Tape 7: Thomas Aquinas

This section begins with a brief survey of medieval law, both "Civil" and "Canon" law. We will look first at excerpts from the books of Civil Law attributed to the emperor Justinian, who codified the law of the Roman Empire, and then at some excerpts from the Canon law, the law of the Catholic Church.Then we will read some extracts from Thomas Aquinas on the philosophy of law and on certain other topics.

FROM AUGUSTINE TO THOMAS AQUINAS

But before we get to that, we need some historical background on some of the main institutions and circumstances of medieval life. First something on the terms "Medieval" and "Renaissance". The division of European history into Ancient, Medieval and Modern was introduced in the 15th century by men who believed they were taking part in a Renaissance -- literally, a rebirth -- of the ancient and better culture of the Greeks and Romans, after a "middle" or intervening period of barbarism and darkness, the dark age. (See Ferguson, The Renaissance in Historical Thought (CB361.F373).) In fact what they were reviving was ancient, and especially Roman, rhetorical and literary culture: Greek philosophy, mathematics, medicine and science had already been revived several centuries earlier, and had undergone considerable development. The Renaissance reaction against medieval culture was another round in the ancient contest between rhetoric and philosophy.

More recent historians have found two earlier "renaissances", one which they call Carolingian (after Charlemagne, king of the Franks in the early ninth century), the other the renaissance of the twelfth century. The "dark age" has now shrunk to the period between the "barbarian invasions" (better described as infiltrations of outside peoples into the Roman empire) and the ninth century. The Carolingians were interested in ancient Roman literature. They invented what the scholars of the Renaissance thought was the Roman script (our lower-case print, still called "Roman"), and it was the Carolingian scholars who made the copies of the Latin classics which the humanists discovered. The twelfth-century renaissance was a recovery of ancient learning in philosophy, law, medicine, science and mathematics. It led (or was part of a movement which led) to the establishment of the first universities. (See C.H. Haskins, The Renaissance of the Twelfth Century.)

East and West

In ancient times the Roman empire had extended from Syria to Spain, from North Africa to the Danube. In the eastern part of the empire the main language was Greek, in the west Latin. During the early middle ages Greek and Latin Christians became divided; the Greeks called themselves Orthodox, "right-teaching", and the Latins called themselves Catholic, "universal", i.e., world-wide. The territories of the old Roman empire were partly taken over by the Muslims. Their religion was Islam, which originated in the Arabian peninsula in the 6th century A.D. and spread until eventually it occupied most of the middle east, north Africa, and Spain. The literature of Islam was mostly in Arabic. Disputes among Christians in patristic times had led to the exclusion of some as heretics (Arians, Nestorians, etc.); these were people whose doctrines had been rejected by ecumenical (i.e., world-wide) or general Councils -- the Councils of Ephesis, Calcedon, Nicaea, and Constantinople -- which had defined Christian orthodoxy. Some of the dissident Christian groups became minorities in the Islamic world. The Jews were also a minority in the east and also in Europe.

The minorities of dissident Christians and Jews played an important part in cultural exchange between Catholic Christians and Muslims. In antiquity there was a separation between two cultures: those who studied rhetoric did not as a rule study deeply in philosophy, mathematics, science, or medicine. The rhetorical culture prevailed among the ancient Romans, and at first the Latin culture of the middle ages was literary and rhetorical. The philosophical and scientific side of Greek culture was taken over by Muslims. Certain members of the Christian minorities living in Muslim countries were made welcome because of their knowledge of medicine. They helped make translations into Arabic of Greek books on medicine, natural science, mathematics and philosophy. To these subjects the Muslims themselves made important contributions. In the twelfth century books on these subjects were translated into Latin (from Arabic, and then, in the case of those written originally in Greek, from Greek). In this way most of Aristotle's works first became known in western Europe.

The papacy

The Catholics, but not the Orthodox, recognized as head of the whole Church on earth the bishop of Rome, the pope, whom they regarded as successor of Peter, the "prince" (princeps, "head") of the Apostles (i.e. the twelve who were Christ's closest associates). The pope was elected for life by a "college" (body) of electors, the cardinals, who were appointed for life by the current pope. From Gregory VII (pope 1073-1085) the popes asserted the independence and superior authority of the Church in relation to emperors and kings.

