Aquinas on Law.2 -- (1)

• • • •

Human law: How and why derived from Natural law?

[i.e., Step 3 in Aquinas’ program:

3.

Natural to

4.

Human = [Moral] to [Legal] The most obvious way to do this would be to claim that all human laws are implied by moral laws.

• But that can’t be right, since it would imply that all human laws are morally right - which is clearly wrong.

• • • • -

unless

you play fast and loose with the definition • • which Aquinas maybe does, when he says this:

“an unjust law is no law at all”

[Aquinas got that from Augustine] but this is quickly interpreted as follows: “Every human law that is adopted has the quality of law

to the extent that

derived from natural law; insofar as it diverges, it is a corruption,

not a real law

.” it is

Aquinas on Law (2) -- (2)

•

[Immoral laws]:

• •

what does it mean to say that they are “not real”??

What is the significance of a legislated law’s being wrong?

• - that it’s

immoral

? [obviously, yes. The question is, so what?] • Aquinas (remember) says we should put up with a LOT from our government (so does Socrates) • - put up with,

how

??

• [1] by not mounting a revolution: at what point do we start killing officials??

• [Aquinas maybe thinks: none....] • Or [2]

is obeying the law,

no matter what it’s like, morally obligatory

?? • [A. thinks not -- but makes the wrong exceptions: religious ones]

Aquinas on Law (2) -- (3)

• • • • • • • • • • • • •

“An unjust law is no law” (continued)

the very claim that there can be “unjust laws” implies that

there is something,

not

made by us, that serves as a relevant check and guide to law-making

* A distinction: (a) the

“grows on trees” model

: the natural law is “in” things...

* Aquinas appears to adhere to (a) - it is not clear that this makes any sense - trees don’t

tell us

anything * However, the fact that trees are trees rather than, say, elephants, makes a difference!

The question is: what sort of difference does it make?

(b) the

pre-political but social

groups

-

not

model: natural law is due to the to the decisions of leaders

properties of men in

Aquinas on Law (2) -- (4)

• • • • • • • • • “An unjust law is no law” (continued)

General conclusion: If we take ‘law’ to have normative impact, then “unjust laws are no laws” means that the unjust ones

lack normative authority

Note: It might still be

prudent

to obey them, even though they’re bad [But how bad may they be? And for how long must we put up with them?] Meanwhile: The thesis means that - If there is no valid reason to forbid people from doing x, then the Law

should

forbid them - and, thus: not (1) legislatures

do wrong

in passing them in the first place (2) people

prima facie

do no wrong if they disobey them

Aquinas on Law (2) -- (5)

• • • • • • • • • • • “An unjust law is no law” (continued) Aquinas asks:

Does Human Law Oblige in Conscience?

and replies: “A law may be unjust in two ways: First by being contrary to human good; second, by being contrary to Divine good. “Laws of the first kind

do not bind in conscience, but should be obeyed “in order to avoid scandal or disorder”

But the second sort

may “

on no account

” be obeyed.

[comment: oh-oh! [obvious question: why would God allow people to do what’s contrary to “Divine” good in the first place??...] [and, who will judge this? (evidently:

the priesthood

...)]

Aquinas on Law (2) -- (6)

• •

Why human law at all?

Reminders about Natural Law:

• • • • • Good is the first thing apprehended by practical reason, which is directed toward action: it is “that which all things seek”. • Thus the

first precept of law: good is to be done, and evil to be avoided.

All the other precepts of the law of nature are based on this.

And, it’s

basically

unchangeable...

- so ,

where does the legislator come into it??

• • • • • • • • • • • • •

Aquinas on Law (2) -- (7)

Why human law at all?

(continued)

[that is: if the moral law is natural and self-evident, why do we then need a further body of legislated government-imposed law?] A’s answers:

[1]: “ Some people are dissolute and prone to vice, and are not easily moved by words. They have to be restrained from doing evil by force and fear. [note: this is Aristotle again ....] “That is the discipline of law, and laws that [restrain people from evil] are “adopted to bring about peace and virtue.”

Two questions: (1) Why would this be a

further

accretion to natural law as it is?

