|||Aquinas, Thomas. Summa theologica. Westminster, Md: Christian Classics, 1981.|||
The Law belongs to that which is a principle of human acts, because it is their rule and measure. Now as reason is a principle of human acts, so in reason itself there is something which is th principle in respect of all the rest: wherefore to this principle chiefly and mainly law must needs be referred. Now the first principle in practical matters, which are the object of the practical reason, is the last end: and the last end of human life is bliss or happiness. Consequently the law must needs regard principally the relationship to happiness. ST. I-II Q. 90 A. 2.
Before we consider the general definition that Aquinas provides for “law” in the Treatise on Law, I would like to begin by considering that form of law that is most well known to us, namely positive or civil law. There are a number of confusions that likely arise because we conflate different modes of law with each other, so let us be specific—if homely—in considering an example of the positive law. To this end, we need to create something of an artificial scenario in order to keep at bay the many complications that arise in the context of a contemporary polity.
Consider the case of a small town that has complete jurisdiction over its traffic laws. Likewise presume that the government of this town is a direct democracy of all property-holding adults—both male and female. At a given meeting, a question is raised regarding the placement of stop signs at several dangerous intersections in the town. Up to this point, it was “catch as catch can” regarding these intersections. Several accidents left people injured recently, but it was really not completely clear who was at fault. None of the drivers were violating the speeding laws, nor were they driving in a way that was generally hazardous either to their own welfare or that of others on the road. Still, something needed to be done regarding these intersections, for many were even avoiding driving down these roads at all. Likewise, transportation in town was quickly becoming more difficult because of the redirection of traffic. Last, but certainly not least, it was impossible for anyone traveling through these intersections to be sure that he or she would be safe. Therefore, in light of this need, the community voted to erect a number of two-way stop signs at these locations.
Let us consider Aquinas’ definition of law and how it applies to this case. In ST I-II q.90, Aquinas undertakes a consideration of four questions, namely: (1) whether law pertains to reason, (2) what is its end, (3) what is its cause, (4) whether promulgation is essential to law. At the conclusion of his consideration of the last, he gathers together the definition that he provides for law in general: “Law is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.”1 As we will see in future articles, this definition is deceptively simple and will require very careful parsing when we apply it to the natural law. For now, let us compare it to the case of legislation considered above.
In our fictional town, the town gathered in its legislative assembly to consider and vote on the law in question. It is deceptively simple, but we must take heed of the fact that the authority enacted by the group is qualitatively different from any action that would be elicited by an individual member of the society—whatever might be his or her intentions.
For example, consider Bill, a disgruntled citizen who is tired of having his car totaled every time he goes through one of the intersections that is close to his house. Bill goes out to the intersection and erects a stop sign—one that has all the proper dimensions of a stop sign as conventionally used elsewhere in town. For what end does Bill do this? It is quite possible that he is doing it to help his own flourishing—and this is quite understandable, given the expenses that he has been incurring due to his multiple car accidents. Still, this is problematic insofar as Bill’s action has now become a guiding part of the use of a road that has been designated for common use in the town. The rules for such a common road are not the province of any private good per se. That the well ordered use of the roads redounds to private goods—e.g. preventing Bill from having the many unfortunate accidents—this I do not debate at all. However, the rules pertaining to the road’s use represents a kind of “public rationality” that is not able to be reduced to Bill’s needs—or those of any other individual.
Now, perhaps Bill has convinced himself that he is “acting for the common good” by putting up the sign. In a way, he is correct, for his action represents an improvement over the current state of affairs. Still, there is a question of who is the “custodian” of the common good of the town. As my example has indicated, the town council gathers as a body to vote on matters. This activity, in accordance with whatever rules for voting they have established, represents a type of prudence that considers not the individual goods of the citizens but is directly aimed at decisions that pertain to establishing the common good. As Aquinas notes (following but clarifying Aristotle), the virtue of prudence is itself distinguished into specific forms depending upon this relationship to the common good.2 In a future article, we will discuss how Thomas’ treatment of law avoids the authoritarianism that many might fear is close at hand. For now, take my word that it does not end in that sort of desolation.
