Aquinas on Law --- [1]
Aquinas on LAW [from his Treatise on Law]
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The Essence of Law:
a measure of action by which one is led to act or refrain
> Reason commands what is to be done to reach desired ends
-> To be a law, a directive must be guided by reason
Parts are ordered to wholes. The Individual is a part (of the community)...
-> law must concern itself with the happiness of the community
[Note that this doesn’t actually follow - ]
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No one person can make law - that is the responsibility of the whole people,
- or of someone who represents the whole people.
Private people give advice - which has no power of compulsion
>> Law, however, compels. - That’s the difference!
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Aquinas
[2]
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That power belongs to the whole people
- or to the public personage whose duty it is to exercise it ...
> by inflicting punishment on noncompliers
To have the binding force proper to legislation, it must be
applied to those who are to be ruled;
- which requires that it be promulgated to them.
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This all leads to a nice compact “definition” of Law:
Aquinas
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So here is our definition of Law:
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Law: A Directive
[3]
of Reason for the Common Good,
promulgated and enforced by those “in charge of the
community”
we’ll comment on each part:
• (1) a Directive [or ‘ordination’]
• (2) of Reason
• (3) for the Common Good
• (4) Promulgated
• (5) and Enforced by
• (6) the Rulers of the Community
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[Comment: Ingenious and, in essentials, right]
Aquinas
[4]
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(1) a Directive [or ‘ordination’]
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A “directive” tells somebody to do something
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When it’s a law, it tells everybody (in the community) to do something
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And it purports to stand above their individual desires
But it “tells” rather than, say, pushing
example: A tells B to go downstairs
Not: A pushes B downstairs
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But A might tell B to go downstairs and threaten to push him if
he doesn’t.
• That would be how government “directs”
Aquinas
[5]
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(2) of Reason
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[question: in what sense is law a directive “of reason”?
- distinguish, for the present, between
(1) “Laws of thought” [logic ] or “Laws of Nature” [Newtonian physics,e.g.] and
(2) “human laws” - the question concerns the latter in the first instance.
[leaving morals to one side for the moment...]
[re (1): if we ask, why should we be logical? - That’s an interesting question.
[a classic answer is Aristotle’s: “the man who denies the law of non-contradiction is
no better off than a vegetable!” - not in discussions, anyway!
or: “why obey the laws of physics?” - answer: we don’t have any choice - more
later...)
But, what about human laws? ....
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Aquinas
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[6]
But, what about human laws? ....
(i) If we mean that the laws are passed for good and excellent reason, and work to
achieve their ends, then obviously not all human laws are rational
(ii) Do we mean that the people who make them are highly rational?
- well ..... don’t bet on it ...!
(iii) But we could mean that we can ask,
Is this law reasonable?
- and expect a decent answer (which we often won’t get...)
(iv) Or we might mean that there is reason why humans should have things like
‘laws’ (in general; and should have this law (any one under consideration) in
particular.)
-- if so, that’s important and might be true (but is surely discussable)
- perhaps it’s a presupposition of legal institutions that there is good reason for them
- but in that case, if there isn’t, then they flunk!
(Whereas, the point of all this was to show that they pass!... wasn’t it?)
Aquinas
[7]
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3. “for the common good”
What is the status of this clause how “must” Law be “For” the Common Good?
Suggested answer: It couldn’t be justified otherwise.
Note that that that’s normative -the point of including it in the definition is to propose that it is
intrinsic to the idea of law that this is the criterion to invoke.
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General point: distinction between definitions and normative theories (again)]
definitions tell us what words mean
normative theories tell us what we ought to do
Aquinas
[8]
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(3) - Further Question: what is the “Common Good”?
a. The sum of individual goods? or only
b. A special subset of people’s goods -if so, which one??
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AND: - Good, according to whom? - The king? The Church? Or, Everybody?
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Suggestion: common good is what is in common - the same for all.
But is there any such thing?
That is a $64 billion question!
[another is: why we should care about it the fact that it’s “common” may help to answer that:
if it’s common, we all care about it (don’t we??)
Aquinas
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[9]
(4) Promulgated
- Why “promulgated”?
