Tuesday, March 29, 2011

Summa Theologica and Human Law

Where do Human laws come from? 

Aquinas says that "justice has its course in nature; thence by reason of their utility; afterwards these things emanated from nature and were approved by custom, were then sanctioned by fear and reverence for the laws."

In other words - utility becomes custom, custom becomes law. This reminded me of my post on Montaigne who was amazed at how much value we attach to custom (which originally came from utility, and apparently contributes to laws).  Of course some laws arrive less organically to protect the common good. 

What gives the law authority over us?

The origin of the word for law (Latin: lex) is derived from ligare (to bind) because we are obliged (obligare) to follow the commands of others for the common good.  But do we need to follow laws, especially Human laws?  Aquinas says that all power comes from God, including the power to make Human law.  Therefore, to break Human law is to break Divine law. That sounds like a no-no. 

Are laws designed to make men good or to punish?

Aquinas says laws are to encourage virtue and to quote Aristotle, "lawgivers make men good by habituating them to good works".   Aquinas follows adding that "accordingly, law, even by punishing, leads men to being good". It is an interestingly view - do we still think that punishment makes men good?  From my experience working in a prison, the answer would be no.

Who is entitled to make laws?
In principle the making of a law belongs to all people, although in practice it is the lawgiver (sovereign) who writes the law with the "common good" in mind. Aquinas probably would be surprised that in a country of our size the power to make laws actually does rest with the masses. Laws that focus on the "true good" need to be followed.  However "tyrannical laws, since it is not in accordance with reason is not a law, absolutely speaking, but rather a perversion of law" do not need to be obeyed. 

What is a good law?

Laws should be codified and general, which limits the partiality of judges to only very specific cases.  "Human laws do not need to forbid all vices, from which the virtuous abstain, but only the more grievous vices from which it is possible for the majority to abstain".  That does make a law easier to follow - one that we would agree to follow anyway.  Over all, Human laws should further the common good, help discipline and foster Divine law.

Who is above the law?
Notably, holy men are not subject to Human laws in so far as they contradict with Divine law.  Also, lawgivers do not need to follow their own laws, although they may suffer God's reproach.  Finally, "laws are not made for the just man".  Fortunately for me I think of myself as a very just man; therefore that 55 mph speed limit doesn't apply to me...officer. 

Summa Theologica, Law and Religion

Who is entitled to make laws?  What gives the law authority over us? Thomas Aquinas believed that the authority and the power to make laws came from God.  This belief has been instrumental to the development of our legal and political system (e.g. "Under God the People Rule").  Just as important is the belief that there is a supreme being who is watching us and whose divine justice we cannot avoid.

My assignment was to read questions 90-97 of the Treatise on Law, which is set up as a series of queries, each containing several objections which Aquinas responds to in turn.  Here is an outline of these questions: 90-92 treat law in general, 93 addresses Eternal law, 94 questions Natural law and 95-97 focus on Human law.  Aquinas often cites Scripture as well as former church leaders (e.g. St. Augustine) in his responses.  Most significant are his references to Aristotle whom he calls "the Philosopher".  I am quite fascinated at how adeptly Aquinas incorporates the philosophy of an ancient Greek pagan into Christianity.

There are four types of law in order of importance: Eternal, Divine, Natural and Human.  Divine power gives the lawgiver of a society the ability to produce laws, but only when these laws consider the common good.

Divine Law

Eternal law supersedes everything as it rests with God.  Divine law descends from this and consists of the Old and New Testaments.   Divine law punishes those that avoid Human and Natural law.   According to Aquinas, the Old (Testament) laws depended on temporal rewards and fear while the New laws promoted eternal rewards and depended on love.  The Old laws were written for "children" but the New laws are made for "adults". It makes me wonder what we would be if we didn't need Divine laws.  Indeed Aquinas does say that the virtuous man does not need laws, therefore it is possible. However, who determines who is virtuous?

Don't sin, unless God says its OK. 

The Natural law is the pursuit of the good, which is the natural inclination of all creatures. It contributes to Human law, involves "reason", and doing what is virtuous (following your conscience). Interestingly, as Aquinas says, Natural law can be changed by instances such as "by the command of God, death can be inflicted on any man, guilty or innocent without any injustice whatever.  In like manner adultery is intercourse with another man's wife who is allotted to him by the law emanating by God. Consequentially intercourse with any woman by the command of God is neither adultery nor fornication.  The same applies to theft".  Therefore, laws do not apply to God or his servants. Let's hope people think God's on your side.

How do these laws work together?  If for example you murder someone you break three laws:

1) Divine Law: Thou shall not murder
2) Natural Law: Murdering is irrational and against the common good
3) Human Law: Murder is a crime

Thomas Aquinas

The sixth reading in the GBWW series for Year Two is the Treatise on Law in the Summa Theologica written by Thomas Aquinas (1225-1274).  Born near Naples, Italy to a noble family (his uncle was Fredrick Barbarossa), Aquinas had numerous opportunities available to him.  Therefore it was a great surprise to his family when he took the habit of the Dominicans and began studying theology at the University of Naples. Continuing his education in Paris he was introduced to Aristotle, recently re-discovered from Arabic sources.  Aquinas readily embraced and incorporated Aristotle (whom he called "the philosopher") into Christian theology and translated Aristotle directly from the Greek texts.   

Aquinas entered a university career teaching in Paris (later in Italy), and was recognized for his extraordinary skill and acumen. In 1269 he returned to Paris as the debate regarding the synthesis of Aristotle and Christianity was reaching its climax.  Aquinas successfully refuted the Latin Averroists and the Augustians who thought Aristotle was incompatible with Christianity.  This firmly established the union between ancient Greek philosophy and Christian theology which persists to this day.  It also cemented the reputation of Aquinas as the leading scholar in the Catholic Church. 

Aquinas is regarded as a Doctor of the Catholic Church and one of its most important philosophers and theologians.  His greatest work is the Summa Theologica, a voluminous manual that was written to instruct believers on issues of theology such as the existence of God, the need for God's laws, the sacraments, etc.  Aquinas frequently cites St. Augustine, Aristotle, other Christian, Jewish and Muslim scholars as well as Scripture.  Since Year 2 of the GBWW is focused on law and political theory, I will be only be reading the section Treatise on Law which deals with the development, necessity and types of law in human society.