Here, we have two elements of the definition noted above. On the one hand, the positive law is ordained by whatever “entity”—individual or assembly—that has guardianship for the common good: “for the common good, made by him who has care of the community.” Notice, therefore, that “common good” pertains to the distinction of reasoning that is qualitatively distinct from the private, individual goods of any citizen or citizens. Polluted as our minds are by an accumulation of modern errors, we are often wont to see the common as being a sum of private goods. This is not the case—it is a type of shared rationality, immanent in the group itself and pertaining to the shared life of that group as a group—not to any of the individuals as individuals.
Now, as to the “order of reason,” I suspect that almost all of my readers are a bit troubled by this. The force of law certainly seems to move our wills, indeed imposing upon us a rule that constrains and binds us from doing a number of things. Likewise, the law is not determined completely in the abstract but seems to require some willing of this over that.
These two objections are interrelated and are best understood in terms of the act by which the law-giving entity elicits the choice to enact a given law. As noted above, Aquinas distinguishes clearly between personal and political prudence (as well as “familial” and military). The key distinction in our case is that of direct concern with the common good in the case of political prudence. We must remember, however, that prudence is not merely an intellectual virtue in the way that knowledge of metaphysics, mathematics, or natural philosophy are intellectual perfections. Likewise, prudence is not like the arts, which are certain perfections by which we know how to make something (or perform something in the case of things like music). In the case of the arts, we can indeed even make an error on purpose—the organ instructor can show the student a particular bad way of playing or the grammarian can make a mistake on purpose precisely because he knows his subject that well.3
Prudence is, however, at once intellectual and moral.4 Since it pertains not merely to speculation but, ultimately, speculation as commanding acts, it presupposes the application to action in a way not the same as the case of speculative knowledge or art. Thus, in a given situation, the prudent man does not merely know what to do but likewise chooses whether or not to do it. If he chooses to err, we must say that the act is wrong, in that it was an erring act—for prudence pertains to right activity. That is, essentially, speaking, prudence as a virtue requires a true rectitude—something that we cynically do not expect from our politicians. This, however, is a critique of our culture, not the basis for overriding the essence of what political rationality is (at least for Aquinas, though arguably in truth).
Now, this means that if a given law is prudently passed, it is the right action for the common good—and here we have a vast amount of difficulties just as is the case with individual actions. Very often, we can legitimately wonder whether or not we acted rightly in this or that situation. The same goes for acts of political prudence—though in these cases, it is much more difficult given the permanence of law in particular. Much work must be done by the philosopher to discuss these issues. What I merely want to note is that the legislative body’s collective willing does indeed come into play, as a presupposed rectified inclination that moves it to act in a given way.
However, the specification of the action does not come from the will. Instead, practical rationality is about the ordering of means to a given end. In the case of personal willing, we freely will means to accomplishing the all-embracing good toward which human life is directed. In political rationality, it is the common good—understood in the manner briefly discussed above—that is the end of all actions. Positive laws represent a type of order that then prioritizes aspects of public practical rationality so that the common good can be accomplished. Inasmuch as it represents an ordering, it thus is rational, for it is reason that objectively (i.e. essentially / in a specifying manner) directs to an end.
Read in this light, we can understand the reply to the third objection to ST I-II q.90 a.1: “Reason has its power of moving from the will, as stated above (ST I-II q.17, a.1): for it is due to the fact that one wills the end, that the reason issues its commands as regards things ordained to the end. But in order that the volition of what is commanded may have the nature of law, it needs to be in accord with some rule of reason. And in this sense is to be understood the saying that the will of the sovereign has the force of law; otherwise the sovereign’s will would savor of lawlessness rather than of law.”5
In considering these points, we can see at least an adumbration of the wisdom of Aquinas’ general definition of law. In the next article, I will note his schematization of the forms of law after which I will discuss some perplexities that need to be addressed, particularly as regards the notion of “promulgation.”
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. Follow Matt on Google+
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