LINEBURG


<< . .

 8
( 38)



. . >>

happened in other ages with that of which they have direct experience.
Yet they need only remember that in their daily lives there is constant
variation in what is suitable for any one body, day, season, person, or
family. In the same way, the laws that are suitable for one age become
unrighteous in another. For only by “diversities in the manners, laws, and
institutions . . . earthly peace is secured and maintained.”14 But even
though what is right at one time may be wrong at another just because
“they are times,” human arrangements “all tend to one and the same end
of earthly peace.” Because members of the heavenly city are so clearly
aware of the distinction between mortal life and eternal bliss and know
that contingency is inescapable on earth, they, least of all men, wish to
abolish diversity. They strive rather to preserve and encourage it.15 In his
Confessions, Augustine accordingly blamed himself for not seeing “how
that righteousness . . . in varying times . . . did not prescribe all things
at once, but distributed and enjoined what was proper for each.”16
Because the truth is hidden, just what the laws should be, and how they
should be enforced, can be determined only by agreement on what con-
stitutes the public concern (res publica). Far from embracing the whole life
of the citizens, the public concern is that area in which divergent interests
and loyalties of individuals coincide. The subject of these concerns is itself
intrinsically changeable because it is what Aristotle described as “those
goods that men fight about.” As there is no eternal pattern for the law,
and as it deals with mortal questions to which the answers are always
provisional and partial, the law not only differs from one place and time
to another but is necessarily subject to constant revision and renewal at
any given place and time. Whereas in the classical picture change in the
law is regularly decried, Augustine considers change in the law essential to
keeping it just. His awareness of a long Roman history of law may have
led him to take its existence more for granted and to feel confident that
there can be changes in a system of law without endangering its existence.
In any case, he was more impressed than his pagan predecessors with the
need for constant revision of the law and was less fearful of the effects of
change than the Greeks had been.
Augustine put a new stress not only on the variety and changeability of
law, but also on the arbitrariness of its enforcement. He went much
further than Plato or Aristotle in insisting that a painful degree of injust-
ice is inseparable from law, that the tragic character of human existence is


14 15
Ibid., 64; cf. City of God Book XIX, 17. City of God Book XIX, 17.
16
Confessions Book III, 14.
66 The Christian revision

nowhere more obvious than in the operation of law. Since there, as
elsewhere, the truth is hidden, not only is every legal judgment bound to
be in some degree defective, but men must also endure practices which
they find repellent. Because a mortal judge, unlike God, “cannot discern
the consciences of those at their bar,” he must resort to torture to discover
whether a man is innocent. Consequently, the innocent man, even if he is
in the end released, may suffer torture undeservedly. Or he may die in the
course of torture without confessing. If he chooses not to be tortured and
to confess, he wrongly lets himself be taken for guilty. Or he may be put to
death because he confesses under torture, even though he is innocent.
Accusers may suffer in the same way. Though prompted only by a pure
“desire to benefit society by bringing criminals to justice,” they may be
unable to prove their charges, or they may be traduced by witnesses who
lie, or they may be tortured to produce evidence about crimes of which
they are themselves not even accused:
Thus the ignorance of the judge frequently involves an innocent person in
suffering. And what is still more unendurable “ a thing, indeed, to be bewailed,
and, if that were possible, watered with fountains of tears “ is this, that when the
judge puts the accused to the question, that he may not unwittingly put an
innocent man to death, the result of this lamentable ignorance is that this very
person, whom he tortured that he might not condemn him if innocent, is
condemned to death both tortured and innocent. . . And, when he has been
condemned and put to death, the judge is still in ignorance whether he has put to
death an innocent or a guilty person, though he put the accused to the torture for
the very purpose of saving himself from condemning the innocent; and
consequently he has both tortured an innocent man to discover his innocence,
and has put him to death without discovering it.17

