Aquinas on the Relationship of Natural Law and Human Law - Howard I. Schwartz Ph.D.
I think the reason can be found in the difference between natural law and divine law. To eat human flesh violates natural law, but not divine law (the Old perhaps, and perhaps get a civil divorce, but she may not undo the marriage and . The dynamic relation between natural law, the theory of an objective moral order (or unwritten norms for human actions), and positive law, the legislation or. (q90, a1) Because the rule and measure of human actions is reason, law has an essential relation to reason; in the first place to divine reason; in the second.
But it must be noted that something may be derived from the natural law in two ways: The first way is like to that by which, in sciences, demonstrated conclusions are drawn from the principles: Some things are therefore derived from the general principles of the natural law, by way of conclusions; e. ST I-II 95, 2 [my paragraph break] To summarize, the human law includes reasoned conclusions from original principles, as for example, when one deduces that one must not kill from the principle that one must not harm another 2 this is an odd example since one might argue that the prhohibition on murder is primary and the rule do no harm arises secondarily or it fill in details and specificity not given in the natural law, as for example, determining types of punishments for crimes that are identified.
It should be noted that human law is not always right or good, according to Aquinas. Human reason sometimes makes mistakes. This is one of several reasons that Aquinas says human law must be complemented by the eternal law.
The eternal law has all instances worked out in detail and thus can validate and even correct human law which is arrived at through reason.
Thus we have to bear in mind the possibility that human judgment can be mistaken and different people sometimes form different judgments about what is appropriate ST I-II, 91, 4 and I,1. To align with natural law, therefore, is also to align with the Eternal law. Bix takes conceptual analysis in law to be primarily concerned with 3 and 4.
In any event, conceptual analysis of law remains an important, if controversial, project in contemporary legal theory. Conceptual theories of law have traditionally been characterized in terms of their posture towards the Overlap Thesis. Thus, conceptual theories of law have traditionally been divided into two main categories: Classical Natural Law Theory All forms of natural law theory subscribe to the Overlap Thesis, which asserts that there is some kind of non-conventional relation between law and morality.
According to this view, then, the notion of law cannot be fully articulated without some reference to moral notions. Though the Overlap Thesis may seem unambiguous, there are a number of different ways in which it can be interpreted.
The strongest construction of the Overlap Thesis forms the foundation for the classical naturalism of Aquinas and Blackstone. Aquinas distinguishes four kinds of law: Eternal law is comprised of those laws that govern the nature of an eternal universe; as Susan Dimock22 puts it, one can "think of eternal law as comprising all those scientific physical, chemical, biological, psychological, etc.
One cannot discover divine law by natural reason alone; the precepts of divine law are disclosed only through divine revelation.
The natural law is comprised of those precepts of the eternal law that govern the behavior of beings possessing reason and free will. The first precept of the natural law, according to Aquinas, is the somewhat vacuous imperative to do good and avoid evil. Here it is worth noting that Aquinas holds a natural law theory of morality: Good and evil are thus both objective and universal. But Aquinas is also a natural law legal theorist.
On his view, a human law that is, that which is promulgated by human beings is valid only insofar as its content conforms to the content of the natural law; as Aquinas puts the point: To paraphrase Augustine's famous remark, an unjust law is really no law at all.
The idea that a norm that does not conform to the natural law cannot be legally valid is the defining thesis of conceptual naturalism. As William Blackstone describes the thesis, "This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other.
It is binding over all the globe, in all countries, and at all times: In this passage, Blackstone articulates the two claims that constitute the theoretical core of conceptual naturalism: It should be noted that classical naturalism is consistent with allowing a substantial role to human beings in the manufacture of law.
While the classical naturalist seems committed to the claim that the law necessarily incorporates all moral principles, this claim does not imply that the law is exhausted by the set of moral principles. There will still be coordination problems e. Thus, the classical naturalist does not deny that human beings have considerable discretion in creating natural law. Rather she claims only that such discretion is necessarily limited by moral norms: Critics of conceptual naturalism have raised a number of objections to this view.
