Friday, August 31, 2018

Thomas Aquinas and Law

By nature all men are equal in liberty but not in other endowments.
-        Thomas Aquinas

A good place to start.

Thomas Aquinas lived for about fifty years, during the middle of the thirteenth century.  He was at the heart of what was one of the most intellectually revolutionary periods in European history:

…he was one of those who led the successful fight to have the newly translated (into Latin) works of Aristotle accepted by the academic and ecclesiastical establishments…

In addition to Aristotle, another rediscovered source for this revolutionary period was Emperor Justinian’s sixth century codification of Roman law.  A quick detour into Justinian’s work:

…Justinian tried to restate the whole of Roman law in a manageable and consistent form…. [The members of the second commission] were to read the works of authority, none of them written later than about AD 300, and excerpt what was currently valid. 

The compilers were authorized to alter the texts they kept. If the new version of a text differed from the old, the new prevailed, on the theory that Justinian was entitled to amend the previous law as he wished.

Justinian was Eastern Emperor.  Presumably, his codification of law was the basis upon which the Byzantine Empire was built.  What can be said of this?  This codified law supported a long-lasting, reasonably stable, commercially successful empire; connecting Asia and Western Europe, its economy was far more dynamic than could be found east or west; gold coinage, while not free-market derived, was respected – certainly one of the key factors in the commercial success.  (My one meaningful foray into this history can be found here.)

In this, we see the issue: Western Europe was governed by a more libertarian law; the Eastern Empire a more codified law (albeit, I have not studied this law at all).  The differences in the development of trade and the economy and internal peace are clear and cannot be avoided.  One is reminded of Rothbard and his essay “The Myth of Efficiency.”  One should not conflate economic efficiency (a myth in any case) with liberty:

I conclude that we cannot decide on public policy, tort law, rights, or liabilities on the basis of efficiencies or minimizing of costs. But if not costs or efficiency, then what? The answer is that only ethical principles can serve as criteria for our decisions. Efficiency can never serve as the basis for ethics; on the contrary, ethics must be the guide and touchstone for any consideration of efficiency.

Returning to Casey: the universities in Paris and Oxford, along with the Dominicans and Franciscans, provided the intellectual vehicle through which Aristotle and Justinian were integrated into Western thought.

Thomas wrote little directly on political theory; he did write that political authority can only be properly exercised in accordance with the law.  Thomas’s view of the law, therefore, becomes the focus.  Law is something much more than a system for regulating the affairs of men; it is part of a system of divine government – and coming to man thusly:

-        Eternal Law is God’s design for the whole of creation.  It is ‘the ideal of divine wisdom considered as directing all actions and movements’ and all other forms of law ultimately derive from it.
-        Divine Law is, in effect, what is given to us by revelation in Scripture.
-        Natural Law is ‘the participation of the eternal law in a rational creature,’ a reflection of Eternal Law as we see it manifested in creatures.  It gives to each kind of thing ends in accordance with its nature.  For man, those ends are the preservation of his own life, life in society, the generation and education of children and the search for truth.
-        Human (or Positive) Law is law as it applies specifically to men in their concrete and practical circumstances.  It is an ordinance of reason for the common good made and promulgated by those who have charge of the community.

Casey will focus on natural law and positive law and the relationship between the two.  I will be citing extensively from Casey as this issue and this period in European history seems to lie at the crux of many important points (and I don’t want my paraphrasing to mess things up): the transition from the old and good medieval law to the bureaucratic and administrative law post-Renaissance; the unavoidable and necessary connection between Christian thought and classical liberalism (and the reliance of the latter on the former).

Natural law is participation by man in the eternal law according to reason. …although there is a certain necessity in its general conclusions, the further one moves from generality, the more the conclusions are open to exceptions.

I think it is worth reading this again and consider the idea of universal law – any universal law, albeit my focus at this blog is libertarian law.  We (libertarians) may all accept the same “general conclusions,” e.g. do not aggress against person or property; but moving from general conclusions to specific conclusions creates room for – even the necessity of – exceptions.  I say these exceptions will be determined based on generally accepted cultural norms, and these will not be “universal.”

Moreover, in practical matters, when it comes to the conclusion of practical reason, not only is it the case that we do not have the same standard of truth or rightness for everyone, it is also the case that the conclusions aren’t known by everyone either.

