Aquinas on Law.2 -- (1)
• Human law: How and why derived from Natural law?
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[i.e., Step 3 in Aquinas’ program: 3. Natural to 4. Human
• = [Moral] to [Legal]
• The most obvious way to do this would be to claim that all human
laws are implied by moral laws.
• But that can’t be right, since it would imply that
all human laws are morally right - which is clearly wrong.
• - unless you play fast and loose with the definition • which Aquinas maybe does, when he says this:
• “an unjust law is no law at all” [Aquinas got that from Augustine]
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but this is quickly interpreted as follows:
“Every human law that is adopted has the quality of law to the extent that it is
derived from natural law;
insofar as it diverges, it is a corruption, not a real law.”
Aquinas on Law (2) -- (2)
• [Immoral laws]:
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what does it mean to say that they are “not real”??
• What is the significance of a legislated law’s being wrong?
• - that it’s immoral? [obviously, yes. The question is, so what?]
• Aquinas (remember) says we should put up with a LOT from our
government (so does Socrates)
• - put up with, how??
• [1] by not mounting a revolution: at what point do we start killing
officials??
• [Aquinas maybe thinks: none....]
• Or [2] is obeying the law, no matter what it’s like, morally
obligatory??
• [A. thinks not -- but makes the wrong exceptions: religious ones]
Aquinas on Law (2) -- (3)
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“An unjust law is no law” (continued)
- the very claim that there can be “unjust laws” implies that
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there is something, not made by us, that serves as a relevant check and
guide to law-making
* A distinction:
(a) the “grows on trees” model: the natural law is “in” things...
* Aquinas appears to adhere to (a)
- it is not clear that this makes any sense
- trees don’t tell us anything
* However, the fact that trees are trees rather than, say, elephants, makes
a difference!
The question is: what sort of difference does it make?
(b) the pre-political but social model: natural law is due to the properties of men in
groups - not to the decisions of leaders
Aquinas on Law (2) -- (4)
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“An unjust law is no law” (continued)
General conclusion:
If we take ‘law’ to have normative impact, then “unjust laws are no laws” means
that the unjust ones lack normative authority
Note: It might still be prudent to obey them, even though they’re bad
[But how bad may they be? And for how long must we put up with them?]
Meanwhile: The thesis means that
- If there is no valid reason to forbid people from doing x, then the Law should not
forbid them - and, thus:
(1) legislatures do wrong in passing them in the first place
(2) people prima facie do no wrong if they disobey them
Aquinas on Law (2) -- (5)
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“An unjust law is no law” (continued)
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Aquinas asks: Does Human Law Oblige in Conscience?
and replies: “A law may be unjust in two ways:
First by being contrary to human good;
second, by being contrary to Divine good.
“Laws of the first kind do not bind in conscience, but should be obeyed
“in order to avoid scandal or disorder”
But the second sort may “on no account” be obeyed.
[comment: oh-oh!
[obvious question: why would God allow people to do what’s contrary to
“Divine” good in the first place??...]
[and, who will judge this? (evidently: the priesthood...)]
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Aquinas on Law (2) -- (6)
• Why human law at all?
• Reminders 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.
• And, it’s basically unchangeable...
• - so , where does the legislator come into it??
Aquinas on Law (2) -- (7)
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Why human law at all? (continued)
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[that is: if the moral law is natural and self-evident, why do we then need a further
body of legislated government-imposed law?]
A’s answers:
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[1]: “Some people are dissolute and prone to vice, and are not easily moved by words. They have to
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be restrained from doing evil by force and fear.
[note: this is Aristotle again ....]
“That is the discipline of law, and laws that [restrain people from evil] are
“adopted to bring about peace and virtue.”
Two questions:
(1) Why would this be a further accretion to natural law as it is?
[Aquinas has said that the Natural law is “self-evident” - so why would it need “promulgating” by
publishing it in the government’s law books??]
(2) And why would government be necessary to do the punishing?
