Summa I-II q.91 aa.5–6 and q.92 a.1: The old law and the new law, the 'law of hot blood', and whether law makes men good

Orientation #

He picks up the Treatise on Law at the fifth article (“To the fifth, one goes forward”) and continues straight through to the end of q. 92, a. 1, closing the class with “Shall we stop now?” He refers back to what “has been said above” in the earlier articles on law and on virtue (prev. lecture).

The class, in order #

1. Three objections: the divine law should be one (“of one king and one kingdom, there is one law”) #

• Obj. 1: one king, one kingdom, one law; the whole human race is under God as one king (Psalm 46, “God is king of all the earth”). He calls this “impressive.”
• Obj. 2: law is ordered to the end the legislator intends; God intends the same for all — 1 Timothy, “he wishes all men (omnes) to be saved and to come to a knowledge of the truth.” He likes the second half especially.
• Obj. 3: divine law is closer to the eternal law (which is one) than natural law is, since revelation of grace is higher than knowledge of nature; but natural law is one for all, therefore much more the divine. “Well, I’m convinced.”

2. Sed contra (“translato sacerdotio”) #

Hebrews: the priesthood being carried over, it is necessary that there be a translation of the law. The priesthood is twofold — Levitical and Christ’s — therefore the divine law is twofold, old and new.

• Aside: Galilee means “transmigration”; Christ coming down from Galilee to be baptized is joined to our needing a translation from vice to virtue.

3. Body: two kinds of distinction (“distinction is the cause of number”) #

• Principle from the First Part: distinction is the cause of number — as some distinction among the men in the room causes there being a number of five.
• Things are distinguished in two ways: (a) altogether diverse in species — horse and ox, cat and dog; (b) as perfect and imperfect in the same species — boy and man. He notes the oddity of a “distinction of distinctions,” as there is a definition of definition.
• Old and new law are distinguished the second way. Sign: Galatians compares the status of the old law to a boy under the pedagogue, the new to the perfect man no longer under a pedagogue. “It’s not the distinction of the cat and the dog… but the distinction of the boy and the man.”

4. The three points of imperfection and perfection (“it pertains to law that it order us to the common good”) #

Taken from three things that pertain to law:

1. End. The common good is twofold: earthly and sensible, to which the old law orders directly (Exodus 3, at the very start the people are invited to the earthly kingdom of the Canaanites); understandable and celestial, to which the new law orders (Christ at the beginning of his preaching: “Do penance, for the kingdom of the heavens is at hand” — and John the Baptist said the same). Augustine, Contra Faustum IV: temporal promises in the Old Testament, eternal life in the New. He objects mildly: “This guy’s strong… you certainly do have in the Old Testament references to the eternal life too” — seeking the face of the God of Jacob.
2. Directing acts according to justice. The new law abounds by ordering interior acts (Matthew 5: unless your justice abound more than that of the scribes and Pharisees). Hence the saying: the old law restrains the hand, the new the soul — his text refers this to “the Master,” Peter Lombard, Sentences III, d. 40. Under the old law what is commanded is exterior: “Do what the scribes and Pharisees command, but not as they do.”
3. Leading men to observe the commandments. The old does it by fear of punishment, the new by love poured into our hearts through the grace of Christ — conferred in the new law, only figured in the old. Augustine, against a disciple of the Manichaeans: “a brief difference of the law and the gospel is fear and love.” He notes Augustine uses lex for the old and evangelium for the new.

• Aside: Fr. Hardon on the psalms — people understandably pray for health and well-being, but “you can’t be serious if that’s all we should be praying for”; and on the Our Father, “thy kingdom come” means the heavenly kingdom.

