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might imply that there is a rational criterion for positive laws, he carefully
rejects the conclusion that in order to qualify as law or oblige obedience, a
promulgation must conform to a rational criterion. His doctrine of nat-
ural law is designed rather to give an account of the rational character of
the purpose served by the law, while affirming the human and contingent
character of the law itself and the impossibility of basing obedience to
particular laws on an appeal to intuitions of eternal verities.
Aquinas™ attention to the character of law as a human artifact led him
also to provide the first serious explanation of the relation between law
and custom. The simple classical view had been that the legal order
replaced the variety of conflicting customs by making some customs
rather than others clear and obligatory for all through the deliberate
enactment of them in written law. Aquinas™ discussion concentrated on
another and characteristically medieval relationship between law and
custom, the fact that custom is sometimes recognized to have the force
of law and even allowed to override promulgated law.
Established custom may be as much a product of reason as law,
Aquinas argues, because human reason and will are manifested by deeds
as well as by speech. What a man selects as the good is as evident from
how he acts as from what he says. When men act in a certain way, they
express a rational judgment. When actions are repeated again and again,
a custom is established, which means that custom is derived from “a
deliberate judgment of reason.” And therefore, custom can be as rational
as law. Moreover, because custom becomes established only when all
the members of the community observe it, custom reflects “the consent
of the whole people.” Taking account of the established ways of doing
things is therefore “one of the conditions of law. For it is not easy to set
aside the custom of a whole people.”45 Indeed, since the sovereign, in
framing laws, acts as the representative of the people, custom is a more
direct way of permitting the whole people to make their own laws. For


45
Ibid., I“II, 97, 3.
84 The Christian revision

although the people may not have the power to legislate or to abolish a
law that has been promulgated, if a custom observed by them is tolerated
by those who have the power to make law, then the custom obtains the
force of law “by the very fact that they [who have the power to legislate]
tolerate it they seem to approve of that which is introduced by custom.”
Custom may also, according to Aquinas, serve as a test of the usefulness
of law. For when some change makes the law defective and it is replaced
by custom, that is to say, by many repeated acts that disregard the law,
“then custom shows that the law is no longer useful: just as it might be
declared by the verbal promulgation of law to the contrary.”46
The contingent character of human existence is, in other words, such
that laws may be made to remedy the defects of custom, and customs
may arise to remedy the defects of laws. But on the other hand, custom
also re-enforces the law, for “custom avails much for the observance of
laws.” When a law is changed, a custom is “abolished,” and consequently
“the binding power of the law is diminished.” It is not enough, therefore,
to think only of what makes a change in the law desirable: “human
law should never be changed, unless, in some way or other, the common
weal be compensated according to the extent of the harm done in this
respect.”47
Even while the law remains unchanged, however, it can, in Aquinas™
view, be adapted to different circumstances because it consists of rules
that have to be interpreted for particular cases. The relationship between
any given rules of law and judgments according to those rules is the same
as the relationship between the fixed precepts of natural law and the
various positive laws, or between the precepts of the Decalogue and
their application to cases. The Decalogue forbids murder, theft, and
adultery, and this prohibition remains unchanged, but “as to any deter-
mination by application to individual actions, “ for instance that this or
that be murder, theft, or adultery, or not “ in this point they admit of
change. . . .”48 This follows from the logical compatibility of a variety
of particular conclusions with the same general proposition from which
they are derived. Because decisions about cases are “determinations” of
rules of law, they may change with the circumstances without affecting the
rule.
But law may also be adapted to changing circumstances in another
way by what Aquinas calls “dispensation.” His view of dispensation rests
on his acceptance of Aristotle™s understanding of a rule of law as a kind of
average: “Now it happens often that the observance of some point of law


