Treatise on Law, The: (Summa Theologiae, I-II; qq. 90-97) (Notre Dame Studies in Law and Contemporary Issues) 0268018804, 9780268018818, 0268018812, 9780268018801

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.J. Henle, S.J., Translator

THE TREATISE ON LAW

R. J. HENLE, S.J. (1909–2000) was professor emeritus of philosophy and jurisprudence at St. Louis University. Father Henle published hundreds of books, articles, and reviews. Noteworthy among them were his Latin Series, Marquette Aquinas Lecture, Method in Metaphysics, St. Thomas and Platonism, and Theory of Knowledge.

Aquinas

In this translation of Saint Thomas Aquinas’s The Treatise on Law, R. J. Henle, S.J., a well-known authority on philosophy and jurisprudence, fluently and accurately presents the Latin and English translation of this important work. Henle provides the necessary background for an informed reading of the Treatise, as well as the only in-depth commentary available in English on this text. The first section of the book contains an introduction to St. Thomas’s life, work, writings, and jurisprudence. Henle discusses the structure of St. Thomas’s magnum opus, Summa Theologiae, from which The Treatise on Law is excerpted. A brief section is included on Scholastic philosophy and also on St. Thomas’s approach to the study of law. Henle then examines Thomas’s definition of a law and the general doctrinal background for the Treatise. Finally Henle explores St. Thomas’s sources, including his use of auctoritates, or authoritative quotations drawn primarily from the Bible, Aristotle, St. Augustine, and St. Isidore of Seville. The second part of the book contains the Latin text of the Treatise presented unit by unit, each followed by the English translation and, when appropriate, by a comment. The Treatise on Law will be of interest to law students, lawyers, judges, and legal scholars. It will also appeal to those interested in St. Thomas’s legal philosophy, such as political scientists, theoretical sociologists, and cultural historians. For philosophers, especially beginners in medieval philosophy, it serves as a good introduction to the thought of St. Thomas.

R. J. Henle, S.J., Translator

THE TREATISE ON LAW St. Thomas Aquinas Summa Theologiae, I-II; qq. 90-97

University of Notre Dame Press undpress.nd.edu Notre Dame, IN 46556 undpress.nd.edu

Cover design: Jennifer Bernal

Aquinas TOL cover2.indd 1

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The Treatise

on

Law

Notre Dame Studies zn Law and Contemporary Issues Volume Four

The University of Notre Dame Press gratefully ack n ow l edges the generous support of The Honorable Ja mes ]. Clynes, Jr., of Ithaca, New York, in the publication of titles in this series.

Saint Thomas Aquinas The Treatise on Law [BEING SUMMA THEOLOGIAE, 1-11, QQ. 90 THROUGH 97]

Edited with Introduction , L atin Text, Translation , and Commentary by

R.

J. HENLE, S.J.

UNIVERSITY OF NOTRE DAME PRESS NOTRE DAME

University of Notre Dame Press Notre Dame, Indiana 46556 www.undpress.nd.edu All Rights Reserved Copyright © 1993 by University of Notre Dame Published in the United States of America Reprinted in 1994, 1998, 2002, 2012 Library of Congress Cataloging in Publication Data Thomas, Aquinas, Saint, 1225?–1274. [Summa theologica. Prima secundae. Quaestio 90-97. English & Latin] Saint Thomas Aquinas, the Treatise on Law : [being Summa theologiae, I-II; QQ. 90 through 97] / edited with introduction, latin text, translation, and commentary by R.J. Henle. p. cm. — (Notre Dame studies in law and contemporary issues ; v. 4) English and Latin. ISBN 0-268-01880-4 (cl) ISBN13: 978-0-268-01881-8 (pbk.) ISBN10: 0-268-01881-2 (pbk.) 1. Law—Philosophy. 2. Christianity and law. 3. Natural law. I. Henle, R.J. (Robert John), 1909– . II. Title. III. Title: Treatise on Law. IV. Series. K230.T54S8513 1993 340’.1—dc20 92-56861 CIP ∞ This book is printed on acid-free paper.

CONTENTS NOTES ON STYLE PREFACE INTRODUCTION

Xtt

xiii xv

PART A: BACKGROUND F OR ST. THOMAS'S TREATISE ON LAW

CHAPTER Section

I:

INTRODUCTION TO ST. THOMAS

St. Thomas Aq u inas

1:

Para

Page

3

a. Hi s Li fe

00 1

b. St. Th oma s's Work

005

4

c. Hi s W r i t i ngs

010

5

012

5

Section

St. Thomas and Jurisprudence

2:

a. Te a ch i ng Ma teri a l s i n Ju rispru dence

014

6

b. In Sch o l a rship

016

6

c. In C ou rt Deci s i o n s

017

7

024

8

039

11

039

11

b.

T he Structure of the Summa

044

12

c.

T h e Sty l e o f Reference

049

13

050

13

Section

3: On

Section

4:

Reading St. Thomas

The Structure of

the Summa

Theologiae a . T h e Style of the Summa

d. The Compo sition of the Summa

Section 5: Scholasticism a.

Introdu ction

1.

Method o l ogy a.

The Method of D i stinguishing

2 . The U se of Auctoritates 3.

The D i sput ation Method

Section 6: S t.

of

Thomas's Approach Law v

to

the

053

14

053

14

0 58

15

059

15

064

16

065

16

067

17

Study

CONTENTS

vi CHAPTER II: THE NATURE OF DEFINITION AND THE ART OF DEFINING

074

20

Section 1: Introduction

074

20

Section 2: The Nature of Definition

082

21

Section 3: Types of Definition a. The Logical Mode of Defining

085 086

22

b. The Descriptive Mode of Defining

095

23

c. The Explanatory Mode of Defining

22

097

24

d. The Constructural Mode of Def i n i ng

098

24

e. Definition by Instances f. Par tia l Definitions

101

25

103

25

26

Terms ii. Un i voca l Terms iii. An a l ogou s Terms

108 109 1 09 117 122

Section 5: The Central Case

139

31

147

33

Section 4: The a.

Ambiguity of Words

E qu ivocal , Univocal and Analogous Terms i . Equ i voca l

Section 6: A

Further Note

of

on

Section 7: On Analyzing and Evaluating

of

b. What Is the Au t h or Defining? c.

What Meth o d o l ogy Does the Author Use?

d.

What Are the Sub stantive Po sitions and Principles of the Auth or?

CHAPTER DOCTRINAL

28

a

"Law"

a. Introduction

GENERAL

27 28

the Ambiguity

Words

Definition

27

152

34

152

34

154

34

156

35

163

36

170

38

170

38

172

38

III: BACKGROUND

FOR THE TREATISE

Section 1: Introduction Pr eli m inary Cl arific ation of Key

Terms

CONTENTS

Vtt

i . Positive Law i i . Positivism iii . Natural L aw iv. Positive Morality v. Moral Rel ativism

Section 2: The Doctrine of the Four Causes a . Introduction b. The Four Causes 1. The Material Cause 2 . The E fficient Cause 3. The Final Cause 4. The Formal C ause

176

38 39 39 39

177

40

178

40 40 41 41 42 42 43

172 173 174

178 183 184 191

194 199

Section 3: St. Thomas's World View

213

a . Introduction b. The Theological Outline c. The Metap h y s i c a l Outline

215

45 45 46

221

47

232

48

266

54 54 54

Section 4: "Nature" and "Essence" Section 5:

Human Nature

213

a . Introduction b. Thomism vs. M ateri alism c . Intell i gence , Wi l l and Free Choice d. The Soul e . Thom i stic Doctrine and Religion f. Man's Orientation to the Good

269 271 2 76 277

Section 6: The Nature of Human Acts

278

57

Section 7: "Rule and Measure"

284

59

Section 8: Habit

291 291

60 60

292

60

298 298 301 304

62

,

a . Introducti on b . An Important Mea n i n g of "Habit" i n Thomi stic Ph i l o sophy

266 267

55 55

56 56

Section 9: The Speculative Intellect, the Practical Intellect, and Right Reason

a . Introduction b. The Specul a tive Intellect c . The Practical Intellect

62 62 63

viii

CONTENTS

310

64

313

65

322 322 325 329 332 336 339 344 349 349 350 356 358 359 360 361 362 375

66 66 67 67 68 69 69 70 70 70 70 72 72 72 73 73 73 75

Section 12: Happiness: The Last End of Man

379

76

Section 13: The Common Good

393

79

405 a . The Questions about Obligation 406 408 b . The Thomistic View of Obligation c. Moral Obligation and Positive ( Human ) Law 413

81 82 82 83

d. Right Reason Section 10: Voluntarism vs. Practical Reasonableness Section 11: The V irtues

a. b. c. d. e.

Introduction The Virtues in General The Theological Virtues The Intellectual Virtues The Moral Virtues 1. Temperance 2. Fortitude 3. Justice i . Introduction ii. Justice in General iii. Commutative Justice iv. Distributive Justice v. Contributive Justice v i . Social Justice vii . Right Relationship 4. Prudence f. Final Note on the Virtues

Section 14: Obligation

Section 15: A Synopsis of St. Thomas's Doctrine of Natural Law

a. Introduction i. Prenote b. The Principles and Precepts of the Natural Law ( The Formal Cause ) c. The Common Good of the Natural Law ( The Final Cause ) d. The M aterial Cause of Natural Law

421 421 421

85

432

86

440 444

87 88

85 85

CONTENTS

ix

e . The E fficient Cause of Natural Law f. Promulgation of the Natural Law g . The E xemplar Cause of Natural Law h . N atural L aw and Positive L aw i . Natural Law and N atural Rights

446 448 458 464 469

89 89 91 92 93

CHAPTER IV: ST. THOMAS'S SOURCES AND HIS USE OF THEM

474

94

474 474

94 94

484 492

96 97

499

99

505 5 16

101 102

518 5 24 524 532 537 540 541 541 543 545 547 549 550 551 553 555 5 56

103 103 103 106 107 107 108 108 108 108 109 109 109 109 110 110 110

Section 1: The Use of Auctoritates a . Introduction b . The Function of Auctoritates in Argumentation c . A Non-Evidential Use of Auctoritates d . St. Thomas's Technique in Dealing with Auctoritates Presented in the O bjections e . The U se of Auctoritates in the On the Contrary f. A Concluding Comment

Section 2: The Auctores Quoted in the Treatise A . The M ajor Sources Al : The Bible A2: Aristotle A3 : St. Augustine , Bishop of Hippo A4: St. Isidore of Seville B . The Secondary Sources Bl : St. Basil the Great Bl : Anicius Manlius Severinus Boethius B3: Julius Caesar B4: Marcus Tullius Cicero BS : Damascene B6 : The Decretals B7: The Glosses B 8 : Gratian B 9 : St. Hilary of Poitiers BlO : The "Jurist"

CONTENTS

x

Bll: B12:

Peter Pope

Lombard Urban II

563 564

1

11

112

PART B: ST. THOMAS AQUINAS: THE TREATISE ON LAW [BEING SUMMA THEOLOGIAE, I-II, QQ. 90 THROUGH 97] Latin text, English Translation, and Commentary 1 15

Introduction De

Lege [Concerning

1

Law]

QUESTION 90: DE [CONCERNING THE

Article 1: Utrum lex sit

aliquid

118

rationis?

to

Article 2: Utrum lex ordinetur semper ad bonum Whether law is always ordered to the Article 3: Utrum ratio cujuslibet sit factiva

Article

4:

any

person's

reason

promulgatio sit de promulgation essential

Utrum Is

is

commune?

common

legis? able to

ratione

reason ?

Utrum

135

make

law?

legis?

Article 2:

Whether there is

a

aliqua

natural

1

48

150

sit al i qua lex acterna?

Utrum sit in nobis

140

law?

to

Whether there is an eternal

127

good?

QUESTION 91: DE LEGUM DIVERSITATE [THE VARIETY OF LAWS] Article 1:

18

ESSENCE OF LAW]

Whether law is something pertaining

Whether

1

ESSENTIA LEGIS

17

law?

lex

naturalis?

law

in

us?

15 5

CONTENTS

Article 3: Utrum sit aliqua lex humana?

XI

160

Whether there is some human law?

Article

4:

Utrum fuerit necessarium esse aliquam legem divinam? 166 Whether it was necessary that there be a divine law?

A rticle

5:

Utrum lex divina sit una tantum? Whether there is only one divine law?

Article 6: Utrum sit a liqua lex fomitis?

1 72

178

Whether there is a law in the fomes peccati?

QUESTION 92: DE EFFECTIBUS LEGIS [CONCERNING THE EFFECTS OF LAW]

185

Article

1:

Utrum effectus legis sit facere homines bonos? Whether the effect of law is to make men good?

185

Article

2:

Utrum legis actus convenienter assignentur? Whether the acts of law are properly assigned?

192

QUESTION 93: DE LEGE AETERNA [CONCERNING THE ETERNAL LAW]

199

Article

1:

Utrum lex aeterna sit summa ratio in Deo existens? Is the eternal law the supreme exemplar in God?

199

Article

2:

Utrum lex aeterna sit omnibus nota? Whether the eternal law is known to everyone?

2 06

Article 3: Utrum omnis lex a lege aeterna derivetur?

210

Whether every law is derived from the eternal law?

A rticle

4:

Utrum necessaria et aeterna subjiciantur legi aeternae? 2 15 Whether necessary and eternal things are subject to the eternal law?

Article

5:

Utrum naturalia contingentia subsint legi aeternae? Whether contingent things in nature are subject t o the eternal law?

222

CONTENTS

Xtt

Article 6: Utrum omnes res humanae subjiciantur legi aeternae?

227

Whether all human things are subject to the divine law?

QUES TION 94: DE LEGE NATURAL! [CONCERNING NATURAL LAW]

Article

1:

235

235

Utrum lex naturalis sit habitus ? Whether the natural law is a habit?

Article 2: Utrum lex naturalis contineat plura praecepta vel unum tantum ? Whether the natural law contains many precepts or only one ? Article 3: Utrum omnes actu s virtutum sint d e lege naturae?

241

251

Whether all the acts of the virtues belong to the natura l law? Article 4: Utrum lex naturalis sit una apud omnes ?

256

Whether the natural law is the same for all people ? 264

Article 5: Utrum lex naturae mutari possit?

Whether the law of nature can be changed ? Article 6: Utrum lex naturalis possit a corde hominis aboleri?

270

Wheth er the natural law can be removed from the heart of man? QUESTIONS 95, 96, AND 97: D E LEGE HUMANA 275 [CONCERNING HUMAN

LAW]

QUESTION 95: DE LEGE HUMANA

276

SECUNDUM SE [CONCERNING HUMAN

LAW

IN ITSELF]

Article 1: Utrum fuerit utile aliquas leges poni ab hominibus? Whether it was useful for some laws to be made by men?

276

CONTENTS

Xlll

Article 2: Utrum omnis lex humanitus posita a lege naturali derivetur ? Whether every law made by man is derived from the natural law?

283

Article 3: Utrum Isidorus convenienter qualitatem legis positivae describat? 289 Whether Isidore appropriately described the quality of positive law ?

Article 4: Utrum Isidorus convenienter ponat divisionem humanarum legum ? Whether Isidore's division of human laws is appropriate ?

296

QUESTION 96: DE POTES TATE LEGIS HUMANAE 305 [OF THE POWER OF HUMAN LAW]

Article 1: Utrum lex humana debeat poni in communi magis quam in particulari ? 305 Whether human law should be framed in general or for individual cases ?

Article 2: Utrum ad legem humanam pertineat omnia vitia cohibere ? Whether it belongs to human law to repress all vices ?

311

Article 3: Utrum lex humana praecipiat actus omnium virtutum ? 316 Whether human law commands the acts of all the virtues ?

Article 4: Utrum lex humana imponat homini necessitatem in fora conscientiae ? Whether human law binds man in conscience ?

Article 5: Utrum omnes subj iciantur legi ? Whether everyone is subj ect to the law?

321

329

CONTENTS

xiv

Article 6: Utrum ei qui subditur legi liceat praeter verba legis

336 agere ? Whether he who is subject to a law may act against the letter of the law?

QUESTION 97: DE MUTATIONE LEGUM [CONCERNING CHANGE OF LAWS] Article 1: Utrum lex humana debeat mutari aliquo modo ?

342

343

Whether human law should be changed in any way ? Article 2: Utrum lex humana semper sit mutanda quando occurrit

aliquid melius ? Whether human law should always be changed when something better presents itself? Article 3: Utrum consuetudo possit o btinere vim legis?

348

353

Whether custom can obtain the force of l aw ? Article 4: Utrum rectores multitudinis possint in legibus humanis

dispensare? 360 Whether the rulers of the community can dispense from the human l aw ?

ABOUT THE TRANSLATOR

367

NOTES ON STYLE

1. Every paragraph is numbered throughout Part A of the book so that every paragraph has its own number. Internal references will always be to the p aragraph numbers , unless stated otherwise. The style of reference will be [149] or [150-16 5 ] . 2 . In Part B the text is divided according to St. Thomas's meth­ odology. Therefore , internal references to the text of the Treatise will refer to these divisions , thus, q. 91, a. 2, c .

3. I have tried t o avoid footnotes as much as possible. If anything is important , I put it in the text; if it's unimportant for my purpose I omit it. 4. When I refer to other authors I will give the author's name, the title and the p age references in the text. 5. For brevity's sake , I refer to the Summa Theologiae simply by its subdivision s , thus, 1-11 q. 90 or 1-11, q. 96 , a. 2 , etc. 6. Whenever I use a Latin expression , I will translate in brackets , thu s , Logica Vetus [The Old Logic] . But , for convenience and clarity, some Latin terms will be used (after first introduction ) as part of the regular terminology of the book.

xv

PREFACE

When , some years ago , I began to study and teach j urisprudence , I was surprised to find how much attention modern jurisprudence paid to the legal philosophy of St. Thomas Aquinas. However, I became convinced that these j urisprudents , because of a lack of ap­ propriate historical and doctrinal background , did not really under­ stand St. Thomas . This conviction was confirmed during many years o f explaining St. Thomas to law students. I gradually devised ways of supplying their lack of background by a selective briefing of the most necessary points in that background . More recently it occurred to me that my presentation of back­ ground and a corresponding commentary might be of help to all students and scholars in j urisprudence . This book is my effort to carry out that project . If I achieve my purpose , I will have produced a unique book . I know of no similar book in English philosophical or jurisprudential literature . Although my main purpose has been to enable jurists to read St. Thomas more easily and with better understanding , it seems to me that a book like this would be a useful text for a course introducing Graduate Students in philosophy to the text of St. Thomas . For this reason I have included the Latin text and some other matters that might be of secondary interest to j urists . A surgeon was once asked how long it took him to perform a certain operation . He replied , "All my life." In a similar sense I have been composing this book all my life. And so I am indebted to many wonderful teachers, brilliant scholars , stimulating colleagues , and students . I am grateful . And there are some whose help has been so direct and so im­ portant that I must acknowledge them individually. For financial assistance I most gratefully thank Greg and Jane McCarthy, their daughter Ann , and the Loyola Foundation , the Mis­ souri Province of the Society of Jesus , the Jesuit Community at Saint Louis University, and Saint Louis University.

xvi

PREFACE

xvii

And to the staff of the University of Notre Dame Pres s , especially to its director, James Langford , and to editors E . Anne Rice and Jeannette Morgenroth , for their encouragement and cooperation my most appreciative thanks . There are two cheri shed friends whose help exceeds all possible thanks . Patricia Lepore , my research assistant and secretary, patiently deciphered my kinesthetic handwriting, corrected my grammar and spelling, typed and retyped various versions , and gave me the benefit of her critical judgment and literary sensitivity. Father Linus Thro , S .J . , went over the entire manuscript with the meticulous eye of a skilled editor and a philosophical schol ar. Without the help and en­ couragement of these two friends this book would not exi st . Finally, to God , whose E ternal Law contains the exemplar even of this book and whose Providence has ever guided me , thanks and praise . Sit Deus benedictus in aeternum. R . J. Henle , S .J . Professor E meritu s of Philosophy and Jurisprudence St . Louis University 1991

INTRODUCTION

The primary purpose of this book is to provide the b ackground and the explanations necessary for an intelligent and understanding reading of St. Thomas's Treatise on Law . It is primarily intended for law students, lawyers, judges and legal scholars. For this reason , I fre­ quently relate points of doctrine in St. Thomas to modern jurispruden­ tial discussions . However, the book would assist anyone interested in St. Thomas's legal philosophy to read him with understanding. It would thus be of some interest to political scientists , theoretical soci­ ologists, cultural historians, etc. For philosophers , especially begin­ ners in medieval philosophy, it could serve , at least in a supplementary way, as an introduction to the text of St. Thomas. The book is not an introduction to the whole of St. Thomas's philosophy or theology. That is beyond the scope of this book. It would require not a book but a series of books. Besides, in order to understand the Treatise rea sonably well, one does not have to know the entire thought of St. Thomas . Based on my own experience of teaching and studying jurisprudence , I have selected those points of doctrine , of methodology and of general background that I have found to be both useful and necessary to enable legally trained persons to read the Treatise. The book is not intended simply to be read. It presents materials for study and thought. One who wants to profit most from this book will find it necessary not only to study it carefully but also to move back and forth so as to have each section illumine the others . The book i s organized as follows. After this introduction , Part A, the first major section of the book, presents selected historical, doctrinal and methodological explanations that are necessary for the understanding of the Treatise. In Part B, the Latin text of the Treatise is presented unit by unit, each being followed immediately by an English translation and , when appropriate, by a comment . The translation is my own . I have tried to maintain the technical accuracy of St. Thomas's formal style even at the expense of stylistic nicety in the E nglish .

xviii

INTRODUCTION

XIX

Again , my primary purpose is to help students and scholars to understand St. Thomas aright. Then , if they agree with St. Thomas, they will be agreeing with his genuine thought and , if they disagree , they will not be making criticisms that are pointless. I have tried to maintain a level of sound scholarship while keeping the b aggage of scholarship at a minimum. There are few footnotes. If anything is relevant , I have inserted it in the text itself. There is no index . Instead , I offer a detailed table of contents which will , to some extent at least , serve the same purpose of an index without the annoyance of multiple minute references.

PART A

Background for St. Thomas's Treatise on Law

C HAPT E R I I N T RODU C T ION T O ST. THOMAS

SE C TION 1: ST. THOMA S AQUINAS

A. HIS LIFE [001 ] St. Thomas ( 1 224-1 274 ) was born in the castle of Roccasecca in the Kingdom of Sicily. His family was of the nobility and active in the political and military struggles of the age. One of his brothers became a soldier and was executed for plotting to kill Frederick I I . [002] S t . Thomas's p arents had plans fo r the future o f the family, and Thomas was very much in those plans. After his fifth year, his p arents presented him to the Abbey of Monte Casino as an oblate, to receive an elementary education and be trained in piety and the Benedictine way of life . They hoped that he would become Abbot of Monte Casino, a position of considerable power and in­ fluence . In those days a boy reached his majority at age 14, and thereafter was independent of his parents and could make his own decisions. At about that age Thomas withdrew from the Abbey and went to Naples to study in the Faculty of Arts at the University there . It was at Naples that he became acquainted with the Dominicans, officially called the Order of Friars Preachers. He admired their way of life , their poverty and simplicity, their zeal for study and for souls , and their avoidance o f ecclesiastical honors. There, too , he entered the Dominicans . His Superiors decided to send him to Paris. As he was traveling along a road north of Rome , his mother, who found out where he was, had him abducted forcibly by his brother ( perhaps brothers) and some soldiers. These latter brought him to Roccasecca where he was confined by his fa mily for about a year or more. During this time they did everything possible to persuade him to leave the Dominicans . His mother, Theodora , did not object to a religious vocation . She opposed his entering the Dominicans , since , because of the nature of the Order, he would hardly ever reach a position of prestige and power which was part of her plans. But nothing broke his determination , so , after a year or so he either escaped or was 3

4

INTRODUCTION TO ST . THOMAS

"let go ." He rejoined the Friars and went on to Paris. There he probably stayed three years , studying, not this time at the University but at the Dominican house there. [003] The rest of his life was filled with constant intellectu al and religious activity. In 1 274, on his way to attend the Council of Lyons , he fell ill and , after a brief illness , died. [004] Thomas wa s canonized on July 1 8 , 1323. On April 1 1 , 1 5 67, St. Thomas was proclaimed a Doctor of the Church by Pope Pius V. Both before and after this event St. Thomas received numerous commendations from Popes , Councils , Bishops, theolo­ gians , and scholars. B . ST. THOMAS'$ WORK

[005 ] About 45 5 the Roman Empire in the West collapsed and the barbarians from the E ast surged across the Rhine . They destroyed the Roman order and reduced Western Europe to p hy sica l and intellectual shambles. In the centuries that followed, the Church,

larg ely through the Bishop s , some outs tan di ng missionaries, and the universal spr ead of mona steries, slowly C hr ist iani zed and civilized the new masters of the West. This movement , br iefl y in flower under C har lemagn e , suffered a serious setback with the incursion of the marauding Norsemen who once again plundered, burned and de­ stroyed. But by the eleventh century, Western Europe was well on the way to a recovery of ancient culture and a creation of a new civilization and culture. [006]

By the thirteenth century, St. Thomas's century, Eu-

rope was in an intense ferment

of spiritual,

intellectual, political, and

commercial activity. It was the birth time of the great universities, the age of the cathedrals and palaces, of renewed commerce, urban growth, and the Guilds. Ancient culture was being recovered by an intense translation activity, the Moslem culture was entering Christian European science and philosophy. [007]

St. Thomas was an active participant in this surge

of intellectual life.

He was not a monk working quietly in a mountain

top monastery. He studied and lectured at the foremost centers, the universities, the courts of kings and popes. He was aware of the currents of change and was in the forefront of intellectual develop­ ments and controversies. "cutting edge."

As we would say today, he was at the

INTRODUCTION TO ST. THOMAS

5

[008] All the great Western traditions , Classical Greek and Roman , Jewish , Arabic , and early medieval , flowed into the revital­ ized West and became sources for St . Thomas . He could quote Mai­ monides ( 1 1 3 5- 1 204 ) ( the greatest of Jewish philosophers ) , criticize the Arabic scholar Averroes ( 1 1 26-1 1 9 8 ) , mine the Corpus Juris Civ­ ilis, explain the Scriptures and comment on Aristotle , line by line . [009] All this gave St. Thomas's work a richness , a universality, and a classical cosmopolitanism that explains his enduring influence throughout subsequent ages .

C. HIS W RI T INGS [010] St. Thomas died at age 49 or 5 0 , yet his literary output is simply astonishing. James Weisheipl (Friar Thomas d'Aquino, pp . 3 5 5-40 5 ) took fifty pages just to list and identify his writings . This list contains 1 0 1 items . [ 01 1 ] The breadth of his intellectual and religious interests can be gathered by scanning the classification used by Weisheipl ( but originated by E schmann and also used in The New Catholic E ncy­ clopedia ). Thus , T heological Syntheses Academic Disputations Expositions of Holy Scripture Expositions on Aristotle Other Expositions Polemical Writings Treatises on Special Subjects Expert Opinions Letters Liturgical Pieces and Sermons Works of Uncertain Authenticity

SECTION 2: ST. THOMAS AND JURISPRUDENCE

[012] When , some years ago , I began to work in j urisprudence , I was surprised to find how much attention was paid to St.

6

INTRODUCTION TO ST.

THOMAS

Thomas in modern jurisprudence . This is all the more surprising since St. Thomas was not a lawyer, a j udge , or a j urist. His Treatise on Law was not addressed to lawyers or j urists but to beginning students of theology. [013] Thu s , today, we find St. Thomas present in the textbooks prepared for the teaching of jurisprudence in American law school s , in the world of legal scholarship , and in j udicial decisions .

A . TEACHING MATERIALS IN JURISPRU DENCE [014] These materials range over a spectrum from books which are simply selected readings like Jerome Hall's Readings in Jurisprudence to books which contain a large amount of didactic text written by the authors themselves. In books of readings which span the entire history of jurisprudence , almost always selections of St. Thomas are given . There are , indeed , some books of readings which explicitly ignore ancient and medieval writers and begin with Hobbes or Locke or some other more recent author. In such books we do not find texts from St. Thomas though sometimes he is discussed by the authors quoted. There is one interesting exception . M . P. Golding, in his Nature of Law, states in his preface that he has limited himself to recent or contemporary authors but with one exception . This exception is St. Thomas Aquinas. He explains that , while St. Thomas has many distinguished followers today, he finds that none of them explains Natural Law better than St. Thomas himself. For this reason he gives , along with contemporary authors , an abridged account of the Treatise on Law (1-11, qq. 90-97). [015) In the didactic type of textbook in jurisprudence , St. Thomas is almost always discussed and , to some extent , quoted.

B . IN SCHOLARSHIP [016) St. Thomas has also been accepted by legal scholars as a serious authority in jurisprudence . His views may be approved or rejected , but , in any case , they are discussed. Major works like John Finnis' Natural Law and Natural R ights, strongly Thomistic in substance , have appeared and have received wide attention . Some

INTRODUCTION TO ST . THOMAS

7

learned journals like The American Journal of Jurisprudence (pub­ lished by the Natural Law Institute at Notre Dame University ) and Vera Lex ( published at Pace University ) regularly publish studies in St. Thomas.

C . IN COURT DECISIONS

[017] It was almost a natural result of St. Thomas's reappearance in legal discussion that he should be cited by j udges. None­ theless, I was surprised to find him quoted as a modem auctor [4744 8 3 ] . I illustrate j udicial use with a modem case (Louis v. Nelson, 344 F. Supp. 973 ( 1 9 82)). This case concerned a regulation of the U . S . Immigration and Naturalization Service . The j udge declared the regulation void because it was not properly promulgated. He based his decision on St. Thomas's article on promulgation ( I-II, q. 90, a. 4 ) , from which he quoted the entire argument. [018] The st udy of St. Thomas's jurisprudence is not merely an archeological or historical enterprise. [019] St. Thomas's most direct contribution to jurisprudence and the one most frequently cited by modem j urisprudents is his Treatise on Law which is , in fact , a se ction of the Summa Theo­ logiae ( I-II , qq. 9 0-97). Hi s treatment of j ust ice ( II-II, qq. 5 7 - 6 2 ) and in j u stice ( II-II, qq. 6 3 -7 9 ) , though less well k n own , i s very i m po rtant as are his commentaries on the Nicomachean Ethics and the Politics of Arist otle . There i s a ls o the op us cu lu m De Regim ine Principum (On the Rule of Princes). Many of his gener al philosop h i ca l doctrines are relevant to the enterprise of jurisprudence ( a s I hope to show in this study). [0 20] Almost from the moment of its first publication, St. Thomas's Treatise on Law became a classic point of departure for discussions of law among the Scholastic philosophers of the Univer­ sities of Europe until well into the seventeenth century. Thus, Suarez began his monumental De Legibus (Concerning Laws) with a lengthy and careful examination of St. Thomas's definition of law. [021 ] However, in the eighteenth century St. Thomas disappears from Anglo-American jurisprudence. There is no reference to him in Sir William Blackstone's Commentaries on the Common Law of England.

8

INTRODUCTION TO ST. THOMAS

[022] I suspect that the explanation of this neglect of St. Thomas may include the following:

1 . the increasing hostility of Protestant England to things Catholic; 2 . the contempt for Medieval culture resulting from the Ren­ aissance and the Reformation ; 3. The fact that before the 1 920s there was no English trans­ lation of the Summa Theologiae . [023] In the 1 920s the English Dominicans translated the Summa, thus providing an English version of the Treatise. Almost at once St. Thomas reappeared in jurisprudence and rather quickly recovered his place in jurisprudential discussions.

SECTION 3: ON READING ST. THOMAS

[024] For a variety of reasons , which I will discuss here , St. Thomas's writings are difficult for modern readers . [025] 1 ) S t . Thomas w a s primarily a theologian. H i s magistral work , the Summa Theologiae is a summary of theology intended for beginning students in that discipline . Therefore , if one wishes to develop a Thomistic philosophy of Natural Law ( or of anything else) he must extricate the philosophical principles from the theological doctrine with which they are intertwined. Such an undertaking is possible because St. Thomas's principal intellectual instrument was philosophy, a philosophy derived from but not identical with that of Aristotle . Moreover, he had a mature mastery of the philosophy with which he worked. [026] The Treatise on Law occurs within the Summa Theologiae. It is not addressed to jurists or lawyers but to students of theology. It has a theological purpose ; it is p art of St. Thomas's moral theology. In the course of presenting his moral doctrine , St. Thomas investigated all the intrinsic and extrinsic influences that play upon human decisions and guide human acts as such . Among the extrinsic

9

INTRODUCTION TO ST . THOMAS

influences he found the various types of laws . Because of his con­ trolling purposes he defined and discussed laws as rules and measures directing human conduct. He simply was not interested , at thi s point , in defining a legal system . He knew, of course , that legislators , ad­ ministrators, and j udges were necessary adjuncts of l aws in the pri­ mary sense. Fortunately for the present purpose , the Treatise i s more philosophical and empirical than some other parts of the Summa. [027] 2 ) As indicated above , the Treatise was addressed to students of theology. These students would have had a thorough course in Aristotle as well as a comprehensive course in Sacred Scrip­ ture. St. Thomas could assume this b ackground and make use of it by brief references . The students woul d have recognized the context and force of these references. [028] The modern reader, unless he has specialized in Medieval Philosophy and Theology and in Sacred Scripture , lacks this background . This creates a formidable obstacl e . I hope in thi s work to supply the i m m e d i a tel y relevant b ackgrou nd th at w i l l en abl e the reader to understand the text of the Treatise. 3) Also , as indicated ab ove , the Treatise is fou n d well [ 0 29] a l o n g in the Summa. The Summa is a h i gh ly arch itectonic work . St. Thomas c onti n uousl y builds o n what has gone before as th e frequent references to the earlier parts of th e Summa indicate . The proper way to stu dy the Summa i s to start at the very beginning a nd work one's way t h rou g h , question by question . This i s obvi ou sly not fea si bl e for m os t modern readers. C on sequently, here also I will try to supply the relevant data from the earl ier parts o f the Summa. [030] 4 ) St . Thom a s , along with oth er sch olars of the period , accepted the physical sc ienc e of h i s d ay He someti mes uses i l l u strati on s or exa mples drawn from medieval science , much of wh i ch i s now obsolete and qui te u n known to the a verage modern reader. These i l l u strati on s from medieval science usually are no part of the argument and are i n tended merely as clari fications or i l l u stration s . Thus , wh at S t . Thom a s i n tended a s a clari fication often i s a b a ffling obfuscation to the modern reader. [031 ] An in stan ce occurs at the end of the Corpus of the first a rticle of Question 90, where S t . Thomas wrote, "Now th at wh ich is the principle in any genus is the ru le and measu re of that ge­ n u s , for in sta n ce , ... the fi rst movemen t in the genus of movements ." [03 2 ] Th i s refers to the A ri stote l i an co smology accordi n g .