First, it has often been pointed out that, contra Augustine, unjust laws are all-too- frequently enforced against persons. As Austin petulantly put the point: Now, to say that human laws which conflict with the Divine law are not binding, that is to say, are not laws, is to talk stark nonsense. The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals.
Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God, who has commanded that human lawgivers shall not prohibit acts which have no evil consequences, the Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have impugned the validity Austin Of course, as Brian Bix points out, the argument does little work for Austin because it is always possible for a court to enforce a law against a person that does not satisfy Austin's own theory of legal validity.
Another frequently expressed worry is that conceptual naturalism undermines the possibility of moral criticism of the law; inasmuch as conformity with natural law is a necessary condition for legal validity, all valid law is, by definition, morally just. Thus, on this line of reasoning, the legal validity of a norm necessarily entails its moral justice. As Jules Coleman and Jeffrey Murphy18 put the point: The important things [conceptual naturalism] supposedly allows us to do e.
If we really want to think about the law from the moral point of view, it may obscure the task if we see law and morality as essentially linked in some way. Moral criticism and reform of law may be aided by an initial moral skepticism about the law. There are a couple of problems with this line of objection. First, conceptual naturalism does not foreclose criticism of those norms that are being enforced by a society as law. Insofar as it can plausibly be claimed that the content of a norm being enforced by society as law does not conform to the natural law, this is a legitimate ground of moral criticism: Thus, the state commits wrong by enforcing that norm against private citizens.
Conceptual jurisprudence assumes the existence of a core of social practices constituting law that requires a conceptual explanation. The project motivating conceptual jurisprudence, then, is to articulate the concept of law in a way that accounts for these pre-existing social practices. A conceptual theory of law can legitimately be criticized for its failure to adequately account for the pre-existing data, as it were; but it cannot legitimately be criticized for either its normative quality or its practical implications.
A more interesting line of argument has recently been taken up by Brian Bix Following John FinnisBix rejects the interpretation of Aquinas and Blackstone as conceptual naturalists, arguing instead that the claim that an unjust law is not a law should not be taken literally: A more reasonable interpretation of statements like "an unjust law is no law at all" is that unjust laws are not laws "in the fullest sense.
Similarly, to say that an unjust law is "not really law" may only be to point out that it does not carry the same moral force or offer the same reasons for action as laws consistent with "higher law" Bix Nevertheless, while a plausible case can be made in favor of Bix's view, the long history of construing Aquinas and Blackstone as conceptual naturalists, along with its pedagogical value in developing other theories of law, ensures that this practice is likely, for better or worse, to continue indefinitely.
Like Bix, Finnis believes that the naturalism of Aquinas and Blackstone should not be construed as a conceptual account of the existence conditions for law.
According to Finnis, the classical naturalists were not concerned with giving a conceptual account of legal validity; rather they were concerned with explaining the moral force of law: On Finnis's view of the Overlap Thesis, the essential function of law is to provide a justification for state coercion a view he shares with Ronald Dworkin. Accordingly, an unjust law can be legally valid, but it cannot provide an adequate justification for use of the state coercive power and is hence not obligatory in the fullest sense; thus, an unjust law fails to realize the moral ideals implicit in the concept of law.
An unjust law, on this view, is legally binding, but is not fully law. Like classical naturalism, Finnis's naturalism is both an ethical theory and a theory of law. Finnis distinguishes a number of equally valuable basic goods: Each of these goods, according to Finnis, has intrinsic value in the sense that it should, given human nature, be valued for its own sake and not merely for the sake of some other good it can assist in bringing about.
Moreover, each of these goods is universal in the sense that it governs all human cultures at all times. The point of moral principles, on this view, is to give ethical structure to the pursuit of these basic goods; moral principles enable us to select among competing goods and to define what a human being can permissibly do in pursuit of a basic good.