[Aquinas has said that the Natural law is “self-evident” - so why would it need “promulgating” by publishing it in the government’s law books??]

(2) And why would

government

be necessary to do the punishing?

[Why couldn’t just

anyone

participate in the enforcement of morals?

- parents and friends, for example....]

Aquinas on Law (2) -- (8)

•

A. says there are two ways in which something is derived from natural law

: • “The precepts of natural law are related to practical reason as the first principles of demonstration are to theoretical reason. • Both are “self-evident.” • But there turn out to be “ two ways” of being self-evident: • (a) “in itself”, or • (b)” relative to us” • [Q: Does that make sense?

• • That is: how can something be self-evident to one person and not another? Or is it that A

thinks

that p is so, while B does not...?

Aquinas on Law (2) -- (9)

• Is the following a different distinction?: • (1) what follows

logically

from the Natural Law, and • (2) as a

specific application

general terms. of what the Natural Law expresses in • “Do no evil” follows logically (from “Do (nothing but) good!”) • “Do not kill” is an

easy

inference given our natures and circumstances. • “Do not mix aluminum and copper wiring” is not - it requires sophisticated acquaintance with the subject

Aquinas on Law (2) -- (10)

• Proposal: Legislation supplies the

minor premises

• Major Premise: X is (Fundamentally) Morally Right • Minor Premise(i): people doing Y would be conducive to X • [further minor premise (ii): and produce X]

compelling

them to do Y would still • Therefore, the legislature should command that all do Y.

• [many pitfalls, all of them depending on the plausibility of the minor premise(s)]

Aquinas on Law (2) -- (11)

• • • • • • • • • • • •

sample arguments for legislator:

P1: Do no injury [self-evident] C1:

murder

therefore

is to be prohibited [that murder is “injury” is obvious....] P2: mixing copper and aluminum can cause fire [

not

self-evident - but

true

, nonetheless] C2 (moral): we ought not to mix copper and aluminum C2’ (?)

and

We should have a (human) law prohibiting mixing copper and aluminum (Why? because “some electricians are dissolute”?) [ or: because most people don’t know P2?

further question

[then it looks as though the Law would be cases..] : what if Jones discovers a way to mix them that does

wrong

to prohibit

all not

cause fires??

mixing (mixing in

all

• • • • • • •

Aquinas on Law (2) -- (12)

Aquinas’ (2) And consider

punishments

: the law of nature calls for evildoers to be punished - but, punished

how much

? That is a specific application, and “such have force only from human law.” [hmmmm....

why

??

Suppose that citizen A whaps citizen B because B has stolen something from C - if B is guilty, isn’t A

in the right

?

Does Aquinas think that government is

more reliable

?

[Why??]

Aquinas on Law (2) -- (13)

• • • • • • • • • [3] Should Law “repress all vices”?

“Human law is framed for the mass of men. “So it cannot prohibit every vice from which the perfectly virtuous abstain but only the more serious ones

from which the majority can abstain”

especially those that

result in harm to others

, such as homicide and theft

[Question:

are there

any that

don’t

result in harm to others??]

[and: what about the minority who can

not

“abstain”?] Evidently: the law prohibits and it applies its punishments to the few who can’t manage to refrain on their own

all

from doing x because x is harmful to others; [The good will abstain without threat of punishments; the bad will not]

Aquinas on Law (2) -- (14)

• • • • • •

The

Letter of the Law:

Is it binding?

The Case of the “City Gates”

Is the Letter of the Law Binding?

Suppose a city under siege has a law that the gates be kept closed, which is generally useful. But suppose “the enemy is pursuing citizens on whom the city depends: it would be very harmful if the gates were not opened to them, even if that violates the letter of the law; for it

protects the common interest, as the legislator intended

.” • • • • • • Of course, this really is exceptional: if there is no immediate danger, then it is not up to the individual to decide what is or isn’t useful to the city. That is the sole responsibility of the ruler, who has the authority. But necessity is not subject to law: if it calls and there is no time for proper procedures, we should act as it requires.

The legislator cannot foresee every individual case.

[..... interesting!

