Thomas Aquinas II
Prof. Bill Long 9/20/05
Understanding the Essence and Various Kinds of Law
This essay will focus on the remainder of Thomas' treatment of the essence of law (90) before moving to his famous fourfold division of law (91). Instead of working through all the objections and the answers to the objections, I will focus primarily on the "sed contras" and the "answer" that Thomas provides. We have already seen that it will take quite some effort to get "into" the basic vocabulary and habit of mind of Thomas. Large doses of Aristotle are necessary in order for Thomas, in fact, to make sense.
Finishing on the Essence of Law
We saw at the end of the last essay that Thomas located the essence of law in the act of human reason. But he is not finished. Is law always something directed to the common good? Since law is a "rule and measure" of human acts, telling us what is required and showing how we 'measure up' to its requirements, it is a basic principle of human action. The object of human action, the goal (teleological cause) is bliss or happiness. Therefore law must principally relate to human happiness. Since people are part of a community, this happiness must be found within the community, and law, then is something that is directed to the entire human community and the means of leading to happiness.
He asks further (90.3), "Whether Reason of Any Man is Competent to Make Laws?" His concern here is whether law, which should conduce to human happiness, is something that emerges from the fruitful mind of one person or from a community of people. Quoting Isidore of Seville, Thomas concludes that "a law is an ordinace of the people, whereby something is sanctioned by the Elders together with the Community." In his answer Thomas goes yet further. Since law is something for the common good, those who have concern for that good are either the people themselves or the ruler of the people. "And therefore the making of a law belongs either to the whole people or to a public personage who has care of the whole people."
Finally, he wants to know whether promulgation is essential to law. This is an easy question for him, despite the fact that he raises three objections. Since law is a rule or measure, it becomes this when it is applied to those who are to be ruled and measured by it. Such application can only occur through promulgation. Now Aquinas has answerd the first question about the essence of law. In short, his definition of law is as follows: "An ordinance of reason for the common good, made by him who has care of the community, and promulgated." In his final reply objection in Q.90, A.4, Aquinas again quotes Isidore who says that since "lex" is derived from "legere" (to read), it must be written in order to be enforced.
Question 91--The Four Types of Law
We are now ready to move more quickly. In Q.91 Thomas identifies four types of law: (1) eternal; (2) natural; (3) human; and (4) divine. The eternal law (not quoted in the excerpt assigned) is the ideal type or order of the universe pre-existing in the mind of God. Imagine that God is like a divine architect who must plan a structure before it is built. The eternal law of God is God's wisdom in both "planning" and then creating the universe. God imprints, as it were, on the world of nature "the principles of its proper actions." Thus, the eternal law has both an inaccessible and accessible dimension to it. On the one hand it resides in the mind of God alone, mysterious and inaccessible. On the other hand, since it stands behind the movements of the planets or the numerous complex regularities of nature, we can figure out aspects of the eternal law. We obey the eternal law by following what Thomas calls our "natural inclinations"--either in making a reasoned judgment or even chewing our food thorougly. Promulgated law, which Thomas mentions in Q.90, is a dictate of practical reason emanating from the ruler who governs a community, while eternal law, "the very Idea of the government of things in God the Ruler of the universe," also has the nature of a law. Because God is not subject to time, his law must be called eternal.
Natural law, the focus of our inquiry, is treated in Q.91, A.2. Natural law, for Aquinas, is described as follows: "It is evident that all things partake somewhat of the eternal law, in so far as, namely, from its being imprinted on them...Wherefore it (humans nature) has a share of the Eternal Reason, whereby it has a natural inclination to its proper act and end: and this particpation of the eternal law in the rational creature is called the natural law." Thus, natural law exists in the world, but it is not something out there. It is, as he says later in the answer, "whereby we discern what is good and what is evil." This is the "function" of the natural law, and is "nothing else than an imprint on us of the Divine light." He concludes, "It is therefore evident that the natural law is nothing else than the rational creature's participation of the eternal law."
Thus, A has given us both a definition of natural law (a participation by the human in the eternal law) and the first principle of natural law--the discernment or knowledge of good and evil. He will go into more detail about this principle in Q.94 (next essay). Suffice it to say here now that our inclination to do good and avoid evil is derived by our "participation" in the eternal law of God.
3. Human Law
He has already argued in Q.90 that there is such a thing as human law, but he quotes Augustine for the proposition that the temporal law we know is human law. Human law is a dictate of the practical reason. The procedure by which practical reason words is similar to speculative reason. Speculative reason draws conclusions from inferences in fields of science or math, conclusions which must be "figured out" by reason. So, human reason also "needs to proceed to the more particular determination of certain matters." These more particular deteminations, devised by human reason, are called human law--provided, of course, that the other requirements for human law be observed.
4. Divine Law
This fourth type of law may be dispatched more quickly. The divine law is basically the will of God as revealed in the Scriptures of the Old and New Testaments. This law was necessary for four reasons: (1) humans need explicit divine guidance on how to perform proper acts; (2) uncertainty of human judgment needs a check; (3) humans need divine insight on issues on which they are not competent to judge--i.e., the interior movements of the mind; and (4) it proves that God will punish some deeds that even go beyond the ability of human law to punish.
Let's now turn to A's more detailed treatment of natural law.
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