[Why couldn’t just anyone participate in the enforcement of morals?
- parents and friends, for example....]
Aquinas on Law (2) -- (8)
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A. says there are two ways in which something is derived from natural
law:
• “The precepts of natural law are related to practical reason as the first
principles of demonstration are to theoretical reason.
• Both are “self-evident.”
• But there turn out to be “ two ways” of being self-evident:
• (a) “in itself”, or
• (b)” relative to us”
• [Q: Does that make sense?
• That is: how can something be self-evident to one person and not
another?
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Or is it that A thinks that p is so, while B does not...?
Aquinas on Law (2) -- (9)
• Is the following a different distinction?:
• (1) what follows logically from the Natural Law, and
• (2) as a specific application of what the Natural Law expresses in
general terms.
• “Do no evil” follows logically (from “Do (nothing but) good!”)
• “Do not kill” is an easy inference given our natures and circumstances.
• “Do not mix aluminum and copper wiring” is not - it requires
sophisticated acquaintance with the subject
Aquinas on Law (2) -- (10)
• Proposal: Legislation supplies the minor premises
• Major Premise: X is (Fundamentally) Morally Right
• Minor Premise(i): people doing Y would be conducive to X
• [further minor premise (ii): and compelling them to do Y would still
produce X]
• Therefore, the legislature should command that all do Y.
• [many pitfalls, all of them depending on the plausibility of the minor
premise(s)]
Aquinas on Law (2) -- (11)
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sample arguments for legislator:
P1: Do no injury [self-evident]
C1: murder is to be prohibited
[that murder is “injury” is obvious....]
P2: mixing copper and aluminum can cause fire [not self-evident - but true, nonetheless]
therefore
C2 (moral): we ought not to mix copper and aluminum
C2’ (?) and We should have a (human) law prohibiting mixing copper and aluminum
(Why? because “some electricians are dissolute”?)
or: because most people don’t know P2?
[further question: what if Jones discovers a way to mix them that does not cause fires??
[then it looks as though the Law would be wrong to prohibit all mixing (mixing in all
cases..]
Aquinas on Law (2) -- (12)
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Aquinas’ (2) And consider punishments: the law of nature calls for evildoers to be
punished - but, punished how much?
That is a specific application, and “such have force only from human law.”
[hmmmm.... why??
Suppose that citizen A whaps citizen B because B has stolen something from C
- if B is guilty, isn’t A in the right?
Does Aquinas think that government is more reliable?
[Why??]
Aquinas on Law (2) -- (13)
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[3] Should Law “repress all vices”?
“Human law is framed for the mass of men.
“So it cannot prohibit every vice from which the perfectly virtuous abstain
but only the more serious ones from which the majority can abstain” especially those that result in harm to others, such as homicide and theft
[Question: are there any that don’t result in harm to others??]
[and: what about the minority who can not “abstain”?]
Evidently: the law prohibits all from doing x because x is harmful to others;
and it applies its punishments to the few who can’t manage to refrain on their
own
[The good will abstain without threat of punishments; the bad will not]
Aquinas on Law (2) -- (14)
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The Letter of the Law: Is it binding?
The Case of the “City Gates”
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Is the Letter of the Law Binding?
Suppose a city under siege has a law that the gates be kept closed, which is generally
useful.
But suppose “the enemy is pursuing citizens on whom the city depends: it would be very
harmful if the gates were not opened to them, even if that violates the letter of the law;
for it protects the common interest, as the legislator intended.”
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Of course, this really is exceptional:
if there is no immediate danger, then it is not up to the individual to decide what is or
isn’t useful to the city. That is the sole responsibility of the ruler, who has the authority.
But necessity is not subject to law: if it calls and there is no time for proper procedures,
we should act as it requires.
The legislator cannot foresee every individual case.
[..... interesting!
[Question: why should it only be emergency or matters of extreme danger that make for
exceptions??]
Aquinas on Law (2) -- (15)
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Change in the Law
Should Human Laws Ever be Changed?
