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. 

No comments:

Post a Comment