10

INTRODUCTION TO ST. THOMAS

to which the universe is structured as follows. At the center of the universe is the spherical earth . From the moon upwards the universe consists of a series of concentric spherical shells that are transparent and indestructible. The moon and each planet are set in one of these shells and for each one there is a number of shells which determine the apparent p ath and speed of the heavenly body. All these shells are moving, but they all depend on the outermost shell which is the first mover and causes all the movements of the others. Hence , the first mover is the "rule and measure" of all the other movements. [03 3 ] The principle illustrated here can be seen in a simpler example. Think of a locomotive pushing a number of boxcars. Each boxcar pushes the car in front of it , but all the movement of the boxcars is produced by the locomotive . In this series, the locomotive is the first mover and therefore is the "rule and measure" of the movements of the boxcars. [034] St. Thomas's students would have read all this in Aristotle's own account of his cosmology. The modern reader can ignore this example without inj ury to the argument . [03 5 ] 5 ) In common with all other medieval writers, especially theological and religious writers, St. Thomas constantly quot­ ed Scripture . The Latin Bible was so well-known to literate persons that it was a common store and source of wisdom , doctrine , and illustration . (To be literate in the thirteenth century was to be able to speak , read , and write L atin ; standardized national languages were only in the process of development. ) To the medieval reader the references to Scripture were intelligible and illustrative . The modern reader finds them sometimes irrelevant or puzzling. The important point , sometimes a difficult one , is to determine whether the scriptural quotations are part of the argument , or are only illustrative , con­ firmatory, or decorative . Most of the scriptural references in qq. 9097 fall into these latter categories. Clarification of the biblical quo­ tations in the Treatise will be given in the commentary. [036] 6 ) St. Thomas wrote a highly technical medieval L atin . He is terse rather than expansive , precise rather than florid , and is a master of the brilliant lapidary expressions to which Latin lends itself. For these reasons , it is extremely difficult to translate St. Thom­ as into English . [037] Unfortunately, many of the existing translations are unsatisfactory and sometimes positively misleading. I have tried , in

INTRODUCTION TO ST . THOMAS

11

the English text given later on , to present at least a basically correct translation . [0 3 8 ] 7) St. Thomas, in accordance with the custom of his day, frequently uses quotations from authors generally recognized as experts in their own fields, such as Aristotle in philosophy, St. Au­ gustine in theology, and Boethius in musical theory. The modern reader sometimes find s this practice confu sing or mislead ing . I will discuss this practice at greater length l ater [Chap . IV ] .

SEC TION 4: THE S TR UC TURE OF THE SUMMA THEOL OGIAE A . THE STYLE OF THE SUMMA

[039] The two principal means of teachi ng i n the medieval universities were the lectio and the disputatio. [040] The lectio was conducted in the following fashion. The basis was an important book such a s the Nicomachean Ethics of Aristotle or St. Paul's Epistle to the Roman s . The Master started by i n dicatin g to the cla ss the divi sions i n the text to be read . He then read the text p aragraph by paragraph . At each paragraph he expl ained the mean i n g of the text and the i n tent of the author. Next , he com ­ mented on the paragraph , rai sing question s , pointing out di fficulties , etc . In the comment the Master set forth h i s own v iew s , h i s own creative interpretation . [041 ] The disputatio was an elaborate debate , conducte d according to the rules of logi c , in wh i ch the medieval students were wel l tra ined . The di sputation was an intell ectu a l fencin g m atch wh i ch aroused in the students the pa rti sanship and enthusi a sm a n d general excitement a ssoci ated with footb a l l or b asketball in modern universities . [042] The d i sputati ons were of various types. Sometime s a student defended , at other times a Ma ster conducted them . We h a ve many tra n scription s of d i sputation s presented by St . Thom a s h i m self. [043] The articles in the Summa a re styl i zed i m itations of the disputatio. A question i s r a i sed , e . g . , "Is l aw someth i n g rel a ted

INTRODUCTION TO ST . THOMAS

12

to reason ? " The problem is opened up by presenting arguments or auctoritates [474-48 3 ] against the position to be taken by St. Thom­ as. This is followed by some general statement in favor of his opinion ( the Sed Contra). Next St. Thomas gives his own opinion ( in the Corpus or "body" of the article). Then St. Thomas replies to the objections one by one . This highly formalized way of scholarly writing seems strange to modern readers. Yet, there is some similarity in the scholarly writing of our own time . Presentations often begin with a review of the literature on the subject and of the opinions of experts in the fiel d ( the objections). The author then presents his own view ( the Corpus) and finally discusses difficulties and objections reply to objection ). ( =

=

B. THE STRUCTURE O F THE SUMMA

[044]

Th e Summa has three Parts (Partes) and a S u ppl e -

men t . Thu s : 1 . The First Part (Prima Pars) 2. T h e Second Part (Secunda Pars) subdivided i nto two parts: The Fi rst Part of the Second Part (Prima Secundae), the Second Part of the Second Part (Secunda Secundae) 3. Th e Third Part ( Tertia Pars) 4. Supplement (Supplementum).

Each Part i s subdivided i n to Q u e sti on s (Questiones) wh ich i n turn are subdivided into Articles (Articuli). The A rticle i s the b asic unit of p resen ta t i on . It h a s [046] parts but i t i s not subdivided . The parts are i n tegrated into a logical unit. I n fact, each Article i s a m i n i ature disputatio. [047] A s given i n 2 a b ove , the structure of the Article is a s fol lows:

[04 5 ]

1. The Question e . g . , "Whether Law Is Someth ing Pert a i n i n g to Reason ? " ( q . 90, a. 1 ) . 2 . Objecti ons A rguments aga i n st the position to be taken i n the Corpus. 3. On the Contrary ( Sed Contra) [In th i s text I am tra n s l ating

INTRODUCTION TO ST . T HOMAS

13

Sed Contra as " O n the Contrary."] A general statement or argument favoring the p osition to be taken in the Corpus. 4. The Body ( Corpus) Presentation of St. Thomas's position. 5. Replies to the Objections [In this text I am using "Reply" instead of the standard "ad ."] Given in 2 above . 6. Occasionally a comment on the Sed Contra (the On the Contrary). [04 8 ] Modern readers often find it easier to b egin by reading the Corpus and then reading each objection with its reply.

C. THE STYLE OF REFE RENCE [049] 1. To refer to a Question :

S. T. , I-II , q. 90 2. To refer to an Article : S. T. , I-II , q . 9 0 , a. 1 3. To refer to an objection : S. T., I-II , q. 90, a . 1 , obj. 2 4. To refer to a sed contra: S. T. , I-II , q. 9 0 , a. 1 , sed contra 5. To refer to the Corpus: S. T. , I-II , q . 90, a . 1, c. 6 . To refer to a Reply : S. T., I-II , q. 9 0 , a. 1 , ad 1 .

D . THE COMPOSITION O F THE S UMMA The Summa Theologiae ( also called the Summa [050] Theologica ) was St. Thomas's masterpiece . Like all great scholars and thinkers , St. Thomas continued to learn and develop intellectually all his life . Thus, since the Summa is the last work St. Thomas wrote , it presents his mature thought. In fact , he died without completing

INTRODUCTION TO ST . THOMAS

14

it . His disciples tried to complete his work by adding a Supplement to the Third Part, which was largely pieced together by selecting sections from his earlier works . However, the Treatise on Law is the work of St . Thomas h imself. [ 05 1 )

The Summa is a didactic work , intended, a s St.

Thomas himself said , for beginners in theology. It is tightly organized and integrated. It is progressive , each section building on and using what goes before it , as St. Thomas often indicates by saying "as was stated above" ( "ut supra dictum est" ) . In this , it somewhat resembles Euclid's Geometry. [052]

Ideally, therefore , one should begin with the first Ar-

ticles of the Prima Pars and read up to the Treatise on Law. In lieu of this , I am offering these note s .

SE C TION 5 : SCHOLA S TICISM

A. INTRODUCTION [053)

S t . Thomas was a Scholastic theologian and philos-

opher. In fact , he i s often called the "Prince of the Scholastic s ." Therefore , some introduction to Scholasticism may help one under­ stand St. Thomas's methodology. [054] Scholasticism is the name given to the sort of philosophy the E uropean university scholars practiced from the twelfth to the seventeenth centurie s . It was thus distinguished from the phi­ losophies that arose outside the universities . A Scholastic was thus a School-man , a university professor of philosophy or theology. [055]

Although there was a wide diversity of opinions

among the Schol astics and much controversy, the Schola stics devel­ oped a fairly uniform methodology and a common set of questions and points of inquiry. These common features enable us to place Scholasticism, not only in an historical line of development , but in a common intellectual tradition . [056]

This common methodology embodied a mastery, in

theory and practice , of Aristotelian logic . In addition , however, the

INTRODUCTION TO ST. THOMAS

15

Scholastics introduced original methods of their own , such as the use of auctoritates [ Chap . IV] . [057] When the medieval intellectual renaissance began in the eleventh and twelfth centuries , western scholars had very l ittle access to Aristotelian texts. They had the Categories, the De In ter­ p retatione ( On Interpretation ) and relevant commentaries by Por­ phyry and Boethius . From the study of these works they developed what was later called the Logica Vetus (the Old Logic ). From this logic the controversy over the status of universals arose , a controversy in which Abelard ( 1 079-1 1 4 2 ) was a principal contender. He de­ fended a position called "Moderate Realism" which was essentially the position taken by St. Thomas in the next century. Abelard's method of teaching and his great dialectical skill helped to develop the disputatious character of both medieval university education and of medieval scholarly writings , a style illustrated by the Treatise. Abelard's work , Sic et Non ( Yes and No ) , contributed to his influence. It was a compilation of apparently contradictory statements from earlier theologians which challenged the skill of the Scholastics and contributed to the development of the method of drawing distinctions .

B . METHODOLOGY

[05 8 ] The following methods are characteristic of the Scholastics and were used by St. Thomas . 1.

The Method of Distinguishing

[059] Making careful distinctions was a standard part of Scholastic method . Modern critics sometimes ridicule this practice , calling it "splitting hairs ." To this Chesterton's riposte was: "There is nothing wrong with splitting hairs. The problem is to split the right hairs." No doubt the method was abused by lesser men , but , i n the hands of a genius like S t . Thoma s , it became a powerful instrument for solving difficulties and for clarifying thought. [060] Thu s , St. Thomas often begins a discussion with some such formula as "X can be in Y in two ways" or "X can be said to be Y in two ways." He then carefully explains the two ways. In the process contradictions disappear, difficulties dissolve , and truths be­ come evident.

16

INTRODUCTION TO ST. THOMAS

[ 06 1 ] There is a statement that goes back at least as far as Cicero , namely, that unjust laws are not laws . St. Thomas quotes it from Augustine . [q. 96, a . 4. ] Positivists have criticized it a s being an obvious contradiction . This statement talks of unjust laws, not some other unjust things , but laws . In the predicate it denies that these laws are laws . [062] St. Thomas deals with a slightly different form of the proposition , to wit, "Tyrannical laws are not l aws ." [q. 9 2 , Reply 4.] Tyrannical laws are contrary to reason and so are not laws p roperly speaking. Yet they have the appearance of laws a s being ordinances made by a superior to his subjects with the aim of being obeyed . The subject of the statement is talking about laws secundum quid, that is, in only a p artial sense ; the predicate is talking about laws simpliciter, that is, in the full sense. The contradiction disappears. [063] Another example is found in q. 95, a . 2. St. Thomas there maintains that every human law is derived from the Natural Law. But an objection is raised: If this is so , since the Natural Law is the same for all human beings, human laws would be the same in all countries. This is obviously false. St. Thomas explains that l aws are derived from the Natural Law in two different ways. One by way of conclusion ( as it were). Thus, from the general precept "Harm no person" the prohibition of murder can be deduced . The second way is by way of determination . Thus, reckless driving is against the Natural L aw since it endangers life and limb . But what sort of traffic regulations should be made and what punishments should be imposed must be "determined" by the human lawgiver. Laws derived by way of determination can therefore be diverse in different jurisdictions. The objection loses its force.

2. The Use of Auctoritates

[064]

This is treated elsewhere [ Chap . IV] .

3. The Dispu tation Method

[065] A question is asked; a point of inquiry is raised . The author presents arguments against his own position and

INTRODUCTION TO ST . T HOMAS

17

balances them by favor able arguments or opinions . By exam­ ining the main arguments adv anced on either side , both in them­ selves and in the l ight of other relevant knowledge , the author then works out his own an swer or solution . Finally , he carefully replies to each oppo sing argument . [066] This metho d is illu strated in the Treatise . In the Summa Theologia e there are u su ally only th ree or four objec ­ tions a nd one sed c o n tra . Th is i s probably because St . Thomas is writing for b eg i n n er s . In more e l aborate works there are often m any more objection s and sed c on tras th a n i n the Summa Theologiae.

SE C TION 6 : S T. THOM A S 'S A PPR OA CH TO THE S TUDY OF LAW

[067]

T h e su bject m a tter of modern A nglo- A m erican

j u ri s p ru dence i s genera l ly ta ken to

be posi ti ve l a w a n d positive

l ega l system s . It i s n ot a study restricted to A nglo- A merican l a w b u t rather to l aw i n its genera l ity,

both w i th respect to the

v a ri o u s n a t i o n s of the worl d a n d a l so to u n derdeveloped and d eveloped cou n tri e s .

The a i m of th i s ju ri sprudence i s

to

describe ,

e x p l a i n , a n d therefore u n dersta n d l a w a n d l ega l system s a s ac ­

cu r a te l y a n d p rofou n d ly a s p o ssi bl e . [068]

St . Th om a s wa s neither working n o r writi n g a s

a j u r i s t , a l a wyer, a j u dge

or

even merely a s a ph i l osopher. H e

was wor k i n g a n d wri ting as a theologi a n , in d i re ctly a s a ph i­ l o s o pher.

H i s Trea tise appea rs

s ec t i on wh e re h e i s deve l opi ng

i n the Summa Theologiae in the h i s m o ra l theolog y.

The

preci se

con text o f h i s tre atment of l a w i s the s ecti on i n wh i ch he deals with a l l the extern a l fa ctor s wh i ch i n fl uence or bea r upon hu man a cts or h u m a n decision m a k i ng. One of th ese extern al i nfluences i s , obvi ou s ly, l a w. Hence , St . Th om a s i s n ot i n terested in e l ab­ ora ti n g a description or a th eory of a l ega l system . He, of knows th a t th ere h a ve to be legi sl a tors ,

en forcers ,

course,

judges , pri s­

on s , a n d so forth . On appropri a te occa si on s he will d iscu ss the

18

INTRODUCTION TO S T . THOMAS

various parts of a legal system , but his major interest at this point does not lie there. [069] For the same reason , his study of law is not limited to human positive law but embraces a variety of kinds of law. Thus, in Question 91 he identifies six kinds of la w: Article 1, The Eternal Law; Article 2 , Natural Law; Article 3, Human Positive Law; Articles 4 and 5, Divine Law; Article 6, The Law of Sin (Jomes peccati). [070] Although the basic definition given briefly in q. 90, a. 4 at the end of the Corpus was constructed mainly from a consideration of Human Positive Law, it nonetheless applies properly although analogously to all of these laws except the Law of Sin. It is properly applied because these various laws do fulfill the essential elements of the definition . It is analogous because they fulfill these elements in quite different ways. With regard to the Law of Sin which is concupiscence insofar as it leads to sin , the definition does not apply properly. To call the law of the members, to which St. Paul refers, a law is an improper application of the term . In q. 9 0 , a. 1 , obj. 1 , St. Thomas raises the question of this Law of Sin. In his Reply he states that law is predicated per participationem, by way of p articipation. Participation in St. Thomas's language means that some characteristic exists somewhere essentially and per se while in other places it exists by a similitude and in a deficient degree or manner. So , although the Law of Sin is improperly called law, there is a similarity between the law of the members and law properly so called. [071 ] A simple reading of St. Thomas's list of the various kinds of law makes it clear that in his investigation of law he must not only use philosophy of law and j uristic thinking but must also draw from Revelation ( the Bible) , theology, met­ aphysics , ethics and most of the branches of philosophy. Thus he produced a synthesis that transcends the scope of any single one of these various disciplines. [072] Despite the synthetic unity of St. Thomas's presentation , the basic arguments and positions within the synthesis which can be properly designated as jurisprudential are not logically dependent on Revelation ( the Bible) , theology, or even

INTRODUCTION TO ST . THOMAS

19

some general a p riori principles of p hilosophy. The jurispru ­ den t ial a rgu men t s , po sition s , principles developed in the Treatise are not derived a p riori from Revelation , theology , and philos­ ophy ; they can all st and on th eir own evidence rationally and ex perientially arrived at . However, the tight unity of St . Tho­ mas's synthesis makes it difficu lt to compare h is jurisprudence p o in t by p o in t with mo dern sy stems of ju ri sprudence . There is als o another complicating factor. St . Thomas rarely directly con­ fronts any of the main p osi ti on s of modern Positivists . The r e a so n for thi s i s qu it e si mpl e : In the th irteenth century there were no Positivists like John Austin , Ben th a m , Kel sen or H . L. A . H a r t . Again , the fact that St . T h om a s con sta ntly quotes from the Bible often masks the fact that th e determ in ing argu ment or evi dence i s deri ved from a ph i l o sophy th at i s ba sed on rea son a n d experien ce . Th e fact i s th at in m a ny ca ses the quotation from Scriptu re simply i l l u stra te s , con fi rm s , expl a ins or embel­ l i s h e s the Thom i stic text . I n m a ny ca ses the quotation from Scriptu re cou l d be om i tte d from t h e text with ou t i n terfering in t h e l i n e of a rgumentation a t a l l . ( In a l ate secti on of thi s book [Chap . IV] I will d i scu s s the u se of th ese quotati on s wh i ch in med i ev a l te rm i n o l o g y were ca l l ed auctoritates ) [073] In view o f a l l th i s a nyone wh o wi shes to do a serio u s stu dy of the Trea tise sh ou l d do two th i ngs. First , h e shou l d stu dy the en ti re Trea tise a n d the en ti re Th o m i s tic syn­ .

,

thesi s , i n c l u d i n g the theologi c a l a n d oth er such a spects . Sec­ on d ly,

he sh ou l d try to extricate from th a t synthesis those

p o s i ti o n s a n d a rgu m ents wh i ch c a n be d i rectly focu sed on the p rob l e m s d e a l t w i th by modern j u ri spru dents . position or a rgu m ent of St .

Thom a s

I n som e

ca ses a

mu st be ex p anded and

f u rthe r d e vel ope d in or d e r to apply i t to th ese m odern probl em s. I hope to a s si st th e re a d er i n d oi ng th i s .

C HAPTE R I I T H E NAT U R E OF DE FINITION A N D T H E A R T OF DE FINING

SE C TION 1 : IN TR ODUCT ION

[ 0 74 ]

One of the ba sic questions in jurisprudence i s the q u e st i o n of the defi n i ti on of la w. A lmost every urisprudent si nce St . j T h om a s h a s tried to work out an a cceptable defi nition. H. L . A. H a rt begi n s h i s Concep t of L aw ( p. 6) with this statement: "We shal l d i sti n gu i sh h ere th ree su ch principal recurrent issues, a n d show ater l why they com e together i n the form of a request for a d efin i t ion of l a w or a n a n swer to the question 'What is law?' or in m ore obscur ely fr a m e d q u esti on s su ch

as

'Wh a t

is

nature

the

(or

the

of

essence)

l aw ? "'

[07 5 ]

I n 1- 11 , q .

90 St .

a l aw ( t a ken to be a sta tute or the

his

out

Thomas works

equivalent).

A s far

a

as

defini tion of

I c an discover,

d e fi n i ti on wa s th e first pregnant and concise d efinition of

a

i n j u ri spru dence or the ph i l osophy of law.

[ 076 ]

ticu l a r

E very seriou s

j u ri spru den t's

whole

"Ha rt's Conception of L aw '' , i n gs for th e

qu

definition of law

philosophy pp.

1 32- 135

th en del i m i ted fo u r form s of the u n i fi e d

gives

the par-

encapsulates

law.

R olf

m ean­

fo ur dif feren t

Then he a d ds

question

a n swer to these questions,

s a i d to con sti tu te

(p. 36) :

'What is law ? ' ,

such

as

in

Sartorius

e sti on " What i s L aw " , that is, he elaborates

d i ffe ren t bu t comp ati bl e d efini tions.

th at a

of

l aw

" We

and

Austin's,

fou r h a v e,

noted

may

be

ph i losophical theory of law." i s , a n an a lysis of jurist's definition of law w il l d i sp l a y t h e b a si c i d ea s of h is p h i l osophy of law. [07 8 ] Despite the recognized i m portance of d efi ning aw, l l a w, a system of l aw, very few jurists have g i v en a ttention to the e p i s t e m o l og i ca l n atu re of d ef inition in genera l . Many of the problems compared a re du e to t h a t a r i s e wh en d i fferen t defin i tions of law d i fferen t ju ri sts u s e different t ypes of definitions the fa ct t h a d e fi n i n f l aw. It is one thi ng to d efine g d i fferen t a spects l aw, S Th om a s d i d , a nd qu i te another th i ng to give m preh v [077]

a

Th a t

a

a

or

are

t

or

o

t.

d e s c ri p ti ve

a

d efi n i ti o n

f

o

a

l ega l

are

a

system 20

as

Joh n

Finnis

as

co

di d.

ensi

It

is

e

one

THE NATURE OF DEFIN ITION

21

thin g to define an aspect of the practice of law as Ol iver Wendell

Holmes did and quite another th ing to define t he ongoing creation of l aw as Lon Fuller did . [079] Moreover, qu ite a side from the study of jurisprudence or the understanding of S t . T h o mas 's def i n i t ion of law, the nature and a r t of d efini n g i s a m a t t er of imp orta nce for a ny practicing lawyer or sittin g j udge . Many cases tu rn on the defin ition of a term in a statute or a de finition created by l e gi s l ators or j udges C a ses h ave turned on the defi nition of a tomato , an automob i l e , a pedestri a n , etc. [080] However, our i m m edi a t e pu rpose-the u ndersta nding of the Treatise on La w, of the n at ure of l aw -i s of prime importance , since the entire Trea tise i s b a sed on the def i n i t i o n of a l aw worked out i n q. 9 0 , a. 4, c . [0 8 1 ] For a l l the se re a s o n s we begi n ou r i n vestigati on by con sideri n g the n a tu r e a n d a rt of defin i ng . .

,

S E C TION 2 : THE NA T UR E O F DEFINI TION

[08 2 ]

I n gener a l a d efi n i tion sta tes wh at

something i s. What

i s a tri a n gl e ? It i s a th ree- sid ed pl a n e fig u re . Or : "Wh a t i s the essential i n tel l i gi b i l i ty of a tri a n gl e ? " Th e a n swer is th e sa m e , a defi n i ti on . A defi n i ti on i s ba sed on a n a n a lysi s of the n a tu re or essenti a l intelli­ gi b i l i ty of the th i n g to be d efi n ed . [08 3 ]

However, n ot every th ing ca n be a n a lyzed . Con se-

quently, n ot everyth ing ca n be defined . For exa mple , everyone knows wh a t i t m e a n s to be con sci ou s , bu t con sci ou sn ess ca n only be un­ derstood from exp eri ence a n d c a n n ot be a n a lyzed i n to si mpl er or bro a der

i n tel l i gi b i l i ti e s .

Moreover, if everyth i ng h a d to

be defined ,

there wo u l d be a n i n fi n i te regres s in defi n i ng . S ome peopl e , wh o h a ve not refl ected on the m a tter, [0 8 4 ] th i n k that everyth i n g h a s one tru e or correct defin iti on . cou rse , i s n ot the ca se .

First , a s

epi stemologi c a l typ es of defi n i ti on .

we

Th i s , of

sh a l l see , there a re dif ferent

Secon d ly ,

defi n i ti on s m ay va ry

with the poi n t of view ( e . g. , ph i losoph i ca l , sci en ti fic) or the purpose.

THE NATURE OF DEFIN ITION

22

SE C TION 3 : TYPES OF DEFINITION

We will now examine different types

[08 5]

of

definition .

A . THE LOGICAL MODE OF DE FINING

[ 08 6 ]

First , we will examine the tradition al logical mode

of defining

per genus et diffe rentiam specificam (through genu s and

specific difference) which goe s back at least as far a s Ari stotle . An example will explain thi s mode .

[087 ]

Consider the traditional philosophical definition

of

a

human being , to wit , that a human being i s a ration al animal. In this definition the genu s is animal , the specific difference is ration a l i ty. Human beings share the genus with the other animal s , but ration ality specifies human n ature as such and so di stinguishes it from all other animals .

[088]

This definition

fit s into

a cl a s s ifying

scheme

follows:

preme genus]

A

living

n o n - l iving/ i no rg a n i c

A

vegetative

sensible

�

rat i o n a l (species)

I

i n d ividuals (Jo h n , Mary , etc . )

n o n - rati o n a l

I

u n known n u m b e r of

species, if a n y

as

23

THE NATURE OF DEFIN ITION

[089] Note that below the species there are only individuals. Now we can exp and the definition of human nature [090] thus: a human being is a sub sta nce , l iving , sensitive , and rational. [091 ] The definition p er genus et differentiam specificam is thus also a system of cl a ssification . The same meth od of defi n ition can be used in ge[09 2] ometry. For example , we ca n take "triangle " as a genus under which there are various species of triangle s , i . e . , iso sceles , righ t -angle , equi­ lateral , sca l ene , etc . , all differenti a ted by a speci fic di fference . [09 3 ] Th is m eth o d of defin ition presupposes that we know the essential n ature of the th i ng to be defined . But , in fact , we know t he tru ly essenti a l n a tu re of very few specific th i ngs . Therefore , in most ca s e s , we m u st u se some ot h er type of defin i tion . [094] Jo h n Austin m ade u se of the l ogica l type in defining l aw. He st a r t e d with th e gen u s "wi sh " wh ich he d i vided i n to ( 1 ) an expression of a wi sh b acked by th rea ts and ( 2 ) types of expressed wishes not backed by th rea ts , e . g , "Pl e a se pa ss the bu tter ; " expression of wish b a c ke d by th re a ts , he ca l l ed a "com m a nd ." He then divided "com m a n d " i n to two species n a m ely ( 1 ) general com m and s a n d ( 2) particula r co mm a n d s , th us genera t i ng the foll owing scheme : e xp res s i o n of a wi s h

n ot backed by th reats

ba cked by th reats

I

A

general A l aw w a s a B.

par ticu l ar

comma nd, a genera l com m a nd backed by

th reats.

THE DE S C R IPTIVE MODE OF DE FINING

I n m a ny ca se s , wh ere t h e essen ce i s u n known , a de[09 5 ] defi n i t i on i s u sed . Th i s i s the type of defi n i tion that tra­

sc riptive

d i ti on a l bot a ny u sed .

Bot a n i sts d i d n ot know whether there i s an

24

T HE NATURE OF DEFINITION

essential difference between a rosebush , e . g . , and a tree , but they could observe a variety of features that distinguishes them . Thus the tree has bark , a wooden core , and a large natural size , none of which a rosebush has. On the other hand , the botanist observed similarities , e . g. , between a rosebush and a strawberry plant . On the b asis of these accidental , selective feature s , the botanists set up a system of p seudo- genera and species and so were able to cl assify hundreds of plants. [096]

H . L. A. Hart used this type of definition in framing

his definition of a legal system. In this type of definition , the ba sic problem is selecting the features that are general and important. As John Finnis points out , this selection presupposes a method or prin­ ciple of evaluation and selection .

C. THE EXPLANATORY MODE OF DEFINING

[097]

A third type of definition is called the explanatory

definition . This is one that is based on the Aristotelian-Thomistic Doctrine of the Four Cause s . This doctrine will be explained in detail later, since it is the type used by St. Thomas in Question 90.

D . THE CONSTRUCTURAL MODE OF DEFINING [098]

The next type is what I call a constructural definition .

distinguish constructural concepts from ontological concepts . An ontological concept is one that simply transcribes the intelligibility of something into the order of knowledge . Thus the shape of a cube of sugar or ice or a box 8 in . on each side is understood without any addition or manipulation by the mind . On the other hand , a constructural concept is one that ultimately relates to reality but has been given an additional intelligibility by the mind. Thus the concept of average speed in mechanics rests on real distance and real time , but there is no reality that is average speed . That concept is the result of a simple mathematical manipulation of measures of distance and of time .

T hu s ,

if you cover 5 0

miles

in

2 hour s ,

5 0 1 2 = 25

mph = average spee d . Or, in sociology, we might say that the average American family consists of 3 . 1 person s . There is no such actual

THE NATU RE OF DEFI N ITION

25

family. It i s produced by statistical man ipulation of measures of the si ze s of real families . Hence , when a con structura l co ncept is used in a [099] definition , the definition does not simply state the nature of a real ity. It defines a concept ba sed on reality but as modified by the mind. [ 1 00] Thi s type is used frequently i n physica l science , psychology, sociology, etc. However, it seems to be in appropriate in j uri sprudence , at lea st , in philo soph ica l j uri sprudence . E . DE FINITION

BY INSTANCE S

[ 1 01 ] When d efi n i ng by the u su a l meth od s i s very difficult , i m p r a cti c a l or controversi a l , the u ndersta n d i ng of a term or a n ature i s someti mes gi ven by l i sting some more or less cl ea r in stances. In the Act establ i sh i ng the Nation a l E ndowmen t for the Hu ma nities , the following d efi n i tio n i s given . § 9 5 2 . D e fi n i t i o n s A s u se d i n th i s ch apter( a ) T h e term " h u m a n i ties " i n clu des , but i s not l i mited to , the s t u dy of the foll owi ng : l a ngu age , both m odern and cl a ssica l ; l i n gu i st ics ; l i ter a tu re ; h i story ; j u ri sprudence ; ph i losophy; ar­ che o l ogy ; comp a r ative rel igi on ; e th i cs ; t h e h i s t ory , criticism , theory, a n d pra ctice of the a r ts ; those a spects of the soci al s ci e n ce s wh i ch h a ve h u m a n i stic conten t a n d employ human­ i stic metho d s ; a n d th e study and appl icati on of the humanities to the h u m a n envi ronment with pa r ticu l a r a ttenti on to the re l ev a n ce o f tion a l l i fe .

th e h u m a n i ti es to the

cu rrent

cond ition s of

n a­

[1 02] It i s i mp o s sible to ge t a ny group of schol ars t o agree on a n e s se n ti a l d efi n i ti o n of "hu m aniti es :' Hence , Congress u sed a rath er lengt hy l i s t of i n sta n ces. Su c h a d ef i n i t i on , t h ough necessary, gives rise to p rob l em s of j u dgmen t on borderlin e ca ses. For example , h ow i s on e to d eterm ine when soci ol o gy h a s hu m a n i stic content? F. PA R T IA L

[1 03]

All

DE FINITIONS

p revi ou s types

a re

sta n d a rd

m odes of defin i ng.

Th ere a re o t h er a n swers to the "wh a t " qu esti on s th a t ca n be con sid­ ered p a rt i a l defi n i ti on s , fra med i n vi ew of a speci a l purpose , point of

v iew, or s i tu a t i on . We ca n ca l l some of these identifying def i n ition s.

T HE NATURE O F

26

DEFINITION

[ 1 04] When , for ex ampl e , a h iker asks , "What is poison ivy ? " , he doesn't want the scienti fic defin ition [ a climbing p lant of the sumac family th at i s e specially common in the eastern and central U . S . , that h a s terna te leave s , green i sh flowers , and wh ite berries , and that produces an acutely irritatin g oi l cau sing a usually intensely i t ch ing skin rash ( from We bs ter 's New Co llegia te Dictionary)] . The hiker simply wants to iden tify poison i vy so he can avoid it . If an instructor in a science cl ass a sked a studen t to define poison ivy , he woul d expect the scienti fic definition .

[ 1 05]

A c ook w a n ts a ch ocol ate ca ke defi ned i n te r ms of

fa m i l i a r i n gre d ients , flour, chocolate , eggs , etc . He doesn't want or

need a ch emical defi n i tion of chocol ate . To a cook , sa lt is a co ndi­ men t ; to a che m i st i t i s N a Cl . [ 1 06] Thu s , ther e a re many pa rti a l def i n iti on s , ma ny defn i ti on s of the same th ing b e ca u s e o f d i fferen t viewpoi nts , pu rposes , i a n d methodologies. [ 1 07] O l i ver Wendel l Hol mes ' defi n i ti on of l aw a s " a predictio n of wh a t the courts will d o " i s fra med from th e sta n dpoint of th e "bad m a n" and defi nes a l a wyer's advice to th e bad ma n . Becau se of the l i m i ted p o i n t of v i ew, t h e d e fi n i ti on i s i n a d equ ate L on Fuller s' d e fi n i t i on , "the enterp r i se of bri ngi n g h u m a n con du ct u n d er the gov­ ern a n ce of ru l e s " m ay be re garded a s a p a rti a l defin iti on . .