On Finnis's view, the conceptual point of law is to facilitate the common good by providing authoritative rules that solve coordination problems that arise in connection with the common pursuit of these basic goods. Thus, Finnis sums up his theory of law as follows: Again, it bears emphasizing that Finnis takes care to deny that there is any necessary moral test for legal validity: Nevertheless, Finnis believes that to the extent that a norm fails to satisfy these conditions, it likewise fails to fully manifest the nature of law and thereby fails to fully obligate the citizen-subject of the law.
Unjust laws may obligate in a technical legal sense, on Finnis's view, but they may fail to provide moral reasons for action of the sort that it is the point of legal authority to provide. Thus, Finnis argues that "a ruler's use of authority is radically defective if he exploits his opportunities by making stipulations intended by him not for the common good but for his own or his friends' or party's or faction's advantage, or out of malice against some person or group" Finnis For the ultimate basis of a ruler's moral authority, on this view, "is the fact that he has the opportunity, and thus the responsibility, of furthering the common good by stipulating solutions to a community's co- ordination problems" Finnis Finnis's theory is certainly more plausible as a theory of law than the traditional interpretation of classical naturalism, but such plausibility comes, for better or worse, at the expense of naturalism's identity as a distinct theory of law.
Thus, law recognizes our need for relationality by ensuring that we have a way to form sacred unions with others and provide us with the means to do that in time and in space e. What free choice and relationality imply is that the core functional features of our personhood demand the nurture and the actualization of internal convictions to external practices and relationships in time and space.
It demands respect for persons and for their free choices, but this also demands a standard for measuring which choices are good free choices. Laws enable persons in a given society to reach a general moral consensus. In this sense, morality is not an eccentric idea, but it is a basic characteristic of humanity. It is not something foreign to us; it is built into our consciousness and human nature.
Yet, the reality of our world abounds with people who fail to see themselves in such a way and are unconscious of their intrinsic worth and dignity. They do things that harm others, harm themselves, and bring disorder and mismanagement of the common good. According to Thomas Aquinas, laws serve as a corrective or preventive of the harmful impulses which some persons might have as a result of bad free choices.
He explains how various laws preserve the distinct features of our personhood by minimizing the mistreatment and abuse of persons.
And even if Aquinas argues that laws would do that for us, he knows that each person is different and unique in herself. Law is a rule and measure of acts, whereby man is induced to act or is restrained from acting; it binds one to act [or not to act]. The law is a rule or a measure that binds a human being to act in favor of what is good and honorable or restricts her from acting in dangerous and dishonorable ways both for herself and for the common good.
Good human acts, according to any kind of law, should be in compliance with reason. Reason, like justice, resides in the rational appetite. The rational appetite is in the more excellent part of the soul i.
Aquinas refers to rational knowledge in two ways: The difference between these two lies in the ends they seek to accomplish and not in the intellect itself. Speculative intellect or reason seeks consideration of the truth, and the practical intellect seeks to know what to do in order to acquire certain objectives related to that which is true as existing in the mind of God.
Reasonable and just acts, then, are meant to be virtuous and rational if they are done knowingly, have proper knowledge i. Virtue is the perfection of habits and actions that have a certain quality of excellence in order to bring the good life, which consists of good deeds Aquinas Virtue 2Aquinas explains, is twofold: Acquired virtues are those virtues that we form by practice 3 or empirical observations.
That is to say, if we know that participating in the virtue of honesty requires practicing intentionally telling of the truth at all time, then we need act in this virtuous way.
Or, if we practice generosity and unconditional giving for the common good, through the various social arrangements that allow us to do that, we gradually participate in the virtue of charity. Infused virtues are those virtues that God bestows upon us and Aquinas calls them theological virtues: These are the virtues that direct us to God.
Laws also provide for infused virtue to express itself. Although laws can never make us believe, hope, or love God or express spiritual needs, laws can provide for free religious exercise.
In this way, each human being can search for the ultimate meaning of life in her one way. Laws, thus, are channels through which we preserve our human dignity, basic human rights and reasonable good free choices.