[because the point of laws is to direct the actions of beings who
presumably need the direction
i.e., they wouldn’t necessarily do what the laws direct them to do, on their
own
It would be irrational to expect Jones to do x if
(1) he wouldn’t do it on his own hook, and
(2) he had no information from anyone else to the effect that they expected
him to do it
[discussion question: how much promulgation??
Aquinas
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[10]
(4) Promulgated (continued)
[discussion question: how much promulgation??
- page 1 in the Globe and Mail (headlines)?
- page 32, section H (fine print?)
- billboards?
[discussion question: is ignorance of the law an excuse?
[answer: if it’s the government’s fault, then YES]
so, when is it the government’s fault??
[discussion item: Canada has several thousand laws on the books
Nobody knows them all, including the legislators and lawyers
- should we say that the promulgation criterion has been met? Or not?
[lame conclusion: OK, this is an issue!]
Aquinas
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[11]
(5) Enforced
[discussion question: how much force?
applied when?
Applied how and by whom?
* The Theory of Punishment now enters the picture
Is punishment to visit retribution on offenders?
Is it for deterrence?
[that is: Is its purpose to reduce crime as much as possible?
[what about execution for overtime parking?]
Again: this is a big subject, brought up by Aquinas’ specification (but not
much discussed by him)
One big issue: Is it a law if it’s not enforced?
Suppose the average speed on road x (say, the 401!) is 120, the posted limit is
100, and the police arrest Miss Jones for doing 110? Does she have a
complaint?
note: at least, it’s an open issue whether a given law should be enforced as
prescribed on a given occasion.....
Aquinas
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[12]
(6) by the Rulers of the Community
Legal or moral? (or “associational”?)
Aquinas’ definition is legal in the first instance
But, it can be adapted
[This is JN’s proposal:
Moral law would be where the “rulers of the community” are
everybody
[kings cannot “make” moral law...]
The tennis club might have a “rules committee” ...
Its results are the “laws” for members of that club
(but nobody else - which is why they aren’t “laws” in the full sense of
the term)
[what about where Jones promises Smith that he will do x at time t?]
Aquinas
[13]
Aquinas’ Theory of Law
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[reminder: we must distinguish theory from definition:
Definitions, in the narrowest sense, tell us what words mean.
Are all the parts of A’s definition essential to the meaning of ‘law’?
- maybe not...
• A theory goes beyond definitions. It tells us how the thing works.
• In normative matters, it tells us what we should be doing...
Aquinas
[14]
Aquinas’ Theory of Law (continued)
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Four Kinds of Law:
1. Eternal: governs the whole community of the universe, (by
divine reason - which is not subject to time, hence Eternal
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2. Natural: Everything participates in the eternal law - is “imprinted
upon them through their respective inclinations to their proper ends”.
-> In the case of rational creatures this is called the Natural law.
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3. Human: Human reason must proceed from the precepts of
natural law, to particular cases. These are called Human laws.
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4. Divine: [the source of this would be the deity himself... See next...
[note: In Aquinas’ theory, the order would really be 4-1-2-3, no?]
Aquinas
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[15]
Aquinas’ Theory of Law (continued)
[JN’s] Interpretation of the types of law in modern terms:
(4) Divine = from God
(1) Eternal = ‘Scientific’ [Physical (etc.) “Laws of Nature”
(including social sciences??)]
(2) Natural = Moral
(3) Human = Legal
Aquinas
[16]
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(4) Divine Law: Two Senses of the term:
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Divine Law (a) (broad sense): a law mandated by God
Sense (a) makes levels 2-4 redundant, since A. thinks that God is ultimately
the “ruler” of everything whatever..
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Divine Law(b) in the narrower sense, a “divine” law is what’s left over
after the other more specific levels are taken care of ...
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So: the heavenly rules about “transubstantiation” and attending church etc.
pertain specifically to god, and do not follow from natural law...
“The Mysteries”: need faith for this level - it’s not a matter of human reason
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Aquinas
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[17]
4. Divine Law (b): - some questions
Do we, after all this, need Divine Law, too? (wouldn’t it be redundant?]
Aquinas’s answer to the first:
(1) orders to the end of eternal bliss, which exceeds our natural capacity
(2) Due to the uncertainty of human judgment on some matters, calling for
the certitude of Divine law.