46 47 48
Ibid., I“II, 97, 3. Ibid., I“II, 97, 2. Ibid., I“II, 100, 8.
St. Thomas Aquinas 85
conduces to the common weal in the majority of instances, and
yet, in some cases, is very hurtful. Since then the lawgiver cannot have
in view every single case, he shapes the law according to what happens
most frequently, by directing his attention to the common good.”49 The
more particular the question at issue, the more flexible the interpretation
may be, for the more particular is always subordinate to the less particu-
lar. A law to the effect that “no man should work for the destruction of
the commonwealth, or betray the state to its enemies” must be interpreted
strictly. But there may be precepts subordinate to it, which indicate
“special modes of procedure” that might, if adhered to on some occa-
sions, achieve the opposite of what the lawmaker obviously intended.50
Thus, if it were required by law that for each ward some men should keep
watch as sentries in case of siege, some person might be released from this
duty in order to perform a more important one. Even more general rules
of law may sometimes be dispensed from because a general precept is apt
to fail in some particular cases, either by preventing some important good
or by imposing an evil. And therefore, the nature of law requires that
there be a power of dispensation. For it is the “motive of the lawgiver”
and not “his very words” that matters. Since every law derives its “force
and nature,” from its being “directed to the common weal of men,” and
since no lawgiver can take account of all possible cases, it is conceivable
that a case might arise where the observance of the law would destroy the
common good.51
It should be noticed, however, that the example given by Aquinas is one
where there is unlikely to be much disagreement about what is required: If
“in a besieged city it be an established law that the gates of the city are to
be kept closed, this is good for public welfare as a general rule; but, if it
were to happen that the enemy are in pursuit of certain citizens, who are
defenders of the city, it would be a great loss to the city, if the gates were
not opened to them: and so in that case the gates ought to be opened,
contrary to the letter of the law, in order to maintain the common weal,
which the lawgiver had in view.” But Aquinas goes on to say that such a
violation of law is justifiable only where there is a “sudden risk needing
instant remedy,” that is to say, when observing the law would produce an
immediate danger, and the necessity of disregarding the law is so obvious
as to be nearly indisputable.52
Where there is no such emergency, “it is not competent for everyone
to expound what is useful and what is not useful to the state: those


49 50
Ibid., I“II, 96, 6. Ibid., I“II, 100, 8.
51 52
Ibid., I“II, 96, 6. Ibid., I“II, 96, 6.
86 The Christian revision

alone can do this who are in authority, and who, on account of suchlike
cases, have the power to dispense from the laws.” The power of dispensa-
tion, Aquinas says firmly, belongs only to those who have been given the
power to do so. To leave dispensation to the discretion of each individual
“would be dangerous.” Moreover, there is no justification for an official
empowered to dispense from the law to allow a precept not to be observ-
ed simply because he regards it as undesirable. If he grants permission
to disregard the law “of his mere will, he will be an unfaithful or an
imprudent dispenser.”53
In the course of blending a Greek with a Christian view of law, Aquinas
offers a subtle exploration of the relationship between the fixity and the
contingency of law. The law, in his view, is to be treated neither simply in
Augustinian fashion as the imposed basis of peace in an irrevocably
alienated worldly society, nor simply in Ciceronian terms as a deduction
from or reflection of eternal verities clearly known to men. Rather,
Aquinas argues that man has access, through rational participation in
Eternal Reason, to natural law, but that the natural law consists only of
very general and abstract precepts that cannot be translated directly into
universally applicable law, and which must be applied to particular cases
only through interpretation. For the most part, laws are made “ for better
or worse “ by rulers whose aims may not be purely to lead men to God;
but these laws, often qualified by (or incorporating) custom are neverthe-
less, Aquinas holds, to be obeyed because they, along with the customs
and interpretations that they incorporate, at least convey a rational order
(even if not the highest rational order) to society and human life. Only in
extreme circumstances should a ruler therefore dispense from his own
law; and only when a ruler fails even to create or impose settled law
should the subject contemplate revolt. Law is thus rational at root and
rationally obeyed. But law should not be conceived as a direct expression
of Eternal Reason and should not be disobeyed simply because subjects
believe that it conflicts with whatever they consider to be the dictates of
Reason.
The Thomistic account of law is, in short, a powerful and explicit
attempt to resolve the Aristotelian tension between law as the cement of
society (something to be obeyed because it is law) and law as a moral
absolute (something to be obeyed because it is an expression of eternal
verities). Certainly it is a more powerful and subtle account than the
opposing simplicities of Cicero and Augustine. But at the same time,
Aquinas leaves intact the other great Aristotelian tension between justice


