By Tony Burns
Political Studies Dec. 2000, Vol. 48:5 p. 929-48.
Contents
Aquinas and the Stoic Conception of Natural Law: the Case of Caesar and the German Robbers
Liberalism and Conservatism in the Political Thought of Aquinas
Abstract: This paper examines the role which the concept of natural law has to play in the political thought of Aquinas, as this is to be found in the Summa Theologiae. It focuses particularly on Aquinas's understanding of the relationship which exists between natural and positive law. It argues that Aquinas's views are inconsistent and that the Summa actually contains two quite different positions regarding this subject. One of these is inherited from the Stoic natural law tradition and the other from Aristotle. The former considers natural law to be a critical standard by means of which positive law can be evaluated by individuals, whereas the latter does not. On the contrary, it maintains that according to Aquinas the principles of natural law require interpretation, and that this interpretation is to be provided, not by the conscience of the individual moral agent, but by positive law. Focus on either one or the other of these two documents leads to quite different interpretations of Aquinas's political thought as a whole. One such interpretation sees Aquinas as being a distant forerunner of the liberal political tradition. The other associates Aquinas much more closely with the notion of authority and hence with conservatism in politics. The article concludes by commenting on the relevance of these different interpretations of Aquinas for the contemporary debate between liberals and communitarians.
It is a characteristic feature of the natural law theory of the stoics that the principles of natural law can be used by individuals to critically evaluate the positive law of the society in which they live (Burns, 1996, pp. 15:21). When considering the views of Aquinas on natural law, however, we are immediately presented with a dilemma. For it is generally acknowledged in the secondary literature that Aquinas subscribes to the stoic conception of natural law. For example, D. G. Ritchie has maintained that "the general conception of natural law in Aquinas corresponds with that of the stoics" (Ritchie, 1903, p. 40).[1] And Hans Kelsen has claimed that, unlike the case of Aristotle's political thought, which cannot legitimately be described as an example of natural law theory at all, so far as Aquinas is concerned:
There is no doubting the theologico-metaphysical basis of
St. Thomas's theory of natural law. It is a genuine natural
law theory. This is also apparent in its attitude to the
relation between natural and positive law. The latter has
binding force only insofar as it corresponds to natural law.
(Kelsen, 1973, pp. 135:6)
Moreover, a number of other commentators have also argued that Aquinas is a "paradigm" example of a genuine natural law theorist in the "traditional" (that is to say the stoic) sense of the term. Consequently they, too, take the view that, in the stoic manner, Aquinas considers natural law to be a standard which might be used to critically evaluate positive law.[2]
The difficulty with this particular interpretation of Aquinas, however, and the source of the dilemma to which we referred above, is the fact that it is also generally acknowledged by modern commentators that Aquinas's intellectual debt to Aristotle is evidently very great. Aquinas refers to Aristotle simply as the "philosopher" in his writings, and is clearly in some important sense an "Aristotelian" both generally, with respect to matters of philosophy or metaphysics, and, more specifically, with respect to his views on morals and politics.[3] Readers will not be too surprised, therefore, by our own claim that there is strong evidence to support the view that, at least at times, Aquinas subscribes to what may be described as the Aristotelian conception of natural law. They will also not be surprised when we maintain that there is, therefore, strong evidence to support the view that, like Aristotle (see Burns, 1998), Aquinas does not consider natural law to be a critical standard which individuals might use for the evaluation of positive law.
This commitment on Aquinas's part to Aristotelianism in general, and to the Aristotelian conception of natural law in particular, is therefore something of a problem for those interested in the interpretation of his moral and political thought as a whole, and especially for those who maintain that Aquinas subscribes to the stoic conception of natural law. It is a problem because the Aristotelian and the stoic conceptions of natural law are fundamentally incompatible with one another. Consequently, although very few commentators seem to appreciate the point, it would in fact not be logically possible for Aquinas to subscribe to both of these conceptions of natural law at the same time without contradicting himself. Our argument in what follows will be that Aquinas does indeed contradict himself in this way and that there is no single, unified or coherent doctrine of natural law to be found in the Summa Theologiae (Aquinas, 1966:75). Rather, there are actually two separate doctrines of natural law to be found in that great work, namely the stoic conception of natural law, on the one hand, and the Aristotelian conception of natural law on the other. These two (in some respects) quite different conceptions of natural law sit together side by side, in an uneasy juxtaposition, in Aquinas's thought. It is the presence of the tension or contradiction which lies between them which, as we shall see, has led to the quite different interpretations of Aquinas's political thought which have been presented by modern commentators.
That there is some evidence to support the view that Aquinas subscribes to the stoic conception of natural law is undeniable. For example, in the Summa Theologiae Aquinas indicates on a number of occasions that he considers natural law or justice to be some sort of critical standard by means of which the validity of positive law could be assessed (Aquinas, 1966, pp. 61, 97, 105, 129:33; Aquinas, 1975a, pp. 9:11, 71, 81). Thus, for example, at one point he says that if a legal code "contains something contrary to natural right, it is unjust and has no binding force" (Aquinas, 1975a, p. 81). And elsewhere he states that:
In human matters we call something "just" from
its being right according to the rule of reason. The first
rule of reason is natural law Hence in so far as
it derives from this, every law laid down by men has the
force of law in that it flows from natural law. If on any
head it is at variance with natural law, it will not be
law, but spoilt law. (Aquinas, 1966, p. 105)
At first sight, therefore, the conclusion that Aquinas is a stoic natural law theorist would appear to be a reasonable one at which to arrive.