(3) judgments about internal motivations - it is for God to rule over
(4) humans can’t possibly detect every evil action.
>> “In order that no evil go unpunished, then, we must have a divine
law which forbids all sin....”
Aquinas
[18]
• A’s Theory of Law: [this is it!]
• -> Each level of law is derived from (is a
special case of) the preceding level
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[numbered in order of philosophical fundamentality]
-> 1. Divine (From God )[in the first (a) of our two senses]
-> 2. Eternal [“scientific”]
-> 3. Natural [Moral]
-> 4. Human [Legal]
Aquinas
[19]
• Step 1. from Divine laws to Eternal laws:
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Divine = from God
Eternal = ‘Scientific’ [Physical (etc.) “Laws of Nature”]
Aquinas’ Thesis 1: Eternal Law is derived from Divine Law
[‘eternal’ law is what we would call “Scientific” law, or “Laws of
nature” in that sense - e.g. of Gravitation]
• [confusingly, he will call moral laws “natural laws” too]]
Aquinas
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[20]
Q1: Do the laws of nature need “decreeing”?
Answer: No (Logically, that is)
[according to Theism, Yes]
[the point is that theism is not self-evidently correct here...]
-> If there is no god, there will still be “laws” of nature
Aquinas
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[21]
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Q2: In what sense do things “obey” the laws of nature?
Do heavy objects fall because they are good little chaps and do what god
tells them to?
- Not obviously!
Note: by “laws of nature” is meant correct laws of nature
- not conjectures.
Distinguish:
(i) what we currently think are the Laws of Nature
[e.g., “Newtonian physics”, “Boyle’s Law” etc
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(ii) what are the Laws of Nature.
We are not perfect: (i) ≠ (ii)
We (and Aquinas) are talking about (ii)....
Aquinas
[22]
So, Back to the question: what makes them “laws”?
• Answer: a proposed law of nature, L, is true
• (i.e. is a “law of nature” in sense (ii))
• if and only if the universe does go the way L says it goes
In science, the laws are subservient to the facts
• - if there’s a disagreement between the hypothesis and the world, the
world wins
• [but This is not so in the case of legal law
• In a disagreement between the Legislated Law and the Citizen, The
Citizen loses
• That is, the laws rule over us
• but, facts “rule” over science (hopefully!)
• - not by decree, though: rather, by definition.
• Facts are what science is about [what it’s trying to discover and formulate]
Aquinas
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[23]
Q: - Is it intelligible that some deity would “pass” the laws of nature (ii)?
not obviously ....
Consider the laws of logic: can God make it the case that <p and not-p> is
true?
[Answer: no, for Aristotle’s reason...]
Could god undo the law of gravity?
[hmmm - presumably, yes ...]
Why would god “pass” the laws of nature that we actually do have?
-> because they’re so cool?
-- Does that make any sense?
(If it doesn’t, then religion doesn’t either ....)
(But if it does, it doesn’t follow that it’s correct!)
- How you would “prove” a thing like that is an interesting question...
Aquinas
[24]
• note: Aquinas’ idea is that the deity creates the universe
• Once he does that, the “laws” of nature are simply the plan, the way
the thing works
• And that is due to its nature
• So, once it’s created, there isn’t any “wiggle room” about what its laws
will be!
• That is: God couldn’t both create the universe the way it is, and then
“pass” some quite different set of “laws” for it
• [same world -> same laws of nature!]
Aquinas
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[25]
- How you would “prove” a Religious Theory of Things is an interesting
question...
Note: St Thomas thought he could do so by arguments like this:
(1) anything that moves needs a mover
(2) but this can’t go on to infinity
Therefore
(3) there is a “first mover” - name of God
[Problem: on the face of it, (1) and (2) are mutually inconsistent
[and from an absurdity, ‘anything follows’
- not quite what Aquinas had in mind!]
[modern defenders of such arguments make them far more obscure...]
(in my judgment, they don’t make them any better ...)
Aquinas
[26]
• Step 2: from Science to Morals
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i.e., from (type 2) Eternal [laws of nature] to (type 3)
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“Natural” [i.e. Moral] Law
Thesis: moral law is “founded on” the facts of the world
(including us)
The thesis is not that God “passes” the Moral Law, directly
That is known as the “Divine Command” theory
Aquinas is not a Divine Command theorist
• Agenda:
• (a) why the Divine Command theory won’t do
• (b) what’s involved in the Natural Law idea....
