24. On Law and Natural Law. summa theologiae, 1–2, 90–94 (1271)
24. On Law and Natural Law.
Summa theologian 1–2, 90–94 (1271)
The so-called Treatise on Law has enjoyed an autonomous career in recent years, often being published separately from Part I of Part 2 of the Summa theologiae, of which it forms a part. An adequate understanding of it must depend on what has preceded it and on what follows it. This is not to say that no understanding of it as a separated unit is possible, but this severed existence has sometimes led to a distorted view of Thomas’s moral doctrine. Readers worry about Thomas’s legalism in morals and wonder how what he has to say about law comports with the role of virtue.
The Treatise on Law is not another moral theory than that found in the questions and articles that preceded it; rather it complements and depends upon them. Moral goodness consists in willing the good that is recognized by the mind. The moral part of the Summa begins with what can be called an end/means analysis of action. By seeming contrast, the Treatise on Law employs a rule/application model of action.
The term law is for Thomas an analogous one. When he sets forth in Question 90 the essence of law, it is clear that human positive law is at the forefront of his mind. The other laws to which he draws our attention – eternal law, natural law, divine law – participate more or less perfectly in the definition of law. From a linguistic point of view, human law is law properly speaking. Ontologically, however, it is the eternal law that is the measure of all other laws.
It is the relation between natural and human law that attracts readers, since the derivation of the latter from the former is what legitimates it. The common principles of natural law are prescriptions that the good or end must be pursued. The process of inquiry leading to a proximate rule for action is the search for appropriate means to achieve the end. The complementarity of the two models of action is inescapable.
Summa theologiae, First Part of the Second Part, Questions 90–94 Treatise on Law
QUESTION 90
THE ESSENCE OF LAW
We must now consider the exterior principles of acts. The exterior principle inclining to evil is the devil, of whose temptations we spoke in Part 1. The exterior principle moving towards good is God, who instructs us through the law and helps us with grace. First then, we must speak of law; second, of grace. With respect to law, we must first consider law in general, and, second, its parts. As for law in general, there are three things to be taken up, first, its essence; second, the different kinds of law; third, the effects of law. Four things must be asked about the first: (1) whether law is something of reason; (2) the end of law; (3) its cause; (4) its promulgation.
Article 1: Is law something of reason?
It seems that it is not.
1. The Apostle says in Romans 7.23, ‘I see another law in my members…’ But nothing that is of reason is in the members, because reason does not use a bodily organ. Therefore law is not something of reason.
2. Moreover, in reason there is only power, habit and act. But law is not the power of reason, nor does it seem to be any habit of reason, because the habits of reason are the intellectual virtues, of which we spoke earlier. Nor is it the act of reason, because then law would cease when the activity of reason stopped, as in those sleeping. Therefore law is not something of reason.
3. Law moves those subject to it to act rightly. But to move to action pertains properly to will, as is clear from the foregoing. Therefore law does not pertain to reason, but rather to will, as even the Jurist says: what pleases the prince has the force of law.
ON THE CONTRARY:
It is for law to command and prohibit. But it is reason that commands, as was said above. Therefore law is something of reason.
It should be said that the law is a rule and measure of acts, according to which someone is led to act or to refrain from acting: law [lex] comes from ‘binding’ [ligando], because it obligates to act. But reason is the rule and measure of human acts, because it is the first principle of human acts, as is clear from the foregoing: it pertains to reason to order to the end, which is the first principle in things to be done, according to the Philosopher. In no matter what genus that which is the principle is the measure and rule of that genus, as unity in the genus of number, and the first motion in the genus of movements. It follows that law is something pertaining to reason.
Ad 1. It should be said that since law is a rule and measure, it is said to be in something in two ways. In one way, as in the measuring and ruling. Since this is proper to reason, in this way law is in reason alone. In another way, as in the ruled or measured, and thus law is in everything which is inclined to something by some law, such that any inclination coming from some law can be called law, not essentially, but by way of participation. And in this way the inclination of the members to concupiscence is called the law of the members.
Ad 2. It should be said that just as in exterior acts we must consider both the activity and the product of the activity, for example, building and the house, so in the works of reason we must consider the very act of reason, which is understanding and reasoning, and something constituted by them, which in speculative reason is, first, the definition, then the enunciation, and finally the syllogism or argument. And because practical reason uses a kind of syllogism in things to be done, as was said above and as the Philosopher teaches in Ethics 8.3, we must find in practical reason something that is to operation as, in speculative reason, the proposition is to conclusions. Such universal propositions of practical reason ordered to action have the character of law. These propositions are sometimes actually considered, and sometimes are held in reason habitually.
Ad 3. It should be said that reason has the power to move from the will, as has been said above. From the fact that someone wills the end, reason issues commands about things which are for the sake of the end. But in order for the things commanded to have the character of law, will must be regulated by reason. And thus we should understand that the will of the prince has the force of law, otherwise the will of the prince would be iniquity rather than law.
Article 2: Is law always ordered to the common good?
It seems not.
1. It pertains to law to command and prohibit. But precepts are ordered to quite singular goods. Therefore the common good is not always the end of law.
2. Moreover, law directs man to act; but human acts concern particulars. Therefore law is ordered to a particular good.
3. Moreover, Isidore says in the Etymologies 2.10 that if law is established by reason, everything that reason establishes would be law. But reason does not only order to the common good, but also to the private good. Therefore, law is not ordered to the common good alone, but also to the private good of an individual.
ON THE CONTRARY:
Isidore says in the Etymologies 5.21 that law is not written for some private advantage but for the common utility of the citizens.
RESPONSE:
It should be said that, as has been mentioned, law pertains to that which is the principle of human acts, because it is a rule and measure. For just as reason is the principle of human acts, so too there is in reason itself something which is a principle with respect to all else, and law pertains to this especially and principally. The first principle in things to be done, with which practical reason is concerned, is the ultimate end. Felicity and happiness are the ultimate end of human life, as was said above. Hence law must especially look to the ordering to happiness. Again, since every part is ordered to its whole as the imperfect to the perfect, and one man is a part of the perfect community, it is necessary that law properly look to the order to the common happiness. Hence the Philosopher, in the cited definition of legal matters, makes mention of happiness and political community. For he says in Ethics 5 that we call those things legally just that are creative and conservative of happiness and its particulars by political co-operation; for the city is the perfect community, as is said in Politics 1. In whatever genus that which is the most is the principle of the others, and the others are named as ordered to it, as fire, which is the most hot, is the cause of heat in mixed bodies, which are called hot to the degree that they participate in fire. Hence it is necessary that, since law is said to consist especially in its order to the common good, any other precept concerning a particular deed has the character of law only insofar as it is ordered to the common good. Therefore, every law is ordered to the common good.
Ad 1. It should be said that a precept implies an application of law to the things which are regulated by law. But the ordering to the common good, which pertains to law, is applicable to singular ends. And so far forth precepts are given of some particulars.
Ad 2. It should be said that operations are indeed concerned with particulars, but those particulars can be referred to the common good, not by a community of genus or species, but by the community of final cause, insofar as the common good is said to be the common end.
Ad 3. It should be said that just as nothing is firmly established in speculative reason save by resolution to first indemonstrable principles, so nothing is firmly established in practical reason save through ordering to the ultimate end, which is the common good. What relates to [practical] reason in this way has the character of law.
Article 3: Is anyone’s reason the cause of law?
The answer seems to be yes.
1. For the Apostle says in Romans 2. 14, ‘When the Gentiles who have no law do by nature what the Law prescribes, these having no law are a law unto themselves.’ He says this universally of all. Therefore anyone can make a law for himself.
2. Moreover, as the Philosopher says in Ethics 2.1, it is the intention of the legislator to lead men to virtue. But any man can lead another to virtue. Therefore, the reason of any man is cause of law.
3. Moreover, as the prince of the city is its governor, so any father is governor of the home. But the prince of the city can make law in his city; therefore any father who heads a household can make law in his home.
ON THE CONTRARY:
Isidore says in the Etymologies 5.10 — and it is also to be found in the Decretals, Distinction 2 — that law is an ordinance of a people insofar as the elders along with the people sanction something. Therefore, it is not for just anyone to make law.
It should be said that law properly, first and chiefly, looks to the order to the common good. But to order something to the common good is either the task of the whole multitude or of someone bearing the power of the multitude. Therefore, to fashion law pertains either to the whole multitude or to some public person who has charge of the whole multitude. Because, as in all other cases, ordering to the end is proper to the one whose end it is.
Ad 1. It should be said that, as was explained above, law is not only in the one regulating but also by way of participation in the regulated. In this way, each person is a law unto himself, insofar as he participates in the order of some ruler. Hence in the same place is added, ‘They show the work of the Law written in their hearts.’
Ad 2. It should be said that the private person cannot efficaciously lead to virtue. He can admonish, but if his warning is ignored, he does not have any power to coerce, as law does, in order that it might efficaciously lead to virtue, as the Philosopher says in Ethics 10.9. The multitude or the public person has this coercive power which pertains to the exacting of punishment, as will be said below. Therefore it pertains to it alone to make laws.
