Thomas Aquinas and Law

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

-        Thomas Aquinas

A good place to start.

Freedom's Progress?: A History of Political Thought, by Gerard Casey

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.

Conclusion

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.