Man-made law

The European and American conception of man-made law has changed radically in the period from the Middle Ages to the present day. In the Thomistic view dominant in the Medieval period, man-made law is the lowest form of law, as a determinatio of natural law or divine positive law. In the view dominant in the modern period, man-made law is thought of as primary because it is man-made. The Soviet Union went further, not recognizing any such thing as divine or natural law. In several Islamic countries, man-made law is still considered to be subordinate to divine law.

Philosophical concepts

In Hegelianism

Professor Heinz Mohnhaupt of the Max Planck Institute for European History of Law relates man-made law to Hegel's concept of Rechtsgesetze or "Laws of Right", which Hegel placed in opposition to the Naturgesetz or laws of nature. In the Hegelian view, according to Mohnhaupt, man made law is Rechtsgesetze, or at least a subset thereof. Its characteristics are that it is "not absolute", and is created by human beings "above all" for the regulation of their actions and behaviour (but also for the ordering of things). It "has to be generally known" and "has to take into account [both] its anthropological determination and [...] its chronological determination". Man-made law is fluid, changing over time in order to adapt to changing real-world circumstances.

In the writing of Thomas Aquinas

Thomas Aquinas expounded the concept of Human Law, a distinct form of law alongside Natural Law and Eternal Law, in Summa Theologica. Thomas asserted the primacy of natural law over man-made law, stating that where it "is at variance with natural law it will not be a law, but spoilt law" (ST, I–II q. 95 a. 2). The result of any such conflict is that the man-made law does "not oblige in the court of conscience" (ST, I–II q. 95 a. 4), since human law is a determinatio of divine or natural law, and a lower law cannot contradict a higher law. Natural law theorists and others have thusly challenged many man-made laws over the years, on the grounds that they conflict with what the challengers assert to be natural, or divine, laws.

Lex humana versus lex posita

Thomas Aquinas himself conflated man-made law (lex humana) and positive law (lex posita or ius positiva). However, there is a subtle distinction between them. Positive law regards law from the position of its legitimacy. Positive law is law by the will of whoever made it, and thus there can equally be divine positive law as there is man-made positive law. (More literally translated, lex posita is posited rather than positive law.) In the Summa contra Gentiles Thomas himself writes of divine positive law where he says "Si autem lex sit divinitus posita, auctoritate divina dispensatio fieri potest (If the law be divinely given, dispensation can be granted by divine authority)" and "Lex autem a Deo posita est (But the Law was established by God)". Martin Luther also acknowledged the idea of divine positive law, as did Juan de Torquemada.

The Thomistic concept of man-made law, by contrast, regards law from a different angle. It treats it from the position of its origins. Lex humana or sometimes lex humanitus posita (as is the case throughout ST, q. 95), but sometimes rather lex ab hominibus inventa (as is the case in ST, q. 91.3), is law made by man, rather than made by the divine (lex divina). What is important about lex humana is not that it is posited by someone, but that the someone who posits it is human rather than divine.