Promulgation and the Analogical Scope of the Notion “Law”

Written by on June 9th, 2014. Subject: Philosophy. Filed in Ethics, about Aquinas Maritain Natural Law Eternal Law

|||Maritain, Jacques, and Georges Brazzola. La loi naturelle ou loi non écrite: texte inédit. Fribourg, Suisse: Editions universitaires, 1986.|||

Thomas Aquinas and Natural Law Now, this analogical character seems to me to be placed in light by the very notion of the eternal law. God is not a legislator like others. The community that He leads is the universe of creation. The eternal law is not written on paper; it is promulgated in the divine intelligence, and it is known in itself solely by God and by those who see God by his essence. p.45.

Humbly begging your patience, I must begin this article with some preliminary remarks regarding the notion of analogical predication. Like many philosophical / logical notions, analogical predication is commonly known and commonly assigned many senses. Hence, when an exposition involves an important aspect of such a notion, it often is necessary to revisit the topic—particularly in a forum such as this one.

There is a repeated—though sometimes implicit—theme in the thought of Msgr. Robert Sokolowski, which I believe is quite appropriate in this regard. In philosophical language, we necessarily find ourselves “troping” words into new meanings. In fact, such metaphorical alterations occur even in rather quotidian phrases that express the implicit philosophy at work in the common sense notions presupposed as our “discursive background.” For English speakers, we say, “I see X,” meaning primarily, “I physically see—all “at one blow”—physical thing X.” When we expand this to fit the case of stating, “I see what you mean,” we realize that the term has been “troped” into a new meaning. Such was implied in my last article with regard to the notion of “wisdom” being applied at once to human wisdom and to the Divine Sapience. Of course, there is a difference between metaphor and proper analogical conception—and this is where much ink is spilled for good reason. However, we cannot spill such ink today.

Let us merely consider the classic problem: being. Consider the following “entities”: 1) Peter, 2) Peter’s pale complexion (the “whiteness in peter”), 3) Peter’s age, 4) Peter’s paternity with regard to his son, John. In each of these cases, are we really speaking of “beings”? What do they share in common. For our purposes, I propose to say that they share a certain aptitude for existing, though in different manners. Peter exists as a substantial whole, whereas his paleness is a qualification of his existence in a particular way. There is a dependence of the latter on the former, but you cannot reduce the way that one exists to the way that the other exists. In a way, we could express this by saying that the preconditions for the continuance of personal existence (e.g. Peter) are different from those which are required for him to be qualified in a certain manner (e.g. to be white). When it comes to the latter two cases, we enter into the wide world of the reality of relations. A trip to the 14th century would provide a fun and overwhelming proof of the complexities involved therein. However, we will not undertake that time travel today.

Instead, I merely want to draw attention to this composite character of the term “being.” In a sense, it has a single meaning—being is that which has an aptitude for existence. In another sense, it has a number of meanings—this aptitude is different in each case. Such matters are crucially important for the metaphysician and the theologian. However, they are also very important for the “natural lawyer” as well.

In our earlier articles, we have made allusion to some of the members of Thomistic schema of law: natural, human / positive / civil, and eternal. We likewise noted the definition of law: “Law is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” However, how is it that this definition can apply to our purported schema of laws? How can we say that the “eternal law” is promulgated and likewise say the same of the civil law, for which “the books” are quite physically visible. Although this was not considered in a strictly thematized fashion in the Summa Theologiae, Aquinas raises several salient objections that help to shed light on the problem.

Unsurprisingly, the issue is raised with regard to the relationship between promulgation and the natural and eternal laws. In ST I-II q.90 a.4 obj. 1, the purported interlocutor states that promulgation must not be part of the definition of law, for if it is, natural law could not be said to be a law. In ST I-II q.91 a.1 obj. 2, the eternal law is denied because promulgation is essential to the notion of law. Since there is no one to receive such an eternal promulgation, it seems that there is no eternal law. Finally, in ST I-II q.93 a.5, obj. 1, the interlocutor states that natural contingents (i.e. natural, physical contingent realities) are not subject to the eternal law because promulgation can only occur to rational creatures. Thus, we have three salient points regarding promulgation: 1) promulgation seems to be a problematic member of the very definition of law; 2) there cannot be an eternal law, for it couldn’t be promulgated; 3) promulgation of the eternal law can occur only to rational creatures.

Regarding the first objection, Thomas answers with an extremely dangerous remark—at least one that can be quite dangerous if we are not careful in how we interpret it. He responds that the natural law has been promulgated “by the very fact that God instilled it into man’s mind so as to be known by him naturally.”1 John Locke—for all his ills—wanted to fight against a conception of the natural law that was completely innate, as though we merely needed to be spiders spinning out the web of rationalistic details concerning our nature (like Maritain’s “fairy”, as you might recall from a previous article). Thus Locke states, “There is a great deal of difference between an innate law and a law of nature; between something imprinted on our minds in this very original, and something that we being ignorant of, may attain to the knowledge of, by the use and due application of our natural faculties.”2 Does Aquinas believe that the natural law is merely sitting a priori in the subconscious of man, merely waiting to be applied?