Aquinas: “Of course!
First, because knowledge progresses: when we learn better what is for the good
of the community, the law should be changed accordingly.
[Second] circumstances change, then different laws may be appropriate
But, “not for All possible Improvements?
too much and too quick change is a bad thing -The sheer fact of change can be adverse to the public welfare to some degree.
Custom is very important, since things done contrary to it, even if not important, may
yet be considered serious offenses
when a law is changed, its restraining power is lessened because custom is set aside.
So law should be changed only when the common welfare is compensated for that harm.
This happens either when
(1) a substantial and obvious benefit is in sight, or
(2) when there is urgent necessity because the old law produces manifest injustice or
proves very harmful. [note: isn’t that a “substantial and obvious benefit”?]
Aquinas on Law (2) -- (16)
• Custom and the Force of Law
• All law proceeds from the reason and will of the legislator.
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Clearly, human words can change law, for they “reveal the motives and
concepts of human reason.”
• When something is done often, as it is by custom, that makes it seem
the result of rational decision.
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In this sense, custom can have the power of law
- it can abolish it, or interpret it.
The consent of the whole community, which is demonstrated by customary
observance, is worth more than the authority of the ruler,
• (who, after all, does not have his power except as a representative of
the whole people)
• and, in a community that does not have the right to make its own laws
• [does he mean that legislated law always takes precedence? Or the
reverse - that legislated law is subordinate to custom?? Probably the
former]
Aquinas on Law (2) -- (17)
• - a custom that is tolerated by those who have the responsibility to
make laws acquires the force of law.
• [so, what if it isn’t so “tolerated”?
• example: Canadian change to the metric system (1970s)
• [everyone had been using anglo-saxon measures for centuries
• advantages of metric were minor or nonexistent
• cost of change was high
• [to the point that it is still not uniform
• Cdn trade is with the U.S., about 88% or so...
• - and US is not on metric...
• result: you get 1.87 litres of orange juice, thermostats with degrees that
are too big, people who are 5’10” rather than 180 cm... etc....]
Aquinas on Law (2) -- (18)
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- Religion, Again - [where Aquinas really goes wrong ...]
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Rule by unbelievers over the Faithful: Well, they aren’t to be allowed to make converts
The establishment of new dominion by unbelievers can in no way be permitted, for it
endangers the faith.
Dominion is a matter of human law;
the distinction of believers and unbelievers is a matter of divine law - which does not
abolish human law
(the latter is based on reason - not faith)
> So, it is permissible for the Church to take unbelievers’ political power
away, but it does not always do so. (?)
[No freedom of speech in this area!]
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Are the Rites of Unbelievers to be Tolerated?
God, who is omnipotent and supremely good, yet permits some evils
he could have prevented - when, if he did, a still greater good might
be taken away, or still worse evils follow
[This gets us into the age-old theological Problem of Evil: how can
the above work?]
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Aquinas on Law (2) -- (19)
• - Religion, Again:
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Thomistic Tolerance:
Human governments must tolerate some evils so as not to
prevent other goods or to avoid yet worse evils.
“Suppress prostitution and the world will be torn apart by lust.”
The Jews are O.K.: they observe “rites which once prefigured the true
faith”.
BUT Other unbelievers (“no truth or usefulness in them”) are not to be
tolerated - [whom do you suppose he had in mind?!]
unless to avoid some evil such as scandal or discord,
or even interference with the salvation of those who, if tolerated, will
gradually be
converted to the faith.
Aquinas on Law (2) -- (20)
• - Religion, Again - Thomistic Tolerance:
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Should we tolerate Heretics?
Heresy “deserves not only excommunication by the church, but indeed, death”
But “the church is merciful and desires the conversion of those who are in
error”
But stubborn ones? No way! [they can even be put to death]
[comment: meaning, the government is to allow the Church to put its own
heretical members to death??]
Does this violate the separation of church and state (“Caesar’s and God’s”)?