53
Ibid., I“II, 96, 6; 97, 4.
St. Thomas Aquinas 87
and liberty. If, as Aquinas believes, human reason and the law that human
reason fashions are ultimately (even if opaquely at a highly abstract level)
a participation in Eternal Reason, how can the law recognize and value
the desire and ability of human beings to be independent agents, to enjoy
liberty? Is individuality or liberty indeed to be valued? Or is the best law “
founded on clear, abstract intuition and followed by inspired and wise
practical “determination” and interpretation “ one that leads men re-
morselessly along the path of justice to God? This unresolved question,
together with doubts about the limits of obedience, inspired by Augustine,
formed the basis of the discussion of the idea of law in the early modern
period. After Augustine and Aquinas, the leading questions were: If human
law is an expression of justice derived in some way from Eternal Reason,
how can liberty be protected? And if human law is purely a man-made
artifact, what, if any, are the bases for (or limits to) obedience?
Part III

The modern quest
6
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _Thomas_______________________ _ _ Hobbes__________________________________________________________________________________________________________



An escape from the tension between justice and liberty was provided by
Thomas Hobbes™s radical renunciation of the ancient idea of a cosmos
where human reason has access to indisputable knowledge. In his attack
on Aristotelianism, Hobbes ruthlessly spelled out the implications of
living in a Christian universe. By pursuing St. Augustine™s rejection of
the pagan universe to its logical conclusion, Hobbes unequivocally re-
placed the concern with law as a link to divinity and an instrument of
education with a picture of law as man™s only resource against violence in
a world that has no anchor to indisputable truth. By exploring the
postulates and implications of this picture of law, Hobbes defined a new
set of questions and opened the modern discussion of law.
His account of law rests on a division of the universe into two wholly
separate domains: a world of concrete contingent being, which men
inhabit, confronting another wholly alien world of infinite being, God
the Creator. This picture of the universe “ which explains the novelty in
Hobbes™s conception of law “ is a radical departure from the ancient and
medieval conception of human beings as products of matter informed by
God™s reason. Instead, Hobbes™s human being is a creature made by God
out of nothing, not according to any pattern, but as God in his infinite
power willed. As this God is a Creator, and not an intelligible principle,
the reason of man cannot in any way penetrate His ideas. Human beings
are thus wholly cut off from understanding the eternal reality behind the
ever changing world of human experience.
To fit this picture, Hobbes invented a new understanding of rationality
that was totally purified of the pagan idea of reason as a quasi-divine
power. The pagan legacy was denounced by Hobbes for being the root of
social disorder because it sanctioned arbitrary claims to possess final truth
and “right Reason”: “And when men that think themselves wiser than all
others, clamor and demand right Reason for judge; yet seek no more, but
that things should be determined, by no other men™s reason but their own,
it is as intolerable in the society of men, as it is in play after trump is
turned, to use for trump on every occasion, that suite whereof they have