The Roman Empire

The emperor Constantine, the first emperor to become a Christian, had in A.D. 325 transferred the capital of the Roman empire to a Greek town formerly called Byzantium which he renamed New Rome (later called Constantinople, now Istanbul). For a time the emperors in Constantinople in some sense governed the whole empire, but eventually they lost control of the west. New kingdoms were formed, and on Christmas day A.D. 800 the pope crowned Charlemagne, king of the Franks, as "Roman Emperor". From then on there were two "Roman emperors", neither of them in Rome: one was in Constantinople, the other in Aachen (Charlemagne's capital) and later in Germany. The empire in Constantinople lasted until the Turks took the city in 1453, the "Roman" empire in Germany lasted until Napoleon. The eastern empire is usually called Byzantine, but its rulers called themselves Romans. The western empire is usually called the Holy Roman Empire (Sacrum Romanum Imperium -- sacrum, "holy", was an ancient designation, not a reference to Christianity).

By the tenth century the western Emperors were usually Germans. It became customary for certain German bishops and princes to elect a "king of the Romans", who then went to Rome to be crowned Emperor by the pope, usually returning to Germany shortly afterwards. Like the papacy, the Empire was an elective monarchy, not hereditary. The emperors and their supporters claimed that by right the Emperor should rule the whole world, but even in Europe there were kingdoms (England, France, Spain) where the Emperor's authority was not admitted, and in Italy it was rarely effective. Even in Germany itself the Emperor was often weak.

The universities

One of the most important institutions of medieval Europe was the university. Universities first arose in the twelfth century. In many towns the members of the various trades organized into guilds to advance their common interests, in part to protect the reputation of the trade in the town by guaranteeing quality. Among the trades was education. In many towns "masters" (teachers) set up in business, teaching students for a fee. In some towns the guilds of masters or of students became especially important and attracted students from other places. The Latin terms for a guild, body, corporation of any sort, were universitas or collegium. In Bologna there grew up a famous university of law students, and there grew up in Paris a university of masters and students that was famous especially in Arts and Theology. There were many other universities. The universities guaranteed the quality of teaching by setting curricula and approving new teachers. The university did not enroll or teach students: each student enrolled in the school of one master, where he had all his classes from the master and his "bachelors" (bachelor originally meant "assistant"). Most students did not take degrees; the degree was an academic job.

The four main faculties were Arts, Law, Medicine and Theology; students in the other three faculties first studied, and sometimes also taught, in Arts. Law and Medicine were "the lucrative faculties". In the Arts faculty the main subject was philosophy; the textbooks included most of Aristotle's major works. The Church had at first tried to ban the study of Aristotle, but student demand prevailed, and by the thirteenth century Aristotle's works were compulsory set texts in universities in which the clergy were mostly educated.

Religious orders

Alongside the older orders of monks (e.g. Benedictines), each of whom lived in one monastery all his adult life, separate from the lay world, often in the country, there grew up during the early thirteenth century "orders" (organisations) of friars (fratres, brothers) who travelled round doing religious work mostly in towns and cities. They were mendicants, i.e., beggars, who lived from gifts. The two most famous mendicant orders were the Franciscans, the "order of friars minor" (of "little brothers") founded by Francis of Assissi, and the Dominicans, the "order of preachers", founded by Dominic. There were also the Augustinians (not founded by Augustine, but formed long after his time), and others. Mendicants became students and teachers of theology in the universities, but the main work of these orders was among the ordinary people of the towns. The older monastic orders continued, and some monks also entered the universities as students and teachers. So much for background. Let us turn now to the law texts.

THE CIVIL LAW

During the middle ages the term "civil law" meant the law of the Roman Empire as found in the Corpus iuris civilis, the "Body of Civil Law". It is divided into several parts, called "Institutes", "Digest", "Code" and "Novels". The Corpus iuris civilis was put together mostly out of earlier materials on the initiative of the Emperor Justinian. In the year 528 AD he established a commission of legal experts to go through the existing legal sources and codify and digest them into a consistent body of law. Justinian was Emperor in Constantinople, but, unlike most of the other Emperors who ruled from Constantinople, Justinian's language was Latin, and (except for a few parts) Latin was the language of his legal code. After his death his law books had very little influence in any part of the Roman Empire until they were rediscovered and studied intensively in Italy in the 12th century. From then on it was a major influence in European law and political thought. It was also a major subject of study in the new universities -- if fact universities developed partly because of intense interest in the study of law. The study of Justinian's Corpus was encouraged by the German "Roman Emperors", since the influence of the Roman law reinforced their own rather precarious authority. Open Readings at p. 154.

Read Institutes, 1.1 (i.e. book 1, title 1, down to the heading "Title II").

The word "institutes" means an introductory text book. The Institutes is a brief survey of the whole Roman legal system; it is written, or purports to be written, by the emperor himself (Notice in the first line of paragraph (2) the word "We", meaning the emperor); it was probably actually written by one of his legal advisers.

