Laws and Natural

Thomas is content when discussing the senses of "law" and "natural law" to rehearse familiar points from familiar authorities. Medieval readers learned about natural law not from vague intimations in the Latin Stoics, but from specific and detailed legal authorities. Both of the compilations of Roman law commissioned by Justinian begin with remarks on a law of nature and a law of peoples. The law of nature is the law written into all living creatures by which they seek their own survival and procreation (Institutes 1.2 prologue). The law of peoples comprises rationally discoverable rules for human society that are the common ground of all human law (Institutes 1.2.1). Each is called providential and immutable (Institutes 1.2.11).

The two laws are mixed by Isidore of Seville. For his Etymologies, natural law includes not only biological imperatives, but social ones as well — among them common property, equal liberty, and simple justice.13 Texts from Isidore serve as the basis for Gratian's distinguishing types of law. Gratian begins with this note: "The law of nature, which is contained in the law and the Gospel, is that by which each is commanded to do to others what he wants to be done to himself, and is prohibited from inflicting on others what he does not want done to himself."14 The law of nature is eminently contained in Scripture. Somewhat later, Gratian adds that natural law is first chronologically, since it begins with the creation of rational creatures, and that it does not vary over time.15 Natural law comprises the common principles observed by all and binding on all, and it takes clear precedence over any human law.16 Each of these points is familiar to readers of Thomas. There is more. Following upon Gratian, directly in the line of Dominican

13 Isidore, Etymologiae 5.4, ed. W. M. Lindsay (Oxford: Clarendon Press, 1911), l. 25 — l. 8 in the section.

14 Gratian, Concordantia discordantium canonum 1.1 [prol.] (Richter-Friedberg 1:1).

15 Gratian, Concordantia 1.5.1 [prol.] (Richter-Friedberg 1:7).

16 Gratian, Concordantia 1.8.1 and 1.9.1 [prol.] (Richter-Friedberg 1:12 and 1:16).

authors that leads to Thomas, there stands again Raymond of Penafort. He inaugurates his Summa of Law by listing five meanings of "natural law": it is the power of reproduction, the desire for procreation and rearing of offspring, the common rational principles of equity, every precept of divine law, and finally the law common to all peoples.17

By the time Thomas reached Paris to study theology, these authoritative legal texts and others had been incorporated into theological teaching, even if their position had not been worked out. The Summa "of Alexander" contains a lengthy treatment of four kinds of law: eternal, natural, Mosaic, and evangelical.18 There are about four times as many articles as in the corresponding Questions of Thomas's Summa. Moreover, this Franciscan Summa marshals a wider variety and greater quantity of authorities. By contrast, Thomas is laconic. He wants the reader to see through his selection of topics and pruning of authorities to the pedagogy that leads from law to grace. The pedagogy is a sign and consequence of the art-like character of moral teaching.

Thomas announces natural law as the rational counterpart of natural tendency to an end. It is "a participation in the rational creature of eternal law" by which the creature has "a natural inclination to the due act and end" (1-2.91.2). Where lower animals have mute tendencies, rational souls appropriate their teleological impulses rationally and recognize them as participations in God's creative wisdom. The "eternal law" from which natural law is participated is nothing other than God as providential maker and governor, as artisan (1-2.91.1 ad 3). Natural stands far below. It is, at best, an abstract and incomplete guide to action. Human law is needed as the completing specification of natural law, because human law offers particular conclusions drawn from the "common and indemonstrable principles" of natural law. There are corollaries. The natural human condition is to live under a political regime. Civil law is a natural supplement to natural law, which is no more than a limited and imperfect participation of the eternal law (1-2.91.3 ad 1).19

The positive content of the natural law, to the extent that it can be articulated, is described in the six Articles of Summa 1-2.94. Thomas quotes from Aristotle a traditional formulation of the first principle of practical

17 Raymond of Penafort, Summa iuris 1.1, ed. José Rius Serra (Barcelona: Universidad de Barcelona, Facultad de Derecho, 1945), 1:23.

18 "Alexander of Hales," Summa theologica 3.2.1-4.

