Law as Primary Proper Means of Co-ordinating Civil Society*

The government and laws of a state are the central case of government and law, and the
most articulated form of human co-ordination. In reflecting on them, one is considering
certain modes and forms of practical reason’s directiveness towards common good. For
practical reason—the propositional content of the practical understanding, reasoning,
judging, choosing, and self-directing of practically reasonable persons—is brought to its
most articulate and complex forms in the public reason of people who have reasonably
judged themselves to be morally responsible for governing the civitas.

Aquinas proposed and argues for a definition of law: an ordinance of reason for the
common good of a [complete] community, promulgated by the person or body
responsible for looking after that community.1 But in supplementing and explicating
that definition. Aquinas immediately stresses that law—a law—is ‘simply a sort of
prescription {dictamen} of practical reason in the ruler governing a perfect
community’,2 and that ‘prescriptions’ are simply universal3 propositions of practical
reason which prescribe and direct to action.4

His explications also add that government (governing, governance) by law means,
equally concretely, that these practical propositions conceived in the minds of those
responsible for ruling must be assented to by the ruled,5 and adopted into their own
minds as reasons for action.6 The assent may have been induced only by fear of
sanctions, though such unwilling (reluctant) assent cannot be the central case of co-

*John Finnis, AQUINAS: MORAL, POLITICAL AND LEGAL THEORY 255-258 (1998)

1 I-II q. 90 a. 4c: ‘quaedam rationis ordination ad bonum commune, ab eo qui curam communitatis habet
promulgata’. ‘Promulgated’ tacitly includes ‘made’; see a.3 obj. 1 and ad 1. (‘Made’ is in any case implicit in
ordinatio, which refers both to the act of ordering or ordaining and to the propositional instrument for
ordering or co-ordinating.) The addition of ‘complete’ is authorized by a. 2c.
2 I-II q. 91 a. 1c, q. 92 a. 1c: both looking back to q. 90 a. 1 ad 2
3 ‘Universal’ here means: referring to an indeterminate set of instances of a specified kind of action, as distinct

from a particular precept directing an individual to do (or not do) this or that. So the following prescription,
directive, precept, norm, or rule is universal in the relevant sense: ‘There is to be no playing of [or: ‘It shall be
an offense to play’] bagpipes, trombones, or drums in student halls of residence located in suburban
residential districts of London.’
4 I-II q. 90 a. 1 ad 2 (‘propositiones universals rationis practicae ordinatae ad actiones’); 92 a. 2c, q. 94 a. 1c.

The common translation of dictamen by ‘dictate’ is unsound, in so far as ‘dictate’ suggests arbitrariness and
even abuse of power. The word dictamen in Aquinas signifies the content of rational (even if mistaken)
practical judgment {sentential vel dictamen rationis} (e.g. II Sent. d. 24 q. 2 a. 4c), and is thus frequently used
by him to refer (1) to the content of one’s conscience (e.g., ‘conscience is a dictamen of reason’: II Sent. d. 24 q.
2 a. 4c; likewise I-II q. 19 a. 5c; ‘the judgment {iudicium} or dictamen of reason, the judgement which is
conscience’: II Sent. d. 39 q. 3 a. 3c), and (2) to the requirements of natural moral law and of ‘natural reason’
{naturalis ratio}: ‘moral precepts are in accord with human nature because they are the
requirements/prescriptions {de dictamine} of natural reason’: IV Sent. d 2 a. 4 sol, 1 ad 2; likewise I-II q. 99 a.
4c, q. 100 a. 1 1c, q. 104 a. 1c.
5 I-II q. 92 a. 2c.
6 I-II q. 90 a. 1 ad 1.
operation in government by law. Aquinas takes an early opportunity to supplement his
definition by stating that it is characteristic of law {de ratione legis} that it be coercive
(threatening force against violators).7 In the previous chapter (VII. 7) we saw how the
irreparable character of necessary coercion is central to the rationale of public authority.
But the present point is simply that law needs to be present in the minds not only of
those who make it but also of those to whom it is addressed—present if not actually, at
least habitually—as the traffic laws are in the minds of careful drivers who conform to
them without actually thinking about them.8 The subjects of the law share (willingly or
unwillingly) in at least the conclusions of the rulers’ practical thinking and in the plan
which the rulers propose (reasonably and truthfully or unreasonably and falsely) as a
plan for promoting and/or protecting the common good.9 For just as the individual’s
choice is followed and put into effect by the directive {imperium} of the individual’s
reason (III.3), so a legislature’s or other ruler’s choice of a plan for common good is put
into effect by way of citizens taking the law’s directive {imperium, ordination} as it if
were putting into effect their own choice.10