Given such appalling possibilities, no man can take on the duties of a
judge without exposing himself to suffering. Why, then, should any man
consent to act as a judge: “If such darkness shrouds social life, will a wise
judge take his seat on the bench or no?” Augustine answers: “Beyond
question he will. For human society, which he thinks it a wickedness to
abandon, constrains him and compels him to this duty.” There is no end
to the ways in which justice may be perverted by the operation of the law,
and yet the wise judge does not consider “these numerous and important
evils” to be sins. He recognizes that what matters before God is that he
does not intend to do harm and that he is compelled to accept what harm
he causes by his inescapable ignorance and by his duty as a judge. He
cannot be a happy man, even though he is guiltless. He is bound to
recognize “the misery of these necessities” and to shrink from his own

17
City of God Book XIX, 6.
St. Augustine 67
implication in that misery. He may cry to God, “From my necessities
deliver Thou me,” but, like the accused and the accusers, the judge must
bear his undeserved suffering because that is the condition of fallen man.
Anyone who tries to evade such sufferings brings upon himself the most
serious kind of guilt, that of trying to escape from his sinful nature. The
Christian can only “condemn human life as miserable.”18
Given his conviction that whatever men do, they cannot avoid injustice,
it is hardly surprising that Augustine firmly rejected Cicero™s view that a
“republic cannot be administered without justice.” For Augustine that is
tantamount to denying the existence of any earthly city. Against Cicero,
he argued that “the Roman people is a people, and its weal is without
doubt a commonwealth or republic.”19 The injustice in one city might be
greater than in another, but the presence of some injustice in every city is
as inescapable as the Fall of man.
For the same reason, coercion is, in Augustine™s view, intrinsic and
central to the law. The association of punishment with law had been taken
for granted by Augustine™s predecessors, but was regarded as merely an
accidental attribute. This was because in the classical picture, the legisla-
tor has the character of an interpreter of cosmic reason for the education
of the polis. He is, at least in one of the classical views, a teacher, not a
master, and his use of force is only a means of making his teaching more
effective. But since Augustine repudiated the conception of a ruler or
legislator as an intermediary between the terrestrial community and the
heavenly kingdom, and instead regarded the object of the legislator as
being to remedy the disorder of “this hell upon earth,”20 it is not surpris-
ing that he believes the legislator can achieve his ends only by repression,
by dispensing punishment. Thus law ceases to be identified with reason as
in the classical picture, and its association with force and punishment is of
its essence.
The obligation to observe the law also acquires a different character.
Although Augustine sometimes recommends that magistrates should per-
form their duties in the spirit of a kind father, he does not see the role of
the civil ruler or legislator as analogous to that of the paterfamilias. Nor
does he, in this connection, invoke the picture of a cosmic order where
superior levels rule over inferior ones, although he continued to think in
terms of such an order in other contexts. When speaking of law, he
emphasizes that the order of the human world has no connection with a
natural order, and that the ground for subordination in civil society is
derived from the peculiar character of the human world, which imposes


18 19 20
Ibid. Ibid., Book XIX, 21“24. Ibid., Book XXII, 22.
68 The Christian revision

on fallen man an obligation to obey the powers that be. This duty of
submission has nothing whatever to do with the Greek conception of law
as an alternative to servitude, adopted by men because they are rational
beings. It is, on the contrary, more nearly a form of servitude, an obliga-
tion to submit to superior power as the only means of preserving peace.
Its moral quality is derived merely from its being a recognition of man™s
fallen nature, and an acceptance of the consequences of that Fall. Indeed,
Augustine™s view of the obligation to observe the law is strictly analogous
to his view of illness; they are both unpleasant phenomena intrinsic to the
human condition and beyond man™s control. The Christian obeys the law
because he is the sort of man who would not set himself up against the
hidden ways of God.
In principle, then, Augustine offers at least as simple a view of law as
Cicero does, but a view from the opposite pole of the Greek tension
between law as a foundation of association and law as a moral education
derived from eternal verities. Whereas Cicero had escaped that tension
by arguing that the law has no justification other than its being in
conformity with or a reflection of eternal reason, Augustine escapes the
tension by arguing that the law has no justification other than its contri-
bution to the peacefulness of a human association. But just as Cicero left
his readers wondering how man can know with such certainty the content
of eternal truth in its application to the contingent world, Augustine left
subsequent generations with unresolved issues. In particular, he did not
tell his successors how to determine the limits of obedience to a law that
has no links to eternal verities, or to what extent they should regard
eternal or natural law as at least a negative criterion which justifies
disobedience to a human law that flies in the face of what the human
subject conceives as divine law. These issues were directly addressed by
Aquinas.
5
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _St.______ _ _ _ Thomas________________________ _ _Aquinas________________________________________________________________________________________________