A note on the reference conventions for this work: the Institutes is divided into four books, each of which is divided into Titles, subdivided into paragraphs. Note that the first paragraph is not numbered; "(1)" is actually the second paragraph. The convention is to refer to it by a string of Arabic numerals separated by dots. "1.1.2" means book 1, title 1, paragraph 2.

Notice the definition of justice at the beginning, repeated at paragraph (3): Justice is giving each person his (or her) due, or "what is his", or "his right".

In paragraph (4) notice a distinction between natural law, law of nations and the civil law. These days "civil law" means what this text calls "private law". In the terminology of Roman law the "civil" law is the law of Rome (including its criminal law and administrative law), or the law of some other particular state, as contrasted with the laws of nature and nations. There is more on this below.

Read to the end of 1.2.2 ("... have been derived.").

In the Roman Law texts there is some confusion over the natural law and the law of nations. In para. (1), where it refers to "the law which natural reason has established among all mankind", you would expect it to say "is called the law of nature" (corresponding with "natural reason"), but it says "is called the law of nations". In some places the law of nations and the law of nature seem to be the same thing, and perhaps they are in this passage. But later, in para. (2), they are distinguished and even opposed: the law of nations includes things like slavery that are contrary to natural law. Most medieval interpreters regarded the law of nature and the law of nations as different: the natural law is an instinctive sense of right and wrong, whereas the law of nations is not instinctive but conventional--the people of all the nations have somehow come to agree on rules or institutions which were originally deliberately invented by human beings.

According to (2) slavery is not natural but exists by the law of nations, and also apparently property, since contracts relating to property belong to the law of nations.

Read to the end of 1.2.6.

(5) implies that the Senate has a right to legislate on behalf of the whole people simply because the people are too numerous to assemble. In early modern political thought this justification was often given for representative government--legislation is done by representatives, since the people are too numerous to do it themselves. This argument implies that basically the right to make laws belongs to the people.

Similarly para. (6) makes the Emperor's legislative power a delegation from the whole people. However, in later times the first clause by itself, "what pleases the prince has the force of law", was often quoted by advocates of absolute government. ("Absolute": absolutus meant untied, not tied -- in this context, not tied by the law, since the prince can give whatever he pleases the force of law.) "Sovereign" in this translation is for princeps, which meant head or ruler: hence the word "prince". So (6) says that the prince got his authority originally from the people, but now that he has it whatever he decides on is law.

Read to the end of 1.2.12.

Notice in paras. (9) and (11) the reference to consent. Notice in (11) that the natural law has been established by God (Providence) and is fixed and unchangeable.

We come now to the Digest. During the middle ages this was the most influential part of the Corpus iuris civilis. It consists of short extracts from the earlier jurists, Ulpian, Gaius, Paulus and others, arranged under topics.

Reference conventions: The Digest is divided into 50 books, each divided into titles, each of which is divided into "laws". Each so-called "law" is an extract from a named jurist; after the number of the law is his name and the name of his work; for example, in the first extract Ulpian is the source of law 1, Pomponius of law 2, Florentinus of law 3, and so on. Some "laws" are divided into paragraphs. The first paragraph is not numbered and is called the "principium" or beginning, abbreviated "pr." In the first extract the passage beginning "(2) Of this subject there are two divisions" is paragraph 2 of law 1. The modern reference system is to give a string of Arabic numerals separated by dots. "Digest 1.1.1.2" refers to the passage beginning "(2) Of this subject there are two divisions".

Read Digest, 1.1.1 (to "... one another").

This text is obviously the source of Inst., 1.1.1.

According to (4) the law of nations is not identical with the natural law, but the difference is a matter of extent: natural law applies to all animals including man, whereas the law of nations applies to man only. If this is the only difference then the law of nations and the law of nature will never be opposed.

Read to the end of 1.1.3 (from Florentinus, Institutes).

Notice that self-defence is lawful.

Read 1.1.4, 5 (from Ulpianus, Institutes, and Hermogenianus, Epitomes of Law).

Slavery does not exist by natural law, but by the law of nations, which on this point are opposed. (Contrast 1.1.1.4 above.) According to Hermogenianus property and government also exist by the law of nations.

Read the rest of the extract. Gaius, 1.1.9, is the source of Inst., 1.2.1.

This is all we will read of the Roman law. The standard modern edition of Justinian's Corpus is by T. Mommsen et al. (KBD13). For translation of the Digest see A. Watson (KBD45). A good book on Roman law is Barry Nicholas, An Introduction to Roman Law. Now let us look at Gratian.