There is no gap between this unwritten law and the ideal of justice, because Divine justice and Divine reason possess their own rule and they are the authors of the ideal justice. Reason is the principle of the Spiritual world Aquinas In our hearts, we know that whatever advances our good advances the good of another person. We know what is good, right and honorable, and if people acted upon such knowledge, we would not need the written laws. To put it differently, through reason we all know that to live in peaceful coexistence and security in a pluralistic society, we need laws that restrict acts of evil, vice, murder and senseless fits of rage.
We want protection from acts that threaten our basic personhood, and the promotion of those acts that dignify our liberty and freedom.
Natural Law | Internet Encyclopedia of Philosophy
We want to know that our children are welcomed into the world with open hands and hope. We want to know that they will not be killed by a freed murderer on their way back from school. We want to know that they are protected from drugs and high school massacres.
We want to know that our businesses, universities, and social institutions are built by fair contracts that will not disappoint us and cause a crisis of trust.
We want to know that our leaders live up to their promises with public accountability and transparency for their actions. We want to know that our parents will not walk out and even if they do, laws will require them to provide for us at least financially.
We want to know that laws protect our basic human rights: We want to know that laws will give us health care, and will assure us that our older years will be filled with equal value and dignity, even if our younger years were not. By insisting that the essence of the law is built within our own nature, Aquinas maintains that the essence of law consists in following reason and doing reasonable things that lead humanity to their proper earthly and eternal end, namely their bodily, spiritual and communal happiness.
In short, the essence of law is directed to the common good and to the building of virtuous citizens. Because reason is a principle of good human acts, then all good human acts are the result of reason. God uses the law to instruct humanity on how to achieve this virtuous character by acting in accordance with Divine justice and in harmony with the Divine and Eternal laws of God.
In perfect justice, a person acts in a harmonious relationship with all laws.
She becomes the law to herself as long as she shares the direction of the One i. Divine Justice who rules her. In other words, the laws provide a human being means for achieving a moral life- i. Thomas Aquinas takes this general conception of the law and parses it into four distinct types. These four types are: Eternal law is that law which is unchangeable and perpetual. The Eternal law expresses of the ideas found in the Divine mind.
This is the law which governs the universe. Its essence is the very substance of all other laws. It is possible to say that whatever is subject to divine governance is subject to Eternal law. Eternal law governs the nature of humanity.
Through the effects of Eternal law, we understand its content. Eternal law is the direction of Divine wisdom for the freely chosen motions and acts of every created being Aquinas Eternal law orders things actively, so they can attain their proper end. The proper end, from the standpoint of the eternal law, is to establish the rule of the divine government. The divine government, however, is nothing else than God Himself.
Consequently, Eternal law shapes the standard for all creatures. It regulates human spirit. The natural inclinations of all creatures and their proper acts are subjected to Eternal law. Eternal law has primacy over any other law and, as a result of it every subject is submitted to divine governance. Therefore, eternal law provides a way for God to govern upon the earth, thus supplying for all humanity the divine power needed to achieve perfect and true happiness in all their acts and affairs.
In short, eternal law is the source of all other laws. Eternal law is communicated to us through the natural law. That is to say, what exists in the supernatural, or how the supernatural is ordered is given to us by the natural law causing in us glimpses of the perfect community of God. It is the fundamental principle of the invisible world and through it God causes things into existence. In it God is at the center. As related to our personhood, Eternal law creates the greatest epistemological difficulties for living persons who seek to know the truths about God and the possibility of knowing God through such a law.
Natural law is the use of practical reason in an attempt to avoid any form of evil. Natural law seeks the good and through it one does the good. Natural law is inborn. Natural law is our genuine knowledge of the world around us. Natural law is also the ability to know in different ways. Natural law helps us exercise our intellectual potential even if it takes time, school and dedication for high achievements in intellectually challenging fields. Aquinas is convinced that in Natural law the truth is the same for all.
The general principals are known to all, but in terms of practical reason, the difference in details that we encounter in figuring out the contingent matters regarding the good differ from person to person, because our structural or natural inclinations toward the good differ.