Natural Law II and Human Law: Replies on Grace and Unjust Laws; Why Human Laws Are Needed and How They Derive from Natural Law

Orientation #

He begins mid-way through the replies of the article on whether the natural law can be blotted out, then calls a break “before we begin the human law” and moves into q. 95. Verified sources place most of the class in Summa Theologiae I-II, q. 95, aa. 1–2, with about three minutes on q. 94, a. 6. The previous class treated whether the natural law is changeable and how its precepts can be deleted from the heart.

The class, in order #

1. The last replies of q. 94, a. 6 (“guilt defeats the law of nature in particular, but not in universal”) #

• Reply 1: sin blots out the natural law in particular, not in universal — except perhaps as regards the secondary precepts.
• Reply 2: although grace is more efficacious than nature, nature is more essential to man and therefore more permanent. A student asks whether this is like what was said of the acquired virtues; he agrees that an acquired habit is called a second nature more than faith is — “don’t think of faith as being a second nature so much.”
• Reply 3: the argument proceeds about the secondary precepts, against which some legislators make wicked laws (statuta iniqua). Aside: “So we’re involved in the United States now” — and a remark about a friend on the pro-life committee writing to his congressman, and how legislators twist things.

2. Feast-day aside (“Did you celebrate Saint Bartholomew today?”) #

Barnabas yesterday, Bartholomew today. Barnabas means “son of encouragement”; he was Joseph, a Levite of Cyprus, surnamed Barnabas by the Apostles, one of the 72. He tells his wife they must have root beer floats, as the family did on Apostles’ days.

3. The plan of the question on human law (“first about the law itself, by itself”) #

Human law is considered (1) in itself, (2) as to its power, (3) as to its mutability. Under the first: usefulness, origin, quality, division of it.

4. q. 95, a. 1: three objections against laying down human laws (“it was not useful for some laws to be laid down by men”) #

1. Every law intends that men become good; but men are more led to good voluntarily by admonitions than forced by laws; therefore laws are unnecessary. — Aside: nowadays people say “you can’t impose your morals on me”; and joking, “Suggest you read Aristotle. You must read Aristotle every day.”
2. Aristotle, Ethics V: men flee to the judge as to an animated justice; animated justice is better than the inanimate justice contained in laws; therefore justice is better entrusted to the judgment of judges.
3. Every law directs human acts; human acts are singular and infinite; the direction of acts can be sufficiently considered only by a wise man who looks into each singular matter; therefore judgment of the wise is better than laid-down law. — “This is the rationale of having the Supreme Court do all the stuff that does that.”

Sed contra: Isidore, Etymologies — laws were made that by fear of them human audacity be coerced, that innocence be safe among the wicked, and that among the wicked the faculty of harming be restrained by fear of punishment; these are most necessary to the human race.

5. The body of a. 1: aptitude for virtue perfected by discipline (“man there is naturally a certain aptitude for virtue”) #

• In man there is naturally an aptitude for virtue, but the perfection of virtue comes through discipline. Example: by industry man provides his necessities, food and clothing, whose beginnings he has from nature (reason and hands — “tool of tools”) but not their completion, as other animals are given sufficient covering and food by nature. “So we need farmers.”
• Man is not easily sufficient for this discipline himself, because virtue’s perfection consists especially in withdrawing man from unsuitable pleasures, to which men are prone — most of all youth, on whom discipline is more efficacious. Aside (recalled from before): high-schoolers are teachable, “adults are like cement, all mixed up and set.”
• Hence men must be led to virtue by discipline from another. For those well disposed by nature, custom, or rather divine aid, paternal discipline — admonition — suffices. But some are stubborn (protervi) and prone to vices, not easily moved by words; these must be restrained from evil by force and fear, so that at least they cease doing evil and leave others a quiet life; and finally, by being accustomed, they may come to do voluntarily what they first did from fear, and so become virtuous.
• This discipline by fear of punishment is the discipline of laws. Hence laws are necessary for the peace and virtue of men — for, as Politics I says, man perfected by virtue is the best of animals, but separated from law and justice he is the worst of all, since he has the weapons of reason for fulfilling his concupiscence and savagery, which other animals lack.

