THE LEGAL CHARACTER OF NATURAL LAW ACCORDING TO …

[Pages:271]THE LEGAL CHARACTER OF NATURAL LAW ACCORDING TO ST THOMAS AQUINAS

by

Stephen L. Brock

A Thesis submitted in conformity with the requirements for the Degree of Doctor in Philosophy in the University of Toronto

?1988

ABSTRACT

The claim is that Aquinas conceives of natural law as something that perfectly fulfills his general definition of law. It is a law in even a fuller sense than human positive law. The wide range of positions on this question among contemporary interpreters is surveyed and evaluated. It is first argued that for Aquinas, the formal notion of natural law involves a reference to the eternal law, and that nevertheless the complete promulgation of natural law to man does not require his knowledge of divine providence and legislation, or even of God's existence. Next treated is the difference between the promulgation of natural law and that of positive law, with special attention to Aquinas' notion of command; the aim is to show that the effect proper to command, and hence the full institution of a law, does not necessarily require that those who are subject to it make advertance to its author's will. Then taken up is the role that Aquinas assigns to knowledge of the physical world in the understanding of the precepts of natural law, and his general doctrine of the "imitation of nature," in order to determine whether he in some way attributes an authoritative status to nature. Finally, the manner in which natural law carries obligatory force is shown; the connection between obligation and sanction in Aquinas' thought is indicated, and natural law is found to carry its own proper sanction, called "remorse of conscience." The conclusion is that insufficient attention has been paid to Aquinas' doctrine of the eternal law as a principle governing even the very natures of created things.

TABLE OF CONTENTS INTRODUCTION .............................................................................................................1

CHAPTER 1: THE QUESTION OF THE LEGAL CHARACTER OF THOMISTIC NATURAL LAW ........................................................10

A. Natural law as law in a qualified sense ..............................................................11 B. Natural law as a law secundum se considerata .................................................17 C. Natural law as a not-quite-natural law...............................................................23 D. Natural law as a natural law of God ...................................................................28

Notes ......................................................................................................................41

CHAPTER 2: THE RELATION BETWEEN NATURAL LAW AND ETERNAL LAW ....52 A. The question of the Franciscan influence ..........................................................53 B. The meaning of the question proposed in Summa theologiae I-II q.91 a.2 .........................................................................62 C. Natural law as one of the divisions of law..........................................................65 D. The demonstration of the existence of natural law ..........................................72 E. The logical inseparability of eternal law from natural law ..............................82 Notes ......................................................................................................................85

CHAPTER 3: NATURAL LAW AND POSITIVE LAW (1): THE PROBLEM OF AUTHORITY.........................................................95

A. Natural and positive promulgations of law .......................................................96 B. The definition of natural law and the natural knowledge of natural law ......99 C. The assent to the precepts of natural law: ex ipsa ratione boni .................. 106 D. Command........................................................................................................... 109 E. The analogy of 'law' as predicated of natural and positive law ................... 124

Notes................................................................................................................... 133

CHAPTER 4: NATURAL LAW AND POSITIVE LAW (2): THE AUTHORITY OF NATURE ....................................................... 142

A. The question of the role of nature in the knowledge of natural law ........... 143 B. Some prominent answers to the question ...................................................... 147 C. Natural inclination as following upon natural understanding..................... 152 D. The meaning of the imitation of nature ......................................................... 167 E. The immediacy of man's subjection to the eternal law................................. 176

Notes................................................................................................................... 181

CHAPTER 5: THE OBLIGATORY FORCE OF NATURAL LAW .............................. 192 A. The nature of obligation................................................................................... 194 B. Punishment ........................................................................................................ 204 C. Punishment and command .............................................................................. 210 D. Natural law and punishment ........................................................................... 212 E. Obligation and the first principles of practical reason ................................. 218 Notes................................................................................................................... 223

CHAPTER 6: CONCLUSION .................................................................................. 233 A. Support for the traditional reading and resolution of minor problems ..... 236 B. Qualified support of natural law as law secundum se considerata.............. 242 C. Rejection of the view that natural law is law in only a partial sense ........... 244 D. Natural law as not-quite-natural law: two denials and a demurrer ............. 246 E. The intimate dependency of all things on the eternal law ........................... 252 Notes................................................................................................................... 258

BIBLIOGRAPHY ......................................................................................................... 260

INTRODUCTION

The questions with which this study is primarily concerned are whether and in what way the notion of law that St Thomas Aquinas develops, mainly in the Summa theologiae, is meant to be applied to what he calls natural law. Anyone moderately familiar with the section on law in the Summa theologiae, and not so familiar with the recent literature on Thomistic natural law, may well wonder why this is even a question. Can there be any doubt as to whether St Thomas' classic definition of law in general is fully applicable to natural law? Can there even be any doubt as to how to apply it? Hardly any work of interpretation seems necessary.