THE PAPACY AND THE CANON LAW

The western Church developed its own system of law, called "canon law", in imitation of the Roman law. The pope's position in the system corresponded to that of the Emperor, the supreme judge and lawmaker. The church had its own system of courts.They dealt with disputes over church property (for example, whether this or that person had the right to appoint someone to some profitable office within the church), over wills, over marriage and divorce, and many other matters now regarded as matters of civil law, and even with some criminal matters (though throughout the middle ages secular rulers often tried to remove the powers of church courts over criminal matters -- this was a major Church/State conflict).

The earliest attempts to summarise Church law were unofficial. The most influential of these unofficial summaries was that of Gratian -- in fact it came to have official status. Gratian's work was usually called Decretum or Decreta ("things decided"), but the name the author gave it was Concordantia discordantium canonum, i.e. "A Harmony of Discordant Canons". "Canon" here means rule (as it still sometimes does in English, e.g. in a phrase like "canons of style"). The existing Church canons or rules sometimes seemed to conflict with one another, and Gratian's project was to harmonise them. His book included extracts from letters of popes and decisions of synods and councils, arranged topically, with connecting and reconciling comments by Gratian. His most important sources were writings of "fathers of the Church" such as Augustine; his book was in large part an anthology of patristic extracts, just as Justinian's Digest was an anthology of extracts from the early juristic authorities such as Papinian and Ulpian.

Read now from Gratian's Decretum distinction 1.

Distinction (abbreviated "d.") means simply part. The words italicised in this translation are Gratian's. The other words are quoted from some earlier Church writer, Isidore of Seville, Augustine, etc.

In canon 6, "law of peoples" is the same as "law of nations"; Latin ius gentium can be translated in either of those ways.

Notice canon 7, on natural law. Natural law includes "the common possession of all things and the one liberty of all men". This means that property and slavery do not exist by natural law (though the text goes on to speak of acquisition and restitution, which presuppose the institution of property -- this was a discordance that later writers would try to resolve). "The repelling of force with force" means that by natural law force can be used in self-defence. Cf. Florentinus, Digest, 1.1.3. Compare Isidore's statement that natural law includes "the one liberty of all" with Ulpian, 1.1.4 (Readings, p. 156, RH: "according to natural law all persons were born free").

Compare canon 9 with Hermogenianus, Digest, 1.1.5.

Read d. 4.

Notice at the end of d.4 the idea that laws need to be confirmed by being generally accepted. "What pleases the prince" is not enough: the people must acquiesce.

Read d. 8.

Property exists by human law, not by the law of nature. Recall Isidore's remark in d.1, c.7, that natural law includes "the common possession of all things". The reference to Plato is to the point that the Guardians will not have private property (Plato was not available in Latin during the middle ages, so Gratian's knowledge is indirect and vague.)

"Again"(in Canon 1) indicates an omission Gratian is making from the text he quotes.

Notice in d. 8, part 2, that no human law or custom is valid if it is inconsistent with natural law. ("The compact of a people among themselves" seems to mean their custom.) Natural law is regarded as made by God: otherwise the text quoted (e.g. "... how much more ought God... to be obeyed... in those things which He has commanded") would be irrelevant as proof that natural law should prevail.

Thus God enacts natural law, and promulgates or reveals it to mankind through natural reason or an instinct of nature (d.1.,c.7); mankind may enact or decide on laws and customs not inconsistent with natural law; customs observed by almost all peoples are the "law of nations" (d.1,c.9), customs and laws made for one people are its "civil law". The law of nations consists of widely-accepted human customs, the law of nature is universal God-given instinct.

Natural Law and Divine positive law

At the beginning of d. 1, Gratian says that "the law of nature is that contained in the Law [i.e. the first five books of the Old Testament] and the Gospels". Later writers on canon law drew a distinction between natural law and divine positive law, and would have said that much that is in the bible is not natural law but divine positive law. The distinction was that natural law is naturally knowable, whereas divine positive law is known only by explicit divine revelation. Natural law is naturally known by an instinct of nature, by natural reason; God has revealed it to every human being by writing it into human nature, so that it is accessible to any reflective person. As Paul said:

When Gentiles... do by nature what the law requires... They show that what the law requires is written on their hearts, while their conscience also bears witness and their conflicting thoughts accuse or perhaps excuse them (Rom. 2:14-5)

Medieval interpreters took "the law" in this text to mean natural law. Divine positive law, on the other hand, is known only by a special revelation from God, usually to be found in the bible. Thus the various rules laid down in the Old Testament and abrogated in the New Testament concerning food that may not be eaten could never have been known by unaided human reasoning; they were known, and their abrogation was known, only by revelation.