5. Replies, and what the new law adds (“another law to men still existing in an imperfect way”) #

• To 1: as a father in the house proposes other commands to boys and to adults, so the one King God in his one kingdom gives one law to men still imperfect and another more perfect to those led by the hand (manuductio) through the prior law to a greater capacity for divine things.
• To 2: salvation is only through Christ (Acts 4, “no other name given to men”), so the law leading perfectly to salvation could not be given before Christ; beforehand a law preparing for his reception was given to the people from whom he was to be born, containing certain rudiments of the saving justice.
• To 3: natural law directs by common precepts, in which perfect and imperfect are alike, hence it is one; divine law directs in particular things, in which perfect and imperfect are not alike, hence twofold.
• Student discussion attaching examples to the three points: “Unless you eat my flesh and drink my blood” (John 6) was not said in the Old Testament — the scandal, and some turned away; the Sermon on the Mount on the lustful look already being adultery, and coveting the neighbour’s house — touching Thomas’s second point, going further than the Ten Commandments, which touch it but not as fully; the disputes on divorce, where Moses conceded and Christ is stricter.
• Aside: Fr. Hardon, “one of the reasons why Christ was crucified was because of his teaching on monogamy” — Jews, Muslims, Hindus and Mormons being opposed to monogamy on principle.

6. Article 6: what fomes means (“we’ll call it the law of hot blood”) #

He discusses the translation: “kindling” has been used, but that is only by comparison; literally, chips of wood used to feed a fire. He declines a literal rendering and adopts “the law of hot blood” (“sparks of blood”) throughout — a metaphor, not a term.

• Obj. 1: Isidore, Etymologies V — law consists in reason; hot blood does not, but deviates from reason.
• Obj. 2: every law obliges, so that non-observers are transgressors; but hot blood makes one a transgressor precisely if one follows it.
• Obj. 3: law is ordered to the common good; hot blood inclines to the private good. “That decides the matter, doesn’t it?”
• Sed contra: Romans 7, “I see another law in my members, repugnant to the law of my mind” — Paul does use the word law, “but it’s kind of a strange use.”

7. Body: law by participation, and inclination direct or indirect (“essentially in what regulates and measures”) #

1. Law is essentially in what regulates and measures, participatively in what is measured and ruled; so any inclination or ordering found in subjects can be called law by participation.
2. An inclination can be in subjects from the legislator in two ways: directly, inclining diverse ones to diverse acts — the law of soldiers, the law of merchants; indirectly, in that the legislator takes away some dignity the man would otherwise have, so that he passes into another order and as it were another law — the soldier turned out of the army, destitute of the military, passes into the law of the rustics or the merchants.
3. Under God the lawgiver, diverse creatures have diverse natural inclinations, so that what is a law to one is against the law of another: the fierce barking is in some way a law of the dog, but against the law of the sheep or another mild animal — “the sheep doesn’t come and bark at you.”
4. Man’s law from the divine ordering, according to his condition, is to act in accordance with reason. In the first state that law was so strong that nothing beside or against reason could rise up suddenly in man; when man receded from God he was carried by the impetus of sensuality, and each man the more he withdraws from reason is made like the beasts (Psalm 48: “man, when he was in honor, did not understand, but was compared to the foolish beasts and made like them”).
5. Therefore: in other animals hot blood simply has the rule of law — Aristotle says animals fight over food and sex, “and they should” — by direct inclination. In man it has not the notion of law but is a deviation from the law of reason; yet inasmuch as through divine justice man is made destitute of original justice and of “the vigor of reason” — an aside: “that’s something lacking… nowadays” — the impetus of sensuality has the notion of law as something punishing, and consequently from the divine law, depriving man of his proper dignity.

• Aside: Paul asking God to relieve him of the sting left in him to keep him from pride over the revelation made to him.
• Summary in his words: law only “in the way of punishment” — “Very, very strange use of the word law, but we gotta defend Saint Paul’s use of law in this case.”

