Chap. 13: Law and Morality
CHAP. 13: LAW AND MORALITY
AQUINAS’S VIEW ON LAW AND MORALITY stands between two extremes. On the one hand, theonomists reduce all law to divine law, insisting that human governments should be based on biblical law. On the other hand, situationists insist that there are no moral absolutes, reducing all law to human law. So, the questions before us are these: What is the relation of divine law and human law? Are there any natural moral laws common to all people but not unique to any one of the many claimants to divine revelation? To these and related questions, Aquinas offers an amazingly contemporary and relevant answer.
The Nature of Law
THE DEFINITION OF LAW
For Aquinas "law is a defined measure or rule by which we are led to act or withheld from acting."1 It is "an ordinance of reason made for the common good by the public personage who has charge of the community, and [is] promulgated."2 Thus, law is the basic rule or principle by which actions of persons are directed. Law is a first principle for action. For "the rule and measure of human activity is the reason, the first principle of human activity, whose function is to direct means to ends."3
LAW AS A FIRST PRINCIPLE
Each area of human activity has its own first principles. As we have already seen (see Chap. 6), there are first principles of human thinking, such as the law of non-contradiction. Likewise, there are first principles of human acting, such as moral laws. "The precepts of the natural law are to the practical reason what first principles of science are to the theoretical reason." For "reason is the first principle of human acts." It should be noted that they are not first principles of the theoretical reason but of practical reason. That is, they are operative not in speculative matters but in practical matters. Hence, "the first principle of the practical reason is our ultimate end, or happiness; law is chiefly concerned with planning for this."4 In brief, law is the rule directed toward the common good (happiness).
THE PROMULGATION OF LAW
In order for a law to be in effect, it must be promulgated. For "no one is obliged to obey a precept unless he be reasonably informed about it."5 This follows logically from the nature of law as a duty of action for the common good. Thus, "to lay an obligation a law must be applied to the men who have to be regulated, and this means that it must be brought to their knowledge by promulgation."6 In this sense ignorance of the law is a legitimate excuse not to obey it. But since "man does not make the law for himself, but through the act of his knowledge, by which he knows a law made by someone else, he is bound to fulfill the law."7 Aquinas illustrates this point as follows:
If a mistaken reason bids a man sleep with another man's wife, to do this will be evil if based on ignorance of a divine law he ought to know; but if the misjudgment is occasioned by thinking that the woman is really his own wife, and she wants him and he wants her, then his will is free from guilt.8
In summation, law by nature is a measure for conduct. It is a first principle of human action. But in order to be in effect, the law must be proclaimed. Once proclaimed, a law is binding.
Kinds of Law
ETERNAL LAW
Eternal law is "the idea existing in God as the principle of the universe and lying behind the governance of things."9 It is the source and exemplar of all other law. For "all laws derive from the eternal law to the extent that they share in right reason." It is eternal "because naught in the divine reason is conceived in time, for the plan was set up from eternity."10 So eternal law is the divine reason by which the universe is ruled. "All things subject to divine providence are ruled and measured by the eternal law, and consequently it is clear that somehow they share in the eternal law, for under it they have their propensities to their appropriate activities and ends."11 It is the eternal mind of God as it conceived and determined all that would be and how it would be run. From it flow all other kinds of law, whether natural, human, or divine.
NATURAL LAW
Natural law is a derivative of eternal law. In fact, "natural right is contained in the eternal law primarily, and in the natural judicial faculty of human reason secondarily."12 Natural law, then, is the human participation in eternal law by way of reason. In brief, natural law is "the natural light of reason, by which we discern what is right and wrong." It is "naught else but the impression on us of divine light."13 All rational creatures share in natural law. It is the law written on their hearts (Rom. 2:15).
