing to Rousseau’s ‘The Dream’ painting. According to Kant, Rousseau revealed the human’s tendency and ethical and objective norms of acts. Kant separated the subjects as lawgiver and observer of that law and observer of natural law

Hegel, while recognizing the importance of Kant’s concept of the individual subject in philosophy, went further than Kant by recognizing the social, non-individualist aspects of society within which the individual is irrevocably situated[1], so Hegel criticized Kant’s separation of human that objective and subjective, mind and desires, rational and indigeneous wishes and the important part of this criticism is that Kant wanted people to subdue their desires and wishes. That’s why, Kant didn’t try to connect personal interests and social values. In addition, Hegel didn’t believe that people can take the action by moral law, because Hegel thought that connection between interests and values are a significant purpose of the ethical approach. Also, difference between situated and situation that it should be constitutes a dead-end about reconciliation with regard to age of enlightenment. That’s why, according to Hegel, notion level that philosophy needs to reach people at, the real world needs to be like that should be and the real goodness isn’t just an isolation, it’s a principle that has an ability to make real itself.

Actually, while Hegel was criticizing Kant’s enlightenment, the purpose that he wants to figure out at was reaching the syntheses such as syntheses of enlightenment and syntesis of the enlightenment’s opponent. Hegel’s thought about terrorism of French Revolution is manifestation of Kant’s philosophy of ethics. According to Hegel, it wasn’t enough that individuals direct their conscience and persuasions to themselves, and principles of abstract philosophy couldn’t accept without society’s needs. This situation only can solve in the way that regulating the objective world with rationally. Therefore, syntesis of individual-society could happen without conflict if individuals whose needs and desires determined by society at the same time can assimilate the rational principles which are society endure. Because of the fact that the individuals’ thoughts consisted on society, individuals won’t accept the behaviours that society wouldn’t accept. For that reason, restriction of liberty isn’t topic anymore. Hegel believes that liberty is about history, so in the beginning of humanity there wasn’t exist liberty, and conscience as well as liberty were created by history. At the same time, Hegel divided the liberty such as subjective liberty and objective liberty. Firstly, the subjective liberty is that individuals don’t depend on anyone or anything. The other liberty part is objective liberty. That’s meaning for Hegel is thinking about the liberty in integrity. Hegel claims that reaching the conscious of the liberty is step by step. The first step is the moment that the spirit and natural things are together. At this step, the spirit isn’t independent one. At the second step, individuals realize that they are independent, and the ‘I’ is attached itself to the person, but the spirit developed recently by nature. That’s why, the free ones are just the masters, and their freedom depend on their slave’s acceptance. Finally, people are independent because they are not slave anymore. Hegel’s view about Kant’s contributions on practical philosophy is autonomy of intention, that’s meaning is ability to make law about ourselves. According to Hegel, purpose and reason of the political and social institutions’ existence is about ensuring the independence.

Hegel’s book named “Elements of the Philosophy of Right” consisted on three main chapters such as abstract law, subjective morality and objective morality. The part of abstract law includes ownership that basic concepts of law prevalent, contracts and tort. End of every parts have another section that explain the transition. The part of subjective morality includes decision making and responsibility, intention, welfare and the consciousness of goodness and morality (conscience). The last part is about objective morality which also includes family, civil society and state. As will become apparent, Hegel’s concepts of abstract right, contract, and positive law that regulate and resolve the disputes and interaction between assertive individuals cannot be grounded in a “state of nature” and contractarian theories of politics.[2]All this part are also the stages for developments of the idea of free will that a starting point of the law.

Hegel identify the law as a liberty which is an idea. The general meaning of the law is the universe of spirit that the moment of liberation for self-control. Abstract law is the first step of this liberation. When Hegel analyzed the abstract law, he started with concept of personality which is usual from Roman Law to whole law system. Legal capacity define as ability of having a title holder which is only possible with concept of legal personality, and Hegel attached importance to this. In that case, the command of law is being a person and seeing the others as a person. Types of the relationship between free will and ware constitute the determination of the ownership. These relationship are possess, using and disposing. After Hegel examined these relationship, he passed the contract part.

