Thomas Aquinas V
Prof. Bill Long 9/22/05
Questions 92 and 95
Q. 92 only has two articles, but again they are "vintage" Thomas, especially the first. He asks, "Whether an Effect of Law Is to Make Men Good?" The answer should be obvious from what I have previously said, but Thomas wants to march us through our paces. Since a law is a dictate of reason (practical reason), it is to be obeyed by its subjects. Virtue in a subordinate consists in being well-regulated, which means that we obey the institutions or prescriptions that are set over us. Thus, "every law aims at being obeyed by those who are subject to it." And
"consequently, it is evident that the proper effect of law is to lead its subjects to their proper virtue: and since virtue is that which makes its subject good, it follows that the proper effect of law is to make those to whom it is given, good, either simply or in some particular respect" (Q.92.1. answer).
He introduces this last phrase ("or in some particular respect") to deal with the problem of what a person does when the lawgiver appears to require something unjust. He says:
"If...the intention of the lawgiver is fixed on that which is not simply good, but useful or pleasurable to himself, or in opposition to Divine justice; then the law does not make men good simply, but in respet to that particular government" (Id.)
This means that the effect of following an unjust law is to make you good with respect to a given political regime, because they require it of you. Does A say or imply, then, that obedience to a bad law leads you to the end of human life--happiness? He is vague on this, but the Reply Obj. 4 goes into it in more detail. Even though a tyrannical law is a perversion of law, "yet in so far as it is something in the nature of a law, it aims at the citizens' being good." Thus, if you obey, you are being good, only however in respect to that specific regime.
Q.92.2 can be dealt with more quickly. He simply asks whether the words command, prohibition, permission and punishment are the four proper terms to encompass the whole of law. The authoritative text he quotes in the "sed contra" is Isidore of Seville, who talks about laws either permiting, forbidding or punishing something. When Thomas gives his more specific answer he correlates human acts with the way that law functions. There are three types of human acts: (1) acts of virtue; (2) acts of vice: and (3) indifferent acts. With respect to the first law is a command; the second, a prohibition; the third, a permission. And, "it is the fear of punishment that law makes use of in order to ensure obedience: in which respet punishment is an effect of law." I think these four terms that A identifies are helpful to have in mind to describe the various roles that specific statutes play.
As I said earlier, QQ.93-97 deal with the four types of law in more detail. Q.95 treats the human law in four articles, only two of which are given in our reading. He asks, "Whether it Was Useful for Laws to Be Framed by Men?" The question is interesting because, as you may recall, Plato in Republic IV gives the impression that laws are basically useless: they can be ignored by the just person because s/he is harmoniously inclined to do the right thing, and they are ignored by the unjust person, because they are inclined to do differently. Thomas argues, not unexpectedly, that the laws are useful. Again, Isidore is his authority. "Laws were made that in fear thereof human audacity might be held in check, that innocence might be safeguarded in the midst of wickedness, and that the dread of punishment might prevent the wicked from doing harm."
As usual, Thomas reads Isidore through the prism of his own philosophy. Since the goal of life is happiness, and in order to get to this happiness we must have perfection of virtue, we need various kinds of training to help perfect us in this virtue. Just as we are helped by food and clothing to live better, so we are helped in virtue by withdrawing us from undue pleasures to which we are inclined. The laws are a means by which we are weaned from these pleasures and led to virtue. Some young people are inclined to virtue by their natural disposition ("the gift of God"), but most of us need a sterner taskmaster. Or, in A's words:
"it was necessary for such to be restrained from evil by force and fear, in order that, at least, they might desist from evil-doing, and leave others in peace, and that they themselves, by being habituated in this way, might be brought to do willingly what hitherrto they did from fear, and thus become virtuous. Now this kind of training, which compels through fear of punishment, is the discipline of laws" (Q.95.1 answer).
You might want to ask yourself what it is in the laws that does this for you. Are we disciplined in virtue by reading the Oregon Revised Statutes, for example? Or is he referring to something else?
Finally, he asks, "Whether Every Human Law Is Derived from the Natural Law?" His answer is "yes and no." First he lays down his basic principle: "every human law has just so much of the nature of law, as it is derived from the law of nature" (Q.95.2, answer). But then he goes on to specify his answer more precisely. Things may be derived from the natural law in two ways: as a conclusion from premises (if x is true, then y is also true) or "by way of determination of certain generalities." An example of the latter is when a craftsman needs to determine the general form of a house to some particular shape. In the former case, all human laws are derived from the natural law. An example would be: X (one should do no harm) implies Y (one must not kill). If you derive your law from premises, then, it is from the natural law. However, if you do it "by way of determination" you would argue that the evildoer must be punished, but the mode of punishment is not necessarily derived from the law of nature. And, those laws which are derived in this second way "have no other force than that of human law." This would allow people to argue that various forms of punishment, such as torture, are against the law of nature even though they might be permitted in a specific regime.
This brief introduction to Thomas should not only convince you that there is a lot to say for the natural law approach to law but also that the study of Thomas, as you have seen, is quite an undertaking!
Copyright © 2004-2007 William R. Long