Ad 3. It should be said that just as a man is part of a household, so the household is a part of the city, for the city is a perfect community, as is said in Politics 1.1. Therefore, just as the good of one man is not the ultimate end, but is ordered to the common good, so too the good of one household is ordered to the good of one city, which is a perfect community. Hence he who governs a family can indeed make precepts or statutes, but they will not properly have the character of law.
Article 4: Is promulgation of the essence of law?
It seems that it is not.
1. Natural law especially has the character of law, but natural law does not need promulgation. Therefore it is not of the essence of law that it be promulgated.
2. Moreover, it properly belongs to law to oblige that something be done or not done. But not only those before whom the law is promulgated are obliged, but also others. Therefore, promulgation is not of the essence of law.
3. Moreover, the obligation of law extends into the future, because laws impose necessity on future business, as the jurists say. But promulgation is made to the present generation. Therefore, promulgation is not necessary for law.
ON THE CONTRARY:
It is said in Distinction 4 of the Decretals that laws are instituted when they are promulgated.
RESPONSE:
It should be said, as has been mentioned, that law is imposed on others by way of rule and measure. But the rule and measure are imposed by being applied to those ruled and measured. Hence, in order for a law to have the power of obliging, which is proper to law, it is necessary that it be applied to those who should be regulated by it. Such application comes about insofar as they come to know of it by its promulgation. Hence promulgation is necessary in order that law have its power.
From the foregoing four parts a definition of law can be constructed: Law is nothing else than a certain promulgated ordinance of reason to the common good by one who has charge of the community.
Ad 1. It should be said that promulgation of the law of nature comes about when God inserts it in the minds of men in order that they might naturally know it.
Ad 2. It should be said that those before whom the law is not promulgated are obliged to keep the law insofar as it comes to their knowledge through others, or can so come, the promulgation having been made.
Ad 3. It should be said that present promulgation extends into the future through the permanence of writing, which in a way promulgates it always. Hence Isidore says in the Etymologies 2.10, that law [lex] comes from reading [legendo], because it is written.
QUESTION 91
THE DIVERSITY OF LAW
Next the diversity of law must be considered, and on this point six things are asked: (1) whether there is an eternal law; (2) whether there is natural law; (3) whether there is human law; (4) whether there is divine law; (5) whether there is one or several divine laws; (6) whether there is a law of sin.
Article 1: Is there an eternal law?
It seems that there is not.
1. Every law is imposed on someone. But there was not from all eternity someone on whom law could be imposed, for only God is from all eternity. Therefore, no law is eternal.
2. Moreover, promulgation is of the essence of law. But promulgation cannot be from all eternity, because there was not from all eternity someone to whom it could be promulgated. Therefore no law can be eternal.
3. Moreover, law implies an ordering to the end. But nothing is from all eternity ordered to an end, since only the ultimate end is eternal. Therefore no law is eternal.
ON THE CONTRARY:
Augustine says in On Free Will 1.6, that the law which is called the supreme reason cannot seem to anyone with understanding to be other than changeless and eternal.
RESPONSE:
It should be said that, as was stated above, law is nothing other than a dictate of practical reason in the prince who governs some perfect community. But it is clear, supposing the world to be governed by divine providence, as was proved in Part 1, that the whole community of the universe is governed by divine reason. Then the very idea of the governance of things existing in God as the prince of the universe has the character of law. And because the divine reason conceives nothing temporally but has an eternal concept, as is said in Proverbs 8.23, such a law ought to be called eternal.
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Ad 1. It should be said that things which do not themselves exist, exist in God, insofar as they are foreknown and foreordained, according to Romans 4.17, ‘…and calls things that are not as though they were’. Thus the eternal concept of the divine law has the character of eternal law, insofar as ordered by God for the governance of things foreknown by him.
Ad 2. It should be said that promulgation comes about by word and writing, and in both these ways the eternal law has promulgation from the promulgating God, because the divine Word is eternal and the writing in the Book of Life is eternal. But on the part of the creature hearing or reading, there cannot be an eternal promulgation.
Ad 3. It should be said that law implies an order to the end actively, insofar as some things are ordered to the end by it, but not passively, that is, that the law itself is ordered to the end, except incidentally in the one governing whose end is outside himself, to which it is necessary that his law too be ordered. But the end of divine governance is God himself, nor is his law other than himself. Hence eternal law is not ordered to another end.
Article 2: Is there some natural law in us?
It seems that there is not.
1. A man is sufficiently governed by eternal law, for Augustine says in On Free Will 1.6 that the eternal law is that by which it is just that all things are perfectly ordered. But nature does not abound in superfluities, just as it is not deficient in what is necessary. Therefore there is no natural law in man.
2. Moreover, by law a man’s acts are ordered to the end, as was said above, but the ordering of human acts to the end is not by nature, as happens in irrational creatures, which by natural appetite alone act for the sake of the end; man acts for the sake of the end through reason and will. Therefore, there is no natural law in man.
3. To the degree that one is free he is less subject to the law. But man is freer than the other animals, thanks to free will, which he has beyond the other animals. Therefore since other animals are not subject to natural law, neither should man be subject to any natural law.
ON THE CONTRARY:
On Romans 2. 14, ‘These having no law are a law unto themselves,’ the Gloss says that although they do not have the written law, they have the natural law which each understands and is thereby conscious of what is good and what is evil.
RESPONSE:
It should be said that, as has been urged, law, since it is a rule and measure, can be in something in two ways: in one way, as in the one ruling and measuring, in another way, as in the ruled and measured, since insofar as they participate in something of the rule or measure, they are ruled and measured. Since all things subject to divine providence are ruled and measured by the eternal law, as is clear from what has been said, it is manifest that all things participate in some way in eternal law, insofar as by its impression they have inclinations to their proper acts and ends. Among others, however, the rational creature is subject to divine providence in a more excellent manner, insofar as he comes to be a participant in providence, providing for himself and others. Hence in him the eternal reason is participated in in such a way that he has a natural inclination to the fitting act and end. Such a participation in eternal law in the rational creature is called natural law. Hence when the Psalmist says in Psalm 4.6, ‘Offer sacrifices of righteousness, and hope in the Lord,’ he adds as if in response to someone asking what the works of justice are, ‘Many say: “Who will show us good things?” ’ Replying to that question, he says, ‘Lift up the light of thy countenance upon us, O Lord,’ as if the natural light of reason, whereby we discern good and evil, which pertains to natural law, is nothing else than the impression of the divine light in us. Hence it is evident that natural law is nothing other than the participation in eternal law on the part of the rational creature.
Ad 1. It should be said that that argument would work if natural law were something different from eternal law. But it is nothing but a participation in it, as has been said.
Ad 2. It should be said that every act of reason and will in us is derived from that which is according to nature, as was said above, for all reasoning derives from principles naturally known, and every desire for the things which are for the sake of the end derives from the natural desire for the ultimate end. Thus it is necessary that the first direction of our acts to the end should come about through natural law.
Ad 3. It should be said that even the irrational animals participate in the eternal law in their fashion, as does the rational creature. But because the rational creature participates in it intellectually and rationally, the participation in eternal law by the rational creature is properly called law, for law is something of reason, as has been said. But in the irrational creature it is not participated in rationally, hence it can only be called law by way of similitude.
Article 3: Is there a human law?
It seems that there is not.
1. Natural law is a participation in eternal law, as has been said. But all things are perfectly ordered through natural law, as Augustine says in On Free Will 1.6. Therefore natural law suffices for ordering all human affairs and there is no need for any human law.
2. Law has the character of measure, as has been said, but human reason is not the measure of things, but rather the reverse, as is said in Metaphysics 10.9. Therefore, no law can proceed from human reason.
3. Moreover, a measure ought to be most certain, as is said in Metaphysics 10.9. But the dictate of human reason as to what ought to be done is uncertain, in keeping with Wisdom 9.14: ‘For the thoughts of mortal men are fearful, and our counsels are uncertain.’ Therefore, no law can proceed from human reason.
ON THE CONTRARY:
Augustine in On Free Will 1.6 posits two laws, one eternal and the other temporal, which he calls human.
RESPONSE:
It should be said that, as was remarked above, law is a dictate of practical reason. But a similar process is found in practical and speculative reason, for both proceed from principles to conclusions, as we argued earlier. Because of this it should be said that just as in speculative reason conclusions in the various sciences are produced from indemonstrable principles naturally known, knowledge of which is not naturally given to us but which are discovered by human inquiry, so too from the precepts of natural law, as from some common and indemonstrable principles, human reason must proceed to dispose of more particular matters. And these particular dispositions discovered by human reason are called human laws, all the conditions of the essence of law being met, as was said above. Hence Cicero says in his Rhetoric 1.2 that the beginning of law is provided by nature, then some things become customary from the usefulness of reason; afterwards both the things provided by nature and approved by custom sanction the measure and rule of the law.
