LINEBURG


<< . .

 9
( 38)



. . >>

Not all that is in the Divine Mind is made known to man in this way.
Some things are made known by direct revelation, and this is the Divine
Law. And much, of course, can never be known by man. But as human
beings possess rational understanding, they are capable of being aware of
the cosmic hierarchy, their place in it, and of the “end” to which they
ought to direct their activities: “the rational creature is subject to Divine
providence in the most excellent way, in so far as it partakes of a share
of providence, by being provident both for itself and for others. Where-
fore it has a share of the Eternal Reason, whereby it has a natural
inclination to its proper act and end: and this participation of the eternal
law in the rational creature is called the natural law.”17
In other words, the natural law is the cosmic link between the positive
laws made by men that rule earthly cities and the Divine Law. This link
or role does not make the natural law either a standard to which enact-
ments have to conform in order to qualify as law, or a definition of the
particular purposes that positive laws should pursue. Nothing in the way
of “natural rights” is implied by Aquinas™ doctrine of natural law. It
establishes only that there is an eternal cosmic foundation for the laws
made by human beings and that laws are consequently not just human
acts of will: “Every act of reason and will in us is based on that which is
according to nature. . . for every act of reasoning is based on principles
that are known naturally, and every act of appetite in respect of the means
is derived from the natural appetite in respect of the last end. Accordingly
the first direction of our acts to their end must needs be in virtue of the
natural law.”18 To recognize natural law means recognizing that human
laws, for all their variety, changeability, and uncertainty, are part of

14 15
Ibid., I“II, 90, 4; 91, 2. Ibid., I“II, 94, 6.
16 17 18
Ibid., I“II, 91, 2. Ibid., I“II, 91, 2. Ibid., I“II, 91, 2.
St. Thomas Aquinas 75
God™s dispensation and have a fixed place in the natural order. That is
why all laws include natural law, just as all buildings include their
foundation stones. When Aquinas says that “every human law has just
so much of the nature of law, as is derived from the law a nature,”19 he
is defining law by its relation to the cosmic order and to the different
operations of human reason. His statement is entirely analogous to saying
that a structure has the character of a house insofar as it provides shelter,
or that something is a part insofar as it is derived from a whole. And just
as the definition of a house does not indicate whether a Georgian country
house is superior to a high-rise block of flats, so the relation of positive
law to natural law does not provide any ground for distinguishing better
from worse laws. But natural law does enable men to distinguish the rules
of a civil association from the rules of other kinds of association, because
it enables them to recognize what is the proper object of law and its place
in shaping the human world as part of the natural order.
The importance of natural law in the Thomistic picture rests on the
sharp distinction that Aquinas makes between theoretical and practical
reason and between higher and lower principles of practical reason. The
natural law is superior to the laws made by men to order the human world
because it contains the first principles of practical reason. When Aquinas
says that every law is derived from the natural law, he is saying that
legislation is an activity of practical reason, which means that lawmaking
is directed to action in this world and is a self-conscious rational choice as
opposed to the instinctive behavior of animals. Because man alone among
living beings can understand his end and the relation between his actions
and that end, the power of comprehension implanted in him by nature is,
Aquinas says, properly described as the lex naturalis, whereas in other
animals we speak instead of a natural “instinct.”
Although Aquinas stressed the uncertainty and variability of human
law, by anchoring it through natural law to the eternal order of the
universe, he reconciled the rational character given to law by the pagan
philosophy of Aristotle with the Christian doctrine that the universe is
ruled by a Creator whose will cannot be known by his creatures. Like
Augustine, he insists that what pertains to the earthly city has to be
distinguished sharply from what pertains to the heavenly city. But
Aquinas does not conclude, as Augustine had, that power rather than
reason is the essence of law.
The first precept of the natural law is that “good is to be done and
ensued, and evil is to be avoided.” Or, in other words, whatever the
practical reason naturally understands to be good is to be pursued. What