Aquinas says quite explicitly, and in the concluding article of his very construction of the definition of law, that "natural law has the nature of law to the highest degree." Lex...naturalis maxime habet rationem legis.1 It is true that he makes this assertion in one of the article's objections, so that it cannot immediately be taken to express his own view. But the reply to the objection, far from denying the assertion or qualifying it in any way, only confirms it. It also seems to indicate rather clearly the precise manner in which natural law possesses the nature of law.

The objection was against the proposition that promulgation belongs to the essence of law. Natural law, it says, is law to the highest degree, and yet needs no promulgation at all. The reply simply denies that natural law is without promulgation. If natural law stands in no need of promulgation, the reason is that it has been fully promulgated already, "by the very fact that God has inserted it into men's minds as something to be naturally known": ex hoc ipso quod Deus eam mentibus hominum inseruit naturaliter cognoscendam.

An account of natural law in terms of the definition of law in general seems almost immediately available from this simple statement. The definition of law that Aquinas gives in this article is "an ordination of reason, for the common good, promulgated by him who has care of the community": rationis ordinatio ad bonum

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commune, ab eo qui curam communitatis habet promulgata.2 As he seems to conceive it, then, natural law would be an ordination of divine reason, for the common good of the universe, promulgated to man by God, the author and governor of the universe, through the instilling of the natural light of the human intellect.

The subsequent formal demonstration of the existence of a natural law in man only sharpens this formulation.3 It specifies the relation between the existence of the divine ordination in God's own mind and the existence that this ordination has as something naturally known by man. Taken as a whole and as He Himself possesses it, the ordination by which God governs the universe is called the eternal law. Natural law is nothing but a certain share in the eternal law, the share belonging to the rational creature by the very fact that he is rational. Lex naturalis nihil aliud est quam participatio legis aeternae in rationali creatura.

Still, unequivocal as these texts seem, Aquinas' subsequent treatment of natural law does raise one or two questions. The formulation of natural law as the participation of the eternal law in the rational creature is found in Article 2 of Question 91 of the Prima secundae. The subject of this Question is the "division of law." Only a few pages later, Aquinas devotes an entire Question (94) to the subject of natural law. He is evidently addressing the quid sit or quomodo sit of natural law, as follows logically upon the an sit of q.91 a.2. The curious thing is the fact that in the whole of Question 94 the eternal law is mentioned not so much as once. This is one consideration that has led some recent interpreters to regard the definition of natural law in terms of the eternal law as a mere function of Aquinas' theological procedure, and not as something intrinsic to his notion of natural law. Nor is it the only such consideration.

Yet from the fact that St Thomas, in a theological work, defines natural law theologically, it follows neither that it cannot be defined philosophically, nor that a philosophical definition would be incom-

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plete, as, according to St Thomas, any account of the natural end of man that neglected divine revelation would be incomplete. Although this is not stated in terms by Aquinas, it is implied by his assertion that 'all men know...the common principles of the natural law' (I-II q.93 a.2). It is also presupposed in his derivations of the various precepts of the natural law, in none of which does he make any appeal to revealed theology. Nor does he explicitly draw upon natural theology, except in deriving precepts having to do with divine worship.4 It is usually understood that the basis of Aquinas' "derivations of the various precepts of natural law" is presented in I-II q.94 a.2. The method sketched in this article for deriving precepts of natural law is based entirely on the common nature of practical reason and on the natural inclinations of the human agent. The term 'natural law,' as it is used here, appears to signify nothing other than the first principles of practical reason. Moreover, St Thomas certainly does not hold that men need to have learned of God's existence and God's legislative activity before they can grasp the truth of the first principles of practical reason. These principles are naturally self-evident to everyone, whereas not even God's existence, let alone His universal providence and legislation, is self-evident to men. This is the point that Donagan is making with his reference to Aquinas' assertion that all men know the common principles of the natural law. He is by no means alone in seeking a purely philosophical account of natural law, or more precisely, one that borrows nothing from either revealed or even natural theology. Nor, as the survey of interpretations in Chapter One will show, is he alone in holding that Aquinas' thought allows for such an account. The question that his claim raises is the following. Can an account of natural law that makes no mention of God, or of the eternal law, still present natural law as a law in the full Thomistic sense? As indicated above, it is easy, at

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