Ad 1. It should be said that human reason cannot participate fully in the dictate of divine reason, but in its own way and imperfectly. Therefore, just as on the part of speculative reason, by a natural participation in the divine wisdom, we have knowledge of some common principles, but not proper knowledge of every truth, as divine wisdom does, so on the part of practical reason, man naturally participates in eternal law with respect to some common principles, though not with respect to the particular direction of singulars, which, however, is contained in eternal law. So it was necessary that human reason proceed further to the particular sanctions of the laws.
Ad 2. It should be said that human reason as such is not the rule of things, but the principles naturally written in it are general rules and measures of all those things which are to be done by man, of which natural reason is the rule and measure, although not the measure of the things which are by nature.
Ad 3. It should be said that practical reason is concerned with things to be done, which are singular and contingent, and not with necessary things as speculative reason is. Therefore human laws cannot have the infallibility that the conclusions of the demonstrative sciences have. Nor is it necessary that every measure be in every way infallible and certain, but only to the degree possible in its domain.
Article 4: Was some divine law needed?
It seems that it was not.
1. Natural law is a participation in us of the eternal law. But the eternal law is divine law, as has been said. Therefore there is no need beyond natural law and the human laws derived from it for another divine law.
2. Moreover, Ecclesiasticus 15.14 says, ‘God made man from the beginning and left him in the hand of his own counsel,’ but counsel is an act of reason, as was shown above. Therefore, a man is left in the governance of his own reason. But the dictate of human reason is human law, as has been said. Therefore, it is not necessary that man be governed by another divine law.
3. Moreover, human nature is more sufficient than irrational creatures. But irrational creatures do not have any divine law beyond the natural inclination inserted in them. So much less, then, ought the rational creature to have any divine law beyond natural law.
ON THE CONTRARY:
David asks that a law be imposed on him by God, saying, in Psalm 118.34, ‘Instruct me that I may observe thy law, and may keep it with all my heart.’
RESPONSE:
It should be said that beyond natural and human law a divine law was necessary for the direction of human life. And this for four reasons. First, because a man is directed by law in his proper acts as ordered to the ultimate end. If indeed man were only ordered to an end which does not exceed the proportion of man’s natural capacity, man would not need any directive on the part of reason beyond natural law and the human law derived from it. But because man is ordered to the end of eternal happiness, which exceeds the proportion of human natural capacity, as has been said, therefore it was necessary that above natural and human law, he should be directed to his end by a divinely given law.
Second, on account of the uncertainty of human judgement, especially concerning contingent and particular things, from which different and conflicting laws arise. Therefore in order that man might know without doubt what he ought to do and what he ought to avoid, it was necessary that he be directed in his proper acts by a law divinely given, which he would know could not err.
Third, because man can make laws of the things he can judge. Man’s judgement cannot bear on internal movements, which are hidden, but only on exterior acts, which are apparent. But for the perfection of virtue it is required that a man be rectified in both acts. Therefore human law cannot sufficiently restrain and order interior acts, but it was necessary that a divine law supervene for this purpose. Fourth, because, as Augustine says in On Free Will 1.5, human law cannot punish or prohibit all the evils that are done, because when it tries to remove all evils, many good things are also taken away, and the utility of the common good is impeded, which is necessary for human community. In order that no evil should escape prohibition and punishment, it was necessary for a divine law to supervene by which all sins are forbidden.
These four reasons are touched on in Psalm 18.8, where we read, ‘The law of the Lord is perfect,’ that is, permitting no baseness of sin, ‘quickening the soul’ since it directs not only exterior acts, but interior as well; ‘the rule of the Lord is steadfast’ because of the certainty of truth and rectitude, ‘giving wisdom to the lowly’, insofar as it orders man to a supernatural and divine end.
Ad 1. It should be said that the eternal law is participated in according to the proportion of human nature’s capacity by natural law. But man needs to be directed in a higher way to the supernatural ultimate end. Therefore, a law divinely given was added, by which the eternal law is participated in in a higher mode.
Ad 2. It should be said that counsel is a kind of inquiry, so it must proceed from principles. Nor does it suffice that it proceed from principles naturally inserted, which are the precepts of natural law, because of what has been said, but certain other principles must be added, namely the precepts of divine law.
Ad 3. It should be said that irrational creatures are not ordered to an end higher than the end which is proportionate to their natural power. So the case is not similar.
Article 5: Is there only one divine law?
It seems that there is.
1. There is one law of one king in one realm. But the whole human race is compared to God as to one king, according to Psalm 46.8: ‘For God is king of all the earth.’ Therefore, there is only one divine law.
2. Moreover, every law is ordered to the end that the legislator intends for those to whom the law applies. But God intends one and the same thing for all men, according to 1 Timothy 2.4: ‘Who wishes all men to be saved and to come to knowledge of the truth.’ Therefore, there is only one divine law.
3. Moreover, divine law seems to be closer to eternal than natural law is, much as the revelation of grace is higher than the knowledge of nature. But natural law is one for all men. Therefore, this should be even more so with divine law.
ON THE CONTRARY:
The Apostle says, in Hebrews 7.12, ‘For when the priesthood is changed, it is necessary that a change of laws be made also.’ But the priesthood is of two kinds, as is said in the same text, namely the levitic priesthood and the priesthood of Christ. Therefore divine law is of two kinds, namely the old law and the new law.
RESPONSE:
It should be said that, as was established in Part 1, distinction is the cause of number. But something is distinguished in two ways. In one way, as things which are wholly diverse in species, like horse and cow. In another way, as perfect and imperfect in the same species, like boy and man. It is in this way that the divine law is distinguished into the old law and the new law. Hence the Apostle, in Galatians 3.24–5, compares the state of the old law to that of a boy subject to his teacher. But the perfection and imperfection of both laws are gauged by three things which pertain to law, as has been said above.
First, it pertains to law to be ordered to the common good as to its end, which can happen in two ways. To the sensible and terrestrial good, and the old law orders directly to this; hence immediately in Exodus 3.8–17, at the beginning of the law, the people are invited to the earthly realm of the Canaanites. On the other hand is the intelligible and celestial good, and the new law orders to this, hence Christ right at the beginning of his preaching invites to the kingdom of heaven, in Matthew 4.17 saying, ‘Do penance, the kingdom of heaven is nigh.’ Therefore, Augustine says in Against Faustus 4.2 that promises of temporal things are contained in the Old Testament, which is why it is called old, but the promise of eternal life pertains to the New Testament.
Second, it pertains to law to direct human acts according to the order of justice. In this too the new law excels the old, ordering interior acts of the soul, according to Matthew 5.20: ‘For I say to you that unless your justice exceeds that of the Scribes and Pharisees, you shall not enter the kingdom of heaven.’ Therefore, it is said that the old law restrains the hand, the new the soul.
Third, it pertains to law to lead men to the observance of the commandments. The old law does this with the fear of punishment, but the new law does it through love, which is infused into our hearts by the grace of Christ, which is conferred in the new law but was only prefigured in the old. Therefore Augustine says in Against Adimantus, Disciple of Manichee 17 that ‘the difference between the law and the Gospel, put most briefly, is fear and love’.
Ad 1. It should be said that just as the father of a family proposes different commandments to children and adults, so too God the one king gave one law to men who were still imperfect, and another more perfect law to those prepared by the prior law for a greater capacity for the divine.
Ad 2. It should be said that the salvation of men can only come through Christ, according to Acts 4.12: ‘For there is no other name under heaven, given to men by which we must be saved.’ Therefore, a law perfectly leading men to salvation could only be given after the advent of Christ. Before that a law preparatory to the acceptance of Christ had to be given to the people from which Christ would be born, in which the rudiments of saving justice are contained.
Ad 3. It should be said that natural law directs man by way of common principles which unite both the perfect and the imperfect, and therefore it is one for all. But the divine law also directs man in certain particulars, to which the perfect and imperfect do not relate in the same way. Therefore it was necessary that the divine law be of two kinds, as has already been said.
Article 6: Is there a law of sin?
It seems that there is not.
1. Isidore says in the Etymologies 5.3 that law is constituted by reason. But concupiscence was not constituted by reason, indeed it deviates from reason. Therefore, concupiscence does not have the character of law.
2. Moreover, every law is obligatory, such that those who do not keep it are called transgressors. But concupiscence does not make the one not following it a transgressor; rather one who follows it is a transgressor. Therefore concupiscence does not have the character of law.
3. Moreover, law is ordered to the common good, as has been said. But concupiscence does not incline to the common good but rather to the private good. Therefore, concupiscence does not have the character of law.
ON THE CONTRARY:
The Apostle says in Romans 7.23, ‘I see another law in my members, warring against the law of my mind.’
