Natural Law Theory vs. Feminist Jurisprudence & Critical Race Theory
Thomas Aquinas’ Law and Justice
Thomas Aquinas provides different perspectives of law, which he defines as a measure or rule of acts. The law either induces or restricts a man from acting in a certain way. Aquinas goes on to assert that law is an imposition through a measure or a rule on others. This implies that a law can only obtain its binding force if it is applied to others, the ruled. However, the ruled must be notified of the same through promulgation. Thus, for a law to acquire its needed force, it must be promulgated. This paper will analyze Aquinas’ arguments against those of Robin West and Vanita Gupta, who explored feminism and judicial race inequality respectively. Specifically, the paper will explore how West’s approach to feminism and masculinity measures against Aquino’s law and justice. It will also analyze Gupta’s criticisms of the codewords and how they relate to Aquino’s arguments.
Aquinas defines law as “an ordinance of reason for the common good, made by him who has care of the community, and promulgated” (Aquinas 1). From this definition, it is clear that whoever makes a law must be driven by the common good of the community (Aquinas 1). In addition, the particular law must be promulgated as well. The maker of the natural law is God, who instilled it into the mind of man. The law of God is written and promulgated to be used by several generations to come.
Aquinas continues to observe that not every human law is derived from natural law. He quotes Augustine, who opined that “that which is not just seems to be no law at all” (Aquinas 1). This means that the force of law is anchored in the degree of its justice. According to the human affairs’ rule of reason, something that is right is deemed to be just. The laws of nature are the first rule of reason. Subsequently, all human laws are just if they are anchored on the laws of nature (Aquinas 3). On the other hand, an act that contravenes the law of nature is considered to be a perversion of the law. This means that such activity is deemed to be an injustice. Thus, the relationship between law and justice is that the commission or omission of the latter is prone to support or impede the former.
While natural law is considered just, the same is not true of human law, which can either be just or unjust. Since the natural law is derived from God’s eternal law, it contains a Divine providence. However, the human law, as framed by different government functionaries, both allows and leaves many things that are punished by the eternal law unpunished (Aquinas 2). Just human laws are derived from the eternal law and have binding conscience power. Conversely, there are two ways upon which human laws can be considered unjust: if they are in contrast to human good and if they contravene the Divine good. Laws that are contrary to human good are those that are imposed by authorities on their subjects to burden them with self-aggrandizement (Aquinas 3). In addition, if a man makes a law that does not fall within his powers, then such a law qualifies to be unjust. Still, if laws are unequally imposed on communities to burden them in one way or the other, such laws do not serve the common good, and are considered unjust.
Robin West’s Arguments on Feminism and Masculinity
Aquinas’ opinions can be juxtaposed against the view that law is contingent upon social and political realities of power and inequality of gender and race as argued for by West in “Jurisprudence and Gender”. The social realities are presented by West in the form of feminism and masculism. West argues that all modern legal theories and their criticisms are irretrievably and essentially masculine. She advances an argument that human beings are distinct individuals who are separate from each other. The same is, however, not true about women as they are connected to another human being during pregnancy (West 1). Other forms of essential connection are through heterosexual penetration, menstruation, and breastfeeding. This has been the central insight of feminism, according to West.
There are two camps upon which the jurisprudence of masculinity is divided: liberal legalism and critical legal theory. Both the adherents of liberal and legal theories support the separation concept, although each has a divergent account of the state of separation’s subjective experience (West 2). The same applies to feminist theory, which is also divided into two: cultural feminism and radical feminism. Both subscribe to the connection thesis, but present divergent accounts of the state of connection’s subjective experience.
Vanita Gupta’s Criticisms of Inequality Codewords
On his part Gupta, questions the ‘rule of law,’ ‘equal justice for all,’ and ‘color blindness codewords. Below these words, Gupta asserts that the law is dependent on the political and social realities of racial power and inequality. Gupta is particularly concerned with the composition of the U.S. Supreme Court and other federal-level courts of appeal, which he observes to be populated by activist and conservative bench. This situation rolls back the gains that have been achieved over the years in fighting racial injustice. With these judges and jury, the codewords stated above would not make any sense. The aspirations and hope of the civil movement were once anchored in these codewords. Sadly, this is not the situation today as the words have been redefined and distorted by politically inclining activists who have used them as their primary litigation battleground.
