Aquinas on Human Law (ST I-II Q95 a3–4): Isidore's Conditions of Law and the Divisions of Human Law

Orientation #

He opens with a follow-up to a remark from the previous session about vice as the road to misery, then says “let’s go up to Article Three here. Question ninety-five,” and the class reads ST I-II, q. 95, aa. 3 and 4 through the replies. The previous class had worked through the end of the natural-law question and into q. 95 on human law’s derivation from natural law (prev. lecture).

The class, in order #

1. Opening: pride, error, and misery (“magna pars miseria”) #

Picking up “vice is the road to misery.” Thomas on error: “magna pars miseria” — error is a great part of misery. Pride causes error in two ways: (1) it makes you overestimate your powers, so you attempt what is beyond them and fall into error; (2) it makes you unwilling to accept and listen to the master, i.e. those wiser than you. Aside: Sister Rosalie opening the daily paper — top of the page, a man imprisoned for killing his girlfriend; bottom of the page, a woman who killed her fiancé. The obvious examples are in the newspaper.

2. a. 3, objections: is Isidore’s list superfluous? (“unsuitably describes the quality of the laid-down law”) #

Isidore’s conditions of positive law as read out: honest, just, possible according to nature, according to the custom of one’s country, suitable to place and time, necessary, useful, manifest (lest it deceive through obscurity), written for the common usefulness of the citizens, not for private advantage.

• Obj. 1: earlier Isidore gave only three conditions — suitable to religion, to discipline, to salvation; so multiplying conditions afterwards is superfluous. (He asks the class to count the items in the later list; answers offered: “four,” “at least seven.”)
• Obj. 2: justice is a part of honestas, as Cicero says in De officiis I; so having said honesta, adding justa is superfluous.
• Obj. 3: written law is divided against custom (Isidore’s own division), so “according to the custom of one’s country” does not belong in the definition of law. Aside: “Isidore wasn’t thinking when he put that down.”
• Obj. 4: the necessary is said in two ways: (a) simpliciter necessary, what cannot be otherwise — not subject to human judgment, so not pertaining to human law; (b) necessity according to the end, which is the same as usefulness. So laying down both “necessary” and “useful” is superfluous.
• Sed contra: the authority of Isidore suffices. Asides: the “honesty” of honestas is a funny word in English usage; the Our Father is only in Matthew and Luke, and Luke’s is shorter — “Matthew’s holding up Luke.” Whether Isidore was a farmer; the Benedictines as farmers and the house’s garden and orchard. Bishop Wright blessing the vineyards, and the chauffeur asking loudly for “the booze for the bishop.” Cardinal Cushing: “you can always take out the collects, but you can never take out the collection.”

3. a. 3, corpus: form proportioned to end and to measure (“the form be determined according to its ratio to the end”) #

The argument, in his order:

1. Whatever is for the sake of an end must have its form determined according to its proportion to that end. Example: the form of a chair fits sitting, not lying down — that is why it goes up instead of down. (Boundary case: the reclining chairs in the room, which go halfway and then all the way down — handy if you are short of beds.) And the form of the saw is such as suits cutting, as in Physics II. He notes the ancient examples are concrete, unlike modern imaginative ones that get you “cut up” instead of illustrating the point simply.
2. Whatever is ruled and measured must have a form proportioned to its rule and measure. — Here he breaks, then applies:
3. Human law has both: it is ordered to an end, and it is a rule or measure itself ruled by a higher measure, which is twofold — divine law and the law of nature.
4. The end of human law is the usefulness of men, as the juris peritus (the man expert in law) says — he notes this must be almost antonomasia. Conclusion: Isidore’s first three conditions answer to these — in agreement with religion = proportioned to divine law; suitable to discipline = proportioned to natural law; profitable for salvation = proportioned to human usefulness. And all the later conditions reduce to these three. “Isn’t it nice that he had three and then he reduced them to three?” — the rule of two or three.