RESPONSE:
It should be said that, as was argued earlier, law is found essentially in the one ruling and measuring, but by way of participation in that which is measured and ruled, such that every inclination or ordering which is found in those subject to the law is called law by way of participation, as is clear from the foregoing. But there can be found in those subject to the law a twofold inclination stemming from the lawgiver. In one way, insofar as he directly inclines his subjects to something, and sometimes inclines different ones to different acts. In this way it can be said that the law of soldiers is different from the law of merchants. In another way, indirectly, insofar as the legislator takes away some dignity from one subject to him, with the result that he passes into another order and as if to another law, for example if the soldier is removed from the army he will pass into the ranks of rustics and merchants.
Thus under God the lawgiver different creatures have different natural inclinations, such that something that is according to the law for one, is against the law for another, as if I should say that to be ferocious is in some way the law of the dog, but would be against the law of the sheep or any other mild animal. There is then the law of man, which arises from the divine ordinance according to his proper condition, that he should act according to reason. Which law was so strong in the first state that nothing either outside reason or against reason could come about in man. But when man turned from God, the result was that he was carried by the impetus of sensuality, and to each particular one this happens the more he recedes from reason, such that they become like unto the beasts, which are borne along by the impulse of sensuality, according to Psalm 48: ‘Man living in wealth and not understanding is like unto the beasts that perish.’
Therefore, this inclination of sensuality, which is called concupiscence [fames], in other animals simply has the character of law in the way that the law can be in them according to direct inclination.
In men it does not have the character of law in this way, but is rather a deviation from the law of reason. But insofar as by divine justice man was deprived of original justice and the strength of reason, the impetus of sensuality which leads him has the character of law, insofar as it is a punishment following on the divine law, man having abandoned his proper dignity.
Ad 1. It should be said that the argument proceeds from concupiscence taken in itself, insofar as it inclines to evil. Thus it does not have the character of law, as has been said, but only insofar as it follows from the justice of divine law, as if someone should say that it is a law that someone noble, because of his own fault, is permitted to engage in servile works.
Ad 2. It should be said that this objection proceeds from the fact that law is as a rule and measure, for thus those deviating from the law are transgressors. Concupiscence is not law in that way, but by a kind of participation, as was said above.
Ad 3. It should be said that this argument proceeds from concupiscence with respect to its proper inclination, but not with respect to its origin. If we consider the inclination of sensuality as it is found in other animals, it is thus ordered to the common good, that is, to the preservation of nature in the species or in the individual. This is also true of man, insofar as sensuality is subject to reason. But it is called concupiscence insofar as it rejects the order of reason.
QUESTION 92
THE EFFECTS OF LAW
Next we must consider the effects of law, and two things are asked concerning this: (1) whether the effect of law is to make men good; (2) whether the effects of law are to command, forbid, permit and punish, as the Jurist says.
Article 1: Is the effect of law to make men good?
It seems that it is not.
1. Men are good through virtue, but virtue is that which makes the one having it good, as is said in Ethics 2.6. But virtue in man is from God alone, for he brings it about in us without us, as was said above in the definition of virtue. Therefore, it is not for law to make men good.
2. Moreover, law does not help man unless he obeys it. But this very obeying of the law is due to goodness. Therefore goodness is needed in man before the law. Therefore, law does not make men good.
3. Moreover, law is ordered to the common good, as has been said. But one can do well with respect to things that pertain to the common good, and none the less not act well in his own affairs. Therefore, it does not pertain to law to make men good.
4. Moreover, some laws are tyrannical, as the Philosopher says in Politics 3.6. But the tyrant does not look to the goodness of his subjects, but only for his own gain. Therefore, it is not for law to make men good.
The Philosopher says in Ethics 2.1 that the desire of any lawgiver is this, that he might make good citizens.
RESPONSE:
It should be said that, as was explained above, law is nothing other than a dictate of reason in the one presiding, by which the subjects are governed. The virtue of any subject is to be a good subject to the one by whom he is governed, as we see that the virtue of the irascible and concupiscible appetites consists in this that obey reason well. In this way the virtue of any subject is to be a good subject to his prince, as the Philosopher says in Politics 1.5. Any law aims at this that it be obeyed by those subject to it. It is manifest then that this is proper to law, to lead subjects to their proper virtue. And since virtue is that which makes the one having it good, it follows that the proper effect of law is to make good those to whom it is given, whether absolutely or in a certain respect. For if the intention of the one making the law bears on the true good, which is the common good regulated according to divine justice, it follows that through the law men become good absolutely. But if the intention of the lawmaker bears on that which is not good absolutely, but only useful or pleasant to him, or even repugnant to divine justice, then the law does not make men good absolutely, but in a certain respect, namely in the order of such a regime. But in this way good is found even in things as such evil, as someone is called a good thief, because he works efficiently towards his end.
Ad 1. It should be said that virtue is twofold, as is clear from the foregoing, namely acquired and infused. For both, that someone become accustomed to the act is important, but differently, for this causes acquired virtue, and disposes to infused virtue, and preserves and strengthens it once had. Since law is given to direct human acts, insofar as human acts work towards virtue, they make men good. Hence the Philosopher says in Politics 2 that lawgivers make men good by accustoming them to certain acts.
Ad 2. It should be said that one does not always obey the law out of perfect virtue, but sometimes because of fear of punishment; sometimes, however, solely because of the dictate of reason, which is the principle of virtue, as was said above.
Ad 3. It should be said that the goodness of any part is considered in proportion to its whole. Hence Augustine says in Confessions 3.8 that every part is foul that does not befit its whole. Since any man is a part of the city, it is impossible that a man be good unless he is well proportioned to the common good, nor can the good be made up of anything other than from parts proportioned to it. Hence it is impossible that the common good of the city be had unless the citizens are virtuous, at least those who must govern. But it suffices, with respect to the good of the community, that others are virtuous insofar as they obey the commands of the prince. Therefore the Philosopher says in Politics 3.2 that the virtue of the prince and of the good man are the same, but the virtue of just any citizen and of the good man are not the same.
Ad 4. It should be said that tyrannical law, since it is not according to reason, is not law absolutely, but is rather a perversion of law. But insofar as it has something of the character of law, it intends that the citizens be good. All it has of the character of law is that it is a dictate of the one presiding to his subjects, and intends that those subject to the law should obey it well, which is for them to be good, not absolutely, but with respect to that regime.
Article 2: Are the acts of the law properly assigned: to command, to forbid, to permit and to punish?
It seems that they are not.
1. Every law is a universal precept, as the jurist says. But precept and command come to the same thing. Therefore, the other three are superfluous.
2. Moreover, the effect of law is to lead its subjects to the good, as has been said above. But counsel is concerned with a better good than is the precept. Therefore, it pertains to the law rather to counsel than to command.
3. Moreover, just as a man is incited to the good by penalties, so also by rewards. Therefore, if to punish is put among the effects of law, to reward ought to be too.
4. Moreover, the lawgiver’s intention is to make men good, as has been said. But one who obeys the law only out of fear of punishment is not good, for although servile fear, which is fear of punishment, might make one act well, it does not cause someone to become good, as Augustine says. Therefore it does not seem proper to law to punish.
Isidore says in the Etymologies 5.19 that every law either permits something, as a brave man seeks his reward, or it forbids, by saying it is not licit to seek to marry one of the sacred virgins, or it punishes, as, he who kills loses his head.
RESPONSE:
It should be said that just as the sentence is the dictate of reason by way of enunciating, so is law by way of commanding. It is proper to reason that it leads us from one thing to another. Hence just as in the demonstrative sciences reason leads to assent to the conclusion by way of the principles, so it leads to assent to the precept of law through something. Precepts of the law concern human acts which the law directs, as was said above, and some acts are good in kind, namely the acts of virtue, and relevant to these are those acts of law, to command and order. Other acts are evil in kind, such as vicious acts, and with respect to these the law forbids. Others are indifferent in their kind, and with respect to these the law permits. All those acts which are either of little good or evil can be called indifferent. It is by the fear of punishment that law induces us to obey, and with respect to this punishment is numbered among the effects of law.
Ad 1. It should be said that just as ceasing from evil has the note of good, so too prohibition has something of the precept. On this basis, taking precept broadly, the law is universally said to be a precept.
Ad 2. It should be said that to counsel is not a proper act of law, but it can pertain to the private person, who does not make law. So too the Apostle in 1 Corinthians 7.12, when giving counsel, says ‘To others I say, not the Lord.’ Therefore, it is not numbered among the effects of the law.
Ad 3. It should be said that to reward can be done by anyone, but only the minister of the law can punish: it is by his authority that punishment is inflicted. Therefore, to reward is not listed among the acts of law, but only to punish.
Ad 4. It should be said that because someone begins to accustom himself to avoid evils and to fulfil goods out of a fear of punishment, he is sometimes led to do it with pleasure and from his own will. Thus the law, even by punishing, leads me to become good.
Next we must consider each kind of law. And first eternal law; then, natural law; third, human law; fourth, the old law; fifth, the new law, which is the law of the Gospel. As to the sixth, the law of sensuality, what has been said of Original Sin suffices for that. Six questions arise concerning eternal law: (1) what is eternal law? (2) whether it is known to all; (3) whether every law is derived from it; (4) whether necessary things are subject to eternal law; (5) whether the contingent things of nature are subject to eternal law; (6) whether all human matters are subject to it.
