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The Relation Between Positive and Natural Law in Aquinas*

Published online by Cambridge University Press:  24 April 2015

Daniel Westberg
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Extract

The dynamic relation between natural law, the theory of an objective moral order (or unwritten norms for human actions), and positive law, the legislation or statutes of a political community has become more prominent again. This article will explore the theory of Aquinas on the relationship between natural and positive law, which is still of great importance in the discussion. In particular, I will show how Aquinas' distinction between derivation and determination of positive from natural law resolves some of the conflicts between positive and natural law created by later scholastic distortions.

A systematic exposition of Thomistic natural law is particularly daunting, given the current controversies in interpretation, distortions which have arisen since the Middle Ages, and the many good theological critiques of the natural law tradition. Although I do not think that Aquinas' approach contains any fundamental flaw which renders the project inherently incoherent, I want to approach the topic from the side of positive law and thereby indirectly contribute to the rehabilitation of natural law theory. As I explain the purpose and scope of positive law as Aquinas describes it, some of the lines of a correct account may emerge. Beyond the historical and exegetical scholarship, this article will propose a framework which may be applied to some contemporary issues to test the implications of the Thomistic view of law.

Type
Articles
Information
Journal of Law and Religion , Volume 11 , Issue 1 , February 1994 , pp. 1 - 22
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1994

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Footnotes

*

A version of this paper was presented at the Fifth Annual Symposium on Law, Religion and Ethics at Hamline University School of Law, St. Paul, Minnessota in October, 1992. Subsequent revision has benefited from the conference discussion and from the suggestions of Michael Perry and Robert Tuttle.

References

1. Fuller, Lon, The Morality of Law (Yale U Publication, rev edn 1969)Google Scholar has been influential; also Finnis, John, Natural Law and Natural Rights (Clarendon Press, 1980)Google Scholar, and George, Robert P., ed, Natural Law Theory: Contemporary Essays (Clarendon Press, 1992)Google Scholar.

2. Diversity, vitality, and theological sensitivities are well illustrated in two recent collections: Elders, L. and Hedwig, K., eds, Lex et Libertas: Freedom and Law According to St. Thomas Aquinas (Studi Tomistici 30; Vatican Press, 1987);Google Scholar and Curran, Charles E. and McCormick, Richard A., eds, Readings in Moral Theology No. 7: Natural Law and Theology (Paulist Press, 1991)Google Scholar.

3. Aquinas, Thomas, Summa Theologiae [hereinafter ST] 1–II 95Google Scholar. 2: Unde omnis lex humanitus posita intantum habet de ratione legis, inquantum a lege naturae derivatur. Si vero in aliquo a lege naturali discordet, iam non erit lex sed legis corruptio.

4. For example, Hart, H.L.A., The Concept of Law at 8, (Clarendon Press, 1961)Google Scholar.

5. See Bourke, Vernon, Is Thomas Aquinas a Natural Law Ethicist?, 58 The Monist 52 (1974)CrossRefGoogle Scholar; and Eschmann, I. T., St. Thomas's Approach to Moral Philosophy, 31 Proceedings of the American Catholic Philosophical Assoc 25 (1957)CrossRefGoogle Scholar; and more recently, Nelson, Daniel M., The Priority of Prudence: Virtue and Natural Law in Thomas Aquinas and the Implications for Modern Ethics (Penn State U Press, 1992)Google Scholar.

6. ST 1-II 95.2: … uno modo, sicut conclusiones ex principiis; alio modo, sicut determinationes quaedam aliquorum communium.

7. Maritain, Jacques, The Rights of Man and Natural Law (Anson, D. C., trans.) at 70 (Scribners, 1943)Google Scholar.

8. Id.

9. Id.

10. ST 1-II 94. 4: Et hoc tanto magis invenitur deficere, quanto magis ad particularia descenditur. …

11. Gilby, Thomas was editor of the Blackfriars edition of the Summa Theologiae (McGraw Hill, 1964–1976)Google Scholar, and author of The Political Thought of Thomas Aquinas (U of Chicago Press, 1958)Google Scholar.

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14. Id at 151.

15. Id at 152.

16. Id.

17. Id at 153.

18. Id at 154-5.

19. See Davitt, Thomas E., The Nature of Law (B. Herder, 1951)Google Scholar.

20. See Moore, Michael, Law as a Functional Kind, in Natural Law Theory, at 198 (cited in note 1)Google Scholar. He describes his Augustinian view of the connection between law and morality: “… the justness of a norm is necessary to its status as law ….”

21. Finnis, John, Natural Law and Natural Rights at 289 (Clarendon Press, 1980)Google Scholar.

22. See Westberg, Daniel, The Relation of Law and Practical Reason in Aquinas in Hudson, Deal W. and Moran, Dennis W., eds, The Future of Thomism at 279 (U of Notre Dame Press, 1992)Google Scholar. I provide a more detailed account of Thomistic action theory in Right Practical Reason: Aristotle, Action, and Prudence in Aquinas (Clarendon Press, 1994)Google Scholar.

23. In ST 1-II 94. 2.

24. See Gilby, Thomas, The Political Thought of Thomas Aquinas at 111–36 (U of Chicago Press, 1958)Google Scholar.

25. Aquinas, De cantate, art 7 ad 10: lex scripta data est in auxilium legis naturae quae erat obtenebrata per peccatum. Non autem eat sic obtenebrata quin movere ad diligendum, ad hoc quod homo diligeret seipsum et corpus suum; sed est obtenebrata quantum ad hoc quod non movebat in dilectionem Dei et proximi. Et ideo in lege scripta danda fuerunt praecepta de dilectione Dei et proximi, in quibus tamen comprehenditur etiam quod aliquis diligat seipsum.

