Jurisprudence and Thomas Aquinas and Treatise on the Law and Question 90, 91, 92, 93

Thomas Aquinas is probably the most significant thinker, except for St. Augustine, in the history of Roman Catholicism. He was a man of the 13th century, a student of Albertus Magnus and one of the first, and certainly the most eloquent, defender and user of Aristotle in fashioning his theological system. Aristotle had been largely ignored in the West for about a millennium, and he owed his preservation to Arabic/Muslim philosophers who rendered his work directly from Greek to Arabic. The discovery of Aristotle in the 13th century then initiated a period in Christianity known as "medieval scholasticism," where various thinkers attempted to integrate their theological and biblical training with insights from The Philosopher, as Aquinas calls him. The focus of the reading today was Questions 90-97 from the Treatise on Law, First Part of the Second Part, of the Summa Theologica.

Question 90--On the Essence of Law

I am sure you noticed the way that Aquinas argues. His disputational method first has him pose a question--"Whether Law is Something Pertaining to Reason?"--and then give a series of "Objections" to a positive answer to the question. After the objections is a "sed contra" in the Latin, meaning "on the contrary." There follows Thomas' answer to the question and then the objections are rebutted in corresponding replies to the objection. Sometimes a question is broken down into several articles or sub-questions. Thus, Thomas tries to give us a systematic work of the highest order.

Question 90 probes the subject of the essence of law. Thomas will define law as a "rule and measure of acts, whereby man is induced to act or is restrained from acting." As such it "belongs" or pertains to reason and is produced by reason (rather than the will or habit, for example). He tries to find the locus of law in the practical reason, rather than the speculative intellect. Law is, further, directed to the common good; reason is competent to make laws and it falls either to the people themselves or their viceregent to make the laws. Finally, laws must be promulgated. After this long discussion, he defines law memorably as "an ordinance of reason for the common good, made by him who has care of the community, and promulgated."

Question 91--Whether there is Natural Law in us?

After defining the nature of law, he turns to the issue of the various types of law in Question 91. He will discuss, in turn, natural law, human law and divine law. Does he also make a reference to eternal law? He uses the Scriptural passage from Romans 2 to argue for the fact that law is "imprinted" in us and is a share of the "Eternal Reason." The participation of the eternal law in the rational creature is called "natural law." Then he proceeds to observe that there is such a thing as human law--"particular determinations devised by human reason." There was a need for divine law for four reasons (see pages 62-63 of the reading). One of them is that "it is by law that man is directed how to perform his proper acts in view of his last end." Thus, there is a teaching or instructive value to law as humans pursue their "end." The use of "end" language marks the work as Aristotelian--one of the four causes of all things for Aristotle is the "final" or "teleological" cause. Aquinas here relates the final cause of humanity with the need for a divine law.

Question 92--Does the Law make us Good?

Aquinas believes that law is designed to make people better. "Every law aims at being obeyed by those who are subject to it. Consequently it is evident that the proper effect of law is to lead its subjects to their proper virture: and since fvirtue 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..." I am not sure that I easily follow his argument here. It seems, on the one hand, that law is simply a standard and measuring stick (Aquinas' definition of law as "rule and measure" is, I believe, very helpful); it is like a thermometer. The thermometer doesn't "make it hot"; it just records heat. Possibly by being a "measure" the law stimulates emulation, but I don't get that from Thomas. So, we need to probe his understanding here with patience.

Question 94--Specifics on the Natural Law

Aquinas then bores in more precisely on the natural law and considers, first, whether law is simply a habit, which is a favorite category of Aristotle in the Nicomachean Ethics. The "three things" in the soul are "power, habit and passion." He concludes that it is sort of a habit, if we understand it not as a habit "essentially" but as that "which we hold by a habit." He then asks whether natural law contains one or several precepts. He answers by focusing on the first principle of the practical reason--that is founded on the notion of the good, that is, "that good is that which all things seek after." All other precepts of the natural law are based on this one. Therefore, there are several precepts of the natural law but only one basic principle. His longest subarticle is his discussion on whether the natural law is the same for all people.

He responds with a distinction between speculative and practical reason, and then, in the practical reason, differentiates between the "general principles" of this reason and the "contingent matters." Thus, he can argue that the basic principle of natural law is the same for everyone while the speicifics of particular laws can differ from place to place. This merits discussion in class. Article Five of this question asks whether the natural law can be changed. Like the good philosopher that he is, Thomas divides the concept of change into two things (p. 69): by way of addition and by way of subtraction. The natural law may receive an addition but not a subtraction.

Question 95--Is it Useful for Humans to frame Laws?

I will conclude this mini-essay with his reflection on this question. Humans need to receive training in virtue. We have a natural aptitude for virtue but we cannot suffice for ourselves in attaining virtue. "Consequently a man needs to receive this training from another, whereby to arrive at the perfection of virtue." The kind of training which compels through fear of punishment, is the discipline of laws. Therefore, in order to have peace and virtue, it was necessary for laws to be framed. He concludes this question by asking whether every human law is derived from the natural law. He again makes a distinction: something can be derived from natural law in two ways: a conclusion from premises and by way of determination of certain generalities. He concludes that both modes of derivation are found in the human law.

Much more could be said for justice to be done to Aquinas, but that is always the case.....