Natural law teaches us to do good and shun evil. But "good and evil should be set in the context of what is proper to man as man. This is his rational life."14 So a good act is one in accordance with human (rational) nature while an evil act is one contrary to reason. According to Aquinas, the sad fact is that "most men seem to live according to sense rather than reason.15
To live according to human nature, however, does not mean that human nature is the ultimate measure of all things. For "in voluntary activity the proximate measure is the human reason, the supreme measure the eternal law." In other words, "the measure of human willing is double: one close and of the same nature, namely the human reason itself; the other, first and transcendent, namely the eternal law which is like the reason of God."16 Thus, "when a human act goes to its end in harmony with the order of reason and eternal law then the act is right; when it turns away from that rightness it is termed sin."17 Human reason is the basis for natural law only insofar as it participates in the Eternal Reason. Hence, in this sense "to disparage the dictate of reason is equivalent to condemning the command of God."18
HUMAN LAW
Human law, also called positive law, is the attempt of human reason to make practical laws based on natural law. Human law is a particularization of the general principles of natural law.
Human law may be inferred from natural law in two ways. "Some precepts are inferred from the natural law as a conclusion, thus thou shalt not kill comes from thou shalt not harm." Others, however, "relate to the natural law as determinate embodiments; for though it may be declared that criminals should be punished, the natural law does not settle the character of the punishment." In short, human law may be derived from natural law "either as a conclusion or as a particular application."19 According to Aquinas, the first is like a demonstrative science and the second like an art. Hence, "laws that are declared as conclusions have their force from the natural law as well as from enactment. But laws that are decreed as applied decisions have their force from human legislation."
Not everything forbidden by human law is essentially evil. For "some things are commanded because they are good, or forbidden because they are evil. Others again are good because they are commanded, or evil because forbidden."20 Of course, "a human act that is faulty and a sinful kind of act is wrong under all circumstances whatsoever. An act of vice, forbidden by a negative precept, is never to be committed by anyone." However, "in an act of virtue, which is commanded by an affirmative precept, many factors have to conspire to make it right. . . . [Thus, it] need not be complied with persistently and in every case, but only when the due conditions of person, time, place, and situation demand its observance."21
Human law is imposed on imperfect people. "Therefore it does not forbid all vices, from which the virtuous keep themselves, but only the graver ones which the majority can avoid, and chiefly those that are damaging to others and on prevention of which depends social stability."22 That is, "human law cannot forbid all and everything that is against virtue; it is enough that it forbid deeds against community life; the remainder it tolerates almost as if they were licit, not indeed because they are approved, but because they are not punished."23 In short, "every act of virtue is not commanded by human law, but only those that can be enjoined for the public good."24 For "the immediate end of human law is men's own utility."25
Of course, not every human law is legitimate. For "every law is ordered for the common good, and a precept has the force of law only when it serves this community benefit."26 Laws contrary to the common good (which is demanded by the natural law) do not have the force of law. Likewise, laws that are not promulgated, even if they are directed to the common good, are not binding.
DIVINE LAW
Divine law has a different purpose than natural law. "The intent of the divine law given to man is to lead him to God." That is, "the entire purpose of the lawgiver is that man may love God."27 Divine law, therefore, is not given to unbelievers but to believers. Natural law is for unbelievers. Divine law is binding on the church, while natural law is binding on all society. Natural law is directed toward our temporal good, but divine law is directed toward our eternal good.
Inasmuch as natural law reflects the very character of God, it cannot change. Divine law, however, is based on God's will and therefore can be changed. Hence, "in divine as in human law, some things are commanded because they are good. . . . Others again are good because they are commanded."28 This is reflected in God's change in divine law from the Old Testament to the New Testament. The natural law, however, has not been altered; it remains the same from age to age and from person to person.
The Purpose of Law
In general, the purpose of law is to regulate human activity. Each kind of law, of course, has its own specific kind of regulation. Eternal law is the means by which God regulates the entire universe; divine law is that by which he regulates the church; and natural law is the means of regulating the actions of all rational creatures. In addition to these spheres, Aquinas spells out several specific dimensions of God's purpose for giving law.
Promoting Friendship
One of the purposes of law is to promote friendship. "As the leading purpose of human law is to bring about friendship of men among themselves, so divine law is chiefly intended to establish men in friendship with God."29 If human behavior is to be civil, it must be regulated. Apart from laws friendship cannot function, since it is the measure of right relationships.