8. Replies of a. 6 (“as regards its own inclination, not as regards its origin”) #

• To 1: the objection proceeds about hot blood considered in itself, inclining to evil — so no ratio legis; but as following from the justice of the divine law it is law, as if it were laid down as law that a nobleman for his guilt be led into servitude.
• To 2: that objection takes law as rule and measure, where deviators are transgressors; hot blood is not law in that sense but a partaking of it in the line of punishment.
• To 3: the argument proceeds about hot blood as regards its own inclination, not as regards its origin. Moreover, sensuality as it is in other animals is ordered to the common good — the conservation of nature in species or individual — and so also in man insofar as sensuality is subject to reason; “hot blood” names it precisely as going outside the order of reason.
• He leaves the article unsatisfied: “we have to wait till he gets into the particulars of the lex fomitis before we can understand this… It’s obscure, obscure text.”
• Aside on pride and punishment, from reply 1: Sophocles’ Ajax — Ajax punished for saying to the gods “I don’t need you, I’m too great a warrior,” rejecting their assistance, and so slaughtering beasts thinking them the Greeks; and Antigone on the unwritten law. “I put him up with Homer and Shakespeare.”

9. Question 92 announced (“now to consider about the effects of law”) #

Two articles: whether the effect of law is to make men good; and whether the effects (plural, effectus) are to command, to prohibit, to permit and to punish, as the legisperitus — the one experienced in the law — says.

10. Article 1: four objections (“it seems that it’s not of the law to make men good”) #

• Obj. 1: men are good through virtue; virtue is what makes its haver good and his act good (Ethics II); but virtue is in man from God alone, who makes it in us without us (the definition taken from Augustine) — that is, the infused virtues.
• Obj. 2: law does not help unless a man obeys; obeying comes from his goodness; so goodness precedes the law. He glosses: “This man’s looking before and after… you got to be good before” — perhaps for obeying freely; but the little kid obeys because he will be punished. Asides: taking off the belt and whacking the table to sober the kids up; “that’s why I like to give them the crowbar.”
• Obj. 3: law is ordered to the common good; some bear themselves well in what pertains to the community and badly in their own affairs — politicians who do good for the city and not in their private life.
• Obj. 4: some laws are tyrannical (Politics); the tyrant does not intend the goodness of subjects but his own usefulness.
• Sed contra: Ethics II — the will of every legislator is this, that he make the citizens good.

11. Body: the virtue of a subject is to be well subject (“either simply or secundum quid”) #

1. Law is nothing other than a dictate of reason in the one presiding, by which subjects are governed.
2. The virtue of any subject is that he be well subject — as the virtue of the irascible and concupiscible is that they be bene obedientes to reason; so the virtue of a subject is to be well subject to the prince (Politics I).
3. Therefore every law aims at being obeyed, and it is proper to law to lead subjects into their proper virtue; and since virtue makes its haver good, the proper effect of law is to make good those to whom it is given.
4. Qualification: if the legislator’s intention tends to the true good, the common good according to divine justice, men become good simpliciter; if it tends to what is only useful or delightful to himself, or repugnant to divine justice, the law makes men good only secundum quid, in order to such a regime — as good is found even in things per se mala, someone being called a good thief who acts suitably to his end.

• Aside: Padre Pio asked about the woman in Wisconsin said only “people should obey their bishop” — nothing about whether the apparitions were real; she had stopped going to church. “Word to the wise is sufficient.”

12. The four replies (“a certain perversion of the law”) #

• To 1: virtue is twofold, acquired by repeated acts and infused by God. Habituation does something to both, but diversely: it causes the acquired virtue (Aristotle’s), and disposes to the infused, helping to preserve and advance it. Since law is given to direct human acts, so far as human acts are for virtue the law makes men good — Politics II: lawgivers by accustoming men make them good.
• To 2: not always does one obey from the perfect goodness of virtue; sometimes from fear of punishment, sometimes only from the dictate of reason, which is a certain beginning of virtue without being the virtue.
• To 3: the good of a part is taken in proportion to its whole — Augustine, Confessions III: “ugly is every part that does not fit its whole.” Each man is a part of the city, so no man is good unless well proportioned to the common good; nor can the whole stand well unless from proportioned parts. It suffices for the community’s good that others be virtuous enough to obey the commands of the princes. Hence Politics III: the virtue of the prince and of the good man are the same, but not always the virtue of the citizen and of the good man — in the best city they are the same, in disordered communities they are not.
• To 4: tyrannical law (lex tyrannica), not being according to reason, is not law simply but a certain perversion of law; yet insofar as it has something of the notion of law it intends the citizens be good — good not simply, but in order to such a rule.
• Asides: his brother-in-law’s law-school paper on the line from Proverbs, “when the just man prospers, the city rejoices”; against the well-ordered city, “the Little Sisters of the Poor — put them in jail”; Gone with the Wind and the old South; “if it isn’t forbidden, it’s mandatory, if it isn’t mandatory, it’s forbidden — that’s a communist”; and Castricius’ saying, “Come the revolution, we’ll all eat strawberry shortcake” — “I don’t like strawberry shortcake” — “Come the revolution, you’ll like it.”

