Aquinas On Law
Read Saint Thomas Aquinas, On Law, Morality and Politics (Hackett), xiii-xxii and 11-83.
See xx-xxi for the part, question, article structure of the Summa and the Objections, Sed Contra, Respondeo, and Responses-to-Objections structure of the articles.
Thomas Aquinas (1225-1274)
Philosophy and Theology in Thomas’ Thought
A. For Thomas philosophy is ancilla theologiae (handmaiden of theology). Aquinas was first and foremost a theologian, though he was quite capable of distinguishing philosophy proper from theology. He held that
(1) philosophy can prove by means of reason unaided by revelation some truths proposed by Christian faith;
(2) it can clarify truths which cannot be proved;
and (3) it can defend the principles of Christian faith against their detractors.
True philosophy cannot conflict with Christian faith but it can fall short of it–e.g., the existence of God as efficient cause of the universe can be established by reason alone, the full meaning of “God” can only come from faith.
Aquinas is not the only, but he is the most important, medieval thinker who tried to incorporate many of Aristotle’s ideas into Christian philosophy. He goes as far towards accepting Aristotle’s views as a Christian of his time could do. But there are some points on which even Thomas would have to depart from Aristotle: chief among them (i) Aristotle’s view that the universe is everlasting and (ii) Aristotle’s rejection of individual immortality.
B. Christian PHILOSOPHY: Philosophy as Thomas understands it depends on this: that there is a natural world; that its substantial components regularly exercise their own causal powers; that there are intelligent beings capable of understanding the natural world by their own mental powers.
C. CHRISTIAN philosophy: Christian philosophy for Thomas depends on this: that the world of creatures is totally based–for its existence, endurance and operation–upon God, who freely creates, conserves and cooperates with what He has created. *****
An Outline Corresponding (roughly) to Thomas’ Exposition
A. Law in general
B. Kinds of law
C. Eternal Law
D. Divine law
E. Natural law
1. in general
2. the precepts
3. apprehending natural law–synderesis
F. How human law is related to natural law
G. Human law
1. Why human law is needed
2. Specificity of human law
3. How framed for the community and classes of persons
4. Whether it represses all vices or prescribes acts of all the virtues.
5. Whether everyone is subject to law
6. Whether there are exceptions to true human laws
7. Whether human law should ever be changed
8. How quickly should human law be changed/the importance of custom
I shall deviate from this outline by reversing E-G, to which most of our time shall be devoted. The reason for doing this is that human law is more familiar to us, and it is good philosophical inquiry proceeds from what is most familiar to us.
Law in general
Aquinas describes law as “a certain rule and measure of acts whereby man is induced to act or is restrained from acting.” (q90, a1) Because the rule and measure of human actions is reason, law has an essential relation to reason; in the first place to divine reason; in the second place to human reason, when it acts correctly, i.e., in accordance with the purpose or final cause implanted in it by God.
Law is directed by its nature to the good, and especially to the universal or common good. (q90, a3) It is addressed not primarily to private persons but to the whole people meeting in common or to persons who have charge of the community as a whole.
Promulgation–i.e., the application of the law to those to whom it is applied and the communication of this law to them–is essential to the nature of the law. The natural law is promulgated by God: “God has instilled it into human minds so as to be known by them naturally.” Divine and human laws can be promulgated by word of mouth or, even better, by writing.
Kinds of Law
Aquinas recognizes four main kinds of law: the eternal, the natural, the human, and the divine. The last three all depend on the first, but in different ways. Were we to arrange them in a hierarchy, eternal would be at the top, then natural, then human. Divine law is not in conflict with natural law, but it reaches human beings by a different route, revelation.
Eternal law is identical to the mind of God as seen by God himself. It can be called law because God stands to the universe which he creates as a ruler does to a community which he rules. When God’s reason is considered as it is understood by God Himself, i.e. in its unchanging, eternal nature (q91, a1) , it is eternal law.
Divine law is derived from eternal law as it appears historically to humans, especially through revelation, i.e., when it appears to human beings as divine commands. Divine law is divided into the Old Law and the New Law (q91, a5). The Old and New Law roughly corresponding to the Old and New Testaments of the Bible. When he speaks of the Old Law, Thomas is thinking mainly of the Ten Commandments. When he speaks of the New Law, the teachings of Jesus.