Stimulating Love of God
Jesus summarized the law as love of God and love of others. Aquinas, then, notes that "the entire purpose of the lawgiver is that man may love God." Hence, it is not either law or love; rather, it is the law of love. Thus "the intent of divine law given to man is to lead him to God." For "love is our strongest union with God, and this above all is intended by the divine law."30 God is love, and the highest duty is to love him. Thus the primary purpose of God's law is that we may love him.
Punishing Evil
Of course, Aquinas realizes that not everyone will obey God's laws. Hence, a secondary purpose in giving law is punishment. But even here "the value of human penalties is medicinal and insofar as they promote public security of the cure of the criminal."31 This is also true of divine and natural law. The primary purpose is for our good, but the secondary purpose is to penalize those who disobey. But the hope is that even the punishment will help cure the violator.
Achieving the Common Good
Human law also has the purpose of achieving the common good. Aquinas recognizes that "to make a rule fit every case is impossible." Hence, "legislators have to attend to what happens in the majority of cases and should frame their laws accordingly." For example, "the law commands that deposits [things borrowed] should be returned, but this, though just in most cases, may sometimes be damaging, as when a weapon is returned to a raging maniac."32 So what is productive of the common good is not always right in a specific case. Since law makers cannot take every specific exception into consideration, they must base their law on what happens in the majority of cases. For example, a biologist says a human hand has four fingers and a thumb, realizing that in some cases persons have fewer or more.33
Conflicting Situations
Aquinas is aware of the fact that there are conflicts among laws. But even in unavoidable conflicts he sees a priority among the conflicting laws that could resolve the problem.
The Priority of Natural Law over Human Law
Aquinas believes there are exceptions even to just human laws. Human laws are only general, not universal. Hence, at times the natural law overrides them. As just noted, even though the law of property rights demands that we return what we have borrowed when requested, nonetheless we should not return a weapon to a person who is in a murderous rage. In such a case, "to follow the law as it stands would be wrong; to leave it aside and follow what is demanded by fairness and the common benefit will then be right."34 The virtue of justice or equity demands this. In other words, the moral law takes precedence over the human law in these special cases, even if the human law is a just law.
Laws Based on God's Nature over His Will
Aquinas distinguishes between laws based on the nature of God and those flowing only from God's will. The latter can be changed while the former cannot.35 Both divine law and human law, based on God's will, can be changed. The natural law, however, is based on God's nature and cannot be changed.36 Hence, it would follow that whenever there is a conflict between unchangeable law and changeable law, the former would take priority over the latter. Such seems to be what Aquinas has in view when commenting on the fact that Jesus' disciples broke the Jewish law. For "when the disciples picked ears of corn on the Sabbath they were excused from breaking the law by necessity of hunger. Nor did David transgress the law when he took the loaves it was illegal for him to eat."37
The Letter versus the Spirit of the Law
How Aquinas would resolve conflicting moral situations also emerges in his treatment of "letter of the law" issues. He observes that "the judgment that the letter of the law is not to be followed in certain given circumstances is not a criticism of the law, but an appreciation of a particular situation that has cropped up."38 Otherwise severity would take priority over equity. For "legal-mindedness should be directed by equity, which provides a higher rule for human activity."39 There is a "higher rule" or law and there are lower laws. When they conflict, we are obligated to take the higher over the lower.
Morality
According to Aquinas, there are four "cardinal" or reasonable virtues (prudence, courage, temperance, justice) and three divine virtues (faith, hope, love). The reasonable virtues are common to all rational creatures, and are naturally attainable. The divine virtues, however, are supernatural and received only by God's grace.