In case you missed my previous point, this statement by Casey should clarify things.  The further one moves from generalities the further we move from “the same standard of truth or rightness for everyone”; anyone claiming to have the one truth in application – “the only libertarian answer” (just for example) – doesn’t have it because he cannot have it.  His political philosophy is as dangerous to man as the worst “isms” one can recall from the last century.

So what of positive law?

If it is to have moral force, human or positive law must be derived from natural law.  This may happen in two ways.

The first is a conclusion from general principles – for example, don’t murder, rape, commit fraud or steal.  The second, by means of a determination to particular circumstances – transgressors should be punished, but what should be the form of the punishment?

There is some controversy about if and where Thomas draws the line for the reach of law: while noting the ill-advised nature of attempting to regulate all vices by law, some view that he does not reject this idea in principle.  Casey does offer several examples to the contrary; examples where Thomas offers that only the most egregious vices (murder, etc.) should be law’s object.

Positive Laws can be just by virtue of their object (the common welfare), by virtue of their author (if enacted within the powers of whoever enacts it), of by virtue of their form (when the burdens are distributed in a way that promotes the common welfare). 

Positive Laws can be unjust for two reasons: first, if detrimental to human welfare (laws burdensome to the people but beneficial to the ruler, the author exceeds his powers, the burdens are unequally distributed).  Even here, man must abide by such laws if not doing so would cause a scandal or disorder (in such cases, “…man is obliged to give up his right”).

Second, laws may be unjust if contrary to divine goodness: “We must obey God rather than man.”

The legislator does not have a blank cheque. Laws that would require persons to do things that should never be done should be disobeyed. …these aren’t so much laws as acts of violence.

Even here, these laws should be obeyed unless disobedience would cause a greater disorder.

Human law can be changed, however Thomas prefers not too much change.  Change can come from a change in custom or through direct legislative action. 

The latter is something to be resorted to only when the requirements of the common good demand it…. Custom being of such importance in matters of law, laws shouldn’t be changed lightly, for changes in the law decreases its coercive power.


Let’s get out of the way: there is room for much mischief here.  The codification of law; the room left for legislators to define and consider the “common good”; even unjust laws should be obeyed if disobedience will cause a bigger calamity.

But in what context was Thomas writing?  He was writing the context of Christendom, the marriage of the Christian and Germanic traditions.  He seems to be writing with the idea of a good-faith legislator in mind, one who respects this custom and tradition.  Can natural law be properly applied absent this context?

What else did Thomas offer?  Don’t look for universal applied law.  Yes, Eternal Law and Divine Law are universal, but the Natural Law and, more specifically, the Positive Law that follows from this are contextual. 

For the purposes of my focus, there is no universal libertarian law – not when one considers law in application.  Local custom and tradition will influence the application (in law) of universal principles.  To the extent some concept of the natural law serves as the basis for libertarian law, this context (and the culture and tradition from where it came) should be kept at the forefront of one’s thinking.

The non-aggression principle can’t work as hoped without it.


  1. Interesting write up, thank you.

    I find the reference to "Human (or Positive) Law" to potentially be confusing in accordance to the notion of "Positivist" law as I understand it today(in simplified form, a law requiring you to "do something" as opposed to "not doing something"), but that might just be me.

    Regardless, I agree with your conclusion and the only way(IMO) to rectify the NAP is to accept that many parts of it are subjective, and that allowing prevailing culture to sort that out seems most in line with the libertarian ideal of decentralization. It also seems most peaceful.

    I do think that an interplay between codified law and cultural determination can exist and be beneficial- but that's a whole nother' topic. :)

    To some extent, I think the jury system(as a concept) tries to bridge that gap- with mixed success.

    1. “I find the reference to "Human (or Positive) Law" to potentially be confusing in accordance to the notion of "Positivist" law as I understand it today…”

      It isn’t just you, me also…and ATL below. I came across a similar (or, at least equally confusing) use of the word here:

      Maybe use of the term “human” instead of “positive” helps? The act of humans codifying that which is consistent with the natural law? But I am only speculating – and speculating in a different direction than I did in the linked post.

    2. Natural law is 'discovered' law, law which has no author, law which arises 'naturally' as that least set of rules which best serve to safeguard person and property and to preserve the peace. One could say natural law is fundamentally an economic good in the sense that peaceful safe places tend to have much higher property values than dangerous violent ones.

