[4.9.11] St Thomas Aquinas on Natural Law and Rule of Law

St Thomas Aquinas (1225 – 1274 AD), in his magnum opus Summa Theologiae analyzes the topic of natural law:

  • God governs its animate and inanimate creatures through the eternal law (including laws of nature), the natural moral laws ruling the humans “participate” in that eternal law.
  • The first principles of practical reason (see [4.9.9]) of the individual human persons aggregate into posited laws through the process of “determinatio”.
  • Natural law is “a remedy against the great evils of, on the one side anarchy (lawlessness), and on the other side tyranny.”
  • “One of tyranny’s characteristic forms is the co-optation of law to deploy it as a mask for fundamentally lawless decisions cloaked in the forms of law and legality […] Unjust laws are not laws,” This leads to the idea, that unjust laws should be disobeyed. 
  • The rule of law requires the laws to be promulgated by a rightful governement and have to be public, stable, general, clear, and practical.
  • In the real world, the law has to have a coercive force.

Aquinas’s model of natural law is represented in the following OntoUML diagram:

Aquinas on natural law and rule of law
CLASSDESCRIPTIONRELATIONS
GodGodcreates EternalLaw; creates Creature
EternalLaw“prominence is there given to the ‘eternal law‘ by which God governs even inanimate creatures (as by the laws of physics, etc.), and to the ‘participation’ of natural moral law in that eternal law.”governs Creature
Law“Natural law theory accepts that law can be considered and spoken of both as a sheer social fact of power and practice, and as a set of reasons for action that can be and often are sound as reasons and therefore normative for reasonable people addressed by them. This dual character of positive law is presupposed by the well-known slogan ‘Unjust laws are not laws.'”subkind of EternalLaw
Coertion“In a world (paradise) of saints (completely virtuous persons), there would be need for law but not for coercion; so coercion is not part of Aquinas’s definition of law and law’s directive force can be contrasted with its coercive force (and see 6.1(ii) above). But in our actual world the need for (the threat of) coercion is such that Aquinas will say without qualification that law ought to have coercive force [vis coactiva] as well as directive [vis directiva]; he even says that it is a characteristic of law [de ratione legis] (ST I-II q. 96 a. 5), despite not including it in his official definition of law’s nature [its ratio] (q. 90. a. 3).”characterizes Law
Public; Stability; Generality; Clarity; Practicability“The central case of government is the rule of a free people, and law is centrally instantiated when its fully public character (promulgation: q. 90 a. 4), and its clarity (q. 95 a.3), generality (q. 96 a. 1), stability (q. 97 a. 2), and practicability (q. 95 a. 3), enable government (law-makers and law-maintainers alike) and subjects to be partners in public reason (Aquinas has the concept though not the phrase). The features of law thus itemized by Aquinas amount to the concept of the Rule of Law, which he clearly gives a priority over the ‘rule of men’ in his treatment of judges’ subordination to legislation and of the duty of judges to adhere to law even against the evidence of their own eyes (when that evidence is not legally admissible)”characterizes Law
FirstPrinciple“Ethical standards, for which practical reason’s first principles provide the foundations or sources, concern actions as choosable and self-determining. […]
Practical reason, in Aquinas’ view, has both one absolutely first principle and many truly first principles: ST I-II q. 94 a. 2. The absolutely first principle is formal and in a sense contentless. Like the logical principle of non-contradiction which controls all rational thought, it expresses, one might say, the pressure of reason and is so far from being empty of significance and force that its form may be regarded as the frame, and its normativity the source, for all the normativity of the substantive first principles and of the moral principles which are inferable from them. Aquinas articulates it as ‘Good is to be done and pursued, and bad avoided’ (ibid.).
This has often been truncated to (i) ‘Good is to be done, and evil avoided’ or even, more drastically, (iia) ‘Do good and avoid evil’ or yet more drastically (iib) ‘Avoid evil and seek the good‘”
PracticalResonPractical reason (see [4.9.7]) is a human faculty, in the context of the natural law its importance is, that: “Aquinas is particularly clear and explicit that in this context, ‘natural’ is predicated of something (say, a law, or a virtue) only when and because that of which it is predicated is in line with reason, practical reason, or practical reason’s requirements”
CreatureGod’s creature, governed by the eternal law.
HumanPersonA human personsubkind of Creature
Citizen“Once the determinatio is validly made, fulfilling the criteria of validity provided by or under the relevant legal system’s constitutional law, it changes the pre-existing state of the law by introducing a new or amended legal rule and proposition(s) of law. The new or amended legal rule gives judges, other officials, and citizens a new or amended reason for action (or forbearance). “role of HumanPerson; shared part of State and Government
CommunityCommunities such […] are groups, each of them a whole [totum] made up of [human] persons (and perhaps of other groups), their unity being not merely one of composition or conjunction or continuity, but rather of order, in two dimensions: (i) of the parts (members) as coordinating with each other, and (ii) of the group and its members to its organizing purpose or end (finis). Of these, (ii) is the more explanatory, as Aquinas argues at the very beginning of his commentary on Aristotle’s Ethics.”
State“Love of neighbor as oneself (see [4.9.9]) requires one to live in political community with others. For the wellbeing and right(s) of all or almost all of us are dependent upon there being in place institutions of government and law of the relatively comprehensive kind we call ‘political’ and ‘state‘.”subkind of Community; has Law, has Government
GovernmentThe government defines the law based on the first principle, through the process of determinatio:

“The kind of rational connection that holds even where the architect has wide freedom to choose amongst indefinitely many alternatives is called by Aquinas a determinatio of principle(s)—a kind of concretization of the general, a particularization yoking the rational necessity of the principle with a freedom (of the law-maker) to choose between alternative concretizations, a freedom which includes even elements of (in a benign sense) arbitrariness. […]
Political communities [states] are a kind of institution whose rational status as a normally desirable and obligatory objective of and context for collaborative action (and forbearance) can easily be seen to be entailed by the foundational practical and moral principles. In such communities, the normal means for making the needed determinationes is the institution of governmental authority acting in the first instance through legislation and other forms of law-making, i.e., acting as a social-fact source of positive (posited) law.”
subkind of Community; defines Law trough “determinatio”
PublicGood”His explanation, slightly updated: this very large part of our law could reasonably have been different, in the way that every detail of a maternity hospital could have been somewhat different and large portions of the design could have been very different, even though some features (e.g., that the doors and ceilings are more than two feet high) are entailed by the commission to build a town maternity hospital, and every feature has some rational connection with the commission. The kind of rational connection that holds even where the architect has wide freedom to choose amongst indefinitely many alternatives is called by Aquinas a determinatio of principle(s)—a kind of concretization of the general, a particularization yoking the rational necessity of the principle with a freedom (of the law-maker) to choose between alternative concretizations, a freedom which includes even elements of (in a benign sense) arbitrariness.The benefits made possible by political community, with its state government and law, are such that its common good is both extensive and intensive in its reach and implications (e.g. the legitimacy of securing it by coercion). So on those occasions when “the common good” is the best translation of bonum commune, the referent will normally be the good of the political community in question (or of political communities generically), often called by Aquinas public good.characterizes State

Sources

  • All citations from: Finnis, John, “Aquinas’ Moral, Political, and Legal Philosophy“ and “Natural Law Theories“, The Stanford Encyclopedia of Philosophy (Summer 2020 Edition), Edward N. Zalta (ed.)
  • The Cambridge Companion to Aquinas, CAMBRIDGE UNIVERSITY PRESS, Edited by  Norman Kretzmann and Eleonore Stump, 2010
  • McInerny, Ralph and John O’Callaghan, “Saint Thomas Aquinas”The Stanford Encyclopedia of Philosophy (Summer 2018 Edition), Edward N. Zalta (ed.)