What Aquinas means when he says that positive law should not be allowed to conflict with the requirements of natural law is illustrated by the following passage: "If anything conflict with natural right, human will cannot make it just, for instance by decreeing that one may rightfully steal or commit adultery" (Aquinas, 1975a, pp. 9:11). For Aquinas, to say that positive law ought not to contradict natural law is, in effect, to say that no positive law can rightfully permit the performance of those actions which, like theft and adultery, are intrinsically wrong. It is evident that, in making this suggestion, Aquinas allows that a positive law could, in principle, declare or decree that an action like theft is morally permissible. Unlike Bentham, for Aquinas the making of such a declaration is therefore a moral rather than a logical impossibility. Aquinas also implies that if a particular positive law were, in practice, to make such a declaration then that positive law would be an unjust law, having no moral binding force, and ought not to be obeyed (Aquinas, 1966, p. 129).
Aquinas elucidates his claim that natural law both could and should be employed as a critical standard in the stoic sense by referring to a particular example. This relates to the precept of natural law forbidding the act of robbery. The example is based on a remark made, by Julius Caesar in his De bello Gallico (Caesar, 1917). Commenting on this remark Aquinas claims, on Caesar's authority, that the Germanic peoples of Caesar's day "did not consider robbery wicked" -- "apud Germanos olim latrocinium non reputabatur iniquum" (Aquinas, 1966, p. 91). The suggestion here, then, is that Aquinas is of the opinion that Caesar's Germans had a custom or positive law which actually permitted the act of robbery and that he believes that this positive law was unjust, having no binding force, precisely because robbery "is expressly against natural law" (Aquinas, 1966, p. 91). In order to see how, in Aquinas's view, natural law could be used to assess the validity of positive law we must consider this example of the German robbers in a little more detail (see Goerner, 1979, pp. 114:19; Crowe, 1963, p. 208). An examination of Caesar's De bello Gallico shows that the particular remark on which Aquinas bases his example is the following:
Acts of brigandage [latrocinia] committed outside the
borders of each several state involve no disgrace; in fact
they affirm that such are committed in order to practice
the young and to diminish sloth. (Caesar, 1917, p. 349)
We may infer from this that the positive law of the Germans which Aquinas considers to be unjust is one which permits the open seizure of the possessions of others outside the borders of the German states. The assumption which lies behind Aquinas's claim that this particular positive law conflicts with the requirements of the natural law forbidding robbery is, evidently, that all such acts are in fact specific examples of the act of robbery. This assumption represents, as Aquinas himself acknowledges, a particular interpretation of the practical requirements of the general precept of natural law forbidding robbery (Aquinas, 1969, p. 93). It is evident that before a positive law could be shown to conflict with the requirements of a particular precept of natural law, it is first necessary that that precept of natural law should be given such an interpretation. A key question here, of course, is the following. According to Aquinas, who or what is to provide such an interpretation? Can and should this interpretation be provided, as Cicero suggests, by the individual moral agent, perhaps in the light of his or her own faculty of reason, or his or her own conscience (Burns, 1996, pp. 15:21)? Or does the individual moral agent require assistance in such matters? Should the interpretation in question come from some source which is external to the individual moral agent and, if so, what is this external source?
What Aquinas says about the example of the German robbers supports the view that the answers which he would give to these questions are basically the same as those which would be given by Cicero and the stoic conception of natural law. This account of Aquinas's views has a number of important implications. One of these is that the interpretations that need to be given to the precepts of natural law before they could be used for the critical evaluation of positive law must themselves possess the characteristic features of timelessness and universality that are usually associated with the precepts of natural law. The argument which Aquinas uses in order to demonstrate that German positive law conflicts with the natural law forbidding robbery clearly implies that, in his view, the open seizure of the possessions of others outside the borders of the state in which one resides is an act of robbery, not only for the Germanic peoples of the first century B.C., but for all people, at all times and in all places.
Another implication of this account is that, according to Aquinas here, whether or not a particular interpretation of a moral concept, such as that of theft or robbery, is correct is something which is to be discovered rather than decided. Moreover, it is something which is discoverable by the faculty of reason of the individual moral agent. This amounts, of course, to saying that, for Aquinas there can only ever be one correct solution to the question of what the interpretation of a precept of natural law actually is in any given situation. The term "robbery" has a definite meaning, encapsulated in a particular definition, and the meaning which it has is the same always and everywhere. Aquinas is evidently of the opinion that the question, "Is the open seizure of the possessions of others outside the borders of the state in which one resides an act of robbery?", has only one possible answer. In his view the correct answer to this question is "yes". And this answer will remain "yes" always and everywhere, regardless of time, place or circumstances. When discussing this particular example, Aquinas's main criticism of German positive law is that, by implicitly asserting that such an act of open seizure of the possessions of others is not an act of robbery in the strict sense, it gives the wrong answer to this vital question of interpretation (Armstrong, 1966, p. 159).