According to Hegel, contract is an obligation as much as ownership. For consciousness of people, reasons of the contract relationship between people are needs, benefit and consent. But the real reason why people have a contract is the mind for Hegel. In our age, private law is determined on ownership and ownership relations, and this is a proof that Hegel’s detections true. Moreover, juristic persons are the developed type of the corporations that Hegel regarded that they are one of the important item of the civil society. After Hegel examined the types of contracts, he passed the civil wrong. If there is rights (law), there will be a civil wrong. Disposal of the civil wrong or punishment are contradictory to have a qualification of revenge, so they are contradictory because they are opened to have a new assault. Getting rid of this contradictory can only happen with subjective morality.

According to Hegel, law can take its universality form and its real determination only with rules, it means, law is only matter when it becomes positive law. When rights are within the meaning of the law, they get determined presence. Law in effect which is positive law shaped like rules is in a relationship with situations that indigenous to civil society and moral, and it means that these relations developed it as content. Judicial power and fundamental rights and duties designate the rules’ content.

He was born in Aquino nearly by Napoli. He got his first education at Benedictine order. Then he got science, history and philosophy at Napoli University, and he built a theology school in there. He joined the mendicant order named Dominican. Even his education continued at Paris and Cologne University, he became the student of Albert Magnus who was a popular theologian at that time. Albert Magnus’s commitment on Aristo’s thoughts affected Thomas, and this effect reverberated on Thomas’s studies. Religion was predominant in his epoch. Although he was committed to the Dominican order and grew like an ecclesiastics, his views that he defends were innovator thinking way about ‘State and Administration’, and this thinking way contributed owing to the mentality of that epoch.

Thomas was thinking that people shouldn’t live to oneself, they should live together like Aristoteles who influenced Thomas with ideas. People understood that they need an organized society to fulfilling their needs, establishing their living accommodation and leading their life. There were two ways to make that organized society are family and state. First of all, people gathered in a family to get together, and then they establish society to institutionalise the state. When they were doing this, they had a purpose that ensure the common benefit. In a society that well-organised, the common benefit can only ensures with justice, and at the same time this constitutes the basis of a state. This fair order can be provided with rules. Government can only make the constitution to establish fair order and common benefit. In that case, Thomas showed his religious side of him, because he said that the only source of puissance is the God. Designating quality and form of the management is up to people in society. While people using the power which the God is the source, they make law that ensure the fair order, and people also be careful about deserving the God’s appreciation. He found the form of management named Karma Management. Identification of a rulership determined with the ways of how it obtained, used and changed hands. Therefore, this forms of managements can happen only three types of karma which are monarchy, aristocracy and republic. Just like Aristoteles, he thought these three can degenerate to oligarchy and democracy. Thomas’ idea is that taking the best ways of these three forms of managements and creating a new karma management. In this type of management, the king should be in the head, and the king should lead people with law which is serving the common benefit. There should be a council which is full of consultant beside the king. He also defended that the guarantee of this management is supervision of the community. In other words, this political model comprise of the king, aristocrat and the community, and its root lean on the God, but the king uses the God’s power to organise people and ensuring the common benefit. Actually, this is not a perfect way to manage, too. There is a problem when the king doesn’t satisfy laws and regulations, what would happen to the king? Aquinas answered this question in the form of people have the resistance right, and warning the king, reminding the common benefit’s and law’s power are missions for people. If these mission couldn’t lead to success, community keep on to obey the law and pray to the God to the king to find the right way.

Thomas Aquinas attached importance to explain the definitions of orders which maintaining orders and substantiation common benefit. He thought that there is a connection which is unbreakable between the mind and law. Law supervises the common benefit, and because of this, making law is only possible with the mind, but not ordinary one, it could be a community’s mind or the mind of the prince who acts on behalf of the community. On the other hand, law which explains with the mind represents free will, because it is because of ensuring the common benefit. In this way, the three main speciality which are regulated by mind, property of free will and common law become clear. These are the speciality of law, and with the same way Thomas separated law into four stages.

