Philosophy 362-001

Philosophy of Law
Spring, 2008
Take home Essay Paper Assignment
By Harshil Parikh

Case: In 1944 a woman wishing to be rid of her husband denounced him to the authorities

for insulting remarks he had made about Hitler while home on leave from the German

army. The wife was under no legal duty to report his acts, though what he had said was

apparently in violation of statutes making it illegal to make statements detrimental to the

government of the Third Reich or to impair by any means the military defense of the

German defense of the German people. The husband was arrested and sentenced to

death, apparently pursuant to these statutes, though he was not executed but was sent to

the front.

In 1949 the wife was prosecuted in a West German court for an offense which we would

describe as illegally depriving a person of his freedom. This was punishable as a crime

under German criminal code of 1871 which had remained in force continuously since its

enactment. The wife pleaded that her husband’s imprisonment was pursuant to the Nazi

statutes and hence that she had committed no crime. The court of appeals to which the

case ultimately came held that the wife was guilty of procuring the deprivation of her

husband’s liberty by denouncing him to the German courts, even though he had been

sentenced by a court for having violated a statue, since, to quote the words of the court,

the statue “was contrary to the sound conscience and sense of justice of all decent human

beings.”

Q. Judging this case is on my opinion on the basis of John Aquinas and John Austin’s

Jurisprudence.

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 The act committed by the Nazi's been certainly inhumane and unjust, with

murderous intent. By creating the court and laws, Nazi’s were able to use them as

instruments for expedient means as ways to fulfill their illicit motives. I find that Austin's

and Aquinas theories contradict each other. First I will go through Aquinas jurisprudence

and his argument in judging the case and second I will discuss Austin's jurisprudence and

his argument.

According to Aquinas, law must be obeyed only when it tends to “human

happiness”. Law is a part of social structure. Law is obedience maintained only when it

involves safety and happiness. Jurisprudence is derived from evaluation of human acts

by humans. Nazi was a socialism ideology and practices by Nazi’s came up in post

World War-I. Nazi laws were unjust laws which deprived citizens from their rights, like

freedom of speech in this case. The people who were following Nazi laws were breaking

laws according to Thomas Aquinas jurisprudence. In jurisprudence there are various

kinds of laws, eternal law, natural law, human law and divine law. Nazi laws is a human

or positive law, law made by men to men. So according to theory of Aquinas, laws like

Nazi laws are unjust because they are not for human happiness. Instead, these laws are

obeyed because people are compelled to follow.

“A tyrannical law, through not being according to reason, is not a law, absolutely
speaking, but rather a perversion of law; and yet in so far as it is something in the nature
of a law, it aims at the citizens being good.” (On the Effects of Law: Book Treatise of
Law pp. 33)

Very often compelling conditions makes humans follow laws. But in this case conditions

were not compelled for the wife. The wife was under no legal duty to report her

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husband’s acts. Though she complained about her husband in court, the only reason was

to get rid of him. The wife, understanding Nazi law: deprives a person’s freedom of

speech is unjust, took the husband to prison. In one of the lectures Prof. Robert Ladenson

gave a vivid example of analogy to this case. A person is compelled to obey a command

set forth by a robber holding a gun. The person is forced to obey the command (law)

even though it’s unjust. Thus in my opinion Aquinas theory will surely support the

husband and accuses the wife of depriving his freedom of speech.

Austin took a positivist approach to jurisprudence. He has viewed law as a strict

command set by political superiors to political inferiors. A command (law) is generated

by group/individual having a higher intelligence to an individual having inferior

intelligence.

“The matter of jurisprudence is positive law: law, simply and strictly so called: or law
set by political superiors to political inferiors”. (Legal Positivism by Austin: pp. 55 Lect.
1)

Austin’s analysis of jurisprudence has raised many questions in philosophy. Analytically

Austin has divorced the law from morals and political authority (like governments). In

my opinion, Austin’s analytical views are very practical in modern society. Austin’s

philosophy has also strongly supported the divine law and positive law (human law).

Human laws are defined as laws set by men to men that are sometimes also denounced by

unauthorized or un-commanded officers. Austin has formulated legal positivism and has

given very short definitions of perfect and imperfect laws. The definition of law as per

legal positivist approach is as follows:

“Laws to repeal laws, and to release from existing duties, must also be excepted from the
proposition “that laws are a species of commands.” (Legal Positivism by Austin: pp. 62
Lect. 1)

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 “Imperfect laws, or laws of imperfect obligation, must also be excepted from the
proposition “that laws are a species of commands.” (Legal Positivism by Austin: pp. 62
Lect. 1)
When law is denounced by sovereignty it is not followed, and then there are sanctions (or

evil) followed. Evils are backed by laws to make people obey.

“Being liable to evil from you if I comply not with a wish which you signify, I am bound
or obliged by your command, or I lie under a duty to obey it.” (Legal Positivism by
Austin: pp. 57 Lect. 1)

Like two sides of a coin are complementary to each other both command and duty are

bound to each other. Whenever a command is signified a duty is imposed; similarly

whenever a duty lies, a command has been signified. Thus an evil is incurred when one

of the proceedings is not followed. In this case, Nazi’s were cruel and unjust sovereign

that had denounced laws during 1930’s. These laws were backed by heavy sanctions.

“The evil which will probably be incurred in case a command be disobeyed or (to use
and equivalent expression) in case a duty be broken is frequently called a sanction, or an
enforcement of obedience.” (Legal Positivism by Austin: pp. 57 Lect 1)

In my opinion, as Austin’s theory has defined law separate from moral, Austin would

support the wife for following the law. Thus according to Austin the existence of law is

one thing and its merits or demerits are another. If a law exists whether perfect or

imperfect, like or dislike, it has to be obeyed by which we regulate our approbation and

disapprobation.

To conclude with one more example discussed by Prof. Robert Ladenson in class

about obedience, and distinguishes the Aquinas theory and Austin’s legal positivist

approach is as follows. Parents are authority to children. Parents are commanded or un-

commanded is a different perspective but they are required to be obeyed. Aquinas

jurisprudence will judge the command in perspective of child’s happiness. On other hand

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Austin’s jurisprudence would say to obey the command without seeing the merit or

demerit behind it. This provides little vivid analogy in judging whether Nazi laws should

be obeyed or not.

Bibliography:

1) Philosophy of Law, Eight Edition by Joel Feinberg and Jules Coleman. Speical

Quotes are taken from Chapter 2 Legal Positivism.

2) Treatise on Law by St. Thomas Aquinas. Special Quotes are taken from Chapter

On the Effects of Laws)