It follows from this that, here at least, Aquinas is of the opinion that there can be no legitimate disagreements, or variations between different societies, regarding the question of whether or not a particular interpretation of a moral concept associated with a precept of natural law is in fact the one correct interpretation. This follows from the fact that for Aquinas there is only one correct answer to such a question, and from the fact that this one correct answer is, in principle, ascertainable by use of one's faculty of reason. Aquinas does, however, acknowledge that although such disagreements ought not to occur, nevertheless there are occasions when they do in fact occur. His comments indicate that his principal criticism of the Germans is that their positive law permitting the open seizure of the possessions of others outside the borders of the German states is associated with an interpretation of the concept of robbery, or of the general precept of natural law forbidding robbery, which is incorrect. In short, it is Aquinas's view, that Caesar's Germans do not understand the meaning of the word "robbery". Aquinas's explanation for this disagreement between himself and the Germans, and indeed of all such disagreements in general, is the usual stoic one, namely that "knowledge of what is right may be distorted by passion or bad custom or even by racial proclivity" (Aquinas, 1966, pp. 89:91, 95:7; Aquinas, 1969, pp. 35:7). Consequently, like Cicero, Aquinas here takes the view that the principles of natural law might, in this one sense at least, be said to be "changeable", in that their validity as moral principles is not always recognized in practice by the different peoples living in different societies.[4]
Our next task is to examine what Aquinas has to say elsewhere in the Summa about the relation which holds between natural law and positive law and to consider some of the possible objections to the view that Aquinas is a stoic natural law theorist. We may begin by having a look at another example which is referred to by Aquinas in the Summa. In many respects this example is similar to that of the German robbers. In particular, it emphasizes the importance of the idea that before a precept of natural law, like the precept forbidding theft or robbery, could be obeyed in practice it is first necessary that that precept of natural law should be given a definite interpretation. The example in question has to do with an incident, mentioned in the book of Exodus of the Old Testament, in which the Israelites, led by Moses, "took the spoils of the Egyptians", in the course of their flight from Egypt (Aquinas, 1969, p. 93; also Crowe, 1963, pp. 224:5).
Aquinas's main concern here is with the relevance of this particular example for the general question of whether or not the precepts of natural law, including the precept forbidding theft or robbery, are "changeable" [mutabile] or "unchangeable". In his analysis of this particular example Aquinas makes two key claims. The first of these is that the natural law forbidding theft or robbery is in fact absolutely unchangeable, in the sense that actions like theft or robbery can never be morally permissible, no matter what the circumstances may be. The second is that, as a matter of fact, the Israelites were right to appropriate for themselves the spoils of the Egyptians in the circumstances presented by this particular example. In order to meet the objection that he cannot consistently make both of these claims at the same time Aquinas argues that the action performed by the Israelites in the example ought not to be regarded as a case of theft or robbery in the strict sense. For:
… when someone is deprived of what belongs to him,
if he deserves to lose it, this is not the theft or
robbery which is forbidden Therefore when the
children of Israel, by God's command, took the spoils of
the Egyptians, it was not theft, because these were due to
them by the sentence of God. (Aquinas, 1969, p. 93)
According to Aquinas, then, this particular example does not show that there are occasions when the act of theft is morally permissible. Nor, therefore, as some people think, does it demonstrate that the principle of natural law forbidding theft is changeable in the sense that its moral validity is not strictly universal in scope. Aquinas does acknowledge, however, that there is nevertheless another sense in which the natural law forbidding theft or robbery might correctly be said to be mutable or admit of change, in an important passage he points out that some precepts of natural law, like the ones forbidding theft and robbery, although they "are immutable in so far as they embody justice in its essence", nevertheless:
as applied to particular acts, as, for example, whether
they constitute homicide, theft, or adultery or not, they
admit of change. Such change may be effected by divine
authority alone, when it concerns what God alone has
instituted or else by human authority as to what
has been entrusted to human jurisdiction, in these
matters, though not in all, men act in the place of God.
(Aquinas, 1969, pp. 93:5)
There are two points relating to this passage which deserve our further attention. The first is Aquinas's statement that the precepts of natural law are, in one sense at least, changeable after all. It is evident from the passage quoted that what Aquinas means by this is that although it is certainly true that actions like murder, theft and adultery are necessarily morally wrong no matter what the circumstances, nevertheless it is not the case that precisely the same actions will be regarded, always and everywhere, as constituting acts of murder, theft and adultery. That is to say, in the terminology adopted earlier, it is not the case that the interpretations that are given to the precepts of natural law will be the same always and everywhere. These interpretations, and hence the specific meaning of key moral terms such as "murder", "theft", and so on, will vary from society to society. What is especially interesting about the passage quoted above is Aquinas's attitude towards these variations in the interpretations of the precepts of natural law which are to be found in different societies. We have already seen that, in his discussion of the example of the German robbers, Aquinas regards variations of this sort as being unjustifiable from the moral point of view. Here, however, his attitude is quite different. His opinion here is that there is nothing at all morally wrong about the occurrence of such variations. From this point of view, it would therefore not make sense for Aquinas to claim that there is only one correct interpretation of a particular precept of natural law.
The second point of interest relating to the passage quoted above has to do with the question of the source of the interpretations that need to be given to the precepts of natural law before those precepts could be obeyed in practice. In his comments on the case of the German robbers Aquinas suggests that in his view this source is the faculty of reason (or perhaps the conscience) of the individual moral agent. Here, however, he implies that it lies elsewhere, in this passage Aquinas suggests that to offer a particular interpretation of a precept of natural law is in effect to institute a "change" in that precept of natural law. Such a change can, Aquinas maintains, be effected in a precept of natural law either by divine authority, in matters which relate "to what God alone has instituted", or, alternatively, by human authority, in matters which "have been entrusted to human jurisdiction". If we are to understand the full significance of this statement it is necessary that we consider further the question of which matters, in Aquinas's view, are entrusted to divine authority or jurisdiction, on the one hand, and which matters are entrusted to human authority or jurisdiction on the other.