SE C TION 4 : T H E A M BIG UI T Y OF WOR DS

[ 1 08]

Now we m u st con si der a poi n t of grea t

i n j u ri spru dence. Def i n i ti on s h a ve a twofol d f u n ction .

importa nce

They express

wh a t som eth i ng i s a nd a l so give us th e m ea n i ng of a word . chem i st s ays water i s H 2 0. Th u s

,

The

H 2 0 i s the sci en ti fi c mea n i ng of the

term "wa ter" : It i s a l so a scien ti fic sta tem en t of wh a t

w ater

in itself

rea l ly i s . Th i s double f u nction wou l d c a u se n o problem i f each word h a d one mea n i n g a n d correspond ed to one defi n i ti on . But th is i s not the c a se . M a ny word s c a n h ave d i fferent mea n i ngs i n different con­ texts .

I f, for ex a mpl e , without a context , I si mply say "bat " , you

cou l d not be cer t a i n of my me a n i ng .

I m ay be th i n ki ng of the l ittle

THE NATURE OF DEFINITION

27

flying animal . Such words are , by themselves, ambiguous. The am­ biguity of words creates confusion and mistakes , unless one is very careful in their use.

A . EQUIVOCAL, UNIVOCAL AND ANALOGOUS TE RMS i. Equivocal Terms

[ 109] Terms are used equivocally when , in two or more contexts , the term ( remaining the same in spelling or phonetics or in both) is used with totally different meanings ( concepts or definition s ) . [ 1 1 0] Thu s , in the statements: "The player threw his b a t a t the u mpi re" and "I chased a bat out the window"

the term "bat" i s used in two compl etely unre l ate d me an ings . There i s noth i n g in common except the s pel l i n g and sou nd of the term s . [11 1 ] In the foll ow ing statements: "I went to the supermarket " and "I bought two dozen eggs" and "The grapefrui t were to o expensive" there is only an oral e quivoc at i on . As soon as we write the statements , there a re different term s a s wel l a s th ree di fferent m ea n i n g s . [ 1 1 2] These examples , a n d many others , are quite clear and woul d deceive no one , but , i n a long di scussion or i n complica ted matter s , people are deceived by an i n sen sible sh i ft i n to equivocation . A pro-l i fe spea ker once said th at a basic question was, "W hen does human l i fe begin ? " In an swer, another speaker l a ter s a i d , "No one knows when h u m a n l i fe fi rst began ." [ 1 1 3] In the first ca se , the speaker was tal king about the begi n n i n g of the l i fe of an i n dividu a l human being. In the second case, the spea ker was talking about the first appearance of h u m a n l i fe o n earth . An exa mple more rel evant to j uri sprudence i s the [ 1 1 4] followi n g :

T H E NATURE OF DEFIN ITION

28

"A Missouri law requires the payment of income tax"

and "The law of gravitation applies to all pieces of matter." The term "law" is equivocal . In the first case the law [ 1 15] is prescriptive ; in the second case it is descriptive . [ 1 16 ] Jurisprudence deals with law in the first sense , not with law in the second sense . ii. Univocal Terms

A univocal term is one that is used , in two or more [ 1 17] contexts, in exactly the same sense , that is, with the same meaning or definition . I that it is oblong [118] When I say of this shape : I that it is oblong, I am using and , when I say of this shape : the term in exactly the same sense . The differences in size and col­ orations are irrelevant. [ 1 1 9] I n the statements : "George Washington was a hu man being" and "Nancy Reagan is a human being" ,

the term "human being" has the same definition in each case , namely, "rational a n i m al " [ 1 20] In t h e fol l owing statements : .

"Boatmen's Bank has many outlets in S t . Louis" and

"The First National Ba nk is a solvent institution" , the term "bank" i s u sed u n i vocally. [ Remember that i n defin i ti on by gen u s and species , the gen u s and the species mu st be u n i voca l with reference to the popu l ation to wh ich each refers . ] [ 1 21 ] Un ivo ca l term s are u sed in exactly the same sen se ; equivocal term s are u sed i n radica l l y d i fferent sen ses . A n a logou s terms may be sa id to fa l l on an extended spectrum between the extremes of equ i vocation and u n i vocity. iii. A nalogous Te rms

[ 1 22]

An a n a l ogou s term is one , that in two or more

contexts , i s u sed i n a sen se th at i s partly the same and partly d i ffere n t

THE NATURE OF DEFINITION

29

and the partly-same and partly-diffe rent are inseparable in a given context. [ 1 23 ] The standard example, which seem s to have been first used by Aristotle and has been used ever since ( it occurs in H. L . A . Hart, The Concept of Law, pp . 1 5- 1 6 ) , is that of the term "healthy." Consider the following statement s ; [ 1 24] "Mary is healthy." "Mary's complexion is healthy." "This food is healthy." "Moderate exercise is healthy."

The original and o nly proper mea n ing for "healthy" [ 1 25] is "having the proper state of a living thing." This meaning is ex­ pressed in the first statement. Mary's complexion i s called "healthy" , not because it has the proper disposition of a living thing , but becau se it manifests health . Food is called " he a l t hy" becau se it pro duc es he a l th . All the meanings in the last three statements are derived from a relationship t o he a lth prop er ly so called an d would have no meaning without that r el at i on sh i p . [ 1 26] Note that the derived meanings a re compl ex : "m a n i fes tin g - h ea lt h " , "p ro duci n g- h e alth", " prom ot in g - h ea lth ." The com­ pl ex i ty cannot be s e pa r a t e d witho ut p ro du c i ng nonsen se . We cannot say: "M ary's complexion is manifesting ." or "M ary's complexion has the proper st ate of a living th i n g ." [ 1 27]

Com p a re

a

complex term l i ke "red house ."

"There i s a red hou se there ." "There i s a house there ." "There is a red th ing there ." The d i vi sion does not produce non sen se . Hence , "red hou se" i s n ot an a n a l ogous term . For a n a l ogy, the part that i s di fferen t a n d the part that i s the same a re i n separabl e . [1 28] There a re many types of a n a l ogy. The type j u st exam ined ( n a m el y, "healthy" ) i s called a n a n a l ogy of "extrin sic attri ­ buti on" beca u se the derived meanings do not contain i n trinsically re a l

T H E NATU RE OF DEFINITION

30

"health" but have "health" attributed to them only because of a relation to health properly so called . [ 1 29 ] In analogies of extrinsic attribution , the proper case is called the primary analogate, the derivative cases are called the secondary analogates. [ 130] There are many different forms of analogy. All metaphors are based on simple analogies. Thus: "Every man is a wolf to every other man ." ( Hobbes) [131] proportion :

The comparison here can b e set up a s a simple

Wolf is to o ther an imals

as

man is to other men

that is, they are both predators. [ 132] Th i s i s a n a n a l ogy of intrinsic p rop or t i on i ntrin sic because both the wolf and the man are re a l l y ( in tr i n s ically ) predator s Legal a rgu ments from a n a logy are often based on t h i s sort of analogy. When the Court extended the statute defining th e l ia b i l i ty of inn­ keepers to the operators of p assenger boats on the Mississipp i the ,

.

,

analogy was: innkeepers are to

guests

operators of as

passenger boats

are to live-in passengers

[ 13 3 ] An understanding of the th ree modal u ses of terms will help one understand m any controversies in Juri spru dence . [ 1 34] Both H . L. A . Hart a n d Joh n F i n n i s criticize the earl i er Positivi sts for attempting to develo p a univocal defi nition of "law." They m a i n tained that the effort to ach ieve a univocal defi n i ti on ended in di stortin g the given d a ta of l egal system s . Kel sen , for exampl e , i n order t o reduce a l l l aws ( H a rt's p ri m ary rul e s , private emp ower i ng rules and publ ic empowerin g ru l e s ) to a comm on form , p ropo sed to rewrite a l l l aws a s d i rectives , not to citizen s , but to offici a l s , ordering them that i f x , then they shou l d do y. Thi s seem s to most jurists to be a tortuous distorti on of the actua l features of l aws. [ 1 35] Hart expressly rejects the u se of the l ogica l mode of

THE NATURE OF DEFINITION

31

definition (per genus et differentiam specificam ) because this mode requires univocal concepts. [136] Univocal definition is quite widely used in science and mathematics wherein so many things are fully determined and distinct. Thus, H20 is a univocal definition of water ; "three-sided plane figure" is a univocal definition of a geometrical triangle . [ 137] It is very difficult, often impossible , to formulate univocal definitions of human institutions , such as corporations , con­ tracts, trusts , felonies and law. All chemists agree on the definition of water as H20. They do so because chemical analysis of water forces that definition on them . There are no schools of chemists which have different definitions of water. [138] Jurisprudents are generally well aware of the basic facts about law, yet they advance various definitions . This is the case because they are applying to those facts different principles , either from different disciplines ( e . g . , sociology, psychology, anthropology, etc . ) or from different philosophies ( e . g . , Positivism , Kantianism , Thomism , Utilitarianism , etc . ) , or because of using a different mode of defining. Hence , a j urist's definition of law reveals his basic phi­ losophy. Therefore , a critique of a j urisprudential position must pro­ ceed from the facts of laws and legal systems and from a critique of the underlying philosophical ( or other) principles .

SECTION 5: THE CENTRAL CASE

[139] Some j urisprudents , faced with the diversity of legal systems , have attempted to reach a univocal definition by looking for the lowest common denominator. Thus we can ask, with Kelsen , what is common to the Constitution of the Swiss Republic and to the rule of a tyrannical African chieftain ? The result may be a univocal definition but one that is so jejune and limited as to be of little explanatory value . Others have taken the approach of elaborating, what they cal l , "the Central Case ." They examine the most highly developed legal systems and select the most relevant and important features and put them together in a Central Case definition of a legal

THE NATURE OF DEFIN ITION

32

system . Such Central Case definitions can be fully verified in the systems of most modern nation-states , such as England , Germany, France , the United States and others . Primitive systems and only partially developed systems will verify only some of these features and , on that account , can be called a "legal system" in a deficient sense . [ 140] H . L . A. Hart , Lon Fuller, and John Finnis have all used this procedure in framing their definitions of a "legal system ." This procedure not only produces a concept that can be applied analogously to a wide range of societies, but it also produces an ideal by which other systems can be evaluated . [ 141 ] Scholastic philosophers ( following Aristotle) u se d a simple vocabulary which deals with this situation . Thus , if the Central Case is found to be fully verified , say in C anada, Canada is said to have a legal system simpliciter ( i . e . , without qualification ) , while those tribes , say the Watusi , who have a limited legal system are said to have a legal system secundum quid (i e . , in some re spect ) [ 142] Hart fre q uen tly illustrates one of the difficulties of definition by ask ing "How many hairs must a man have in order to be haired , not bald ? " or "How few hairs must a man have to be bald? " There is n o po ssible answer to these question s . But we can clarify the matter by identifying the Central Cases . A man is sim­ pliciter h aired when he h a s a ful l head of h a i r with no b a l d spots . A man i s simpliciter bald when he has no head hair at all , only smooth skin from ear to ear and from forehead to back of the sku l l . A l l mixed cases can be identified s i mp ly as secundum quid case s . [ 143] L e t u s apply this d i stin ct i on t o one of the celebrated .

.

,

arguments in juri sprudence . St. Augu stine wrote , "An u n j u st l aw seem s to be no l aw at a l l ." St. Thom a s repeats th is doctrine as do many other Natural Law T h i n kers . But the retort comes , "Th i s state­ ment is a plain sel f-contradiction . In the subject 'l aws' a re spoken of; in the predicate they are den ied the n a me 'law."' W h at i s the situati on ? Here is a statute , passed by a [ 1 44] properly con stituted legi sl a tive body, signed by a properly elected or appoi n ted ch ief executive and promu l gated in accordance with some Con stitution , Gru n dnorm , or B a sic Law. In a l l these re spects i t i s l i ke any other l aw. [ 1 45 ] On exa m i n ation , h owever, it is foun d to be u n j u st and , therefore , to fa i l in a poi n t , according to Natural Law juri sts ,

THE NATURE OF DEFINITION

33

esssential to a law, hence it is not a law. Now, what shall we call it? An unjust what? [ 146] The law has many of the features of a law and resembles nothing else , yet fails to verify the full essence of a "law." It is, therefore , a law secundum quid. Since it fails in an essential point of j urisprudential legality, it is not a law simpliciter. The contradiction disappears. Note that there is a similar situation when a Court de­ clares a law "invalid" ; we speak of an "invalid law."

SECTION 6 : A F URTHER NOTE O N T HE AMBIG UIT Y OF WORDS

[ 147] We can only determine whether an ambiguous word is being used equivocally, univocally or analogously when it is used at least twice in a given context . But it should be noted that ambiguous words in some contexts may be equivocal , in others univocal and , yet in others, analogous . [ 14 8 ] We have seen that i n a given context "bat" i s equivocal . Consider the following context :

"Bats are flying mammals that live in caves and other dark places. Bats have a sonar system which enables them to fly free of obstacles ." In this context "bats" is a univocal term . We have seen the univocal use of "bank ." Consider: [ 149]

"Boatmen's Bank has many outlets in St . Louis ." and "I sat on the bank of the Mississippi and fished all afternoon."

Here "bank" is equivocal . [ 150] We have discussed the use o f "healthy" a s a n analogous term . Consider:

T HE NATU RE

34

OF DEFINITION

"Mary is healthy. " "My dog is healthy. " In this context , "healthy" is a univocal term . [151] Thus , when words are ambiguous, the context should remove the ambiguity. This is especially important in the drafting of legislation and in writing j udicial decisions .

SECTION 7: ON ANALYZING AND E VAL UATING A DEFINITION OF "LAW"

A . INTRODUCTION [ 152] Some guidelines may be suggested for analyzing and evaluating different definitions of "law." [153] Such guidelines will constitute a method for the critique of the various definitions as well as a basis for understanding them as their authors understood them . This method also will guide the comparison of the competing definitions .

B . WHAT IS T H E AUTHOR DEFINING ? [ 154] The first point is to determine what aspect of "law" the author intends to define or is actually defining. Most modern jurisprudents seek to define a system of law, the complete organization of law as found in modern civil societies. This is what H. L. A. Hart attempts to do in The Concep t of Law. On the other hand , many older j urisprudents defined a law, a statute or its equivalent ( e . g . , a decree , an ordinance , a Court decision ). St. Thomas formulated a definition of a law, of a statute , etc . as it occurs in all the varieties of laws which he recognized ( e . g . , divine , natural , ecclesiastical , etc . ). Lon Fuller defines the making and administering of laws , the whole enterprise of bringing human conduct under rules ( emphasis added) . St . Thomas ( q . 90, a . 1 , Reply 2 ) gives an example of these two

THE NATURE OF DEFINITION

35

approaches when he speaks of distinguishing the "building of a house" from the "house built ." [155] Lon Fuller is defining the "building" of the law: St. Thomas is defining the "law built ." When we make this distinction , we may come to see that the two definitions , though at first sight quite different , may be fundamentally in agreement or, at least , com­ patible. John Austin , like St. Thomas, was defining a law, but , despite this similarity, his definition is sharply opposed to that of St . Thomas .

C . WHAT METHODOLOGY DOES THE AUTHOR USE ? [ 15 6] One of the factors that determines the mode of defining is the methodology used by the individual j urisprudents. [ 1 57] One of the features that distinguishes disciplines among themselves is the methodology appropriate to or created by the various disciplines. Thu s , physics is p articularly distinguished from history because physics has an overall mathematical method and aims at formulating mathematical equations and definitions which will express , explain , and control matter and motion or matter and energy; while history may use dates and borrow scientific methods of dating , it is not itself mathematical . Again , physics is partially distinguished from mathematics itself because physics uses an ex­ perimental hypothetical-deductive method for discovery, explanation , and verification , whereas geometry is not experimental at all . The geometer does not experiment with cubes and triangles. [158] Now the methodology of a discipline determines what it can deal with and what kind of answers it can get . A chemist can analyze the pigment and canvas of a p ainting, but he cannot deter­ mine whether it is trash or a great work of art . Art critics and art historians must do that. Physics cannot answer moral questions or say anything about the existence or non-existence of God . [ 15 9 ] Similarly, the methodology adopted by a jurisprudent will determine his mode of defining and what features can or cannot be included in his definition . If, for example, one uses a value-free , descriptive , sociological method as H . L . A . Hart does, one's defini­ tion cannot include a moral element or a moral reference . Moreover, such a method has the difficulty of selecting the relevant feature of a

36

THE NATU RE OF DEFINITION

law or a legal system . For a critical discu ssion of this type of meth­ odology, see John Finnis, Natural Law and Natural R ights, pp. 3-22. [ 1 60] If one adopts a "pure" theory of l aw, as H ans Kelsen does, one excludes all methodologies of any external discipline , such as psychology, philosophy, science , political science , etc . One must use a logical analysis of a legal system in a purely legalistic manner. This results in the conclusion that the content of l aw is irrelevant . [161] St. Thomas uses the Aristotelian methodology of explanation known as the Doctrine of the Four Causes. ( We shall study this method in detail later. ) In this method, the j urisprudent has an outline of the question s , answers to which will constitute a complete essential definition of the definiendum . So , when one studies any proposed de fi n iti on of l aw, [ 1 62] he should try to determine the methodology used .

D . WHAT ARE THE SUBSTANTIVE POSITIONS AND PR INCIPLES OF THE AUTHOR ?

[ 163] All j u ri s p r u den t s are well a c qua i n te d w i th th e o b v i o u s facts and operations of a system o f laws . T hey h ave h ad approxi m ate l y the same technical courses i n l aw a n d h ave observed approx i m ately the same legal and j ud ici al activities. Yet , they d i ffer widely in th eir second-level u nderstanding of a l aw, the l aw, and / or a l egal system . A s already expl a i n ed , part of the reason for th i s i s the p a r ti cu l a r meth ­ odology chosen by each j urisprudent . But the broader principles held by each jurisprudent are also determinative of h i s j u ri sprudence . [ 1 64] If one th i n k s that, i n a state of n atu re , every man i s an enemy of every other man and that every man h a s the righ t and will to do wh atever i s necessary for survi v a l a n d sel f- s ati sfaction , then the j u ­ ri sprudent th i n k s of t h e role of l aw as the suppression b y force of man's aggressiveness . Th i s i s wh at Hobbe s did . [ 1 65] If one hol d s there i s no conn ection between m ora l i ty a n d l a w, h e will be u n able to hold that there i s a moral obl igation to obey l aw s . He wil l have to look el sewhere for an expl a n ation of legal obl i gation . Thus , Joh n A u stin found i t in the fear of pun i sh ment , of sa ncti on . Sanction then becomes a n essenti al element of all l aw. Th i s was t h e position of John Au sti n . ­

THE NATURE OF DEFINITION

37

[ 16 6 ] I f one believes that men are basically ordered to good and have a natural tendency to love and cooperate with other men , then he will see law as precisely directive to the Common Good . Sanc­ tions will then not be of the essence of law but only a necessity con­ sequent on the fact that some people, evil people , do not observe the law except under compulsion . This was the view of St. Thomas . [ 1 67] I f one believes i n participatory democracy, then one will hold that the people have a right to remove their rulers and change their government. This was the position of Robert Bellarmine. [168] If, however, one believes in the Divine Right of Kings, one will not recognize any limits to the King's power and will deny the people any right to rebel . This was the view of James I of England who consequently had the work of Robert Bellarmine burned and b anned in E ngland . [ 1 69] It is thus clear that some of the basic reasons for the difference in definition sometimes lie outside the field of j urisprudence proper. The argument must often be extended to matters involved in the broader debate .

C HAP T E R I I I G E N E RAL D O C T RINAL BAC KG RO U N D F O R T H E TR E A TISE

SE C TION 1 : IN TROD UC TION

[ 1 70] In this Chapter I will present and briefly expla in the doctrinal background necessary to understand the Treatise. St. Thomas developed an impressive synthesis of philosophy and the­ ology. No part of this synthesis is wholly self-explanatory. Thi s is especially true of the parts of the Summa Theologiae, the architectonic structure of which has been admired by th inkers of a l m o st all per­ suasions ever since . The Treatise i s a part of the Sum ma and its integration into the whole is clearly indicated by St. Thom a s's frequent references to previous parts of the Summa. [ 1 71 ] It is impossible, h oweve r, to give even a brief complete exposition of a synthesis and world view of which th e Summa itself is only a summary. My metho d in this Chapter, therefore , is to select essential top ic s and arrange them in a s om ew hat ped ago g ica l order. I am unc o m for tab l y aware that , on the one h and , I will not do j u st ice to the depth and beauty of Thomi sm and that , on t h e other h a nd I will not satisfy the h igh sta n d a r ds of p rofess io n a l Thom i sts . How­ ever, I am wr iti n g m a i nly for those who neither are nor wish to be Thomi stic scho la r s . ,

PR ELIMINARY C L A R IFICATION OF K E Y TE R MS

i. Positive Law

[ 1 72] Positive l aw (va r io u sly called "human l a w;' "manmade l aw;' "ci v i l l a w;' "mu n i ci p a l l aw " ) i s the l aw p roduced by human l ega l i n stituti o n s . Thu s the statutes of the state of M i s sou ri or those pa ssed by the "Queen in Parl i a m ent" are Positive l a ws. The term " posi t i ve" i s h ere phi losoph ica l l y neutral a n d i s u sed , i n the sen se here indicated , by a l l school s o f j ur i sprud e nce .

38

GENERAL DOCTRINAL BACKGROUND FOR THE TREATISE

39

ii. Positivism

[ 173 ) "Positivism" names a jurisprudential or philosophical position . It rejects Natural L aw and maintains that there is no nec­ essary connection between Positive L aw and morality. H. L. A. Hart summarizes the Positivistic position thu s :

T h e expression 'positivism' is used in contemporary Anglo­ American literature to designate one or more of the following contentions: ( 1 ) that l aws are commands of human beings; (2) that there is no necessary connexion between law and morals , or law as it is and law as it ought to be; ( 3 ) that the analysis or study of meanings of legal concepts is an important study to be distinguished from ( though in no way hostile to ) historical inquiries, sociological inquirie s , and the critical ap­ praisal of law in terms of morals , social aims , functions , &c; ( 4 ) that a legal system is a 'closed logical system' in which correct decisions can be deduced from predetermined legal rules by logical means alone ; ( 5 ) that moral judgments cannot be established , as statements of fact can , by rational argu­ ment , evidence or proof ( 'non cognitivism in ethics' ). Bentham and Austin held the views expressed in ( 1 ) , ( 2 ) , and ( 3 ) but not those in ( 4 ) and ( 5 ) ; Kelsen holds those expressed in ( 2 ) , ( 3 ) , and ( 5 ) but not those i n ( 1 ) o r ( 4 ) . Contention ( 4 ) is often ascribed to 'analytical jurists' but apparently without good reason . iii. Natural Law

[ 1 74) Both Natural L aw and the Law of Nature have two very different meanings . In science the laws of nature , like the law of gravitation , are generalizations or theories about the way physical nature operates. From the Positivistic viewpoint , such l aws merely describe natural happenings; for others these laws reveal a necessity in nature. [ 175) But Natural Law, as used in philosophy, ethics , and j urisprudence , consists of a set of principles and precepts , worked out by human insight and reflection , based on the concrete nature and activities of human beings which ought to guide human conduct. iv. Positive Morality

[ 1 76) Positive morality is the de facto morality of any given society, i . e . , the complex of rules and customs which the society accepts as being the obligatory way for human beings to act .

40

v.

GENERAL DOCTRINAL BACKGROUND FOR THE TREATISE

Moral Relativism

[ 1 77) Moral relativism maintains that there are no moral absolutes , no moral principles that have universal value . The positive morality of any society is simply in function of that society and cannot be used to criticize the morality of any other society. Natural L aw thinkers, on the other hand , maintain that there are some moral precepts that have universal force in all human societies. Thus Aristotle said that the principles of justice were the same in Athens and in Persia .

SECTION 2 : THE DOCTRINE OF THE FOUR CAUSES

A . INTRODUCTION [ 17 8 ) As stated above [097) , St. Thomas uses an explanatory mode of defining based on the Doctrine of the Four Causes . It is, therefore , necessary to explain that Doctrine . [ 179] Aristotle gave the Doctrine its classical formulation , though , of course , he used ideas from previou s thinkers . He presented it primarily as a method of explanation , but , precisely because it is a method of explanation , it can be used as a method of defining. [ 1 8 0] The result of an explanation is understanding. When can we say that we understand some entity or some event? When we exhaust all our questions about them , we say we understand . For example : Someone says, "I don't understand a word processor." Some­ one undertakes to explain it to him . Finally the expositor asks , "Do you understand or do you have some more questions ? " The person so addressed may reply, "I don't quite understand this or that." The explanation resumes. Or, he may say, "I now u nders tand it:' [181] Thus understanding can be translated into the answering of questions . Now, Aristotle pointed out that all questions that could be asked at the universal level , that is , at the level of scientific and philosophical investigation , could be reduced to four basic categories of questions and that these categories were radically different and were mutually irreducible .

GENERAL DOCTRINAL BACKGROUND FOR THE TREATISE

41

[ 1 82] First , it must be noted that in this Doctrine the term "cause" is used in a wider sense than in modern English . When we speak today of a cause , we almost always mean an E fficient Cause. In the Doctrine "cause" means any factor that is necessary to bring about an effect through an intrinsic relationship to that effect . The causes can also be used to explain the continued existence of an entity.

B.

THE FOUR CAUSES

[183] To enable the reader to follow the exposition , we list the four b asic categories and then explain each one of them in detail . The four categories are : 1 . The Material Cause; 2 . The E fficient Cause ; 3. The Final Cause ; and , 4. The Formal Cause . 1.

The Material Cause

[ 1 84] An old-fashioned watchmaker sits at his workbench . In front of him are boxes of wheels , screws, jewels , springs , etc . These various items do not constitute a watch . They are , however, necessary for the making of a watch . If his boxes were empty, the watchmaker could not make a watch . When he puts them together to make a watch , they remain in the result , that is, in the watch and are part of its reality. [ 1 85] These materials are the things out of which the watch is made . They are called the Material Cause of the watch . [186] Now let us consider another case . A sculptor has before him a block of marble. The block is not a statue but is essential for the production of a statue . The sculptor cannot produce a statue unless he has something to make it out of. [ 1 87] When the statue is made , marble remains in the effect , that is , it is an intrinsic and necessary p art of the statue . The marble is called the Material Cause of the statue . [188] Out of these examples , by induction , we generalize the following definition . [189] The Material Cause is that out of which or in which the effect is produced . [ 190] Note that in this definition , "material" is not , as the examples might suggest , used in the sense in which we contrast

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GENERAL DOCTRINAL BACKGROUND FOR THE TREATISE

material beings or physical matter with spiritual entities or intellectual abstractions . 2 . The Efficien t Ca us e

[191 ) Looking back at our examples , we can see that the watchmaker plus the materials in his boxes do not account for the final watch nor do they constitute a watch . Clearly, he must put the parts together. Thus he contributes to the result, i . e . , the watch , by doing something, by activity. He is called the Efficient Cause ( or the agent) because he effects the result by ac ting ( from Latin agere [to act) ). [ 1 92) Now, consider the sculptor. The same reflection makes clear that the sculptor must do something, if there is to be a statue . The sculptor is the agent, the E fficient Cause. [ 193) So again , by induction , we generalize the definition : The E fficient Cause is the cause that contributes to the effect by activity.

3. The Final Cause

If we now consider the agent, namely, the watch[ 194) maker or the sculptor, what explains their doing or making? Of course they must have the appropriate skills but that alone does not explain why they actually make watches or statues . They act for a purpose. According to St. Thomas all acting or making is or[ 195) dered to a purpose. Thu s , the watchmaker may make watches in order to make money or as a hobby. It is the purpose that moves the agent to act. It contributes to the effect through the Efficient Cause by being desired. It is called the Final Cause . It is essential to the acting of the agent. [ 196) So we generalize the following definition : The Final Cause is the cause that contributes to the effect by being desired. [ 197) An analysis of human activity supports the dictum that all intelligent agents, when positing human acts as such , act for an end ( purpose). [ 19 8 ] We might note here that human beings direct their human acts to a Final Cause or private goods of their personal choosing while law directs certain human acts (positive or negative) to the Final Cause of society, the Common Good [393-404] .

GENERAL DOCTRINAL BACKGROUND FOR THE TREATISE

43

4. The Formal Cause

[ 1 99 ] Now, what is the difference between the watch and the materials in the boxes ( the Material Cause of the watch ) ? The watch is not just a heap of metal bits . Is it not the structure or the organization of these parts that make the watch be a w atch ? This factor is called the Formal Cause of the watch . It "forms" the p arts into a watch in a way analogous to the way the shape of a statue makes it to be a statue of St. Thomas rather than j ust a block of marble or a statue of St. Francis. [200] Hence the definition : The Formal Cau se contributes intrinsically to the effect by being in it and making it to be the kind of thing it is. Note that both the Material Cause and the Formal Cause are in the effect and , in some sense, remain in it . [201 ] The examples used here are rather simple cases, d e liberately chosen for that reason . But there are other widely analogous uses. One of these is in the formulation of St. Thomas's definition -

of l aw. [202]

In order to complete the explanation of the Doctrine of the Four Cau s e s t h o u gh it may not be relevant to our present purpose-I must indicate that there are several subdivisions in some of the categories of causes . [203] In the category of Final Cau se, we can d i sti n gu i sh the Final Cause of the thi n g done and the Final Cause or purpose of the agent . For e x a mpl e , the in trin s i c Final Cause of a watch ( the th ing don e ) is to tel l time. If some i nstrument is made t h at looks like a watch , i f it does not indicate time , it i sn't a w atch . The Fin a l C ause of the watchmaker's activity may d i ffer from the intrin sic Fin a l C ause o f the watch made. Thus he m ay make watches for money, for fu n ( i . e . , a s a hob by ) , t o h a ve gifts for h i s friend s , and s o forth . A statue may be simply a work i n tr i n si ca l l y ordered to aesthetic enjoyment , -

wh i l e the scu l ptor's purpose migh t be q u i te d i fferen t , e . g . , to m a ke money, to honor a s a i n t , or to please h i s wi fe . [ 204] [Th i s di stin ction between the fin a l ity of the th i ng made and the fin a l ity of the m a ker i s extremely u seful i n a reas other th an juri spru dence . Thu s , i n a ny economic system the i n tri n sic Fin a l Cause o f a shoe fa ctory i s to m a ke shoes, wh ile the Fin a l Cause of the activity of the workers and owners i s to make money ; in a slave economy the purpose of the workers i s to get food a n d avoid a

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GENERAL DOCTRINAL BACKGROUN D FOR THE TREATISE

whipping; in an idealistic Mao T se-tung economy it is to serve the necessity of the society. ] [205] In the category of E fficient Causality, we distinguish the primary Efficient Cause from instrumental E fficient Causes. Thus, in the making of a statue , the sculptor is the primary E fficient Cause while his instruments-hammer, chisel , etc . - are instrumental causes. The total E fficient Cause is the sculptor plus his tool s . The primary cause imparts , as it were , effectiveness to the instrumental cause , whereas the instrumental cause increases the capability of the Primary Efficient Cause . [206] In the category of Formal C ause , we distinguish the internal Formal Cause from the extrinsic Formal Cause . Thu s , in the building of a bridge , the intrinsic Formal Cause is the arrangement and integration of the steel , concrete , etc. The extrinsic Formal Cause is the plan of the bridge in the mind of the engineer and in the blueprint. The extrinsic Formal Cause may also begin as a real entity, when , for example , an artist paints the picture of a certain cathedral or a portrait of an individual . Then , the extrinsic Formal Cau se is the cathedral or the person whose appearance is p ainted . [207] For obvious reasons , the extrinsic Formal Cause is also called the E xemplar Cause . [20 8 ] Explanation by means of the Four C auses dominated Medieval science , philosophy and theology from the thirteenth cen­ tury well into the seventeenth century. In the seventeenth century it confronted modern science and was theoretically ignored. But it still influenced thought even up to the present time . William Wallace in his Causality and Explanation has made the continuity of causal explanation clear, as he tracks its course from Aristotle to the present. [209] Not all disciplines use all four causes . Modern physics does not use the Final Cause. This is a methodological choice . On the other hand , Geometry, because of its very nature , that is, because it deals with the formalities of continuous quantity, cannot use the Efficient Cause or the Final Cause . There is no place for the E fficient Cause , because there are no happenings , no changes in its subject matter. Since the Final Cause causes through the E fficient Cau se , there can be no Final C ause . [210] In order to maintain the relevance and the internal unity of this extended b ackground presentation , I provide a brief preview of how the Doctrine of the Four Causes is used in St.

GENERAL DOCTRINAL BACKGROUND FOR THE TREATISE

45

Thomas's definition of law : Law is a promulgated dictate of reason for the Common Good made and promulgated by him who has the care of the community ( q . 90, a. 4, c . ) . Promulgated dictate of rea son is the ( intrinsic) Formal C ause of law ( q . 90, a. 1 and a. 4 ) . The Common Good is the Final Cause ( q . 90, a. 2). The one who has the care of the community and makes and promulgates the law is the Efficient Cause ( q . 90, a. 3 and a. 4). The community or human acts within society are the Material C ause ( q . 90, aa . 1 through 4 ) . [21 1 ] Note that promulgation appears with two different causes. Since promulgation is essential to law, promulgating is part of the activity of the E fficient Cause. The act of promu lgation resu lts in a promulgated dictate and so promulgation becomes part of the Formal Cause. In q . 90, a. 1 , Reply 2, St. Thomas illu strates th is kind of distinction by the example of building a hou se and the house built. John Finnis ( Natural Law and Natu ral R igh ts, pp . [21 2] 3-22) h a s criticized Positivi sts for not p rov i d ing a c ri ter ion for se­ lecting the important or the e lu c idat i n g features of l aw. The Doctrine of the Four Causes provides a set of questions the an swers to wh ich constitute an elucidation of the essence or nature of l aw. T h e Doctrine thus sup pl i es the mi ssing b asic prin ci p l e .

