Who Makes Law, Promulgation, Eternal Law and Natural Law (Q. 90, Articles 3–4; Q. 91, Articles 1–2)

Orientation #

He picks up in the middle of the Treatise on Law, having already treated law as something of reason and as ordered to the common good (prev. lecture), and now takes the third and fourth articles of q. 90 and the first two of q. 91. The previous class worked through q. 90, aa. 1–2, closing by raising the question who has authority to make law.

The class, in order #

1. Opening political aside (“the legislature is put first”) #

The Constitution puts the legislature first because it gets its name from making law, while the executive is supposed to carry it out; his complaint is that the present executive both fails to carry out the law and makes it. Aside on the Chicago church whose rules he calls “nothing, not really Christian.”

2. Objections: can anyone’s reason make law? (“the reason of anyone can make law”) #

q. 90, a. 3, the three objections:

1. Romans 2: the Gentiles who do not have the law of Moses, when they do naturally the things of the law, “are to themselves a law.” What is said of them can be said of all; so each can make law for himself. He warns against the phrase “be careful about being to yourself a law” — and asks: this natural law, did we make it?
2. Ethics II: the lawgiver’s intention is to lead men to virtue; but any man can lead someone to virtue; so anyone’s reason makes law. (“You wouldn’t know that in America these days” — here they lead them into vice.)
3. As the prince (princeps, from principium) governs the city, so the father governs the house; the prince can make law for the city, so the father for his household. He says this is the one he himself finds attractive.

Asides on odd Spanish customs from his guide to Spain: the gacho [ed.: el colacho] leaping over newborns laid on a blanket in the street, fleeing the Eucharist as a devil figure — “didn’t look like he’s going to make it”; and on the feast of St. Agatha, patroness of married women, two women are elected mayors for a day and a straw man is burned — “they should tell that to the feminists over here.”

3. Sed contra and body: ordering to the common good belongs to the whole (“law is the constitution of the people”) #

Isidore (in Gratian): law is the constitution of the people, whereby those greater by age together with the people sanction something. Therefore not just anyone makes law.

His argument as Thomas gives it: (1) law properly and chiefly regards the order to the common good (from a. 2); (2) but to order something to the common good belongs either to the whole multitude or to one taking the place of the whole multitude; (3) therefore to constitute law pertains to the whole multitude or to the public person who has care of it. Reason for (2): in everything, to order to an end belongs to him whose end it properly is. Example: the general in charge of the army makes the laws because he is in charge of the whole.

4. Replies: participated law, coercive power, house and city (“as in the one ruled”) #

• Reply 1. Law is in someone not only as in the one ruling but also by participation as in the one ruled; so each is a law to himself insofar as he partakes of the order of one ruling — in the natural law, of God. “Wisdom is to speak the truth and act according to nature, giving ear to her”: you are not listening to yourself but to nature. Hence “who show the work of the law written in their hearts” — they didn’t write it. Aside: even terrorists burning people must have something in their minds telling them it is not right, though clouded over by habit and upbringing. Aside on the Massachusetts Citizens for Life meeting — the seating changed from rows to tables so people open up; the woman who, molested and pregnant young, read that the baby’s heartbeat is there and said “I’m not going to go through with that,” raised five children alone, now with many grandchildren.
• Reply 2. A private person cannot lead efficaciously to virtue; he can only admonish, and an admonition not received has no vis coactiva, the coercive force law must have, so as to lead efficaciously to virtue (Aristotle). The multitude or the public person has the coercive power and can inflict punishments; therefore to it alone belongs making laws. This does not deny that a private person can have good influence — hence parents’ concern for their children’s friends. Asides: his mother’s warning that if you get out of your parents’ hands the state comes in, which “scares the wits out of you”; Trivium School and Thomas Aquinas College as places where the moral setting converts and strengthens, against the spring-break culture of most colleges.
• Reply 3. As man is part of the house, so the house is part of the city, and the city is the perfect community, having everything necessary for the good life. So as one man’s good is ordered to the common good, the good of one house is ordered to the good of the city; thus a father can make precepts or statutes, but not what properly has the ratio of law. Examples: his own family had no Euclid, Shakespeare, Mozart, Aristotle or Thomas in it; a father of a family may be drafted — bad for the house, necessary for the city.

