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Monday, April 15, 2013

What is Aquinas’ theory of law?


Thomas Aquinas (1225–74) was concerned with systematizing knowledge, on the basis of Catholic doctrine, so that the cosmos might be understood as a vast unit in which everything had a place and a meaning. Within this system of knowledge, God’s plans for mankind occupied a special place, and the law was to be comprehended as a part of those plans. Aquinas propounded a theory of law based on his conception of ‘reason’; this resulted in a fourfold division of law in which so called ‘natural law’ is of much significance. The answer given below is based on the following skeleton plan:

Introduction – background of Aquinas – influence of
Aristotelian thought – fourfold division of law – problem
of morality – violation of the natural law and its
consequences – conclusion, stressing the work of Aquinas
as a synthesiser of philosophy and religious thought in his
interpretation of law.

St Thomas Aquinas occupies an important place in the history of the development of natural law doctrine. He had studied as a Dominican monk under Albertus Magnus, and, in later years, produced works of lasting significance in which he effected a synthesis of the logic of Aristotle, the religious thought of the early Christian Fathers, and some of the patterns of classical Roman law. In his celebrated Summa Theologica (c 1266), he set out a fully systematized approach to law which, even today, dominates the thinking of many Catholic jurists, as evidenced by the growing Noe-Scholastic school of jurisprudence. Law is to be understood as part of God’s plan for mankind – this is the belief which is central to the concepts mentioned below.

It is important to remember the context within which Aquinas worked. The authority of the Catholic Church was expanding, and those whose task it was to explain doctrine were guided by a strict pattern of thought. Interpretation of the Scriptures had produced two principles which were of direct relation to attempts at explaining the nature of law. First, the principle of unity (based on ‘one God, one Church’) was reflected in the wish for ‘one Church believing in one law’. Secondly, the principle of supremacy of law, which was seen as an aspect of the unity of the world, taught that all persons, including rulers, were under the law’s dominion. Aquinas’ general approach to                 law was fashioned with these principles in mind.

At this time, a study of the works of Aristotle was not always welcomed by the dominant church hierarchy, which viewed his ‘scientific rationalism’ as a potential threat to church dogma. Aquinas did not share this attitude. He was deeply impressed by Aristotle’s emphasis on reason and the primacy of intelligence. He made a deep study of Aristotle’s works, lectured publicly on their significance, and was affected profoundly by their elucidation of the part which could be played by reason in the understanding of phenomena such as law. In the Summa Theological, Aquinas seeks to establish the framework of a systematized ‘science of theology’. He employs the highly formalized style of argument which was common in his day (and which was to be found in the procedures of the civil courts in those parts of Europe where the inquisitorial style of trial was common). Questions are posed, sub-questions emerge and are answered, and further argument leads to attempted refutation until an outline of proof and a final enunciation of an answer to the original question appear. The exposition of law associated with Aquinas is derived from his answers to Questions 90–97 in the Summa. Law is perceived always as God’s instrument for assisting man in the lifelong process leading to the perfection of his nature.

Aquinas begins his examination and interpretation of law by considering ‘morality’. The very basis of moral obligation is to be discovered within man’s nature. Built into his nature is a group of God-given ‘inclinations’. They include self-preservation, propagation of the species and (reflecting man’s rationality) an inclination towards a search for truth. Man is guided by a simple and basic moral truth – to do well and to avoid evil. Because man is rational, he is under a natural obligation to protect himself and to live peacefully within society. A peaceful, ordered society demands human laws, fashioned for the direction of social behavior. These human laws will arise from man’s rational capacity to discern correct patterns of ‘good conduct’. The rules underlying human laws will derive from a moral system which ought to be taken into account by all mankind – a sort of ‘natural law’.

Law must be thought of, according to Aquinas, as linked essentially with reason. A law may be considered as a ‘rule’ and also as ‘a measure’ of the nature of human activities. He reminds us that the word lex is derived from ligate (to bind) and that law ‘binds us’ to act in particular ways. The rules and measures of human acts are to be thought of in terms of law and also in terms
of our reason. Reason directs us to the fulfillment of ‘our ends’ (an Aristotelian concept). Man’s laws should go hand in hand with reason. Indeed, man’s laws may be thought of as ‘ordinances of reason for the common good, made by those who have care of the community, and are promulgated’. The natural law is ‘promulgated’ by the very fact that God has instilled it into man’s mind so that it can be known ‘naturally’. The natural law is the product of God’s wisdom. We can better comprehend that wisdom by studying human nature and the natural law. Theology and philosophy together will help in this quest for comprehension of the truth. Aquinas is suggesting that a synthetic approach to a study of the law, in which Christian dogma and Aristotelian philosophy will assist, will produce a clear understanding of the nature and power of God’s law.