The growth of Canon law: Decretum and Decretals

Gratian's book was published, i.e. put into manuscript circulation, in about 1140. After Gratian popes, synods and councils made other decisions which provided material for additional collections of decretals (i.e. decretal documents, documents conveying a decree or decision). The Decretals were recent decisions made by popes, resembling Justinian's Novels, which consisted of new decisions made by Justinian on points not covered by existing law. Gratian's Decretum together with the books of Decretals constituted a corpus (body) of canon law, which continued to grow into early modern times. For a modern edition see Friedberg (KBG1.1879).

During the middle ages there was an elaborate system for the citation of the civil and canon law texts; citations usually included the opening word or phrase of the section referred to. Thus "d. 8, c. Quo iure" refers to the passage from Augustine beginning "By what law..." (in Latin, Quo iure...) in distinction 8, canon 1 (see Readings). Manuscripts and early printed editions of the canon and civil laws always included the ordinary gloss, i.e. a standard commentary in minute script in the margin (often occupying more than half the page), keyed by superscript letters to words and phrases in the main text. The law books were also provided with elaborate indices and summaries. They were large and expensive books, but during the middle ages the law books were more widely disseminated and studied than any other books except perhaps the bible. The city of Bologna in Italy was the chief centre for the study of law, both civil law and canon law. The law schools were the basis of the university of that town. In fact universities and law studies grew up together in the twelfth century.

Let's look now at some extracts from Thomas Aquinas.

THOMAS AQUINAS: THE SUMMA THEOLOGIAE

Thomas Aquinas (1224-1274) taught theology in the Universities of Paris and Naples, and in the school of the Dominican order in Rome, between 1256 and 1273. His works included commentaries on various books of the bible and works of Aristotle, two "Summa's (comprehensive textbooks), and many other smaller works. We will read some extracts from his best known work, the Summa theologiae.

NOTE: indices, bibliographies and library catalogues usually list medieval authors by their first names -- look up "Thomas Aquinas", not "Aquinas, Thomas".

References: The Summa theologiae ("S.T.") is in three parts, part 2 being itself divided into two parts: i.e. it consists of parts 1, 1-2, 2-2, and 3. References are given by part, question, and article. For example, "2-2, q. 10, a. 8" refers to the second part of the second part, question ten, article 8. "Ad 3" would refer to the answer to (ad in Latin) objection 3.

Read 1, q. 92, a. 1.

The quaestio form

Look at how this article is organised: first a question, framed so as to require an answer "yes" or "no", then

several short preliminary arguments ("objections" 1, 2 and 3, and "On the contrary"), then
Thomas's answer ("I answer that..." -- this is called "the body of the article"), then
replies to objections.

The author's own opinions are found in (2) and (3) -- note that the "objections", including "on the contrary", do not necessarily represent the opinion of the writer. ("Objection" meant a short preliminary argument, either for or against -- these days an objection is against something.) In Readings extracts I have often omitted the objections and replies and included only the "body" of the article.

This three-part structure is the quaestio or "disputation" form. It reflects classroom methods in medieval universities. The master would set the question, the bachelors (assistant teachers) would debate it pro and con (this corresponds to the "objections" in the literary disputation), then in another session the master would give his own answer and answer the bachelors' arguments. In the classroom the bachelors' objections (for and against) would have been much more numerous than they are in the Summa theologiae -- the book is a condensed literary imitation of classroom procedure.

Some comments on this article:

"The first production of things" (in objection 1) is the original creation of the world. "The Philosopher" is Aristotle.

"Generated without seed": before the discovery of microscopic bacteria it was believed that some living things were generated by sunlight.

Notice the reply to objection 2. This rejects Augustine's view that government would not have existed in the state of innocence (Augustine, City of God, XIX.15). Thomas has accepted Aristotle's view that man is by nature a political animal. See Markus, Saeculum (BR65.A9.M33), p. 211-. "After sin", i.e. after the original sin. In the garden of Eden, before the first sin, there was no slavery, but even if mankind had never fallen into sin, some would have been wiser than others and would have governed; so slavery and subjection to government are not the same thing. "Economic" in this passage means "household".

"Woman is naturally subject to the man": Following Aristotle, Thomas Aquinas regards women as inferior "because in man the discernment of reason predominates".

Read 1, q. 96, a. 3, a. 4.

Again, Thomas rejects the allegedly Augustinian idea that government is contrary to nature. And again, sexual difference is not just a difference but an inequality.

Read 1, q. 96, a. 4

"Since every man's proper [i.e., own] good is desirable to himself": Thomas seems here not to agree with Aristotle that some are slaves by nature; he agrees rather with Augustine in the passage you read a little while ago that slavery exists only because of sin.