SE C TION 3 : S T. THOM A S 'S WOR LD VIE W

A . INTRODUCTION [2 1 3 ] St. T h om a s wrote as a Catholic theologi a n a n d as a medieval schol a r. He therefore accepts Divine Revel ation as pre sented i n the Bible a n d in the traditions of the Church , i ncluding a l so the development of the Faith th rou gh Chri sti an experience and reflecti on . A t the same ti m e , he accepts many of the philosophical positions adopted by A ri stotle . H i s theology i s thu s a synthesis of C h ri sti a n bel ief a n d h u m a n understa n d i n g . This u n i on of Faith and rea son is indicated by the fact that the three m a i n sources for auc to rita tes in the Treatise a re the Bibl e , Ari stotle , a n d St. A ugu sti n e . In common

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GENERAL DOCTRINAL BACKGROUND FOR THE TREATISE

with other medieval scholars , S t . Thomas saw in Aristotle the only example of a rather complete rational system of philosophy, developed without b enefit of a real or alleged religious revelation . [214)

Now St. Thomas not only developed a philosophical

jurisprudence , he also integrated it into his comprehensive view of reality. It is true that a great deal of St. Thomas's jurisprudence can be extricated from his synthesis and presented in its own evidence . But, if one wishes to understand the Treatise, he must have some knowledge of the broader context . Hence I present here two brief outlines of St. Thomas's world view. The first is more theological , the second more philosophical . Since these two outlines are combined in St. Thoma s , there will be some overlappin g .

B.

[215]

THE THEOLOGICAL OUTLINE

In St. Thomas's theology God is, of course , the in-

finite Being, the Creator of all things . But in the universe thus created by God , the human creature has a unique po sition . The human creature , alone in the world we know, is made to the very "image and l ikeness" of God Himself; he alone can understand , can know and appreciate , and he alone can consciou sly experience and respond to God's love . All other things are determined by physical laws ; man alone is free . Therefore man has an eternal destiny transcending the material world . [216]

Now S t . Thomas distinguishes two levels of reality,

a natural order and a supernatural order. The n atural order includes all those things which exist and operate according to their own nature ; fish swim , fire burn s , man reasons and love s . But God has given human beings not only their nature but a new level of life which flows not from man's nature but from the Divine Life . Thus man , who can naturally know and love God from the outside , is now introduced into the very internal life of the Blessed Trinity. [217)

So when our first parents were created , they were

also endowed with this participation and were also given special gifts of grace . But they turned against God and thereby lost both their sharing His divine life as well as those special gifts . [218]

God , in His mercy, sent the Second Person of the

Trinity into the world , incarnate in Christ Jesu s . Christ , through his

GENERAL DOCTRINAL BACKGROUND FOR THE TREATISE

47

life and sufferings , won fo r all good people access t o the Divine Life. The special gifts were not restored . [219] S t . Thomas, though accepting the Doctrine of Original Sin ( the sin of our first parents) , did not believe that that sin had intrinsically destroyed man's reason or his natural ordination to good. This is an important point for understanding the Treatise, for St. Thomas frequently refers to man's inclination to good . This may be better appreciated when one remembers that in some non-Catholic theologies man is considered as completely depraved by Original Sin . [220] St. Thomas believes that all laws, in one way or another, help man attain his destiny in God.

C. THE METAPHYSICAL OUTLINE

[ 22 1 ] God is an infinite , perfect being, intelligent, free, and all-powerful . He necessarily exists and exists without dependence on any other being. [222] All other beings in the universe are contingent, that is, they do not exist in their own right and cannot explain their own existence . They are dependent upon God for their existence and for their continuance in existence. [223] God is thus the creator of all things . "Creator" is here u sed in the strict metaphysical sense . In this sense , creation is the production of being without any preexisting matter or being ( except God). Creation is not a change . A change presupposes some­ thing that changes. All the productions of which we are aware in this world are changes. We have to make things out of preexisting things . We have thus no direct experience of creation . [224] All the things in the universe are , therefore , totally dependent on God and totally derived from Him. [225] St. Thomas analyzes the relationship of created things to God in accordance with the Doctrine of the Four Causes. [226] God is the ultimate Efficient Cause of all created things . God produces the totality of every being. Despite this fact, created things really exist and really exercise causality, a limited causality to be sure, but, nonetheless, a real causality. [227] God is also the ultimate Exemplar Cause ( external Formal Cause) of all things. Since God is infinite reality, all created

48

GENERAL DOCTRI N AL BACKGROUN D FOR THE TREATISE

realities must , in some way, mirror God . We can distinguish the ultimate exemplarity which is the nature of God from the proximate exempl arity in the mind of Go d wh ich is the determi ned exemplar for this universe . This latter exemplar is called the Etern al Law ( q . 9 1 , a. 1 ). [228] In divine efficiency there i s no pre-existi ng material cause ( a s th e marble pre-exists the statue ) . God concreates the intern al material cause in finite beings . [229] In one sen se , Go d Him se l f i s the fi n a l cau se of the uni verse. All th i n g s necessarily sh ow forth the perf ecti on s of God a n d God H i m self i s the ultim a te term of a l l desire . [ 230] T h e finis opera n tis , th e moti ve of God , i f we ca n so speak of divin ity, i s love . B ecau se of Hi s pe r f ecti o n God creates i n te ll ige n tly, freely, a nd l ov i ngly . [ 23 1 ] S t . T h om a s often s ays th a t crea ted th i ngs "pa rticip ate " i n God's perfection s . Th i s term thu s expresses th e fact th at p e r fe cti on in c re a ted t h i n gs resem bl es th e correspon d i ng perfection i n God ( exe m pl a ri ty ) bu t i n a d efi ci en t m a n n er ( a s th e fi nite fall s s h or t of the i n fi n i te ) and i s derivati ve ( by efficien t cau sa l ity ) from God . T h u s St. Th o m a s says th a t the N a tu ra l L aw, wh i ch exi sts i n u s , i s a p a rti c i p a ti o n in th e E tern a l L a w, wh i ch i s i n th e mind of G o d ( q . 9 1 , a . 2 , c. ) . T h e te rm "p a rti cip a t i o n " i n Thom i stic l a ngu age i s a very p regn a n t exp re s s i on . S i n ce i t i s u n d erstood in r el a t i o n to the Fou r C a u ses , i t h a s l o st i t s v a ri ou s Pl a ton i c a n d Neo- Pl atonic m ea n i n g s .

SE C TION 4 : "NA T UR E " A N D "E SSE NC E "

on s why

i t i s necessa ry to cl arify

the T h o m i stic m e a n i n gs of these two term s .

The fi rst i s th at , i n the

[232]

T h er e a re two

rea s

b a sic i n i ti a l Q ue stion of the Trea tise , St . Th om a s poses t h e question , "W h a t

i s the e s sence of l a w ? " The secon d rea son i s th a t the Thomi stic

u nderst a n d i n g of h u m a n n a tu re , the essence or

n a tu re

of m a n ,

un­

d erl ies St . Thom a s's p h i l o sophy of m a n , h i s eth ics , a n d h i s ph i l osophy o f l a w.

GENERAL DOCTRINAL BACKGROUND FOR THE TREATISE

49

[23 3 ] Most Positivists deny that there is any such th ing as an "essence" or "nature:' They assert that a question like , "What is the nature or essence of law?" is uselessly vague or even meaningless . [234] In St. Thomas , h oweve r ( and in the Scholastics in general) , these terms have a very precise and explicit meaning. It is true that, like so many philosophical terms, they are used in a variety of senses. Here I will discuss only the meaning directly relev ant to the Treatise. [235 ] I will attempt to explain the meaning of "essence" by describing it in three different ways. First of all , essence is rel ated to existence. Essence consists of those realities ( a Positivist might say "those characteri stics" ) which are necessary and sufficient for the existence of the kind of th i n g under study. Thu s , the essential defi­ n ition of a triangle as "a three-sided plane figure" p rov ides the fun­ damental realities necessary and sufficient to h ave a t ri a ngle exist . If one of these elements , e . g . , "three-sided" is missing, there simply is n o t rian gle. But, i f all these elements are present , no matter what other elements m ay be present, there is a tr i a n gle Hence we s ay th at the elements expressed in the definition of a triangle are "essential" to a t r i an gl e [236] Seco nd ly, the essence also di s t ingui she s one kind of thi n g from another kind of thing. Thu s , a triangle is clearly disti n gui shed from a square since th ree-sidedness is included in its essen ce , whereas a sq u a re i s essen t i a l l y fou r -s i ded [237] Th i r d l y, the essence consists of the elements that a re basic to the object i n question . Thus , we d i s ti n gu i sh two s e ts of elements in an object , those that are b a sic to the object and those wh i ch th ou gh necessary, are derivative from the b a s ic elements . .

.

­

.

,

[ 23 8 ] The essence consi sts of the basic and pri m a ry elements and intel li gi b i l i ty of the kind of th ing under d i scu ssion . The essence i s thu s di fferenti ated from other necessary bu t secondary and derivative cha racteri stics. These l atter ch aracteri stics a re called "p rop­ erties." Thus , the pri m a ry elements a n d i n te ll i gi b i l i ty of a tri a n gle are expressed in the defi nition of a tri a n gle as a "th ree- sided plane figure :' These el ements cannot be derived from any more primiti ve elements or i n tel l i gi b i l ities. The defi n ition i s derived from immed i a te con sideration and a n a lysi s of a tri angl e . But given th i s basic under­ standing of a tri a n gle , other elements or characteri stics of tri angle can be derived in various ways . Thu s , geometers establ i sh th at "the

50

GENERAL DOCTRINAL BACKGROUND FOR THE TREATISE

sum of the angles of a triangle is equal to the sum of two right angles ." This is a property of triangle and is derived from the essence of triangle. [239 ] Thus, the whole of trigonometry is a display of the properties of triangle and their logical mode of derivation from the essence. [240] Now, besides constitutive elements and properties, there is a third class of qualifications called "accidents." Thu s , it is of the essence of a triangle that it have sides and that these sides have length , but that a side of a triangle be three inches long is neither part of the essence nor necessarily derivative from it. Yet it is a qualification of this p articular triangle. Hence , that a side be three inches long is accidental . [241 ] Thus St. Thomas had a methodology for analyzing the inner structure of any given kind of thing. Additionally, he could distinguish accidental qualifications of an instance of this kind of thing which are appropriate for this sort of thing though not necessary to it. [242] Let us apply this methodology, briefly, to one of St. Thomas's primary interests, human beings. [24 3 ] The traditional definition of man , accepted by St. Thomas , the Scholastics, and many others is "rational animal ." This is an essential definition since it expresses the two elements of the essence of man . [244] Whenever we find a being that is an animal and yet possesses the ability to understand and to reason , we know we are dealing with a human being. As anthropologists and missionaries found different tribes and groups , however different their customs ( exotic to us) , they were able to identify them as human beings. Thus, the presence of these two elements is necessary and sufficient for the existence of a human being. Moreover, these elements adequately distinguished human beings from all other kinds of beings. [245] Moreover, all the proper characteristics of human beings are derived from or necessarily connect with these essential elements. [246] Because man has a universalizing intellect, he can consider a range of possible goods or choices and , after such con­ sideration , can determine freely, to a certain extent, the particular good or choice that he deliberately makes his "own ." He has the

GENERAL DOCTRINAL BACKGROUND FOR THE TREATISE

51

power to make , within limits , free choices and so escapes the deter­ minism of nature . He can construct sciences and set up legal system s because he is rational. Throughout the history of ph ilosophy, risibility, the ability to laugh , has often been recognized as a property of man . In order to laugh one must have an intelligence to recognize humor and a body to express this recognition . Neither brute animals nor angels can laugh . Likewise , we can distinguish many accidents th at can modify individuals or groups of individuals . Thus brownness of skin is neither an essential element nor a property of human nature . [247] Human beings in the concrete are extremely complex ; yet the analysis into essence , properties , and accidents can deepen our understanding of human life and human activities . [248] When , therefore , St. Thomas posits the question , "What is the essence or nature of law ? " h e isn't presenting some vague obscure question but a very clear and precise one . [249] I have already pointed out that St . Thomas's definition of law is an "ex p l a n ato ry" one , worked out in accordan ce with the methodology of the Four C au ses . I now assert that it is an essenti al definition , i . e . , it expresses all the essentia l elements of a law. [250] "A dictate o f [ p r act i ca l ] reason [ = a rule and measu re of human acts] , for t h e Common Good , made by him who has the care of the community, an d p romu lg ated : ' [251 ] If a ny one of these elements i s missi n g , no l aw exists . Perh ap s a t h i n g re se m b l i n g a l aw i n some ways m ay exi st a n d , th erefo re , b e cal l e d a " put ati ve " l aw o r a law secundum quid, i . e . , i n some l i mi ted or partia l sen se. If all these e lements are presen t , a l a w ex i sts- simplici ter, i . e . , in the ful l s en se , without qu a l i fi c a tion . Thu s , if a piece o f l egi sl a tio n h a s b ee n pa sse d by C on gress and s igned by the Presiden t , i t can be ca l l ed a l aw. But, i f it fa i l s i n some other respect, e . g . , i f i t i s contrary to the Common Good , i t i s not a l aw simpliciter but on l y secundum quid. [252] St. Thom a s estab l i shes h i s defi n i tion of l aw, wh ich is both an ex p l a n a tory and an essenti a l defi n i tion , in th e First Ques ­ tion of the Treatise. There are , h oweve r, six further questions in the Treatise. What is St. Thom a s doing in these questi on s ? How does he fu rther develop h i s i n vestigation of l a w ? [ 25 3 ] In order t o an swer these question s , I return to ou r pri m a ry example , n amely, the tri a n gle . [ 2 54 ] A fter establ i sh i n g h i s defi nition , the geometer does

52

GENERAL D OCTRI N AL BACKGROU N D FOR

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three things . First , he works out the properties of triangle as such . Thus he shows that , given the essence of triangle , the sum of the three angl e s of a triangle is equ a l to the sum of two right angles. No one woul d think that this theorem , though true and necessarily so , defines a triangl e . Then , the geometer expands the list of theo­ rems , setting forth the prop erties of tria ngle as such . A l so , since triangle i s a genus and not a sp ecies , it i ncludes d i fferent kinds of triangles which differ essenti ally among them selves and not merely as individu al s . [255] Thus the geometer i dentifies th e righ t tri a ngle as a species or kind of tri a n gle . Its defi n ition i s developed by recognizing an essent i a l element ( one righ t angl e ) that does not appea r in the definiti on of triangl e i n gener al . A right tri a ngl e d i ffers essenti a l ly from an equ i l a tera l tri angle a n d not m erely i n d i vi du a l ly a s one righ t tri a ngl e d i ffers from anoth er right tri a ngl e . [256] The geometer then d eterm i nes the properties of the species of tri a n gles . Thu s , th a t the squ are of the hypotenu se of a right tri a n gl e i s equ a l to the su m of th e squ a res on the other two sides is a property of a righ t tri a ngl e , necessa rily derived from its essence , yet not identical with th at essence . In a somewh a t d i fferen t order, St . Thom a s does much [ 2 57] the same th i n g . I n Questi on 9 1 he d i sti ngu i sh es fo ur dif ferent species of l aw wh ich , a n a logou sly at l e a st , f u l fi l l the defin i ti on of l aw worked out i n Question 9 0 , bu t he does not sep a ra te the properties of l aw i n genera l from the properties of the d i fferen t species of l aw. Th is mu st be determined from the context . [2 58] There a re two l i stings of properties of l aw a s such , one of wh ich ( th a t of S t . Isid ore ( Etym ologies, V. 2 1 ) i s expressly a pproved by St . Thom a s ( q . 9 5 , a. 3 ) , a n d the oth er of wh ich (th at of Lon Fu l l er, The Morality of L aw, pp . 4 6- 90 ) ca n ea si ly be rec­ onciled with both Isi dore a n d St . Thom a s . [ 2 59] A fin a l note . I n m a ny c a ses we ca nnot d i scover the tru e essences of thi n gs . We then u se a group of appa rent properties or a sel ection of recu rren t acciden ts to function in knowledge a s essences. T h u s we defi n e " gol d " by ca refu l l y exa m i n i ng i t e m pirica l ly a n d by descri b i n g some of i ts ch a ra cteri stics : a h eav y yellow, inert , m et a l l i c ch em i c a l element wi th a h igh degree of du ctil i t y and m al­ ,

l e a bi l i ty ( We b s te r 's New Wo rld D ic tiona ry ).

[ 2 60]

L i kewi se , i n defi n i ng a "ro se "

we

pu t it

u nder

a

GENERAL DOCTRINAL BAC KGROU N D FOR THE TREATISE

53

p seudo-genus described throu gh sel ected characteristics : any of a ge­ nus ( Rosa ) of shrubs of the ro se family, characteristically with prickly stems , alternate compound le aves , and five-parted , usu ally fragrant flowers of red , p in k , wh ite , yellow, etc . having many stamens ( op . cit. ). How many of these ch ar acteristics are true properties or elements of a n e ssence , we do not know. Bu t St . Th om a s believes that , in the case of geomet ri ca l entitie s , hu man n atu re , and the law, we can di s cover true essences and at l e a st some rea l properties in the strict sen se. [261 ] W h en we exa m i n e any con crete or i n d ivi du a l i n stance o f any es s e nce , we di scover a variety of q u a l i ficati o n s appropri ate to such a k i n d of th ing but wh ich are neith er pa rt of the essence nor derived from the e s sence a s propertie s . I h ave a l rea dy in sta nced " brown -colored skin ." A n a n i m a l h a s to h ave some color, but whether it b e green , b l a ck , or brown i s n ot nece s sa ry to i t . I now give a more re l e va n t e x a m p l e . [262] From th e a n a ly si s of a l a w- a ccord i ng to St . Thoma s : P rom u l gat i on i s of the essen ce of l aw. F rom th i s t he property of cl a ri ty ca n b e d e d u ced . It i s righ t ly l i sted a m ong L on Fuller 's "prin­ c i pl e s of l e g a l i ty " or "p ri n cipl e of the in ner mora l ity of the l a w " ( The Morality of L aw, p p . 6 5- 6 9 ) , a n d a m ong I si d ore 's "qu a lities " of the l a w ( E tymologies , v. 2 1 ; q . 9 5 , a . 3 ) . [263] Bu t , whether th i s promu lga ti on i s a ch ieved by the p o sti n g of the l a w i n the Foru m or by bei ng rea d at design ated points by the town c r i e r o r pu b l i sh ed i n a Federa l R egi s t er or by b roadca st over o ffi ci a l r a d i o is a m a tter of i n d i fferen ce to the essence a nd p rop e r t i e s of l aw a n d w i l l b e d eterm in ed by fa ctors ou tsi de the n ature of l a w. Thu s , i f 9 9 pe rcen t of t h e popu l a ce were i l l i terate , printed pu b l i cation wo u l d h a rd ly b e promu lga tion ; l i kewi se , i f t he com mon l a n gu a ge of the peopl e were Germ a n , pu b l i ca ti on i n L atin would h a rd l y be p rom u l gation .

Thu s the factors d eterm i n i ng th e m ode of

pub l i c a tion a re outside th e n a tu re of l a w.

[ 2 64]

Th u s , the m ethodologica l a n a lysi s of th i ngs into es-

sence , properti es , a n d a ccidents m a kes i t possi bl e to determine the i n te l l i g i b l e i n terre l a t i on s h ip between the "fea tu res " or "elements " of a l a w or a l ega l sy stem wh ich a re ob scu red by the si mple l i sting of s u ch fe a tu res i n descriptive d efi n i ti on s l i ke those

of th e

"centra l ca se "

or t h e comprehen s i ve description s l i ke th a t of Joh n Fin n i s 's defi nition

of a l eg a l system ( Na tu ral L aw

a nd Na tu ral

R ights,

pp .

2 76- 2 8 1 ).

54

GENERAL DOCTRINAL BACKGROUND FOR THE TREATISE

[265] St. Thomas's definition of a law ( I-II , q . 90, a. 4, is both an explanatory and an essential definition .

c.

)

SE C TION 5: H UMAN NATURE A . INTRODUCTION

[266] In the last Section I discussed St. Thomas's method of analysis of different kinds of substances. In this Section I use this analysis to present some aspects of St. Thomas's view of human nature . We must investigate the understanding of man because all Natural Law thinkers, in one way or another, base their theories on the nature of man .

B . THOMISM VS. MATE RIALISM

[267] Some people think that evolutionary theory has shown human beings to be simply animals , more cunning and clever than the other animals , but, nonetheless , simply another species of ape . From the standpoint of Thomistic epistemology, this is a mis­ taken application of scientific methodology beyond its competence. Modern physical science is limited by its formal nature, its presup­ positions and its methodology to dealing only with material reality. It is unable even to raise the question of spiritual reality. Hence it can say nothing, either positively or negatively, about a spiritual element in man . To attempt to extend the methodology of physical science to spiritual questions is like trying to prove the existence of God from mathematics or like trying to paint a picture with a violin . [268] Scientific evolutionary theory did not exist in the science of the thirteenth century, but I think we can safely assert that St. Thomas would have left the matter to the scientists insofar as it concerned the material world and so also the material element in man . However, St. Thomas's epistemology would have rejected the extension of scientific methodologies to man as spiritual . The spiritual

GENERAL DOCTRINAL BACKGROUN D FOR THE TREATISE

55

nature of man requires quite different modes of investigation . And , according to these modes of investigation , man has a spiritual soul .

C. INTELLIGENCE , WILL , AND FREE CHOICE

[269] The general principle for identifying different sorts of beings is that their operations , and their capabilities, both active and passive, reveal their distinctive natures. We distinguish animals from plants by the special operations which animals display and plants do not . So also we distinguish human beings from animals by their special attributes. The special attributes of human beings are summed up in the word "rational" which contrasts sharply with the other animals which are "non-rational ." Human beings possess a cognitive power which enables them to universalize , to grasp meaning, to reason logically, to understand relationships, to perform perfect self­ reflection , and to understand the real as such . Moreover, since man's intellect is universalizing and man is ordered to the good in general , human beings can consider a range of choices and deliberately choose one to the exclusion of the others, that is, human beings are capable , at least to some degree , of making free choices. [270] These operations cannot be reduced to sense-level activities and none can be explained by neurology, materialistic p sy­ chology or, least of all , by physics . Man is therefore said to have a spiritual intellect and a spiritual will.

D . T H E SOUL

[271 ] Intellect and will are powers or faculties, not substance s , and so must be supported by a substantive principle in the nature of man . This substantive principle is called the soul . [272] Thus man is a union of two substantive principles, a spiritual one ( the soul) and a material one ( the body). In Thomistic doctrine, this union is substantial , not accidental , and is therefore a complete unity in being; man is one substance , not two substances conjoined in some extrinsic manner. All this is congruent with our natural experiential knowledge of ourselves and is expressed in the pronoun "I ."

56

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[273] This view is in sh arp contrast to the position of Plato and of Descarte s . For both of these philosophers , the soul is a com­ plete sub stance in itself, but for Pl ato th e body i s l ike a temporary garment for the sou l , while for D escartes the body is a machine controlled by the soul through the pineal gland . For St . Thomas the unity of man is so intimate that he t h in k s of i t in terms of Ari stotle 's Doctrine of th e Four C a u ses ; the b ody i s the m ateri al cause of man , the soul is the form al cause wh ich m a kes the body to be human . Hence , the spiritual in t e l l ect and the physica l b r a i n can cooperate in man's conscious l i fe . [274 ] A cco r di n g t o St . Th o m a s , then , alone in the known u n i verse man h a s i n te l l i gen c e , will , a n d free ch oice in the strict sen se , and , since he alone h a s a spi ri tu a l sou l , h e i s u n ique i n the known u n i verse. [275] M a n tr a n scend s the l i m i ts of m a tter ; he a l o n e a sks the cosm i c q ue s t i on s , the u l ti m a te whys ; h e a l one ca n u ndersta nd a n d e x p l a i n . S i n ce h i s soul i s spi ri tu a l , he escapes th e m o rta l ity to wh i ch a l l other crea tu re s a re doomed . Hi s d estiny tra n scend s the m a te r i a l u n i verse a n d rea ch e s i n to etern ity. Hi s u l ti m a te quest is God a n d , i n re a ch i n g God , he wi l l re a ch fu l fi l l men t a n d h appi n ess.

E.

THOMISTIC D O CTR INE AND R E LIGION

[ 276 ] A l l th i s , St . Th om a s bel i eves , ca n be esta bl i shed by rea son . For h i m , a s for a l l C a th ol i cs ( a n d m a ny other Ch ri sti a n s) , rel i gi o n , R evel ation , a n d th eol ogy a d d incred ibly much more . How­ ever, St . Thom a s's tota l theology i s n ot stri ctly necessa ry to u ndersta nd the Treatise so I will not attempt even a brief su m m a ry. When the ­ ological poin ts app e a r i n the Trea ti s e they will be expl a i n ed in the c om me n ta ry ad locum.

F.

M A N' S OR IE N TAT ION TO THE GOOD

[277] St. Tho m a s bel i e ves th a t , since th e fi rst self- evident princi ple of the m or a l order i s th a t goo d shou l d be d one a nd evil a voided , m a n h a s a b a sic orientation to the good . Th i s pl aces St. Thom a s i n opposition to v a riou s other views of m a n . Thu s m any

GENERAL DOCTRINAL BACKGROUND FOR THE TREATISE

57

Protestant theologians believe that Original Sin has completely de­ stroyed the orientation to the good. St. Thomas does not accept th is negative view of Fallen Man . Likewise , St. Thomas is in sharp dis­ agreement with Hobbes who held that man is naturally aggressive and has to be restrained by an all-powerful ruler. St . Thomas rejects this pessimistic view of man . For St. Thomas, law is primarily a rule that presupposes man's orientation to goo d . For St. Thomas, sanction s and punishments are only extrinsically connected with law.

SE C TION 6 : THE NAT URE OF H UM A N A C TS

[27 8 ] I n the Corpus of q. 9 0 , a . 1 , S t . Thomas states that law is a rule and measure of human acts. W h at does he u nderstand by thi s ph r a s e ? W h at is a human act ? St. Thomas u ses the ph ra se in a strictly forma l meaning, n a m e l y, human acts qua human acts ; that is, acts which are pos i ted i n a w ay that is speci fic al ly a n d dis­ ti n ct ively human . Now, wh at specifically d i s ti n gu i s h es human beings from all other a n i m a l s ? Accor d i n g to St. Thomas it i s that the specific n ature of man con sists in h i s abi l i ty to reason , to del i b erate , and to m a ke free choices . Therefore , a human act i s one th at i s posited with kn owl edge or understanding, deliberation or i n tention , and freely. [ 279] Su ch acts are d i stingu i shed from wh at are cal l ed merely acts of h u m an beings. These l atter are acts over wh ich peopl e h ave no con scious control such a s d i gesting one's food , scratch i ng one's head absent-m indedly, ca rryi ng out some habit without th inking and so forth . Th i s d i stinction i s i mportant because i t preci sely de­ termines respon sib i l i ty. Hu man bei n gs are respon sible only for tho se acts over wh ich they h ave con scious control . For th i s reason human acts a re sometimes called "imputable" acts . [ 280] The degree of guilt or respon sibil i ty i s determ ined both mora l l y and l ega l l y i n accordance with the degree of knowledge , del i beration , and freedom with wh ich the act i s posited . Many factors may reduce the con sci ous con trol and thereby reduce respon s i b i l ity and gu i l t . For exa m pl e , a m a n wh o k i l l s another in a spontaneou s dru n ken brawl i s not a s gui l ty as a m a n who cold -bloodedly pl a n s

58

GENERAL DOCTRINAL BACKGROUND FOR THE TREATISE

the murder of his wife . A man who is out of his mind completely is considered not to be guilty at all . There are other factors such as fear or confusion , which reduce the quality of a human act and therefore also guilt. St. Thomas develops a very careful analysis of the fa ctors that reduce the voluntariness of human acts ( S . T , 1-11 , q . 6, aa. 1 - 8 ). [28 1 ] Lon Fuller points out that the Anglo-American legal tradition ( a s does every legal tradition ) presupposes this view of human acts. He writes: I come now to the most important respect in which an ob­ servance of the demands of legal morality can serve the broad­ er aims of human life generally. This lies in the view of man implicit in the internal morality of l aw. I h ave rep e ate dly observed that legal morality can be said to be neutral over a wide range of ethical issues. It cannot be neutral in its view of man himself. To embark on the enterpri se of subjecting human conduct to the governance of rules involves of necessity a commitment to the view that man is , or can become , a responsi ble agen t , capable of u nderstanding and foll owi ng rules , and answerable for his defaults . ( The M o ra lity of Law, p . 16 2 )

He also po i n ts out t h a t there a re to day p h i losopher s ( l ike E dgar Wilson ) and psych ologists (like B. E Ski nn er ) who simply deny that human beings h ave the abi l i ty to m a ke free choices . They sometimes portray human bein gs simply a s more compl icated a n i m a l s that need to be programme d rather than d i rected i n thei r action s . Sometimes human beings are portrayed a s bei ng a k i n d of biological m ach i n e . If th i s ph i losophy o r psychology i s taken seriously, t h e enti re l egal system woul d h ave to be revamped or perha p s total ly replaced . [282] A l though l aw d irects human acts , civi l or human l aw cannot direct all human acts. The civi l l aw can only d irect acts in society and such a s can be dealt with in a publi c forum . Therefore , civil l a w can deal on l y with the externa l acts of the human being. It can n ot dea l with purely private acts nor w i th the i n tern al d i spo­ sition s , motive s , and attitudes wh ich l i e back of the extern a l act . A s t h e old sayin g h a s i t , t h e law can requi re a man t o bare h i s head when the queen i s passing by, but it cannot require him to l ove and respect her in his heart. [283] Human acts , a ccording to St. Thom a s , con stitute the

GENERAL DOCTRINAL BACKGROUN D FOR THE TREATISE

59

material cause of law. That is to say that the law, in directing human acts , in fact forms them in a way that is analogous to the way in which a sculptor forms a statue so that it receives the shape of George Washington . Sometimes the material cause of law is stated to be the community which is also a feasible way of saying that it would include all the subjects and their human acts in this limited sense .

SECTION 7: ..RULE AND MEAS URE"

[284] In q. 9 0 , a. 1 , St. Thomas says that a law is a "rule and measure of human acts." H. L. A. Hart asserts that the problem of defining rules and explaining the different kinds of rules is one of the persistent questions of modern jurisprudence ( The Concep t of Law, p p . 8 - 1 3 ) . [285] For S t . Thoma s , the nature o f a rule w a s not problematic. A rule is a general directive for action. If I say to my assistant , "Send this letter to the President of the United States;' I'm not setting up a rule for guiding her action ; I am asking her to do a single act. If I have to characterize that , I will say it's a request or a gentle order, but it's not a rule . If, however, I tell my cook that I want breakfast served every morning at 7 A . M . , I am setting up a rule for his rep­ etitious action and a general directive , consequently a rule . [286] Lon Fuller says ( The Morality of Law, p . 47 ) simply that there must be rules and that rules must be general . Likewise , H . L . A . Hart ( The Concept of Law, p p . 20-22) makes the same point in his criticism of John Austin's use of the "gunman model ." He also says that a legal system consists of a combination of different sorts of rules . [287] There seems to be no serious debate as to whether a law is a rule for action . [2 8 8 ] "Measure" is, first of all , a quantitative measure . We measure distance in miles, we measure liquids in gallon s , and so forth . However, it is extended to qualitative things as well . Aristotle , fo r example , extended i t t o any kind o f standard . St. Thomas refers to Aristotle's discussion of measure as the conception of measure

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which he himself is using. In the present case , therefore , measure is a standard by which we judge human acts . The rule is prospective ; it directs future action. The measure is applied to human acts which have already been performed . Therefore , when the court is applying a rule of law, it is also measuring whatever it is applying that rule to and it is using that rule precisely as a measure . [289] In the definition of law ( q . 90, a . 4 , c . ) the "ru le and measure of human acts" is translated into a "dictate of reason;' a translation which is achieved in Article 1 . However, in sub sequent parts of the Treatise, over and over again St . Thomas repeats his description of a law a s a rule and measure of human acts and u ses it as a basis for developing many other points in his theory of law. [290] St. Thomas's a ssertion that l aw is a rule and measure of human acts is an inference from the observed way th at laws actu ally do function . It is an empirical fact that l aws bind men either to do or to abstain from doing something. This function can clearly, at least by inference , be said to be that of a ru le o r me a s u r e .