Article 1: Is eternal law the highest idea existing in God?
It seems that it is not.
1. There is only one eternal law. But the notions of things in the divine mind are many, for Augustine says in Eighty-three Questions that God makes each thing according to its proper notion. Therefore the eternal law does not seem to be the same as the notion existing in the divine mind.
2. Moreover, it is of the essence of law that it be promulgated by word, as was said above. But Word in divine things is used personally, as was shown in Part 1, and idea is used essentially. Therefore the eternal law and the divine idea are not the same.
3. Moreover, Augustine says in On True Religion that the law that is truth seems to be above our minds. But the law which is above our minds is eternal law. Therefore, the notion of truth and of idea are not the same, so eternal law does not seem to be the supreme idea.
ON THE CONTRARY:
Augustine says in On Free Will 30 that eternal law is the highest idea, which is always to be complied with.
RESPONSE:
It should be said that just as there pre-exists in any artisan the idea of what is constituted by art, so in every governor there must pre-exist the idea of the order of the things which are to be done by those subject to his governance. And just as the notion of the things to come about through art is called art or the exemplar of artificial things, so the reason of the one governing the acts of subjects takes on the character of law, saving the other conditions of the essence of law given above. God through his wisdom is the maker of the universe of things, to which he relates as artisan to artefacts, as was said in Part 1. Just as the notion of divine wisdom, insofar as all things are created through it, has the note of art or exemplar or idea, so the notion of divine wisdom moving all things to their fitting end takes on the note of law. By this token, the eternal law is nothing other than the idea of divine wisdom insofar as it is directive of all acts and movements.
Ad 1. It should be said that Augustine is speaking of the ideal reasons, which look to the proper natures of singular things, and therefore distinction and plurality are found in them, according to their different relations to things, as was said in Part 1. Things which are different in themselves are considered to be one insofar as they are ordered to something common. Therefore, the eternal law, which is the reason for this order, is one.
Ad 2. It should be said that the word can be considered in two ways, namely as the word itself and as the things which are expressed by it. For the spoken word is something fashioned by the mouth of man, but this word expresses what is signified by human words. The same is true of man’s mental word, which is nothing other than something conceived by the mind whereby man expresses mentally the things of which he thinks. In the divine, the Word itself, which is the conception of the paternal intellect, is said personally, but whatever is in the knowledge of the Father, whether essential or personal, or even the works of God, are expressed by this Word, as is clear from Augustine in On the Trinity 15.14. The eternal law is among the other things expressed by this Word. But it does not follow from this that eternal law is said personally in the divine, for it is appropriated to the Son because of the affinity of reason and word.
Ad 3. It should be said that the idea of the divine intellect relates differently to things than does the idea of the human intellect. For the human intellect is measured by things, such that the concept of man is not true on account of itself, but is said to be true because it is in harmony with things; insofar as the thing is or is not, the opinion is true or false. But the divine intellect is the measure of things, because any thing has truth to the degree that it imitates the divine intellect, as was shown in Part 1. Therefore the divine intellect is true of itself and its notion is truth itself.
Article 2; Is the eternal law known to all?
It seems that it is not.
1. As the Apostle says in 1 Corinthians 2.11, ‘The things of God no one knows but the Spirit of God.’ But the eternal law is a kind of reason existing in the divine mind. Therefore, it is unknown to everybody but God.
2. As Augustine said in On Free Will 1.6, the eternal law is that whereby it is just that everything is perfectly ordered. But not everyone knows that all things are perfectly ordered. Therefore, not everyone knows the eternal law.
3. In On True Religion 31 Augustine says that the eternal law is that which men cannot judge, and it is said in Ethics 1.3 that anyone judges well what he knows. Therefore, eternal law is not known to us.
ON THE CONTRARY:
Augustine says in On Free Will that the notion of eternal law is impressed upon us.
RESPONSE:
It should be said that a thing can be known in two ways, in one way, in itself, in another way, in its effect, in which some likeness of it is found, as someone not seeing the sun in its substance knows it in its shining. Therefore, it should be said that no one can know the eternal law as it is in itself, except for the blessed who see God in his essence. But every rational creature knows it according to some irradiation of it, whether greater or less. For every knowledge of the truth is some irradiation or participation in the eternal law, which is unchanging truth, as Augustine says in On True Religion. But all know the truth in some degree, at least with respect to the common principles of natural law. In other things some participate more, some less, in knowledge of the truth, and on this basis they know the eternal law more or less.
Ad 1. It should be said that the things that are of God cannot be known in themselves by us, but are made manifest to us in his effects, according to Romans 1.20: ‘His invisible attributes are clearly seen, being understood through the things that are made.’
Ad 2. It should be said that although everyone knows the eternal law according to his capacity, in the manner mentioned, no one can comprehend it, nor can it be totally made manifest through its effects. Therefore, it is not necessary that whoever knows eternal law in the manner mentioned should know the whole order of things, whereby they are perfectly ordered.
Ad 3. It should be said that to judge of something can be understood in two ways, in one way, as the cognitive power judges its proper object, according to the text in Job 12.11: ‘Doth not the ear discern words, and the palate of him that eateth, the taste.’ According to this way of judging, the Philosopher says that anyone judges well the things he knows, that is, judging whether what is proposed is true. In another way, insofar as the superior judges the inferior by a practical judgement, that is, whether it ought to be so or not. And thus no one can judge of the eternal law.
Article 3: Is every law derived from eternal law?
The answer seems to be no.
1. There is a law of sensuality, as was said above, but it is not derived from divine law, which is eternal law, for to it the prudence of the flesh pertains, of which the Apostle says in Romans 8.7, ‘For the wisdom of the flesh is hostile to God, for it is not subject to the law of God.’ Therefore, not every law proceeds from eternal law.
2. Moreover, nothing unfair can proceed from eternal law, because as has been said, eternal law is that according to which it is just that all things are perfectly ordered. But some laws are unfair, according to Isaiah 10.1: ‘Woe to them that maketh wicked laws: and when they write, write injustice.’ Therefore, not every law proceeds from the eternal law.
3. Moreover, Augustine says in On Free Will 1.5 that the law which is written for ruling people rightly permits many things which are punished by divine providence. But the notion of divine providence is eternal law, as has been said. Therefore, not all law proceeds from eternal law.
ON THE CONTRARY:
In Proverbs 8.15 divine wisdom says, ‘By me kings reign, and lawgivers decree just things.’ But the notion of divine wisdom is eternal law, as was said above. Therefore, all laws proceed from eternal law.
RESPONSE:
It should be said that, as was explained above, law involves a reasoned directive of acts to the end. But in all ordered movers the force of the secondary mover must derive from that of the primary mover, because the secondary mover moves only insofar as it is moved by the primary. We see the same thing in all governors, that the notion of governance derives from the first to the secondary governors, as the reason for things to be done in the city derives from the king to inferior administrators by the precept. And in artificial things, the reason for the acts of the artisans is derived from the master builder to inferiors who work with their hands. Since therefore the eternal law is the reason of governance in the supreme governor, it is necessary that all reasons of governance in inferior governors are derived from eternal law. Such reasons of inferior governors are laws beyond eternal law. Hence all laws, insofar as they participate in right reason, derive from eternal law. Because of this Augustine says in On Free Will 1.6 that there is nothing just and legitimate in temporal law which men have not derived for themselves from eternal law.
Ad 1. It should be said that sensuality has the note of law in man insofar as it is a punishment of divine justice. According to this it is clear that it is derived from eternal law. Insofar as it inclines to sin, however, it is contrary to the law of God and does not have the character of law, as is clear from the foregoing.
Ad 2. It should be said that human law has the character of law to the degree that it is according to right reason, and thus it is manifest that it is derived from eternal law. Insofar as it departs from reason, it is called unfair law, and thus does not have the character of law, but rather of a violation of it. Yet in that very unfair law, insofar as it retains some similarity to law on account of the power of the one legislating, in that respect it derives from the eternal law, for all power is from the Lord God, as is said in Romans 13.1: ‘For there exists no authority except from God.’
Ad 3. It should be said that human law is said to permit some things, not as approving them, but as not being able to direct them. For many things are directed by divine law which cannot be directed by human law, for more things are subject to the superior cause than to the inferior. Hence the fact that human law does not involve itself with things it cannot direct, comes from the order of eternal law. It would be otherwise if it approved things which are forbidden by eternal law. Hence this does not tell against human law’s being derived from eternal law, but shows that it cannot perfectly follow it.
Article 4: Are necessary and eternal things subject to eternal law?
They seem to be.
1. Everything that is reasonable is subject to reason, but the divine will is reasonable, since it is just, therefore it is subject to reason. But eternal law is divine reason. Therefore, the will of God is subject to eternal law. But the will of God is something eternal. Therefore, the eternal and necessary are subject to eternal law.