In the Summa Aquinas associates the notions of authority and jurisdiction with that of law. Divine authority and jurisdiction are, therefore, associated with a type of law which Aquinas refers to as divine law, and human authority and jurisdiction are associated with a type of law which he refers to as human law. Aquinas says in the Summa that "divine law is principally designed to establish loving and harmonious relations between man and God", whereas "human law is principally designed to achieve harmonious relationships between men" (Aquinas, 1969, pp. 35:7; also 39, 43, 75). In addition to this, he maintains that divine and human law are closely related to the Mosaic law of the Old Testament, and especially the two precepts of this "Old Law" which state that "Thou shalt love the Lord thy God", and "Thou shalt love thy neighbour" (Aquinas, 1969, p. 65), precepts which, in their turn, are themselves "explained by the Ten Commandments" of the Decalogue (Aquinas, 1969, p. 103), the first three commandments being "concerned with the love of God", and the others "with love of our neighbour" (Aquinas, 1969, p. 81). Moreover, Aquinas also claims that all of the precepts of morality mentioned above are, at the same time, principles of natural law. The principles enjoining us to love God and our neighbour are, he says, the two most "general precepts of the law of nature" (Aquinas, 1969, p. 65), whereas the precepts of the Decalogue are "deduced as conclusions" from these more general "first" principles, and hence constitute what may be referred to as "secondary" precepts of the natural law (Aquinas, 1966, pp. 89, 93, 97, 103; Aquinas, 1969, pp. 35:7, 61, 65:7, 89; also Armstrong, 1966).
If we take all of these remarks together then the appropriate conclusion appears to be that the matters which, in Aquinas's view, are entrusted to human authority or jurisdiction, and hence (in the end) also to human law, are precisely those which have to do with the regulation of men's relations with their fellow men, or with their neighbours, and that, therefore, these matters must themselves bear a close relationship to the precepts of natural law which constitute the second table of the Decalogue. The "changes" in the precepts of natural law which, according to Aquinas in the passage we are discussing, are legitimately entrusted to human authority are, therefore, always changes which relate specifically to the interpretation of the meaning of certain key moral concepts such as murder, theft and adultery. More importantly, though, as M. J. Laversin has pointed out, we may also conclude that, according to Aquinas, the source for the interpretations which must of necessity be given to the general precepts of natural law before individuals could know what they have to do in order to obey those precepts in practice is not, as in the case of the stoic conception of natural law, the reason or conscience of the individual moral agent (Laversin, 1933, p. 182). It is, rather, what Aquinas refers to as human law. The full significance of this can only be appreciated when it is remembered that, in his discussion of human law in the Summa (Aquinas, 1966, pp. 99:156), Aquinas clearly identifies the concept of human law hex humana] with that of positive law [jus positivum] and positive legislation. For example at one point he refers to human law as being "human positive right" [jure positivo humano] (Aquinas, 1966, p. 113; also Aquinas, 1969, p. 39). For it follows from this that in Aquinas's opinion, at least on this particular reading of the Summa, the ultimate source for those interpretations of the general precepts of natural law which are necessary if the citizens of a particular society are to be able obey those precepts in practice is none other than the positive law of that society.
According to Aquinas, one of the principal functions of the positive law of any society is that of defining or providing a specific "determination" of the precise meaning of concepts such as murder, theft and adultery, which are associated with the secondary precepts of natural law contained in the second table of the Decalogue (Aquinas, 1966, pp. 103:7; Aquinas, 1969, p. 255). One of a number of commentators on Aquinas"s thought who have appreciated this point is Frederick Copleston. According to Copleston:
if we take the precept of the Decalogue, "Thou shalt
not kill", its vagueness is obvious. What actions are
to be considered "murder" and what killings are
not to be classified as "murderous"? One of the
functions of positive law is to define such
concepts as clearly as possible and to provide the temporal
sanctions which are not provided by natural law. (Copleston,
1955, p. 231)[5]
We are, therefore, quite unable to agree with Frederick Olafson when he says that the hallmark of Aquinas's natural law theory is the Thomistic view that "substantive moral guidance is available to human beings" in "a state of nature" by the application of the faculty of reason (Olafson, 1966, p. 15; also 18, 20:1). Nor can we agree with Perez Zagorin when he criticizes Aquinas for his alleged failure to understand that "even when we are presented with rules which are described as the dictates of natural law, they turn out to be meaningless without a positive legal order to define their operation". According to Zagorin, Aquinas takes the view that "the prohibition of theft is an express first [sic] principle of natural law". What Aquinas does not appreciate, however, Zagorin insists, is that "such a prohibition is devoid of sense until a positive legal order has defined property" (Zagorin, 1954, pp. 176:7). From the standpoint of the interpretation of Aquinas presented above these claims made by Olafson and Zagorin are simply incorrect. Olafson and Zagorin attribute to Aquinas a position which is the very opposite of the one which Aquinas actually holds.