4. a. 3, the reduction, which also answers the objections (“to this corresponds to all the objections”) #

• honesta → agreeing with religion (honesta carries the idea of what is suitable to honour, the bonum honestum).
• just, possible according to nature, according to the custom of the country, fitting to place and time → suitable to discipline, and discipline is observed three ways: (a) as to the order of reason — “just,” neither too much nor too little; (b) as to the ability of the agents, each according to his capacity, observing the possibility of nature — what is laid on perfect men is not laid on boys; and according to human custom, since man cannot live alone but lives with others; (c) as to fitting circumstances — suitable to place and time. Illustration of (c): you shouldn’t make jokes in church — and Aristotle has a virtue about jokes, eutrapelia, “easily turning,” also in Shakespeare’s Love’s Labour’s Lost.
• necessary, useful, manifest → profitable to salvation: necessity for removing evils, usefulness for achieving goods, manifestation for warning against harm that could come from the law itself.
• The ordering to the common good is shown in the last part of the definition — “and to this corresponds to all the objections.” He praises Thomas’s patience in thinking it all out. Asides: a colleague who put a gold dollar in his pocket and lost it — “you can’t serve Mammon and God”; the change in the collection envelopes. Recognising a conductor’s too-fast Mozart on the radio: Beecham taught him to conduct Mozart, and playing it too fast loses the nobility — like conductors who play Mozart as if he were Beethoven. Thomas attends to little things even in Isidore, who is not Augustine, greatest of the doctors. Thomas is a doctor of the Church but not a Father. Cajetan at the opening of his commentary on the Summa: Thomas seems to have inherited the mind of all the Fathers, because he so reverenced them. A student recalls Thomas saying we should read the Fathers frequently, reverently and carefully; he knows the text but cannot place it.

5. a. 4, objections: is Isidore’s division of human laws fitting? (“the division of human laws”) #

• Obj. 1: under ius he includes the ius gentium, so named because almost all (fere) nations use it; but what is common to all nations is ius naturale; so the ius gentium falls under natural, not positive, law.
• Obj. 2: things of the same strength differ only materially, not formally; laws, plebiscites, decrees of the senate and the rest all have the same strength; and a merely material distinction is not worth caring for, since it can go on in infinitum. (He glosses: you can’t have a division going to infinity — it has to be two or three.)
• Obj. 3: he lays down a military law and a public law (priests and magistrates), but there are other offices in the city besides princes, priests and soldiers; so laws should have been laid down for them too.
• Obj. 4: what is per accidens should be omitted; that a law is brought forth by this or that man is accidental; so naming laws from legislators (Cornelia, Falcidia — a student adds Aquilia) is unsuitable.
• Sed contra: the authority of Isidore suffices. Asides: Thomas argues like a canon lawyer — “if only these canon lawyers would think of them like this.” John Quincy Adams after Harvard, driven nearly to despair by wills and bankruptcies until Washington gave him an ambassadorship.

6. a. 4, corpus, principle: per se division comes from the definition (“divided per se, according to that which is found in its definition”) #

A thing is divided per se according to what is contained in its notion. Animal contains anima, so animal is per se divided into rational and irrational, not into white and black, which are outside its notion. Geometrical example: quadrilaterals are divided per se by the length of the sides and by the angle at which they meet, not by green and yellow. Why does Thomas name the method as defining, dividing, demonstrating — defining before dividing? Because you must define quadrilateral before you can see the per se way to divide it: “four sides” leaves undetermined whether all sides are equal or only two. Aside: the soul is the hardest thing to know — we know the soul through its powers, the powers through their acts, the acts through their objects. He wonders what the average man today thinks the soul is.

7. a. 4, first division: from derivation from natural law (“as conclusions from principles”) #

Since it is of the notion of human law to be derived from natural law, and derivation is twofold, positive law divides into ius gentium and civil law.

• Ius gentium: what is derived from natural law as conclusions from principles — e.g. just buyings and sellings, without which men cannot live with one another, since man is naturally a social animal, as proved in Politics I.
• Civil law: what is derived by way of particular determination, as each city determines something for itself. Example: a man yesterday going to the wrong side of the car because England was on his mind — driving on the left is plainly a determination, not a conclusion, whatever the English reason for it.