2. Moreover, whatever is subject to the king, is subject to the law of the king. But the Son will be subject to God the Father when he delivers the kingdom to him (1 Corinthians 15.24). Therefore, the Son, who is eternal, is subject to eternal law.
3. Moreover, the eternal law is the reason of divine providence, but many necessary things are subject to divine providence, such as the permanence of incorporeal substances and the celestial bodies. Therefore, necessary things too are subject to eternal law.
ON THE CONTRARY:
It is impossible for necessary things to be otherwise, hence they do not require restraint. But law is imposed on men to restrain them from evils, as is clear from the foregoing. Therefore, necessary things are not subject to law.
RESPONSE:
It should be said that, as has been argued, the eternal law is the reason for divine governance. Therefore, whatever things are subject to divine governance are also subject to eternal law, but eternal things are not subject to divine governance nor to eternal law. Their difference can be grasped from the fact that things are subject to human governance to the degree that they can come to be by men, whereas what pertains to the nature of man is not subject to human governance; for example, that man has a soul, or hands or feet. Therefore everything that is created by God is subject to eternal law, whether it be contingent or necessary, but those things which pertain to the divine nature or essence are not subject to eternal law, but are the eternal law.
Ad 1. It should be said that we can speak of the will of God in two ways, in one way, with respect to the will itself, and thus, since the will of God is his very essence, it is not subject to divine governance nor to eternal law, but is the same as eternal law. In another way, we can speak of the divine will with respect to the things that God wills in creatures, which are subject to eternal law, insofar as the reason for them is in the divine wisdom. And by their reasons the divine will is called reasonable. Otherwise, by reason of itself, it would rather be called reason itself.
Ad 2. It should be said that the Son of God is not made by God, but is naturally generated from him. Therefore he is not subject to divine providence or eternal law, but rather he is the eternal law by way of appropriation, as is clear from Augustine in On True Religion. He is said to be subject to the Father by reason of his human nature, with reference to which the Father is also said to be greater than he.
Ad 3. We concede the third because it proceeds from created necessary things.
Ad 4. It should be said that, as the Philosopher teaches in Metaphysics 5.5, some necessary things have a cause of their necessity, and thus their not being able to be otherwise is something they have from another. This is the most efficacious restraint, for some things are restrained – to the degree that they are said to be restrained – insofar as they can only do what they are fashioned to do.
Article 5: Are the contingent things of nature subject to eternal law?
It seems that they are not.
1. Promulgation is of the essence of law, as was said above, but promulgation cannot come about except with rational creatures to whom something can be announced. Therefore, only rational creatures are subject to eternal law, and not the contingent things in nature.
2. Moreover, things which obey reason, participate somewhat in reason, as is said in Ethics 1.13. But eternal law is the highest reason, as was said above. Since natural contingent things do not participate in reason, but are wholly irrational, it seems that they do not come under eternal law.
3. Moreover, eternal law is most efficacious. But defects occur in natural contingent things. Therefore, they are not subject to eternal law.
ON THE CONTRARY:
There is what is said in Proverbs 8.29: ‘When he compassed the sea with bounds, and set a law to the waters that they should not pass their limits.’
It should be said that we must speak differently of the law of man and of eternal law, which is the law of God. For man’s law extends only to rational creatures who are subject to man. The reason is that law is directive of acts which belong to those subject to some governance, hence no one, properly speaking, imposes a law on his own acts. Whatever is done with respect to the use of irrational things subject to man is done by the act of man moving such things, for such irrational creatures do not act of themselves, but are acted on by others, as was said above. Therefore man cannot impose a law on irrational things, even if they are subject to him, but he can impose a law on rational creatures subject to him, insofar as by his command, or whatever pronouncement, he impresses on their minds a rule which is a principle of acting. For just as a man by announcing impresses an interior principle of acts on the man subject to him, so also God impresses on the whole of nature principles of their proper acts. In this way God is said to command the whole of nature, according to Psalm 148.6: ‘He gave a decree that shall not pass away.’ For this reason all movements and acts of nature as a whole are subject to eternal law. Hence irrational creatures are subject to eternal law in another way, insofar as they are moved by divine providence, but not by understanding the divine precept, as rational creatures do.
Ad 1. It should be said that in this way the impression of the intrinsic active principle in natural things is like the promulgation of the law to men, because by the promulgation of the law there is impressed on men a directive principle of human acts, as has been said.
Ad 2. It should be said that irrational creatures do not participate in human reason nor do they obey it, but they participate by way of obedience in the divine reason. The power of divine reason extends to more things than does human reason. Just as the members of the human body are moved by the command of reason, but do not participate in reason, because they do not have any apprehension ordered to reason, so also irrational creatures are moved by God, but are not for all that rational.
Ad 3. It should be said that the defects that occur in natural things, although they are outside the order of particular causes, are not outside the order of universal causes, and especially of the First Cause, who is God, from whose providence nothing escapes, as was said in Part 1. And, because the eternal law is the reason of divine providence, as has been said, the defects in natural things are subject to eternal law.
Article 6: Are all human affairs subject to eternal law?
It seems not.
1. The Apostle says in Galatians 5.18, ‘But if you are led by the Spirit, you are not under the Law.’ But just men, who are sons of God by adoption, are led by the Spirit of God, according to Romans 8.14: ‘For whoever are led by the Spirit of God, they are the sons of God.’ Therefore, not all men are subject to eternal law.
2. Moreover, the Apostle says in Romans 8.7, ‘For the wisdom of the flesh is hostile to God, for it is not subject to the law of God.’ Therefore not all men are subject to the eternal law, which is the law of God.
3. Moreover, Augustine says in On Free Will that eternal law is that whereby ‘the evil merit misery and the good a happy life’. But men already blessed or damned are not in a position to merit. Therefore they are not subject to eternal law.
ON THE CONTRARY:
Augustine says in the City of God 19.12 that there is no way in which something can be subtracted from the laws of the most high creator and fashioner, by whom the peace of the universe is administered.
RESPONSE:
It should be said that something is subject to eternal law in two ways, as is clear from the foregoing. In one way, insofar as the eternal law is participated in by way of knowledge; in another way, by way of action and passion, insofar as it participated in the manner of moving principle. In the second way irrational creatures are subject to eternal law, as has been said. But because the rational nature, along with what is common to all creatures, has something proper to it as rational, it is subject to eternal law in both ways, because it has the notion of eternal law in a certain way, as was said above, and moreover in each rational creature there is a natural inclination to that which is consonant with eternal law. For we are born to have virtues, as is said in Ethics 2.1.
Both ways are imperfect and indeed corrupted in the bad, in whom the natural inclination to virtue is depraved by vicious habits, along with the natural knowledge of the good in them, for it is obscured by passions and the habit of sin. In the good both kinds are found in a more perfect manner, because to their natural knowledge of the good is added the knowledge of faith and wisdom, and to their natural inclination to the good is added an interior impulse of grace and virtue.
Therefore, the good are perfectly subject to the eternal law, as always fulfilling it. The bad are indeed subject to eternal law but imperfectly as to their actions insofar as they imperfectly know and are imperfectly inclined to the good, and the more their acts are defective, the more they are buffeted by passion, such that they suffer what the eternal law decrees concerning them to the degree that they fail to do what is in conformity with eternal law. Hence Augustine says in On Free Will 1.15, ‘I think the just act under eternal law.’ And in On Catechizing the Simple 18 he says that God out of the just misery of souls deserting him knows how to adorn with the most fitting laws the lower parts of his creation.
Ad 1. It should be said that that word of the Apostle can be understood in two ways. In one way, that he who is unwilling to accept the obligation of the law is under it as under a weight. Hence the Gloss says at that place that he who is under the law because of the fear of punishment that the law threatens and not by love of justice abstains from an evil act. Spiritual men are not under the law in this way, because through charity, which the Holy Spirit infuses into their hearts, they voluntarily fulfil what is of the law. In another way it can be understood insofar as the works of man which are done by the Holy Spirit are rather called works of the Holy Spirit than of man himself. Hence, since the Holy Spirit is not under the law, no more than is the Son, as was said earlier, it follows that such works, insofar as they are of the Holy Spirit, are not under the law. The Apostle attests to this in 2 Corinthians 3.17: ‘Where the spirit of the Lord is, there is liberty.’
Ad 2. It should be said that the prudence of the flesh cannot be subject to the law of God on the side of action, because it inclines to actions contrary to the law of God. But it is subject to the law of God on the side of passion, because it merits to suffer punishment according to the law of divine justice. Nevertheless, the prudence of the flesh does not so dominate in any man that it completely destroys the good of nature. Therefore there remains in a man the inclination to do the things of eternal law, for it was proved above that sin does not remove the whole good of nature.
Ad 3. It should be said that it is the same thing by which something is preserved in its end and is moved towards it, as the heavy body comes to rest in a lower place because of gravity, by which it is also moved to that place. So it should be said that just as through eternal law some merit misery and some beatitude, so by the same law they are preserved in either beatitude or misery. On this basis, the blessed and the damned are both subject to eternal law.