It is precisely because he assumes that the source for the necessary interpretations of the precepts of natural law is positive law that, on this second reading, Aquinas regards the existence of variations between societies with respect to these interpretations as being entirely acceptable morally speaking. The reason for this is that, following a lead provided by Aristotle (see Burns, 1998, pp. 145:7, 154), Aquinas believes that positive legislation has, by definition, to do with matters which are essentially indifferent from the moral point of view. As he himself puts it in the Summa, "The place of positive right is where it is irrelevant to natural right whether matters be arranged so or otherwise" (Aquinas, 1975a, p. 81; also pp. 9:11). An important implication of this is that, in the passage we are discussing, Aquinas assumes that the decisions which are made by those who are responsible for the positive legislation of a particular society with respect to the specific interpretation of the secondary precepts of natural law are quite arbitrary when considered from the standpoint of morality. These decisions represent the (morally) free determination of some particular act of volition or will on the part of the legislator. For, as Aquinas himself puts it, a thing is only ever called "positive" when it "proceeds from the human will" (Aquinas, 1975a, p. 7).
It is clear from this that the view which Aquinas expresses here regarding the changeability of the principles of natural law is directly opposed to that which he expresses when discussing the example of Caesar's German robbers. For, as Goerner has pointed out, it is evident to anyone who reads Caesar's own account in De bello Gallico that the Germans to whom Caesar is referring there do in fact possess a positive law forbidding the act of robbery (Goerner, 1979, pp. 114:15). They simply disagree with Aquinas as to whether the particular act of which Aquinas clearly disapproves, namely the seizure of the possessions of others outside the territorial boundaries of the German states, does as a matter of fact constitute an act of robbery in the strict sense. In his discussion of this particular example Aquinas makes it plain that, in his view, the Germans have got this wrong. Their interpretation of the natural law forbidding robbery is mistaken. And this is so because their reason has been corrupted. When discussing the case of the ancient Israelites and the despoiling of the Egyptians, however, Aquinas expresses a quite different opinion. From the Aristotelian standpoint which he develops there he would, if he were to be entirely consistent in his views, have to acknowledge that the interpretation of the concept of robbery, or of the secondary precept of natural law forbidding robbery, which is to be found in German positive law is one which is entirely legitimate morally speaking. From this second point of view, therefore, the variation or changeability which we find in the application of the precepts of natural law in different societies is not at all morally reprehensible. Nor, therefore, unlike in the case of the stoic conception of natural law, is it to be attributed to any form of perversion, bad habits, or corruption (for the contrary view see Armstrong, 1966, p. 160).
Perhaps the most important implication of Aquinas's treatment of the example of Moses and the despoiling Israelites, however, is that, on this Aristotelian reading of Aquinas, it is and must be a logical impossibility for the positive law of any society to conflict with the practical requirements of natural law. This follows from the fact that, as we have seen, Aquinas takes the view that it is for the positive law of a particular society itself to decide just what those practical requirements are. He freely acknowledges that decisions of this sort are a matter for human jurisdiction, and hence for human (i.e. positive) law. From this second standpoint, as Hobbes was later to point out, it is evidently a logical impossibility for any precept of natural law to be used as a standard, in the stoic manner, for the critical evaluation of positive law. It is interesting that even those commentators who have noted the fact that Aquinas sees one of the principal functions of positive law as being to interpret or define moral concepts such as murder, theft and adultery have not always appreciated that this is indeed a logical implication of Aquinas's position. Copleston, for example, despite the fact that he gives what is, otherwise, actually an excellent summary of Aquinas's view of the relation between natural law and positive law, nevertheless immediately goes on to point out, without noticing the logical contradiction involved, that even so, it is still Aquinas's view that "legislation must be compatible with the moral law in no case is the state entitled to pass legislation which runs counter to the natural law" (Copleston, 1955, p. 231).[6]
It is clear that, on an Aristotelian reading of his thought, Aquinas attaches much more importance to positive law as an external authority guiding the conduct of the individual moral agent than is usually supposed, especially by those who associate him with the stoic natural law tradition. On this reading, Aquinas maintains that, in the end, it is for positive law to determine how the individual members of a particular society ought to conduct themselves. Moreover, he also acknowledges that there are no principles of morality, and especially not the principles of natural law, which individual moral agents can appeal to in order to critically evaluate the positive law of the society in which they live. In addition, we have also noted that for Aquinas the definitions of moral concepts like murder, theft and adultery which are provided by the positive law of any society are, morally speaking, a matter of complete indifference. There is no reason, from the moral point of view, why those concepts should be defined in one way rather than another. According to Aquinas, then, the choice of one particular definition of these moral concepts rather than another is, in effect, a morally arbitrary one. Consciously or unconsciously, it is a choice which is made in the light of an appeal to what are essentially non-moral factors, such as utility, expediency, or the common good (Aquinas, 1966, pp. 11, 17, 55, 109:21, 127:9, 137:41, 145:9, 153:5; Aquinas, 1974, p. 89).