The central case of government is the rule of a free people (III.4; VIII.2), and the central
case of law is co-ordination of willing subjects by law which, by its fully public character
(promulgation),11 its clarity,12 generality,13 stability,14 and practicability,15 treats them as
partners in public reason.

Nobody is as directly responsible for looking after the state {cura communitatis}, and
thus its citizens, as its legislators pre-eminently are.16 But governing a complete
community by law is in some respects a joint enterprise, a kind of co-ordination of each
with the directives given by their rulers. Aquinas’ general account of co-ordination was
outlined in II.4 above. In VII.4 above, that account was supplemented by the thesis that
co-ordination, in a group with a common good as far-reaching as the ‘complete
community’s’, calls for the law’s internalization17 by its subjects. One ‘internalizes’ the
law when one willingly, promptly, readily—and not merely out of the ‘extrinsic’

7 I-II q. 90 a. 3 ad 2
8 I-II q. 90 a. 1 ad 2 (propositions sometimes actually under consideration, sometimes held in the reason
dispositionally {habitualiter}); q. 94 a. 1 ad [4]; cf. III. 6 n. 138 above.
9 I-II q. 90 a. 1 ad 1, q. 91 a. 6c. And see II. 4 at nn. 49-52 above.
10 See I-II q. 12 a. 1c, q. 17 a. 1c, q. 90 a. 1 s.c. and ad 2 and 3; III.3 at nn. 26-7 above.
11 I-II q. 90 a. 4c.
12 I-II q. 95 a. 3c (laws lacking clarity in expression {manifestatio} are harmful).
13 I-II q. 96 a. 1.
14I-II q. 97 a. 2c.
15 I-II q. 95 a. 3c (‘disciplina conveniens unicuique secundum suam possibilitatem’).
16 II-II q. 50 a. 1c and a. 2c; VII. 5 at n. 80 above.
17 I-II q. 93 a. 5c (‘a kind of internal {interius} principle of actions’) and ad 1 (‘a kind of directive principle of

human actions is impressed on people by promulgation’—a source of direction which in respect of its
interiority is like an active intrinsic principle, e.g. the ‘form’ which governs the development of an embryo).
motivations of fear of punishment or hope of reward18—complies with its requirements,
not only according to the letter of the law but primarily according to the lawmaker’s
intention and plan for common good.19 Such states of affairs are the central case of law
because they most fully instantiate the fundamental notion of law: a prescription of
reason, by means of which rational and indeed conscientious and reasonable practical
judgments about the needs of a complete community’s common, public good, having
been made and published by lawmakers, are understood and adapted by citizens as the
imperium of their own autonomous, individual practical reason and will.

[central case – somewhat like the “ideal situation”]

Note 5: I-II q. 92 a. 2c

“Just as an assertion is a dictate of reason asserting something, so is a law a dictate of

Note 6: I-II q. 90 a. 1 ad 1

“Since law is a kind of rule and measure, it may be in something in two ways. First, as in
that which measures and rules: and since this is proper to reason, it follows that, in this
way, law is in the reason alone.”

Note 7: I-II q. 90 a. 3 ad 2

“A private person cannot lead another to virtue efficaciously: for he can only advise, and
if his advice be not taken, it has no coercive power, such as the law should have, in order
to prove an efficacious inducement to virtue.”