Aquinas on Law (2) -- (21)
• Political Issues about Religion: Conservative vs. Liberal
• 1. Religion is Publicly unprovable (i.e., not, in Aquinas’ sense,
Rational)
• 2. There are lots of different religions, and many people have no
religion.
• 3. But these people are all in “the community” (e.g. Canada)
• Therefore
• 4. Aquinas’ objections to “heresy” should be regarded as contrary to
the idea of the COMMON Good.
Aquinas on Law (2) -- (22)
• To say what Aquinas does is to ask for Religious Wars:
• Each religion will try to exterminate members of the others as
“heretics”.
• [or are heretics only apostates? Now the question is:
• May the state allow a sect to compel its own members to remain
members indefinitely, against their will?]
• Our Answer: No way! The proper solution is
• RELIGIOUS LIBERTY:
• Nobody is allowed to exterminate anybody for religious reasons.
• (More general principle: the Separation of Church and State: NO
public laws may be made for religious reasons)
• [because the public is everybody - not just co-religionists!]
Aquinas on Law (2) -- (23)
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(More general principle:
the Separation of Church and State:
NO public laws may be made for religious reasons)
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What about Christmas trees in front of the city hall?
what about public holidays: Ramadan? Chanukah? Eid-al-Adha?
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(How about Mayan holidays...?)
Suggestion: (1) no citizen may be compelled to participate in any holiday;
(2) if lots of people in the community practice religion R, then (some of) R’s holidays
might be made public holidays on grounds of convenience
(3) but do employers have to allow their employees to take the day off on nonrecognized holidays?
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Aquinas presumably wasn’t operating on (2)
That’s a difference of principle: lawmakers operating on religious premises as
such, versus making adjustments in otherwise-allowable arrangements because
of the actual presence of religious groups in the community...
Aquinas on Law (2) -- (24)
• War: the Just War Tradition
• “Whatever natural reason has established among men is observed by all
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nations and is called the law of nations.
“jus ad bellum”[When does jusice permit war?]
“Three conditions for a just war.
First: the ruler must have authority to make war. No private person
has this right, but only him to whom the commonwealth is entrusted.
Second: a just cause is required.
examples: “to avenge injuries, or secure the return of
what has been unjustly taken.”
Third: those making the war must have right intention, to achieve
some good or avoid some evil. Even if a war is initiated justly by
legitimate authority, it can become unjust by evil intentions.
Aquinas on Law (2) -- (25)
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[Our text does not have this further part of Just War theory, but introduces this
at 64.7 on self-defense]
[The “double effect”: suppose you pursue a good cause but, without
intending them, some evils befall others in the process?
- double effect says that as long as the bad effects aren’t too bad, you may
proceed]
[There are also restrictions on what you can do in fighting
a war: “jus in bello” (justice in the conduct of war)
1. Noncombatants are not to be targeted
2. Soldiers not to be sacrificed for hopeless causes
3. Minimum force: “proportionality”
4. The object is always a subsequent just peace -- so, no killing for the
sake of killing, or out of malice
Aquinas on Law (2) -- (26)
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Sedition against Peace
- Is opposed both to justice and to the common good
However, tyrannical government is unjust for the same reason:
it is directed not to the common good but to the private good of the
ruler.
• note on sedition: “organizing or encouraging opposition to government in
a manner (such as in speech or writing) that falls short of the more
dangerous offenses constituting treason.”
• To overthrow tyrannical government is not sedition,
• - unless done so badly that society suffers more from the disorder than
it did from the tyrant.
• It is the tyrant who is guilty of sedition:
• he spreads discord and division in order to bring people under his evil
control more readily
• And that harms the community.
Aquinas on Law (2) -- (27)
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Self-Defense and “Double Effect”:
Defending oneself has two effects: (1) saving one’s own life, (2) killing the
attacker.
(1) is clearly right - but not if the force used was not proportionate to
the end (Moderation required) . But
(2) it is not lawful for a private person to intend to kill another -- only
those in public authority may do that.