These aspects of Aquinas's political thought may well come as a surprise to the reader, for the principles which we have just referred to are usually associated, not with natural law theory, but with the doctrine of legal positivism (or even that of totalitarianism) -- and, as we have already observed, Aquinas is usually taken (rightly) to be a paradigm example of a natural law theorist. Their existence has, however, been noted by one or two commentators on Aquinas's thought. Anthony Lisska, for example, has pointed out that Aquinas's natural law theory "is much more congruent with Aristotle's position on the contingency of moral judgements than many historians of philosophy are wont to admit" (Lisska, 1997, p. 254). Another commentator who appreciates and emphasizes the importance of this particular aspect of Aquinas's political thought is Thomas Gilby. As Gilby puts it, when it is a question of deriving civil laws from the precepts of natural law, then for Aquinas:
right or wrong was not the only question, or indeed the
decisive one. What was feasible and advantageous, that was
the point, and moral theory could not settle it. (Gilby,
1958, p. 169)
Gilby acknowledges that a logical consequence of this is the recognition by Aquinas of the fact that "positive law could not be wholly evaluated by moral premises". (Gilby, 1958, pp. 110:11). It could, however, be argued that this conclusion is somewhat faint hearted. Rather, one could (and should) go much further than Gilby himself is prepared to do and claim that, for Aquinas, at least on this Aristotelian reading of his thought, positive law cannot be evaluated by moral premises at all. It is highly significant, although at the same time somewhat ironic given Aquinas's status as a paradigm example of a natural law theorist, that Gilby should associate Aquinas's position here with what he himself describes as being a distinct "trend towards positivism in both church and state" in the political thought of the thirteenth century (Gilby, 1958, pp. 110:11). A similar view is also taken by Copleston, who acknowledges that, despite his commitment to the idea of natural law, nevertheless generally Aquinas "subordinates the individual to the state to a remarkable degree" and is much less of an individualist than is usually supposed. Copleston rightly insists, however, that this should not be taken as implying that Aquinas is a legal positivist, and still less that he is some sort of totalitarian thinker. Rather, in Copleston's view, what Aquinas is attempting to do is to steer a third course, somewhere "between the Scylla of totalitarianism and the Charybdis of atomic individualism" (Copleston, 1962, pp. 137:8).
The fact that Aquinas attaches so much importance to positive law raises the question of his attitude towards the distinction between customary law, on the one hand, and statute law on the other. For it is usually thought that there are just two main types of positive law. There is statute law, or positive law which is enacted, and there is customary law, or positive law which is inherited from the past. We might legitimately ask, therefore, which of these two types of positive law Aquinas has in mind when he suggests that it is the task of positive law to carry out the important task of interpreting the principles of natural law. At first sight, the answer to this question seems very clear. A cursory reading of the Summa definitely gives the reader the impression that Aquinas accords priority to statute law over customary law. He sees the choice of definition of concepts like murder, theft and adultery as being a conscious one. It is a choice which is based on a morally arbitrary act of volition or will. In this respect, Aquinas's views on law in the Summa appear to be much more heavily influenced by Roman legal thought, and by the more recent thinking of those Canon lawyers, like Gratian, who sought to revive and adapt Roman law for the purposes of the medieval Catholic Church in the twelfth century, than they are by the principles of Germanic customary law (see Aubert, 1955; Kuttner, 1950).
Thus, for example, at the very beginning of the "treatise on law" in the Summa, Aquinas considers the question of the possible sources of law in general. He suggests there that, as a matter of fact, there are just two possible sources of law, namely reason or mind, on the one hand, and will on the other. Moreover, he takes very seriously here the maxim of Roman law, formulated by Ulpian, that "the will of the prince has the force of law". This, Aquinas acknowledges, is fundamentally correct, always provided that the prince's will is "ruled by some reason" (Aquinas, 1966, pp. 13:15). There is no reference at all here to the principle of custom as being a possible source of law. Nor does Aquinas refer to custom, later on, when he offers his well known definition of the concept of law, which states that law is "nought else than an ordinance of reason for the common good made by the authority who has care of the community and promulgated" (Aquinas, 1966, p. 17).
In the light of these remarks, it is not surprising that Gilby should detect traces of the doctrine known as legal positivism in Aquinas's political thought. On the other hand, though, this is not to claim that Aquinas has nothing at all to say about customary law in the Summa, or that he attaches no importance to it. On the contrary, he refers to it on a number of occasions (Aquinas, 1966, pp. 27, 107:11, 145:51). Moreover, what he says when he does is so laudatory that it has led more than one commentator to the conclusion that it would be quite wrong to suggest that little importance is attached to customary law within Aquinas's political thought as a whole. J. B. Morrall, for example, has claimed that Aquinas certainly did have a "respect for customary law" and that this is, of course, "entirely in line with Germanic tradition" (Morrall, 1958, pp. 75:6). And Phyllis Doyle has even gone so far as to suggest that Aquinas's conception of political obligation was based "to a large extent upon some of the teutonic notions which had survived in the structure of the society about him". This amounts, Doyle points out, to saying that Aquinas's political thought is based precisely on a respect for custom and customary law. For custom, to the "early invaders", had "the binding force of law". They, Doyle insists, had "no conception of the Roman idea of the law as the will of the community, nor the Christian idea of the will of God" (Doyle, 1966, p. 74).
