Notes and Thoughts on Thomas Aquinas' Summa Theologica
Favourite Quote of the Reading: "Consequentially it is evident that the proper effect of a law is to lead its subjects to their proper virtue; and since virtue 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, either absolutely or in some particular respect. For if the intention of the lawgiver is fixed on a true good, which is the common good regulated according to divine justice, it follows that the effect of law is to make men good absolutely. If, however, the intention of the lawgiver is fixed on that which is not good absolutely, but useful or pleasurable to himself, or in opposition to divine justice, then law does not make men good absolutely, but in a relative way, namely, in relation to that particular government".
Overview
Aristotle's writings had just been rediscovered in the 13th Century when Aquinas wrote. A major problem the Catholic Church had was to reconcile Aristotle's philosophy with Catholic doctrine. A significant amount of Aquinas' work was devoted to this task. The important Aristotelian themes that emerge in Aquinas' legal philosophy are that every creature has its own natural purpose or end and that actualizing this purpose is what good is. As applied to law this concept entails that we cannot understand a political or legal system without first thinking about the good of humans, as well as the purpose of law itself. In other words, the 'goodness' of a legal or political system can be measured in terms of how well it helps to actualize the good of humans (see Moore's Naturalistic Fallacy). Interestingly, it wasn't until 1879 (feelin' fine) that the Catholic Church declared Aquinas' writings to be its official doctrine.
Quick Definition: Natural law is a system of law that is deduced from human nature. The idea is that you analyze human nature and figure out what universal moral principles are necessary for flourishing, then you build your laws in accordance with what best achieves that aim. Central to the notion of natural law is the assertion that morality is universal (and eternal) and we can somehow access it.
On The Essence of Law
Whether Law Is Always Directed to the Common Good
Yes. The End. Well, that's the conclusion anyway. Let check aus the argument:
(1) Law belongs to the class of things that are principles of human action. Ok, that seems pretty straight forward.
(2) Reason is also a principle of human action. Nothing too crazy here.
(3) There is also a principle that governs reason; that principle is that actions should be directed toward the objective of human life--happiness and beatitude (blissful happiness...yay!). I'm not going to go to much into it here but it's important to note that the notion of happiness for Aristotle has very little to do with an emotional state or hedonistic pleasure. It has to do with self-actualization, sometimes called "flourishing". It is a continuous process for which attainment can only be judged after someone has already died, because only then can we fully assess whether someone actualized their potential.
(C) Therefore, law should mainly be about creating an order in society such that beatitude is preserved and produced. The idea here is that law should be about creating a society that is conducive to allowing a society to flourish. I guess a legal system that stifled people ability to actualize themselves wouldn't be 'good'. But I think it's still an open question as to whether enabling flourishing should be the prime role of a legal system...
Here's the grand conclusion: since the governing principle of law is the common good, any law that runs counter to the common good is not law. Say wut? A law isn't a law? Yup. If a law does not produce human flourishing then it is actually not a law.
Whether Any Individual Acting through Reason Is Competent to Make Laws
Nope. But why not? Because if an individual makes a law, it doesn't have the force of compulsion. "A private person cannot lead another to virtue efficaciously; for he can only advise, and if his advice be not taken, it has no coercive power, such as the law should have..." Well, that kind of makes sense. I can't imagine many people being compelled to do things just because random individuals decide they want to make a law...
That's not to say people can't make rules within their limited domains. Obviously, a man can make rules governing the conduct of his wife and children (trolling!) but these do not have the force of laws. So, what's the difference between rules and laws? Well, rules are applicable in a limited domain, such as a household, or a community. Laws, however, have to do with the flourishing of an entire state. So, rules have limited scope in terms of the size of the group to which they apply. Laws apply to the entire state and must be directed at producing flourishing to count as law. "Law is nothing more than an ordinance of reason for the common good, promulgated by him who has the care of the community".
Wait a minute. How does the guy who "has the care of the community" know what the laws are? and while we're at it, how does everyone come to know what the laws are, especially in illiterate societies? Sooooooo simple. "The natural law is promulgated by the very fact the God instilled it into man's mind so as to be know by him naturally".
