Classical Natural Law Theory

St. Thomas Aquinas (1227-1274) -- the "Angelic Doctor"

 

Law (in general)

Law = "a certain ordinance of reason [1] for the common good [2] [+ burdens the community equally], made by him who has the care of the community [3] [with the power to coerce others to obey it], and promulgated [4]."

[1] "Ordinance of reason": law is created by a being with reason, and must have and end or goal (Greek, "telos");

[2] "For the common good": the end or goal of law is the common good (Q: does this include the good of the lawmaker?);

"Consequently, since law is chiefly ordained to the common good, any other precept in regard to some individual work must be devoid of the nature of law, save in so far as it regards the common good."

Later Aquinas talks about a law that is unjust as to its form, and says "as when burdens, even if ordered to the common good, are disproportionately imposed on the people"(65). (Q: Is there a further condition on law, that it be proportionately imposed on people? Or is this requirement contained in the second condition?)

[3] Made by someone who has the care of the community and the power to coerce others to obey "coercive power, such as the law should have, in order to prove an efficacious inducement to virtue"

[4] "Promulgated": the law must be "made known to them [those ruled by it] by promulgation"

 

These conditions are each necessary, and in sum sufficient (depending on the understanding of the second condition, that is), for law. If any condition fails to be fulfilled, then there is an "act of violence," rather than a law.

 

A law "binds one to act"; the "binding force which is proper to law".

How is this binding achieved? Simply by the fact of promulgation by the one who has the care of the community: "in order that a law obtain the binding force which is proper to law, it must needs be applied to the men who have to be ruled by it. Such application is made by its being notified to them by promulgation. Whereby promulgation is necessary for the law to obtain its force."

 

Four types of law for Aquinas:

 

(I) Eternal Law: laws of the universe --- "the whole community of the universe" is governed by God who "is not subject to time but is eternal"

(II) Divine Law: the revealed word of God (revelation) --- we need to be guided to our 'supernatural end," our reason being inadequate to reveal it to us

(III) Natural Law: eternal law as it applies to us, which we know by reason: "The natural law is promulgated by the very fact that God instilled it into men's minds so as to be known by them naturally"

(IV) Human Law: created by us for the purpose of implementing natural law

 

 

First precept of Natural Law:

That good is to be done and pursued, and evil is to be avoided

"whatever the practical reason naturally apprehends as man's good (or evil) belongs to the precepts of natural law as something to be done or avoided."

 

"All those things to which man has a natural inclination are naturally apprehended by reason as being good and, consequently, as objects of pursuit, and their contraries as evil and objects of avoidance. [...] Wherefore the order of the precepts of the natural law is according to the order of natural inclinations. "

 

That is,

1. If X is something to which man has a natural inclination, then X is (naturally) apprehended by practical reason as being good.

2. If X is (naturally) apprehended by practical reason as being good, then X is a precept of natural law that x ought to be pursued;

–> If X is something to which man has a natural inclination, then it is a

precept of natural law that X ought to be pursued.

 

So, to find out what the precepts of natural law are, we need to see what are the X's to which man has natural inclinations. These inclinations are ordered in a hierarchy from most general to the particular (1) those shared with all substances; (2) those shared with animals; (3) those possessed by human beings only.

 

Second Precept of Natural Law:

Preserve life and ward off its obstacles

("whatever is a means of preserving human life and of warding off its obstacles")

 

Natural inclination which man shares with all substances: "the preservation of its own being according to its nature"

 

Third precept of Natural Law

Reproduce and raise your offspring

Natural inclination which man shares with all animals: "sexual intercourse, education of offspring, and so forth".

 

 

Fourth precept of Natural Law

Pursue knowledge and live together in society

Natural inclination of man only "to know the truth about God and to live in society"

Negative version of precept: "shun ignorance, avoid offending those among whom one has to live, and other such things"

 

First Principles of Natural Law

These four precepts of Natural Law are the "First Principles" or "General Principles" of Natural Law. They are mutually consistent and cannot conflict with each other. All First Principles are known by all human beings. All First Principles are binding on all human beings.

"the natural law as to general principles is the same for all both as to rectitude and as to knowledge. But as to certain matters of detail, which are conclusions, as it were, of those general principles, it is the same for all in the majority of cases both as to rectitude and as to knowledge, and yet, in some few cases, it may fail both as to rectitude by reason of certain obstacles and as to knowledge, since, in some, the reason is perverted by passion or evil habit or an evil disposition of nature"

"natural law is altogether unchangeable in its first principles, but in its secondary principles, which, as we have said, are like certain proper conclusions closely related to the first principles it may be changed in some particular cases of rare occurrence through some special causes"

 

The general principles of Natural Law are always binding (rectitude) and are always known.