[Question: why should it only be

emergency

exceptions??] or matters of extreme danger that make for

Aquinas on Law (2) -- (15)

• • • • • • • • • • • • • •

Change in the Law

Should Human Laws Ever be Changed?

Aquinas: “Of course! First, because

knowledge

progresses: when we learn better what is for the good of the community, the law should be changed accordingly. [Second]

circumstances

change, then different laws may be appropriate But, “not for All possible Improvements?

too much and too quick change is a bad thing - The sheer fact of change can be adverse to the public welfare to some degree.

Custom

is very important, since things done contrary to it, even if not important, may yet be considered serious offenses when a law is changed, its restraining power is lessened because custom is set aside. So law should be changed only when the common welfare is compensated for that harm.

This happens either when (1) a

substantial and obvious benefit

is in sight, or (2) when there is

urgent necessity

because the old law produces manifest injustice or proves very harmful. [note: isn’t that a “substantial and obvious benefit”?]

Aquinas on Law (2) -- (16)

•

Custom and the Force of Law

• • All law proceeds from the reason and will of the legislator. Clearly,

human words can change law

, for they “reveal the motives and concepts of human reason.” • When something is done often, as it is by custom, that makes it seem the result of rational decision. • • • • In this sense, custom can have the power of law - it can abolish it, or interpret it.

The

consent of the whole community

, which is demonstrated by customary observance, is

worth more than the authority of the ruler

, • (who, after all, does not have his power except as a representative of the whole people) • and, in a community that

does not have the right to make its own laws [does he mean that legislated law always takes precedence? Or the reverse - that legislated law is subordinate to custom?? Probably the former]

Aquinas on Law (2) -- (17)

• - a custom

that is tolerated by those who have the responsibility to make laws

acquires the force of law

. • [so, what if it

isn’t

so “tolerated”?

• example: Canadian change to the metric system (1970s) • [everyone had been using anglo-saxon measures for centuries • advantages of metric were minor or nonexistent • cost of change was high • [to the point that it is still not uniform • Cdn trade is with the U.S., about 88% or so... • - and US is

not

on metric...

• result: you get 1.87 litres of orange juice, thermostats with degrees that are too big, people who are 5’10” rather than 180 cm... etc....]

Aquinas on Law (2) -- (18)

• • • • • • • • • -

Religion, Again - [where Aquinas

really

goes wrong ...]

Rule by unbelievers over the Faithful: Well, they aren’t to be allowed to make converts The establishment of

endangers the faith.

new

dominion

by unbelievers

can

in no way be permitted,

for it Dominion

is a matter of

human

law; the

distinction of believers and unbelievers

abolish human law is a matter of

divine

law - which does not (the latter is based on reason - not faith) > So, it is permissible for the Church to take unbelievers’ political power away, but it does not always do so. (?) [No freedom of speech in this area!] • • • • • •

Are the Rites of Unbelievers to be Tolerated?

God, who is omnipotent and supremely good, yet permits some evils he could have prevented - when, if he did, a still greater good might be taken away, or still worse evils follow [This gets us into the age-old theological Problem of Evil: how can the above work?]

Aquinas on Law (2) -- (19)

• • • • • • • • • • • • -

Religion, Again: Thomistic Tolerance: Human governments must tolerate some evils so as not to prevent other goods or to avoid yet worse evils.

“Suppress prostitution and the world will be torn apart by lust.” The Jews are O.K.: they observe “rites which once prefigured the true faith”. BUT Other unbelievers (“no truth or usefulness in them”) are

not to be

tolerated - [whom do you suppose he had in mind?!] unless to avoid some evil such as scandal or discord, or even interference with the salvation of those who, if tolerated, will gradually be converted to the faith.

Aquinas on Law (2) -- (20)

• -

Religion, Again - Thomistic Tolerance:

• • • • • •

Should we tolerate Heretics?

Heresy “deserves not only excommunication by the church, but indeed, death” But “the church is merciful and desires the conversion of those who are in error” But stubborn ones? No way! [they can even be

put to death

]

[comment:

meaning, the

government

heretical members

to death

??] is to

allow

the Church to put its own Does this violate the separation of church and state (“Caesar’s and God’s”)?