According to Markus, loc. cit., Thomas regards coercion as an essential function of government, and when he says that government existed in the state of innocence he must therefore mean that in the state of innocence those who surpassed others in knowledge and justice would have coerced the others. However, this is unlikely to be what he means. Perhaps Augustine, but not Thomas, was unwilling to call "government" any leadership that does not use coercion. If this is right, then Augustine and Aquinas do not really differ: both hold that in the state of innocence those in need of guidance would have accepted it willingly, and coercion became necessary only after the fall. But there is a difference in their language: Thomas says that government (not implying coercion) existed before the fall, while Augustine says that government (implying coercion) did not exist before the fall.

Read 1-2, q. 105, a. 1.

"Old Law": the Old Testament, the Jewish bible.

"The best form of polity": "polity" here has the generic sense of "constitution", but as it happens what Thomas is describing here is also a variant of "polity" as a species: Aristotle says that the best form of constitution, "polity", is a fusion of democracy and oligarchy; Thomas says that it is a combination or mixture of democracy, aristocracy and kingship. (In Aristotle the mixture was of democracy and oligarchy. After Aristotle authors such as Polybios and Cicero (who was quoted on this point by Augustine in City of God) added kingship to the mixture.)

Read 1-2, q. 90, a. 1.

"The Apostle" is Paul.

"It belongs to reason to direct to the end": adaptation of means to ends is the work of reason.

"Principle": what stands at the head (not necessarily a statement -- though an important statement may in some sense "stand at the head" of some discourse, and be called a principle).

"Genus": kind.

"By participation": Plato's term for the sharing of the many individuals in the idea or form in which they share; my humanity and yours are a participation in the form of humanity. Similarly, Thomas says, the impress of a law on the individuals governed by it can be called a "participation" of that law.

Reply to objection (3): Simply to recognise that some action would be a good means to an end does not produce the action; we must also will to do it. But a volition (i.e., act of willing) can be called a law only if it occurs because the action willed is recognised as a suitable means to the end -- this recognition being an act of reason, not of will. On this theory a law must be reasonable; it is not enough (as in some later theories) that it be merely willed by the sovereign.

Read 1-2, q. 90, a. 3.

"Order": direction to an end.

"Vicegerent": vice means "in the place of", gerens means "administering" or "managing". A "vicegerent" is one who administers something in the place of someone else, on someone else's behalf.

You will notice that Thomas is here saying that political authority belongs fundamentally to the whole people, or to someone acting in their place. Cf. Institutes, 1.2.6.

"Thus from the four preceding articles [of q. 90] the definition of law may be gathered; and it is nothing other than an ordinance of reason for the common good, made by him who has care of the community, and promulgated"; 1-2, q. 90, a. 4

According to Thomas Aquinas there are various kinds of law, notably:

Eternal law -- God's idea of the government of the universe (in God's mind so to speak).
Natural law -- the imprint of God's law upon individuals who share human nature (God's law for us, as imprinted upon our minds). This is equivalent to morality.
Positive law -- i.e. law that someone has "laid down" ("positive" comes from Latin, ponere, "to put" or "to place"). There are two kinds of positive law:
- Human law -- rules additional to natural law (but not inconsistent with it) laid down by a human ruler or community.
- Divine law -- laws additional to natural law or morality, laid down by God to lead mankind to a supernatural end, i.e. an end above their natural capacity (heaven).

See [1-2, q. 91]. Anyone can know natural law by inward reflection; we learn of positive law only by being told by someone else.

Read 1-2, q. 94, a. 2.

"Practical reason" is reasoning to the conclusion that something should be done; "speculative reason" reasons to conclusions about what is true, or to an understanding of why it is true.

Self-evident principles

"Self-evident" means not needing to be proved. Every proof requires premisses; the argument does not make the truth of its conclusion certain unless you are certain (i) that the conclusion "follows from" the premisses (i.e. that if the premisses are true the conclusion is true), and (ii) that the premisses are indeed true. Sometimes the truth of some premiss may need to be proved by a prior argument. (Call the argument that proves the premisses "prior", the argument which uses those premisses "posterior".) The prior argument may also use premisses which need proof, and so on. Eventually, however, there must be premisses which are certain without proof -- otherwise none of the posterior members of the chain of arguments would prove anything. So Aristotle concludes that if anything can be proved some things must be known to be true without needing proof -- and they must be"indemonstrable", i.e. not able to be proved, since there are no truths more basic that could be used as premises in argument to prove them. See Aristotle, Later Analytics, 72 b5-25, 100 b3-18, Metaphysics, 1006 a5-12, 1011 a5-15.