19
Ibid., I“II, 95, 2.
76 The Christian revision

is good for man is that for which he has a natural inclination. And this
precept is not a mere tautology because the “natural desires” of man are
given not by his will or instincts, but by his place in the cosmic hierarchy
of being. With all other substances, he has in common an inclination to
seek the preservation of his nature, and therefore, “whatever is a means
of preserving human life, and of warding off its obstacles, belongs to the
natural law.” Next, man shares with other animals an inclination to
reproduce and bring up offspring. Therefore, whatever is a means to
perpetuating the human species belongs to the natural law. On the other
hand, man has an inclination that distinguishes human rational beings,
that is, to perfect his rational powers, which means that he wants to know
the truth about God and to live in society. All virtuous acts belong to the
natural law because “whatever pertains to this inclination belongs to
the natural law.”20 In short, the natural law denotes the natural needs
of man that can be perceived by human reason.
But no particular practical conclusions necessarily follow. Aquinas
explains and repeatedly emphasizes that although we possess by nature
“knowledge of certain general principles,” we do not thereby know “each
single truth” contained within these principles. What is specifically re-
quired by the principles of natural law, that is to say, all questions about
particular positive laws, remains to be answered by practical reason,
which cannot arrive at indisputable answers. The natural law requires
that all laws should be designed to achieve the common good, to prohibit
stealing and killing, and to insure the honoring of one™s father and
mother. The reason of every man, “of itself,” knows these principles to
be undeniable because, like “Every whole is greater than its parts,” they are
definitions of the social life that are essential to the perfection of man™s
nature.21 But what actions are required by these principles remain for
Aquinas “ unlike Cicero “ to be decided as a practical question.
Although the prohibition of stealing is a self-evident principle of nat-
ural law, even whether private property is desirable has to be established.
And the arguments that Aquinas offers for private property are all
practical: that each man looks after his own more carefully than after
what is common to many or to all; that human affairs are conducted in a
more orderly fashion when each man is made responsible for some
particular task because confusion arises where anyone may take charge
of anything indeterminately; and that peace is better preserved when each
man knows what belongs to him, whereas quarrels easily arise among
people who share in common without a clear division of goods. None of
these arguments is indisputable because they cannot be deduced from

20 21
Ibid., I“II, 94, 2. Ibid., I“II, 91, 3; 94, 2.
St. Thomas Aquinas 77
natural law. The desirability of private property follows from natural law
by “determination” because it cannot be demonstrated as a matter of
logical implication from first principles. It is a conclusion that is more
plausible or persuasive than any proposed alternative.
The content of laws about property is even more disputable than the
general conclusion that private property is desirable because the connec-
tion between the particular laws governing property and natural law is
even more remote. Aquinas makes the same argument as Aristotle: Since
law is concerned with matters that are “singular and contingent” and
might always be other than they are, there can be no certainty about
which laws are most desirable. Speculative reason can reach indisputable
conclusions because it deals with unchanging things, but human laws
“cannot have that inerrancy that belongs to the demonstrated conclusions
of science.”22 While this does not prevent decisions about what laws are
desirable from being rational, it does oblige men to make and use law in
the manner that is appropriate to practical matters. As the natural law
“cannot be applied to all men in the same way on account of the
great variety of human affairs,”23 there is bound to be great diversity in
positive laws. In short, far from being a set of commands, natural law in
the Thomistic sense leaves the question of the right laws for any time or
place necessarily disputable. The few conclusions that can be deduced
from natural law, such as the prohibition of unwarranted murder that
follows indisputably from the principle that one should do no harm,
Aquinas describes as “the law of nations,” holding for all men, in contrast
to the variety of civil law, which is derived from the law of nature “by way
of determination.”24 Natural law is unchanging because it requires
that justice should be preserved, which is a “never-failing principle.”25
But just what laws justice requires cannot be known with certainty and is
bound to change with time and place.
That Aquinas™ natural law has not always been understood in this
fashion is partly due to a tendency to assimilate his doctrine to Cicero™s
very different idea of natural law. But misconceptions are encouraged also
by the ambiguity of certain passages. Aquinas speaks of the natural law as
a “participation” of human reason in Divine Reason that gives men
knowledge of “certain general principles.”26 He also says that for “the
volition of what is commanded” to have the nature of law, “it needs to be
in accord with some rule of reason” and that if the sovereign™s will is
not in accord with reason, it “would savour of lawlessness rather than
of law.”27

22 23 24
Ibid., I“II, 91, 3. Ibid., I“II, 95, 2. Ibid., I“II, 95, 4; 95, 2
25 26 27
Ibid., I“II, 100, 8. Ibid., I“II, 91, 3. Ibid., I“II, 90, 1.
78 The Christian revision