A fourfold division of law is put forward by Aquinas. The first type of law is lex eterna – ‘eternal law’; all laws, in so far as they participate in ‘right reason’, are derived from the eternal law. This is the Divine Intellect and Will of God directing all things. God’s rational guidance is not subject to constraints of time – it is eternal. Not to know eternal law – God’s plan for his creatures – is to be without direction, so that one’s true ends can never be achieved; but awareness of the eternal law is imprinted on us. God alone knows the eternal law in its totality, but those few ‘blessed persons’ who have been able to know God in His essence may perceive its truth.

‘Divine law’ – lex divina – is the eternal law governing man and may be known by him through direct revelation, as in the Scriptures, for example, The Ten Commandments. Man requires a type of law that can direct him to his end, namely, eternal happiness; such law contains no errors, and forbids all sins, allowing no evil to go unpunished. Aristotle had argued that man had a natural purpose and an end, so that natural law, known through human reason, could provide an adequate guide. Aquinas distances himself from Aristotle at this point. Because man’s eternal happiness is related to God’s plans, man needs direction from God’s law, in addition to human law and natural law. Natural law comes from man’s rational knowledge of ‘the good’, but that knowledge is, by its nature, limited. Divine law comes, through revelation, directly from God. Revelation is the guide for man’s reason, allowing his highest nature to be perfected by Divine grace. Here is an interesting example of Aquinas giving a ‘Christian gloss’ to the views of the ‘pagan Greeks’ and achieving an imaginative synthesis.

The third type of law is ‘natural law’ – lex naturalis, which is man’s participation in the eternal cosmic law, as it is known through reason. Because of man’s possession of God-given reason, he may enjoy a share in Divine reason itself and may derive from it ‘a natural inclination to such actions and ends as are fitting’, such as the search for good and the avoidance of evil. Where man exercises his reason correctly he will understand the fundamental principles of God’s plan. Basic principles for human guidance will emerge, such as that ‘good’ (‘that which all things seek after’) is to be done and evil is to be shunned. But because of bad customs and habits, some humans will ignore the natural laws; the result is a division of their energies from those tasks of a life-fulfilling kind.

The fourth type of law is ‘human law’ – lex humana, involving the particular application of the natural law and resulting in legislation by governments. Just as men draw conclusions in the various sciences from naturally known, but indemonstrable, principles, so, declares Aquinas, human beings must draw from the precepts of the natural law answers to problems which emerge when they live together in society. Where human law conforms to the law of reason, it conforms to the law of God and advances human development.

A significant aspect of Aquinas’ concept of human law, which has overtones of relevance for the present day, is the relationship he perceives between human law and its moral dimensions. He repudiates the thesis that a law is a law merely because it has been decreed by a sovereign. He suggests that a rule takes on the character of ‘a law’ only where it has appropriate moral dimensions. Certain questions must be asked: does the rule exist in conformity to the precepts of the natural law, and does it suggest agreement with the basis of the moral law? ‘That which is not just seems no law at all’, he declares. Where a human law diverges from the law of nature, it is no longer a law, but a mere perversion of the law. Such a law cannot bind in conscience. This is not to say, however, that it must not, therefore, be obeyed; obedience to it might be essential so as to prevent an even greater evil, such as the spread of lawlessness, scandal or great harm.

Aquinas takes a further step forward. Laws which are opposed to the Divine plan, such as the laws of tyrants inducing to ‘idolatry’, must not be observed: our duty is to obey God rather than man. A law which is a violation of the natural law should not, in general, be obeyed.

There are many jurists, inside and outside the Catholic Church, who see Aquinas as a divinely-inspired genius, able to synthesis a variety of approaches and capable of bringing system into an unwieldy group of theories. In moving beyond his predecessors and contemporaries, he was able to produce a unified set of principles in relation to the law. Natural law is envisaged as a source of general principles rather than detailed jurisprudential rules. Above all, perhaps, is the elevation of human reason in the service of comprehension of the law. God’s law is the ‘reason of Divine wisdom’; Christianity is reason; human institutions, including those related to law, required the exercise of reason if they are to be built in enduring fashion. The Thomist view of law is, fundamentally, that of Cicero, writing in De Republica (52 BC): ‘... true law is right reason in agreement with Nature ... God is the author of this law, its promulgator and its enforcing judge.’ In essence: ‘The proper effect of the law is to make men good ... it should lead men to their proper virtue. 

The theory of law expounded by Aquinas is discussed in Lloyd, Chapter 3; Harris, Chapter 2; Riddall, Chapter 5; and Davies and Hold croft, Chapter 6. A classic account of the work of Aquinas is given by D’Arcy in Thomas Aquinas. Gilson’s The Philosophy of Aquinas gives the setting of Aquinas’ legal thought. Bloch relates the theory of Aquinas to contemporary problems in ‘The relative natural law of Aquinas’ in his book, Natural Law and Human Dignity. Lisska’s Aquinas’ Theory of Natural Law contains an account of the principles of the Summa.