      Positivist law is opposed to natural law, inverts natural law. Positivist law is political law, law devised and deployed by one group to dominate and control some other group. In the US, slavery laws were positivist law, as were the Jim Crow law which replaced them, as are the drug laws which replaced Jim Crow.

      Where natural law is concerned with preserving the peace, positivist law ceaselessly incites conflict
      and perhaps there is no better example of this than the US political classes drug laws. These laws, and by design, have have turned so much of so many once peaceful prosperous American cities into dangerous abandoned war zones unfit to live in.

      Natural law largely remains the same over time and place. The Ten Commandments strictures on murder, theft, and false witness are still the fundamentals of natural law. By contrast, positivist law ceaselessly changes reflecting changing relations of power as one group gains the upper hand. For instance 50 years ago the ruling political class used positivist law to arrest and imprison gays. Gays responded by organizing and arrogating political power to themselves reworking positivist law into a weapon so that by today those who decline to do business with gays can be attacked and financially ruined.

      Positivist law is very dangerous law. The only really safe law is natural law.

    3. Victor, I am not ready to state that these authors mean the same thing as we do when we use the term "positive."

      I will say, medieval law did include some aspects that we would call "positive" when it came to law. Nothing at all to the extent we have today.

      Maybe it took a little of this positive law to keep a relatively libertarian society. Just like maybe it takes a little of the Golden Rule to make the Silver Rule both functional and sustainable.

  2. Some of my favorite quotes from Aquinas, though I am no expert on his writings. I imagine that Casey may have used one or both of these.

    "Human government is derived from the Divine government, and should imitate it. Now although God is all-powerful and supremely good, nevertheless He allows certain evils to take place in the universe, which He might prevent, lest, without them, greater goods might be forfeited, or greater evils ensue" - Aquinas

    Greater goods forfeited from trying to legislate away sin? How about freedom and moral virtue. Greater evils let loose by doing the same? How about the concentration of power in the state which is a recipe for the destruction human life and moral decay.

    "Now human law is framed for a number of human beings, the majority of whom are not perfect in virtue. Wherefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft and such like." - Aquinas

    Only those certain acts which harm others, which most people naturally avoid, are to be prohibited by law. Libertarian ethics is the low bar that everyone should be able to get over. If you can't, you may need to be hit over the head with it.

    "Yes, Eternal Law and Divine Law are universal, but the Natural Law and, more specifically, the Positive Law that follows from this are contextual." - BM

    I fear I'm mixing up positive law, positivism, positive liberty and positive rights. To me they're all related (if not interchangeable) and undesirable. I've always known positive rights to be rights granted by the state (right to abortion, education, healthcare, living wage, etc.), while negative rights are natural rights that exist outside the state, which the state must infringe upon in serving up positive liberty. Positive law is law created or posited by humans and seems to be the obverse of customary or "old and good" law. Positivism is the application of empiricism in the social realm, and it tends to be the major ideological ammunition behind the (cancerous) growth of positive law and positive rights.

    Am I wrong here? Maybe to a certain extent all law must be 'posited' and is thus positive law. We must after all choose to live by natural laws according to our own understanding of our nature and build governing institutions to enforce it. But doesn't this imply that even modern democratic socialists are really natural law advocates, because they are just positing laws which comport with their view of human nature?

    1. ATL, I don’t recall the first Aquinas quote, but I do recall the second (or perhaps a paraphrasing of it by Casey).

      As to “positive law,” see my reply to Nick, above.

  3. "...this political theory had gained both in definiteness and force among the Guelphs, who were the Church party, and among the Ghibellines, or Imperialists. Here are the sentiments of the most celebrated of all the Guelphic writers:—“A King who is unfaithful to his duty forfeits his claim to obedience. It is not rebellion to depose him, for he is himself a rebel whom the nation has a right to put down. But it is better to abridge his power, that he may be unable to abuse it. For this purpose, the whole nation ought to have a share in governing itself; the constitution ought to combine a limited and elective monarchy, with an aristocracy of merit, and such an admixture of democracy as shall admit all classes to office, by popular election. No government has a right to levy taxes beyond the limit determined by the people. All political authority is derived from popular suffrage, and all laws must be made by the people or their representatives. There is no security for us as long as we depend on the will of another man.” This language, which contains the earliest exposition of the Whig theory of the revolution, is taken from the works of St. Thomas Aquinas, of whom Lord Bacon says that he had the largest heart of the school divines." - Lord Acton, THoFiC

    Everyone's probably tired of me quoting from Acton's two essays, but there is just so much good info packed in. The struggle between the Guelphs and the Ghibellines, between the Italian defenders of the Church and those of Empire around the 13th century, would be a good post I think. Perhaps Casey touches on it?