In the discussion of Divine Law, he says that laws in conflict with
Divine Law “must nowise be observed.”28 But he does not explain how
disagreements about whether a law conflicts with Divine Law can be
settled or how such disagreements can be avoided. In his discussion of
obedience, he says that “Man is bound to obey secular princes in so far
as this is required by the order of justice. Wherefore if the prince™s
authority is not just but usurped, or if he commands what is unjust, his
subjects are not bound to obey him, except perhaps accidentally, in order
to avoid scandal or some particular danger.”29 If such passages are read
without regard to Aquinas™ understanding of the relation between man
and the cosmic order, between Christian faith and knowledge, and be-
tween theoretical and practical reasoning, they might suggest, as many
have supposed, that natural law provides a substantive prescription for
legislative enactments. That this is not what Aquinas meant is definitely
established by what he says about the obligation to obey the law.
It should be noticed, first of all, that although Aquinas describes a law
that is not directed to the common interest as “tyrannical” and a “perver-
sion of law” because it is “not being according to reason,” and although
he even declares it to be “not a law,” he insists that it nevertheless has
“something in the nature of a law.” For even a tyrannical law, merely by
virtue of being “an ordinance made by a superior to his subjects, and aims
at being obeyed by them,” contributes to making those who are subject to
it “good.” What reconciles Aquinas™ apparently contradictory remarks is
a distinction between two senses of “good.” Although the “proper effect”
of law is to “lead its subjects to their proper virtue,” it may do so “simply”
or only “in some particular respect.” If the aim of the lawgiver is the true
good, his subjects will be made good “simply.” But even if he intends to
secure no more than what is pleasurable or useful to himself, even if his
laws are “in opposition to Divine justice,” still they will make his subjects
good relatively with respect to a “particular government,” insofar as they
unify his subjects into an orderly community.30
Aquinas agrees with Augustine that just as it is reasonable to call a man
“a good robber, because he works in a way that is adapted to his end,” so
we must recognize that even a bad law, insofar as it is the duly promul-
gated command of the ruler to his subjects, has something of the character
of a law and therefore contributes to the good of those governed by it.
That is why it is entirely consistent for Aquinas to say that “A tyrannical
law, through not being according to reason, is not a law, absolutely
speaking, but rather a perversion of law; and yet in so far as it is
something in the nature of a law, it. . . aims at being obeyed by them,

28 29 30
Ibid., I“II, 96, 4. Ibid., I“II, 104, 6. Ibid., I“II, 92, 1.
St. Thomas Aquinas 79
which is to make them good not simply, but with respect to that particular
government.”31 In obeying even an unjust law made by their acknow-
ledged ruler, men are subordinated to a higher order by recognizing
themselves as members of their earthly city. The obligation to obey the
law, even when it is thought to be undesirable, follows from recognizing
that men need to be subject to some law “ just as the “irascible and
concupiscible faculties” should obey reason, so every subject should obey
his ruler. Therefore, even an unjust law, insofar as it “retains some
appearance of law, though being framed by one who is in power, is
derived from the eternal law; since all power is from the Lord
God. . . .”32 The obligation to obey the law does not rest on its being
desirable, but on its having been made by an acknowledged ruler.
Sedition is condemned by Aquinas as “a kind of discord, not between
individuals, but between the parts of a multitude.” Sedition destroys
“the unity of law and common good,” and therefore it is a “mortal sin”
whose gravity is proportionate to the degree in which “the common good
which it assails surpasses the private good which is assailed by strife.”33
Although sedition against a tyrant is not ruled out, this does not contra-
dict what Aquinas says about the obligation to obey a “tyrannical law”
because he uses “tyranny” in two senses. One sense describes a ruler who
makes laws that are not directed to the common good; in the other sense a
tyrant is one who rules without law, by arbitrary orders. Such arbitrary
tyrants deliberately try to prevent their subjects from establishing even
ties of friendship because they fear that friendship might lead to plots.
They try to prevent subjects not only from becoming virtuous lest they
grow restive under unjust laws, but also from becoming rich or powerful
lest they grow strong enough to oppose the tyrant™s will. In other words,
such tyrants deliberately try to prevent the orderly communal life that
government exists to promote. What justifies sedition against such a
tyrant is not that his laws are undesirable, but that he rules without law,
according to “unbridled passion” rather than reason, and therefore his
rule “in no way differs from a beast.” All is uncertain and security is
absent, for “no reliance can be placed upon that which depends upon the
will, or rather the caprice, of another.”34 Sedition against a tyrant in this
sense does not destroy an established order because here the tyrant is
incapable of maintaining order. The tyrant himself is “guilty of sedition,
since he encourages discord and sedition among his subjects, that he
may lord over them more securely.”35 Nevertheless, even in this context