6. Replies of a. 1, and the word “admonition” (“What would be a more concrete word for admonition?”) #

• Reply 1: men well disposed are better led to virtue by voluntary admonitions than by coercion — the objection touches only the well-disposed.
• Discussion of admonition: more than advice; suggestions from students — reproof (but not necessarily in a bad sense), urging, exhortation; he says it goes a little toward a warning. Illustration: what do you do if a little boy hits his sister? His father, home from work, told him “stay there” and he sat; his mother was amazed at the power; and the father taking off his belt and whacking it on the edge of the table — the sound was enough.
• Reply 2 (from Rhetoric I): better that all things be ordered by law than left to the judgment of judges, for three reasons: (i) it is easier to find a few wise men sufficient to lay down right laws (Solon — lawgivers are still called Solons) than the many required to judge rightly about singulars; (ii) legislators consider over length of time, while judgments about singulars come from cases suddenly arising, and it is easier to see what is right from many things considered than from one; (iii) legislators judge in universal about future things, but judges judge about present things, toward which they are affected by love, hate or desire, and so their judgment is depraved. Since the animated justice of the judge is not found in many and is flexible, the law should determine as much as possible and fewest things be left to judges. — Aside: “Don’t trust the definition of marriage to men. God established it with nature.”
• Reply 3: some singulars cannot be comprehended by law and must be committed to judges — e.g. whether a thing is a fact or not.
• He then quizzes the class on why laws are useful, and tells the story of himself as a boy spinning toadstool stools in his Aunt Helen’s store in Watertown, Minnesota; the town’s one policeman, over a coke at the soda fountain, said “we could put him in jail for a day” — “Boy, did I sober up.” She was helping him become disposed to do things voluntarily.

7. q. 95, a. 2: objections that human law is not all derived from natural law (“legal justice is that which from the beginning either differs”) #

1. Ethics V: legal justice is that which from the beginning makes no difference whether it come about thus or otherwise (driving on the right or the left); but in things from natural law it does make a difference; so not all human laws derive from natural law. — Digression on positum: compare the definition of the syllogism, “speech in which, some things being laid down, another follows necessarily from those laid down”; the firmness of what is laid down, as when a father “lays down the law: you’ll be in by ten.” If the premises are not firmly laid down (at rest in your mind), you cannot proceed to the conclusion.
2. Positive just is divided against natural just (Isidore, Etymologies; Ethics V); what is derived from the common beginnings of natural law as conclusions belongs to the law of nature; therefore what is of human law does not derive from natural law.
3. The law of nature is the same for all — Ethics V: what is naturally just has everywhere the same power; if human laws were derived from it they would be the same, which is plainly false.
4. Of things derived from natural law a reason can be assigned, but not of all human laws (the jurisperitus). He presses the class: why do they drive on the left in England? No reason can be given; an Englishman could not give one either.

Sed contra: Cicero (Tullius) in his Rhetoric: things proceeding from nature and approved by custom, sanctioned by fear of the laws, religion sanctifies.

8. Digression: the order of the cardinal virtues in Aristotle (“That’s the book where Aristotle talks about justice”) #

Prompted by Ethics V. The usual division distinguishes the virtue in reason (foresight/prudence) from those in the desiring powers, one in the will, one in the irascible. Aristotle takes prudence in Book VI (virtues of reason), justice in Book V, and courage and temperance in Book III, beginning with courage because it is more manifestly a virtue — virtue (aretē, linked to Ares) comes from vir, the man: courage is the virtue of man, temperance the virtue of the woman. “Can’t teach that nowadays… Everything’s exactly upside down and inside out. Fair is foul and foul is fair, hover through the fog and filthy air.”

9. Speed limits and driving on the left (“What about this law about driving thirty miles an hour?”) #

A speed limit is positive law, yet in some way derived from the law against taking innocent life — as are ordinances against firing a gun down the street. The immediate conclusions of the general principle may still pertain to the natural law; what the speed limit should be is the open question. Examples: the early automobile at eleven, twelve, thirteen miles an hour (quoted from “our brother Mark”); seventy miles an hour in Missouri; the speed trap at Paxton where forty drops to thirty. The English left side: a man renting a car in London felt fine until the roundabout, where all one’s actions are wrong; his father at Shannon Airport in an Austin Mini looked the wrong way at a left turn and nearly was crushed by a truck; Churchill, younger, was hit in New York looking the wrong way. Driving on the left cannot be derived from natural law — “they’re just trying to be different.”

10. The body of a. 2: conclusion and determination (“already is not a law but a corruption of law”) #

• Augustine, De libero arbitrio I: what is not just does not seem to be a law; so far as a thing has justice, so far it has the force of law. In human things a thing is just from being right according to the rule of reason, and the first rule of reason is the law of nature. Hence every humanly laid-down law has the notion of law so far as it derives from the natural law; if it is discordant from the natural law, it is already not a law but a corruption of law. — “Tell that to the Supreme Court… They should not be titled justice so-and-so, but corruption of justice so-and-so.”
• Two ways of deriving from the natural law: (i) as conclusions from beginnings, like demonstrative conclusions from principles in the sciences — e.g. “do not kill” as a conclusion from “to no one should evil be done”; (ii) as determinations of something common, as in the arts, where a common form is determined to something special — the artist must determine the common form of a house to this or that figure of house (you must have foundation, walls, roof, but typically in different ways). Example of determination: natural law has that the sinner be punished, but that he be punished by such a punishment is a determination.
• Both kinds are found in laid-down human law; but those of the first kind are not contained in human law as merely enacted — they have part of their strength from the natural law; those of the second have their vigour from human law alone.
• Aside: in democratic times punishments are softened; in aristocratic times people were more severe, not thinking enough that the lower man suffered as they suffered, as though a different race or animal. Jokes: the monks pulled over saying “we’re under the Eastern Code of Law — nothing about speedos in there”; countries with no stop signs where “they don’t drive; they heave.”