Aquinas on Law (2) -- (21)

•

Political Issues about Religion: Conservative vs. Liberal

• 1. Religion is

Publicly unprovable

(i.e., not, in Aquinas’ sense, Rational) • 2. There are lots of different religions, and many people have no religion.

• 3. But these people are all in “the community” (e.g. Canada) •

Therefore

• 4. Aquinas’ objections to “heresy” should be regarded as

contrary to the idea of the COMMON Good.

Aquinas on Law (2) -- (22)

• To say what Aquinas does is to ask for

Religious Wars

: • Each religion will try to exterminate members of the others as “heretics”.

• • [or are heretics only apostates? Now the question is:

May the state

allow

a sect to

compel

its own members to remain members indefinitely,

against their will

?]

• •

Our

Answer:

No way!

The proper solution is

RELIGIOUS LIBERTY

: • Nobody is allowed to exterminate

anybody

for

religious

reasons.

• • (More general principle: the Separation of Church and State:

NO

public laws may be made

for religious reasons) [because the public is

everybody

- not just co-religionists!]

Aquinas on Law (2) -- (23)

• • • (More general principle: the

Separation of Church and State

:

NO

public laws may be made

for religious reasons)

• • • • • • • •

What about Christmas trees in front of the city hall?

what about public holidays:

Ramadan? Chanukah ? Eid-al-Adha?

(How about Mayan holidays...?) Suggestion: (1) no citizen may be compelled to participate in any holiday; (2) if lots of people in the community practice religion R, then (some of) R’s holidays might be made public holidays on grounds of convenience (3) but do employers have to allow their employees to take the day off on non recognized holidays?

Aquinas

presumably wasn’t operating on (2) That’s a difference of principle: lawmakers operating on religious premises as such, versus making adjustments in otherwise-allowable arrangements because of the actual presence of religious groups in the community...

Aquinas on Law (2) -- (24)

• • • •

War: the Just War Tradition “

Whatever natural reason has established among men is observed by all nations and is called the law of nations.

“jus

ad bellum

”[When does jusice permit war?] • • • • • • • • • “

Three conditions for a

just war.

First

: the

ruler

must have

authority

to make war. No private person has this right, but only him to whom the commonwealth is entrusted.

Second:

a

just cause

is required. examples: “to avenge injuries, or secure the return of what has been unjustly taken.”

Third:

those making the war must have

right intention,

to achieve some good or avoid some evil. Even if a war is initiated justly by legitimate authority, it can become unjust by evil intentions.

Aquinas on Law (2) -- (25)

• • • [Our text does not have this further part of Just War theory, but introduces this at 64.7 on self-defense] [The “double effect”: suppose you pursue a good cause but,

without intending them

, some evils befall others in the process?

- double effect says that as long as the bad effects aren’t too bad, you may proceed] • • • • • • • [There are also restrictions on what you can do in fighting a war: “

jus in bello

” (justice in the conduct of war) 1.

Noncombatants

are not to be targeted 2. Soldiers

not to be sacrificed

for hopeless causes 3. Minimum force: “

proportionality

” 4. The

object

is always a subsequent

just peace

-- so, no killing for the sake of killing, or out of malice

Aquinas on Law (2) -- (26)

•

Sedition against Peace

• - Is opposed both to justice and to the common good • However,

tyrannical government is unjust for the same reason:

• it is directed not to the common good but to the private good of the ruler.

• note on

sedition

: “ organizing or encouraging opposition to government in a manner (such as in speech or writing) that falls short of the more dangerous offenses constituting treason.” • • To overthrow tyrannical government is

not sedition

, • - unless done so badly that society suffers more from the disorder than it did from the tyrant.

It is the tyrant who is guilty of sedition:

• he spreads discord and division in order to bring people under his evil control more readily • And that harms the community.

Aquinas on Law (2) -- (27)

• • • • • • • • •

Self-Defense and “Double Effect”:

Defending oneself has two effects: (1) saving one’s own life, (2) killing the attacker.

(1) is clearly right - but not if the force used was

not proportionate to

the end (Moderation required) . But (2) it is not lawful for a private person to

intend

to kill another -- only those in public authority may do that. Soldiers fighting enemies, officers combating robbers, yes - though

not if motivated by private hatred.