SE C TION 8 : HA BIT A. INTRODUCTION

[291 ] The term "habit" has been used in a v a r i e t y of meanings. Perh a p s the most common mea n i n g i n E n gl i sh is the rep etition of certain acts wi th l i ttle del i beration and sometimes with n o con ­ sciou s attention a t a l l . O f the first sort we m ay in st ance the habit of brush i n g one's teeth after brea k fa st ; of the second sort is scra tch ing one's head wh i l e th i n k i n g of someth i n g else. S t . Thom a s r e fer s t o the habit of uncon sciously stroking one's beard ( barbam fricare ) . B . A N I MPORTANT M E A NING OF "HABIT" IN THOMISTIC PHILOSOPHY

[ 2 9 2] Now, in Thom i stic ph ilosophy, "habit" h a s a much more profound a n d im portan t meaning. In th i s mea n i ng "habit" m ay

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61

b e defined a s a development o r perfection o f an operative faculty th at enables that faculty to deal with its object in a correct and effective manner. An example may clarify this definition . [ 29 3 ] We have seen that human beings h ave an intellect , a [294] knowing faculty fundamentally related to being a s such . As soon as it begins to operate a s a Speculative Intellect , it immediately under­ stands being and certain general principles of being such a s the prin­ ciple of contradiction , which states that no being can both be a nd not be at the same time under the same aspect . Since the Speculative Intellect is ready to immediately grasp these principles , the intell ect is said to have by natu re a habit of first principles of the Specul ative Reason . Since we know these principles by n ature , we do not h ave to learn how to know them . We do that naturally. [295] But , although the Speculative Intellect is ordered to all knowledge , we do not immediately know all the disciplines th at we have developed in the centuries following Pl ato . We can im me­ diately recognize the difference b etwee n being and non -be ing but we cannot imme d iatel y solve equation s , p rove the Pyth a gore an Theorem , or di agnose glaucoma . We h ave to l earn how to do these things . Thu s , for exampl e , we must acquire the habit of geometry, wh ich is a stable perfection of the Speculative Intellect by wh i ch we c a n p er­ form geometrical acts correctl y, easily, and with pleasu re. T h i s habit i s a cqui re d , n ot by me ch a n ic a l repetition of acts , but by i n sightf ul repetition of acts that are formally geometrical acts. [296] If one carefully considers th e d e scription of "hab it" j u st given , it will be evident th at we must m a ke a careful distinction between , on the one h and , th e habit of geometry by which a person i s able to do geometry and to l earn geometrical knowl edge and, on the other hand , the knowledge so gained and held habitu a lly by that habit. Th i s di stin ction plays a key role i n q. 90 , a . 1 , ob j . -reply 2 and i n q. 94, a . 1 , c. [ 297] A very sim i l a r analysis cou l d be m ade of the Practical Intel l ect. There i s a natu r a l habit of fi rst principles by wh ich the basic principle of the moral l a w i s known , i . e . , "Good is to be done and evi l avoided :' There a re m ora l habits dea l ing with speci fic kinds of moral a cts . These a re ca l l ed "virtues" and will be con sidered l a ter [ 3 2 2-360] . They can be thou ght of as a n a l ogou s in the m ora l order ,

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GENERAL DOCTRINAL BACKGROUND FOR THE TREATISE

to the individual disciplinary habits ( like the habit of geometry) in the speculative order.

SECTION 9: THE SPE C ULATI VE INTELLECT, THE PRACTICAL INTELLEC T, AND RIGHT REASON

A. INTRODUCTION [29 8 ] As stated above , St. Thomas accepted the traditional definition of human beings as "rational animal ." This means that human beings have a spiritual , universalizing intellect through which they can grasp reality, understand and explain it and , in contrast to the instinctive activity of animals , can intelligently guide their actions . [299] They also have a wil l , a faculty ordered to action and to the good . Through the interplay of intellect and will , human beings are able to make free choices ( that is, imputable choices). Thus they are more or less responsible for their actions . [300] The intellect operates in two very different , though rational , ways which I will now explain .

B . THE SPECULATIVE INTELLECT [301 ] When the intellect is used to obtain knowledge , to understand and to explain reality, it is called the Speculative Intellect . In this way, the intellect gives rise to the knowledge disciplines ( what St. Thomas calls the "speculative" or "demonstrable" sciences ) such as philosophy, physics , geometry, optics , etc. [302] The Speculative Intellect operates through definitions , judgments , and syllogisms . When the speculative disciplines are fully developed , they are organized under general definitions , generalizations and principles , all tied together in a deductive system . This p attern is clearly displayed in geometry. [303] Now, according to St. Thoma s , all the activities of the Speculative Intellect are grounded in and regul ated by certain

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63

self-evident ( indemonstrable ) principles . These principles are imme­ diately understood implicitly as soon as the intellect grasps any reality whatever. These principles can be formulated as follows : "Being is" , "Being is what it is" , "It is impossible to affirm and deny the same thing" , "Things equal to a third thing are equal to each other." These principles are , first of all , concerned with reality ( ens, "being") and consequently are also principles of all deductive or demonstrative reasoning. Hence , the Speculative Intellect deals only with the knowl­ edge of what is. It is not involved in the making of moral decisions or prudential moral j udgments. The Speculative Intellect deals with the "is" in Hume's "is I ought" dichotomy.

C. THE PRACTICAL INTE LLECT [3 04] When the intellect is used to make a decision with regard to action , it is called the Practical Intellect. [305] The Speculative Intellect deals only with what is; it seeks the truth of things and so operates solely as a knowing faculty. Since the Practical Intellect deals not with what is but with what is to be done , it requires the cooperation of the will . St. Thomas's analysis presented in the Corpus of q . 90, a . 1 interrelates the Practical Intellect with human moral activity and so interrelates the intellect and the will with human acts to be done . Hence the "good" or the "human good" as such is involved. The relationship of reason and will in Practical Reason is explicitly indicated: "I answer that , All law proceeds from the reason and will of the lawgiver; the Divine and natural laws from the reasonable will of God; the human law from the will of man , regulated by reason . . "(q . 9 7, a. 3, c. ). [306] Since the Practical Reason is ordered to action , and all action is purposeful , the Practical Reason argues in a different mode from that of the Speculative Intellect. Practical Reason begins with the end ( the good / happiness). By the same reasons, the first principles of the Practical Reason are different from those of the Speculative Intellect. [307] The first principle of the Practical Reason and of the moral order is, "Good is to be done and evil avoided ." This principle is called the first principle of the moral order not because any p ar­ ticular moral precept can be deduced from it or any individual moral .

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THE TREATISE

decision can be p roduced by it , bu t becau se it is the formal pattern of all moral p recepts and all moral decisions . It states the basic principle of moral obligation , b a sed on the attractive power of the goo d . No proposition or p rinciple of the Specul ative Intellect carries any obligatory moral conten t . [308] There h ave been Natural L aw th in kers who thought that the moral order could be deduced from an abstract theoretical knowledge of human n ature . Against th is position Hu me 's assertion that no "ought" can be deduced from a n "i s" h as va l i d logica l force . Howeve r, the objection fails compl etely a s aga i n st St . Th oma s 's po­ sition , for he draws the obligation of the mora l l aw from an i mmediate self-evi dent p r i n c i p le of th e mor a l order-the pri m itive gra sp of the obl igatory n a ture of the good . [309] Now, when St . T h om a s s ay s ( q . 9 0 , a . 4 , c, ad fin. ) tha t l aw i s a dictate of rea son , h e mea n s a d i cta te of Practica l Rea son .

D . R IG HT R E A SON

[ 3 1 0]

W h e n St . T h om a s says th a t l a w i s a d i ctate of Pra c-

tica l Rea son , h e is a s su m i n g that th e d i cta te of Pra cti ca l Rea son i s c or re c tl y gu i d e d by t h e N a tu ra l L a w. It i s a fa ct th a t hu m a n beings c a n come to a fi n a l decision , i n a g i ven ca se , th a t i s contra ry to the m o r a l l a w. Th i s i s so becau se h u m a n bei ngs a re free a n d a re under m a ny p ressu res tow a rd s i m m or a l ity, su ch a s p a ssi on s , evil h a bits ( vices ) , u n h a ppy fa m i ly l i fe , etc . If a person h a d compl etely good

wil l , forti fied by the m or a l vi rtu e s a n d e speci a l ly by i n sightful judg­ m e n t , such a o n e wo u l d freely choo se t h e good . [ 31 1 ] Hence , i n i n te r preti ng th e Th om i stic d ef i n i tion , one shou l d u n d er st a n d th at the d i ctate therei n con t a i ned i s a dictate of right Practic a l R e a son . [31 2] From St. Th o m a s 's sta n dpoint , it i s a bsu rd to try to d i s t i n gu i s h wh a t l aw is from wh at l aw ough t

to

be .

Of course , civil

l a w c a n be c ont r a ry to wh a t ought to be . A l most everyone agrees th a t l aw i s a ru l e a n d m e a su re ( a sta n d a rd ) of hu m a n a cts , if l aw

doe s n ot h a ve a s tanda rd dis tingu is h ing what i s from what ought to be, i f l a w cont a i n s no s tand a rd , it cannot be a mea su re a nd hence wou l d l a ck a n e ssenti a l f uncti on of l aw or of Pra cti ca l R ea son .

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65

SE C TION 1 0 : VOL UN TA R ISM VS . PR AC TICA L R EA SONA BLENESS

[313] Human b eings have two basic faculties , the will and the intellect . The wil l i s ordered to the good and the good involves the notion of a purpose and therefore of action . The will moves all the faculties of man to action . The i n tellect i s a knowing faculty; through it human beings l earn , u ndersta n d , and rea son . Of itsel f it does not move to action , j u st as the wil l does not know. It is obviou s that these two facu l ties are in close a ssoci ation and must work to­ gether i n m a n's l i fe . [3 1 4] For S t . Thom a s , the most inti m a te cooperati on o f these two facu l ti e s occurs i n Practica l Rea son . The a ct of Practical Rea son i s a composite one a n d i n volves an i nterpl ay of will and i ntel l ect . [31 5] In the l ong d i scu ssion of mora l i ty a n d l aw there a re two con flicti ng opi n i o n s con cern i ng th e rel eva nt col l a borati on of i n tel l ect a n d wi l l i n the m a k i ng of l a w s a n d m ora l ru l es . The question i s : Wh i ch facu l ty h a s the pri m a cy i n th ese d i scu ssi on s ? [ 3 1 6] Accord i n g to St . Thom a s , l a w i s a d i ctate of Practical Rea son . T h i s "dictate ;' a l though re qu i ri ng wi ll , i s form a l ly an d pri­ m a ri l y a n a ct of the i n tel lect . Th i s po si ti on i s a sserted in the first a rti c le of the Treatise ( q . 9 0 , a. 1 ) . I n th i s a rticle th e empha si s fall s on rea son , tho u gh the contribution of th e will i s no t excluded . M ore expressly, i n q . 9 7 , a . 3 , c . , St . Thoma s refers to the sou rce of obl i ga tion a s be i n g "re a son a bl e will " and "wi l l regu l a ted by rea son . " Th e e m p h a s i s on rea son a s the sou rce a nd m ea sure of l a w run s th rou gh the whole of the Trea tise . A n d th e sa me doctri ne recurs in the h i story of N a tu r a l L aw. [ 3 1 7] Now the o pp o s i te opi n i on is l i k ewi s e a venera ble one that i s fo u n d in the d i scu ssion in a n cient Greece. In Pl a to 's Republic T h r a s y m a c h u s decl a re d th a t j u sti c e i s th e will of the stronger. I n R om a n L aw the i mperi a l principle wa s sta ted thu s : "Wh at plea ses the prin c e h a s the force of l aw. " I n th e M id d l e Ages a n extreme position of i rr a t ion a l ity appear s in O ckh a m ( 1 3 00 ? -49 ? ). R eferring to God a s a l awgiver, he sa id th a t G od , if he so willed, coul d make bl a sphemy, mu rder, r a p e a cts of vi rtu e a n d therefore requ i rements for a d m i ssion to heaven . The med i ev a l con troversy went on a n d i s

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discussed in Suarez's De Legibus ( Concerning Laws ) in which he opted for a moderate voluntarism. ( The best account of this Medieval de­ velopment is The Natu re of Law by Thomas D avitt, S .J . ) [318) As in Thrasymachus' blunt statement , voluntarism is usually associated with force . Spinoza said that tyrants had a natural right to rule as long as they could control the people. [319) The founder of modern Anglo-American Positivism , John Austin , was a Voluntarist, though not often so called . According to him , law is a general command backed by threats made by a sovereign who has the physical power to carry out those threats . There is no rational test by which the legality of a law can be j udged from the law's contents. [320) It is easy to see why Positivism must include sanctions or punishment as an essential element of l aw. [321 ) St. Thomas faced this voluntaristic position in the very first article in the Treatise. In the Third O bjection he presents an argument for the primacy of will based on the nature of will. He backed it up with the classic Roman Imperial principle, "What pleases the prince has the force of law." In reply he does not exclude the will , but he sets up the criterion of reasonableness. What pleases the prince has the force of law if what pleases the prince is according to reason ( i . e . , right Practical Reason ) . Hence , it is not enough that some lawgiver has commanded a law ; the content of law, which is generally of no moment to Positivism as such , must meet the demands of Practical Reason and so be j ust and for the Common Good ( not simply for social control by force or pressure ).

SECTION 1 1 : THE VIR TUES

A. INTRODUCTION [3 22) The doctrine of the virtues is central to St. Thomas's moral theology and moral philosophy. It also has a significant impor­ tance for understanding his j urisprudence ( see , for example , q. 9 6 , a . 3 , "Whether human law is competent t o direct all acts o f virtue ? " ) .

GENERAL DOCTRINAL BACKGROUND FOR THE TREATISE

67

[323) The doctrine was developed by Pl ato , the Stoics , and especially Aristotle ( in his great ethical work , The Nicomachean Ethics) . St. Thomas adopted, expanded , and refined the doctrine . Plato introduced the problem in this manner. He said that we know what the excellence ( "virtue" ) of a lutenist i s ; it is to pl ay the lute well . So also the excellence of the shipbuilder is to build seaworthy ships; of the cook , to prepare good meals. [ 3 24) But now, is there a virtue of human beings simply as human beings , not as lutenists , shipbuilders and cook s ? Who is the good person ? Who is the j u st man ? Who is the happy man ? The doctrine of the virtues was developed to answer ( at least partially ) these questions .

B . THE VIRTUE S I N GENE RAL

[325] A v i r tu e is defined as a n i n te r i o r d i sposit i o n or skill (a habit) by wh ich a person can do the right t h i n gs , correctly, easi ly and with p l e asu re . As we shall see , some virtues are innate , some infused , and some a re acq u i red V i r tu es are d i s t i n gu i shed and speci­ fied by the objects with which they deal. We will see how th is works out with respect to the different virtues . [326) A virtue i s thus a perfecti on of a n active power, a natural in c l i n a ti on or desire of man . Thus the v i r tue of Ju stice i s a perfec ti o n of a m a n's re l ation s hi p with others in regard to goo d s a n d ser v i ce s . [3 27) Now, before we deal with the card i n a l moral virtues , we must take a brief com preh ensi ve view of the d i ffe rent s o rts of vi rtues rec ogn i zed by S t . Thom a s . ( A l th ou gh I have dealt with some of th i s m ateri a l be fore I a m repeating it i n th i s new context i n order .

,

to give a b a l a nced un dersta nding of the virtues ). [328) St. Thomas di sti n gu i shed four types of vi rtues ( or goo d h abits).

C . THE THEOLOGIC A L VIRTU E S

[3 29) St. Thom a s recognizes th ree theologica l virtues , so cal l ed because they rel a te m a n directly to G o d .

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GENERAL DOCTRINAL BACKGROUND FOR THE TREATISE

[330] The first of these is Faith , by which man , trusting in God , believes what God has revealed . The second is Hope, by which , trusting in God, we expect salvation and the means to re ach it. The third is Love , by which we love God for his own sake and all others for God's sake . The good towards wh ich the theological virtues enable us to move is thus expressed by Christ : "You sh all love the Lord your God with all your heart , with all your soul , with all your strength , with all your min d ; a n d your neighbor as yourself" ( Luke 1 0 : 27 ). [33 1 ] It i s through these theological virtues that man reaches his complete fulfillment and his ultimate happiness . But they pre­ suppo se and foster the development of a strong moral character through the acquisition of the moral virtues. D. THE INTELLECTUAL VIRTUE S

[ 3 3 2] The second type of virtues i s th o se th a t p e rfect t h e Spe cu l a t i ve Intellect . The S pe cu l at i ve Inte l lect has the basic power of grasping reality, o f in sigh t , u n der s t a n d ing, and reasoning . But it is naturally in possession of a habit , called the habit of the first in­ demonstrable ( self- ev i den t ) pri n ciple s . The mo st i mportant principle th u s h el d throu gh this habit is the principle of con tra d i cti o n , A th ing cannot both be and no t be , under the same aspect , at the same t im e ." St. Thoma s sometimes quotes thi s pri n ci p l e i n its logi ca l form , T he same thing cannot be both affi rmed and denied ." T h is pri ncipl e gov­ ern s a l l t h i nk i ng and all reasoni n g . It gu ar a n t ees the certitude of a "

"

v a l i d syllogi sm . [333] Human beings i mpl ici tly know th i s principle a s soon as they i n tel l ectu a l l y con front rea l i ty. Hence , the habit of the fi rst pri nci ple does not h a ve to be a cquired . [334] There are, however, m a ny other more p a rt i cul ar a n d specifi c h abits th a t perfect the Specu l ative I ntellec t but must be ac­ quired . We a re not born knowin g h ow to do geometry. We m u st acqui re the a b i l ity to th i n k a bout a n d u n derstand geometry. O n ce th i s h a b i t i s a cqu i red , a person can ga i n geometrical knowledge wh i ch he therea fter h ol d s h a b i tu a l l y. St. Thom a s refers to the h a b i t of the gra m m a ri a n by wh ich he m a kes proper s peech ( q . 94, a . 1 , c . ). [335] Th i s l i st of vi rtue s , other than the moral v i r tues , is not compl ete but it i s adeq u a te to understan d t h e Treatise .

GEN E RAL DOCT RINAL BACKGROUN D FOR THE TREATISE

69

E . T HE MORAL VIRTUE S

[336] In accord with the main trad ition , St . Thomas identifies four basic virtues which , because they a re basic , are called the four cardinal moral virtue s . In addition to these cardinal virtues , there are very many other virtues subordin ate a nd attached to them . For our purpose h ere we will de al only with the C a rdinal Virtues. St. Thomas lists them thu s : 1 . Temperance , 2 . Fortitude , 3 . J ustice , 4. Prudence . [337] A l l these virtue s assi st in th e m a king of good moral choices and the pl a ci n g of goo d human acts . Hence they fa l l under the Practi c a l I n tel l ect since the first pri n cipl e of th e Pra ct i ca l I n tellect is , as stated a b ove [ 3 0 4 - 3 0 9 ] , "Good i s to be d on e , evil avoided . " I wi l l n ow d i scu ss e a ch of the card i n a l virtues. [338] 1 . Tempe rance Tem p eran ce is the vi rtue by wh i ch we regul ate ou r [339] sen su a l a ppeti tes , our desi re for food a n d drin k , for sexu a l plea su re , a n d for sen su a l com fort . [340] To d ay, tempera nce i s often l i m i ted to the u se of alcoholic d r i n k s a n d often m e a n s tota l a b sti nence . Th at i s n ot its mean­ i n g here . The virtue of temper a n ce en a bl es u s to m a ke the righ t u se of ou r sen su a l appet i tes . It i s a moderating power, not a totally ne g ati ve o n e . [ 3 41 ] T h i s v i rtue i s self- rega rd ing ; it dea l s with one 's de-

sires , the sen s u a l a pp etite s of one 's sel f. [ 34 2 ] For t h i s reason , the j u dgments of temperance a re proportion a te to i n d i vidu a l s a n d so m ay va ry from person to person . For exa m p l e , a n ord i n a ry wel l- regu l a ted i n d i vi d u a l m ay m a ke a mod­ er a te u se of a l cohol ; for such a one d ri n ki ng a modera te a mou nt of ch a m p a gn e a t a wed d i ng rec epti o n m ay be an act of virtue. For a co n fi r m ed a l cohol i c tot a l a b sti n ence m ay be th e on ly tempera te act possi b l e . Ag a i n , wh a t wou l d n o t be glu ttony i n a f u l l- grown adult wou l d be so for a ch i l d . [ 34 3 ] In sofa r a s Tempera n ce i s a person a l vi rtue , th e state c a n n ot l e gi sl a te i t , bu t , when a l a ck of tem pera n ce resu l ts in extern al a cts , such a s d ru n ken brawl i n g or d ru n ken d rivi ng , the state may i m pose a n extern a l tempera nce ( q .

96,

a.

3 ).

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GENERAL DOCTRINAL BACKGROUND FOR THE TREATISE

2. Fortitude

[344] Fortitude is the virtue that enables us to face up to dangers and difficulties in order to do the right thing or, for the same reason , to endure with p atience sufferings and hardship . It orders what Plato called the "spirited" part of man . It controls anger and fear, not that it eliminates fear but that it helps to act despite fear. [345] Fortitude is often thought of a s the characteristic virtue of policemen , and firefighters , but , in fact , everyone needs it, for the way of virtue is beset with difficulties , pains, and obstacles . [346] Fortitude often supports the other virtues . Thus to stand up for justice may entail risking one's life or facing torture . [347) Fortitude is a balanced virtue rejecting both recklessness and cowardly behavior. [348) The state may order external acts of Fortitude when the Common Good requires it. Thus a captain may order his men to take a fortified hill ( q . 9 6 , a. 3 ). 3.

Justice

i . Introduction

[349] Justice is the social virtue and is therefore the virtue most closely related and relevant to the law, since law always directs a society or a community. Our ordinary ways of talking indicate this close connection . We call our courts "Courts of Justice ." People say they go to the law or the Courts to get justice ; they don't say they go to Court to get temperance or courage . We call Court decisions or laws "just" or "unjust ." We criticize unjust social arrangements . For these reason s , we must examine Justice more closely than Tem­ perance or Fortitude . Another reason for studying Justice more care­ fully is the complexity of the relationships involved in achieving justice . i i . Justice in General

[ 3 5 0] There is a well established definition of Justice , expressed in imperative forms a s , "Give every man his due" or "Give every man what is his own ." St. Thomas acknowledges this formula but in fact substitutes a more complex and , I think, a more accurate one . Justice is the right relation between human beings with regard to goods and services. This definition presents Justice as a three-term relationship which may be diagrammed as follows:

GENERAL DOCTRINAL BACKGROUND FOR THE TREATISE

Person (s)

,

...

/"'

�--------•

--------

71

Perso n ( s)

goods and services

This definition also emphasizes why Justice is the social virtue ; it displays the p atterns of human relation s underlying Justice . [351 ] Today we have translated most j ustice rel ationships into "rights" language . Thus I say, "I have a right to this piece of property." The in adequacy of this statement can be seen by asking what it would mean if there were no other people. I n order to un­ derstand a j ustice relationship it is necessary to identify two human terms in the given relation ship . ot he r

--------....-- peo p l e

t h e piece of property [352] The simplification of a justice relationship into a two term relationship and "rights" language did not exi st in the th irteenth century. However, by Suarez's time ( 1 54 8 - 1 6 1 7 ) the right s language was widely accepted , though what we call a "right" was then cal l e d a "sub je cti ve r igh t " (jus subjectivu m ). Thus , a l l t h e rights enum erated in the Un i versal Declarati on of Human Rights i s sued by the U . N . can b e restated i n the three-term p attern . The rights l angu a ge i s so well establ i shed in a l l modem l angu a ges and so e a sy to u se th at no one would dream of rejecting i t . [353] Howeve r, since I am t ry in g t o clari fy S t . Thomas's position , I wil l continue to use his analysi s , wh i ch , moreover, I con ­ -

sider ph i lo soph i ca l l y more accurate a n d en l i gh ten i n g th a n the two­ term a n a lysi s . [354] Becau se i t i n volves two h u m a n term s , J u st i ce i s a more objective virtue , that i s , the j u st th i n g (justum ) c a n be ob j e ctively di scu ssed in i tsel f. Thus we can spea k of a j u st con tract , a j u st compen sation , a j u st l aw. The objectivity of Ju sti ce m a kes it e a sy to m a ke Ju stice part of a legal system a n d to deal with it i n the public forum . There a re di fferent k i n d s of Ju stice wh i ch we wi l l [355] now con sider.

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i i i . Commutative Justice

[ 3 5 6] In Commutative Justice the relationsh ip is between two individual persons or groups of individual persons , and the basic form of the relationship is one of arithmetical equ ality. For ex ample , a person buys a candy bar for fifty cents . If the price is j u st , the candy bar and the fifty cents are equ al in value and each person is satisfied . The same woul d apply if a person bought a car from a corporation ( a group of individuals). [357] If a person buys an object represented by the sell er as a genuine diamond and pays the price usual for such an object , when , in fact , the object is an imitation , the transaction is not equal and is unjust . It can easily be seen that Commutative Justice is the Justice basis for all commercial transactions and , as such , is l argely incorporated into commercial l aw. =

iv. Distributive Justice

[358] Distributive Justice orders the relationship between individuals or groups of individuals and the whole com munity or the state . It has to do with the distribution of goods , benefit s , burden s , etc. t o the citizen s of t h e state . T h i s type of J u st i ce regu l a tes t h e s h a r i ng in the Common Goo d . The pattern of Justice here requires a proportionate distribution rather than the arith metical equality of Commutative Justice . Thus , taxes should be levied proportionately to th e ab i l i ty to pay. Medicare benefits ( or a ny other pu b l i c h e a l th be ne fi ts ) should be proportion ate to the needs of each indiv i du a l . An economic system which keep s some citizens l iving i n poverty wh i l e others l i ve i n h i gh luxury i s a n unjust system . If a j u d i ci a l system i s h arsh o n bl acks or Latino s but goes easy o n wh i tes or t h e rich , th at judici a l system viol ate s Di stri butive J u stice . Justice [359] Contri butive J ustice i s , in a sen se , the reverse of D i s tri butive Justice , since it dea l s w i t h the obl iga ti o n s of i n d i v i du a l cit­ i zen s or groups of citizen s to contri bute to the Common Goo d , the com m u n i ty, or the State . Thus the requ i rement s of th is Ju stice a re a l so proporti on ate . For exam p l e , in times of war, di fferent sorts of person s m a ke d i fferent k i n d s of services to the war effort . A b le-bo died youn g men serve i n the a rmed force s ; ol der m en m ay form a Home Guard as wa s done in the town s of E n gl an d when a N a z i i n v a s i on was fea red . In the second Worl d Wa r, women worked i n munitions v. Contributive

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plants; scientists were exempted from military service to work on weapons systems , etc . The obligation to p ay taxes comes u nder Con­ tributive Justice as does the obligation of the rich to contribute to charitable enterprises. v i . Social Justice

[360] Social Justice is a modem term wh ich is u sed i n various senses by different authors. In general , it seems to be a combination of Distributive and Contributive Justice under the con­ cept of the common good. It embraces all the Ju stice relationships found in a society (political , economic , social , etc . ). For St. Thoma s Social Justice i s not a special kind of Ju stice . v i i . Right Relationship

[361 ] It should be noted that all form s of Justice include the notion of a "right" relationship but do not supply a calibrated standard by which the "right" relationship can be determ ined . T he rightnes s must be determined by Prudential Judgment of Pr a ctical Reason . In many cases injustice can readily be recogn i z e d For ex­ ample , if one man is executed for drunken drivi ng whi l e another, equally guilty, i s merel y re pri m an de d it is clear that Justice h a s miscarried . More complicated cases can only be determined by a person p o s ses s i n g not only a good e t hic al o r juri s p r u den ti a l educati on .

,

but also a strong virtue of Prudence . T h i s is why Ari stotle said th at the judge shoul d be Justice Personified. Many of the judici a l pri nciples wh ich Ronald Dworkin stresses so much a re s imply general i zed pru­ denti al j u d g ment s of Justice . For example , "No one shoul d profit from his cri m e ." An appeal to "Natural Justice" requi res the same sort o f prudential insigh t . 4 . Prudence

[362] In modem Engl i sh "Prudence" often h a s a pejorative mean i n g , conn oting extreme cauti on , timi dity in acti n g and pl aying it s a fe . These i n terpretation s m u st be rejected if one is to u ndersta nd the card i n a l moral virtue of Prudence . [363] Prudence i s the acqu i re d ski l l of m a ki n g the righ t moral choice in i n dividu a l ca ses , of properly applyi ng a genera l m ora l ru l e to an individu a l ca se , or of selectin g the right m e a n s to a goo d end . It i s a perfection of the Practi c a l R e a son a n d so provides the ration a l e l ements i n the other virtues . W i thout Prudence , there ca n

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be no Temperance , no Fortitude , and no Justice . Without Prudence we cannot regulate our sensual appetites aright, we cannot distinguish courageous acts from rash and foolhardy ones; without Prudence our decisions in matters of Justice will be confused and erratic. [ 3 64] As we have seen , each of the other virtues ( Temperance , Fortitude , and Justice) has a distinctive set of proper objects. Thus Temperance deals with our sensual appetites while Justice deals with relationships between human beings . Prudence cooperates in every moral decision . That is why Prudence is a perfection of the Practical Reason which is ordered to action and to the good . [365] The activity o f the virtue o f Prudence results i n the prudential j udgment . The process leading to the prudential j udgment may be quite simple or very complex , but , in any case , Prudence makes use of insight. [366] Insight is the direct apprehension of an intelligibility, whether of fact or of value . There are no rules for the development of an insight. One can only reflect on and consider a variety of factors until understanding emerges. A simple case may illustrate this: A $ 1 ,000 fine for parking ten minutes overtime in a metered p arking place is clearly a violation of Distributive Justice . But there is no calibrated standard , no mathematical formula to prove that. [367] Some consider "insight" to be simply a gut reaction or an expression of feeling or of prejudice . Such reactions do happen , but they are not instances of insight. [3 6 8 ] In order to make a genuine prudential j udgment one must possess the other virtues . One who has a disordered sex life cannot make sound j udgments in such matters . Passion , infatuation , anger blind the eye of judgment. Thus there is a two-way relationship between Prudence and the other virtues. [369] Though insight is characteristic of prudential j udgments , the process of moral judgment is generally more complex . One must have knowledge of all the relevant facts , of the moral principles and precepts involved . One may find it necessary to consult experts and persons who are skilled in such matters. [370] Some persons have a natural disposition conducive to the development of the virtue of Prudence . But, in any case , experience and practice , study and reflection , consultation and dis­ cussion and b asic self-honesty are necessary to acquire prudential skill .

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[371 ] In straightforward cases the prudential j udgment may be easy to achieve . There are clear cases of murder or fraud . It is in the hard and complicated cases where Prudence is e specially needed . In such cases there are generally a number of heterogeneous factor s which have no common denominator and yet must be taken into account. In such cases logic fa ils and insight must take over. [372] In the first instance Prudence is the virtue of each individual who must take responsibility for his own moral decision s . B u t it c a n also be used t o judge the actions of others . In this way, Prudence becomes the virtue of the counsellor, the confessor, and the spiritual advisor. [373] More to our purpose here , we can say that , at le ast in a sense, Prudence i s the virtue of the good judge . The j udge has to apply the l aw and j udicial doctrine-including "N atural Ju stice" to individual cases . Reasoning , fa ctual investigation , etc . must p re­ cede the j udicial prudential j udgment, but , in the last analysis , the judge must judge . There are no rules for rule appl ication , otherwise there would be an infinite regress of rules . [ 3 74] The ancient tradition said that judges shoul d be "Justice Personi fied:' We may add that the j udge should be "Prudence Personified:'

F. FINAL NOTE ON THE VIRTU ES

As stated above , Prudence i s necessary for the oth er [375 ] vi rtues to be truly virtues. But actually all the virtues work togeth er. A j udge m ay make a correct p rudential judgmen t , but it may ta ke con siderabl e co u ra ge ( For titu de ) to a n n ounce it i n face of threats from org a n i ze d cri m e . One who viol ates Temperance by using "crack" can h a rdly make correct pru d e n ti a l judgments A n d so forth . .

[3 76] The p ossession of all the virtues i n some sub stanti a l de gree con stitutes a sound a n d strong mor a l cha r acter. In part , th i s an swers Pl ato's question seeking a n excell ence o f h u m a n n atu re a s such . [ 3 77] However, the moral vir tues do not con stitute the com plete perfection of m a n . From S t . Thom a s's C h ri sti a n perspecti ve , h u m a n beings ach ieve f u l l perfecti on on l y when they a ch i eve the u nderstan d i n g , a p p reci a tion for God in a n ulti m a te l oving u n i on . In

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this life the love of God and of other human beings is the h ighest perfection and , at the same time , happiness ( though imper f ect ). [378] However, the moral virtues are p rerequisite for such a fullness of knowledge and love .