Soldiers fighting enemies, officers combating robbers, yes - though not if
motivated by private hatred.
[the important distinction between morality as inner control of the soul, and as
external public control....]
Aquinas on Law (2) -- (28)
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Can a Private Person kill a Criminal? (Aquinas on Gun Control)
It is permissible to kill a criminal, if this is necessary for the welfare of
the community.
But only rulers have this right, not private persons.
[note: Is this credible? If somebody threatens my life, I have to wait till
the police arrive?
[“Kindly wait with your proposed murder while I phone 911, OK?”]
- a VERY large issue is raised here.
[cf the recent case of grocer David Chen, who captured and bound up a
thief, awaiting the police..... who tohen charges Mr. Chen!
He was acquitted entirely.
(and should have been....)
Aquinas on Law (2) -- (29)
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Suicide “is always totally wrong.”
argument:
(1) everything loves itself, and so should
naturally seek to preserve itself;
(2) man is part of community: if he kills
himself, he harms the community
(3) Life is a gift of God to man, and
subject to his power alone.
[replies: (1) they kill themselves because they “love themselves”
(2) does the community own its members?
(3) if A gives x to B, as a gift, doesn’t B get to decide what he wants to do
with x? ...
[in any case, is he talking personal morals, or public law??]
Aquinas on Law (2) -- (30)
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Private Property
> From their nature, external goods are subject only to God
But from the point of view of use, we have a natural property right
- reason and will make such things beneficial.
- man has Natural dominion over the rest of creation - “image of God” ...
Two capacities re externals:
First, to care for and dispose of them. In
this interest, private property is obviously legitimate, for three reasons.
1. Everyone is more concerned to take care of what belongs only to
him than of what belongs to everyone or to many ..
2. Human affairs are more efficiently organised if care of each thing
is an individual responsibility
3. Peace is better preserved if each has his own - quarrels arise among
common owners
Second: to make use of external things for the community good and be ready to share them with others in cases of necessity.
[note that his three conditions are got from Aristotle....]
Aquinas on Law (2) -- (31)
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The “Needy” (Aquinas on the Welfare State)
In cases of necessity, everything is common property. Then it is not a
sin to take the property of another.
“Lower ranking things are meant to supply the necessities of men.
So division and appropriation of property by human law does not
prevent its being used for the needs of man.
Aquinas on Law (2) -- (32)
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The “Needy” (Aquinas on the Welfare State, continued)
“what anyone has in superabundance ought to be used to support the
poor” But if the needy are many and cannot all be supplied from the same source, the
decision is left to each individual as to how to manage his property so as to
supply those in need.
If there is urgent and clear need then a person may legitimately supply his need from the property of
someone else. Strictly speaking, such a case won’t be theft.
[why not??]
[A. doesn’t seem to address the question why a particular needy person is
“needy”
- nor what the threshold of need is [currently: possession of only one VCR?
- What’s in the “public safety net”?]
Aquinas on Law (2) -- (33)
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Profit
Two sorts of business exchanges
(1) “natural and necessary” - one commodity for another, or for
money needed to buy what is in turn needed - praiseworthy, for it serves
natural needs
(2) money for money, or for goods to make money - rightly
condemned
trade in itself has “a certain quality of baseness” - “does not of its
own nature involve an honorable or necessary end”
[Aristotle again]
Aquinas on Law (2) -- (34)
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Interest
Is Sinful: lending money is selling what does not exist, resulting in
an “inequality which is contrary to justice”.
Lending use of a consumable is lending it -so it’s like simple
exchange.
But it is unjust to exact two payments for a loan of wine - one
on the return of an equal amount of the thing, and the second as the price
for using it. That’s what usury is.
The proper use of money is in exchange.
-> Thus it is wrong in itself to receive a payment for the use of a loan
of money “to receive interest from any man is evil, since we ought to
consider all men as neighbors and brothers”.
[when your neighbor gets hungry enough, he gets to steal from you?]