QUESTION 94
NATURAL LAW
Next natural law must be considered, and six questions are asked in its regard: (1) what is natural law? (2) what are the precepts of natural law? (3) whether all acts of virtue are of natural law; (4) whether natural law is the same for all; (5) whether it is changeable; (6) whether it can be erased from the mind of man.
Article 1: Is natural law a habit?
It seems that it is.
1. As the Philosopher says in Ethics 2.5, there are three things in the soul: power, habit and passion. But natural law is not one of the powers of the soul, nor is it any of its passions, as is clear from an enumeration of each. Therefore, natural law is a habit.
2. Moreover, Basil says that conscience, or synderesis, is the law of our intellect, which can only mean natural law. But synderesis is a habit, as was shown in Part 1. Therefore, natural law is a habit.
3. Moreover, natural law remains in man always, as will become clear below. But man’s reason, to which natural law pertains, does not always think about natural law. Therefore, natural law is not an act, but a habit.
ON THE CONTRARY:
Augustine says in On the Conjugal Good that a habit is that with which one acts when there is need. But natural law is not like that, for it is also in the young and the damned, who cannot act by it. Therefore, natural law is not a habit.
RESPONSE:
It should be said that something can be called a habit in two ways. In one way, properly and essentially, and thus natural law is not a habit. For it was said earlier that natural law is something constituted by reason, much as a proposition is a work of reason. What one does and that whereby he does it are not the same, for someone by the habit of grammar forms felicitous phrases. Since a habit is that whereby one acts, no law could be a habit properly and essentially. In another way that which is held by the habit can be called habit, as that which is held by faith is called faith. And in this way, because the precepts of natural law are sometimes actually considered by reason and sometimes are in it only habitually, natural law can be called a habit. So too, in the speculative order, the indemonstrable principles are not the habit of principles, but are the principles held by the habit.
Ad 1. It should be said that the Philosopher intends to investigate the genus of virtue, and since virtue is manifestly a principle of action he sets down only the principles of human acts, namely powers, habits and passions. There are other things besides these three in the soul, such as acts – as willing is in the will and known things are in the knower — and the natural properties of the soul, such as immortality and the like.
Ad 2. It should be said that synderesis is called the law of our intellect insofar as it is a habit containing the precepts of natural law, which are the first principles of human acts.
Ad 3. It should be said that this argument concludes that natural law is held habitually, and this we concede.
To what is said in ‘On the Contrary’, it should be said that sometimes one cannot make use of what is in him habitually because of some impediment, as a man cannot use the habit of science when he is asleep. Similarly, a child cannot use the habit of principles or even of natural law which are in him habitually because of the defect of age.
Article 2: Is there more than one natural law precept?
It seems that there is not.
1. Law falls under the genus of precept, as was said above. Therefore, if there were many precepts of natural law, it would follow that there were also many natural laws.
2. Moreover, natural law follows on human nature. But human nature is one whole, although it is multiple with respect to its parts. Therefore, either there is only one precept of the law of nature, because of the unity of the whole, or there are many, because of the multiplicity of the parts of human nature. But then it would be necessary that even those things which are from the inclination of the concupiscible would pertain to natural law.
3. Moreover, law is something pertaining to reason, as was said earlier. But there is only one reason in man. Therefore, there is only one precept of natural law.
ON THE CONTRARY:
In man the precepts of natural law are to things to be done as the first principles are to demonstrative sciences. But there are many first indemonstrable principles. Therefore, there are also many precepts of the law of nature.
RESPONSE:
It should be said that, as was just mentioned, the precepts of the law of nature are to practical reason as the first principles of demonstration are to speculative reason, for both are self-evident principles. Something is called self-evident in two ways: in one way, in itself, in another, with respect to us. A proposition is called self-evident in itself whose predicate is of the definition of its subject, though it can happen that to one not knowing the definition of the subject such a proposition will not be self-evident. For example, ‘Man is rational,’ is self-evident in its nature, because he who says man, says rational: and yet to someone ignorant of what man is, this proposition is not self-evident. Hence it is that, as Boethius says in On the Hebdomads, some are axioms or propositions self-evident to all, and these are those whose terms are known to everyone, for example, ‘Every whole is greater than its part,’ and ‘Equals taken from equals leave equals.’ But some propositions are self-evident only to the wise who understand what the terms of the propositions mean. For example, to those who understand that an angel is not a body, it is self-evident that it is not circumscriptively in place, which would not be obvious to the unlearned who do not grasp this.
There is a certain order found among things which are understood by everybody, for that which is first grasped is being, an understanding of which is included in whatever else one grasps. Therefore the first indemonstrable principle is that you cannot simultaneously affirm and deny something, which is founded on the notion of being and not being, and all other principles are grounded in this one, as is said in Metaphysics 4.3. Just as being is the first thing grasped simply speaking, so the good is the first thing grasped by practical reason which is ordered to action, for every agent acts for the sake of an end, which has the character of good. Therefore, the first principle of practical reason is grounded in the notion of good: the good is that which all things desire. This, then, is the first precept of the law: good should be done and pursued and evil avoided. All other precepts of the law of nature are grounded in this one, such that all those things that are to be done or avoided pertain to precepts of natural law which practical reason naturally grasps as human goods.
Because good has the note of end and evil has the contrary note, reason naturally grasps as goods all those things to which man has a natural inclination, and consequently as to be pursued in action, and the contrary of these are grasped as evils to be avoided. Therefore, there is an order of the precepts of the law of nature that follows the order of the natural inclinations. For there is in man a first inclination to a good of the nature he shares with all substances, insofar as each substance seeks the preservation of the existence it has according to its own nature, and following this inclination the things by which the life of man is preserved and the contrary prevented pertain to natural law. Second there is in man an inclination to more special things, according to the nature he shares with other animals. Following on this, what nature teaches all animals are said to be of natural law, such as the joining of male and female, and the raising of young, and the like. In a third way there is an inclination in man to the good according to the nature of reason, which is proper to him: man has a natural inclination to know the truth about God and to live in society. Accordingly those things which look to this inclination pertain to natural law, for example, that a man should avoid ignorance, that he should not offend others with whom he must live, and other such things which are relevant to this.
Ad 1. It should be said that all these precepts of the law of nature, insofar as they refer to one first precept, have the note of one natural law.
Ad 2. It should be said that all inclinations of whatever parts of human nature, for example the concupiscible and irascible, pertain to natural law insofar as they are regulated by reason, and are reduced to one first precept, as has been said. Thus, there are many precepts of the law of nature in themselves, which, however, share the same root.
Ad 3. It should be said that although reason is one, it orders everything that pertains to men. Thus, under the law of reason are contained all those things which can be regulated by reason.
Article 3: Are all acts of virtue of natural law?
It seems that they are not.
1. As was said above, it is of the essence of the law to be ordered to the common good. But some virtues are ordered to someone’s private good, as is especially obvious in the case of temperance. Therefore, not all acts of virtue are subject to natural law.
2. Moreover, every sin is opposed to some virtuous act. Therefore, if all acts of virtue are of the law of nature, it would seem to follow that all sins are against nature, but this is reserved to some special sins.
3. Moreover, all concur in things which are according to nature. But not everyone agrees about the acts of virtue, for something is virtuous to one, but vicious to another. Therefore, not all acts of virtue are of the law of nature.
ON THE CONTRARY:
Damascene says in On Orthodox Faith 3.14 that the virtues are natural. Therefore, virtuous acts are subject to the law of nature.
RESPONSE:
It should be said that we can speak of virtuous acts in two ways, in one way, insofar as they are virtuous, in another, insofar as they are such and such acts considered in their proper species. If then we are speaking of virtuous acts as virtuous, then all virtuous acts pertain to natural law. For it has been said that everything to which a man is inclined according to his nature pertains to the law of nature. But each thing is naturally inclined to the activity that befits its own form, as fire to heating. Hence since the rational soul is the proper form of man, there is a natural inclination in man to act according to reason. And this is to act according to virtue. On this basis, all acts of virtue are of natural law, for everyone’s own reason dictates this, that he should act virtuously. But if we are speaking of virtuous acts in themselves, that is, considered in their proper species, then not all virtuous acts are of the law of nature. For many things are done according to virtue to which nature does not first incline, but by the inquiry of reason men discover them as useful to living well.
Ad 1. It should be said that temperance is concerned with the natural concupiscence of food, drink and sex, which indeed are ordered to the common good of nature, just as all legal matters are ordered to the moral common good.
Ad 2. It should be said that the nature of man can mean either that which is proper to man, and then all sins, insofar as they are against reason, are also against nature, as is clear from Damascene in On Orthodox Faith 2.30. Or it can mean that which is common to man and the other animals, and then certain special sins are said to be against nature, as it is against the union of male and female, which is natural to all animals, that two men should seek sexual union, which especially is called a vice against nature.
Ad 3. It should be said that this argument proceeds from acts considered in themselves, and thus, because of the different conditions of men, it happens that some acts are virtuous for some, as proportionate and befitting them, which, however, are vicious for others, as not proportioned to them.