19 On the historical and political character of human law in Thomas's moral thought, see Bénézet Bujo, Moralautonomie und Normenfindung bei Thomas von Aquinas: unter Einbeziehung d. neutestamentl. Kommentare (Paderborn, Munich, Vienna, and Zurich: F. Schöningh, 1979), pp. 287-306. Bujo provides a summary of natural law doctrine as it appears in Thomas's Scriptural commentaries on 232-283.

knowledge: "the good is what all desire" (94.2). The first precept of the law, then, is "the good is to be done and pursued, and evil is to be avoided" (94.2). The good, the end, is immediately stratified. A first stratum contains the good that human beings share with other natures. This is the good of existence; its precept is survival. Humans share the second stratum of good with animals. This is the good of life; its precept is generation and nurture. The third good belongs to human beings as rational. Its precepts enjoin living in society and knowing about God (94.2).20 Thomas did not discover these strata. His three kinds of precepts are variations on the first three meanings of "natural law" catalogued by Raymond of Penafort.

Thomas gives a few examples within each stratum. Generation comprises "education of children," and political life requires "that a human being avoid ignorance and not offend others, with whom he [or she] must share community" (94.2). Thomas does not perform anything like a transcendental deduction of the conditions for the fulfillment of each end. In the next Article, he argues that such a complete deduction of the natural virtues cannot be performed (94.3). He distinguishes between virtuous acts considered as virtuous and as particular acts. Natural law does include the inclination to act rationally, which is to act virtuously. It does not include a complete list of virtuous acts. Virtuous acts are discovered, rather, in the long political experience of the species (94.3). A full enumeration of entailments under the three branches of the first precept of natural law is not part of the law, but part of the history of human communities.21

Given the diversity of regimes, the contradictions in the history of conventions, what remains of the kernel of natural law? Is there a common content of practical participation in the law of God? Thomas's reply to such questions, in the fourth Article, requires that he deny any strict parallelism between practical and theoretical reasoning.22 In speculative matters, the

20 As Crowe says, this triplet "cuts across" the older distinction between primary and secondary precepts which had been adopted by Thomas in commenting on the Sentences. See Michael B. Crowe, The Changing Profile of the Natural Law (The Hague: M. Nijhoff, 1977), 179 and 174-184 generally. R. A. Armstrong finds the older distinction made most strongly within the Summa at 1-2.100, in connection with a discussion of the precepts of the Old Law. See his Primary and Secondary Precepts in Thomistic Natural Law Teaching (The Hague: M. Nijhoff, 1966), pp. 86-114.

21 See especially on this point Pamela M. Hall, Narrative and Natural Law: An Interpretation of Thomistic Ethics (Notre Dame: University of Notre Dame Press, 1994); and, more recently, her "The Old Law and the New Law (Ia, IIae, qq. 98-108)," in The Ethics of Aquinas, ed. Pope, pp. 194-206.

22 See Crowe, Changing Profile, 187-191, for similar arguments. The opposite view is represented by Gallus Manser, Das Naturrecht in thomistischer Beleuchtung, Thomistische Studien 2 (Fribourg: Paulusdruckerei, 1944), 51-61.

premises are knowable by all equally; the same conclusions are knowable, though not equally. Differences of knowledge with regard to the conclusions are explained by reference to the difficulty of demonstration in various cases. In practical matters, the first principles are known to all. The conclusions, however, are common neither in content nor in clarity of apprehension (94.3).

The more particular the case, the more difficult it is to arrive at consensus about a conclusion. Alternately, the more specific a norm or precept proposed in ethics or law, the more liable it is to justified exception. In many particular cases, the right course of action cannot be rigorously deduced. Matters become more uncertain when one considers the defects to which practical reasoning is liable, whether of passion, bad habit, or wicked political convention. Although Thomas urges that the most common principles are the same "among all both as regards rightness and as regards acquaintance" (94.4), he restricts "common principles" in his examples to such formulas as "one should act according to reason." The common natural law is so abstract that it provokes disagreement when expressed as precept, much more when applied to particular cases. Compare problems of articulation in the teaching of art.

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