5. The three parts of practical philosophy (“not every action of the individual is an action of the family”) #

Ethics (“monastic,” from one, not monks), the household, the city — corresponding to the Nicomachean and Eudemian Ethics and Magna Moralia, an Economics likely from the school rather than Aristotle himself, and the Politics. (Compare: Aristotle did zoology, someone else in the school botany.) Thomas’s reason for the three: not every act of the individual is an act of the family, nor every act of the family an act of the city — the family and city do not have the unity of my body, where the act of my hand is my act. His own example: alone in a quiet house he reads Shakespeare, Euclid or Thomas for his own good; with the little ones about he reads fairy tales or C. S. Lewis for the family’s common good; choosing a neighborhood he acts as father; voting, he acts as part of the country, asking the best man for the job.

6. Common good in the full sense (“a good that many can share in”) #

Three parts of the definition are now in hand (of reason; for the common good; by the multitude or its head), and he pauses on the common good. A common good in the full sense is one many can share without diminishing it. A pie bought together is common but not in the fullest sense — none gets the whole. The Pythagorean theorem: each can know the whole of it, undiminished, and we may understand better by helping each other. Is it the good of Pythagoras? No, of all of us. Is God a private good, only of monks, only of Catholics? No — a common good, nothing lost by sharing; in Communion we have hardly taken a little off His finger. A piece of music or a play is likewise common — heard together, we attend to it more than alone. (Kings named for making law: St. Louis of France; in England, after some groping, Alfred, who “even translated some of Boethius.”)

7. Promulgation (“whether promulgation is of the notion of law”) #

q. 90, a. 4, objections:

1. Natural law most of all has the notion of law — Sophocles’ unwritten law, which Aristotle quotes; and a city law opposed to natural law is no law but a “mislaw.” But natural law needs no promulgation. (Digression: Sophocles is the greatest Greek poet after Homer — he once found the Greek saying that “Sophocles is Homer writing tragedy, and Homer is Sophocles writing epic”; Antigone. Aristotle: dishonoring parents, adultery, murder, theft are always bad, and generally, to do bad is bad — if you do not know that, you are in need of punishment, not of argument.)
2. It belongs to law to obligate; but not only those before whom the law is promulgated are obligated, others too.
3. The obligation of law extends to the future, but promulgation is in the present.

Sed contra (the Decretum, Gratian): laws are instituted when they are promulgated.

Body: law is imposed on others as a rule and measure; a rule and measure are imposed by being applied to what is ruled and measured; such application comes about by their being brought to knowledge of it through promulgation; so promulgation is necessary for law to have its power of obligating.

The definition, gathered (“collect”/colligere, the word used of bringing together major and minor to deduce a conclusion): law is nothing other than a certain ordering of reason to the common good, by him who has care of the community, and promulgated — all four parts required. Joke: next time you appear before the judge, ask him what a law is.

Replies: (1) the promulgation of natural law is God’s inserting it in men’s minds to be known naturally — promulgation here is used analogously; properly it is banging it up at the city post or blowing the horn to announce you shall drive on the right; and ignorance of the law is no excuse. (2) Those before whom it was not promulgated are bound insofar as it comes, or can come, to their knowledge through others. (3) The present promulgation extends into the future through the firmness of the written law, which in a way is always promulgating. Isidore: lex from legendo — he doubts the etymology, and notes etymology itself comes from the Greek word for cause, aitia. Aside: Washington makes so many rules that they can get you whenever they dislike you; agencies make their own rules.

8. The plan of q. 91 (“on the diversity of the laws”) #

Six articles: whether there is an eternal law; a natural law; a human law (what is sometimes called positive law); a divine law (lex divina, not the same as lex aeterna); whether it is one or many; and whether there is a law of sin — “now what the heck is that about?” He notes the order is theological, not philosophical: Aristotle begins with human law and goes on to natural law; likewise the lawyers’ first sense of law is the written, laid-down law (his teacher Kasurik and dinner conversations with lawyers).

9. Is there an eternal law? (“nothing other than a dictate of the practical reason in the prince”) #

Objections: (1) law is imposed on someone, but from eternity there is no one to have law imposed on him, since only God is from eternity — “that convinces me”; (2) promulgation belongs to the definition of law, but there is no one to promulgate to from eternity — “that convinces me too, but I’m not the last word on what’s true or false”; (3) law implies order to an end, and nothing ordered to an end is eternal, since only the last end is eternal. He notes objection 3 touches the “ordered to the common good” part, objection 2 promulgation, objection 1 the question to whom is the law given — does God give Himself a law?

Sed contra, Augustine, De libero arbitrio I: the law called the highest reason cannot be seen by any understanding except as unchangeable and eternal — unchanging and eternal go together.