 

Secondary Principles of Natural Law

Secondary principles divide up into those that, it seems, are (i) always binding and always known, and those that are (ii) always binding but not always known, and those that are (iii) not always binding (and, by implication, not always known).

(i) Always binding and always known:

Do not murder

(ii) Always binding and not always known:

Do not steal

"theft, although it is expressly contrary to the natural law, was not considered wrong among the Germans, as Julius Caesar relates"

(iii)  Not always binding (and, by implication, not always known).

"goods entrusted to another should be restored"

 

"Now this is true for the majority of cases, but it may happen in a particular case that it would be injurious, and therefore unreasonable, to restore goods held in trust, for instance, if they are claimed for the purpose of fighting against one's country."

 

Q: Are there secondary principles of Natural Law that are always binding?

A: Yes. The "slaying of the innocent, adultery, and theft are against the natural law."

Q. Doesn't God condone murder, adultery, and theft in the Bible?

A: No. Here are the arguments:

1. Men are guilty of original sin; so God's killing men is not the slaying of the innocent (is not murder).

2. God allots men their wives; so "intercourse with any woman, by the command of God, is neither adultery nor fornication."

3. Everything belongs to God; so if God orders someone to take something, its not theft.

Q. Doesn't Aquinas condone theft in conditions of extreme need?

A: No. In conditions of extreme need, the item in question no longer belongs to the other person, it belongs to the person in need:

"It is not theft, properly speaking, to take secretly and use another's property in a case of extreme need: because that which he takes for the support of his life becomes his own property by reason of that need." (Summa Theologica, Justice, Q. 66)

 

 

Human Law

Human law is derived from Natural Law:

"So too it is that from the precepts of the natural law... the human reason needs to proceed to the more particular determination of certain matters. These particular determinations, devised by human reason, are called human laws, provided that the other essential conditions of law be observed."

"The general principles of the natural law cannot be applied to all men in the same way on account of the great variety of human affairs, and hence arises the diversity of positive laws amongst various people."

(Human law = positive law)

"Some things are, therefore, derived from the general principles of the natural law by way of conclusion, e.g. that "one must not kill" may be derived as a conclusion from the principle that "one should do harm to no man.""

 

Two different ways to derive Human Law from Natural Law:

 

(1) Derived by way of "conclusion":

 

Natural Law: No "slaying of the innocent"

Human Law: Do not murder

 

(2) Derived by way of "specification" or "determination":

Natural Law: "the evil-doer should be punished"

Human Law: the punishment for a DUI is ten days in jail

"while some are derived there from by way of determination, e.g., the law of nature has it that the evil-doer should be punished; but be punished in this or that way is not directly by natural law but is a certain determination of it."

 

When human laws are derived in the first way, then they have the "force" of Natural Law as well as Human Law. However, when human laws are derived in the second way, they only have the "force" of Human Law:

"Those things which are derived in the first way [have] some force from the natural law also. But those things which are derived in the second way have no other force than that of human law."

Natural Law requires that we protect people's lives, have security of person and property, etc., but it does not require that we, e.g., drive on the right hand side of the road, or not park in front of a fire hydrant.

 

(1) Force of Natural Law and Human Law:

Human Law: Do not murder.

 

(2) Force of Human Law only:

Human Law: Do not drive a car without a driver's license.

 

Exceptions to Human Law

Exceptions can be made to just laws:

"Now, if often happens that the observance of some point of law conduces to the common weal in the majority of instances, and yet in some cases is very hurtful if a case arise wherein the observance of that law would be hurtful to the general welfare, it should not be observed, if the observance of the law according to the letter does not involve any sudden risk needing instant remedy, it is not competent for everyone to expound what is useful and what is not useful to the political community; those alone can do this who are in authority, and who, on account of suchlike cases, have the power to dispense from the laws. If, however, the peril be so sudden as not to allow of the delay involved by referring the matter to authority, the mere necessity brings with it dispensation, since necessity knows no law."

 

(i) Law-makers can act contrary to the “letter” of just human law (or temporarily suspend the human law) when it is within the “intention” of the just human law

"And it often happens that observing the law is generally beneficial to the commonweal but most harmful to it in particular cases. Therefore, since lawmakers cannot envision all particular cases, they direct their aim at the common benefit and establish laws regarding things that generally happen. And so one should not observe a law if a case happens to arise in which observance of the law would be harmful to the commonweal. For example, if a law should decree that the gates of a besieged city remain shut, this is for the most part for the benefit of the commonweal. But if a situation should arise in which enemy soldiers are pursuing some citizens defending the city, it would be most harmful to the community if the gates were not to be opened to admit the defenders. And so, contrary to the letter of the law, the city gates should be opened in such a situation in order to preserve the commonweal, which is the lawmaker's intention."