(Compare geometry: the proofs of later theorems use earlier theorems as premisses, but the whole chain of argument hangs from axioms which do not need proof and cannot be proved. The axioms are the "principles" which stand at the head of the geometry book.)

According to Thomas Aquinas the propositions of natural law are premisses of practical reasoning that are unprovable, yet nonetheless certain.

"Being": the most basic concept. Whatever else anyone can know must come under "being" in some way, at least in the sense that "it is so and so" -- i.e., any statement asserts that something is or is not the case.

"First indemonstrable principle": that it cannot be true that something both is so-and-so and is not so-and-so, at the same time and in the same respect.

To say that the basic principles of morality are "self-evident" is not to say that every human being knows them from infancy. What it means is that upon reflection on our experience of human conduct we will find that underlying the moral evaluations we make in particular cases there are certain principles for which we can find no proof, which, however, seem convincing even without proof. To formulate these principles may require some philosophical effort and skill: the principles we now regard as self-evident may turn out to need revision.

Note also that the natural law theory does not mean that human behaviour should be modeled on what seems to come naturally to animals, or that moral judgment should be based on the facts of biology or other natural science. It means that action should be guided by moral principles or "laws" accepted by an experienced and reflective person without proof. These laws are called "natural" because it is supposed that the ability to recognise the basic moral principles is part of human nature.

Read 1-2, q. 95, a. 2.

Here is a modern example: "Thou shalt not kill" is a principle of natural law. From this it follows as a conclusion (given certain facts) that if there is a practice of driving on one side of the road you should conform to it (otherwise you may kill someone). The practice is in some countries to drive on the right, in others on the left: human law or custom says "drive on the left", or "drive on the right", thus determining something which would otherwise be indifferent (natural law does not say which, right or left).

Human law must be consistent with natural law; i.e. it cannot command what natural law forbids, or forbid what natural law commands. But to permit, i.e., not to forbid, is not the same as to command, and not to command is not the same as to forbid. There is no inconsistency if human law commands what natural law neither commands nor forbids, or if human law forbids something natural law permits but does not command, or if human law does not forbid, i.e., permits, something that natural law forbids.

Read 1-2, q. 95, a. 4.

Obj. 1, "Positive" law: law that some legislator has "laid down", in contrast with a law that is part of nature. The divine law of the old and new testaments is positive (the legislator being God), and human law is all positive.

According to Thomas Aquinas the law of nations is implicit in natural law. Most other medieval writers regarded the law of nations as part of positive human law, a widespread set of customs determined by human choice. As I pointed out earlier, some of the texts included in Justinian's Digest seem to regard the law of nations and the law of nature as the same thing, but others say that they are opposed -- for example that slavery is contrary to natural law but approved by the law of nations. Thomas says natural law and the law of nations are not opposed, but are distinguished by the fact that natural law is fundamental and the law of nations consists of implications of the fundamental principles. This is Thomas's attempt to harmonise the conflicting ideas found in the law texts on the relation between the law of nations and the law of nature.

Read 1-2, q. 96, a. 2.

So human law is not bound to try to prevent every immoral action; in "legalizing" some such actions the ruler does not condone them, but recognizes that many could not be compelled to obey except at undue cost.

Read 1-2, q. 96, a. 4.

There is a moral right to disobey unjust laws.

Read 2-2, q. 66, arts. 1 and 2.

Note that article 1 is about possession, a. 2 about possession as one's own: you may have a library book in your possession to use it, but it is not your own. In Latin proprius means one's own, to the exclusion of others. What one possesses as one's own, to the exclusion of others, is "property". Article 1 is in effect about the right to use things, a. 2 about the right to exclude others from using them.

"Procure and dispense": manage or administer, as a trustee or steward might do. Compare Aristotle, Politics, [1261 b30-1262 a1], 1263 a15-b7.

Reply to objection (1): According to Isidore "the common possession of all things" is a matter of natural law -- but so is "the restitution of an article given in trust or money loaned". The first proposition seems to reject private property, the second presupposes that there is property that can be lent and then restored. According to Thomas natural law does not "dictate" or require common possession, but merely does not require or establish any division of goods; this leaves it open to human beings to establish private property. Thus private property is not required by natural law but is not inconsistent with it; it exists by human enactment.

Read 2-2, q. 66, a. 7.

"Derogate": nullify in part.

"Natural right", "divine right": natural or divine law. Ius can be translated either "right" or "law".