First published: 19/11/2020

[4.9.10] St Thomas Aquinas on Politics

St Thomas Aquinas (1225 – 1274 AD), in ST Summa Theologiae, discusses political theory, according to which:

  • Humans are “political animals” (see [1.13.15]), naturally living in communities, like families, church, and state. Both church and state are complete communities, with relative and delimited power.
  • Communities are ordered and strive for the common good.
  • The state has laws and government, both limited by different factors.
  • The government can be political, based on laws, or regal.

Aquinas’s model of politics is represented in the following OntoUML diagram:

Aquinas on politics
CLASSDESCRIPTIONRELATIONS
HumanPersonA human personmember of Family_cum_household
CitizenCitizen is a role of a human person – an individual with political rightsrole of HumanPerson; member of State and Church, and some of Government also
CommunityCommunities such […] are groups, each of them a whole [totum] made up of [human] persons (and perhaps of other groups), their unity being not merely one of composition or conjunction or continuity, but rather of order, in two dimensions: (i) of the parts (members) as coordinating with each other, and (ii) of the group and its members to its organizing purpose or end (finis). Of these, (ii) is the more explanatory, as Aquinas argues at the very beginning of his commentary on Aristotle’s Ethics.”
OrderOrder characterizes communities: “in in two dimensions: (i) of the parts (members) as coordinating with each other, and (ii) of the group and its members to its organizing purpose or end (finis). Of these, (ii) is the more explanatory, as Aquinas argues at the very beginning of his commentary on Aristotle’s Ethics.”characterizes Community
CommonGood“‘Common good‘ is very often a safer translation of bonum commune than ‘the common good’. For there is the common good of a team, but equally the common good of a university class, of a university, of a family, of a neighborhood, of a city, of a state, of a church and of human kind throughout the world. The difference in each case between the group’s common good and an aggregate of the wellbeing of each of its members can be understood by considering how, in a real friendship, A wills B’s wellbeing for B’s sake, while B wills A’s wellbeing for A’s sake, and each therefore has reason to will his or her own wellbeing for the other’s sake, with the result that neither envisages his or her own wellbeing as the source (the object) of the friendship’s value, and each has in view a truly common good, not reducible to the good of either taken separately or merely summed. Inasmuch as there is possible and appropriate a kind of friendship between the members of each of the kinds of group listed (non-exhaustively) above, each such group has its own common good.”characterizes Community
PublicGood” The benefits made possible by political community, with its state government and law, are such that its common good is both extensive and intensive in its reach and implications (e.g. the legitimacy of securing it by coercion). So on those occasions when “the common good” is the best translation of bonum commune, the referent will normally be the good of the political community in question (or of political communities generically), often called by Aquinas public good.”subkind of CommonGood; characterizes State
CompleteCommunityAquinas “accepts that we are naturally parts of a political community, but also that we are more naturally conjugal than political (in the narrow sense), and that political community does not properly have the ultimacy it has for Aristotle. For Aquinas, political communities have been irrevocably relativized by the appropriateness for (in principle) everyone of belonging to the Church which is, in its own way, as complete [perfecta] a kind of community as any state. […] The state is a “complete community”, whose members, in the central case, are also members of another “complete community”, the Church. So this completeness is, in each case, relative and delimited.” subkind of Community
State“Love of neighbor as oneself (see [4.9.9]) requires one to live in political community with others. For the wellbeing and right(s) of all or almost all of us are dependent upon there being in place institutions of government and law of the relatively comprehensive kind we call ‘political’ and ‘state.”subkind of CompleteCommunity; has Law, has Government
ChurchThe church is “established to transmit divine revelation and salvation”subkind of CompleteCommunity
Government“The best form of government (or as we would now say, constitution) is one in which, ‘well mixed’, are found ‘monarchy’, ‘aristocracy’ and ‘democracy’, that is, the rule of one person (whose “monarchy” is probably better elective rather than hereditary), governing in concert with a few high officials chosen for their excellence of character and aptitude, by an electorate comprising the many who are entitled both to vote and to stand for election: ST I-II q. 105 a. 1. Establishing and maintaining such an arrangement is a matter for laws which delimit the competences of all concerned.”subkind of Community
