AQUINAS ON LAW

Law is a rule and measure of actions through which one is induced to act or restrained from acting. Lex, "law," is derived from ligare, "to bind," because it binds one to act. The rule and measure of human activity is reason, however, for it is the first principle of human acts. . . . Thus it follows that law is something pertaining to reason.

Law pertains to that which is the principle of human acts because it is a rule and measure. Just as reason is the principle of human acts, however, there is something in reason which is principle of all the rest. It is to this that law principally and mostly pertains. The first principle in activity, the sphere of practical reason, is the final end. The final end of human life is happiness or beatitude. Thus law necessarily concerns itself primarily with the order directing us toward beatitude.

Furthermore, since each part is ordered to the whole as imperfect to perfect, and since each single man is a part of the perfect community, law necessarily concerns itself particularly with communal happiness.

Since law is a rule or measure, it can be in something in two ways: As that which regulates and measures, or as that which is regulated and measured, for insofar as something participates in a rule or measure it is itself regulated and measured. Since everything subjected to divine providence is regulated and measured by eternal law, it is clear that everything participates in the eternal law in some way. That is, everything inclines to its own proper acts and ends because such an inclination is impressed on it through eternal law.

The rational creature is subject to divine providence in a more excellent way than other beings, however, for he is a participant in providence, providing both for himself and for others. Thus he is a participant in that eternal reason through which he has a natural inclination to his proper act and end, and this participation of the rational creature in eternal law is called "natural law."

Thus it is clear that natural law is nothing other than the rational creature's participation in the eternal law.

Law is a certain dictate of practical reason. The process is the same in the case of practical and speculative reason. Each proceeds from certain premises to certain conclusions. Accordingly it must be said that, just as in speculative reason we draw from naturally known, in demonstrable principles the conclusions of various sciences, and these conclusions are not imparted to us by nature but discovered by the work of reason, so it is that human reason starts from the precepts of natural law as from certain common and in demonstrable premises, proceeding from them to more particular determinations of certain matters.

These particular determinations devised by human reason are called "human laws," provided that all the other conditions included in the definition of "law" are observed. . . .

It was necessary for the direction of human life that, beyond natural and human law, there should be a divine law. There are four reasons for this need.

First, it is through law that man is directed to the acts which are proper to him in view of his ultimate end. If man were ordered only to an end which did not exceed his natural faculties, it would not be necessary for him to have any rational direction beyond natural law and that human law derived from it. Since, however, man is ordered to the end of eternal beatitude, which exceeds natural human faculties, it was necessary that he be directed to this end by divinely-given law in addition to natural and human law.

Second, due to the uncertainty of human judgment, particularly regarding contingent and particular things, there tend to be differing judgments regarding human acts, from which proceed diverse and contrary laws. Therefore, in order for man to be secure in the knowledge of what should be done and what avoided, it was necessary that his acts be directed by a divinely-given law which cannot err.

Third, man can make laws in those areas where he is competent to judge. His judgment does not extend to interior acts which lie hidden, however, but only to exterior acts which are apparent. Nevertheless, perfect virtue involves righteousness in both. Thus human law was unable to curb and direct internal acts sufficiently, and it was necessary that divine law supervene in this task.

Fourth, as Augustine says, human law cannot punish or prohibit all things that are evil, for in the process of removing evil it would also eliminate much that is good and impede the advancement of the common good, thus hurting society. Thus, in order to leave no evil unprohibited and unpunished, a divine law, through which all sins are punished, had to intervene.

A thing can be known in two ways: First, in itself; second, in its effect, in which some likeness of it is found, just as someone who does not see the sun in its substance may at least know it by its rays. Thus it must be said that only God and the blessed who see God in his essence can know the eternal law as it is in itself; yet every creature knows it according to some of its greater or lesser radiations.

Every knowledge of truth is a certain radiation of and participation in the eternal law, which is the unchangeable truth, as Augustine says. Everyone knows the truth to some extent, since at least the common principles of natural law are available to him. As for the rest, people know it in greater or lesser degree and thus know more or less of the eternal law.