11. Replies of a. 2 (“Thomas arranges the objections so that they touch upon the distinction”) #

• Reply 1: the Philosopher speaks of things laid down by determination or specification of precepts of the natural law.
• Reply 2: likewise concerns what is derived in the second way. He notes the arrangement: Thomas arranges the objections so that they touch upon the distinction made in the body of the article.
• Reply 3: the common beginnings of natural law cannot be applied in the same way to all, because of the great variety of human things; hence the diversity of positive laws among diverse peoples. Example: sparsely populated country out west, where seventy miles an hour is possible; driving in Nevada toward mountains that never come nearer.
• Reply 4: the word of the jurisperitus is to be understood of things introduced by the wise concerning particular determinations of the natural law, to which determinations experienced and prudent judges stand as to certain beginnings, in so far as they see at once what is more fitting to be determined in a particular case. Ethics VI: in such things one must attend to the undemonstrated sayings and opinions of the experienced and of elders no less than to demonstrations. Illustration: how to drive a car — if a man has driven long, listen to him. His wife is suspicious of his using one hand round a corner; his father, having slipped in a bathroom and lost the use of a hand, fitted a knob to the steering wheel — as farmers do on a tractor wheel — and could drive to work; he recovered.

His words #

• “guilt defeats the law of nature in particular, but not in universal” — sin blots out the natural law in the particular case.
• “second nature” — said of acquired habit rather than of faith.
• “statuta iniqua” — wicked statutes made by legislators against the secondary precepts.
• “laid down” — his rendering of positum, in positive law and in the definition of syllogism; stresses the firmness of what is laid down.
• “admonition” — more than advice; toward warning, exhortation, urging.
• “protervi” — stubborn, prone to vices, not moved by words.
• “animated justice” — the judge, against the inanimate justice of law.
• “tool of tools” — the hand.
• “corruption of law” — a human law discordant from natural law.
• “conclusions from beginnings” vs. “determinations of some common things” — the two ways of deriving human from natural law.
• “jurisperitus” — “the experienced man of law.”

Texts #

Read in class

• Thomas Aquinas, Summa Theologiae I-II, q. 94, a. 6, replies 1–3
• Thomas Aquinas, Summa Theologiae I-II, q. 95, a. 1 (objections, sed contra, body, replies)
• Thomas Aquinas, Summa Theologiae I-II, q. 95, a. 2 (objections, sed contra, body, replies)
• Isidore, Etymologies (quoted in the sed contra of a. 1 and in obj. 2 of a. 2)
• Aristotle, Ethics V (legal justice; what is naturally just has everywhere the same power)
• Aristotle, Rhetoric I (three reasons for law over judges)
• Aristotle, Politics I (man best of animals, or worst)
• Aristotle, Ethics VI (attend to the experienced and to elders)
• Augustine, De libero arbitrio I (an unjust law is not a law)
• Cicero, Rhetoric (things proceeding from nature, approved by custom)

Mentioned

• Aristotle, Ethics III (courage, temperance) and VI (prudence)
• Acts on Joseph surnamed Barnabas, Levite of Cyprus (inferred as to book)
• Shakespeare, Macbeth, “Fair is foul and foul is fair” (inferred as to play)

His questions #

• Why are human laws necessary and useful for men? Because natural aptitude for virtue must be completed by discipline, and the stubborn who will not hear words must be restrained by force and fear until they come to do voluntarily what they first did from fear.
• What would be a more concrete word for “admonition”? Not merely advice: reproof, urging, exhortation — something moving toward a warning.
• Is it better to entrust justice to the judgment of judges or to laid-down law? To law, for three reasons: few wise men suffice to frame it; it is framed over time rather than in sudden cases; and it judges in universal about the future, not under love, hate or desire.
• What about this law about driving thirty miles an hour — is it derived from natural law? It is derived by determination from the precept against taking innocent life; what the limit should be is left to determination.
• Why do they drive on the left in England? No reason can be assigned; it holds from human law alone.
• How do the four cardinal virtues stand in Aristotle’s order? Courage and temperance in Book III (courage first, as more manifestly a virtue), justice in Book V, prudence in Book VI.
• How can something be derived from the natural law? Two ways: as a conclusion from principles (do not kill), or as a determination of something common (this punishment for this sin).
• What is a human law discordant from the natural law? Not a law but a corruption of law.