Conflicting Theories of Law and the American Political System: A Commentary on Thomistic & Hobbesian Conceptions of Law & the American Republic, Part I.

(This is the first part of a two part study comparing the concept of law as articulated by St. Thomas Aquinas and Thomas Hobbes and their influences on contemporary American legal theory and practice)

Law is an essential element to any civilized society. Furthermore, even the most primitive societies or ‘lawless’ ones (i.e. the ‘wild west' of 19th century America) posit some kind of mores or values that regulate behavior. St. Thomas Aquinas is the preeminent Christian theologian and philosopher in the history of the Catholic Church and Western Civilization. His thought on law is teleological and natural. Thomas Hobbes, one of the first political philosophers of the ‘Age of Enlightenment’, was a major influence on the thinking of other Enlightenment thinkers such as contemporary and rival John Locke. Hobbesian legal theory is one that is artificial and authoritarian, completely wrapped into the will of the sovereign of the state. Both of these thinkers represent clear, opposing viewpoints on the idea of law, and in extension, the concept of human nature. The tension between these teleological and non-teleological understandings of anthropology, ethics, government and law is evident in American political and legal theory, especially in some of the great controversies presently facing the American constitutional and legal system. In order to navigate the tensions evident in contemporary American political life, it is necessary to investigate these two opposing concepts of law.

One of the great influences on the thought of St. Thomas Aquinas and many medieval Christian, scholastic thinkers was Aristotle. Aristotle’s influence on Western thought cannot be underestimated. The Nicomachean Ethics and Politics are two of the earliest systematic expositions of ethics in the history of Western Civilization. The legal and ethical theories of both Aquinas and Hobbes are based off their affirmation or rejection of Aristotelian principles.

Aristotle’s thought, once lost to Christendom (largely, at least), was rediscovered in the West via certain Islamic thinkers during the 12th and 13th centuries. Thomas Aquinas’ thought, although original to himself, utilized many Aristotelian principles and affirmed the reality of the created world and human existence as being teleological. Concerning law, Aquinas identifies four distinct types of law: Eternal Law, Natural Law, Human/Positive Law and Divine Law. For the purposes of comparison with Hobbes, the Divine Law will not be addressed in this paper. The Divine Law pertains to God’s revelation to humanity via Sacred Scripture, Apostolic Tradition, etc…). Although as important as any other type of law in the Thomistic system, it pertains to the realm of theology. Aquinas’ Concept of law is a supernatural and natural reality, not an artificial thing (i.e. God is the eternal law, the natural law is human nature). From the natural law humans craft positive law to be in accord as much as possible with the eternal and natural law. All types of law pertain to reason because “...it belongs to law to command and to forbid. But it belongs to reason to command...law is something pertaining to reason.”

However, what is a law according to Thomas Aquinas? How is it identified? Are all ‘laws’ valid, moral, or just? Aquinas provides four criteria for identifying a valid, lawful ordinance. First, it must be an ordinance of reason. (ST I-II, Q 90, Art. I) Second, it must be directed toward the common good. (I-II, Q 90, Art. II) Third, it must be made by a legitimate authority. (Q 90, Art.III) Finally, the ordinance must be promulgated so that those affected actually know about it. (Q 90, Art. IV) These four criteria are essential for a law to be considered valid and moral. If any of these criteria are not present, then a law can be considered unjust according to Thomas Aquinas. Each criteria corresponds to Aristotle’s four types of causes. An ordinance of reason is the formal cause; the intention for the common good is the final cause; creation via a legitimate authority is the efficient cause; public promulgation is the material cause.

Each type of law is distinct and each is derived from the other according to their proper order. The Eternal Law is God Himself. God is the ratio or logos and the Eternal Law is the divine mind conceptualizing things. All other types of law flow from God, the Eternal Law. The Natural Law entails the universal precepts that all human beings participate in because they are rational beings. The natural law is rational law, therefore, animals and other non-rational beings do not participate in the natural law; on Earth, only human beings possess the logos. The universal principles that constitute the natural law are immutable and the act of participation in natural law is, analogously, an act of participation in the eternal law; in fact, all participation in law is an analogous participation in the eternal law. (Q 91, Art. II) The natural law is also something that, for Aquinas, is embodied and incarnational. He is talking about reality as it is in the tradition of Aristotle. He does not consider the natural law as some set of a priori conceptualized principles in the mind that are to be imposed on reality according to the will of the one doing the imposition. In other words, there is no ‘my truth, your truth or a man thinks he is a woman, so he must be a woman’ in the Thomistic understanding of law. This incarnational understanding of law is a direct result of Aquinas’ understanding of reason and its relationship to law. The Angelic Doctor affirms that “...law is something pertaining to reason.” (Q 90, Art. I) This relationship becomes evident when considering that, “...Law is a rule and measure of acts whereby man is induced to act or is restrained from acting...the rule and measure of all human acts is the reason, which is the first principle of human acts.” (Q 90, Art. I) Elsewhere Aquinas writes that “...as reason is the principle of human acts, so in reason itself there is something which is the principal in respect of all the rest; wherefore to this principle chiefly and mainly law must needs be referred...the object of the practical reason is the last end...consequently the law must needs regards principally the relationship to happiness.” (Q 90, Art. II)