(ii) In a case of “sudden danger,” where there is not enough time to “have recourse to a superior,” citizens can act contrary to “letter” of just human law.

"Rather, only rulers are competent to make such interpretations, and they have authority in such cases to dispense citizens from laws. On the other hand, if there be a sudden danger that does not allow enough time to be able to have recourse to a superior, the very necessity includes an implicit dispensation, since necessity is not subject to the law."

"Now it happens at times that a precept which is conducive to the common weal as a general rule is not good for a particular individual or in some particular case, either because it would hinder some greater good or because it would be the occasion of some evil, as explained above. But it would be dangerous to leave this to the discretion of each individual, except perhaps by reason of an evident and sudden emergency"

(iii) Law-makers can exempt particular individuals from just human laws.

 

Revisions to Human Law

(iv) Just human laws can be revised because reason advances or “conditions change”

"And so there can be two reasons why laws may be rightly revised; one, indeed, regarding reason; the second regarding human beings, whose actions laws regulate. One reason indeed regards reason, since it seems natural for reason to advance step-by-step from the imperfect to the perfect. [...] And regarding human beings, whose actions laws regulate, laws can be rightly revised to suit the changed conditions of human beings, and different things are expedient for human beings according to their different circumstances."

(v) Just human laws “should never be revised unless the commonweal gains in one respect as much as it loses in the other,” e.g. because (a) “a very great and clear benefit” or (b) “the existing law is clearly unjust” or (c) “observance of the existing law is most harmful.”

 

Human Law does not include all of Natural Law

(vi) Human laws should not prohibit everything prohibited by natural law “Otherwise, the imperfect citizens… would erupt into worse evil things”

(vii) Human laws should prohibit “only the more serious kinds of vice, from which most persons can abstain, and especially those vices that inflict harm on others, without the prohibition of which human society could not be preserved. For example, human laws prohibit murders, thefts, and the like.”

"Wherefore, too, human law does not prohibit everything that is forbidden by natural law."

 

Natural Law: Do not fornicate.

Human Law: [None]  

 

Unjust Human 'Law'

"Laws framed by man are either just or unjust. Now laws are said to be just from [1] the end, when, to wit, they are ordained to the common good, and from [2] their author, that is to say, when the law that is made does not exceed the power of the lawgiver, and from [3] their form, when, to wit, burdens are laid on the subjects according to an equality of proportion and with a view to the common good."

"Laws may be unjust in two ways: first, by being contrary to human good, through being opposed to the things mentioned above. Secondly, laws may be unjust through being opposed to divine good; such are the laws of tyrants inducing to idolatry or anything else contrary to divine law".

 

(1) Human Law is unjust if it conflicts with Natural Law or Divine Law

"Further, human law, in order to be just, should accord with the natural and divine laws"

(a) "Laws can be unjust in the in a second way by being contrary to the divine good (e.g., the laws of tyrants inducing their subjects to worship idols or to do anything else contrary to the divine law). And it is never permissible to obey such laws"

(b) Laws can be unjust if, e.g., they require, or even permit, murder. Here they are contradicting Natural Law.

For example, it has been argued that legally enforced abortions in China for women with unauthorized second pregnancies are unjust according to Natural Law.

 

(2) Human Law is unjust if it is contrary to human good

(a) Does not have the common good as its end

"as when authorities impose burdensome laws on citizens to satisfy the authorities' covetousness or vainglory rather than to benefit the community."

(b) Exceeds the power of the lawgiver

"Or laws may be unjust regarding the authority to make them, as when burdens, even if ordered to the common good, are disproportionately imposed on the people."

(c) Burdens the community unequally

"Or laws may be unjust regarding their form, as when burdens, even if ordered to the common good, are disproportionately imposed on the people."

 

Unjust Human 'Law' =/= Law

If Human Law conflicts with Natural Law, or Divine Law, then it is unjust.

"[Unjust human laws] are like acts of violence rather than laws, because, as Augustine says, "A law that is not just, seems to be no law at all.""