• Immortal law: The world is governed by the divine power, and it regulates everything.
• Natural law: Immortal law is a reflection to human’s mind. Thanks to this, people can separate good and bad, and make the necessary regulations for common benefits.
• Humanoid law: Natural law comes into effect and impose sanction are supply the validity.
• Divine law: It’s a subsidiary norm for natural and humanoid laws, and it reaches us not with the mind, but with the faith. Eventually, human’s mind can’t understand this type of wideness and perfect principles.

The first three kinds of law are interrelated conceptually within the ontological scheme Aquinas proposes. The fourth, divine law, refers to what Aquinas understood as ‘revelation’, which is the set of statements found in the biblical texts. Put simply, the first three kinds of law are philosophical in nature, while divine law — which must not be confused with eternal law — is theological in character. Divine law refers to the moral imperatives found in the biblical texts and whose justification is divine authority. Divine law as rooted in a divine command theory is beyond the limits of a philosophical inquiry[3].

Thomas explains that the last purpose of law is providing equality.

They were both influenced by different life terms, because they lived different life periods, but in any way they indigenised the same theory. Although their ideas bear natural law, they were separated in several points.

Thomas didn’t make a distinction between soul and body, he thought the soul and body are contingent upon themselves, but Hegel separate the soul from natural thing, because spirit wasn’t the independent particular, so people can become independent when they reach their free will.

Both of them were defending state life that people should live under an authority, but they had difference of opinion about source of authority. Thomas’s idea of authority came from the God. It means even the state’s establishment starts with family first and continues with the society, the only ruler-ship is the God. In Hegel’s idea there are three main constituent step to establish a state which are family, civil society and state. People first become together in a family, and then they build a civil society, and finally they establish a state. Hegel attached a step to these stages which is existence of civil society, but in this issue the most important part of the differences between Hegel and Thomas is about what people can do when the state act wrong for people. In Thomas’s theory, when the government makes something that community disagrees, community can only pray for the government to find the God’s true way, but for Hegel, the state can’t do anything wrong, because the state is already coming from the society to supply the common benefits and the state takes it as the community’s duty. The source of this differences is about why they made law. For Thomas, people made the law and set up rules because of the God’s wishes. It is apparent that religion, law and other social institutions can be positive for Hegel in that they are maintained by force or manipulation. In short, these institutions are no longer genuine[4], so for Hegel, people establish law to ensure their common benefits.

Hegel synthesize the moral law with shaped in society, and dimension of rational existence. Hegel wants to achieve a bonding between a public life of politics and shared culture and the autonomous individual of modernity who makes a conscious and deliberate decision to legitimate and seek his or her fulfilment in public and cultural life[5], also Hegel didn’t find it realistic that the pure moral law which registering with the mind can give a fillip to people. Hegel thought that the abstract morality which determined by the mind doesn’t enough. Hegel wanted a tradition which is a product of the synthesis of the mind and virtue. Moreover, Thomas was thinking that the mind and religious truth are two different kinds of source to reach information, so faith doesn’t go against the mind, but it transgresses the mind’s power of comprehension and limits. For Thomas, information is a prior condition to understand and adopt the highest level of the light, and the only thing for information to brighten it is the oracle (explain).

To sum up, this article includes the events which they have some effect on Thomas and Hegel, and mostly their views about law. They defended different things on one main principle. Even they lived in different times, they had some similarities too. This essay elaborates the differences and similarities between Thomas and Hegel, also this essay explains what they were thinking about how to establish a state or how principles of morality should be and more about law.

GÜLŞAH MİCAN

KAYNAKÇA

[1] Garza, Abel. “Hegel’s Critique of Liberalism and Natural Law: Reconstructing Ethical Life.” Law and Philosophy9, no. 4 (1990).p.372.

[2] Garza, Abel. “Hegel’s Critique of Liberalism and Natural Law: Reconstructing Ethical Life.” Law and Philosophy 9, no. 4 (1990): p. 379.

[3] Lisska, Anthony J. “Aquinas’s Theory of Natural Law: An Analytic Reconstruction.” (1997).p.9.

[4]Garza, Abel. “Hegel’s Critique of Liberalism and Natural Law: Reconstructing Ethical Life.” Law and Philosophy9, no. 4 (1990): p.375.

[5] Garza, Abel, p.386.