Aquinas’ definition of reason and its relationship with a proper conception of law cannot be overlooked. Aquinas’ understanding of law is one in which reason, being ordered to an end, seeks to achieve the end; therefore must law also be “...regarded principally the relationship to happiness.” (Q 90, Art. II) Reason seeks to grasp actuality or to actualize its end because, as the first principle in practical matters it is ordered towards a final end, which, for human beings is happiness. Reason’s ability to command and move towards the final end is due to the will: “...due to the fact that one wills the end that the reason issues its commands as regards to things ordained to the end.” (Q 90, Art. I) Another necessary consequence of this understanding of reason, law and human nature is that we, as human beings, have an inherent and innate understanding of good and evil and a natural inclination toward our proper end. This innate understanding is due to our being rational beings, who participate via the natural law analogously in the eternal law for “...it is evident that all things participate somewhat of the eternal law...from its being imprinted on them, they derive their respective inclinations to their proper acts and ends...Wherefore it has a share in the eternal reason...it has a natural inclination to its proper act and end...this participation of the eternal law in the rational creature is called the natural law.” (Q 91, Art. II) Aquinas later writes that “Every act of reason and will in us is based on that which is according to nature...for every act of reasoning is based on principles that are known naturally…” (Q 91, Art. II)

Human/positive law is directly related and not separable from the natural law. Whereas the natural law consists of the general principles in which human beings participate in the eternal law, the human/positive law consists in the particular application of those general principles. In other words, the human/positive law is the written law that explains the general principles of the natural law. It functions as a coercive force in society, specifically against those who, due to weak and wicked dispositions, would pose a major threat/problem to society because they would be more apt to violate the natural law without such written legal ordinances. For instance, promulgation of a law that bars incestuous relationships or marriage between first cousins. Quoting Aristotle, Aquinas writes: “...as man is the most noble of animals if he be perfect in virtue, so is he the lowest of all if severed from the law and righteousness.” (Q. 95, Art. I) Earlier on, Aquinas explains that, “...man has a natural aptitude for virtue...but must be acquired by man by means of some kind of training...a man needs to receive this training from another.” (Q. 95, Art. I) No man can be virtuous in his room! However, due to those who appear, for whatever reason, to be more prone to vice and depravity, Aquinas asserts that it is “necessary...to be restrained from evil by force and fear...this training which compels through the fear of punishment is the discipline of laws.” (Q 95, Art. I)

Whereas the eternal and natural laws are immutable, the human/positive law is mutable in certain cases because it is dependent on circumstances depending on its application. This is a consequence of the two ways in which the human law is derived from the natural law. The first mode of derivation consists in “ conclusions from premises” (Q 95, Art. II) and the second is “..by way of determination of certain generalities.” (Q 95, Art. II) Via the first mode, we can deduce that ‘one should not commit a rape’ from the general principle which exhorts a person ‘not to do harm to others.’ This example demonstrates a reality that is, “...contained in the human law...but having some force in the natural law also.” (Q 95, Art. II) That being said, the idea of how a rapist should be punished would fall into the realm of the second mode of determination which would only find force in the human law because, although we garner from the natural law that one who does harm to another should be punished, a particular application of the punishment is up to the giver of law, not found among the general principles of the natural law. (Q 95, Art. II) Therefore, Arkansas might have a maximum sentence for a rapist of 20 years while New York may have 10 years plus probation.

Concerning human law, where does authority lie? What level of coercive force does it have? According to Aquinas, human law is designed to bring man into virtue gradually but not immediately. (Q 96, Art. II) There is also a temptation to ‘over-legislate’ and Aquinas addresses this, warning that there are some vices that are to be tolerated to a degree by society. This does not equate to an acceptance of sin, rather, it demonstrates St. Thomas’ practicality and understanding of the fallen state of man. Laws lose their effectiveness and society suffers when there are so many laws that many of them are unenforceable and most of the population does not abide by them; this undercuts the respect for law in general and for the lawful authorities. Aquinas writes: “On the contrary...the law which is written for the governing of the people rightly permits the things (vices)...divine providence punishes them...nothing but vices...therefore human law rightfully allows some vices, by not repressing them.” (Q 96, Art. II) Furthermore: “...law is framed as a rule or measure of human acts...laws on men should also be in keeping with their condition...law should be possible both according to nature, and according to the customs of the country.” (Q 96, Art. II) In other words, human/positive law takes into consideration the fallen condition of men because, as mentioned earlier, the purpose of human law is to gradually bring man into virtuous living and to accomplish this purpose, there must not be an undue burden on those who are already virtuous in an attempt to immediately coerce the not virtuous into a more virtuous way of life; “...human law is framed for a number of human beings, the majority of whom are not perfect in virtue...only the more grievous vices from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others...murder, theft, and suchlike...wherefore it does not lay upon the multitude of imperfect men the burdens of those who are already virtuous, viz., that they should abstain from all evil.” (Q 96, Art. II)

Positive law derives its authority, as it does all its attributes, from accordance with the natural law which in turn, derives its form from the eternal law. All things are subject to the eternal law (to God that is) as mentioned earlier; man has no authority on matters pertaining to his nature. Aquinas writes: (emphasis added) “For those things are subject to human government which can be done by man; but what pertains to the nature of man is not done by human government; for instance that he should have a soul, hands, or feet.” (Q 93, Art. IV) Aquinas then makes the important clarification concerning all of God’s creation: “...whether it be necessary or contingent, is subject to the eternal law, while things pertaining to the divine nature or essence are not subject to the eternal law, but are the eternal law itself.” (Q 93, Art. IV) Positive law, of course, is administered by a validly appointed or elected ruler or governing body of rulers, but is only just inasmuch as it corresponds with the natural law; positive law is not coterminous with the will of the sovereign for even the sovereign is subject to the natural and eternal law. (Q 93, Art. IV)

(End of Part I)

References

Theodore Denise, Nicholas White, and Sheldon Peterfreund, eds., “Thomas Hobbes: Social Contract Ethics,” in Great Traditions in Ethics, 10th ed. (United States of America: Eve Howard, 2002), 89-91.