It appears, then, that there is a certain ambivalence in Aquinas's political thought regarding the status of customary law, and especially regarding the relationship which exists between customary law, on the one hand, and enacted positive law on the other. In the light of later historical developments, especially in seventeenth century England, this presents us with the further question of Aquinas's attitude towards those situations in which there might be a possible conflict, not between natural law and positive law, or even between natural law and customary law, but rather between customary law and statute law. In respect of this particular issue, it seems clear from what Aquinas says in the Summa that, in his view, such a conflict is unlikely to arise. His attitude to this issue is that just as natural law and positive law in general are mutually complementary to one another, so also are customary law and statute law. Thus, for example, he cites with approval Cicero's remark that although "justice took its start from nature" nevertheless, thereafter, "certain things became custom by reason of their usefulness", and these same things were then, later on, "sanctioned" or "promulgated" by an enacted positive law (Aquinas, 1966, p. 27). And he also suggests that a "prevailing custom" obtains the force of law, "when it is allowed by those whose office it is to make laws". For, in such cases, "authority seems to approve what has been brought by custom" (Aquinas, 1966, p. 151). Surprisingly, perhaps, there is an interesting affinity here between the thought of Aquinas and that of Hegel. Like Hegel, Aquinas takes the view that such a "promulgation" of law is absolutely necessary. For what human beings always require is a "written code" of law (Aquinas, 1966, p. 17). According to Aquinas, and again like Hegel, such promulgation is not intended to completely replace or supplant the principles of customary law. Its purpose is, rather, simply to codify those principles (see Burns, 1996, pp. 150:2). Aquinas shares Hegel's view that enacted positive law must respect the customs and traditions of the people for whom it has been enacted. This is, he says, "one of the essential conditions of human law". For "to set aside the customs of a whole people is impracticable" (Aquinas, 1966, p. 151).
Aquinas certainly does therefore, as Morrall and Doyle rightly suggest, have the greatest respect for custom and tradition, especially because, as he puts it, custom "avails much for the observance of law" and therefore acts as form of cement binding society together. Consequently, any change in the law "looked at merely as a change" must be considered as inflicting a definite "loss on the common well being", in so far as it might lead to a possible undermining of the existing social order. For "when law is altered the restraining power of law is weakened in so far as custom is done away with" (Aquinas, 1966, p.147). Nevertheless, at the same time Aquinas also recognizes that it is actually impossible to prevent things from changing altogether. Although it is certainly desirable that an enacted positive law which sanctions an existing custom "should be as permanent as possible" nevertheless, Aquinas acknowledges, "in a world of change there can be nothing that is altogether and immutably stable". Consequently, "human law cannot be entirely unalterable" (Aquinas, 1966, p. 145). It must be accepted that in certain circumstances, relating to issues which are "highly important" and in which there is an "urgent necessity for change", an alteration in the law by those in authority might legitimately be sanctioned. This alteration is always to be carried out by means of legislative enactment.
We have argued that there are actually two contradictory doctrines of natural law to be found in the Summa Theologiae, one deriving from the stoic and the other from the Aristotelian natural law tradition. Although these doctrines evidently share at least some basic presuppositions, they also differ on a number of significant issues. One of these, as we have seen, has to do with our understanding of what it means to say that the principles of natural law are in some sense changeable. Perhaps the most important difference between these two doctrines, however, lies in their respective understandings of the nature of the relationship which exists between natural law and positive law.
The stoic reading of Aquinas differs from the Aristotelian reading in that it presents him as a thoroughgoing individualist who takes the view that natural law constitutes an absolute standard of justice which might be used to critically evaluate positive law. As Ernst Cassirer has observed, most of the stoic thinkers were "determined individualists" (Cassirer, 1967, p. 102). On the stoic reading, as F. Aveling has put it, whereas the State is regarded by Aristotle as "prior to and more important than the individual, whose duty was to become a good citizen and thus further the end of the State to which he was subordinated", for Aquinas, on the other hand, "the position is reversed" (Aveling, 1928, p. 97). In Aquinas's case, the state is subordinated to the individual, and not the other way around. Although, historically, it is of course something of an anachronism, we might nevertheless, for the sake of convenience, label this particular reading of Aquinas as the liberal interpretation of his thought. For, as G. H. Sabine and S. B. Smith have noted, the stoic conception of natural law might be said to rest upon much the same "fundamental moral conceptions" as are to be found, although of course much later on, "at the foundation of all political liberalism" (Sabine and Smith, n.d, p. 38). In this respect, as the Carlyles, Friedrich and Sabine have all observed, the thought of Cicero and the stoic conception of natural law is evidently much closer to that of Kant than it is to that of Aristotle (Carlyle and Carlyle, 1903:36, 1, pp. 8:9, 165; Friedrich, 1963, pp. 31, 34; Sabine, 1973, pp. 162:3). This interpretation of Aquinas, therefore, might be said to consider him (precisely because of his commitment to the idea of natural law understood in the stoic sense) as being, essentially, a forerunner of the modern liberal political tradition. Maurice de Wulf, for example, has gone so far as to suggest that the ethics associated with scholastic philosophy generally, and hence with the philosophy of Aquinas in particular, are essentially "libertarian" in character (de Wulf, 1909, p. 344). And, as Alasdair MacIntyre has noted, in a piece significantly titled "Too many Thomisms?", the French philosopher Jacques Maritain has taken this idea up and made a systematic attempt to offer a Thomistic defence of the Enlightenment doctrine of natural rights, as it is "enshrined in the United Nations Declaration of Human Rights" (MacIntyre, 1990, p. 76; Maritain, 1945).[7]
The Aristotelian interpretation of Aquinas's views on natural law, on the other hand, presents Aquinas in quite a different light. According to this interpretation Aquinas is much less individualistic and libertarian in his approach to political affairs. He does not consider natural law to be a critical standard which individuals might use to evaluate positive law. On this alternative reading, Aquinas takes the view that, in matters of politics, individuals should always have the greatest respect for order and authority, and especially for the authority of the positive law of the society in which they happen to live, which he considers to be a practical application, or a specific determination, of the more general principles of natural law. As John Bowie has put it, the essentially Augustinian idea of "harmony and order" might be said to represent the very essence of the Thomist approach to politics (Bowle, 1961, pp. 190, 208:9. See also Doyle, 1966, pp. 75:6, 82:3). From this point of view, Aquinas certainly does not consider natural law as establishing and protecting any natural or human rights which individuals might appeal to in order to critically evaluate positive law, in the manner of the liberal natural rights theorists of the seventeenth and eighteenth centuries. For such a critical enterprise would, of course, represent a challenge to the authority of the existing social and political order. Interpreted in this Aristotelian way, as a number of commentators have pointed out, Aquinas's political thought might, generally speaking, be said to be in some important sense fundamentally conservative in terms of its political implications. As J. W. Harris has claimed, the Thomist version of natural law may properly be seen as a conservative doctrine when we compare it with "the revolutionary implications" to which natural law theory "later gave rise" in the seventeenth and eighteenth centuries (Harris, 1980, p. 100).[8] it could of course be argued, either on historical or methodological grounds that it is not legitimate to employ the label "conservative" in this particular context. A discussion of methodological issues of this sort is something which must be left for another occasion, it will suffice to say here that, at the very least, one could plausibly maintain that the natural law theory of Aquinas is certainly a distant forerunner of what we now refer to as the conservative conception of natural law, as that conception is to be found in the writings of a number of eighteenth century critics of liberalism -- and especially in the works of Edmund Burke.