[no improvement on Aristotle here!]
Aquinas on Law (2) -- (35)
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Obedience [Aquinas on Slavery ....]
104.1 Is one person Obliged to obey another?
In the order of nature, established by God, inferiors are bound to obey
superiors... Except:
1) if contrary to the command of a still higher power.
2) if the superior exceeds his authority in this command.
> In “internal motions of the will”, we are obliged only to God.
> Obligation is in the area in which the commander is superior.
Aquinas on Law (2) -- (36)
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Drunkenness
A sin to willingly and knowingly deprive oneself of the use of one’s
reason (which “enables one to act virtuously and avoid sin”).
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Virginity
> Giving up material possessions to contemplate truth is O.K.
> So, abstaining from bodily pleasures for similar purposes is O.K.
[Example: “holy virginity” - in order to “contemplate the divine”
>> We must all eat - but as regards procreation, it is sufficient if some
do it, while others abstain to “devote themselves to the contemplation of
the divine and the improvement and welfare of mankind”.
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[Here Aquinas anticipates the idea of “Universalizability”: If act x is
such that is everyone did x, that would be disastrous, can it be O.K. to do x?
Answer: Yes, if Division of Labor will do the job.]
Aquinas on Law (2) -- (37)
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Women
- Intended by nature to be directed to the work of procreation (and, of
course, “naturally subject to man because by nature man possesses more
discernment of reason” - right? ....)
[This brings up the subject of “natural intention” - which is
nonsense (unless, of course, we read theology into it: God can have
intentions regarding nature; but it itself cannot)
Important Distinction:
(a) “intended” by nature (requires Anthropomorphism)
(b) “fitted” by nature - Makes perfectly good sense: one’s natural
characteristics can be useful for some things more than others. Women are
“fitted” for having children in a way that men obviously aren’t.
But it doesn’t follow from the fact that you are able to do x that you
therefore jolly well ought to!]
Aquinas on Law (2) -- (38)
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The “State of Innocence”
[Biblical idea: The condition of people, depicted in the
Book of Genesis, prior to the “Fall from Grace”]
[Why mention this quaint “issue”? Because it gives A. an opportunity to
consider the moral status of natural differences, independently of theology.
Later writers will discuss a “state of nature”]
Would we all have been equal there?
(1) There have would have been many differences: of the sexes, in
knowledge or goodness, strength, beauty, etc.
(2) BUT, No master/slave Relation
It is against nature for one rational being to have dominion over another.
But, Unnatural things are appropriate as punishments
slavery was introduced as a punishment for sin ...
Aquinas summarized (39)
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(1) Foundations of government: - not too good
- appeals to a bad analogy (the “ship of state”)
- to natural organization (doesn’t work)
- and to the need for community (right, but doesn’t clearly imply government)
(2) General Idea of Law: “directive of reason for the common good”
- this is great!
- but which idea of “common good” do we use?
- here he’s guilty of religious bias
Distinguish conservative from liberal view of common good:
conservative: somebody else imposes it
liberal: each person is the “authority” on what’s good for him.
Aquinas is a conservative ...
(3) Foundations of Morals: important progress
-> morals is to be founded on the way things are
-> but how is it so founded?
What is “natural law” beyond the above claim?
[Aquinas does not get into Social Contract
- thinks that laws come directly from “things” - this won’t work]
Aquinas summarized (40)
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(4) Human Law: to be founded on natural morals
-> not clear what the implication is:
--> that there can be bad laws
--> but we can’t do much about them (he’s very conservative about this)
- Introduces the question of obligations to the “needy”
- his own view unclear -- does it support the “welfare state”?
- not good on religious freedom - but improvable!
(5) Civil Law: not too many civil rights - due to religious bias
e.g. the government is to allow the church to execute heretics...
allows prostitition and booze (?)
doesn’t allow general free speech....
(6) International Law
Just War theory... an important contribution
In general: Sets the stage for modern political thinking....