The Cardinal Virtues
There are four cardinal virtues. By "cardinal" Aquinas means others hinge (Lat. cardo) on them. Not that these are the only virtues, but they are the pivotal ones. Of these Aquinas believes that "prudence opens the way for the other virtues."40
Prudence (Wisdom)
"Prudence furnishes the right plan for immediate conduct."41 It is both thoughtful and practical. It is good sense applied to conduct.42 Prudence chooses the best means to the good end.43 Since prudence applies principles to particular cases, it does not establish moral purposes, "but contrives the means thereto."44 Prudence does not establish a moral end but presupposes it. "That we should live according to right reason is presupposed to prudence. But how, and through what means, our conduct may keep the reasonable measure, that is the affair of prudence. Prudence does not determine our moral duty (the natural law does that), but it devises a plan of conduct to attain it. Since prudence also induces the right frame of mind, it is an intellectual virtue as well as a moral one."45
There are three kinds of prudence: "solitary prudence directed to one's own benefit; economic or domestic prudence directed to the good of a household or family; and political prudence ordered to the common good of the State."46 Three stages are marked in prudent conduct. First, we take counsel and discuss the question. Next, we make a judgment about the matter as to the best course of action. Finally, we apply the counsel and judgment to what must be done here and now.47 Since "an infinity of singulars cannot be comprehended by the human reason," prudence does not deal with universals but with "what usually happens."48 There is no absolute certainty with prudence. "Opinion [probability] is about things that could be otherwise, and so is prudence."49 Wisdom, then, deals only with what is generally the case; it does not admit of universals. Only the natural law does that.
Courage
Courage is the virtue of "holding steady in the face of danger."50 It includes patience.51 Courage is both a general and a special virtue. As a general virtue, courage is "a firmness of spirit, or a condition of every virtue." As a special virtue, courage is "a particular firmness in enduring and repulsing threats n situations fraught with conspicuous difficulty."52 Courage is obtained by drawing close to God. For "the nearer a man is to God, who is ever constant, the more steadfast he is and the less ficlde."53 In the display of courage two characteristics should be considered: "the premeditated deliberateness and the habit of discipline."54 It is the latter that manifests itself in emergencies. Courage is not to be confused with aggressiveness. For "holding steady in danger is more important than taking the offensive."55 Courage, then, is the virtue that enables us to hold fast in the face of danger.
Temperance
Temperance is the virtue of moderation. The virtues of "justice and courage are more immediately related to the common good than temperance is, for justice controls transactions with others, while courage rides the dangers to be undergone for the common good." By contrast, "temperance moderates merely one's own personal lusts and pleasures. Therefore, the others are greater virtues, and prudence and the divine virtues are more potent still. "56
The virtue of "temperance does not abolish all depraved lusts, but the temperate man does not tolerate them as does the intemperate man."57 A temperate person is one who modifies sensual desires by reason. The intemperate person is childish. First, both intemperate persons and children desire graceless things. For "a child does not bother about counsels of moderation . . . ; neither does lust listen to sobriety." Second, both are spoiled when left to their own devices. "Concupiscence grows with gratification." Third, "both require the same remedy, namely, the use of force." Thus, "when lusts are resisted they may be tamed to the due manner of decency."58
A temperate person does not avoid all pleasure. For "nature provides pleasure in vitally necessary activities, and the natural order requires that a man should enjoy what is required for the well-being of the individual and the race." In fact, "were someone to avoid pleasure so far as to omit what is a natural necessity he would sin, as though resisting the design of nature." Indeed, "a man cannot lead a reasonable life if he avoids all pleasure. He who abhors pleasures because they are pleasurable is boorish and ungracious."59
Justice
Justice is the virtue that "directs our deeds with regard to other people under the aspect of what is owing to them."60 In other words, "justice stands out as rendering another man his due."61
Human "rights are the special object of justice."62 There are two kinds of rights: natural and positive. The former is a right "from the very nature of things." The other is a right "from agreement, either private or public."63 Natural rights have priority over positive rights. And "what is contrary to natural right cannot be made just by human will. Woe to those who make iniquitous laws [Isa. 11:1]."64
Aquinas believes there are two main reasons why people fall short of justice—deference to magnates and deference to the mob. Both yield to might over right. In the first case it is a yielding to social power and in the second a yielding to physical power. Each subordinates fairness to force. Both subordinate principles to pressure.