Old Law — commands conduct externally — reaches humans through their capacity for fear — Law promised earthly rewards (social peace and its benefits)
New Law — commands internal conduct — reaches humans by the example of divine love — promises heavenly reward
Thomas’ philosophy, as we should expect knowing how much he is indebted to Aristotle, is pervaded with a sense of teleology. Nowhere is this clearer and more important than in his discussion of human law. You might think here that he would define human law as what we sometimes nowadays call positive law, the laws actually enacted and put in force in our human communities. But in fact human law fits just those so-called positive laws which are what written and enacted laws should be. So-called laws which fall short of what they should be are not true laws at all, according to Thomas. (Cf. q95, a2, p. 59)
I shall hold off giving Thomas’ own definition of human law, because it relies upon the concept of natural law to which we will turn to later. We can say now that Thomas thinks of human laws as laws, devised by human reason (q91, a3, p. 21), adapted to particular geographical, historical and social circumstances.
Law is directed to the common good, and human law is no exception. The promotion of virtue is necessary for the common good, and human laws are instruments in the promotion of virtue. Aristotle already pointed out that most people are kept from crime by fear of the law. Thomas accepts this judgment, suggesting (r. Ad 1, p. 57) that by coercion even men who are evilly disposed may be led in the direction of virtue.
Laws are also important, says Thomas, for other reasons noted by Aristotle.
(1) It is easier to find a few wise persons who can make good laws than to find many who, in the absence of laws, can judge correctly in each instance.
(2) Lawmakers can deliberate at length before making laws while many particular cases must be judged quickly, when they arise.
(3) Lawmakers judge in the abstract and are less likely to be swayed by emotions evoked by concrete circumstances or by the kinds of things that tend to corruption. There is less danger of perversion of law, which is formulated in general, than there would be perversion of judgment in particular cases where no law exists to guide judgment. (Q. 95, A. 1, R. Ad 2)
Even though laws are general, they are still adapted to the nature of the community, which is not everywhere the same, and to the classes of individuals who make up the society. For example, there may be one set of laws that govern the conduct of trade, another set of laws that govern the control of parents over their children, another set of laws setting limits on the powers of what passes for a police force.
In other words, there may be different laws for different kinds of citizens, who have different functions in the community. Still laws are general to two ways. All human laws worthy of the name laws are directed towards the common good. And even specific laws, say, for merchants, are general in some way: that they go farther than a single case. (Q. 96, a. 1)
The human law, says Thomas, is not obliged to repress all vices. It is framed for most people, who are far from perfect in virtue. It is aimed at the more grievous vices from which the majority can abstain, i.e., those which are to the hurt of others, e.g., murder, theft, and the like. Were the law to attempt to legislate perfection, it would make people hostile to the law and defeat its purpose. (Q. 96, a. 2)
For the same reason, the law does not prescribe all the acts of the virtues. But it does prescribe some acts corresponding to each virtue. For example, some acts that a just man would do are prescribed; some acts that a temperate person would do are prescribed. (A. 3)
Everyone is subject to human law and ought to obey the human law, that is, the true human law, not the occasional perversion of it which is sometimes presented as law. But the ruler (charged with stating and enforcing the law) is in a special position. Normally, he is obliged to follow the law which he himself has stated. But there is nobody over him to judge him in this life. However, he is not exempt, since he will be held accountable by God. (A.5).
Thomas considers when it may be permissible to violate the letter of the law (in A. 6). He realizes that, because it is by nature general, the law may require exceptions. In most cases, these should be made only with the consent of the political authorities, but there are exceptions even to this rule, when the common good is under unusual peril.
Human laws are subject to change, according to Aquinas, because experience in practical matters may allow us to improve them. (Q. 97, A. 1) Pp. 76-77 are interesting because, while they echo passages in Aristotle, they give a hint of that idea of long-term moral .and political progress which would later became influential during the 17th and 18th c. Enlightenment.
Aristotle understood that there could be progress in the arts and in philosophy, but he saw history as cyclical, and he anticipated that social catastrophes would cultural and technical progress to be lost, though they might be recovered in a later cycle. Thomas, by contrast, has an essentially linear notion of history, which is connected with the Christian idea that there is just one Big Story and each human event has its unique place in that story.
Human law can be changed, and occasionally should be changed, but it should not be lightly changed. The reason is that respect for the law is largely a matter of custom or habit, and inessential change undermines this custom. The common good is not served by a more finely tuned, theoretically better law, if people have less respect for law and follow it less faithfully. (A.2)
The Relation of Human and Natural Law
To define human law, a Thomist must refer to natural law. Thomas says that
it is from the precepts of the natural law, as from general and indemonstrable principles, that the human reason needs to proceed to certain particular determinations of the laws. These particular determinations, devised by human reason, are called human laws. (q91, a3, p. 21)
The natural law is law with moral content, more general than human law. Natural law deals with necessary rather than with variable things. In working out human laws, human practical reason moves from the general principles implanted in natural law to the contingent commands of human law.
Natural law is more perfect than human laws, because of the variable subject-matter of human laws.