Note 8: I-II q. 90 a. 1 ad 2

18 See I-II q. 107 a. 1c. Every set of laws is addressed to two kinds of people: the obstinate and proud who are
restrained and disciplined by law, and the good who are assisted by the law’s guidance {per legem instructi}
to fulfil their good intentions: q. 98 a. 6c.
19 See I-II q. 96 a. 6. Some legislative intentions (e.g., that the law’s subjects should become truly virtuous

people) are not part of the legislation’s obligatory content *see VII.4at nn. 58-59 above; but there are also
legislative intentions which are more binding {magis obligant} than the enacted words interpreted without
taking that intent into account: IV Sent. d. 15 q. 3 a. 1 sol. 4 ad 3; In Matt. 1 ad v. 5 [49]. And there is a
legislative intent—what the legislature would have enacted (would have intended {intendisse}!) had it
envisaged the circumstances in question—which should be followed, at least where it is obvious: I-II q. 96 a. 6
ad 2, II-II q. 60 a. 5 ad 2. To act on this intention is to prefer equity {epi[ei]keia; aequitas} to the words of
form of the law: ibid., II-II q. 157 a. 3 ad 1; Eth. v. 16 n. 1 [1078]; III Sent. d. 33 q. 3 a. 4 sol. 5c and ad 5, d. 37 a.
4c; n. 101 below.
“These propositions are sometimes under our actual consideration, while sometimes
they are retained in the reason by means of a habit.”

Note 12: I-II q. 95 a. 3c

"’Clearness of expression’" refers to the need of preventing any harm ensuing from the
law itself.”

Note 13: I-II q. 96 a. 1

“Laws should be made to suit the majority of instances; and they are not framed
according to what may possibly happen in an individual case.”

Note 14: I-II q. 97 a. 2c

“Human law is rightly changed, in so far as such change is conducive to the common
weal. But, to a certain extent, the mere change of law is of itself prejudicial to the
common good: because custom avails much for the observance of laws, seeing that what
is done contrary to general custom, even in slight matters, is looked upon as grave.
Consequently, when a law is changed, the binding power of the law is diminished, in so
far as custom is abolished. Wherefore human law should never be changed, unless, in
some way or other, the common weal be compensated according to the extent of the
harm done in this respect. Such compensation may arise either from some very great
and every evident benefit conferred by the new enactment; or from the extreme urgency
of the case, due to the fact that either the existing law is clearly unjust, or its observance
extremely harmful. Wherefore the jurist says … that "in establishing new laws, there
should be evidence of the benefit to be derived, before departing from a law which has
long been considered just."

Note 15: I-II q. 95 a. 3c

“Discipline should be adapted to each one according to his ability, taking also into
account the ability of nature (for the same burdens should be not laid on children as
adults); and should be according to human customs; since man cannot live alone in
society, paying no heed to others.”

Note 17: I-II q. 93 a. 5c and ad 1

“[Man] can impose laws on rational beings subject to him, in so far as by his command
or pronouncement of any kind, he imprints on their minds a rule which is a principle of
action…. Now just as man, by such pronouncement, impresses a kind of inward
principle of action on the man that is subject to him, so God imprints on the whole of
nature the principles of its proper actions.”
“The impression of an inward active principle is to natural things, what the
promulgation of law is to men: because law, by being promulgated, imprints on man a
directive principle of human actions, as stated above.”

Note 18: I-II q. 107 a. 1c

“E very law ordains human conduct to some end. Now things ordained to an end may be
divided in two ways, considered from the point of view of the end. First, through being
ordained to different ends: and this difference will be specific, especially if such ends are
proximate. Secondly, by reason of being closely or remotely connected with the end.
Thus it is clear that movements differ in species through being directed to different
terms: while according as one part of a movement is nearer to the term than another
part, the difference of perfect and imperfect movement is assessed.