See? That wasn't so hard. But wait, why do we need someone to tell us what the law is if "God instilled it into man's mind"? Or did he just forget to instil it into some people's minds (evidence favours this)? Oh! God! You little rascal! But that's not what he says, in a later section he continues that "the light of natural reason, whereby we discern what is good and what is evil, which is the function of the natural law, is nothing else than an imprint on us of the divine light". (*angelic singing*)
Then, he goes on to contract himself (again) because he says that those who are not present when a law is promulgated are bound to obey the law in so far as it is made known to them by others. But, again, why do we need others to tell us the law if God instilled it in each and every one of his children? (at the moment of conception, I'm sure!)
Of course the God argument is silly but we might argue the same sort of thing from a secular point of view, that we are hardwired a certain way that allows us, upon reflection, to know what morality is and what moral actions would consist in. We'll get into that more later...but right now, my main man Aquinas is gonna drop some knowledge about different kinds of law...
On the Various Kinds of Law
Human Law (vs. Divine Law)
"A law is a dictate of practical reason". Technical term alert!!! What's practical reason? It's the kind of reason we use when we decide how to act; usually to choose between alternative courses of action. Here's where it gets interesting (finally! I know, right?). The explanation of human law goes a little somethin' like this: The principles of natural law (i.e. morality) are known and common to us but are indemonstrable. Human reason isn't perfect so we don't have perfect access to divine I'm not sure if he's referring to the idea that our knowledge of morality comes from intuitions and so (maybe) can't be put into words.
Or maybe (more likely) he's saying something like, value principles are difficult to put into enough clauses that will cover every possible legal situation past, present, and future. Our reason allows us access what to do in particular cases (*angelic singing*): we reason from abstract moral principles to fine-grained particular laws and legal/moral decisions. But, humans can't know how to perfectly apply moral rules to every possible case. Nevertheless, the particular laws derived from practical reason are human law--so long as the "flourishing" condition is met.
Of course, our practical reason isn't perfect and neither is our knowledge (why didn't didn't God give us perfect access to the divine law? What? We don't have enough challenges already?) so it doesn't overlap entirely with divine law. Divine law would require perfect knowledge of moral principles and perfect practical reason.
Divine Law: Is It Necessary?
If we can't access divine law, why is it important? Aquinas give us 4 reasons:
(1) This one's a little weird. (a) Since how a man acts to achieve his ultimate goals is directed by laws and (b) his ultimate goals will only be in proportion to his natural abilities, then (c) there is no need for him to aspire to anything greater than his own goals. (d) But since the big man upstairs (Zeus, of course) has even bigger plans that are beyond man's natural ability--that of eternal happiness (touchdown Jeeeeeeeezus!)--man needs law given by Zeus to direct him to his true end. Basically, if Man is left to set his own goals, he won't set the bar high enough and won't act in such a way that lets him frolic eternally on top of Mount Olympus. Since our actions are directed by laws, divine laws will get us to act in the way we need. Whew!
(2) Because people can reason incorrectly and come to different judgments on moral decisions and contradictory human laws, for people to know exactly what they should do, there needs to be law given by Zeus (Aquinas uses the generic "God", but I'm quite sure he meant Zeus). Ok, so where do we get this famous divine law? He doesn't say here, but I'm gonna wager he's talking about The Iliad and The Odyssey, two obviously inspired texts whose events are factually corroborated by selective readings of history.
(3) Step three. Judge what's in me! It's not entirely clear what he's talking about here but I'll let you decide. He says that since people can only judge exterior acts and not "interior movements that are hidden" a divine law is required. So, is he talking about interior acts of others? Or is he talking about Orwellian thought crime? It seems like he's referring to the latter in the passage:
"...for the perfection of virtue it is necessary for man to conduct himself rightly in both kinds of acts. Consequentially, human law could not sufficiently curb and direct interior acts, and it was necessary for this purpose that a divine law should supervene" (my italics).
(4) Step four. It can punish you more! Divine law in necessary because "human law cannot punish or forbid all evil deeds". True dat. The next line actually warns against the dangers of legislating against thought crime (unless you're Zeus). "...since it would do away with many good things, and would hinder the advance of the common good, which is necessary for human living."
This post is getting way too long...I'm going to stop here and make a (shorter) part two.
g'nite...
ps. feel free to tell me about typos and glaring errors...
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