A much more complicated idea of law emerged from the project of
St. Thomas Aquinas to reconcile the revealed Christian truth with the
pagan philosophy of Aristotle. This project required Aquinas to restore
the link between law and a cosmic order while at the same time acknow-
ledging, as Christian doctrine required, that men cannot read the mind
of God.
Aquinas™ solution rests on accepting, in a modified form, the Aristotel-
ian view of nature that Augustine had rejected. In the Thomistic picture,
the model for order in human society is the cosmic hierarchy, in which the
higher moves the lower by means of superior natural powers divinely
assigned to the higher. The universe is a hierarchy of “movers,” in which
power descends from the first mover to subordinates in their due order,
just as the plan of a work of art descends from the chief craftsman to the
craftsmen who work under him. Just as in nature, where higher things
move the lower because of the preeminent natural powers conferred upon
them by God, so also in human affairs superiors impose their will upon
inferiors because of the authority established by God. The submission not
only of children to the father, but also of families to the political ruler is as
natural as the rule of the soul over the body and of God over the world.
As subjection to a ruler belongs to the chain of agencies provided by God
for the perfection of each kind of being, it is ordained by God that the
plan, or ratio, of what is to be done in the political community flows from
the king™s command to his chain of inferior administrators.
The political order is not then, as in the Augustinian picture, the result
of man™s Fall, but belongs to the natural order of things. Men need to be
ruled because otherwise they would be a “plurality of individuals” with-
out any unity and would be no more able to achieve their natural end than
would the crew of a ship without a captain. To be orderly, every multipli-
city has to be reduced to unity, and this can only be done by subjecting the
many to the rule of one “ “in nature, government is always by one. Among
members of the body there is one which moves all the rest, namely, the
heart: in the soul there is one faculty which is pre-eminent, namely reason. . .

69
70 The Christian revision

for all plurality derives from unity.”1 In the same way, rulers impose unity
upon their subjects by directing them to a unitary end “ the good.
Whereas Aristotle™s conclusion that the political community must pursue
a unitary end is required by his conception of rational activity as activity
directed to an object, for Aquinas the reduction of multiplicity to unity is
part of God™s dispensation for the governance of the universe.
Assuming that the most effective agent of unity is something which is
itself a natural unity, just as the universe is governed by one ruler, so the
best form of government is a monarchy because it is less given to dissen-
sion and tyranny than rule by the many. But on the other hand, Aquinas
insists that the evil to be feared above all is the rule of a tyrant. He is as
concerned as the pagan philosophers were with the distinction between
rule by arbitrary will and rule by law, which he considers synonymous
with the distinction between the rule of irrational passion and the rule of
reason. Aquinas accordingly defines law as “nothing else than an ordin-
ance of reason for the common good, made by him who has care of the
community, and promulgated.”2 This “ordinance of reason” provides a
“directive principle” for human actions because, by being promulgated,
law “imprints” on those subject to it a rule that provides for them a
“principle of action.”3 Law thus satisfies the natural need of rational
mortals for direction by a rational principle.
That the rule of law belongs to the natural order does not, however,
exclude its also being required by man™s Fall. When “man turned his
back on God, he fell under the influence of his sensual impulses: in fact
this happens to each one individually, the more he deviates from the
path of reason, so that, after a fashion, he is likened to the beasts that
are led by the impulse of sensuality.”4 The rule of law is a means for
restoring the rule of reason, which their sinfulness leads men to reject.
And this relation between law and original sin leads Aquinas to conclude
that the power to coerce those subject to it is one of law™s distinctive
qualities. What distinguishes the law from the commands of a father is not
then, as Aristotle holds, that law rules a polis rather than a household, but
that the law has “coercive power” and can inflict penalties. Aquinas, like
Augustine, thus considers punishment intrinsic to the idea of law. The
purpose of the punishments inflicted by the law is not to punish for
punishment™s sake, for “God does not delight in punishments for their
own sake,” and punishment of this kind belongs to the time of the last