[the important distinction between morality as inner control of the soul, and as external public control....]

Aquinas on Law (2) -- (28)

• • • • • • • • • • •

Can a Private Person kill a Criminal? (Aquinas on Gun Control)

It is permissible to kill a criminal, if this is necessary for the welfare of the community.

But

only rulers have this right

, not private persons.

[note: Is this credible? If somebody threatens my life, I have to wait till the police arrive?

[“Kindly wait with your proposed murder while I phone 911, OK?”]

- a VERY large issue is raised here.

[cf the recent case of grocer David Chen, who captured and bound up a thief, awaiting the police..... who tohen charges Mr. Chen!

He was acquitted entirely.

(and should have been....)

Aquinas on Law (2) -- (29)

• • • • • • • • • • • • •

Suicide

“is always totally wrong.” argument: (1) everything loves itself, and so should naturally seek to preserve itself; (2) man is part of community: if he kills himself, he harms the community (3) Life is a gift of God to man, and subject to his power alone.

[replies: (1) they kill themselves

because

they “love themselves” (2) does the community

own

its members? (3) if A

gives

with x? ... x to B,

as a gift

, doesn’t B get to decide what he wants to do [in any case, is he talking personal morals, or public law??]

Aquinas on Law (2) -- (30)

• • • • • • • • • • • • • • • • •

Private Property

> From their nature, external goods are subject

only to God

But from the point of view of

use,

we have a

natural property right

- reason and will make such things beneficial.

man has Natural dominion over the rest of creation - “image of God” ...

Two capacities re

externals

:

First

, to

care for and dispose of

them. In this interest, private property is obviously legitimate, for three reasons.

1. Everyone is more concerned to take care of what belongs only to him than of what belongs to everyone or to many ..

2. Human affairs are

more efficiently organised

if care of each thing is an

individual responsibility

3. Peace is better preserved if each has his own - quarrels arise among common owners

Second: to make use of external things for the community good

and

be ready to share

them with others in cases of

necessity.

[note that his three conditions are got from Aristotle....]

Aquinas on Law (2) -- (31)

• • • • • •

The “Needy” (Aquinas on the Welfare State)

In cases of

necessity, everything

is common property. Then it is not a sin to take the property of another.

“Lower ranking things are meant to supply the necessities of men.

So division and appropriation of property by human law does not prevent its being used for the needs of man.

Aquinas on Law (2) -- (32)

• • • • • • • • • • •

The “Needy” (Aquinas on the Welfare State, continued)

“what anyone has in superabundance ought to be used to support the poor” But if the needy are many and cannot all be supplied from the same source, the decision is

left to each individual

as to how to manage his property so as to supply those in need.

If there is

urgent and clear need

-

then

a person may legitimately supply his need from the property of someone else. Strictly speaking, such a case

won’t be theft.

[why not??]

[A. doesn’t seem to address the question

why

“needy” a particular needy person

is

- nor what the threshold of need is [currently: possession of only one VCR?

- What’s in the “public safety net”?]

Aquinas on Law (2) -- (33)

• • • • • • • • • •

Profit

Two sorts of business exchanges (1) “natural and necessary” - one commodity for another, or for money needed to buy what is in turn needed - praiseworthy, for it serves natural needs (2) money for money, or for goods to make money -

rightly

condemned trade in itself has “a certain quality of baseness” - “does not of its own nature involve an honorable or necessary end” [Aristotle again]

Aquinas on Law (2) -- (34)

• • • • • • • • • • • • • •

Interest

Is Sinful: lending money is

selling what does not exist,

resulting in an “inequality which is contrary to justice”.

Lending use of a consumable is lending

it

-so it’s like simple exchange. But it is unjust to exact

two

payments for a loan of wine - one on the return of an equal amount of the thing, and the second as the price for using it. That’s what usury is.

The proper use of money is in exchange.

-> Thus it is

wrong in itself

to receive a payment for the use of a loan of money “to receive interest from any man is evil, since we ought to consider all men

as neighbors and brothers

”.

[when your neighbor gets hungry enough, he gets to steal from you?] [no improvement on Aristotle here!]