"[Laws] framed by man are either just or unjust. If they be just, they have the power of binding the conscience from the eternal law whence they are derived... On the other hand, laws may be unjust in two ways: first, by being contrary to human good, ... as when an authority imposes on his subjects burdensome laws, conducive, not to the common good, but rather to his own cupidity or vainglory... Such are acts of violence rather than laws, because, as Augustine says, a law that is not just seems to be no law at all. Therefore, such laws do not bind in conscience... Secondly, laws may be unjust through being opposed to the divine good... Laws of this kind must in no way be observed, because... we ought to obey God rather than men." (53-54)

"Consequently, every human law has just so much of the nature of law as it is derived from the law of nature. But if in any point it departs from the law of nature, it is no longer law but a perversion of law." (p. 53)

"Tyrannical government, which is altogether corrupt,... has no corresponding law" (p. 53)

 

Is an unjust human 'law' a law? It seems not.

Is an unjust human 'law' binding as law? Not if it is not a law.

May an unjust human 'law' be disobeyed?

Should an unjust human 'law' be disobeyed?

 

(1) In the case of human unjust 'laws' that conflict with Divine Law, they ought to be disobeyed.

(2) In the case of human unjust 'laws' that conflict with certain Natural Laws, they ought to be disobeyed.

(3) In the case of human unjust 'laws' that conflict with other Natural Laws (?), or in the case of human unjust 'laws' that are unjust as to the end (not the common good), the authority (not the proper authority), or the form (not proportionate in burdens), the answer depends.

 

If Human Law is unjust in sense (3), it may be disobeyed, unless not obeying it will cause "scandal" or "disturbance," in which case it ought be obeyed (all other things remaining equal):

"Wherefore such laws do not bind in conscience, except perhaps in order to avoid scandal or disturbance, for which cause a man should even yield his right"

"a law that inflicts unjust hurt on others neither in such matters is man bound to obey the law, provided he avoid giving scandal or inflicting a more grievous hurt"

 

 So...

(i) If disobedience leads to “causing greater harm” or “giving scandal,” then you are bound to obey the ‘act of violence’

(ii) If disobedience does not lead to causing greater harm or giving scandal, then you are not bound to obey the ‘act of violence.’ You may decide whether or not to obey based on self-interest, or generosity.

 

Discussion

How to read Aquinas's claim that only just laws have the power to bind in conscience, and that unjust laws do not bind in conscience as law (even if what they require one to do may have to be done, because not doing so would cause greater harm).

Just v. Unjust = For the common good vs. against the common good

Note: a law can be directly just or directly for the common good (e.g. do not murder) or indirectly just or indirectly for the common good (e.g. drive on the right).

 

Examples of laws that are unjust or against the common good:

Give all of your income and food to your ruler

All religious worship is forbidden

Give your virgin daughter to your ruler on her sixteenth birthday

Report all Jews and homosexuals to the Homeland Security Office

 

Question: Which of these is being claimed by Aquinas?

(a) A law must be just (directly or indirectly) in order for it to be a law

(b) A law must be just (directly or indirectly) in order for it to be a law that is binding in conscience

 

Possible evidence for (a)

(i) "Law is a rule and measure of acts, whereby man is induced to act or is restrained from acting; for lex [law] is derived from ligare [to bind], because it binds one to act." (p. 52)

(ii) "These particular determinations [of Natural Law], devised by human reason, are called human laws"

 

Possible evidence for (b)

(i) "hence arises the diversity of positive laws among various people"

(ii) "Therefore, such laws do not bind in conscience [...]  Laws of this kind must in no way be observed"

 

Questions for Aquinas: "we ought to obey God rather than men"

(A) "Protesters must stay at least 100 feet away from the abortion clinic and must not obstruct the medical staff or patients of the clinic."

Is this (a) a law? (b) a law binding in conscience?

 

(B) "Non-whites are not allowed to eat at the counter."

Is this (a) a law? (b) a law binding in conscience?

 

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Contemporary Natural Law theory, or naturalism, uses the notion of moral permissibility vs. moral impermissibility.

 

Moral permissibility subdivides into:

(a) Morally obligatory (e.g. keep one's contracts, refrain from murder)

(b) Merely morally permissible (e.g. tax returns must be filed in triplicate)

Contemporary Natural Law theory thus holds that in order for a law to be a law, the law (i.e. the content of the law) must be morally permissible, i.e. either morally obligatory or merely morally permissible.

If a 'law' is not even merely morally permissible, i.e. if the 'law' is morally impermissible, then it is not a law.

 

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This is sometimes captured by the distinction between:

(a) Malum in se: a wrong in itself (e.g. murder)

(b) Malum prohibitum: wrong because it is illegal (e.g. driving on the left)

 

This might be captured by the idea that in the first case, there is a law against it because it is wrong, and in the second case, it is wrong because there is a law against it.