1
St. Thomas Aquinas, De Regimine Principum, in Aquinas: Selected Political Writings,
`
ed. A. P. d™Entreves, trans. J. G. Dawson (Oxford: Blackwell, 1948), 11, 13.
2
St. Thomas Aquinas, The “Summa Theologiae” of St. Thomas Aquinas, I“II, 90, 4.
3 4
Ibid., I“II, 93, 5. Ibid., I“II, 91, 6.
St. Thomas Aquinas 71
judgment. On earth, the purpose of punishment is rather “medicinal,” to
promote public peace, by curing the criminal of evil propensities and
deterring others through the fear of punishment.5
Thus, the law has two different purposes because it is imposed on two
different kinds of men. For those who have a good disposition, whether
by nature or the gift of God, paternal training and custom, which proceed
by admonition, are sufficient. The law serves such men more as a plan for
unity than as a restraint on passion. They observe the law according to
their “own free-will and not of constraint.” But those who are depraved,
prone to vice and not easily amenable to words, who have to be restrained
from evil by force and fear, are tamed by law.6 For them, the law is a
deterrent and an educational device.
But a different purpose for the punishment associated with law, a
retributive purpose, is suggested in Aquinas™ distinction between “the
guilty act” and “the consequent stain.” In this context, he says that even
when the act has ceased, the guilt remains because in injuring his
fellow men, the criminal has transgressed “the order of Divine justice,”
and he can restore this order only by paying some sort of “penal compen-
sation.” This debt of punishment lasts as long as the stain in his soul
remains. Therefore, the duration of punishment should be proportionate
not merely to the act, but to the duration of the fault, that is to say, the
punishment must be sufficient to heal the powers of the soul that had been
“disordered by the sin committed.” In addition, punishment serves “to
remove the scandal given to others, so that those who were scandalized at
the sin may be edified by the punishment.” In all these ways, punishment
helps to maintain the order of God™s justice.7
But even though law is intrinsically associated with coercion, it is not,
as for Augustine, essentially an instrument of repression. Instead, the law
is identified by Aquinas with ratio, with a plan, a measure, or principle of
order that provides rational direction for human activity. The difference
between Augustine™s view of law as an instrument of repression and
Aquinas™ emphasis on the rational quality of law arises from the differ-
ence in their understanding of the relation between God and the human
world. Whereas in the Augustinian picture, the emphasis falls on the
mystery of God™s will, the Thomistic picture emphasizes rather God™s
having willed to rule by a rational plan that is imprinted on His creatures.
In this way, Aquinas tries to preserve the Aristotelian view of the human
world as part of nature without suggesting that the human intellect is one
with the Divine Intellect.


5 6 7
Ibid., I“II, 87, 3. Ibid., I“II, 96, 5. Ibid., I“II, 87, 6.
72 The Christian revision

But in addition, Aquinas gives practical reasons for preferring govern-
ment by steady, written rules to government by personal judgments or
decrees. And these reasons echo Aristotle™s arguments: To find a few wise
men competent to frame just laws is easier than finding the many who are
capable of judging rightly in each single case. Those who make laws
consider long beforehand what laws to make, but judgment for each
single case has to be pronounced as soon as it arises, and to see what is
right by taking many instances into consideration, as the legislator can, is
easier than by considering only one solitary fact. Moreover, lawgivers in
principle judge universally and of future events, whereas those who judge
particular cases are more likely to be affected by personal interests and
feelings that pervert their judgment. For this reason, Aquinas adopts the
basic Greek conception of law as written rules, deriving lex from legere, to
read. Law, in his view, must be written so that it can be promulgated. As
little as possible should be left to judges to decide since “animated justice”
is not to be found in every man and is in any case easily distorted.8
To the objection that inflexible rules cannot take into account the
variations in particular cases, Aquinas answers that the law is like any
other measure. If there were as many measures as there are things to be
measured, the measure would be useless. So a law must be applied to
many different people and acts in order to provide the kind of direction
that human beings need in order to be unified into a community. No
legislator can take account of “every single case” in the words of a law;
but even if he could do so, he ought not to mention all cases because that
would only produce confusion. Instead, the aim should be to keep the
law simple. It should therefore be framed according to that which is “of
most common occurrence.”9
Law plays the same role in the human world as God™s plan in the
universe by articulating the pattern for the common good that is in the
mind of the good lawmaker. But the pattern for the common good is
not, as for Aristotle, identical with a pattern for the good life. In this
respect, Aquinas remains closer to Augustine than to pagan philosophy.
Although he speaks of the “good life,” he says that “the aim of a good
life on this earth is blessedness in heaven.” And therefore the ruler™s
purpose is not to lead his subjects to perfection on earth, but rather “to
promote the welfare of the community in such a way that it leads
fittingly to the happiness of heaven.” But Aquinas goes on to say that
the ruler “must insist upon the performance of all that leads thereto,”
and forbid, as far as is possible, whatever is inconsistent with this end.10