Gupta is pessimistic that the more the courts become increasingly polarized and conservative, the worse the situation will unfold. The ‘abuse’ of the code words is in no way a description of the law. As a matter of fact, the relevance of the critical race theory today goes beyond the use of analytical tools to describe the use of law to advance white supremacy in the United States. The practice and theory of critical race must, hence, serve as a tool for the protection of lives, dignity, and liberty of people of color. Gupta observes that this is what is presently at stake. In addition, it must also be a reformation and transformation tool. However, Gupta warns that advocating for this course must be done carefully, thoughtfully, and strategically. This is because the system that is currently in place is designed to reduce people of color into subordinates and destroy them.
Unlike Aquinas’ description of law that divides it into natural law and human law, Gupta’s understanding of the law is somewhat different. The critical race theory plays an important role in Gupta’s understanding of the law. However, the law and justice in the U.S are dependent on many things, primarily race. Aquinas was very categorical that doing something that is not just is not law. This is in sharp contrast to what the U.S. judicial system has subjected people of color They are often the victims of racial injustices perpetuated by a system that does not have their interests at heart.
The story of Freddie Brookins and the 46 other arrestees in Tulia, Texas depicts how the U.S judicial system is awash with open bias and racism perpetrated against African Americans. The misconduct, overt racism, lack of accountability and standards, and racial bias shown by Tom Coleman, the undercover narcotics agent makes a mockery of the ‘rule of law,’ ‘equal justice for all,’ and ‘color blindness’ codewords (Gupta 7). The judge, the prosecutor, the testifying police officer, the sheriff, the court marshals, and all members of the juror were white in a case involving 46 black individuals. One cannot fail to detect the type of prosecutorial misconduct and racial bias that Tulia’s criminal justice system perpetuates against its black community. Gupta demonstrates that critical case lawyering is exemplified by Mr. Brookins’ case.
Facts about the case depicted how the judicial system was racially skewed against African Americans in the U.S. A case involving 46 black defendants was adjudicated by the same district attorney, Terry McEachern, and the same judge, Ed Self. The worse bit of it is that the duo and all other members of the jury relied on the uncorroborated evidence of an undercover agent with a sordid and questionable history. A black community in Tulia was literally brought down by a criminal justice system that was openly biased against it. Despite their prior knowledge of Mr. Colman’s present and past misconducts as a police officer, his supervisors allowed him to be the only witness in a case involving 46 black people.
The justice and law disposition presented by Aquinas is brought into sharp focus through the case involving the 46 black defendants in Tulia. The modus operandi of Mr. Coleman, the behavior of the prosecutor, the federal bankrolled task forces, and the human cost involved in the case proved the cases were not about the 46 individuals, but a whole community. An injustice that was committed against an entire community of color indeed puts to question the efficacy of the ‘rule of law,’ ‘equal justice for all,’ and ‘color blindness codewords. However, despite all these injustices, efforts by the black community in Tulia to bring the matter to public attention were ignored and shelved. This is a clear indication that the voice of those who experience discrimination does not matter.
A skewed criminal justice system that discriminates against a section of the society has no tendency of hearing the voice of the depressed. From the composition of the jury to the modus operandi of the judge, the prosecutor, and the district attorney, it is apparent that those who are discriminated against do not have a voice. In the case elaborated by Gupta, for instance, the black community in Tulia did not have a representation in the white-dominated jury despite the fact that 46 of its members were on defense. There is glaring evidence of inequality, racism legalization, and bias patterns that the system tries too hard to mask. The fact that one white undercover police officer with a sordid reputation of misconduct can bring down a whole community of color is a clear demonstration that the community’s voice does not matter. This is an exemplification of injustice perpetrated by authorities against a segment of its subjects that Aquinas elaborated.
Aquinas, Thomas. “Summa TheologicaSumma Theologica.” Treatise on Law. n.d.
Gupta, Vanita. “Critical Race Lawyering in Tulia, Texas.” Fordham Law Review, vol. 73, no. 5, 2005, pp. 2055-2072.
West, Robin. “Jurisprudence and Gender.” Readings in Philosophy of Law. Arthur, John and William Shaw. Routledge, n.d. 212-223.