Body: law is nothing other than a dictate of practical reason in the prince governing a perfect community; supposing the world ruled by divine providence (as in the First Part), the whole community of the universe is governed by divine reason; therefore the reason for governing the world existing in God, the prince of the universe, has the notion of law; and since the divine mind conceives nothing in time but has an eternal concept (Proverbs 8), this law must be called eternal. He flags the translation difficulty of ratio here.

10. Replies on the eternal law, with the digression on “in” (“is the genus in the species, or the species in the genus?”) #

Reply 1: things that are not in themselves exist before God insofar as foreknown and foreordained — Romans 4, who calls those things that are not as those that are. “So I got called when I was not.”

Digression, “from your great knowledge of in”: both — but not in the same sense of in. The genus is in the species as in a composed whole; the species is in the genus as in a universal whole. The genus is actually in the species; the species is in the genus in a kind of potency, the difference being what actualizes. Example: quadrilateral is in square as genus in the definition; square is in quadrilateral as species in the universal genus. Applied: are creatures in God or God in creatures? In Him we live and move and have our being; and in another sense God is in everything — as power is in the thing it has power over, and as knowledge is in the thing known (we speak of a penetrating mind, and God’s is the most penetrating). Thus the eternal concept of the divine law has the notion of eternal law as ordered by God to governing things foreknown. Comparison: a king thinking out the law he will impose, not yet imposed — “another damn tax law.”

Reply 2: promulgation is by spoken and by written word, and in both ways the eternal law is promulgated on God’s part — the divine Word is eternal, and the writing of the book of life is eternal (there is an article on the book of life in the De Veritate); but on the side of the creature hearing or inspecting it cannot be eternal. He notes Latin texts fail to capitalize Verbum and Apostolus, which are used by antonomasia. His poem: “God the Father said it all in one word. No wonder when that word became a man, he spoke in words so few and wise. He was the brevity and soul of it” — a borrowing from Shakespeare. Aristotle (Metaphysics XIII, inferred; he says “the 13th book of wisdom”): we should say some things better than our predecessors and others as well as they said them. Augustine’s “Thou hast made us for thyself, and our hearts are restless until they rest in thee” cannot be said better; so too Shakespeare and sometimes Lincoln. “It’s really disgraceful not to say things as well as your predecessors said them.”

Reply 3: law implies order to an end actively, as through it things are ordered to the end, not passively, as if the law itself were ordered to an end — that happens only per accidens, in a governor whose end is outside himself. God’s end in governing is Himself, and His law is not other than Himself; so the eternal law is not ordered to another end.

11. Is there a natural law in us? (“a partaking of the eternal law in the rational creature”) #

He offers to stop; the class asks for one more article. q. 91, a. 2, objections: (1) man is governed sufficiently by the eternal law (Augustine: the eternal law is that by which it is just that all things be most ordered), and nature does not abound in superfluities nor fail in necessaries; (2) through law man is ordered in his acts to the end, but the ordering of human acts to the end is not by nature as in irrational creatures acting by natural desire — man acts by reason and will (“sounds like Kant would like this objection”); (3) the freer one is, the less under law; man is freest through free judgment; since the other animals are not under natural law, neither is man.

Sed contra: Romans 2 — note how “the law” there means the written law of Exodus or Deuteronomy; the gloss says that though they have not the written law they have the unwritten law, the natural law, by which each understands and is conscious to himself what is good and what bad. Aside on the golden rule: what I wouldn’t have done to me, I shouldn’t do to others.

Body: law, as rule and measure, is in something in two ways — as in the one ruling and measuring (so the eternal law is in God), or as in the one ruled and measured, by partaking of the rule. All things subject to divine providence are ruled by the eternal law and so partake of it, having from its impress an inclination to their own acts and ends. But the rational creature is subject in a more excellent way: others are ordered to partake of God’s goodness in some way, but the rational creature to God Himself, to know and love Him — “that’s how we were made” — and also becomes a partaker of providence, providing for himself and others. Hence the eternal reason is partaken in him as an inclination to a suitable act and end, and this partaking of the eternal law in the rational creature is the natural law. Psalm: “offer the sacrifice of justice” — many say, who will show us good things? — “sealed upon us is the light of thy face, Lord”: the light of natural reason by which we discern good and bad is nothing other than an impress of the divine light on us. He remarks this is a theological definition of natural law, one Aristotle would not use, as defining man as imago Dei is a theological definition where the philosopher says animal having reason — “funny, in the Metaphysics Aristotle calls him a two-footed animal.”