SEC TION 1 2 : HAPPINESS, THE LAS T E ND OF M A N [379) St . Thomas says ( q . 9 0 , a . 2 , c . ) that the last end of human beings is h appiness. He uses thi s doctrine as part of the basis for arguing that all laws must be directed to the Common Good . [ 3 80] An immediate warning is in order. This doctrin e i s not hedoni sm . St. Thomas i s not th in k i ng of simply a surfeit of pleasures , ful fillment of unbridled sensual appetites, or total sel f­ regarding and selfish action s . In fact , the h ap pine s s th a t S t . T h omas w a s t h i n k in g of may involve acceptance of p ai n , self-deni a l , s e l f­ s a c rifi ce , or even of de at h . T here is a long philosoph ical tradition that t h e j u st or good man is the h a p py man . Plato said that the j u st man is h a ppy even when h e i s b e i n g unjustly tortured . There is indeed a seeming paradox here as there was in Christ's statement , "He who saves his l i fe shall lose it and h e who loses h i s l i fe sh a l l save i t ." T he ordin ation to h appiness is the i n trin sic fin a l i ty of human l i v i n g . E very­ one desires to be h a p py. At the same time , hu man be i n gs a l so h ave an ordination to the go od , to n ot merely private and perso n a l good but to good in gener al . We are ab l e to appl aud the m a n who , at the risk of h i s l i fe , rescues ch i ldren from a burning bu i l d i n g . We can condemn a bruta l dictator even though he doesn't touch us person a l ly in any way. We can give tim e , effort , money to drives for she l ter for the poor, food for the hun gry, a n d so forth . [381 ) In the long run the ordin ation to the good a n d the desire of h a ppiness converge . H appiness tu rn s out to be the ful fi l l ment of h u m a n n a ture in its noblest aspiration s . [ 3 8 2) Th u s , wh i l e we h ave a n i ntri n s i c drive to h a ppines s , we a l s o gu ide our h u m a n a ction s according t o wha t i s righ t a n d wh at is wrong , according to generosity and love , accord i ng to the f u l fi l l ­ ment of o u r desire fo r knowl edge a n d love . Therefore , throughout

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our lives we are faced with making many decisions in which the motivation must be the objective good and not simply the desire for happiness. [383] The fulfillment of our v arious appetites can contribute to our happiness only if they are regulated by reason and con­ trolled through grace . Then , in the first instance , they will achieve goodness, both personal and objective . [3 84] The acquisition of the moral virtues to a high degree is, in fact , the development of a strong moral character. The moral perfection of man , the level of the moral virtue s , is not , of course , the complete fulfillment of human nature . But the moral virtues make it possible for a person to resist those vices which destroy human nature and prevent any further fulfillment. [385] But the highest realization of man's potentialities, the highest fulfillment of human nature , lies in the achievement of knowl­ edge and love . We are able to know, understand , appreciate; we are able to love in a reciprocal but unselfish love . The highest fulfillment , knowledge and love , consists of the understanding and love of other person s , most eminently, of course , in the knowledge and love of the most loveable , most knowable , most magnificent thing in all exis­ tence , namely God . This achievement gives us the highest happiness, but it's a happiness that is not fundamentally self-regarding because both knowledge and love are attached to objects which , for the most part, are other. [386] In St . Thomas's doctrine , in this life we are only capable of achieving imperfect happiness ( beatitudo imperfec ta ) and to achieve happiness in this life we need many things besides the per se fulfillments which I've just mentioned . For example, in order to live a virtuous life and in order to achieve knowledge and love we have to have energy, we have to have time; consequently, we need a great deal of temporal support . Still , even in this life , a loveless life is an unhappy life . Aristotle has said , and St. Thomas agrees, "No man can be happy without friends ." [ 3 87] Perfect happiness ( beatitudo perfecta ) can only be achieved in the next life through knowing , understanding, and loving union with God . We are destined to participate in the mysterious life , the active knowing and loving of the Holy Trinity itself. And that will be perfect happiness and perfect unselfishness because we

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will be completely focused on the object of our knowledge and love and the source of our happiness. [3 8 8 ] Now to return to q. 90, a . 2: every member of the temporal civil society desires happiness. Society comes into being to provide for the temporal happiness of its members and so the common desire or the common purpose of all members of the temporal civil society is to reach happiness , at least the imperfect happiness of which St. Thomas speaks . Thu s , society is ordered not to the happiness of some people and not others , but to the h appiness of every member of that society. The society is ordered to the common happines s and this is what is meant by the Common Good. The happiness to which the society is ordered is not an aggregate happiness; that is to s ay, St. Thomas would reject the often stated goal of the greatest happiness of the greatest number. For this goal could be achieved through extreme happiness on the part of some while other s , at the other end of the spectrum , may be living in misery. Nor is the common hap­ piness and therefore the Common Good to which society is ordered a state as something superior to , over and above the individual mem­ bers of that state . Thu s , the fascist elevation of the state and sub­ ordination of all citizens to it is rejected by Thomistic doctrine. [ 3 8 9] Of course , the civil state cannot and should not try to provide all the things that its individual members need in order to fulfill themselves and achieve temporal happiness . Many things must be left to the individual citizen who must enjoy a large measure of self-determination and freedom . This also is necessary for hap­ piness. But the Common Good provides things that individuals by themselves or in voluntary organizations cannot achieve . Thu s , St. Thomas says that there are many things in the Common Good and among them are peace and order. Clearly, experience shows u s that individuals or groups of individuals within society cannot guarantee the peace and order of that society. This has to be done by a central authority operating through l aws designed to maintain peace and order. Peace and order are primary requisites for human happiness and well-being. Nobody can fulfill himself and achieve happiness if he is living in anarchy in which there is daily danger of being injured , oppressed , robbed , tortured, or even killed . [390] Therefore , not everything requisite for human temporal happines s can be the object of civil positive law. But every civil

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positive l aw has to be ordered to the common happiness of the citizens . [391 ] Civil positive l aw cannot command people to h ave the proper internal disposition or to act for the right motive s . Yet , St. Thomas believes that by repressing vices and ordering the acts of some of the virtues , positive law can lead people to accept and develop virtue s , which , he believe s , i s , i n fact , the ultimate inten t of every lawgiver ( q . 9 6 , a . 3 , reply 2). S ince virtue is requisite for ma n s ultimate happiness , the civil po sitive law can , in th is way, contr i bu te to his eternal fulfillment. [3 92] Moreover, civil positive law can help provide a community culture within which i n d ividu al s can more easily work tow ard s their own excellence and h appiness ( cf. Lon Fuller, The Morality of Law, p . 5 ). '

SE C TION

13:

THE COM M ON G O OD

[393] In q . 9 0 , a . 2 , St. T h om a s teaches that the fin a l cau se , the intrinsic fin a lity or purpose of l aw is the C o m mon Goo d ." By establi sh i n g the Common Good a s the fin a l cau se of l aw, h e a l so made i t part of h i s defi n i tion of l aw, s ince h i s defi n i ti on i s an ex ­ plan atory type con s i sting of the four causes. [3 94] But what is the Common Good? A society 's Common Good , in its broadest sen se , i n cludes all those th ings wh i ch everyone in the society needs , desires or shares i n , either actu a l ly or pote n ti a l l y, d irectl y or indirectly ( q . 94, a . 1 ). "

[395] The citi zen s s h a re in the Common Good by p rop ortion ate j u stice , th at i s , they sh are i n the Common Good proporti on ­ ately t o their need o r capacity. Thu s , Medicare i s p a rt of the Common Good , but citi zen s actu a l l y share i n it only a s they need i t . Educati on i s part of the Com m on Good , but not everyone can be a d m i tte d to a Ph . D . program . Pol i ce protecti on i s part of the Common Goo d , bu t those who a re a t greater risk l i ke the President of the United States or a judge sentenci n g l eaders of organ i zed crime need more protecti on tha n the average ci ti zen .

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[ 3 9 6] There are some things that are always p resent in the Common Good of any society, h oweve r simple or primitive , such as peace and order. But the actual content of the Common Good depends on many factors and can vary from society to society or from time to time in the same society. Universal free education is part of the Common Good of a modern developed country. It would h ave been impossible in ninth-century France . The country could not have af­ forded it and only a few would have been able to attend . [397] Modern developed societies try to provide universal health care because the people demand it . [398] The Common Good of a society is more comprehensive than that portion of it that law can or should provide . It is generally better, whenever possible , that the Common Good be served by p rivate initiatives , whether by individuals or group s . There are many institutions in society that serve the Common Good , such as private universities , medical societies, n ational organizations of p ro­ fessional people , p r i vate foundations , churches , etc . E ven private busi­ ness serves the Common Good-i f it fails to , the State can regul ate it. The legal system is an in s tru m en t o f soci ety for the promotion of the Common Good under certain l i mitat i o n s . [3 9 9 ] Now the Common Good is the Common Good of all the citizens . It is not the public good of the po l i tica l state un­ derstood in a Fascist manner a s s om et h i n g di stin ct from the p eople and to wh i ch t h e c i ti zen s a re ord ai ned . [400] The Common Good i s not the same a s th e a ggreg a te of a society's h a ppi n e ss , th e gre a te st h a ppine ss of t h e greatest number. Such an end c o u l d leave some of the citi zen s in gre at mi ser y. The uti l itari a n s do not envi sion a true C omm o n Good . [401 ] T h e Thom i stic Com m on Good is quite different from "soci a l control " wh i ch Positivi sts frequently h o l d to be the purpose of l a w. St. Thoma s's view i s that the coercive force o f l aw i s re quired not to con trol society a s a whole but to force the wicked to do the acts of virtue ordered by the l aw. Even coercive p ower is not aimed merel y at control . It has the genera l effect of l e a d i n g people to acqu i re the vi rtue itsel f by becom i n g h a b i tu a ted to performi n g the a cts of virtue . [402] The l a w cannot a n d shou l d n ot try to d i rect every a spect of the Com m on Good . A s mentioned above , there a re many other i n stituti on s and org a n i zation s ( including volu n tary one s ) th at

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contribute in some way or other to the Common Good . However, the law does supervise , in a general way, these other contribution s to the Common Good . Thu s , while law cannot dictate the detail or the operation of the economic system , it can ensure that the econom ic system is just. [ 403] The theory of the Common Good has been criticized as being too vague . In St . Thomas the concept of the Common Goo d is perfectly clear, but its practica l realization is open ended . The achievement of the Common Good requires the selection of me ans which must be flexible to fit the varying changes in human cultu re . Production and distribution o f food is part of the Common Goo d , but the l aws ( or customs) regul ating this a spect o f the Com mon Good in a hunting and gathering society like that of the pygmies of Afric a is very different from the l aws which regulate it in a complex advanced civilization like that of the Un ited States . But in each ca se the effect is to serve the Common Goo d . An experienced investigator of what legisl atures and lawg i vers actually do confirms the fact that th e Com­ mon Good is the final cause of human l aw. [404] The reader may, at this point , find it interesting to re-examine the Preamble to the United States Constitution as stating the final cause of that Constitution and detailing the Common Good envisioned for the Federal Government . "We , t h e people of the United States , i n o r de r to form a more p e rfect Union , establ i sh justice , in su re domestic tran q u i l i ty, p rov i de for the common d efense , p romote the general we l fare , a n d secure the b l essi n g s of l i b erty to ourselves and our posterity, do ord a i n and establi s h t h i s Constitution for th e United States of America ."

S E C TION 1 4: OB L IGA TION

[ 405] Un i versal l y a l l norm a l peopl e h ave a sen se or a n awareness o f obligation i n t h e sen se t h a t they a re bound to , obl iged to do cert a in th i n gs a n d not to do certain other thi n gs . E very l a n gu age h a s words l i ke should, ought to, obliged to , etc . Someti mes the ob­ l i gation i s cl early i nstrumenta l . "You h ave a h i gh fever-you ought

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to see your doctor" , "You want to get into medical school ? Then you ought to take a pre-med program and get high grade s ." But other obligation s bind to actions that are simply good , simply the right thing for human beings to do . "It's wrong to kill your mother." "Keep your promises ." Many anthropologists have recognized the univer­ sality of obligation . Thus Robert Redfield states: "E verywhere there are recognized obligations , commitments , sentiments and judgments of what is good and what is bad. If we let 'morality' stand for all such j udgments and commitments as to what it is felt right or wrong to do , not because it is merely prudential or expedient but b ecause it is in itself right and obligatory, then morality is universal" ( "An­ thropology's Contribution to the Understanding of Man" , p . 1 6 ).

A . THE QUESTIONS ABOUT OBLIGATION

[406] A universal p h e nom en o n requires a u n ive rsal exp l anation . This phenomenon is a human phenomenon . Animals do not h av e obl i g ati o n s ; they are programmed to act in c ert ai n w ay s . T h ey act from instinct and in determin ate ways . Since the ph en o men on of obl ig a t i on is exclusive l y a human matter, it must be grounded in or related to s om eth i n g i n human n ature . [ 407] The n ature a n d source of ob l i ga tion have b een discussed by th i n kers of every persuasion , and w i dely di fferent a n swers have been given to t he q u es t i o n s thereby rai sed . I wil l here first d i scuss the ( or a ) Thomi sti c view of the m atter. Then I will compare it with some other j u ri sprudent i a l view s .

B . T H E THOM ISTIC V I E W O F OBL IGATION [40 8 ] Accord i n g to S t . Thom a s , human bei n gs h ave a n atu ra l i n cl in ation to the good . T h i s incl i n ation becomes con sciou s and rati on al in the first princi ple of Practical Rea son , n a mely, "Good i s t o be don e ; evil i s t o b e a voided ." Th i s principle i s sel f-evident a n d becomes i m p l i citly operati on a l a s soon a s a human bei ng m a kes rea son able choice s . [4 0 9 ] T h e good wh i ch creates t h e m ora l obl igati on i s that wh i ch is rightly desired , approved , or l oved . Subjectively it is the good that is ri ghtly ch osen by R i ght Practical Rea son ; objectively it

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is the good that goes beyond the good of any individual and creates an objective obligation such as the obligation to work for the Common Good whence ( in particular) the moral obligation of positive ( human ) law derives its obligation . [410] Some have thought that the substantive precepts of the N atural Law can be deduced or derived from this principle . This is not so . The principle is a formal principle which provides the obligatory force of all the precepts of the Natural Law and all the judgments of Prudence . The most general precepts of the Natural Law-"Harm no person" , "Give every person his due", "Maintain moderation in sensual appetites" are self-evident in their own right. From them more particularized precepts can be logically derived. Thus, in q . 9 5 , a . 2 , c . , St. Thomas states that "Thou shalt not kill" can be derived from the more general precept , "Do no harm to any man ." Thus, also , one might derive from the general principle , "Give every man his due" the more limited precept , "Keep your promises ." [41 1 ] Others think the first principle is a tautology. If you define the "good" as that which should be done , the principle at least appears to be a tautology. But the "good" is that which is rightly desired ; the principle imposes on this conception of the good the additional idea of "obligation ." Thus obligation arises from the at­ traction of the Good . The explanation just given pertains to the epistemological explanation . [412] Metaphysical explanations ultimately terminate in God . And so it does here . In q . 9 1 , a. 1 , St. Thomas establishes that there exists in God an E ternal Law which is God's master plan for the whole universe and everything in it. All created things are thus a participation in the Eternal Law. By metaphysical "participation" St. Thomas means that the created reality analogously imitates the Divine original , that it is derived from the Divine Model through efficient causality and is ordered to God as to a final cause . Thu s , since G o d is the perfect good , the most desirable good i n the universe, every human obligation is based on and is a participation in the primordial obligation to choose and seek the highest Good-God Himself.

C. MORAL OBLIGATION AND POSITIVE ( HUMAN ) LAW [413] In a tight and pregnant article ( q . 9 6 , a. 4 ) St. Thomas establishes that just human laws "bind in conscience ;' that is, that

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human laws impose a moral obligation to obey them . The immediate corollary of this is that unjust l aws do not per se impose a moral obligation . The reason is that unj u st l aws fail in an essential element of law. Unj ust laws are simply not l aws . What the moral law forbids a n individual to do cannot be impo sed on a group of human beings by positive l aw. [4 1 4 ] John Austin pl ace s h uman l aw entirely outside of the moral order. The on ly motive for ob eyi ng the law ari ses from fear o f th reats of unpleasant con seq u ences i f the l aw i s di sobeyed . The p ower of the sovereign i s simply t he p ower to carry ou t th ose th reats. If the p e o p l e find the l aws of the sovereign un bea rabl e , t h ey wil l rebel . I f the revoluti on succeed s , t h e sovereign thereby loses h i s power to m ake l aws . T h i s is in l i n e wi th Spinoza 's d octri ne th at a ty ra nt h a s a n atural right to govern a s l on g a s h e ca n con trol h i s subjects. It i s a l so con son a n t with Hobb es' theory th at th e only n atura l l aw i s the requi rem en t th at men en ter soci e t y a n d esta bl i sh a n absolu te ru l e r wh o w i l l restra i n by phy sica l power th e aggressi veness i nn ate in human b e i n gs .

[41 5 ]

In Joh n A u sti n the l a w i tself i s referred to simply

as

a n "order" or a "com m a n d " , thu s ch a ra cteri z i ng i t by r eference to the sovere i gn , th u s by extrin s i c d en om i n a ti on . No i ntrin si c qu a lity i s req u i site for a v a l i d l a w. T hu s , the wh ole n a tu re of the l a w, a s l aw, i s red ucible to th e sovereign a n d to h i s power. Th e sovereign can m a ke a ny a ction l ega l ly obl iga to ry . Th i s i s why some Positivi sts m a i n t a i n ed th a t H i tl er's l aws aga i n st the Jews were va l i d l aws a nd therefore o bl iga tory. [41 6] T h i s e mph a si s on th e physica l power ru n s through the wh ole h i story of A n glo - A merican Po si tivi sm , th ough sometimes softened and m u ted . In H . L . A . H a rt m ora l obliga ti on arises from s o c i a l pressu re ( The Concep t of L a w, pp . 79- 8 8 ). [ 41 7] In con tr a st , St . Th om a s m a i n ta i n s th a t a l aw, form a l ly and i n trinsically, m u st be a d ictate of P ra ctica l R igh t R ea son . Thi s m e a n s th at t o be a l a w, th at i s , t o h a ve b i n d i ng force o r be o bl igatory, a l aw mu st con form to th e mor a l l aw ( i . e . , to the N atu ra l L aw). No amou n t of power possessed by a l awgiver ca n empower h im to en a ct obl igatory l aw s th a t a re i n tri n sic a l ly u nj u st ( q. 9 6 , a. 4 ). [41 8 ] Aga i n , the l awgiver, a ccord i ng to St . Thoma s , ha s the right to m a ke l aw s on ly i n s ofa r a s h e represen ts th e people . A l l l egiti m a te l egisl ati ve auth ority comes from the peopl e ( q. 90 , a. 3 ;

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q. 97, a. 3, reply 3 ). The legitimate lawgiver has ( moral ) authority that rests neither on "habit" nor on physical power. [419)

For St. Thomas law must be ordered to the Common

Good while for Positivists something like social control is often stated as the purpose of rules ( both legal and moral ) . Here again "control" connotes physical force . [420)

Both St. Thomas and Positivists agree that only valid

laws impose obligations . But Positivists have only a technical for­ malistic requirement for validity, namely, that the law be made by one who has the physical power to punish those who disobey, or is made according to the formal technical requirements established by a Grundnorm, a set of general rules or a tradition .

SE C TION 1 5 : A S YNOPSIS OF S I THOMA S 'S DOC TRINE OF NAT URAL LAW

A. INTRODUCTION

i. Prenote [42 1 )

Now that we have covered some of the principles and

terminology of Thomistic philosophy, we are in a position to give a preliminary synop sis of S t . Thomas's doctrine of Natural Law. [ 4 22]

I accept John Finn is' distinction between Natural Law

as a fact of human life and theories or explan ations of Natural Law. [423 )

As a fact of human life , Natural Law can be found ,

at least implicitly and at least in its most general precepts , even in underdeveloped and unreflective societie s . In such case s , Natural Law is not formulated or distinguished from mere cu stom or historical development s . Thu s , in a primitive society, the tribal way of life , in which elements of Natural Law can be found , is simply accepted as a total way of life . [424)

When the ancient Greeks developed cosmopolitan

travel and trade , they were struck by the great variety of language s , social structures, a n d customs . T h e first reflective result was a sim­ plistic relativism . Many philosopher s , notably Pl ato and Aristotl e ,

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reacted against this relativism . They undertook the task of sorting out those things which were of intrinsic value and applied to all human beings and all human societies and , on the other hand , those things which were idiosyncratic to individual societies and were de­ termined simply culturally. Thu s , they conclude d , for example, that the b asic principles of j ustice were the same in Athens and in Persia­ a conviction expressed dramatically in the Greek play A n tigone­ while styles of dress and rules of table etiquette were variable and were morally indifferent. [425 ] What St. Thomas offers us in the Treatise is a sophisticated philosophical explanation which emerges from reflection on human life in the light of many major philo sophical and religious traditions . [426] However, St. Thomas does not provide a complete or detailed defense of Natural Law. There are two major reasons for this. [427] First , in the thirteenth century Natural Law was not a matter of controversy ; all the leading scholars of Western Europe accepted the Natural Law position . [ 428] Secondly, all of St. Thomas's primary sources maintained Natural Law positions-the Bible , Aristotle , St. Augustine , the Corpus Juris Civilis, the Stoics, and the Platonists . However, Natural Law is constantly presupposed throughout the Treatise and explicitly dealt with in q . 9 1 , a. 2 and q . 94. [ 429] Nonetheles s , St. Thomas is universally recognized as a classic exponent of Natural Law theory. [ 430] The outline offered here is intended as a general introduction which must be filled in by study of St. Thomas's Treatise. [ 43 1 ] I will use the methodology of the Four Causes to organize this synopsis in a way parallel to S t . Thomas's definition of l aw ( in general ) developed by him in Question 90. B . THE PRINCIPLES AND PRECEPTS OF THE NATURAL LAW

( THE FORMAL CAUSE )

[432] The Formal Cause of l aw as stated in St. Thomas's definition of law is the dictate of Practical Reason promulgate d . Viewed a s the totality o f such dictate s , law consists formally o f a set of principle s and precepts which are promulgate d .

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[43 3 ] P romulgation is reducible to two categories of causes. Viewed as active p romulgating , it is part of the activity of the lawgiver and so belongs to the efficien t cau se . Viewed as the result of the activity of the efficient cause , it is reducible to the formal cause , the state of being p romulgated . In other words , after the activity of promulgatin g , the result rema ins promu lgated . Becau se of th i s double function of promulgation , I do wh at S t . Thom a s d id , namely, treat promulgation in a sep arate unit . [ 4 34] O f this set of rules , th e pri m a ry principl e i s th at good is to be done and evi l avoided . Th i s i s th e fi rst pri nciple of Practical Rea son and so of the en tire mora l order. It i s a product of t he Practical In te l l e ct of h u m a n be i n gs i n the secon d stage of promulgati on . [4 3 5 ] T h i s i s not the fi rst principl e in th e sen se that any second a ry p ri nci p l e s or p recepts ca n be derived or deduced from it. R ather, it i s so ca l l ed becau se it suppl i es th e obliga tory character to the entire m ora l order [ 4 0 5 -4 0 6 ] . [43 6 ] G en er a l su b sta n tive precepts of the N a tura l L aw are l i kewi se self- eviden t . These p recepts a re such a s , "Do no h a r m to a ny person ;' "Give every m a n h i s due ." M a ny other precepts can be d erived by a qu a s i- d eductive process from th e gen era l substantive p r i n ci p l e s . [437 ] M a ny m ore p a rticu l a ri zed precepts a re derived by co m b i n i n g a con t i n gent fa ctor with a s econ d a ry precept. These ca n be ch a n ged a s ci rcu m sta n ces ch a nge . Th u s th e mora l i st 's view of t a k i n g intere st ch a n ged a fter th e mediev a l peri od i n Eu r ope becau se of the ch a n ge i n E u rope's fi n a n ci a l system . [4 3 8 ]

T h e a p p l i ca ti on of g en era l precepts to i n divi du al

ca ses

m a ny ca ses a ppl i c a tion c a n be m a d e on ly by a pru d en ti a l j u dgment. Th i s is a n

re q u i re s a speci a l a b i l ity ca l l ed the virtue of Pru d en ce . I n

exten s i on o f the i n s i gh t i n to N a tu ra l L a w [ 3 6 2- 3 74] . [4 3 9 ] In fa ct , ch a n gi ng ci rcu m sta n ces often requ i re the el a boration of n ew secon d a ry pri n cipl es . Th e effect of th e va st

expa nsion

of m ed i c a l p rocedu res on mora l d i scu s si on f u rn i sh es a good example. C.

THE COM MON GO OD OF THE N ATUR A L ( T H E FIN A L

[ 440]

L AW

C A USE )

St. T h om a s's defi n i ti on of l a w requ i res t hat the es-

senti a l purpose ( = fin a l c a u se ) of l aw be the Common Good .

To

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88

what Common Good , then , is the Natural Law ordered ? According to St. Thomas , the Natural Law is intrinsically ordered to the Com­ mon Good of all human beings . This Common Good is happiness, imperfect happiness in this life , and perfect happiness in the next life . [44 1 ]

I t i s important t o note that the Natural Law i s not

a sort of extrinsic test imposed by God for which God then gives a reward , much as a parent might say, "If you graduate with an A average , I will buy you a sports car." The Natural Law is intrinsic to human beings and is a simple recognition that , if a human being wishes to grow to full stature of personal excellence , the rules ac­ cording to which one must achieve his own personal excellence and happiness [ 3 79-3 9 3 ] and so also contribute to the universal Common Good , he must observe the rule s . One of the many misunderstandings of Natural Law that occurs in the Positivist critique is precisely viewing Natural Law as an arbitrary creation of God wh ich conflicts with the private purposes of human beings ( H . L. A. Hart , The

Concep t of Law, p. 1 8 6 ). [442]

Certainly, within the ambit of the Natural Law, there

are many possible personal choices. But it is obvious that , if a person chooses a purpose such as a life of drug addiction or as a member of Murder Inc . , he will be destroying his humanity and so violating the Natural Law, or, conversely, one can s ay that he is violating the Natural Law and so destroying his humanity and his happine s s . According t o St. Thoma s , G o d adds a penalty, as in legal sanctions , t o b e sure that human beings are motivated to work fo r their own good . This situation is similar to that of a parent who tells a child that he will be spanked if he does not brush his teeth . The real reason for brushing one's teeth is to protect one's teeth ; the motive is avoiding the spankin g . [ 44 3 ]

So a l s o t h e real reason fo r discovering a n d obeying

the Natural Law is love of the good-ultimately-of God and for one's own realization of personal good . In the good human being, this reason becomes the motive. "Love casts out fear."

D.

[ 444]

THE MATE RIAL CAUSE OF NATURAL LAW What is it that the Natural Law "forms" in a way

analogous to the way in which the arrangement of the watch forms

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the parts into a watch o r t o the way in wh ich the shape of Lincol n's head "forms" the marble , making it a statue ? A human act that is conformed to a precept of the N atural L aw is thereby molded or formed into a moral act and a moral act of a definite k ind [445] In civil ( human ) law, the Material Cause is human acts in society and insofar as they can be dealt with in the publ ic ( external ) forum. It should be remembered that St. Thomas's defi­ nition of l aw is analogous as referring to the major types of l aw ( E ternal , D ivine , Natural , Positive ). .

E. THE E FFICIENT CAUSE OF NATURAL LAW

[446] Since the Natural Law arises from the con sideration of human beings in their full experiential concrete reality, and since God , through crea t i on , is the E fficient Cause of human beings , t he remote E fficient C ause of Natural L aw is God himsel f. God , h owever, does not i m prin t on the i ntel lect or " heart" of man the p recepts of the Natural Law but , i nstead , endows man with a Practical Reason by which man can recognize an d formul ate the b a sic principles and ge ner a l precepts of the Natural Law. Man h im se l f is the i m mediate Efficient C ause of the N atural Law. [447] The Natural Law i s , therefore , n ot to be compared to the in stincts of the a n i m a l s wh ich a re blindly carried out . Man has an in si g h t fu l and con scious recogn ition of the Natural L aw and of the go o d to wh ich he i s ordered by n ature . He freely con form s h i s human acts to the Natural L aw or freel y refu ses to do so .

F.

PROMULGATION OF THE NATU R A L L AW

[ 448 ] A c cord i n g to St . Thom a s , promulgati on belongs to the essence of l aw. Natural Law, therefore , mu s t be p rom u l g a ted to a l l human bei n g s , as they a re a l l under the jurisdiction of God . [449] Prom u l ga tio n of the N atural L aw takes pl ace in two ph a ses. First, God esta bl i shes the b a s i s of the Natural Law when he creates human bei n gs , for the Natural Law is simply a form u l ation , the rules of whi ch a re the appropri ate gui des for a free rati on a l creature .

90

[ 450]

GENE RAL DOCTRINAL BACKGROUND FOR THE TREATISE

Note that the Natural Law is not a code extrinsically

imposed on man , an external l aw, the observance of which will result in an extrinsic reward . The Natural Law i s intrinsic to human beings and guides them according to their own nature to the full development of them as human beings . [4 5 1 ]

The second phase of promulgation consists in man's

recognition and formulation of the principles implied by the existence of human beings. Man , in part , promulgates the Natural Law to himself. Thu s , human beings become aware , implicitly or explicitly, of the basic principle of the Natural Law, that "good is to be done ; evil is to be avoided" as well as the most general precepts of the Natural Law, such a s , "Harm no innocent person ." According to St. Thoma s , these general principles and precepts cannot totally be abol­ ished from the mind of man ( q . 94,

a.

6 ) . The less general precept s ,

t h e applications of Natural Law, c a n be abolished from t h e mind o f m a n and , indeed , are explicitly known only t o t h e w i s e a n d learned . [452]

A bad disposition , vices , and a bad education can

obfuscate much of the Natural Law. [4 5 3 ]

None of this should be taken to imply that human

beings have formal innate moral ideas or moral principles . What is innate i s the Practical Intellect and the habit of first principles. Guided by these primary precepts , human beings have to work out the de­ tailed and particularized rule s . And , finally, in applying these rules to individual cases , one needs the virtue of Prudence . [454]

For a full explan ation of the Natural Law, St . Thomas

reduces it back to God as its creator and first prop agator. But ordinary people, in knowing the N atural Law in its self-evident principle s , do not necessarily refer the Natural Law to God . In fact , even at the philosophical level, the reference to God need not appear. Aristotl e , fo r example , worked o u t a complete Natural Law ethic without formal reference to God or religion . [455]

St. Thomas maintains that a complete explan ation

requires that God must be seen as the ultimate source of the Natural Law inasmuch as this law is a participation in the E ternal Law, its model , in the mind of God ( q . 9 1 , a. 2 ) . [45 6]

There has been a tendency among some Natural Law

thinkers to identify the Natural Law with the Divine Law wh ich is the Law revealed by God in the Old and New Testaments . S t . Thomas keeps the Natural Law and the Divine Law distinct as arising , as far

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91

as human beings are concerned , from two different acts of God , though , of course , many precepts appear in both . [457] John Austin identified Natural Law and the Divine Law, denying human beings an independent access to Natural Law and also by excluding both Divine Law and Natural Law from the province of jurisprudence .

G.

THE EXEMPLAR CAUSE OF NATURAL LAW

[45 8 ] According to St. Thomas , God created the universe , intelligently, freely, and lovingly. Since He creates intelligently, and since the range of possible universes is infinite , God chooses the universe He intends to create and so produces in His mind a pattern of all the details of the universe He actually creates. This pattern is called the Eternal Law, which is somewhat misleading since it contains many things ( types of things) that are not laws properly so called . However, it does include the prototype of all laws. [45 9 ] St. Thomas then distinguishes the Divine Law, the Natural Law, and the Positive ( or human , man-made ) L aw. [ 460] The Divine Law is that part of the Eternal Law that is revealed in the Bible , e . g . , in the Ten Commandments , the Sermon on the Mount, etc . [46 1 ] The Natural Law is also derived from the E ternal Law by way of creation of human nature and recognition by the human Practical Reason . This is why St. Thomas calls the Natural Law a "participation" in the Eternal Law. [462] Human Law is derived from the Natural Law and so also indirectly from the Eternal Law. However, the Human L aw is derived from the Natural Law in two very different ways . Human laws embody, almost directly, the general precepts of the Natural Law, e . g . , in the statutes against murder, fraud , etc . But there are many things that the Natural Law, in its high generality, does not determine . These are left to the active determination by the human lawgiver. Thus the Natural Law has nothing determinate to say about driving on the right or left , speed limits , income tax percentages, the requirements for a valid will , etc . , although the Natural Law does require that all human determinations be just and serve the Common Good.

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[46 3 ] To repeat , the primary Exemplar Cause ( extrinsic formal cause) of Natural Law is the Eternal Law; the proximate Exemplar Cause is the recognition and formulation of the principles and precepts of the Natural Law in the human Practical Reason .

H . NATURAL LAW AND POSITIVE LAW Natural L aw is the "rule and measure" of all human [464] acts. Now, Positive Law is made by men through their human acts , and Positive Law is also a "rule and measure" of some human acts. Hence , Positive Law, in its development and in its precepts , must conform to Natural Law. For example , the Natural Law requires that human acts be just; therefore the human lawgiver must act justly and human laws must be just. [465] In a sense , therefore , all Positive Laws are derived from the Natural Law. All political and legal institutions have a moral basis. However, Positive Law is derived from Natural Law in two quite different ways. [ 466] The first way is by a substantively quasi-deduction . For example , the legal statute against murder can be derived from the general precept of the Natural Law, "Do no harm to any man ." In modern legal codes this sort of derivation is very limited when compared to the second way. [467] The second way of deriving Positive Law from Natural Law is by way of what St. Thomas calls "determination ." The Natural Law is very general in its substantive precepts . The human lawgiver must take care of a wide variety of particular and detailed needs. Thus the Natural Law says nothing about right- or left-hand driving; it determines no speed limit; it does not specify the legal requirements for a valid contract . There is an enormous number of such "determinations" and they depend immediately on the authority of the human lawgiver and his Practical Reason . Of course , such determinations must conform to the general requirements of Natural Law. Thus the human lawgiver determines the income tax scale , but a scale placing a heavy burden on the very poor while lightly touching the rich would violate Distributive Justice ( q . 9 5 , a. 2, c . ). [46 8 ] Of course, the scope of Positive Law is restricted in other ways . Positive Law must serve the Common Good , not the

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good of an individual or of a favored class. Nor can Positive Law regulate the internal life of man , his motives, attitudes , and thoughts ( q . 9 6 , a. 3, Reply 1 ).

I. NATURAL LAW AND NATURAL RIGHTS

One may be surprised that in a treatise dealing with law and j ustice there is no mention of "rights ." All modern political and legal documents that are in any way concerned with fundamental Natural Law speak "rights" language . [ 4 70] The Declaration of Independ�nce speaks of "unalienable rights;' of the right to "life , liberty, and the pursuit of happiness ." Blackstone identified the three basic rights of "free E nglishmen" as life , liberty, and property. The U . N . issued a Decla ration of Universal

[ 469]

Human R ights . [ 4 71 ] The historical fact is that in the thirteenth century the use of the term "right" in this sense did not exist . "Rights ;' as we call them , were expressed in precepts , principles , and relation­ ship s . The "right to life" appears in the precept , "Do not kill innocent people ." Justice rights were described as "the right relationship be­ tween persons ." [472] In the thirteenth century, the term "right" (jus ) was generally used in an objective sense , the just thing. The modern usage was well-established by the time of Suarez ( 1 548- 1 6 1 7 ) , though at first , in the new usage rights were called subjective rights (jus sub­ jectivum ) since they seemed to inhere in a subject , that is, in the person who can say, "I have a right . . . . " Tod ay, Natural Law theo­ rists accept the modern rights language and have no difficulty in deriving human rights from their foundation in S t . Thomas and in other earlier Natural Law theorists. ( See Joh n Finnis, Natura l Law and Natural Rights, pp . 1 99-205. ) [473] Today, therefore, one of the distinguishing positions of Natural Law is that human rights are "unalienable" rights pos­ sessed by human beings , precisely because they are human bemgs and possessed prior to any society or Positive Law, while Positivists derive rights from social pressure or Positive Law.