91
92 The modern quest

most in their hand.”1 Hobbes™s new definition of rationality proposed
to explain the predicament of a creature who could ask questions about
the order of the universe and produce a variety of answers, but was
irrevocably denied any access to indisputable truth.
In accordance with his repudiation of the pagan cosmology, Hobbes
rejected the distinction between spirit and matter on which it rested.
He was a “materialist,” not in the sense of believing that matter was the
ultimate stuff of the universe, but because he refused to divide the uni-
verse between matter and spirit or even to speculate on what it was made
of. Instead of discussing human beings as souls or rational essences, as his
predecessors had, Hobbes preferred to speak of a “person” which “signi-
fies an intelligent substance, that acteth any thing in his own or another™s
name, or by his own or another™s authority.”2 This meant that a man
should be regarded as an individual substance, and not as a dislocated
fragment of divinity. When Hobbes spoke of “nature” he meant the
nature of the scientists, not of the ancient or medieval philosophers. For
he did not identify nature with the rational order of the universe, but with
the phenomena that any man could observe, and he proposed to read men
in the same manner as Copernicus had read the stars. The laws of nature
in Hobbes™s view therefore cannot determine the purpose for which men
were created, but rather describe the manner in which God™s creatures
operate and the conditions of their existence. Such laws are discovered by
reflecting on the thoughts and behavior of oneself and other people, not
by intuiting God™s ideas, reasons, or purposes. Understanding of this sort
does not then presume to be god-like, i.e., to escape or belittle sense
perception in favor of “higher” intuitions. And it renounces any talk of
invisible things such as had led to those “insignificant sounds . . . coyned
by Schoole-men and pusled Philosophers.” Any talk of entities “ apart
from the Creator “ that do not exist in some time or place and have
some determinate magnitude, Hobbes assures us, is nothing but absurd
speech “taken upon credit (without any signification at all), from deceived
Philosophers, and deceived, or deceiving Schoolemen.”3
The universe postulated by Hobbes is consequently a welter of particu-
lars. Each man™s perception of these particulars depends on the objects
that happen to impinge on his senses. As a result every man™s head may be
full of totally different thoughts. If men are to speak to one another, they


1
Thomas Hobbes, Hobbes™s Leviathan, ed. Richard Tuck (1651, reprint, Cambridge:
Cambridge University Press, 1991), 33.
2
Thomas Hobbes, The English Works of Thomas Hobbes, ed. William Molesworth, vol. IV
(London: Bohn, 1966), 310.
3
Leviathan, 30, 24.
Thomas Hobbes 93
can do so only by agreeing to assign certain names to certain particulars,
and their agreement can rest on nothing other than their will to make it.
For human reason is a power of invention, and as there is no natural,
given basis for what is invented, there is no natural foundation for
agreement among men.
The human predicament thus takes on a wholly new character. It no
longer consists in the difficulty of learning to discover and conform to
the first principles of things or the order given by Nature. It arises rather
out of recognizing that there is no “utmost ayme” or “greatest Good,”
such as “is spoken of in the Books of the old Morall philosophers,” and
that there is no natural limit to a man™s desires. Everything attained may
suggest another object to be desired. As long as a man lives, desire is
endless. Nor is there any natural criterion for what is good and bad;
what is good is what a man finds desirable; and every man may find
desirable something different. There is no pattern for the good life, given
by nature, but only a desire for “felicity” which is “a continuall progresse
of the desire, from one object to another; the attaining of the former,
being still but the way to the later.”4
When such endlessly moved and moving creatures live among other
such beings, they are bound to discover in one another either impediments
or means to their ceaseless search for satisfaction. Even if they do not
regard one another as enemies, if they wish only to speak together, there is
nothing that can decide for them what signification any sound will have.
If they wish to act together, they have no standard by which to choose
between a better and worse course of action. They can escape from this
predicament only by recognizing someone whom they will obey. But there
is no reason in nature why they should follow or listen to one man over
another, for no one is so manifestly superior in power, intellect, or any
other respect that it would be inconceivable for others to try to supplant
him. As long as no human being appears to be as a god among men, no
one can by nature be acknowledged to have dominion over the others.
And this equality of men is the source of the natural disorder of human
life. Because each individual is a unique rational substance shut up within
the walls of his own consciousness, if man had nothing but his own reason
to guide him, men would be doomed to wander aimlessly in a totally
mysterious universe, where each person™s thoughts wholly and perman-
ently differed from that of every other; and this independently of the fact
that each man may see the next as either a means or a threat to achieving
the satisfactions he desires.