Article 4: Is natural law the same for all?
It seems that it is not.
1. In the Decretals it is said that natural right is what is contained in the law and in the Gospel. But this is not common to all, because, as is said in Romans 10.16, ‘But all did not obey the Gospel.’ Therefore, natural law is not the same for all.
2. Moreover, what is according to the law is said to be just, as is said in Ethics 5.1. But in the same book it is said that nothing is so just for all that it is not different with some. Therefore, natural law is not the same for all.
3. Moreover, that to which man is inclined according to his own nature pertains to the law of nature, as was said above. But different men are naturally inclined to different things, some to the concupiscence of pleasure, others to the desire for honour, and others to other things. Therefore, there is not the same natural law for all.
ON THE CONTRARY:
Isidore says in the Etymologies 5.4 that natural right is common to all nations.
RESPONSE:
It should be said, as was argued earlier, that all those things to which a man is naturally inclined pertain to the law of nature, among them that it is proper for man to be inclined to act according to reason. But it is a mark of reason that it proceeds from the common to the proper, as is clear in Physics 1.1. But speculative reason does this differently than practical reason. Speculative reason deals with the necessary, which cannot be otherwise, and truth is found without diminishment in the proper conclusions just as it was in the common principles. But practical reason deals with contingent matters, among which human activities are numbered, and therefore, although there is some necessity in the common principles, the more one descends to the proper, the more defects are found. Therefore, in speculative matters there is the same truth for everyone in principles as well as conclusions, although the truth of the conclusions is not known by everybody, but only the principles which are called common conceptions. In things to be done, however, there is not the same truth or practical rectitude for all with respect to the proper, but only with respect to the common, and with those for whom there is the same rectitude in proper matters, it is not equally known by all.
Therefore, it is clear that with respect to the common principles of reason, whether speculative or practical, there is the same truth or rectitude for all, and equally known. As for proper conclusions of speculative reason, there is the same truth for all, but not equally known to all: it is true for everyone that a triangle has three angles equal to two right angles, although this is not known by everybody. But with respect to the proper conclusions of practical reason, there is not the same truth or rectitude for all, nor even with those for whom it is the same is it equally known. It is true for everyone that this right thing is true, that one should act according to reason. From this principle there follows as a proper conclusion that borrowed items ought to be returned, and this is by and large true, but it can happen in some cases to be harmful and consequently irrational if borrowed items are returned: for example if someone requested them in order to fight against his country. And this would be found to be more and more defective the more one descends into particulars, for example, if one said that borrowed items ought to be returned with such and such caution, or in such a manner. The more conditions are added the more ways it can fail to apply such that it is not right either to return or not to return.
Therefore, it should be said that the law of nature, with respect to first common principles, is the same for all, both as to rectitude and to knowledge. But with respect to the proper, which are, as it were, conclusions from the common principles, it is the same for all for the most part as to both rectitude and knowledge, but in the rare case it can fail as to both rectitude — on account of particular impediments (just as things generable and corruptible by nature fail rarely, on account of impediments) — and knowledge, and this because some have a reason depraved by passion or by evil custom or from a bad cast of nature, as theft was once thought by the Germans not to be wrong, although it is expressly against the law of nature, as Julius Caesar recounts in On the Gallic Wars.
Ad 1. It should be said that this word is not to be understood as meaning that everything contained in the law and the Gospel is of the law of nature, since many things are treated there which are above nature, but because the things which are of the law of nature are taught more fully there. Hence when Gratian said that natural right is contained in the law and Gospel, he immediately added by way of example, that each one is admonished to do to others what he would wish to be done to himself.
Ad 2. It should be said that the Philosopher’s remark is to be understood of those things which are naturally just, not as common principles, but as conclusions derived from them, which by and large have rectitude, but fail rarely.
Ad 3. It should be said that reason in man rules over and commands the other powers, and thus it is necessary that the natural inclinations of the other powers be ordered by reason. Hence this is universally right for all, that all man’s inclinations should be directed by reason.
Article 5: Can natural law be changed?
It seems that it can be.
1. With respect to Ecclesiasticus 17.9, ‘Moreover, he gave them instructions, and the law of life for an inheritance,’ the Gloss says that the scribes meant the written law, as a correction of natural law. But that which is corrected is changed. Therefore, natural law can be changed.
2. Moreover, the killing of the innocent is against natural law, and so too adultery and theft. But we find these to have been changed by God, as for example when God commanded Abraham to kill his innocent son, as is told in Genesis 22.2, and when he commanded the Jews to borrow and steal the jars of the Egyptians, as is told in Exodus 12.35; and when he commanded Osee that he should take a prostitute for wife, as can be found in Osee 1.2. Therefore natural law can be changed.
3. Moreover, Isidore says in the Etymologies 5.4 that the common possession of all things and one and the same freedom is of natural law. But we see these changed by human laws. Therefore, it seems that natural law is mutable.
ON THE CONTRARY:
It is said in the Decretals that natural right which takes its rise from the rational creature does not vary with time, but remains immutable.
RESPONSE:
It should be said that natural law can be understood to change in two ways. In one way, because something is added to it, and nothing prevents natural law from changing in this way, for many things useful for human life are added to natural law both by divine law and by human law. In another way the change of natural law is understood by way of subtraction, such that something ceases to be of natural law which before was of natural law. In this sense, with respect to its first principles, the law of nature is completely immutable. But with respect to secondary precepts, which we have called proper conclusions, proximate to the first principles, the natural law is not changed as if what it contains is not for the most part right. But it can be changed in some particular, and rarely, because of some cause impeding the observance of such precepts, as was said above.
Ad 1. It should be said that the written law is said to be given for the correction of the law of nature either because something lacking in the law of nature is supplied by the written law, or because the law of nature, in some hearts, with respect to some things, was so corrupted that they thought what is naturally evil to be good, and such corruption needs correction.
Ad 2. It should be said that it is universally true and natural that everyone will die, both the guilty and the innocent, which natural death was brought about by the divine power on account of original sin, according to 1 Kings 2.6: ‘The Lord killeth and he maketh alive. ‘Therefore, without any injustice, according to the mandate of God, death can be inflicted on any man, guilty or innocent. Similarly, adultery is sleeping with another’s wife, who is given to him according to the law divinely handed down. Hence if someone goes to whatever woman by the divine mandate, it is neither adultery nor fornication. And the same applies to theft, which is taking the goods of another. But whatever one takes by the command of God who is Lord of the universe, he does not take without the will of the Lord — which is what theft is. Not only in human affairs is whatever God commands fitting, but also whatever comes to be from God in the natural world is in some way natural, as was said in Part 1.
Ad 3. It should be said that something is said to be of natural law in two ways. In one way, because nature inclines to it, such as that no injury ought to be done to another. In another way, because nature does not lead to the contrary, as we might say that for man to be naked is of natural law because nature did not provide him with clothing, which is fashioned by art. In this way the common possession of all things and one and the same liberty for all can be said to be of natural law, because the distinction of ownership and servitude are not brought about by nature, but by the reason of men for the usefulness of human life. And thus natural law is not changed by addition.
Article 6: Can natural law be erased from a man’s heart?
It seems that it can be.
1. The Gloss says about Romans 2.14, ‘The gentiles, who have not the law…’, that in the inner man renewed by grace the law of justice is inscribed, which guilt bears off. But the law of justice is the law of nature. Therefore, the law of nature can be erased.
2. Moreover, the law of grace is more efficacious than the law of nature. But the law of grace is deleted by guilt. So much the more, then, can the law of nature be erased.
3. That which is established by law is put forth as just. But many things are instituted by men against the law of nature. Therefore, the law of nature can be abolished from the hearts of men.
ON THE CONTRARY:
Augustine says in the Confessions 2.4, ‘Your law is written in the hearts of men, and no iniquity can erase it,’ but the law written in the hearts of men is the natural law. Therefore natural law cannot be erased.
RESPONSE:
It should be said that, as was stated above, to natural law first pertains certain most common principles, known to all, and certain secondary precepts, more proper, which are, as it were, conclusions close to the principles. With respect to those common principles, natural law in general can in no way be erased from the hearts of men, but it can be in the particular thing to be done, insofar as reason is prevented from applying the common principle to the particular things to be done because of concupiscence or some other passion, as was said above. With respect to the other, secondary principles, natural law can be erased from the hearts of men, either because of bad persuasion, in the way in which errors occur in speculative matters with respect to necessary conclusions, or because of depraved customs and corrupt habits, as with those who do not think theft or even sins against nature to be sin, as the Apostle says in Romans 1.24 ff.
Ad 1. It should be said that guilt removes the law of nature in particular, but not universally, unless except for secondary precepts of the law of nature, in the way that has been discussed.
Ad 2. It should be said that although grace is more efficacious than nature, yet nature is more essential to man, and therefore more permanent.
Ad 3. It should be said that this argument proceeds from the secondary precepts of the law of nature, against which some legislators frame statutes, which are evil.