26. ST 1-II 95.1, arg. 1, (trans. Gilby) at 99 (cited in note 10).

27. Id, main reply at 101.

28. ST 1-II 96. 5, main reply and ad 1.

29. ST 1-II 96.2: Lex autem humana ponitur multitudini hominum, in qua major pars est hominum non perfectorum virtute; (Gilby's trans, at 123: “… the majority have no high standard of morality”).

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The task became virtually impossible when the policy demanded the sort of attention to minutiae affecting the entire population that was required by sumptuary legislation.

33. Paul, Pope John II, Laborem exercens, § 19 (US Cath Conf, 1981)Google Scholar.

34. Id.

35. Paul, John II, Centesimus Annus, § 34 (US Cath Conf, 1991)Google Scholar:

It would appear that, on the level of individual nations and international relations, the free market is the most efficient instrument for utilizing resources and effectively responding to needs.

36. Aquinas, On Kingship: To the King of Cyprus (trans Phelan, and Eschmann, ) at 65, ch 118 (Pontifical Inst of Mediaevel Studies, 1949)Google Scholar.

37. ST 1-II 96. 4.

38. On capital punishment, defending Thomas, St. is Dougherty, J. P., Aquinas on Punishment, in Lex et Libenas at 160–70 (cited in note 3)Google Scholar; on the other hand, Grisez, Germain, Toward a Consistent Natural Law Ethics of Killing, 15 Amer J of Juris 64 (1970)CrossRefGoogle Scholar, criticizes him for following the institutions of his day. On the evolution of a Thomist position on slavery see Brown, O. J., Aquinas' Doctrine of Slavery in Relation to Thomistic Teaching on Natural Law, 53 Proc of the Am Cath Philosophical Assoc 173 (1979)Google Scholar; and Killoran, J. B., Aquinas and Vitoria: Two Perspectives on Slavery, in The Medieval Tradition of Natural Law at 87–102 (cited in note 12)Google Scholar.

39. Maritain, Jacques, Freedom in the Modern World, (O'Sullivan, R., trans) app 1 at 209 (Charles Scribner's Sons, 1931)Google Scholar, and Simon, Yves, The Tradition of Natural Law (Fordham U Press, 1965)Google Scholar.

40. I believe there is some significance in the fact that Aquinas never finished his commentary on Aristotle's Politics or his own treatise De Regimine Principorum.

41. ST 2-II 66. 7: Si tamen adeo sit urgens et evidens necessitas ut manifestum sit instanti necessitati de rebus occurrentibus esse subveniendum, puta cum imminet personae periculum et aliter subveniri non potest; tunc licite potest aliquis ex rebus alienis suae necessitati subvenire, sive manifeste sive occulte sublatis. Nec hoc proprie habet rationem furti vel rapinae.

42. See Ramsey, Paul, The Case of the Curious Exception in Outka, Gene and Ramsey, Paul, eds, Norm and Context in Christian Ethics at 67 (Scribner, 1968)Google Scholar.

43. In ST 2-II66. 2, Thomas argues (from Aristotle) that: (1) people take better care of their own things than common property, and thus will work harder; (2) human affairs are more orderly and efficient with responsibility split up; (3) the state will be more peaceful if each person is contented with their own.

44. ST 2-II 66. 1 and replies.

45. ST2-II66. 2.

46. Theron, S., St. Thomas Aquinas and Epicheia in Lex et Libertas at 181 (cited in note 2)Google Scholar.

47. See O'Connell, Timothy E., Principles for a Catholic Morality at 183–95 (The Seabury Press, 1978)Google Scholar.

48. See Hittinger, Russell, Natural Law in the Positive Laws, 55 Rev of Politics 5, 22 (1993)CrossRefGoogle Scholar:

To argue that judges are bound to interpret the written law, rather than speculate immediately about the natural law, in no way requires us to believe (i) that the written law is morally valid only by dint of the will of a legislature, or (ii) that the positive law is morally binding completely apart from its moral specifications.

49. In contrast, Michael Moore at 230 (cited in note 20) argues that selection procedures and institutional differences between courts and legislatures “make judges better epistemic authorities about the rights persons possess than are legislatures”. But see Moore's assessment at 234, that Aquinas' version of the connection between positive law and natural law is too weak compared to his own “Augustinian” view of the relation of law and morality. Aquinas would counsel obedience to some misguided laws for the sake of civil order, while Moore's view would imply that unjust laws are simply not valid; hence the greater reliance on judicial review.

Hittinger, 55 Rev of Politics at 34 (cited in note 48) concedes that “there is nothing in Aquinas's theory that would prohibit a large democratic state from looking to a select number of judges to act as a check against willful legislative majorities.”

50. See the different approaches to the problem of authority in the Catholic Church in Curran, Charles and McCormick, Richard, eds Readings in Moral Theology: The Magisterium and Morality (Paulist Press, 1982)Google Scholar.

51. Congregation for the Doctrine of the Faith, , Instruction on Respect for Human Life in its Origin and on the Dignity of Procreation (Vatican City [The Congregation], 1987)Google Scholar.

52. Mitchell, B., Should the Law be Christian?, in Abraham, William J. and Prevost, Robert W., eds, How to Play Theological Ping-pong, and Other Essays on Faith and Reason at 70 (W. B. Eerdmans, 1990)Google Scholar.

53. O'Donovan, Oliver, Principles in the Public Realm: The Dilemma of Christian Moral Witness at 10 (Clarendon Press, 1984)Google Scholar.