Natural law is less specific than human laws, but human laws are applications of natural law and cannot deviate from what we might call the spirit of the natural law, as applied to the time and place of the human law’s promulgation. If a human law does deviate in this way, if it is not a proper and rationally defensible application of the natural law, then it is a perversion of law, which is to say, it is a law in name only (q95, a2, p. 59).
Natural law holds that in general human life should be preserved and steps should be taken to preserve it. But laws governing automobile traffic so as, among other things, to preserve human health and life are applications specific to the era in which automobiles exist. A further specification, codified in human law, is that in the U.S. one should normally drive on the right and, in Great Britain one should normally drive on the left. At this level the human law is partly a matter purely of custom. Human law in one place differs from human law in another, but if they are laws and not perversions of law they all have the same ends, those contained in the natural law, which is an expression of eternal law.
Natural Law–In General
Natural law is introduced in q91, a2 (p20):
all things partake somewhat of the eternal law, insofar as, namely, from its being imprinted upon them, they derive their respective inclinations to their proper acts and ends. Now among all others, the rational creature is subject to divine providence in a more excellent way, insofar as it partakes of a share of providence, by being provident for itself and for others. Wherefore it has a share of the eternal reason, whereby it has a natural inclination to its proper act and end, and this participation of the eternal law in the rational creature is called the natural law.
Aquinas conceives of creatures, according to types, as governed by final causes or ends which they naturally seek. These ends are implanted in them by the Creator. Most creatures actively seek their proper ends out of instinct. Aalthough human beings too have proper ends, we do not always act as we should. Our actions are often determined counter to nature and natural law by our appetites. When reason rules in the human soul, we choose what accords with nature.
Natural Law–The Precepts
Reason in human beings is capable of apprehending certain general principles implanted in human nature. The first principle of the natural law is “good is to be done and pursued, and evil avoided” (q94, a2, p. 47). All other precepts of natural law rest upon this. What Aquinas seems to mean is that the several precepts of natural law are specifications of this precept, which is highly abstract). These other precepts include (p. 48):
“Whatever is a means of preserving human life and of warding off its obstacles belongs to natural law”; in other words, a good justification for a moral or legal rule is that it promotes the preservation of human life. Behind this is the fact that all living beings possess an inclination for survival corresponding to the nutritive faculty of the soul, as Aristotelians apprehend it.
“Sexual intercourse, education of offspring,” and the life have a proper place in human life, as in other animal life corresponding to the sensitive faculty;
Corresponding our peculiar possession of reason, humans are under an obligation “to avoid ignorance” (and to seek to know God) and to avoid offending those among whom one has to live. These pertain uniquely to the rational faculty.
Aquinas never gives an exhaustive list of these precepts.
Grasping Natural Law–Synderesis
The grasp of the principles of natural law is achieved by a special capacity called synderesis. This is a natural intellectual habit, in one sense of habit but not in the central sense.
It is natural because all human beings are born with it.
It is intellectual because it makes possible the grasp of principles.
As something found in the soul which is the foundation for grasping principles, it might be a capacity (power) or a habit. But mere capacities can go either way, towards good or evil; synderesis is oriented towards the good. So it’s not a mere capacity, but a habit.
Habit (habitus) is a Latin Aristotelian’s way of expressing what Aristotle called a hexis (state or disposition). A habit is a first act of the soul, which can be actualized, in a second act; here the act of conscience. Conscience is related to synderesis as actively thinking what you know (2nd act) is to the knowledge which you have but which may or may not be active at any given time (1st act). We do not always experience conscience but every human being has the capacity called synderesis.
Aquinas, however, denies that synderesis is a habit in the fuller sense (q94, a1), i.e., a moral habit. He quotes Augustine, who says “a habit is that whereby something is done when necessary” (p. 45). The moral virtues, therefore, are habits; the person of courage may not exhibit courage at every moment (because not every action requires courage)–yet when necessary, she will do the courageous thing.
And unlike most conditions that we call habits, synderesis is not acquired but innate or, as Aquinas puts it, “natural.”
Now, synderesis is not a habit of the sort described by Augustine since it can be overridden by the appetities, as in infants and wicked persons.
The term synderesis has every appearance of being a Greek term. Yet it is not found in Aristotle or in any classical Greek author near to him in time. I have never seen it in any text earlier than Aquinas himself, though I am not sure that he invented it. It would seem to be a sometimes weak intellectual habit whose subject-matter is ethical.
Synderesis must not be confused with prudence, which is the Thomas’ term for what Aristotle calls phronesis, or practical wisdom. A person with the intellectual virtue of prudence will necessarily possess the moral virtues and will make good moral choices. Aristotle and Thomas agree on that. But you can have synderesis, i.e. know the principles of natural law, and yet not act accordingly. Synderesis, which all humans have, implies neither moral virtue nor prudence.