PoliticalGovernmentGovernment is properly speaking ‘political‘ when the supreme person or body ‘has power which is limited [potestas coarctata or limitata] by certain laws of the state’: Pol. I.1.5. Such rulers govern in accordance with the laws concerning the establishment of their office, their appointment and their responsibilities.”subkind of Government
RegalGovernment“When power is, by contrast, ‘plenary’, the government is said to be ‘regal’ in kind. But even regal government, in its proper forms, is the government of free and equal people who have in some sense (never made quite clear by Aquinas) the “right to resist [ius repugnandi]” the ruler(s). Even regal rulers are subject to the directive force of the laws, though there is no-one who has the legal authority to coerce them.”subkind of Government
Family_cum_householdA family living in a household.subkind of Community
Law“the main concern of law [including the natural (moral) law] must be with directing towards beatitudo. Again, since every part stands to the whole as incomplete stands to complete, and individual human beings are each parts of a complete community, law’s appropriate concern is necessarily with directing towards common felicitas … that is, to common good. (ST I-II q. 90 a. 2.)
The ‘complete community’ mentioned here is the political community, with its laws, but the proposition implicitly refers also to the community of all rational creatures, to whose common good morality (the moral law) directs us.”
directs Citizen
LimitationLimitations: “(i) State governments and laws are subject to moral standards, especially but not only the principles and norms of justice. This does not mean that moral principles all apply to public authority in the way they do to private persons; they do not, yet there is no exemption of public authorities from the exceptionless moral norms against intentionally killing the innocent, lying, rape and other extra-marital sex, and so forth. Moreover, this limitation has no bearing on the distinct question which moral standards should, or can properly, be legally enforced by the state’s government and law (see (iii) below).
(ii) State governments are subject to laws governing election or other appointment to and tenure and rotation of office, and the jurisdiction of particular offices. Even supreme rulers not subject to the coercive authority of anyone else cannot dispense themselves from the obligation of their own laws unless that is for the common good and free from favoritism. If they defy these moral restrictions they show themselves to be tyrants, and may be resisted and deposed by the concerted (‘public’) action of their people. […]
(iii) State governments and laws have the authority and duty to promote and defend the common good, including the good of virtue. This responsibility brings with it the authority to use coercion for the suppression of crime and enemy attack. […] This coercive jurisdiction extends to defending persons and property both by force and by the credible threat of punishment for criminal or other unjust appropriation or damage. But it does not extend to enforcing any part of morality other than the requirements of justice insofar as they can be violated by acts external to the choosing and acting person’s will. Acts of virtues (or vices) other than such external acts of inter-personal (in)justice cannot rightly be prohibited unless they involve (in)justice. For, unlike divine law’s, ‘human law’s purpose is the temporal tranquility of the state, a purpose which the law attains by coercively prohibiting external acts to the extent that these evils can disturb the peaceful state of the state.’ ST I-II q. 98 a. 1c; likewise q. 100 a. 2c: ‘human law does not put forward precepts about anything other than acts of justice [and injustice]’. State law’s justifiedly coercive domain is not private good as such, nor the whole of the community’s common good. Rather, it is those aspects of the political community’s common good that can be called public good, and that are affected by external acts directly or indirectly affecting other members of the community.
(iv) The morally significant authority of the state’s government and law is limited by the rights of the Church, though when that government and law are within their proper domain, one ought to comply with their directives rather than any purported act of administration or government (apart from general moral teaching) by Pope or bishops.”
limits Law, Government

Sources

  • All citations from: Finnis, John, “Aquinas’ Moral, Political, and Legal Philosophy“, The Stanford Encyclopedia of Philosophy (Summer 2020 Edition), Edward N. Zalta (ed.)
  • The Cambridge Companion to Aquinas, CAMBRIDGE UNIVERSITY PRESS, Edited by  Norman Kretzmann and Eleonore Stump, 2010
  • McInerny, Ralph and John O’Callaghan, “Saint Thomas Aquinas”The Stanford Encyclopedia of Philosophy (Summer 2018 Edition), Edward N. Zalta (ed.)

First published: 12/11/2020