C HAP T E R I V ST. T H OMAS'S S O U RC E S AN D H IS USE O F T H E M

SE C TION 1 : THE USE OF AUCTORITAT E S

A . INTRODUCTION [474] When one looks into a medieval text for the first time , he is usually surprised by the constant quotation of other authors. One might expect frequent quotations from the Bible , but the quotations range through a comparatively remarkable list of writers , Christia n , pagan , and Jewish and books originally in various langu ages-Latin , Greek , Arabic , and Hebrew. These quotations were called aucto ri­ tates, that is, authoritative quotations , and those who produced them were called aucto res, that is, authorities outstanding in their own fields; thu s , in theology, the primary auctores were the biblical au­ thors , the Fathers of the Church , and , above all , St. Augustine; in philosophy, Aristotle ( who was so highly regarded that he was referred to simply as "the Philosopher" ) ; in music , Boethius ; in geometry, Euclid ; in medicine , G alen , and so forth . To a superficial reader this method appears as a slav[475] ish subservience to human authority. "Aristotle said it , therefore it's true ; St. Augustine said it , therefore I believe it." Actually, it is nothing of the sort. St. Thomas knew exactly what he was doing in his handling of auctoritates. A scholarly study of his works displays this clearly. But he also explicitly said that philosophy was not about the opinions of men but about the truth of reality. [476] In evaluating the evidential value of auctoritates, St. Thomas makes a sharp distinction between those drawn from the Bible and those derived from the writings of human scholars like Aristotle or St. Augustine . [477] In theology, since it depends not on human data but on data revealed by God , Auctoritates from the records of that Reve­ lation , namely the biblical writings , are decisive . The auctoritates that are of solely human origin yield the wea kest of all arguments. [478 ] Let us express this in St. Thomas's own words : . . . 94

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95

. . . to argue from auctoritates is most proper to this discipline [i . e . , to theology] , for the principles of this discipline are known by Revelation and therefore auctoritates of those to whom the Revelation was made must be believed. Nor does this derogate from the dignity of the discipline for, although arguments from human auctoritates are the weakest of all arguments , arguments drawn from an auctoritas based on Revelation are the most effective ." (S. T., q. l , a. 8, Reply 2 )

[ 479 ] Some additional quotations stating the same evaluation are cited in Toward Unders tanding Saint Thomas (p. 1 3 9 ) : The source arising from authority based o n human reason [is] the weakest" (Ia Pars, q. 1, a. 8, ad 2um ). "To prove by means of authority is not to prove demonstratively, but to form an opinion on a thing through faith . . . " ( Quad!. III , a . 3 1 , ad !um ). "When sacred doctrine utilizes philosophical writings , it does not admit of them because of the authority of those who wrote them , but rather because of that which they formally contain" ( In De trin. , q. 2 , a . 3 , ad 8um). And in the same vein WILLIAM OF AUVERGNE : "Because I know the source arising from authority to be solely dialectic, and to produce faith only . . " (De an. , c . 1 ). ALBERT THE GREAT : "In theology, the source arising from authority is inspired by the Spirit of truth . . . ; in the other science s , the source arising from authority is wea k , weaker than the others" ( Summa theol. , la Pars , q. 5, m. 2, in AMOO [sic. ] , XXXI ( 1 8 9 5 ) , 24 B ) . " . . . Otherwise , if the master determines the question on the strength of bare authorities , the auditor, to be sure , will have a certainty that the thing is so , but he will have acquired no science or understanding and he will leave empty in mind." ( Quad!. IV, a. 1 8 ) .

We may now illustrate this doctrine . [4 80] With regard to human science , I may believe that the [4 8 1 ] sum of the angles of a triangle is equal to two right angles because a recognized geometrician tells me to ( ex a uc toritate) without my knowing how to prove it . When one learns how to prove it then one really knows the matter scientifically. But , when I am dealing with the doctrine of the Holy Trinity, I can only know this through auc­ toritates from the Bible , not by human reason . If now we make a cursory examination of the four [4 8 2] articles of q . 9 0 , we discover that although in the total Question

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T HEM

there are auctoritates, in the Corpora (where St. Thomas establishes his own doctrine) there is only one auctoritas and this one is not used as a part of a decisive argument but rather as an unde type of aucto ritas [493-495] . [4 8 3 ] Now we will analyze the various principal ways in which auc toritates function in St. Thomas's writings , using examples from the Treatise. The reader should follow the discussion with par­ allel reading of the portions of the Treatise referred to .

B . THE FUNCTION OF A UC TORITATES IN ARGUMENTATION [484] One of the primary uses of auctoritates is to serve as a basis for argumentation . In this use , the aucto ritas serves as a major, or, less frequently, as a minor in deductive reasoning, i . e . , in a syllogism . For this purpose , the auctoritas is taken , at least ten­ tatively, to be true and certain . [4 8 5 ] This probative use of auctoritates is most frequent in the Objections . This is most appropriate since the Objections present arguments from other auctores and traditions which St. Thomas must take into account . Also , the appearance of apparently divergent views in the Objections enables St. Thomas to add nuanced explanations in the Replies which clarify and extend the positive presentation of the Corpora. [ 486] I have j ust said that the truth and certitude of the auc toritas is , at least tentatively, assumed. St. Thomas , as we shall see , has various techniques for dealing with objections based on auctoritates, but here we must make a distinction between Scriptural auc toritates and those arising from human opinion . In the latter case the truth of the auctoritas itself may be challenged but , with regard to Scriptural auctoritates, it is the interpretation or application that can be questioned , and , to this extent , even a Scriptural aucto ritas has a "wax nose ." [487] Q. 9 3 , a . 2, obj. 1 provides an example: It seems that the Eternal Law is not known to everyone . For, as the Apostle says ( 1 C ori nth . , i i , 1 1 ) , "the things that are of God , no one knows except the Spirit of God ." But the Eternal Law is an idea in the divine mind . Therefore , it is unknown to everyone except God alone .

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The Scriptural auctoritas, "The things that are o f God, no man knows , but the Spirit of God" is the major of the argument . When the minor is adde d , "But the Eternal Law is something existing in the mind of God ;' the conclusion follows , "The Eternal Law is not known to all but only to God ." [4 8 8 ] In replying, St. Thomas distinguishes thu s : We cannot know the things of God in themselve s , but we can know them in their effects . He supports his distinctions with another Scriptural auctoritas. Thus the Scriptural texts stand firm , but their opposition to St. Thomas's doctrine is removed. Here is the text itself: We cannot know the things that are of God , as they are in themselves; but they are made known to us i n their effects, according to Rom . i . 20: The invisible things of God . . . are

clearly seen, being understood by the things that are made. [489] In q . 94, a . l, obj. 1 we find an example in which an Aristotelian auctoritas is the basis of the argument: It would seem that the natural l aw is a habit , because , as the Philosopher says (Ethic. ii. 5 ) , "There are three things in the soul , power, habit , and passion ." But the natural law is not any power of the soul nor is it one of the passion s , as can be seen by going through them one by one . Therefore , the natural l aw is a habit .

[490] The argument rests on taking the Aristotelian text to mean that there are only three things in the soul. Thu s , if the natural law is not the power or a passion , it must be a habit. [4 9 1 ] In the Reply, St. Thomas says that Aristotle intended the text quoted to list only those things that are in the soul as principles of human acts. There are other things in the soul and so the argument fails. ( The same point is made in q. 9 0 , a. 1 , obj. and reply 2 . ) C . A NON-EVIDE NTIAL USE OF A UC TORI TATES

[492] St. Thomas has one highly stylized use of auctoritates in which they play no logical role in any argument and which is easily identified . The common pattern fo r this u s e consists o f the fol[493] lowing elements : First , there is an argument or explanation that is

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logically complete in itself, based simply on reasons without the support of any aucto ritas . Second , there is a verbal signal that in­ dicates that the following auctoritas is based on the reasons just presented in the argument. The commonest verbal signals are these : unde ( "hence" or "wherefore" ) , et idea ( " and therefore" ) , et p rop ter hoc ( "and for this reason" ). These indicators are not always so used , but, in this pattern , there is always an indicator of this sort. Third , there follows an auctoritas that repeats or amplifies the conclusion of the argument j u st presente d . The auctoritas often has a rhetorical or even poetical quality that not only confirms the conclusion but embellishes it, much as E nglish writers used to use apt quotations from the "Bard ;' i . e . , Shakespeare . Fourth , because of the nature of the pattern here developed , the auctoritas comes at the end of a Corpus or of a significant unit within the Corpus. Now, the following example is from q . 9 7, a. 2, c. First there is a reasoned argument (without any supporting aucto ritas ) that concludes as follows: . . . human l aw is rightly changed insofar as the Common Good is thereby promoted. However, a change in law, simply in itself, is somewhat detrimental to the common welfare inasmuch as the observance of l aw is greatly supported by custom , since what is done against a common custom , even though trivial of itself, is looked upon as quite serious . Hence , when l aw is changed , the binding power of l aw is diminished inasmuch as the custom is abolished . Hence , human l aw should not be changed unless the damage done thereby to the common welfare is compensated for by some other benefit. And this happens when some very great and most evident benefit comes from the new law, or when there is the greatest necessity or when either the customary l aw clearly contains injustice or when its observation is extremely harmful .

[494] The complicated reasoned argument is now complete , with its own demonstrative evidence . [ 49 5 ] Next there follows a verb al indicator unde ( " Hence" or "Wherefore" ) , then an auctoritas from the "Jurist" ( from the Cor­ pus Juris Civilis ) which states the conclusion just reached in different word s . And with this , the Corpus is concluded . [496] As stated above , this u s e of auctoritates is most common in the Corpora. Yet it is found also in Objections and in Replies ;

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in fact , the very first Article of q . 9 0 , o bj . 3 furnishes a clear example: "Further, the l a w move s tho se w ho are subject to it to act aright . But it belongs p roperly to the will to m ov e to act , as is evident from what h a s been said ab ove [ q . 9 , a . 1 ) . Therefore law pertain s , not to the rea son , b u t to the will ." U p to th i s point the argument is based on the n a ture of the will an d i s logically complete . However, St . T h o m a s add s : " . . . according to wh at the Jurist also says (Lib . i . ff , De Const. Prin. leg . i . ) : W h a tever p l e ases the sovereign h as force of l a w; ' a wel l -known a n d fa m ou s pri ncipl e d rawn from t he Corpus Ju ris Civilis wh ich , in fact , si m p l y repeats th e c o nclu si on of the a r gu m e n t without i tsel f b e i ng p a rt of the a rgu men t . Thu s the auc ­ to ri tas not on l y re p e a ts an d con fi rm s th e con clu si on i n a stri king p h r a s e , but it t i e s the ob jecti on i n to th e wh ol e tra d i ti on of i mperi al ru l e ( wh ich , i n a Chri sti a n context , becomes the doctri n e of the Divine R i gh t of Ki ngs ) . [ 497) I h a ve ca l l ed th i s u se "non -evi den ti a l " becau se it i s q u i te cl e a r t h a t the auc toritas i s n ot p a rt of th e a rgu m en t . I t i s much m ore d i ffi cu l t to i den ti fy th e po si ti ve con tri bu ti on m a de by the auc­ toritas . G ene r a l l y , it a p pe a r s to con fi rm the a rg u m en t a nd to add

m ph a si s , d i gn i ty , and embell i sh m ent t o a rath er jej u n e text . [4 9 8 ) T h i s u se a l so m a kes u s a wa re of h ow l i ttl e St . Th oma s depen d s on aucto ri ta tes wh en h e is establ i sh i ng non- theologica l c o n­ clu sion s . T h u s , i n the fou r C o rp o ra th a t con sti tu te q . 90 , t here i s on l y one aucto ritas . The re a son for th i s i s th a t the d efi n ition of l aw wh i ch i s the up shot of these fou r Co rp o ra i s n on - theological. The defi n ition i s derived by apply i ng p h i l o soph i ca l pri n cipl es to the em­ pirical data fou n d i n l e ga l system s . e

D.

S T. T HOM A S 'S T E C HNIQUE IN

DE A L ING WIT H A UC TOR ITA TES PR E S E N T E D IN THE OB JE CTIONS

[499]

It i s obv i ou s th at wh a t i s

done

in

a

exten t , d i c t a ted a n d con trol l ed by wh a t h a s been corre s p on d i ng ob j e ct i on . the object i on , S t .

W h en a n auc to ritas i s

T h om a s i s forced to d ea l wi th

R eply

i s , to

presented

some

in the

th e l ogica l ba sis for the auct oritas

itself .

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ST. THOMAs's SouRcEs AND His UsE OF THEM

St. Thomas respects auctoritates because of the standing of their auctores. He therefore tends to give them a "reverential" or "benign" interpretation . Moreover, his dialectical method leads him to look for some truth even in objections . Hence , he has a variety of tech­ niques for dealing with various auctoritates. [500] St. Thomas frequently uses a technique that is distinctive of Scholastic scholars , namely, making relevant distinctions. Thus, in the very first objection of q . 9 0 , a. l, an auctoritas from St . Paul is used to show that law does not pertain to reason . St. Thomas distinguishes two different meanings for the term "law;' an essential meaning which defines law as he is dealing with it in the Corpus and a derivative ( by participation ) meaning which is used in the auctoritas. Thus the standing of the auctoritas is protected but its adversarial force is eliminated . [501 ] Again , in q . 9 3 , a . 2 , obj. l , St. Thomas argues that we cannot know the things of God . St. Thomas replies with a distinc­ tion : We cannot know the things of God in themselves ( this validates the auctoritas) , but we can know them in their effects ( this maintains St. Thomas's position ). [502] Sometimes St. Thomas points out and denies an assumption made in the objection . In obj. 2 of q . 90, a . l, the argument assumes that when Aristotle says that there are three things in the soul , Aristotle meant there are only these three things in the soul. St. Thomas argues that there are many other things in the soul , hence denying the validity of the argument while explaining that , in the text, Aristotle is listing only those things that are p rinciples of human acts , thus explaining why, in this text , Aristotle mentions only three things . Thu s , the integrity of the text is maintained while its logical relevance is removed. [503] Sometimes St. Thomas adds a qualification to the text of the objection without denying the positive assertion of the objection . Thus , in replying to q. 90, a. l , obj. 3, St. Thomas grants the auctoritas provided what is willed by the sovereign is in accordance with reason . Again , the aucto ritas is saved but its adversarial force is eliminated. [504] Sometimes St. Thomas appeals to the context of an auctoritas to confirm his own analysis. Thus in q. 90, a. 3, Reply 1, after distinguishing the auctoritas presented in the objection , he

ST .

THOMAS's SouRcEs AND

His

UsE OF THEM

1 01

says , hence the same text goes on to say, "Who shows the work of the law, written in their hearts ."

E . THE USE OF A UC TORITATES IN THE ON THE CONTRARY [505] The purpose of the On the Contrary is to present a preliminary indication that there is traditional or rational support for the position to be taken by St. Thomas in the Corpus. The On the Contrary is thus a kind of counterbalance to the Objections . [506] St. Thomas sets forth the On the Contrary in one of three ways . [507] First , he frequently simply presents an aucto ritas without comment or development ( "Simple Authority" technique ). "Here is what Aristotle ( or Augustine or Isidore ) said ." [508] For example , in q. 90, a. 2 , On the Contrary he simply quotes from I sidore , a recognized auctor in many classical matters , such as Roman Law: Isidore says ( E tym . v. 2 1 ) that "law is enacted for no private benefit but for the common utility of the citizens ." [509] Second , sometimes St. Thomas uses an aucto ritas as a basis for or as a part of argumentation , drawing from it an inference or a formal syllogistic conclusion ( "argumentation" technique). For example , q. 9 5 , a. 1 , On the Contrary.

Isidore says ( E tym . v. 20) "Laws were made that , through fear thereof, human audacity might be repressed , and that innocence might be safe in the midst of the wicked , and that the wicked themselves might, by fear of punishment , be re­ strained from doing harm ." But these are extremely necessary for the human race . Therefore , it was necessary to make l aws . [See also , q. 9 3 , a. 4, On the Contrary. ] [510] This is a formal syllogism ( "but . . . therefore . . . " ) in which an aucto ritas serves as the major premise . [511 ] Third , much less frequently, St. Thomas sets forth , in the On the Contrary, a simple argument without benefit of a supporting auctoritas. Thus, in q. 90, a . 1 , we find the following On the Contrary : "It belongs to reason to order and to prohibit . But

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to command belongs to reason , a s was shown above [q. 17, a . 1 ] . Therefore , law i s a thing of reason ." [512] In the Objections and the On the Contrary the original question has been opened up . A number of opinions and ar­ guments have been , as it were , put on the tabl e . Now the Corpus will present the determinatio (the authoritative discussion of the Master). [513] St. Thomas seems never to incorporate the On the Contrary into the Corpus or even to use it . While the On the Contrary indicates the general direction St. Thomas will take , it should not be used in explaining St. Thomas's personal doctrine . [ 514] Very rarely ( there are only two examples in the Treatise) St. Thomas adds , after the replies to Objections , a comment on the On the Contrary. However, with regard to what is objected to the contrary : Sometimes a person cannot use that which he habitually pos­ sesses because of some impediment; for example , a person cannot use the habit of science because of sleep . Likewise , a chil d , because of his age , cannot use the habit of the under­ standing of the first principles or even the Natural Law, both of which he habitually possesses . ( Q. 94, a. l , ad fin . ) The On the Contrary, taken by itself, is usually too simple , too ambiguous and open to too many interpretations to be taken as a definitive statement of a position . The ambiguities are removed in the Corpus and , therein also , St. Thomas defines his own interpretation of the auctoritas in the On the Contrary.

[515]

F. A CONCLUDING COMM E N T

[516] We have now taken a brief look at the principal ways auctoritates were used in medieval scholarship in general and by St. Thomas in particular. There are other uses and some subtle refine­ ments that would be more appropriately studied in a more specialized account . For example, in q. 97, a. 1, c. a long quotation from St. Augustine supplies an example of the corruption of a political state that calls for drastic reformation . [ 5 1 7] However, the analysis offered in this Section will generally be adequate for the understanding of the Thomistic text. Be­ sides, there will be further clarifications throughout the Commentary.

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1 03

SE C TION 2 : THE AUCTOR E S QUOTED IN THE T R E AT I S E [518] There are 141 auc toritates in the Treatise. T h e s e are drawn from 1 3 auctores. [519] There are four auc tores from wh o m the ma jor i ty of the auctoritates are drawn . These are the Bibl e ( 5 8 references ) , Aristotle ( 3 5 reference s) , St. Augustine ( 2 6 reference s ) , S t . I si dore ( 1 5 reference s ) , 1 3 5 in all . [ 520] These figures may be compared with Chenu's simil ar count ( without biblical references) of the auctoritates in the first 1 2 Questions o f the Summa Theologiae ( Towa rd Unders tanding St. Thomas, p . 1 27 ) : Aristotle 55, St. Augu stine 44, Dionysius 2 5 , the Latin Fathers 23, the Greek Fathers 4, and secular authors 9-in all 1 60. [5 21 ] These two sets of figures i l l u strate two th i n g s . F i rst , they indicate St. Thomas's major general sources wh i ch appear con ­ stantl y in his work s , name l y, the Bible , A r i stotl e , and St. Augu sti ne . Secondly, they i l l u strate the fact that other s ources vary with the subject matter. The Treatise d e als with the n ature and proper ti e s of law. Hence , I sidore , who left a summary of cl a s s i ca l Roman ideas about l aw, appears a s a major sou rce . The first part of the S u m ma Th e o logia e dea l s with the nature of Theology and the natu re of God , a m uch more theological contex t . Hen ce , Isidore does not appe ar, but D i onysi u s , who wrote of God , becomes a m ajor sou rce . [ 5 22] In the fol l owin g pages I i dentify for the c on venien ce of the rea der the auctores of the Treatise. [523] The fi rst secti on s under the rubric " N' i n clude the m a jor auctores in order of d escending num ber of reference s . The second l i st u n der rubric "B" iden t i fies the rest of the a u c to res in a l ph abetical order.

A . THE M AJOR SOU R C E S

A 1 : The Bible [ 5 24] The Bible was and is The Book in the Western worl d . E ven tod a y i n the Un i ted States , i n a secu l arizing society, the B i ble

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ST . TttoMAs's SouRCES AND His UsE OF THEM

is the bestseller. Moreover, commentarie s , reflection s , meditations based on the Bible are flowing from our printing presses by the dozen s . But in Medieval society the Bible was even more important; its culture was saturated with Biblical ideas, themes and scenes . Every parish was required to have a Bible at the entrance to the Church . It was , of course , chained-for the same reason telephone directories are chained in public place s . A Bible was very valuable both because of the short supply and because of the man-hours required to print it out by hand . The windows of the great cathedrals portrayed , in brilliant and jewel-like colors , scenes from the Bible and the lives of the Saints. These windows were part of the religious instruction for the illiterate . Of course , the illiterate learned of the Bible from ser­ mon s , week after week , delivered in churches all over Europe. M any of the most important events of Biblical narration were dramatized in the churches , making the churches sacred theater. Churches and monasteries were decorated with carvings and statues portraying the heroes of the Bible and the Saints of the Church . Statues and pictures of Christ and of the Virgin with the Christ child were everywhere . [525] Every Medieval writer frequently quoted the Bible. Of course , a theologian like St. Thomas quotes the Bible constantly. However, the Treatise, though an integral part of a theological treatise and ordered to a theological purpose , is b asically, in its explanation and argumentation , with a few exceptions ( such a s q . 9 1 , a. 6 ) philosophical . [526] A brief review of the history of the Bible may be helpful here . The Hebrew Scriptures were written and compiled over many centuries B . C . It was produced by many authors and contains a wide diversity of writing-historical , poetic , prophetic , and other. The official list of the Books of the Hebrew Scriptures was established at Jamnia A . D . 90. [ 5 27 ] The early Christians , regarding Christ a s the Messiah , foretold and described in the Hebrew Scriptures, and regarding these S criptures as a preparatory Revelation , simply continued the Jewish acceptance of these Scriptures. According to the Christians, the Scriptures contain a covenant between the Hebrews and God, a covenant replaced by the new covenant established by Christ for all time. Hence , the Hebrew Scriptures entered the Christian Bible as the Old Testament. There was some difficulty concerning certain

ST. TttoMAs's SouRcEs AN D His UsE OF THEM

1 05

positive perceptions of the Old Law such as circumci sion , but these difficulties did not destroy the authority of the Old Testament in religious matters . So St. Thomas treats auctorita tes from the Old Testament with the same respect as he does those from the New Testament. [528] In the early Christian churches the cu stom grew up of reading not only the accepted Gospels but also other Christian writings such as the letters of St. Paul , of St. Clement of Rome, and so forth . In fact , a considerable body of Christian writings wa s produced , some of which were authentically Apo stolic , some not Apostolic but orthodox , some heretical , some actu ally silly, and some simply forgeries to which the authors attached names of Apo stles and other prominent Christians . The Churches decided that an approved list of orthodox Christian writings should be drawn up . Thus the Canon ( or official list) of the writings of the New Testament was established . The Christian Bibl e , con sisting of the Old and New Te st amen t s , was thus final ized . The Church maintained the authority of the B i b l e an d p romu l gated i t th ro ugh t h e subse quen t centuries . In the scri p tori a ( wr it ing rooms ) of th e monasteries hand p rin te d c opie s , some of g re at b eau ty, were l ovin g ly r e p rodu ced The copies of the Bible in medieval Europe were in Latin , since that was th e o n l y stan da rd i ze d com m o n l angu age of Western Europe during that pe­ riod. And so the Bible came down to St. Thomas i n the approved Latin version known as the "Vulgate :• [529] St. Thom a s h i m sel f knew a l most no Greek or Hebrew though he did h ave available tran slations of many of the Greek Father s of the Church and the Latin commentaries of St. Augu stine. He a l so seems to h ave consulted William Moerbeke , O. P. , former Arch b i shop of Corinth in Greece and a proli fic tran sl ator of Greek texts. [ 5 3 0] St. Thomas was a th orou gh stu dent of the Bibl e , h aving gone throu gh t h e exten sive b i b l i c a l studies required a t the Uni versity of Pari s and having written a l a rge number of Commen ­ taries on various section s of t h e Bible. [531 ] In most o f St. Thom a s's writi n gs , th e Bible i s the pri m a ry source of auctoritates. In princi ple a n auctoritas from the Bible is decisive in theological matters . But the ma tter is compl icated by the problem of i nterpretation and the m a ny controversies that h a ve a ri sen concern i n g the authentic mean i n g of the S criptu res . Thus St . .

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ST . TttoMAS's SouRCES AND His UsE OF THEM

Thomas often has a Scriptural text in Objections and , in the cor­ responding reply, deals with the difficult problem of interpretation . References in the Treatise: 5 8 A 2 : A ristotle

[532] Aristotle ( 3 84-322 B . c . ) was born at Stagira in Macedoni a . His fa ther was a medical doctor, a fact that is reflected in Aristotle's great interest in biology. Aristotle entered Pl ato's Academy and was for a time a follower of that thinker. His early writings were said to be Platonic , but only fr agments of tho se writings are extant. Later he became a severe critic of his former master, wh ile still de­ veloping many Platonic views. He opened his own school in Athens where he remained until the anti-Macedonian movement forced h im to flee. [533] Aristotle is universally regarded as one of t he greatest minds in western h istory. Coming as he did , towards the end of the great age of classical G re ek cu l ture , he was able brill i a ntly to organize and synth es i ze , to cri ticize and further de velop the central themes of that culture . B u t at the same time he opened up new q u e stio ns a n d n ew d i sci p l i n e s . His sy st e m a tic treatment of logic ( The P ri o r and Pos terior A nalytics ) w a s the fi rs t co m p rehe n s i v e treati se i n that field and b ecam e t h e m ethodologi ca l basis of medieval le a rn i ng . He wrote ma g i st ra l works i n m e t a p h ysics , p sychol ogy, p hy si cs , pol itics and b i ol og y. These works li kewi se became the pr i m ary ph i l o soph i c a l sources fo r medieval schol ars. There are l i tera l ly h u n d reds of extant m ed i ev a l c o mmen t ar i e s o n h i s wo rks. [534] After the fal l o f the Roman E m pire Ari stotle's works disappeared in the Latin West . They were rei ntroduced i n the West i n t h e twel fth and th i rteenth centuries. A t first t h e Church w a s a l a rmed by the spread of A r i stote l i a n i s m , especi a l ly sin ce the Averroi stic com­ mentaries were w ide l y used . But the re i n t erp re t a t i o n of A ri stotle by St. Al bert the Great and St. Thom a s i n corporated A ri stotle i n to Chris­ ti a n p h i losophy and theology. By the end of the th i rteenth centu ry the study of the Ari stotel i a n writings wa s requi red in a l l the Universities of Western E u rop e . [535] For St. Thom a s A ri stotle was the ph i losopher par excel l ence , though h e reworked A ri stotle's b a sic p o sit i on s , produci ng a n ori gi n a l Chri sti a n ph i l osophy. Yet , A r i stotle i s the major sou rce of p h i losoph ical aucto rita tes for S t . T h om a s . Thu s , in the Treatise,

Sr. T HOMAS's SouRCES AND Hrs U SE OF THEM

1 07

Aristotle is quoted 35 time s . St. Thomas frequently refers to Aristotle simply as the "Philosopher" or only by the title of an Ari stotelian treatise . [536] Franz Brentano called St. Thomas Aristotle's greate st disciple , but this is a case in which the disciple went , in some area s , fa r beyond the master. For this reason Etienne G ilson said that St . Thomas used Aristotelian language to say non-Aristotelian things . A 3 : St. A ugustine, Bishop of Hippo (North Africa)

[537) St. Augustine ( 3 5 4-4 3 0 ) , a Doctor of the Church , was born in Tagaste ( North Africa ) . He studied at Carth age where he led a l icentious life and became a master of classical rhetoric . He moved to Rome where he taught rhetoric with great succes s . There he became a Manichean . He moved to Milan where he was deeply influenced by St . Ambrose , Bishop of that city. He became a Christi an and returned to Tagaste where he w as eventually cho sen B i sh o p of H i p p o He died while the city was under siege by the Vanda l s . [53 8) S t . Augustine is regarded as the greatest theological writer i n the Western Church b etween the Bible and S t . Thoma s . He wrote numerous works on a wide variety of top ic s , biblical exege sis , systematic t h eo l o gy p o l em i ca l works and letters . His greatest theo­ l og ical work , De Trinitate ( On the Trinity) formed t h e tra d i ti on al ex p la n a t i o n of the Tri n i ty i n Weste rn t h e o l o gy. De Civitate D e i ( The City of God) pre s e n ted a ma g n i fi ce n t view of God's wo rking in the h i s t ory of m a n k i n d . Hi s Confess i ons is a s pi r i t u al autob i o gr aphy wh ich ran k s with the greatest spiri tu a l writings of a l l time . [539] T h ou g h St. Thomas criticized some o f the Neo Pl a ton i c elements i n A u gu s t in e 's though t , St. Augusti ne was one of Thom a s's prin ci p a l t h e o l o gi c a l sources ( an auc to r in the te ch n i ca l s en se ) There are 2 6 references t o St . A u gu sti ne i n the Trea tise. .

,

.

A 4: St. Isidore of Seville

St. Isidore ( c . 5 6 0- 6 3 6 ) , B i shop of Sev i l l e ( S p a in ) and Doctor of the Chu rch , wa s fa mous for h i s service of the poor, h i s support of fa rmers , h i s h oly l i fe a n d h i s vol u m i n ou s writings on a surpri sing va ri ety of topics. H i s most important work w a s h i s E tymologies, a n encyclopedi c diction a ry in wh ich he attempted to record a l l the b a s i c elements of cl assi c a l lea rn i n g . It w a s a p ri m a ry [540]

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ST. TttoMAS's SouRCES AND His UsE OF THEM

source of classical learning for the scholars of the Middle Age s . There were , of course , few books of similar scope available to them . S t . Thomas , too , used I sidore's E tymologies as a valuable source of information . In the Treatise, St. Thomas frequently quotes from Isidore's treatment of law. There are 1 5 references to St. Isidore in Thomas's Trea tise, and , in fact , St . Thomas devotes two Articles ( q . 9 5 , aa . 3 and 4) to Isidore .

B . THE SECONDARY SOURCES

B 1 : St. Basil the Great [541 ] St. Basil the Great ( c . 3 3 0-379 ) , Doctor of the Church , was one of the greatest theologians of the early E astern Church . He wrote a famous Mon astic Rule wh ich became the basis for the life of Basilian monks and strongly influenced St. Benedict . [542] He was re ga rded as a pr i n ci p a l defender of o r t h odo xy in the Eastern Church and was highly regarded as a theological auc to r by medieval the ologi an s i n th e West . Number o f references i n the Treatise: 1

B2 : A nicius Manlius Severinus Boethius [543 ] B o eth ius ( c . 475-525 A . D . ) was a n o utsta n d i n g Ro m a n ph i l o so ph e r and statesma n . W h i l e in p ri son o n fal se cha rges of t rea so n , h e wrote h i s most fa mous wor k , De Consolatio ne Ph iloso ­ phiae ( On the Consolation of Philosophy). H e transl ated a number of Greek ph ilo s op h i cal works and comm en ted o n t h em , t hereby tra n s­ m i tti n g some Greek so urce s to the early Middle Age s . [544] S t . Thom a s wrote a commentary on h i s De Trin i tate ( On the Trinity). Number of references i n the Treatis e : 1 B 3 : Julius Caesar [ 1 02 ?- 44 B . c . ]

I n the Treatise S t . Thom a s m a kes one reference to [545] Ju l i u s Caesar. He u ses Caesar's report th at among the Germ a n s th eft wa s not con sidered wrong to i l l u strate the possib i l i ty th a t some p re­ cepts of the Natu r a l Law can be lost or obscured i n certai n societies. [546] We do not know i f S t . Thom a s had a ccess to the origi n a l text of the Gallic Wars. I su spect the report comes from a

S T . TttoMAS's SouRcEs AN D His U sE oF T HEM

1 09

secondary s o u rce , perh a p s from Au gustine . N umber of references in

th e Treatise: 1

B4: Marcus Tu llius Cicero

[547] C ice ro ( 1 06-4 3 , B . C . ) was the greatest of Roman orators and a master of t h e Latin l angu age . He was a practicing l a wye r, an active poli t ici an and a statesman as well as a philosopher. His phil o s o p h y was l a rgely S to ic and fu lly in the N a t u ral Law tra ­ dition . He wrote voluminou sly on a wi d e va riety of topics . Of special interest to j urisprudence are h i s tre ati ses on l aw a nd On the Republic . [548] He was executed by h i s victoriou s pol itical opponents in 43 B . C . N u m b er of reference s in the Treatise: 3 BS: Damascene

[549] Under th i s n a m e St . Th om a s refers to St . John of D a m a scu s ( c . 6 7 5 - c . 74 9 ) . St . Joh n w a s a Fath er a n d Doctor of the Church . He wrote m a ny theologica l works ; of these h i s De Fide Ortho doxa ( Co nc e rn ing the O rtho dox Faith ) wa s well known to the Schol a stics a n d h igh l y e steem ed a s a su m m a ry of t h e teach i ngs of th e E a stern Fathers of the C h u rch . St . Th om a s m a de con siderable u se of t h i s work. Nu m b er of r eferen ces i n the Treatise: 2 B6:

The Dec re ta ls

[ 5 50] T h e Decreta l s were col l ecti on s of the decrees of the Popes . The fi rst col l e cti on w a s m a d e i n the twel fth century . Thi s i s the col l ection to wh i ch St . Th om a s refers . Su bsequen tly , from time to time , other collecti on s we re m a d e u n til th ey were a ll re pl aced by

the 1 91 8 cod i ficati on

of

C a n on L aw. N u m ber of references in the

Treatise : 3 B 7 : Th e Glosses [ 5 51 ]

A gl o s s wa s a n a n n otation i n serted i n a

by some s ch o l a r or c o m m e n ta tor. Th ey

were

wri tten i n

m anu script

the ma rgin

or i n serted b etween the l i n e s of th e origi n a l text . The glosses were s o m et i m es a ctu a l ly cop ied into the text i tsel f by subsequent scribes. [5 52] S i n ce they often conta i n ed u sefu l expl an a ti on s , the gl o sses themselves we re often q u o ted a s auc toritat es. N umber of ref­ e ren ce s in

the Trea tise :

4

110 B8:

ST . THoMAS's So u RcEs AN D His U sE OF T HEM

Gratian

Grati an ( fl . 1 1 4 0 A . D . ) wa s an Italian monk and a [553 ] famous legal scholar. He t augh t l aw at h is monastery in Bologna . His fame rests on the fact th at h e was the foun der of Roman Catholic Canon Law. Working wit hi n the re n a issance of Roman Law and the study of the Corpus Ju ris Civilis in Bologn a he , i n fact , structured , Canon Law after the mo del of Rom an Law and incorporated in it the basic principles o f Roman j u rispru dence . ( 5 54] H i s Dec re tu m w a s a sy stem a ti c presen tation of Canon Law with emphasis on the b a si c pri ncipl es of Ca non L aw. Subsequent Popes made use of the Dec retum a n d a l l subseq uent Ca non L aw i s b a sed o n i t . Num ber o f Reference s i n the Treatise: 1 B 9 : St. Hila ry of Poitiers (3 1 5- 3 6 7?)