Aquinas
[27]
• (a) why the Divine Command theory won’t do
• Discussion: ‘Moral’
• Can “moral laws” be “passed” (legislated)??
• Legislation (normally) happens at some time
• [presumably God’s “legislation” would have happened “at the
beginning”] • which amounts to saying that his laws are “eternal” - he just always
wills them and that’s that.
• BUT our question is whether God’s “will” has anything to do with it
Aquinas
[28]
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Can “moral laws” be “passed” (legislated)??
No.
Remember: Legislation happens at some time
So, is the following scenario possible? murder is right up until Tuesday afternoon, March 4, 10,000 b.c. at 4:00? (and nothing else changes at that time)
• Then the Divine Legislature decrees that as of that time,
it’s wrong!
• Note: we are supposing that nothing else changes
• - i.e., that people and the facts of life are the same before and after
• Does that make sense?
Aquinas
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[29]
Consider the story about Moses bringing down the stone tablets with the “Ten
commandments” on them...
Do the “commandments” now make murder wrong, when it wasn’t before?
No: they “set in stone” the pre-existing “fact” that it is wrong...
Similarly with legislatures: do their laws make things right that wouldn’t
otherwise be? They do make things legal that wouldn’t otherwise be.
But can they, or anything, make things moral that wouldn’t otherwise be?
Or do things like the “commandments” carry out the drift of what was already
right?
in the case of Moral Law,clearly, Yes.
- which means that moral laws are not “legislated” (by any supposed chiefs or
other subsets of people, or “gods,” anyway)
[cf. Plato’s Euthyphro --->
Aquinas
[30]
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Divine Commands: the Euthyphro thesis
[Plato’s dialogue Euthyphro discusses this... it’s not in our readings]
Question: does God’s command make things right??
Or: does God command x because x is already right?
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Note: if the first is correct, presumably just any old thing could have been
moral.
God gets a nasty headache, so he decides to make daily somersaults morally
obligatory!
That picture makes no sense....
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Aquinas
[31]
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Why would God’s commands have authority?
‘God’ defined:
(1) infinitely Powerful
(2) infinitely Good
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- is (1) enough?? Does cosmic might make right?
[could the world have been ruled by a nasty tyrant instead??
[if it were, would that be God??]
No: a supposed “God” loses his union card in that case It’s part of the idea of [monotheistic] god that it (he/she) is always claimed
to be good
Aquinas
[32]
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Note: The goodness of God
Is this expression meaningful?
IF IT IS, then it must be meaningful independently of god’s “will”
- when you say Jones is a good man, you don’t mean that Jones is Jones
when you say that God is good, you don’t mean that God is God
[that an all-powerful being is all-powerful does not mean that it’s good!]
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Note: some would say, “God knows everything; therefore he knows what’s
right and wrong”
- agreed! But if he knows what is right and wrong, then he can’t just go
ahead and make something else right or wrong!
(knowledge is dependent on its object: facts are what make it knowledge)
CONCLUSION: Morals cannot be founded on the Commands of God
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Aquinas
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[33]
Back to Aquinas’ theory: that
• “Natural” [i.e. type (3) Moral] laws are founded on (type (2)
Eternal Laws [laws of nature]
• In other words: moral law is “founded on” the facts of the world
• (including us)
• The picture is this:
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God creates the world
The world, being the way it is, is such that rational people, being the way
they are, end up equipped with the Natural Law
[$64 Question: How?]
Aquinas
[34]
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Step 2: Eternal to Natural [Scientific to Moral] (continued)
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Options:
(1) moral laws are simply laws of psychology
(2) people have “native moral software”
(3) ... what else... ?
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Problem with (1): you can’t “disobey” the Law of Gravity
If moral rules were like that, nobody could do anything wrong!
- which is crazy. [morals are not intended to be useless!]
(2) Aquinas leans toward (2): he says that moral laws are
“promulgated” in that they are “written on all hearts”)
• Problem: but (a) they don’t seem to be - some hearts seem rather
devoid of them; and
• (b) people seem to differ about them!