His words #

• “Distinction is the cause of number” — his title for the principle from the First Part grounding the twofold divine law.
• “The boy and the man” — his name for distinction as perfect/imperfect within one species, against “the cat and the dog.”
• Manuductio — being “led by the hand” through the old law to a greater capacity for divine things.
• “Hot blood,” “sparks of blood” — his working rendering of fomes [ed.: usually “fomes of sin,” “kindling of concupiscence”]; he refuses a literal translation, noting the literal sense is chips of kindling wood.
• “By participation” — how an inclination in the subject is called law, the law being essentially only in what regulates and measures.
• “In the line of punishment” — the only way fomes is law in man.
• Legisperitus — “the one experienced in the law,” source of the fourfold division of law’s effects.
• Bene obedientes — the irascible and concupiscible obeying reason well, the model for a subject’s virtue.
• Simpliciter / secundum quid — making men good absolutely, vs. only in order to such a regime; per se mala, things bad as such, in which a “good thief” is still found.
• Lex tyrannica — not law simply but “a certain perversion of the law.”

Texts #

Read in class

• Thomas Aquinas, Summa Theologiae I-II, q. 91, a. 5 (whether there is only one divine law) — objections, sed contra, body, three replies
• I-II, q. 91, a. 6 (the law of fomes) — objections, sed contra, body, three replies
• I-II, q. 92, prologue, and a. 1 (whether the effect of law is to make men good) — four objections, sed contra, body, four replies

Mentioned

• Psalm 46 (“God is king of all the earth”); Psalm 48 (man in honour compared to the beasts)
• 1 Timothy (God wills all men to be saved); Hebrews (translato sacerdotio); Galatians (the pedagogue); Romans 7 (another law in my members); Acts 4 (no other name); Exodus 3; Matthew 5; John 6 (eat my flesh); Proverbs (the just man prospering)
• Augustine, Contra Faustum IV; Augustine against a disciple of the Manichaeans (fear and love); Augustine, Confessions III; Augustine’s definition of virtue
• Peter Lombard, Sentences III, d. 40 (via “the Master” in his text)
• Isidore, Etymologies V
• Aristotle, Ethics II; Politics I, II, III
• Sophocles, Ajax and Antigone
• (inferred) a handout on the effects of law was read from briefly; the transcript does not name it.

His questions #

• Is the divine law one only, since there is one king and one kingdom? No — it is twofold, old and new, as Hebrews shows from the twofold priesthood.
• How are old and new law distinguished — as cat from dog, or otherwise? As perfect from imperfect in the same species, boy and man under a pedagogue.
• What are the three heads on which the new law surpasses the old? End (celestial vs. earthly good), reach (interior acts, not only the hand), and motive (love, not fear).
• What is the best way of translating fomes? Not literally; he uses “hot blood,” noting “kindling” is already a comparison.
• Does hot blood have the notion of law? In the beasts, yes, by direct inclination; in man, not as rule but only by participation, in the line of punishment.
• Is it the law’s business to make men good, when virtue comes from God and obedience presupposes goodness? Yes: law leads subjects into their proper virtue — simply, if the legislator intends the true common good; otherwise only in a qualified way.
• Is the virtue of the good citizen the virtue of the good man? In the best city yes; in disordered communities no.
• Does a tyrannical law intend the goodness of the subjects? Insofar as it has anything of law, yes — good only in order to that regime; otherwise it is a perversion of law.
• What do the particulars of the lex fomitis come to? Left open — “we have to wait till he gets into the particulars.”