The Divine Virtues
Following the apostle Paul (1 Cor. 13:14), Aquinas believes that the principal Christian virtues are faith, hope, and love, and the greatest of these is love. These actions all take divine grace to perform; hence, they are not natural but divine. They are supernatural virtues since they "surpass human virtue; for they are virtues of men as made partakers in divine grace."65
Faith
Faith is prior to hope and love, since "it is by faith that the mind apprehends what it hopes for and loves. And so in the sequence of coming to be, faith has to precede hope and charity." Faith is the substance of things hoped for and the evidence of things not yet seen (Heb. 11:1). Hence, faith is meritorious because it involves the will to believe.
The supernatural virtue of faith does not destroy reason but complements it.66 Faith goes beyond reason and "sees" what reason cannot see. Thus "faith is the foretaste of that knowledge which hereafter will make us happy."67 In brief, the virtue of faith is directed toward our eternal happiness.
Hope
Hope is the virtue of expectation. It provides confidence in the content of faith that is perfected by love. "Hope denotes a movement toward that which is not possessed. . . . When, therefore, what is hoped for is possessed, namely the enjoyment of God, hope will no longer be possible."68 Hope implies four things: "that it is good, future, arduous, possible. Hence, respectively, hope differs from fear, joy, simple desire, and despair."69
Like faith, hope precedes love.70 As we will see, however, love is prior to hope by its very nature. For both faith and hope need love to complete them.
Hope is the mean between the extremes of presumption and despair. Presumption means hoping to receive from God a good in excess of our condition, or to despair through failing to hope for what we could hope for according to our condition. Yet "there can be no excess of hope in looking to God, for his goodness is infinite."71 Thus, "the act of hope consists in reliance upon God for future beatitude."72
Love
Aquinas believes that "love is the form, mover, and root of the virtues."73 Unlike the natural virtues, "the object of charity is not the common good, but the highest good."74 Following the words of Jesus, Aquinas holds that "there are two precepts of charity: Thou shalt love the Lord thy God with thy whole heart. . . And the second is like to it: thou shalt love thy neighbor as thyself."75
Faith and hope cannot be completed without love. Faith draws God to man, but "love draws man to God."76 Of course, "faith and hope can in a way exist without charity, but they have not the perfect status of a virtue without charity." This is because "the work of God is to believe in God, and . . . to will otherwise than as one ought is not a perfect work of faith." But "to will as one ought is caused by charity, which perfects the will; for every right movement of the will proceeds from a right love, as Augustine says."77
As for Augustine's summary of the virtues in terms of love, Aquinas responds: "Augustine's saying is to be understood of virtue in its unqualified sense; not that every such virtue is simply love, but that it depends in some way on love, inasmuch as it depends on the will, the primordial motion of which is love."78 Love is not the essence of each virtue but the essential motive behind it. Without love, the other virtues are less virtuous.
There are many values in Aquinas's treatment of law and morality from an evangelical perspective. Several may be briefly noted in conclusion. First, unlike many modern thinkers, Aquinas does not reduce all law to human (positive) law. Rather, human law ought to be based on natural law from which it draws its legitimacy. Without an unchangeable anchor for civil law in moral law, human rights cannot be protected.
Second, since natural law is common to all people, not just believers, it can be used as the basis for civil law in religiously pluralistic societies. This avoids the problems of theonomy, wherein divine law is pronounced or practiced as the only legitimate basis for human government. The history of the Christian church gives ample testimony to the fatal consequences of such a view.
Third, since natural law is transnational, it provides a basis for international activity and commerce. Without natural law common to all people, there is no objective basis for the condemnation of tyrants like Hitler and Stalin. For if positive (civil) law is the last word, then each nation can do what is right in its own eyes.
Fourth, by distinguishing between unchangeable laws flowing from God's nature (in natural law) and changeable laws flowing from his will (divine law), we are able to understand the progress of revelation in Scripture whereby God changed the Old Covenant and brought about the New Covenant (Heb. 7). In this way, the extremes of theonomy can be avoided without falling into the pit of antinomianism.
Finally, the distinction between divine law and natural law provides a basis for distinguishing human duty from Christian duty, which is greater. For while the natural law bids us not to harm others, the divine law exhorts us to help them. The natural law demands justice, but the divine law urges love.