St . H i l a ry, B i shop of Poi ti ers a n d a Doctor of the

[555]

Chu rch , fi gu red prom i n ently in th e figh t a ga i n st Ari a n i sm . He wrote a n u m ber of theologi c a l work s , the m o st fa m ou s of wh ich wa s h i s

De Trinitate ( On the

Tri n ity ) .

I t i s from t h i s l a tter work that St .

Thom a s d rew the on l y c i t a ti on from Hil a ry in the Treatise . N umber

of references i n the Trea tis e : 1

B 1 0 : The ''ju ris t " Under th i s ru bri c St . Th om a s quotes from th e Digest,

( 556]

the t h i rd p a r t of the Corpus Ju ris Civilis .

He u ses th i s mode of

referen ce s i nce he wa s q u oti n g from th e excerpts recorded in the

Diges t a n d ta ken from

t h e gre a t R om a n j u ri sts such a s Ulpi a n , Ga iu s ,

a n d P a pi ni a n .

( 5 57]

A

bri e f

expl a n a ti on of t h e Co rpus Juris Civilis i s

a pp ro p r i a te .

( 5 58]

J u st i n i a n I ( 4 8 3 - 5 6 5

A . D.

)

d eci ded th a t i t wa s time ,

a fter 1 0 00 ye a r s of p r a cti ce , to correct , cod ify, a n d su mm a ri ze the R om a n l a w.

For t h i s

pu rpose h e app oi n ted va ri ou s com m i ssion s , the

most i mporta n t of wh ich w a s h e a d ed by the fa m ou s j u ri st , Tri boni a n .

It i s s a i d th a t these com m i ssi o n s re a d two m i l l i on ca ses of R om an l aw in order to produce the Co rp us J u ris Civilis.

The

Corpus even­

tu a l l y h a d th ree p a rts p l u s a suppl em en t ( v a ri ou sly a rra nged ) : 1 ) The

In stitu tes, a h a n dbook of R om a n l ega l pra ctice a n d procedu re in tended for stu dents a n d practiti oners of R om a n l a w ; 2 ) the Codex Ju ris Civilis

S T . T ttoMAs's SouRCES AND His UsE OF THEM

111

which consisted of a codification of all laws still in force at that time . This involved the deletion of many ob solete and contradictory l aw s ; 3 ) the Digest which w a s a summary of Roman j u risprudence . Here appear long excerpts from the leading jurists of the past , men such as U lpian and Gaiu s . The Digest was intended to establish the on ly authoritative general principles for Roman l aw. [559] It was providentia l th at j u st at the time that the Roman E mpire was breaking up Justinian I arranged for th i s mammoth presentation of Roman l aw. It is con sidered the mo st outstanding and magnificent presentation of any l arge legal system in the h i story of the world . As the Western empire continued to fall apart, Roman law in the West was almost entirely forgotten . When med ieval Europe was recovering from the devastation of the tribal invasions and the incursions of the Norsemen , the Corpus Ju ris Civilis was redi scovered in Italy in the 1 1 th century. It created a tremendou s impression wh ich developed into a full-scale movement of study and use of the Roman law. S everal brilliant teachers like Grat i a n appe ared to give di recti o n and r ati ona l i ty to th i s development . [560] T h e Roman l aw thus presente d to a rapidly developing Europe became the foun dati o n of all the s u b se quent legal sy s­ tem s on the Continent. It influenced but it did n ot repl ace the Common Law of E n gl and . [561 ] The civi l i zi n g i n fluence of th i s redi scovery of the Roman l aw can h ard l y be overesti m ated . It bro u gh t rea son and order i n to the l egal system s of Europe and strongly i n fluenced the Canon Law of the Roman C at holi c C hu rch [562] It i s obvious why St. Thomas q u o ted from the Digest for he w a s pri m arily interested in the n ature of l aw a nd of it s b a sic principles . Number of references in the Treatise: 6 .

Bll:

Peter Lom bard

[563] Peter Lom bard ( c . 1 1 00 - 1 1 6 0 A . D . ) was a cel ebrated theologi an and church m a n He was a successful teacher a n d , for a time, A rch b i shop of Pari s . Hi s great contribu tion , h oweve r, was h i s Sen te nces, a compilati on of t h e opi nions o f e a rl ier theol ogi a n s on b a sic Cathol ic Doctri ne. Th i s book b eca me a sta n d a rd theologica l text i n t h e u n i versi ties of t h e M i ddle Ages. I t w a s widely commented on , and one of St. Thom a s's earliest works was j u st such a com ­ mentary. Number of references i n the Treatise: 1 .

1 12

B12:

[5 64]

ST. THOMAS's SouRCES AN D His UsE OF THEM

Pope Urban II Pope Urban II ( c . 1 042- 1 0 9 9 ) , is referred to in q .

9 6 , a. 5 , obj. and reply 2 . He w a s a reforming Pope ( 1 0 8 8 - 1 0 9 9 ) who traveled widely i n order to promote renewal and reform in the Church . Number of references in the Treatise: 1

PA R T B

St . Thom a s Aqu in a s The Trea tis e o n La w [BEING S UM M A THE OL O GIA E , 1 - 11 , QQ . 9 0 THROUGH 97] with

Text , E ngl i sh Tra n sl a ti on , Introduction , a nd Commenta ry

Latin

I N T ROD U C T ION

Part B consists of the Latin Text directly a s sociated with the corresponding English translation and comments . The comments are of two kinds. Some are general , a s , for example , the Introductory Comment for q. 9 1 ; others are directed to specific text s , as, for example , the comment on the Sed Con tra in q . 9 0 , a . 1 . I have taken some liberty with the arrangement of the text . Instead of the original order of objection , sed contra, Corpus, and replies to the objections , I have paired the replies with the corre­ sponding objection s . I have done this for two rea son s . First , it fa­ cilitates the direct comparison of the reply with the corre spond ing objection . Seco n d l y, since any ad locu m comment must refer both to the objection and to its reply, it focuses the comment d i rectly with the pair objection-reply, thus producing a neat u n it of study. There i s , of course , a disadvantage in th is arrangemen t , sin ce frequently the reply p resupposes the Corpus and cannot be fu l ly understood by itsel f. However, Part B i s n ot i ntended s i m pl y for reading; it provides a ba s i s for study, wh ich , in turn , requires a back­ and-forth p eru s a l of the text . I beli eve the advanta ge of t h i s arrange­ ment for the modern reader i n any case outweigh s t h i s dis ad v a n tage I t r y to reduce th i s d i sadvantage by refe rrin g to the Corpus i n t h e comment. Th e t ran s l a ti o n i s my own . I h ave tried for a ccuracy and cl ari ty r a t her t h a n s tyl i stic e l ega n ce . I emph a si ze again that St. Thom a s i s n ot d oin g j uri spru dence per se ; he is not writing for j u ri sts or j udges. He i s writi n g as a th eo logi a n and for b e g i n n e rs i n that d i sc ipl i n e He is stu dy i n g every­ th i n g that bears on the human act , the act for wh ich human beings are respon sible agents. A m on g these i n fluences h e fin d s l aw. For these rea son s St. Thomas i s interested i n a l l ty p es of l a w t h a t a re p roperly ( but a n a l ogou sly ) so-ca l led . Modern j uri spru dence focu ses on Positive Law a n d dea l s with Natural Law on ly i n a smuch a s i t m ay i n fluence Positive Law. .

"

"

.

1 15

1 16

IN TRODUCTION

Yet , St. Thomas's Treatise was accepted as a classic in all sub­ sequent Scholastic discussion of law or government. It is still rec­ ognized in modern jurisprudence as a classic source of Natural Law. I remind the reader that references like [ 1 3 8 - 145] are to par­ agraph numbers in Part A .

DE LEGE CONCERNING L AW

Consequenter con siderandu m est de pri ncipi i s exterior ­ ibus actuum . Principi u m autem exteriu s ad malum i ncl in ans est diabolu s , de cuj u s tentatione i n Pri mo dictum est . Prin­ cipium autem exteri u s moven s a d bonu m est Deu s , qu i et nos instruit per legem et j u vat per grati a m . U nde pri mo de lege , secundo de gratia dicendu m e st . Circa l egem autem , primo , oportet considerare de ip s a lege in com mun i ; secundo , de p arti bu s e j u s . Circa

l egem

a u tem

in

com muni

tri a

occu rra nt

consideranda , p r i m o q u i de m , d e e s sen ti a ip si u s ; secu n d o , de d i ffe ren ti a

l egu m ;

tert i o , de e ffect i bu s l eg i s .

[Being Summa Theologiae , I - I I , qq . 90- 9 7]

Con sequently, we m u st con si d e r the extri n si c principles of hu­ m a n a cts . Now, th e extern a l p r i n cipl e i n cl i n i ng to evi l i s th e d evil concern i n g whose temptation we d i scu ssed in the Fi rst Pa rt . Bu t the extrinsic pri nciple moving u s to good i s G od Wh o i n stru c ts u s through l a w a n d hel p s u s th rou gh gra ce . W herefore , we mu st fi rst spea k of law and secon d l y a b out gra ce . However, wi th rega rd to l aw, we will con si der fi rst , the n atu re o f l aw i n genera l ( q q . 9 0- 92 ) secon d l y, the d i fferent t ype s of L a w.

Now, con ce r n i n g

l aw

i n gen era l , there

con s i d er, fi rst , the essence o f l aw i t self ( q .

90);

secon d l y, the v a ri ou s types o f L aw ( q . 9 1 ) ; t h i rd ly, the e ffects of l aw ( q . 9 2 ).

117

a re

th ree

poi nts

to

Q U E S T I ON 9 0 D E E S S E NT I A L E G I S C ON C E RNING T H E E S S E NC E O F L AW Circa primum quaeruntur qu atuor : 1 . utrum lex sit aliquid rationis ; 2. de fine legis; 3 . de causa ejus; 4. de promulgatione ipsius.

Question 90 Concerning the first topic, there are four points of inquiry: 1 . whether law is something pertaining to reason ; 2 . concerning the end of law ; 3. concerning its cause ; 4. concerning its promulgation . Introductory Comment

In this Question St. Thomas develops his general definition of law. An understanding of this Question is therefore a p rerequisite for the understanding of the rest of the Treatise as St. Thomas himself makes clear by his constant references to the elements of the definition throughout the Treatise. The reader i s therefore urged to study Ques­ tion 9 0 thoroughly before proceeding to the rest of the Trea tise. The definition is framed in terms of the Aristotelian Doctrine of the Four C auses , one of Aristotle's most important contributions to the methodology of Western philosophy, theology, and science [ 1 78-2 1 0 ) . St. Thomas's definition is the first conci se yet compre­ hensive definition in the history of jurisprudence .

A R TICLE 1 U TR UM LEX SIT ALIQUID RATIONIS ? WHE THE R LAW IS SOME THING PER TAINING TO REASON? OBJECTION 1 Videtur quod lex non sit aliquid rationis . Dicit enim Apostolus , Video aliam legem in membris meis, etc. Sed nihil 1 18

CONCERNING THE ESSENCE OF

LAW

119

quod est rationis est in membris , quia ratio non utitur organo corporali . Ergo lex non est aliquid rationis . Objection 1

It would seem that law is not something pertaining to reason . For the Apostle says ( Rom . vii . 23 ) : I see another law in my members, etc . But nothing pertaining to reason is in the members; since the reason does not make use of a bodily organ . Therefore law is not something pertaining to reason .

REPLY 1 Ad primum ergo dicendum quod , cum lex sit regula quaedam et mensura , dicitur dupliciter esse in aliquo . Uno modo sicut in mensurante et regulante ; et quia hoc est pro­ prium rationis , ideo per hunc modum lex est in ratione sola. Alio modo sicut in regulato et mensurato ; et sic lex est in omnibus quae inclinantur in aliquid ex aliqua lege ; ita quod quaelibet inclinatio proveniens ex aliqua lege potest dici 'lex' non essentialiter, sed quasi participative . Et hoc modo incli­ natio ipsa membrorum ad concupiscendum 'lex membrorum' vocatur. Reply 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 rea son , it follows that , in this way, l aw is in the reason alone . Secondly, as in that which is measured and ruled . In this way, law is in all those things that are inclined to something by reason of some l aw, so that any inclination arising from a law, may be called a "law;' not essentially but by a kind of p articipation . And thus the inclination of the members to concupiscence is called the "law of the members ." Comment

Briefly, the problem here is that St. Paul is using "law" to apply to something that has nothing to do with "reason ;' while St. Thomas , on the other hand , asserts in the Corpus that l aw pertains to "reason ."

120

CON CE RNIN G THE

ESSENCE OF LAW

Hence , St. Thomas mu st , on the one h and , j ustify t he auctoritas from Scripture while , on the other h and , removing it as an objection to h i s own position . Briefly, the answer con sists of poi nting o u t that t here are two different ways of using the term "l aw." The first use is the essential use i n wh ich l aw is in the rea son , fu nc tion i ng as regulating someth ing el s e . T h i s i s St. Thomas's usage . The ot her way is to u se the term "l aw" to refer to wha t is re gul a ted . Th i s is a derivative u se wh ic h is therefore called "by w ay of p a rticipati on ." There is one un solved p roble m i n th i s Re p ly. W h at is the proper l aw from wh i ch St . Paul's u s e i s derived ? S t . T h o m a s devotes an en tire Articl e to the problem i n q . 91 , a . 6 . I wi l l p o stpone a fu l l er expl a n ati on to th at A rticle . Now some cla r i fication : By "m e m b er " St . Pau l m ea n s the body. In the body h e finds desi res for food , d r i n k , sex , a n d sen si ble com fort; these c on s t i tu te " c onc u piscen ce ." In i tsel f concupi scence i s good , bu t it does lead u s i n to si n a n d so is at w a r wi th th e l a w of the mind . Concup i scence , viewed preci sely as lea d i ng to sin , i s ca l l ed the Jomes peccati, "th at wh ich fom en t s or prom otes sin ." Accordi n g to S t . Thom a s's ph i l osophy of hu m a n n a tu re , "rea son" ( the " i n tel l ect" ) i s a spiritu a l fa cu l ty th a t ca n n ot b e redu ced simply to a physica l organ ( i . e . , the bra in ) ; hence the "l aw in the mem ber " h a s noth i n g to do w i th rea son .

OB JEC TION 2 P r a eterea , in r a t i on e n on e st n i si poten ti a , a ctu s . Sed l ex non

est ip sa p oten t i a

h a bitu s , et

ra ti on i s ; si m i l iter eti a m

n o n e s t a l i q u i s h a b i tu s rati on i s , qu i a h a bi tu s rati on i s

sunt

virtu tes i n tel l ectu a l e s , de q u i bu s sup ra d i ctu m est; nee eti a m a ctu s ration i s est , q u i a ce s s a nte rati on i s a ctu l ex cessaret , puta , in dorm ienti bu s.

E rgo l ex n on est a l iqu id

ration i s .

Objection 2 Fu rth er, i n t h e re a so n there i s n oth i ng el s e but power , a n d a ct .

B u t l a w i s n ot t h e

p ower i tsel f of rea son .

n e i t h e r i s i t a h a b i t of re a s on , b eca u se t h e i n te l l ectu a l v i r t u e s

In

l i ke

habit ,

ma nner,

h a bi t s of rea son a re the

of wh i ch we h a ve spoken a bove ( q . 5 7 ). Nor , aga i n ,

i s i t a n a ct o f re a so n , b e c a u se t h en l a w wou l d cea se , wh en the

act

CONCERNING THE ESSENCE OF LAW

121

of reason ceases, for instance , while we are asleep . Therefore , l aw is nothing pertaining to reason .

REPLY 2 Ad secundum dicendum quod , sicut m actibus exter­ ioribus est considerare operationem et operatum , puta , ae­ dificationem et aedificatum , ita in operibu s rationis e st considerare ipsum actum rationis, qui est intelligere et ratio­ cinari , et aliquid per hujusmodi actum constitutum ; quod quidem in speculativa ratione primo quidem est definiti o ; secundo , enuntiatio; terti o , vero syllogismus vel argumenta­ tio . E t quia ratio etiam practica utitur quodam syllogismo in operabilibus , ut supra habitum est (q. 1 2 , a . 3 ; q . 76 , a . 1 ) , secundum quod Philosophus docet in E thic. vii, 3, ideo est invenire aliquid i n ratione practica quod ita se habe at ad operationes sicut se habet propositio in ratione specul ativa ad conclusiones; et hujusmodi propositiones universales ra­ tionis practicae ordin atae ad aciones habent rationem legi s : quae quidem propositiones a l i quando actualiter consideran­ tur, ali quando vero habitualiter a ratione tenentur. Reply 2

Just as, i n ex ter n al action , we m ay con sider the act of working and the work don e , for in stance , the work of building and the hou se built; so in the acts of reason , we m ay con sider the act itsel f of rea son , i . e . , to un derstand a n d to rea son , a n d something p rodu ced by th i s act . With regard to the Specu l ative Rea son , th i s i s first of a l l t h e defin ition ; secondly, the proposition ; th i rdly, t h e syl logism or argument. A n d since the Practical Reason a l so m a kes u se of a kind of syll ogi sm i n respect of the work to be done, a s st ated ab ove ( q . 1 2 , a . 3 ; q . 76 , a . 1 ) , and a s the Philosopher tea ches ( E thic . vii , 3 ) , hence we fi nd i n the Practical Rea son som eth i n g that hol d s the same position i n regard to operation s , as, i n the Specu l a ti ve Intel lect the proposition holds in rega rd to conclu sion s . Such u n i vers a l p rop o si­ tion s of the Practical Intell ect th at are d i rected to acti ons h a ve the n atu re of l a w. And these p roposition s a re sometimes u nder ou r actu a l

1 22

CON CERN IN G THE

E SSENCE OF LAW

consideration , while sometime s t hey are h ab itu ally retained in the re ason . Comment

The Objection assumes th at there are only th ree th ings in the reason , n amely, the p ower of rea son itsel f, the h abits that perfect the rea s o n , and acts of re a son . L aw i s not the power itsel f , it is not a habit , it is not an act . Therefore it i s not in the reason . The basic an s we r is t hat there i s another th i n g , a fou rth th i ng in the intellect , namely, gene r a l p ro p o si t i on s produced by rea son a n d governing hu ­ man action . T h u s p ro p o siti on s a r e re ta i n ed h abi t u a lly in th e reason , b e i n g s o me t im es a ctu a l l y con sidered a n d someti m es n o t . St . Thom as retu rn s to this di scussion of h a b i t a n d l a w i n q . 94 , a . 1 . For "habit " see [291 - 2 9 7 ] . St. Thom a s pl a ce s th i s an swer in a con si dera tion of the Spec­ u l a t ive Intell ect a n d t h e Pra ctica l R e a son . St . Th om a s will frequen tly refer to t h i s d i sti nct i on . The re ader sh ou l d become fa m i l i a r wi th i t [ 2 9 8- 3 0 9 ] . OBJ EC TION 3 Pra etere a , l ex m ovet eos q u i su b j ici u n tu r l egi ad recte a gendu m . Sed m overe a d agendum proprie perti net ad vol­ untatem , ut p a tet ex p r a em i s si s ( q . 6 0 , a . 1 ) . E rgo l ex non p er t i n e t ad rationem , sed m a gi s a d voluntatem , secu n dum

quod eti a m Jurisperitu s d i c i t Quod

I , De Cons t.

( L ib.

p la c u i t p rinc ip i, legis habe t

Prin. L eg.

i) ,

vigo rem .

Objec tio n 3

F u r t h e r, the l a w moves th o se who a re su bject to i t to a ct a right . But it belongs p roperly to the wi l l to m ov e to a ct , a s i s evident from wh a t h a s

been s a i d a b ove ( q . 6 0 ,

a.

1 ) . T h erefore , l aw

perta i n s

not

to the rea son but to the w i l l , ac cord i ng to wh a t th e J u ri st a l so says ( Lib . 1 , De Cons t.

Prin .

L eg.

i ) , "Wh a t ever pl ea ses the sovereign

the force of l a w."

R E PL Y 3

A d tertiu m d i cen d u m quod rati o h a bet vi m m ovend i vol u n t a te , u t su p r a d i ctu m

est

( q.

1 7,

a.

1 ).

a

E x h oc enim

has

CONCERNING THE ESSENCE OF LAW

1 23

quod aliquis vult finem , ratio imperat de his qu ae sunt ad finem . Sed voluntas de his quae imperantur, ad hoc quod legis rationem habeat , oportet quod sit aliqua ratione regu­ l ata ; et hoc modo intelligitur quod volun tas p rincipis habet vigorem legi s : alioquin voluntas principis magis esset iniquitas quam lex . Rep ly 3 Reason has its power of moving from the wil l ( q . 1 7, a . 1 ) , for It Is due to the fact that one wills the end , that re a son issues its commands a s regards things ordained to the end . But in order that the volition of what is commande d m ay h ave the n a tu re of l aw, it needs to be in accord with some rule of re ason . And in this sen se is to be understo o d the saying that the will of the sovereign has t he force of l aw, for otherwise , the will of the s overeign wou l d rather be inj u stice than l aw. Comment

In the h i story of jurisprudence there h a s been a radical difference in the e x p lan ation of the origin of l aw from the lawgive r The first of these i s called voluntarism becau se it holds th at the will of the l awgiver i s primary in the making of the l aw. T h i s po sition is pre­ sented in the Objection in the words of the Juri st i n the Corpus Juris Civilis . S t . Thomas carefully corrects th i s positi on by adding the re ­ quirement that the wi l l of the l aw giver be regul ated by rea son . Neither side total l y rejects the altern ate position . The di fferen ce lies in wh ich power i s given the prim acy, the will or the rea son . St. Thom a s develops h i s position more cl ea rly i n q . 97, a . 3 , c . , where h e carefully i n terrel ates the action o f wil l a n d re a son wh ile gi ving the rea son prim acy a s the regu lator of the a ction of th e will . .

ON THE C ONTR A RY

Sed con t r a est quod ad l egem pertinet praecip ere et proh i bere . Sed i m p erare est ration i s , sicut supra h a b i tum e st ( q . 1 7, a . 1 ). E rgo l ex est a l i qu i d ration i s .

1 24

CONCERNING THE ESSENCE OF LAW

On the Contrary

It belongs to law to order and to prohibit. But to command belongs to reason , as was shown above ( q . 17, a. 1 ). Therefore , law is a thing of reason . Introductory Comment to the Corpus

The Corpus falls into two main divisions . In the first Section St. Thomas explains the relationship of law to reason . In the second Section he applies a general principle to the primacy of rea son . I will analyze each Section independently.

CORPUS [SECTION 1 ] Dicendum quod lex quaedam regula est et mensura ac­ tuum , secundum quam inducitur aliquis ad agendum vel ab agendo retrahitur. Dicitur enim lex a ligando , quia obligat ad agendum. Regula autem et mensura humanorum actuum est ratio, quae est principium primum actuum humanorum , ut ex praedictis p atet ( q . 1 , a. 1 , Reply 3 ). Rationis enim est ordinare ad finem , qui est primum principium in agendis secundum Philosophum. Corpus [Section 1 ]

Law i s a rule and measure of acts whereby man i s induced to act or is restrained from acting . . . . for lex (law ) is derived from ligare (to bind ) , because it binds one to act. Now, the rule and measure of human acts is the reason , which is the first principle of human acts , as is evident from what has been stated above ( I-II , q. 1, a. 1, ad 3) for it belongs to the reason to direct to the end , which i s the first principle in all matters of action according to the Philosopher ( Phy. i i , 9). Comment

In the first sentence St. Thomas sets forth the empirical starting point of his investigation of law, namely, that law binds men to act or not to act. This is the most obvious and universal aspect of l aw. Whether you look at the laws of ancient Rome , the decrees of the

CONCERNING THE ESSENCE OF LAW

1 25

Pharaohs , the customs of the Iroquois Nation s , or the regulation s of a Swiss canton , there are always rules telling people to do certain things and to avoid doing certain other things . In the same sentence St. Thomas makes his first inference ab out law, n amely, that "law is a rule and measure of acts ." This is not simply a restatement of the empirical fact ; it is already a philosophical inference . Law is a ru le, that is , a general directive for action . It is a measure, that i s , a standard for j udging act s . [ O n these two points , see 284-290. ] When St. Thomas uses "acts" in this context , he means huma n acts a s such [278-28 3 ] . Throughout the Treatise St. Thomas wi ll frequently appeal to the essential characteristics of law. Medieval writers ( as do some modern writers) often used the etymology of a word to explain an idea or bolster a statement . The se etymologies were not scientific; they even used conflicting etymologies for different purposes . St. Thomas himself, later on in the Treatise [q . 90, a. 4, Reply 3 ] , re fe r s to Isidore's derivation of l aw (lex ) from Legere ( to read ) , so used because l aws are written . The "reason" that i s the first principl e o f all human acts is the Practical Reason [ 3 04-309] . W h e n eve r St. Th oma s , throu g hou t the Treatise , refers to Practical Reason , one should understand th at he is assuming th at it is a lso R i gh t Reason [3 10-3 1 2 ] . Now, all human acti v i ty i s purposeful , i . e . , all human acts are di rected to an end , so the end i s al so a first principle of human acts . The rea son directs to the end and dictates the means to that end . The Practical Reas on is the e fficient cause of human acts ; the end i s the fin a l cause of the human act [for the Cause s , see 1 8 3 21 0] . Since rea son i s the rul e and m e a su re o f a l l h u m a n acts , and l aw i s a rule a n d m e a su re of some human acts, law must pertain to reason . This S ection 1 establishes the basis for Reply 3.

COR PUS [SECTION 2] In unoquoque autem genere id quod est primum pri n ­ ci pi u m est men sura et regul a i l l i u s generi s ; sicut unitas i n

1 26

CONCERN ING THE ESSENCE

OF

LAW

genere numeri , et motus primus in genere motuu m . Uncle relinquitur quod lex sit aliquid pertinens ad rationem . Corpus [Section 2]

Now, that which is the principle in any genus is the rule and measure of that genus, for example , unity i n the genu s of nu mbers , and the first mover in the genus of movements . Conse quently, it follows that law is something pertaining to reason . Comment

St. Thomas introduces a new principle and illu strates i t . O ne ( u nitas ) i s the first principle in the genus of number. Two is two ones , three i s three one s , and each number is measu red by "one ." When he speaks of the first mover, he is undoubtedly thinking of the Aristotelian cosmology, according to which the moon , the sun , the planet s , and the stars are fixed i n crystalline hollow con cen tric s p here s which are moving in depen de n c e on the First Mover, t h e ou term ost s phere . But , without th i s obsolete science, the principle can b e i l l u stra ted by a s im p l e modern example . A locomotive is pu sh i ng a trai n of boxcars . T h ey are all moving but the locomotive is the rule of the motion of the cars and i s the measure of their motion . Rea son i s the fi rst pri n ci p le of human acts and i s therefore their rule and measure . In th i s Article St. Thomas h a s a rgued th at , since it i s ob vi ous that l aw is a certain rul e and measure of human acts and since Practical Rea son i s t h e ru l e and measure of all human acts , law must pert ain to reason . Reason m akes l aws. But the question remain s : "Wh ose rea son can make l aws ? " Th i s question i s an swered i n a . 3. It i s not the rea son of j u st any m an but , basi ca l ly, and i n i t i a l ly, the rea son of all the people or, reductively, of their vicegeren t . A l l thi s i s i n the order of efficient causality. However, human acts a re di rected to an end . So the question rem a i n s : "Wh a t is the fi n a l cau se of h u m a n acts and so of tho se human acts governed by l aw ? " T h i s question i s an swered in a . 2 . S o the full understanding of a . 1 will only be a ch ieved i n a . 4 wherei n a l l the resu l ts of a a . 1 throu gh 4 are sum m a ri zed in St . Thom a s's form a l defi n i ti on of law. In th i s A rticle St. Thomas a l so rejects Voluntari sm . He a l so

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LAW

127

denies that law i s a habit and s o identifies law a s a set of propositions ( principles and precepts of action ) held in the Practical Reason habitually.

A R TICLE 2 U TR UM LEX ORDINE TUR SE M PE R A D B ON UM COM M UNE ? WHE THER LAW IS ALWAYS OR DE R E D TO THE COM M ON G O OD ?

Introductory Comment

The question raised here has to do with the final cause ( the end or the purpose) of law. [For the Final Cause , see 1 9 4- 1 9 7 ; for the Common Good , see 3 9 3 -204. ] St. Thomas's answer that law is al­ ways ordered to the Common Good sharply distinguishes his phi­ losophy of law from that of the Positivists , Utilitarian s , Realists and similar philosophie s . To say that the Common Good is the final cause of law is to say, in accordance with the Doctrine of the Four Causes , that ordination to the Common Good is part of the essence of law. Laws which serve the interests of rulers or of privileged group s , may indeed be called laws secu ndum quid, but they are not laws in the full sense or simpliciter since they fail in an essential point .

OBJECTION 1 Videtur quod lex non ordinetur semper ad bonum com­ mune sicut ad finem . Ad legem enim pertinet praecipere et prohibere . Sed praecepta ordinantur ad quaedam singularia bona. Non ergo semper finis legis est bonum commune .

Objection

1

It seems that law is not always ordered to the Common Good a s to an end . For it belongs to law to command and to prohibit . But

128

CONCERN ING THE ESSEN CE OF LAW

precepts are ordered to certain singular goods. Therefore , the end of law is not always the Common Good .

REPLY 1 Ad primum ergo dicendum quod praeceptum importat applicationem ad ea quae lege regulantur. Ordo autem ad bonum commune , qui pertinet ad legem , est applicabilis ad singulares fines. Et secundum hoc etiam de particulari bus quibusdam praecepta dantur. Reply 1

A precept i mp lie s application to those things that are re gul ate d by law. However, the ordination to the Common Good wh i ch pertains to law i s a p p licabl e to singu l a r end s . A nd , acc o rd i n g to thi s , p recepts are gi ven also with regar d to certain particu l ars . Comment

The basic argument i s that l aws so meti m es deal with particu l ar m atters or particul a r end s . St. Thoma s agrees but expl a i n s that the l aw does th i s by way of a pplicat i on to a singul ar case a n d only by this application b r i ngs t h e s i ngula r case u nder a l aw wh ich is o r dered to the Comm on Good . For exampl e , th e l aw sets a g en era l rule regarding traffic. The state trooper a ppl i es th i s rule to Mr. S m i th who h a s viol a ted i t . It i s clear that th is particul ar case i s th us brou ght under the ordinat i on to the Common Good of society, wh ich , in th i s ca se, i s sa fe ty for al l citizen s . The l aw i s a rule and measu re and rules and measures a re a lways genera l . Lon Ful ler rem arks ( The Morality of Law, p . 46 ) , "The first desideratum of a system for subjectin g human conduct to the govern a n ce of rules i s an obvious one . T here m u st be rules. Th i s may be stated a s the requ i rement of general ity."

OBJECTION

2

Praeterea , l ex d i rigit hom inem a d agendum . Sed actu s h u m a n i sunt in p articul ari bu s . E rgo e t l e x ad ali quod p a r­ ticu l a re bonum o rdi n a tur.

CON CERN I N G T H E E SSE N CE OF LAW

129

Objection 2 Further, law dire cts a man to act , but human acts deal with par ­ ticulars. Therefore , the law a l so is ordered to some particular good.

RE PLY 2 Ad se cu ndu m di cendu m q uad

operationes qu idem

sunt

i n particul aribu s ; sed i l i a p a rti cu l a ri a ref erri possum ad bon ­ u m commune-non qu idem com mu n i tate generi s vel speciei , sed c o mm u n i t a te cau sae

fi n a l i s , secu ndu m quad bon u m c o m ­

mune dicitur fi n i s com mu n i s . Reply 2

Oper a t i o n s indeed d e a l with p a r ti cu l a r m atters , bu t those pa rticul a r m a tters ca n b e

refe rre d to th e C o m m on Good -not i n d eed a s com ing

u n de r a com m on gen u s i n a s m u ch as t h e

o r specie s bu t a s sh a ri ng a com mon fin a l

cau se

Com m on Good i s sa i d to be th e com m on end .

Comment

Law i s d i rective of h u m a n a cts . Bu t hu m a n a cts a re a lways the s i n gu l a r acts

of i n d i v i d u a l s . T h erefore , l a w a l so d ea l s wi th particul a r

acts . A fa i rl y cl ear o bj e ct i on . Th e R eply, p a rticu l a r a cts can be referred

to

h owever , poi nts out that t h ese

th e Com m on Good by a L aw.

St .

Thom a s poin t s out th at these acts a re n ot thereby brough t under a com mon gen u s or spe ci e s , i . e . , they a re not t h e sa me kind of th ings; t h ey

do not s h a re a com mon Form a l C au se bu t a re rel a ted only by

sh a ri n g a com m on end , n a mely th e u l ti m a te en d wh ich

i s t he Com mon

Good .

OB JECTION 3

P r a etere a , Isidoru s