The location of Aquinas within the Aristotelian natural law tradition supports the interpretation which presents him as a precursor of the ideology of conservatism, rather than of the ideology of liberalism. Those who look at the political thought of Aquinas from this point of view are likely to agree with Alasdair MacIntyre's claim that any attempt to ground a commitment to the doctrine of human rights, understood in the modern liberal sense, in the thought of Aquinas is mistaken. It is mistaken because it is based upon an individualistic conception of rights which, as MacIntyre puts it, is for the most part (though not entirely) "alien to and absent from" Aquinas's own thought -- just as it is from that of Aristotle (MacIntyre, 1990, p. 76; also d'Entrèves, 1972, p. 48; Sigmund, 1971, pp. 191:2).
It has occasionally been suggested that one of the great differences between modern natural law theory and pre-modern natural law theory is that the former is rigid or inflexible whereas the latter is not. Classical and medieval conceptions of natural law, it has been said, do allow for the possibility of a legitimate change in the positive law of a particular society, and for the possibility of a legitimate variation between the systems of positive law of different societies. For example E. K. Lewis has claimed that "the flexibility of medieval natural law theory" contrasts sharply with "the rigidity of natural law in the eighteenth century" (Lewis, 1954, p. 11; also Lewis, 1946); and J. L. Montrose has insisted that it is "only the eighteenth century rationalists who thought that detailed rules, valid for all times and all places, could be deduced with certitude from basic principles" (Montrose, 1961, p. 214; also Selznick, 1961, pp. 91:2, 103). Although the distinction between two quite different types of natural law theory referred to here is certainly a valid one, nevertheless the way in which this difference is formulated and presented is actually quite inaccurate. For this is a distinction which should not be located chronologically, between pre-modern and modern natural law theory, as is suggested by Lewis and Montrose. It is, rather, a distinction between two quite different traditions of natural law theory, each one of which has an intellectual pedigree which can be traced back to classical antiquity. More specifically, it is the stoic natural law tradition which is rigid and inflexible, whether it is represented in the writings of Cicero or in the writings of the stoic natural law theorists of the eighteenth century. This is not, however, the only natural law tradition. Perhaps, the best example of such an alternative approach is the Aristotelian natural law tradition -- which, as we have seen, is also that of Aquinas (if not all of the time).
The claim that Aquinas's doctrine of natural law possesses the flexibility to which we have just referred is made by John Finnis. Like Copleston, however, Finnis does not acknowledge that a logical implication of this flexibility is the fact that a doctrine of this sort is unable to provide a vehicle for the critical evaluation of positive law (Finnis, 1980, pp. 360:1). Finnis does not recognize that it is precisely the dogmatic and inflexible character of stoic natural law theory which gives it its critical cutting edge. The price which one pays for adopting a more flexible and realistic doctrine of natural law, one which is sensitive to the importance of changing historical circumstances, is the importation in to natural law theory of a degree of cultural relativism which subordinates individuals to the customs and traditions of the particular communities in which they happen to live, and which thereby undermines the potential for the principles of natural law to serve as a vehicle for the protection of natural or human rights. As D. J. O'Connor has put it, "if the detailed precepts of the natural law can be supposed to change" in the manner which is associated with the Aristotelian reading of Aquinas's thought then natural law theory is clearly, "in its application, as relativist as any other" (O'Connor, 1967, p. 79).[9] It is, we might add, precisely this which transforms Aquinas's natural law theory from a liberal into a conservative doctrine. This has been noted by Hans Kelsen, according to whom "the view that the interpretation of natural law is the prerogative of the authorities established by positive law" is one which serves, not to weaken but precisely "to strengthen the authority of positive law". Consequently, this type of natural law theory "has, on the whole, a strictly conservative character" (Kelsen, 1957; p. 150. See also Lloyd, 1959, p. 53). This is something we need to bear in mind when evaluating the doctrine known as communitarianism, and especially the views of those commentators like Alasdair MacIntyre who, in their efforts to develop a critique of the rights based political thought of Enlightenment liberalism, make a direct appeal to the ideas of Aquinas and to the Aristotelian political tradition more generally (MacIntyre, 1990, p. 77).
(Accepted: 30 March 2000)
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