Aquinas on Law (2) -- (35)

• • • • • • • •

Obedience [Aquinas on Slavery ....]

104.1 Is one person Obliged to obey another?

In the order of nature, established by God, inferiors are bound to obey superiors... Except: 1) if

contrary to the command of a still higher power.

2) if the superior

exceeds his authority

in this command.

> In “internal motions of the will”, we are obliged

only to God.

> Obligation is in the

area in which the commander is superior.

Aquinas on Law (2) -- (36)

• • •

Drunkenness

A sin to willingly and knowingly

deprive oneself of the use of one’s

reason (which “enables one to act virtuously and avoid sin”).

• • • • • • •

Virginity

> Giving up material possessions to contemplate truth is O.K.

> So, abstaining from bodily pleasures for similar purposes is O.K.

[Example: “holy virginity” - in order to “contemplate the divine” >> We must

all

eat - but as regards procreation, it is sufficient if

some

do it, while others abstain to “devote themselves to the contemplation of the divine and the improvement and welfare of mankind”.

• • •

[Here Aquinas anticipates the idea of “Universalizability”: If act x is

such that is everyone did x, that would be disastrous, can it be O.K. to do x?

Answer: Yes, if

Division of Labor

will do the job.]

Aquinas on Law (2) -- (37)

• • • • • • • • • • • • • •

Women

- Intended by nature to be directed to the work of procreation (and, of course, “naturally subject to man because by nature man possesses more discernment of reason” - right? ....)

[This brings up the subject of “natural intention”

- which is nonsense (unless, of course, we read theology into it: God can have intentions regarding nature; but it itself cannot)

Important Distinction:

(a)

“intended” by nature

(requires

Anthropomorphism)

(b)

“fitted” by nature

- Makes perfectly good sense: one’s natural characteristics can be useful for some things more than others. Women are “fitted” for having children in a way that men obviously aren’t.

But

it doesn’t follow from the fact that you are

able

to do x that you therefore jolly well

ought

to!]

Aquinas on Law (2) -- (38)

• • • • • • • • • • •

The “State of Innocence”

[Biblical idea: The condition of people, depicted in the Book of Genesis, prior to the “Fall from Grace”]

[Why mention this quaint “issue”? Because it gives A. an

opportunity to consider the moral status of natural differences,

independently of theology

. Later writers will discuss a “state of nature”] Would we all have been

equal

there?

(1)

There have would have been many differences:

of the sexes, in knowledge or goodness, strength, beauty, etc.

(2) BUT,

No master/slave Relation

It is against nature for one rational being to have dominion over another. But, Unnatural things are appropriate

as punishments

slavery was introduced as a punishment for sin ...

Aquinas summarized (39)

• • • • • • • • • • • • • • • • • • (1)

Foundations of government

: - not too good - appeals to a bad analogy (the “ship of state”) - to natural organization (doesn’t work) - and to the need for community (right, but doesn’t clearly imply government) (2)

General Idea of Law:

“directive of reason for the

common good

” - this is great!

-

but which idea of “common good” do we use?

- here he’s guilty of religious bias Distinguish conservative from liberal view of common good: conservative: somebody else imposes it liberal: each person is the “authority” on what’s good for him.

Aquinas is a conservative ...

(3) Foundations of Morals

: important progress -> morals is to be founded

on the way things are

-> but

how

is it so founded? What is “natural law” beyond the above claim?

[Aquinas does not get into Social Contract - thinks that laws come directly from “things” - this won’t work]

Aquinas summarized (40)

• • • • • • • • • • • • • • (4)

Human Law

: to be founded on

natural morals

-> not clear what the implication is: --> that there can be bad laws --> but we can’t do much about them (he’s very conservative about this) - Introduces the question of obligations to the “needy” - his own view unclear -- does it support the “welfare state”?

- not good on religious freedom - but improvable!

(5)

Civil Law

: not too many civil rights - due to religious bias e.g. the government is to allow the church to execute heretics...

allows prostitition and booze (?) doesn’t allow general free speech....

(6)

International Law

Just War theory... an important contribution

In general: Sets the stage

for modern political thinking....