Elsewhere he says: "All things are common in a case of extreme necessity. Hence one who is in such dire straits may take another's goods to succour himself, if he can find no one who is willing to give him something. For the same reason a man may retain what belongs to another, and give alms of them; or even take something if there be no other way of succouring the one who is in need. If however this be possible without danger, he must ask the owner's consent..."; 2-2, q. 32, a. 7, ad 3.

"Nor is this... theft": This was also the opinion of canon lawyers. See Tierney, "Origins of Natural Rights Language", History of Political Thought, 10 (1989), pp. 615-46, especially pp. 639-44.

Notice that Thomas Aquinas does not think that private property exists by natural law. His position is that natural law neither requires nor forbids appropriation. It permits mankind, if they see good reason for doing so, to establish the institutions of private property by human law. According to Thomas there are good reasons (Aristotle's reasons), and human law has instituted property.

Now let us look at what Thomas Aquinas says on two of the topics Augustine also wrote about: the coercion of heretics and warfare.

Unbelief and heresy

Medieval writers distinguished between unbelievers, Jews and heretics. Unbelievers (e.g. the Saracens, who were Muslims) simply did not believe in religion really revealed by God. The Jews believed in a divinely-revealed religion, but were not Christians. Heretics were people who had been Catholics but now believed "pertinaciously" (i.e. without readiness to be corrected) some "heresy", i.e., some doctrine inconsistent with Catholic doctrine. (A person who believed a heresy without knowing that it was heresy, and would abandon it if he knew, was not pertinacious and therefore was not a heretic.) The official doctrine of the Church (not always followed in practice) was that unbelievers and Jews could not be compelled to become Christians but heretics could be compelled to abandon heresy.

Read 2-2, q. 10, a. 8.

"To believe depends on the will": Many modern philosophers have held that no one can choose to believe or not believe -- belief does not depend on the will. But Thomas Aquinas, following Augustine, held that religious faith must be a chosen and willing belief, a free decision not forced by evidence though to some extent based on evidence.

"To fulfil what they have promised": At baptism they promised to continue to believe. If belief is a matter of free choice then it is possible to promise to continue to believe.

READ 2-2, q. 10, a. 12.

War

Read 2-2, q. 40, arts. 1, 3.

"Certain rights of war and covenants, which ought to be observed": If belligerents were free to lie and break promises it would not be possible to negotiate a cease-fire or peace, since the negotiations might be deceptive. Thomas imagines a chivalrous warfare in which the parties do battle but keep their word.

Summary

In the section on medieval law we looked at parts of the Civil law (the Roman law as codified by Justinian), and at parts of the Canon law (the law of the Catholic Church). The extracts we read were concerned mostly with the distinctions and relationships between natural law, the law of nations, and human positive law. Law was also one of the topics we looked at in Thomas Aquinas. We also looked at his views on government (it would have existed even in the state of innocence; a "mixed" government, combining monarchy, aristocracy and democracy is the best form); and at his views on property (it exists by human positive law); and at his views on religious toleration and warfare.

Further Study

On this period see Davis Medieval Europe from Constantine to Saint Louis (D118.D29).

For chronology of the life of Thomas Aquinas and a catalogue of his works see Weisheipl, Friar Thomas d"Aquino (B765.T54.W35), p. 351 ff. Works of his relating to politics include commentaries on Aristotle's Nicomachean Ethics and Politics, a little book called On Kingship (also called On the Governance of Princes), and various passages in the Summa theologiae. See Thomas Aquinas, Selected Political Writings (JC121.T43).

See reading guides to Thomas Aquinas, On Kingship and John of Paris, Of Royal and Papal Power (by a pupil of Thomas Aquinas, but makes acute criticism of Thomas Aquinas' view that the secular ruler should be subordinate to the Pope).

On law: See Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition, K150.b47/1963.

On war: See above, Augustine on war. See reading guide, Victoria, Of the Indians; see also John Locke on war (Second Treatise, chapter III, chapter XVI).

Complete text of Thomas Aquinas, Summa theologiae.

Tutorial questions

How would you located Thomas Aquinas in relation to the institutions of his time? How is this location reflected in his writings on political topics?
On what kind of law do (a) civil law and (b) canon law base the institutions of (a) private property and (b) slavery?
Would Thomas Aquinas have rejected state ownership of all the means of production? (According to some 19th and 20th century popes socialism is contrary to the natural right to own property.)
Thomas Aquinas thinks that unbelievers and heretics should be treated differently. Are his reasons convincing?
Does the "natural law" theory make it easier or harder to resolve moral disagreements, or does it make no practical difference?
Does the "natural law" theory mean that morality is whatever God commands? Could there be a natural law if God did not exist?

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