31 32 33
Ibid., I“II, 92, 1. Ibid., I“II, 93, 3. Ibid., I“II, 42, 2.
34 35
De Regimine 17, 19. Summa Theologiae I“II, 42, 2.
80 The Christian revision

Aquinas introduces a serious qualification on the justification for sedi-
tion. He points out that it must be considered whether the disturbance
created by sedition might not be still greater than the disorder prevailing
under tyranny.
In other words, for Aquinas the maintenance of an orderly communal
life always takes precedence over promoting a more desirable order.
Order cannot exist where there is no law because order is produced by
reason, and law is the rule of reason. There can be no doubt that Aquinas
rests the obligation to obey law not on its justice, but on its having
been issued by the sovereign to which the individual is subject. He
expresses the same view indirectly in his discussion of whether the subjects
of one city are bound by the laws of another, where he concludes that “the
subjects of one city or kingdom are not bound by the laws of the sovereign
of another city or kingdom, since they are not subject to his authority.”
And similarly, the subjects of a given official such as a proconsul are
obliged to obey his commands only in those matters where the subject is
ruled by a superior power.36
In his most explicit and complete discussion of the proper response to a
tyranny, De Regimine Principum, Aquinas warns that the attempt to
overthrow a tyranny may bring evils far worse than those that it tries
to cure: “If the tyranny be not excessive, it is certainly wiser to tolerate it
in limited measure, at least for a time, rather than to run the risk of even
greater perils by opposing it.” For one thing, the attempt may fail and
“only succeed in rousing the tyrant to greater savagery.” But even if the
revolt succeeds, the very fact of revolt “breeds strife and grave discord
among the populace, either in the moment of rebellion or after his
overthrow when opinion in the community is factiously divided as to
the new form of government.” Or if the rebels call on another ruler to
help them, he may seize power and, because he is afraid of “sharing the
fate of his predecessor,” he may proceed with “even greater severity
against his new subjects.” The attempt to overthrow a tyrant may intro-
duce a new tyrant who is worse than the old, who, far from abandoning
his predecessor™s cruelties, only reenforces them. Aquinas reminds his
readers of the old woman in Syracuse who, while all other subjects were
praying for the death of the tyrant Dionysius, prayed that he would
outlive her; and when asked by the tyrant to explain, she replied that
when she was a girl, she lived under a tyrant whose death was desired. He
was slain and succeeded by another who was worse; again, his death was
welcomed, but he was succeeded by Dionysius, who was still worse. And


36
Ibid., I“II, 96, 5.
St. Thomas Aquinas 81
she felt certain that if Dionysius were removed, he would be succeeded by
an even more terrible tyrant.37
An additional reason against the argument that a tyrant may become so
intolerable that it would be “an act of virtue for the more powerful
citizens” to kill him, even at the risk of dying to liberate their country,
is found by Aquinas in Apostolic teaching: “For Peter teaches us to obey
not only good and temperate rulers, but also to bear reverence to those
who are ill-disposed.” Thus, the Christians bore the persecution of many
Roman emperors with “courage and resignation.” The reason why Aioth
(Ehud) was not condemned for his assassination of Eglon was that he
did not kill “a legitimate, though tyrannical, ruler of the people,” but an
enemy. And on the same reasoning, “those who slew Joas, King of Juda,
were put to death, even though he was an apostate.” Aquinas concludes
that “It would indeed be dangerous, both for the community and for its
rulers, if individuals were, upon private initiative,” to assassinate those
who were thought to govern tyrannically. Assassins are more commonly
unjust men who slay just rulers; and moreover, they may truthfully claim
to have suffered unbearably because “the rule of a just king is no less
burdensome to the evil than that of a tyrant.” In short, it is an act of
“presumption” for individuals to take it into their hands to decide
whether their ruler is a tyrant who must be deposed.38
The better remedy is for those who have the right to appoint the ruler to
remove him: “Where a community has the right to elect a ruler for itself, it
would not be contrary to justice for that community to depose the king
whom it has elected, nor to curb his power should he abuse it to play the
tyrant.” And in such a case, the community is not guilty of disloyalty even
though they had promised “constant fealty” because the tyrant™s failure to
discharge his duties absolves his subjects of their oath to him. But if the
king was appointed by some superior, then the right to depose him
belongs with that superior. And if all else fails, there is always recourse
to “God the King of all. . . For it is in His power to turn the cruel heart of
a tyrant to gentleness.”39
There is no suggestion whatsoever in Aquinas™ discussion of tyranny
that a subject may appeal to the natural law to absolve them of an
obligation to obey the law of their sovereign. The emphasis falls rather
on the dangers of renouncing an obligation to obey duly promulgated
law. While Aquinas suggests that the people who elect a king may have a
constitutional right to depose him, he does not deny that a king who fails
to perform his duties properly is a “legitimate” ruler. And his remark
about how burdensome a just ruler may be to the unjust man carries a

