Thomas Aquinas III
Prof. Bill Long 9/20/05
Reflecting in Detail on Natural Law--Question 94
I would like to begin here by noting a tension in A. It relates to a very important issue in understanding the philosophy of civil disobedience, and that is, 'What is the obligation of a citizen with respect to obeying an unjust law?' In Q.92, A.2, Rep. Obj.4, after discussing earlier in the question why the law, which consists of the four things of command, prohibition, permission and punishment, serves to make people better, Thomas speaks of a "tyrannical law." Because a tyrannical law is not according to reason it is "not a law, absolutely speaking but rather a perversion of law," yet because it is in the nature of a law, "it aims at the citizens' being good." As such it should be obeyed by citizens, and it aims to make them good, "not simply, but with respect to that particular government." Thus, he gives the impression that onerous bad laws are to be obeyed, and that this indeed is virtue since it is done in respect to the particular government.
In Q.95, when talking about whether it is useful for laws to be framed by humans (and he has some interesting things to say about the superiority of "promulgated" law to "judge-made" law), he says "Consequently every human law has just so much of the nature of law as it is derived from the law of nature. But if in any point it deflects form the law of nature, it is no longer a law but a perversion of law" (Q.95, A.2, Answer). So, my question follows, 'If something is no longer a law, need it be obeyed?' He seems to suggest that it is good to do so but, on the other hand, if it is not a law, what is there to obey?
Natural Law in Q. 94
Q.94 is a tightly-packed question consisting of six articles. In A. 1 he differentiates, in Aristotelian fashion, between a habit and natural law. Since the natural law is imprinted in infants and the damned, who do not have habits for good, it is different from a habit. 94.2, however, is a significant article, discussing the several precepts of natural law. First, A argues that the precepts of natural law stand in relation to practical matters as the first principles to matters of demonstration. He means by this that just as you have certain 'principles' of speculative reason, like the law of non-contradiction, you also have 'principles' of natural law. He calls these principles "self-evident," either in themselves ("man is a rational being") or in relation to us ("an angel is not cicumscriptively in a place"). The three principles of natural law are these:
1. Good is to be done and pursued, and evil is to be avoided.
2. (Pertaining to the similarity we share with animals), we pursue procreation and the education of offspring.
3. Humans have an inclination to know the truth about God and to live in Society. Other things that pertain to this principle are shunning ignorance and avoiding offending those among whom we live.
In 94.4 Aquinas pursues the question of whether or not the natural law is the same in all people. Since all humans, according to A, are naturally inclined to act according to reason it would seem that natural law would be the same for all. Again, however, the distinction between speculative reason and practical reason aids him. Speculative reason is busied with "necessary things, which cannot be otherwise than they are." But, practical reason is busied with contingent matters, and "consequently, althought there is necessity in the general principles, the more we descend to matters of detail, the more frequently we encounter defects." In matters of action, which natural law encompasses, "Truth and or practical rectitude is not the same for all, as to matters of detail, but only as to general principles..." Neither is "truth or rectitude" the same for all nor, where it is the same, is it equally known by all. He then gives the example of a priniciple that seems to be universal--that goods entrusted to another should be restored to their owner. "Now this is true for the majority of cases: but it may happen in a particular case that it would be injurious, and therefore, unreasonable, to restore goods held in trust; for instance if they are claimed for the purpose fo fighting against one's country" (we hear the Republic dimly here). And, as the principle descends to more and more detail (regarding guarantees or security that must be given for goods held in trust) there will be more and more disagreement. This is not an argument against the universality of natural law: it only suggests that as you get further and further away from the basic principles, there will be more and more difference in opinion.
"Can the natural law be changed?" is the subject of 94.5. Thomas bores in on the question and answers that natural law may be added to but not subtracted from. To be more specific, natural law can be subtracted from only in its "secondary principles" (but is that then to be called natural law?) but not in its "first principles." Natural law may be added to "for the benefit of human life" and is seen to be supplemented "both by the Divine law and by human laws." Thomas has to explain some difficult things in Scripture, howwever, as when God commanded Abraham to slay Isaac or told the prophet Hosea to take a "wife of fornication." How does A explain? "By the command of God, death can be invlicted on any man, guilty or innocent, without any injustice whatsoever." This extenuation of God is not, I presume, an addition to the natural law.
Let's deal much more briefly with Q.95, concerning whether it was useful for humans to frame laws. Two interesting points emerge here. First, it is useful for laws to be framed by humans because, according to Isidore, "laws were made that in fear thereof human audacity might be held in check, that innocence might be safeguarded, and that the dread of punishment might prevent the wicked from doing harm." These purposes of law: exemplary, warning, deterrent, always enter into subsequent discussions on this subject. Law, as it were, perfects us, training us to the perfection of virtue. We need to receive training from another in the perfection of virtue, even though some (probably a few) seemingly are able to perfect their virtue without the instruction of the laws.
Second, Thomas makes an interesting distinction between enacted and judge-made law (Reply Obj. 2). It is better for things to be regulated by law than left to be decided by judges. Why? (1) It is easier to find the few wise people to make laws than the many wise you would need to interpret them; (2) Those who make laws deliberate longer before making them than judges do when interpreting them; and (3) Lawgivers judge in the abstract, with no particular persons in mind, while judges are often subject to the whims of the moment and their emotions toward particular parties. Thus, "inanimate" justice is to be preferred to "animated" justice. Agree?
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