    Even the Ghibellines had some good things to say.

    "The Monarch, who is instituted by the legislature, to execute its will, ought to be armed with a force sufficient to coerce individuals, but not sufficient to control the majority of the people. He is responsible to the nation, and subject to the law; and the nation that appoints him, and assigns him his duties, has to see that he obeys the constitution, and has to dismiss him if he breaks it. The rights of citizens are independent of the faith they profess; and no man may be punished for his religion." - Marsilius of Padua

    Though, before this, Acton quotes him saying something about all men being equal, and he commits the democratic fallacy by conflating "laws men have agreed to" with self-governance.

    Both writers had, what I'd consider good and bad things to say. For instance, the concept of liberty was entangled in democratic principles (though not solely), by both parties. Worshipers of the United States' founding fathers might be sad to know that a mixed form of government (with monarchical, aristocratic, and democratic elements), said to be the pinnacle of political thought, was being advocated about half a millennium before the Constitution by Aquinas.

  4. There is a lot in this blog, but let me make a point based on this:

    "If it is to have moral force, human or positive law must be derived from natural law."

    If I may rephrase this: Any law that violates natural law will over time lead to collapse of its society.

    And from this: NAP as an absolute law cannot exist unless it is 100% natural law.

    Which imo it isn't. (for which this argument can be made: if NAP were natural law, we would not have a need for consciousness, automata would then be more efficient and out-evolve consciousness)

    1. Rien, I would very much appreciate some expansion on your last paragraph.

    2. The idea is that if a law can be expressed in simple terms, it can also be expressed in a few (fixed) neuron connections. If that same law would result in the best possible environment adaptation for a species, then that species would out evolve every other species in that same environment - but needing more energy (resources).

      It is a bit of a jump, but nature does not spend resources on the development of features if those features need more energy (resources) than they produce in benefits. Consciousness is quite complex and thus unlikely to be developed in error.
      Hence there must be a purpose to consciousness.

      If NAP was all that was needed, then it seems unlikely to me that consciousness would be necessary. However if societies are so complex that no fixed neuron wiring can cope then we need a self-programming machine, and a self-programming machine -so the argument- needs consciousness to discern the desired outcome from the not-desired outcome.

      This also suggests that consciousness and morals are closely related.

      Note: Religion does not really have anything to do with the above, creation would give a different starting point, but it is society that needs conscious participants and hence the evolutionary approach is very usable to frame this problem.

  5. ATL: "For this purpose, the whole nation ought to have a share in governing itself;"

    I wonder what people considered "the whole nation" in those times. Would it encompass something as big as -say- Europe? But then, is not the diversity in Europe too big to be governed as a single nation?

  6. Read Saint Thomas's article in the Summa Theologica on the nature of Faith. Catholic theologians -- of which Thomas is one of the very greatest -- do not use the word in the sense of "opinion which I cannot prove". There are three ways to hold something, call them knowledge, opinion, faith. Opinion and faith are similar in that the matter at hand is not evident to the intellect, but differ in the reason for assent, faith being the result of Divine influence, not human reasoning. See his explanation: "Faith is the substance of things to be hoped for, the evidence of things that appear not." Libertarianism is based on an appeal to reason, Thomas denies this as an adequate foundation for human society, Jesus Christ established something else entirely.

    1. "Libertarianism is based on an appeal to reason, Thomas denies this as an adequate foundation for human society..."

      My journey thus far is pointing - very strongly - in this direction.

  7. Not big on Aquinas' soteriology but his thoughts on law are amazing.

    1. Whew...given my desire to avoid theological discussion here, let's just say that you have provided the perfect model for all to emulate.

      And I agree regarding his thoughts on law. Despite the room for mischief, he set a wonderful foundation and model.