37 38 39
De Regimine 29, 31. Ibid., 31. Ibid., 31, 33.
82 The Christian revision

clear warning that there can be no certainty about whether a ruler is a
tyrant. That is a practical question, and about practical questions good
men may always disagree. Although Aquinas concedes that there may be
some grounds for renouncing political obligation where there is no rule of
law, he speaks more about the dangers than the benefits of rebellion. Even
where there is doubt about whether the ruler™s ordinances are rightfully
within his power or apply equally to all, which characteristic true laws
must have, still it might be well to observe such enactments “in order to
avoid scandal or disturbance.”40 In all these different contexts, Aquinas
makes it clear that his doctrine of natural law does not give subjects a
right to renounce their obligation to obey whatever enactment they
choose to consider “unjust.” He never identifies lex with Jus.
What Aquinas says about the obligation to obey the law postulates a
distinction between the authority and the justice of law. But Aquinas
makes no such distinction explicitly. Nor does he have a distinct concept
of authority as English translations of Aquinas suggest by using the
word “authority.” Nevertheless, there are intimations of a concept of
authority such as Hobbes developed. If a man makes a law that “goes
beyond the power committed to him,” Aquinas says, that law is an act of
violence rather than a law.41 He describes the sovereign as the ultimate
source of law when he says that the sovereign is necessarily exempt
from the coercive power of the law since “no man is coerced by himself,
and law has no coercive power save from the authority of the sovereign.”
He points out also that the sovereign must be “above the law” because he
decides whether or not to change the law and can “dispense in it according
to time and place.”42 In all these ways, Aquinas™ sovereign is he who has
the last word about the making of law. And the only qualification is that
the law must be “promulgated” for the obvious reason that a law can be
binding only for those who are aware of it: “in order that a law obtain the
binding force which is proper to a law, it must needs be applied to the men
who have to be ruled by it. Such application is made by its being notified
to them by promulgation, where promulgation is necessary for the law to
obtain its force.”43 Nor is the sovereign™s “authority” qualified by the
requirement that the sovereign ought to oblige himself to observe the law
because “whatever law a man makes for another, he should keep himself.”
For the sovereign must observe the law “of his own free will and not of
constraint,” because no man is above the sovereign. Only God can judge
the sovereign for ignoring the law.44


40 41
Summa Theologiae, I“II, 96, 4. Ibid., I“II, 96, 4.
42 43 44
Ibid., I“II, 96, 5. Ibid., I“II, 90, 4. Ibid., I“II, 96, 5.
St. Thomas Aquinas 83
It does not follow from Aquinas™ insistence on an obligation to obey
the law when it is duly promulgated that the distinction between just
and unjust laws cannot or should not be made. He even says that whereas
just laws “have the power of binding in conscience from the eternal law
from which they are derived, according to Prov. viii.15, By Me kings
reign, and lawgivers decree just things,” an unjust law is not binding in
conscience. But the fact that an unjust law is not binding in conscience
does not by itself destroy the obligation to obey it. Although Aquinas
identifies the rule of law with the rule of reason in the universe, which

<< . .

 9
( 38)



. . >>

Copyright Design by: Sunlight webdesign