8 9 10
Ibid., I“II, 95, 1. Ibid., I“II, 96, 6. De Regimine 79.
St. Thomas Aquinas 73
On the other hand, Aquinas emphasizes a distinction between public and
private discipline that is foreign to Aristotle and which echoes Augustine™s
Christian doctrine that the earthly city must not be confused with the
heavenly one. It is not the business of the law to command every act of
virtue, but only those that are necessary for the sake of the public good.
Human law must even tolerate many deeds that are against virtue, not
because they are approved, but because it is preferable that they not be
punished. Some undesirable actions must go unpunished by law because
the imperfection of man™s condition brings it about that human beings
“would be deprived of many advantages, if all sins were strictly forbidden
and punishments appointed for them.” Thus, usury should be permitted
by law, not because it is held to be just, but to avoid interfering with the
useful activities of many persons. To the question “whether it is lawful to
borrow money under a condition of usury” Aquinas answers, “it is lawful
to make use of another™s sin for a good end.” For example, “a man who
has fallen among thieves is allowed to point out his property to them
(which they sin in taking) in order to save his life.”11
Another reason for limiting the aegis of law is that it must be “imposed
on men” of different aptitudes for virtue. There are many vices by
which the virtuous are not tempted but which the mass of men find it
impossible to resist. The law should forbid only those more grievous vices
that are damaging to others and threaten social stability, and which
can be avoided by the majority of men.12 A third reason for distinguishing
the “common good” from the “good life” is the one emphasized by
Augustine, that virtue is a matter of “interior movements, that are
hidden” and that men can judge only exterior acts. Whereas God who is
able to judge “the inward movement of wills” and may punish “the man
who wishes to slay, but slays not,” men can see only “those things that
appear.”13 Therefore, only insofar as virtue is exhibited in outward acts,
which can be observed by men and which affect the common good, is
virtue an object of law.
The most distinctive aspect of Aquinas™ idea of law appears in his
discussion of how the laws made by men are related to “natural law.”
There is a similarity to Cicero™s “natural law” insofar as, unlike Aristotle™s
“first principles” and Plato™s “Ideas” or “Forms,” which are perceived
only by philosophers, Aquinas™ natural law is “imprinted” in human
reason and is therefore evident to all human beings: “The natural law is
promulgated by the very fact that God instilled it into man™s mind so as to


11 12
Summa Theologiae, I“II, 78, 1; 78, 4. Ibid., I“II, 96, 2.
13
Ibid., I“II, 91, 4; 100, 9.
74 The Christian revision

be known by him naturally.”14 It is not, then, something that has to be
“discovered” by men; it is not a kind of knowledge that may or may not
be acquired: “the natural law, in the abstract, can nowise be blotted out
from men™s hearts.”15 But what is “imprinted” is nothing like the specific
rules that Cicero identified with natural law.
What Aquinas has to say about the natural law can be properly
understood only by remembering its metaphysical context “ the postu-
late that the universe is a cosmos ordered by a hierarchy of principles.
Eternal Reason rules this hierarchy, and all things participate in Eternal
Reason. But each does so in its own way. Because man is a rational
creature, he “partakes thereof [Eternal Reason] in an intellectual and
rational manner.” And the participation of man in the Eternal Reason
“is properly called a law, since a law is something pertaining to reason.”16

<< . .

 8
( 38)



. . >>

Copyright Design by: Sunlight webdesign