Aquinas
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[35]
- What to do?
options:
(i) give up - suppose that the foundations of morals lie beyond human ken (or
something)
(ii) blame the victim: claim that some people just can’t see very well
(morally)
- [highly problematic! - and, frankly - a cop-out]
(iii) Aquinas’ idea: We can just “see” that things are right or wrong by looking
at them and grasping their essences
- example:
1. man’s organs have purpose P
2. therefore, pursuing P is what they morally ought to do...
Aquinas
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[36]
This is what “natural law” theory in moral theory is usually thought to say
Requires “Natural Teleology” - things comes with purposes...
Does this work? No.
Our nature tells us what we can do. But does it tell us what we ought to do?
[Example: sex organs are “for” reproduction but they also work fine for entertainment...
so, Why must we prefer the former to the latter??]
Thomists say we ought not to use them for the latter unless we intend the former
• Well -- why?
• -- suppose nature “tells us” to do x.
• (a) does that make sense?
• (b) Why should we listen to it??
• [Are appendectomies “unnatural”?
• The fact that they achieve good ends can be taken to show either that they are
natural after all ... or, that “unnaturalness” is irrelevant ..
Aquinas
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[37]
The right theory (according to me...)
General idea: if “moral law” L is right, then there are facts about ourselves
and our environments such that acting on L is the best response to this
[raising the question: best how? What makes it “best”?
[rough answer: to promote the interests of those concerned (that’s us!)
In the case of moral law, we add: given that we are members of society....
[- Why does that matter?
- we have to go forward a few centuries to get the right answer ...]
But Aquinas has the idea when he points to the difference between free men
and slaves....
Aquinas
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[38]
Is Natural Law the Same for All?
Aquinas replies:
yes: in its general principles, it is.
But it pertains to actions, which are variable, and the more specific we
get, the more variable.
It is right and true for everyone to act in accordance with reason.
Now a particular conclusion from this is that loans should be repaid.
But what if someone wanted to use this repayment to make an unjust
war?
Then it is no longer right to repay it.
So: as far as general principles go, they are the same for all, but for
particular conclusions, we will have variability and exceptions.
And the “corruption of reason” among some people can lead them
to consider things right that are expressly contrary to the law, too
(that is, wrong)
[q: is this question-begging?]
Aquinas
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[39]
Can there be Change in the Natural Law?
[remember, it’s supposed to be derived from “eternal” law - so how can it
change??]
Aquinas: “the natural law can be changed in two ways.
First, it could be added to, as we learn more that is useful to human life.
But, second, what about change by subtraction?
(1) Basically, No. -“In its basic principles, this is clearly impossible.”
(2) In detail, Yes.
“But as to secondary precepts, particular aspects can change, and sometimes
special circumstances could make its precepts impossible to observe.”
[will this work? Well, it’s a bit like the distinction between science and
engineering...]
Aquinas
[40]
• We have “natural inclinations” of three sorts:
• first, to preserve human life and prevent its destruction;
• second, to more specific ends that we still share with animals, such as
the union of man and woman and the education of children; and
• third, [a] to know the truth about God, and
• [b] to live in society.
• The things that have to do with this third sort of inclination belong to
the Natural Law
• Question re third thing: [meaning, “also belong’? Surely the first two
do too??]
• No: morality (‘Natural law’) is social.
• It is because we live in society that some things need to be prohibited
Aquinas
[41]
• General points about Natural Law:
• Good is “the first thing apprehended by practical reason,” which is
directed toward action: it is “that which all things seek”.
• Thus the first precept of law:
• good is to be done, and evil to be avoided.
• All the other precepts of the law of nature are based on this.
• [Note: Same question as re Augustine:
• Which comes first - “doing good” or “avoiding evil”?
• Augustine had it right: avoiding evil comes first
• Aquinas, I think, agrees ..... or does he??
Aquinas
[42]
• “ Natural Law”
• Does it make sense to suppose that natural things tell us to do
something?
• Nature is full of facts; facts provide “minor premises”
• But (as Aristotle says) “Intellect itself moves nothing”
• - The “first premises” of practical reason must come from desire
• (or, our genes, etc.)
• Then facts are useful, for they tell us how to (and how not to)
accomplish our ends.
• - How does that feed out into morals, though?
• [to be continued...!]