“Accordingly then two laws may be distinguished from one another in two ways. First,
through being altogether diverse, from the fact that they are ordained to diverse ends:
thus a state-law ordained to democratic government, would differ specifically from a law
ordained to government by the aristocracy. Secondly, two laws may be distinguished
from one another, through one of them being more closely connected with the end, and
the other more remotely: thus in one and the same state there is one law enjoined on
men of mature age, who can forthwith accomplish that which pertains to the common
good; and another law regulating the education of children who need to be taught how
they are to achieve manly deeds later on.”

____: q. 98 a. 6c

“[There are] two things in respect of which every law is imposed on two kinds of men.
Because it is imposed on some men who are hard-hearted and proud, whom the law
restrains and tames: and it is imposed on good men, who, through being instructed by
the law, are helped to fulfill what they desire to do.”

Note 19: I-II q. 96 a. 6

“Whether he who is under a law may act beside the letter of the law?

“Objection 1: It seems that he who is subject to a law may not act beside the letter of the
law. For Augustine says (De Vera Relig. 31): "Although men judge about temporal laws
when they make them, yet when once they are made they must pass judgment not on
them, but according to them." But if anyone disregard the letter of the law, saying that
he observes the intention of the lawgiver, he seems to pass judgment on the law.
Therefore it is not right for one who is under the law to disregard the letter of the law, in
order to observe the intention of the lawgiver.
“Objection 2: Further, he alone is competent to interpret the law who can make the law.
But those who are subject to the law cannot make the law. Therefore they have no right
to interpret the intention of the lawgiver, but should always act according to the letter of
the law.

“Objection 3: Further, every wise man knows how to explain his intention by words. But
those who framed the laws should be reckoned wise: for Wisdom says (Prov. 8:15): "By
Me kings reign, and lawgivers decree just things." Therefore we should not judge of the
intention of the lawgiver otherwise than by the words of the law.

“On the contrary, Hilary says (De Trin. iv): "The meaning of what is said is according to
the motive for saying it: because things are not subject to speech, but speech to things."
Therefore we should take account of the motive of the lawgiver, rather than of his very
words.

“I answer that, As stated above (Article [4]), every law is directed to the common weal of
men, and derives the force and nature of law accordingly. Hence the jurist says
[*Pandect. Justin. lib. i, ff., tit. 3, De Leg. et Senat.]: "By no reason of law, or favor of
equity, is it allowable for us to interpret harshly, and render burdensome, those useful
measures which have been enacted for the welfare of man." Now it happens often that
the observance of some point of law conduces to the common weal in the majority of
instances, and yet, in some cases, is very hurtful. Since then the lawgiver cannot have in
view every single case, he shapes the law according to what happens most frequently, by
directing his attention to the common good. Wherefore if a case arise wherein the
observance of that law would be hurtful to the general welfare, it should not be
observed. For instance, suppose that in a besieged city it be an established law that the
gates of the city are to be kept closed, this is good for public welfare as a general rule:
but, it were to happen that the enemy are in pursuit of certain citizens, who are
defenders of the city, it would be a great loss to the city, if the gates were not opened to
them: and so in that case the gates ought to be opened, contrary to the letter of the law,
in order to maintain the common weal, which the lawgiver had in view.

Nevertheless it must be noted, that if the observance of the law according to the letter
does not involve any sudden risk needing instant remedy, it is not competent for
everyone to expound what is useful and what is not useful to the state: those alone can
do this who are in authority, and who, on account of such like cases, have the power to
dispense from the laws. If, however, the peril be so sudden as not to allow of the delay
involved by referring the matter to authority, the mere necessity brings with it a
dispensation, since necessity knows no law.
“Reply to Objection 1: He who in a case of necessity acts beside the letter of the law, does
not judge the law; but of a particular case in which he sees that the letter of the law is
not to be observed.

“Reply to Objection 2: He who follows the intention of the lawgiver, does not interpret
the law simply; but in a case in which it is evident, by reason of the manifest harm, that
the lawgiver intended otherwise. For if it be a matter of doubt, he must either act
according to the letter of the law, or consult those in power.

“Reply to Objection 3: No man is so wise as to be able to take account of every single