In his specific treatment of the natural law in the Summa Theologiae, Thomas distinguishes between general precepts that are the same for all and cannot be blotted out from the heart of man and those secondary precepts that can be altered because of evil habits or because of the state of a given culture. Maritain devoted quite a bit of ink to this in his Loi naturelle, considering the topic in light of Thomas’ earlier discussion in the Commentary on Lombard’s Sentences.3 For our purposes, I propose that we take Thomas as stating in the aforementioned response that the “promulgation” of the natural law is above all a promulgation in the roots of our being—both in its essential lineaments as well as in the relation of those essential lineaments to the moral environment in which we live. This does not mean that the law alters in its content so that what is evil might become good. However, it means that we are always existing, living, and rational beings, governed by certain ends that are always part of the constitution of moral reasoning, no matter what the context might be. The further “practical semiotics” of our moral-cultural environment will then perhaps deepen these inclinations, making them more profound. However, they remain the ontological base that is “promulgated” not on paper but in the creation of the human creature.

Recall from an earlier article, that the treatise on law pertains above all to the extrinsic norms that measure actions. The human will is, after all, a mensura mensurata—a measured measure as the scholastics would say. It does measure the particular actions of the human person, but it is itself measured by its creation—its primary (and analogically rich) primary inclinations. Though the Christian philosopher is much more comfortable talking about creation, it is necessary to speak of the First Cause—the being that is the source of all actuality in the cosmos. Just as the First Cause is the “capstone” of natural philosophy and metaphysics, so too is the Eternal Law the “capstone” of the theory of law according to this outlook.

The Natural Law is, in a sense, a kind of providence that provides an outline of rationality for the intelligent agent. Because of the amplitude of the intellect, the rational creature can attain its excellence in many ways—so long as it is in accord with the general existential inclinations that ground its perfection. However, as a created being, it is not—pace Kant—the source of an autonomous moral legislation. Its providence—its moral foresight—is limited to its circumscribed situation, its place in history. While it may inject a greater rectitude of virtue and love into history, it does not guide all of moral reasoning. Such providential guidance can only come from the Cause of all being, and it is in this sense—according to Aquinas—that the Eternal Law is promulgated. That is, it is promulgated according to the order of predestination. Such matters are very difficult for the philosopher and the theologian, but this is the “prime analogate” of legal promulgation—and it must be realized to be as like and (more importantly) unlike the promulgation of day-to-day positive law. If the natural law—promulgated by creation—shows the amplitude and analogical scope of law, the eternal law—lifting both philosopher and theologian to the order of Divine Providence Itself—certainly does put in light the majesty of the notion of law, though it also testifies to the poverty of our intellect in grasping this lofty prime analogate.

The final point should be anticipated based on the first response. Natural creatures are ruled by Providence in that they are created with natures that participate in a non-rational manner in the intelligibility that marks the Divine Simplicity. They have their own principles and natures—stones react in their ways, the rose buds in due season, and the house pet senses and has individual actions of affection and repulsion based upon its own particular estimations and needs. For the human agent, the principles of action—the specifically human ones, that is—are imprinted in the rational nature of the human being, in particular (given our focus on law) in the way that we only act with a practical rationality that always conforms (even if in a deformed manner) to the general inclinations of being, living, and existing rationally in a human manner. Of course, this answer is based on all of the intricacies hinted at above in the remarks about the first point raised earlier.

Thus, we see that there is a certain grammar of promulgation that can be understood in the case of the term “law”, but a full exposition of such a topic—one that would be fair to its complexity and profundity—would require many more considerations. I share these thoughts with you not as a complete exposition but as an initial explanation of how the aforementioned definition of law can in fact hold true for as diverse a set of analogates as that which embraces everything from the human positive law to the eternal law that is actually nothing other than Divine Providence Itself.

In our next two articles, we will do some more general expositional work regarding two topics. First, I will clarify what is (and is not) meant by the eternal law. In particular, I will focus on how this is not the same as the “law” of the Scriptures but instead pertains to the metaphysical reality of Divine Providence. (This has already been remarked in the discussions above.) Following that, I will take up the very troublesome notion of promulgation with regard to the natural law. This is, in many ways, the crux of many problems regarding how contemporaries understand (and misunderstand) the natural law tradition. More on this later.

About Matthew Minerd

Matthew Minerd Matthew Minerd, PhL is a PhD student at The Catholic University of America. His research and reading interests are the history of the Thomistic Tradition, 20th Century French Thomism, and sundry topics metaphysical and ethical.

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  1. cf. ST I-II q.90 a.4 ad 1. 

  2. cf. John Locke, Essay Concerning Human Understanding, book I, ch. 3, §13. Text taken from citation in John Locke, Second Treatise of Government, ed. C.B. Macpherson (Indianapolis: Hackett, 1980), xi. 

  3. See Jacques Maritain, La loi naturelle ou loi non écrite, ed. Georges Brazzola (Fribourg: Éditions Universitaires, 1986), 119-200.