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

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

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
 Human Law

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.