***

Whether natural law contains many precepts or only one

The precepts of natural law are related to practical reason as the first principles of demonstration are to speculative reason. Both are self-evident principles.

A thing is said to be self-evident in two ways, in itself and for us. A proposition is said to be self-evident because the predicate is contained in the definition of the subject; yet it will not be self-evident to someone who does not know the definition of the subject. Thus the proposition "man is rational" is self- evident because "rational" is part of the definition of man," but it is not self- evident to anyone who does not know what a man is.

Just as being is the first thing which falls within the apprehension as such, so good is the first thing to fall within the apprehension of practical reason, which is ordered to activity. For every agent pursues an end which is perceived as good. Thus the first principle for practical reason is a definition of the good, namely that "the good is that which all men seek after." Thus the first precept of the law is that "good is to be pursued and performed, evil avoided." On this principle is founded all others in natural law. Thus whatever practical reason recognizes to be good for man pertains to the precepts of natural law.

Since from this perspective the good is defined as an end to be pursued, while evil is defined as what is contrary to that end, reason naturally sees as good and therefore to be pursued all those things to which man has a natural inclination, while it sees the contraries of these things as evil and therefore to be avoided.

Thus the order of precepts in natural law follows the order of natural inclinations. First of all, within man there is an inclination to good according to the nature he shares in common with all substances. Every substance seeks to preserve its own being according to its nature. Because of this inclination, all the things through which man's life is preserved belong to natural law.

Second, within man there is an inclination to certain more special things according to the nature he has in common with other animals. Because of this inclination, those things which nature has taught to all animals are said to be part of natural law. This would include sexual intercourse, education of offspring, and the like.

Third, within man there is an inclination to good according to his own particular nature as rational. For example, he has a natural inclination to know the truth about God and to live in society. Inclinations of this sort also pertain to natural law, and thus it is part of natural law that man should shun ignorance, avoid offending those with whom he has to live, etc.

Those things to which man is naturally inclined pertain to natural law. Among such inclinations is one particular to man: The inclination to act according to reason. Reason characteristically proceeds from the general to the particular, as Aristotle says. Speculative reason differs from practical reason in this respect, however. Since speculative reason deals primarily with necessary things which cannot be otherwise than they are, both its general premises and its particular conclusions are unerringly true. Practical reason, however, deals with contingent matters involving human activity. Thus, even if the general premises are necessary, the more we descend to particulars the more frequently we discover defects.

Thus in speculative matters the same truth is found in premises and in conclusions, although the truth of the conclusions is not recognized by all, but only that of the premises, which are called "common notions." In matters of actions, however, truth or practical rectitude is not always the same in particular instances, but only in general premises. Moreover, even when there is the same rectitude in particular cases, it is not equally recognized by all.

It is invariably correct that we should act according to reason. It follows from this premise that goods held in trust should be returned to their owners, and such is, in fact, usually the case; yet some situations might occur in which it was harmful and therefore irrational to return goods held in trust. For example, the person might request his goods because he wanted to use them to attack his country. The more one descends to particular cases, the more the general rule admits exceptions, and one finds oneself stipulating that goods held in trust must be restored with such and such a guarantee or in such and such a way; for the more conditions are added, the more ways one finds in which the general rule can fail and the less helpful the general rule by itself becomes in deciding whether or not the goods should be returned.

Thus it must be said that in its general premises natural law is always the same in itself and is commonly seen to be such. In the particular determinations drawn from those general premises, natural law is the same in most cases and is so perceived by most people; yet in a few cases it can fail in itself because of particular impediments (just as the natural processes of generation and decay occasionally fail because of impediments), and it can also fail to be recognized as true because the reasons of some are distorted by passion, evil habits, or evil natural disposition. Thus Julius Caesar remarks that the Germans once did not regard theft as evil.