4
Ibid., 70.
94 The modern quest

Religious faith offers no way out of this predicament because, Hobbes
repeatedly reminds us, although God may speak to any man, others
cannot know that He has done so. They may choose to believe it, as the
Jews did with Moses and the Christians with Jesus, but such acquiescence
must rest on a will to believe. The words in Scripture can have an
indisputable meaning only when the men using them have agreed upon
what meaning they shall have. And there is no given ground for such
agreements. Indeed wherever we look, if we can act or think in common
with others, it is because we have arrived at an agreement for which
there is no foundation in nature: “And therefore, as when there is a
controversy in an account, the parties must, by their own accord, set up
for right Reason, the Reason of some Arbitrator, or Judge, to whose
sentence they will both stand, or their controversie must either come to
blowes, or be undecided, for want of a right Reason constituted by
Nature; so is it also in all debates of what kind soever.”5
The moral of Hobbes™s novel account of the human predicament is
that if men hope to agree on anything, they must come to do so without
the help of any natural pattern, standard, criterion, sanction, or model.
Therefore, to engage in any discourse or take any common action, men
are obliged to obey someone whose will can impose unity on the natural
diversity. It is possible to distinguish, however, between decisions made
by someone whose right to decide is recognized by those who obey him,
and the commands issued by someone who imposes obedience by force.
And this distinction is what Hobbes offers as a way out of the human
predicament. It explains how men can live together without subjecting
themselves to the arbitrary dominion of another because, though their
association is necessarily based on a command of will rather than reason,
they can choose to oblige themselves to obey and therefore need not be
enslaved.
When men choose to recognize another™s right to decide for them, they
“authorize” him to do so, that is, they give him the right to speak
for them. They thereby create a “sovereign” who is absolute in the sense
that his decisions “ simply because they are his decisions and he has
been authorized to make them “ are the last resort in our disputes. Having
authorized him to decide, they are then obliged by their own action to
accept his decision even when they dislike it. Otherwise, they convict
themselves of self-contradiction. That does not prevent anyone from
finding authorized decisions obnoxious. It merely means that we
are obliged to obey what we find distasteful. And this obligation to obey


5
Ibid., 32“33.
Thomas Hobbes 95
the sovereign, even when his will is distasteful, is the foundation of
civil peace.
Although referred to as “he,” the sovereign is a concept which may in
reality denote one, few, or many, i.e., a king, an elected assembly, or a
procedure. What defines the sovereign is possessing the authority to make
the final decisions for all. But though in this sense the sovereign is
“absolute,” he cannot be a tyrant exercising arbitrary power because he
could not then secure “peace.” For peace, Hobbes emphasizes, is not just
the absence of physical combat; it is a condition in which men can have
stable expectations, and men subject to the ever changing arbitrary de-
crees of a tyrant suffer from the same insecurity as men in the “state of
nature.” The war of each against all is a condition in which a man cannot
know from one day to the next what is his own, what will be demanded
of him, and who will assert supremacy over him. This insecurity may be
created by a government which imposes arbitrary orders no less than by
the disorder of anarchy. Tyranny then offers no escape from the war of
each against all.
To ensure that men may live without fear, Hobbes stressed that the
sovereign™s authority has to be exercised by making and maintaining
stable rules. Such rules constitute the rule of law. And Hobbes™s discus-
sion of law is designed to establish ways of distinguishing rules made,
interpreted, and enforced by an authorized officer of the sovereign from
rules that are not so authorized and that no one is therefore obliged to
obey. Hobbes™s distinctive achievement consists in making it plain that if
we reject the ancient rationalism, any order in human life must rest on
abiding by rules made by an authorized legislator. By emphasizing that
the source of law must be an authorized legislator, Hobbes explains how,
even though it is wholly a human artifact, law constitutes a protection,
indeed the only protection, against arbitrary power.
But at the same time, in defining and emphasizing the concept of
authority, Hobbes also shows that there is an ineradicable element of
arbitrariness in the rule of law. For the rules which we recognize an
obligation to obey can never be ultimately justified by reference to any
universal, necessary truth that all rational beings are obliged by reason
to accept. Our only alternative to chaos is to will to accept the word of
someone. That word may be given in many different fashions; the “some-

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