Replies: (1) that argument would hold if natural law were something diverse from eternal law, but it is only a partaking of it. (2) Every act of reason and will derives in us from what is according to nature: in reason, natural understanding of beginnings; in will, natural willing of happiness — all reasoning is derived from beginnings (he corrects himself: “not from principles, but from beginnings — we’re removing the words now, we’re making progress”) naturally known, and every desire of means from natural desire of the last end; so the first directing of our acts to an end comes through natural law. A student notes he is repeating what he taught in the De Veritate; he jokes, “I didn’t look ahead, I plead innocent.” (3) Irrational animals also partake of the eternal thought in some way, but not in a rational way; since law is something of reason, that partaking is called law only by a certain likeness.

Closing: so what of scientists’ “laws of nature”? That too is a likeness — why talk of law where there is no lawgiver? If the laws of nature are something of reason, whose reason is it? He reports a quotation from Heisenberg he could not download: at the first sip of the drink of modern science it is easy to put God out of the picture, but at the bottom of the glass you find God again. “All good things must come to an end.”

His words #

• antonomasia — calling Paul “the Apostle,” Aristotle “the Philosopher,” Christ “the Word”; should be capitalized.
• “mislaw” — a city law opposed to the natural law, which is not really a law.
• vis coactiva / “the forceful power” — the coercive power law must have, possessed by the multitude or public person, not the private admonisher.
• “monastic” (part of practical philosophy) [ed.: ethics of the individual] — “doesn’t mean monastic; it means from one.”
• colligere / “collect” — to gather together, as reasoning gathers major and minor into a conclusion; here the four parts into the definition of law.
• “beginnings” [ed.: principles] — his deliberate English for principia: “we’re removing the words now.”
• “composed whole” vs. “universal whole” — the two senses of in by which genus is in species and species in genus.
• “pressing upon” / “impress” [ed.: impressio] — how the eternal law is in creatures and the divine light in our reason.

Texts #

Read in class

• Thomas Aquinas, Summa Theologiae I-II, q. 90, a. 3 (objections, sed contra, body, replies)
• Thomas Aquinas, Summa Theologiae I-II, q. 90, a. 4 (objections, sed contra, body, replies; final definition of law)
• Thomas Aquinas, Summa Theologiae I-II, q. 91, prologue (six articles)
• Thomas Aquinas, Summa Theologiae I-II, q. 91, a. 1 (whole article)
• Thomas Aquinas, Summa Theologiae I-II, q. 91, a. 2 (whole article)
• Romans 2 (quoted twice, in q. 90 a. 3 obj. 1 and q. 91 a. 2 sed contra); Romans 4; Proverbs 8; Psalm “sacrifice of justice… light of thy face” (Ps. 4, inferred)
• Isidore, Etymologies (law as constitution of the people; lex from legendo), via Gratian’s Decretum
• Augustine, De libero arbitrio I (twice)

Mentioned

• Aristotle, Nicomachean Ethics II; Eudemian Ethics; Magna Moralia; Economics (school of Aristotle); Politics; Metaphysics (“13th book”; man as two-footed animal)
• Sophocles, Antigone / the unwritten law; Homer
• Thomas Aquinas, De Veritate (article on the book of life)
• Augustine, Confessions (“our hearts are restless”) (inferred); Shakespeare; Boethius (translated by Alfred)

His questions #

• Can the reason of any man make law? No — only the whole multitude or the public person having care of the multitude, since ordering to the common good belongs to them.
• If each is “a law to himself,” who made that law? Not we: the natural law is in us by participation, written in our hearts by God.
• Why can a father not make law for his house? He can make precepts and statutes, but lacks the coercive power, and the house is ordered to the city as the perfect community.
• What is a common good in the full sense? A good many can share without diminishing it — the Pythagorean theorem, God, a piece of music; a shared pie only imperfectly.
• Is promulgation of the notion of law? Yes: law is a rule applied to the ruled, and it is applied by being brought to their knowledge.
• What then is law? An ordering of reason to the common good, by him who has care of the community, and promulgated.
• Is there an eternal law? Yes: the divine reason governing the universe, conceived eternally, has the notion of law.
• Is the genus in the species or the species in the genus? Both, in different senses of in: genus in species as in a composed whole, species in genus as in a universal whole.
• Is there a natural law in us? Yes: the partaking of the eternal law in the rational creature, the light of natural reason by which we discern good and bad.
• Why do the scientists speak of laws of nature when there is no lawgiver? Left open as a challenge — if the laws of nature are something of reason, whose reason is it?