Zumba Theologica Part 1: Aquinas Gets Down with Natural Law

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...

Is it Ever OK to Break the Law?

Notes and Thoughts on H. L. A. Hart's Grudge Informers and the Rule of Law


Overview


Within philosophy of law, the traditional main positions are what's know as natural law and legal positivism.  Simply put, natural law is the idea that there is some sort of relationship between the law and morality (usually, law arises out of morality).  Legal positivism, on the other hand, is the idea that the law and morality are separate.  The position one takes in this debate has important consequences when we consider the source of the underlying authority of the law and one's duty to obey the law.


Legal Philosophy In Action!!!


Lets look at an actual case so we can see how the issues in this debate come to life.  This is the case of the "grudge informer": i.e., when a person intentionally informs on another to get them in trouble.  In this particular case the law for which a person is convicted is of questionable moral legitimacy.  The actual case we will look at is from post-WWII Germany.  


During the Nazi regime, there were laws against making disparaging remarks against Hitler.  A woman--lets call her Olga--wanted to get rid of her husband, so she reported her husband to the Nazi authorities when he made statements that were anti-Hitler.  She was under no legal obligation to report him, but she took it upon herself to do so.  Her husband--lets call him Helmut--was arrested and sentenced to die the death (he was instead sent to the front).


In 1949 (post WWII), the wife was prosecuted in a German court for "illegally depriving a person of his freedom" which was a crime under the German Criminal Code of 1871.   The wife argued that her husband's punishment was legal under the Nazi laws, and so she had not acted illegally.  The court of appeals ultimately ruled that even though Helmut had violated a Nazi law, that law "was contrary to the sound conscience and sense of justice of all decent human beings."


Lets take a step back and look at these events within the context of the postivist vs. naturalist debate.  Recall that the positivist holds that a law is a law, regardless of whether you think it's moral, and so you have to follow it (but you can object to it and try to change it through normal legislative procedures).  The naturalist says, if a law is unjust/immoral (pick your language) then it is not a "true" law, and you are not obligated to follow it.


So, Olga was giving a positivist argument.  She was all, um..."the law said if you talk smack about H-dawg then you goin' to jail, foo...and Helmut was talkin' smack.  I di'int do nothin' wrong, that foo Helmut was jibber jabberin', not me."


And Helmut was all, "natural law it da best.  Jus' cuz some asshole makes a crazy law don't mean it's legit, or you gotta follow it.  If that was true, then any crazy person who gets into power can make crazy laws an' we all gotta follow them...that's just wack."


An' I was all...how come Helmut and Olga talkin' like they from the hood, aren't they German?


Lets look at the case through the lens of a legal positivist.  From this point of view Olga did nothing wrong by following whatever laws applied at the time.


The obvious objection is that the law that she followed was immoral/unjust.  But, if we set the precedent that people can make it a matter of conscience to follow or disregard laws based on their ideas of morality how can the law have any force if it becomes a matter of individual discretion? And more problematic, if everyone adopts the naturalistic attitude, how can there be any law at all except everyone's subjective laws?


Even if we say one ought not to follow immoral/unjust laws we have the problem of determining what laws are immoral/unjust.  Anyone who thinks there is consensus within a country about moral issues has never read a newspaper.  Lets lower the bar even further and say that there's a hypothetical society were everyone magically comes to a consensus on all moral issues and subsequently changes all their non-conforming laws to conform with it.  What do we do with everyone who previously acted on laws that are now considered unjust?  Do we retroactively arrest and convict  them?  What about the people who turned people in for breaking the previous unjust laws?  What do we do with them?  There are so many problems it's making my head spin.  What do? What do?


Obviously, you ax a famous legal philosopher.  Let me introduce my main man, H. L. A. Hart.  He says that although we may sympathize with the objective of the German court to punish someone for an immoral act, we need to recognize that it was achieved by declaring that a 1934 law was actually not a law.  This puts into question the legitimacy of all laws because, as I've already mentioned, who's to say that a law we have now might be seen as immoral in the future?  And, we might be stripping away the legitimacy of all law because we are sending the message that people, in some cases, should, nay, must act contrary to the law!


Hart says instead ruling based on the principle that Olga's actions were immoral there were two other choices:  (1) let the woman go unpunished.  (2) punish the woman with the introduction of a retroactive law and "with a full consciousness of what was sacrificed in securing her punishment in this way."
So, lets review the choices and the problems with each one.  If we convict her using the logic of the German court, we undermine the integrity of the law (generally) because there is no way of knowing if a law that we act according to might later be considered a crime and lead to our punishment.  In short, one day it's a law, another day it's a crime.  It's very difficult for a legal system to maintain legitimacy if this occurs frequently.  If we decide we don't want to compromise the integrity of the legal system we can choose not to punish Olga.  But this also sends the wrong message, that there are no consequences to acting like a robot when the law compels us to do immoral things.  It divests the individual from considering matters of responsibility for their actions.


Last we can punish Olga by introducing a retro-active law with a full awareness of everything that's at stake.  The dangers of this route are that we undermine the legitimacy of law and consequentially weaken the compulsion to obey it.  On the happy side (Yay!), if we acknowledge all the mitigating factors in our judgement, we can minimize the damage that he legitimacy the institution of law--it would "at least have the merits of candour."  The idea is that, by acknowledging the difficulties brought about by the other two choices a balance is struck between personal accountability for one's actions and obligation to the law.  This third choice is the lesser of the evils, and such a choice must be made "with the consciousness that they are what they are."


In a nutshell, I think what Hart is proposing is that when we are faced with a difficult situation like Olga's case we need to say, "look, if we choose to convict her on the grounds that what she did was immoral, then we grant too much power to individuals to decide whether they will obey laws or not, and law ceases to have compulsion and be universal.  If we don't punish her, then we are indirectly condoning immoral behavior and removing from individuals all personal responsibility for action.  So, we are left with a third option, which isn't perfect, but strikes some sort of balance.


Think On It


So, is a law always a law?  If not, who gets to decide if a particular law is a law? The individual or a group?  Give up?  The answer is so simple:  It's whatever Vishnu decreed in the Upanishad.  Duh!