There are two ways in which one can speak of natural law being changed. The first is by something being added to it. Nothing would prevent it from being changed in this way, for many things useful to human life have been added to natural law, both by divine law and by human law.

The second way is by subtraction, when something which used to be part of natural law ceases to be such. The first principles of natural law are absolutely immutable. Its secondary precepts, which we have described as certain particular conclusions close to first principles, cannot be changed in such a way that its application in the majority of cases is altered, but in some few cases it can be changed in some particular, due to some special causes impeding the normal observance of such precepts.

As Augustine says, "There never seems to have been a law that was not just." Thus it has the force of law insofar as it is just. In human affairs, something is said to be just insofar as it is right according to the rule of reason. The first rule of reason is, however, natural law. Thus every human law has the nature of a law insofar as it is derived from natural law. If it conflicts with natural law in any way, then it is not law but a corruption of law.

But it should be noted that something can be derived from the natural law in two ways: First, as conclusions from premises; second, as determinations of certain generalities. The first way is similar to that in which conclusions are demonstratively derived from premises in the sciences. The second is similar to the way general ideas are given special shape in the arts, as when a builder decides that he will actualize the general form of a house by constructing this or that particular model.

Thus some laws are drawn as conclusions from the general principles of natural law. For example, "you must not commit murder" can be derived as a conclusion from "you must do harm to no one." Other laws are drawn from natural law by way of determination. For example, natural law requires that he who sins should be punished, but that he be punished by this or that punishment is a determination of natural law. Both are found in human law, but the first sort derive their strength, not only from the fact that they are legally enacted, but also from natural law itself. The second sort derive their strength only from human law.

Law is established as a certain rule or measure of human actions. A measure ought to be of the same type as the thing measured, as Aristotle observes, for different things have different standards, Thus laws should be imposed on men: according to their condition, because, as Isidore says, "Law should be possible according to the customs of the land."

The power or possibility of action springs from an internal habit or disposition. Actions that are possible to a virtuous man are not possible to him who lacks the habit of virtue, any more than a boy can do all that a grown man can do. Thus the same law is not imposed on adults and children alike, and many things permitted to children are punished or at least blamed when performed by adults. Similarly, many things are permitted to men imperfect in virtue which would not be tolerated in more virtuous men.

Human law is imposed on the multitude, a part of which is composed of men imperfect in virtue. Thus all the vices from which the virtuous abstain are not punished by human law, but only the more grievous ones which most people can avoid, and especially those which can hurt others, without the prohibition of which human society could not be preserved. Thus homicide, theft and the like are prohibited by human law.

Human laws are either just or unjust. If they are just, they have the power to bind our conscience because of the eternal law from which they are derived. As Proverbs says, "Through me kings reign and lawmakers decree just laws" (Prov. 8:15).

Laws are said to be just either because of their end, when they are ordained to the common good; or because of their author, when the law does not exceed the power of the lawmaker; or because of their form, when burdens are distributed equitably among subjects for the common good. For since a man is part of the multitude, whatever he is or has belongs to the multitude as a part belongs to the whole. Thus nature inflicts harm on a part in order to save the whole. Accordingly laws which inflict burdens equitably are just, bind the conscience, and are legal laws.

Laws are unjust in two ways: First, they may be such because they oppose human good by denying the three criteria just mentioned. This can occur because of their end, when a ruler imposes burdens with an eye, not to the common good, but to his own enrichment or glory; because of their author, when someone imposes laws beyond the scope of his authority; or because of their form, when burdens are inequitably distributed, even if they are ordered to the common good. Such decrees are not so much laws as acts of violence. . . .

Second, laws may be unjust because they are opposed to the divine good, as when the laws of tyrants lead men to idolatry or to something else contrary to divine law. Such laws must never be observed, because "one must obey God rather than men" (Acts 5:29).

Translation by David Burr [olivi@mail.vt.edu]. Full text of Burr’s translation at: http://dburr.hist.vt.edu/Aquinas2.html.