8. a. 4, second division: from ordering to the common good (“those who especially give work towards the common good”) #

Human law is divided according to those who especially work for the common good: priests praying to God for the people, princes governing the population, soldiers fighting for the people’s salvation — for these, special laws are fitting. (He notes the Latin idiom: orare Deum, “pray God,” where we say “pray to God” — as with “thank God,” “beg God.”) The carpenter, by contrast, aims not at the common good but at the chair. On foresight/prudence, he recalls Thomas’s species: foresight of the individual, of the father, of the general, of the head of state. Some have not enough foresight to direct themselves; the father’s is harder because each child is different — his daughter homeschooling ten and adapting to each. Anecdote: he told his professor Kasurik he wished he knew what was going on in Washington; “that’s a laugh — they don’t know themselves.” The city can be almost too big to be governed. And current talk of whether governors or senators make better presidents. He then points out these are two different divisions, based on different things — as the quadrilateral can be divided by length of sides or by angles: square and rhombus have all sides equal, rhomboid and oblong unequal, all parallelograms with opposite sides and angles equal; and the trapezium is a mess and is not subdivided.

9. a. 4, third division: from the regime that institutes it (“according to diverse rules of the city”) #

Human law is instituted by the one governing the city, so laws are distinguished by regimes:

• monarchy (rule of one) → constitutions of princes;
• aristocracy, rule of the best → responses of the prudent, and the senate — senes as the wise, not merely the old, wise from aging experience;
• oligarchy, the few princes, the rich and powerful → ius praetorium, also called Honorarium (“that’s kind of new to me”);
• democracy, rule of the people → plebiscites (he notes such things are put to a vote now, e.g. homosexual marriage);
• tyranny, omnino corruptum, altogether corrupt — from it no law is taken;
• the mixed regime, which is optimum → law which the greater by birth together with the people sanctioned. He sets this beside Aristotle’s usual six: rule of one, few and many, each either for the common good or for the private good; if for the private good it is bad. How can one part rule for its own good? Because it is more powerful — by numbers (democracy in the bad sense), by riches (oligarchy), or by military power (tyranny). Good kingship: Louis of France. Also rule of the virtuous and rule of the middle class.

10. a. 4, fourth division, and reply to obj. 1 (“directive of human acts”) #

Fourth, human law is directive of human acts, so laws are distinguished by the matters they concern — though sometimes named from their authors, e.g. the Julian law (from Julius Caesar, on adulteries) and the Cornelian law. Naming from authors he calls a poor way of naming things — like naming stars after their discoverers or after the place where the scientists work. Reply to obj. 1: the ius gentium is in a way natural to man, as he is rational, since it is derived from natural law by way of conclusion, not far removed from the first beginnings; hence men easily agree about such things. Still it is distinguished from natural law, most of all from what is common to all animals. (He does not read replies 2–4; the class is left at this point.) Asides: “what you do with all these divisions is put down on your exam — hope we won’t have to pull this up on judgment day.” The pharmacy story: a woman asked to spell the drug she needed — “I’m not a chemist; they have to be able to read the doctor’s writing.”

His words #

• magna pars miseria — “it is a great part of misery,” of error.
• honesta / bonum honestum — “honest,” but carrying the idea of what is suitable to honour; a funny word in English usage.
• juris peritus — “the man experienced in the law”; probably used by antonomasia.
• proportion, not ratio — his correction of the translation of ratio ad finem in a. 3.
• eutrapelia — “easily turning,” the Aristotelian virtue about jokes.
• fere — “almost” (“almost all nations”).
• ius gentium — law of nations; derived from natural law as conclusion from principles.
• ius positivum — “the laid-down law.”
• per se / per accidens division — from what is or is not in the thing’s notion.
• definiendo, dividendo, demonstrando — defining, dividing, demonstrating; his gloss on why defining comes first.
• ius praetorium / Honorarium — the law answering to oligarchy; “kind of new to me.”
• tyrannicum omnino corruptum — tyranny, altogether corrupt, yielding no law.
• optimum — the mixed regime.

Texts #

Read in class

• Thomas Aquinas, Summa Theologiae I-II, q. 95, a. 3 (objections, sed contra, corpus)
• Thomas Aquinas, Summa Theologiae I-II, q. 95, a. 4 (objections, sed contra, corpus, reply 1)

Mentioned

• Isidore, on the conditions and divisions of law (as quoted in these articles)
• Cicero, De officiis I (justice a part of honestas)
• Aristotle, Physics II (the form of the saw)
• Aristotle, Politics I (man a naturally social animal); Aristotle on the six regimes
• Cajetan, opening of his commentary on the Summa
• Thomas, Commentary on the Sentences (on “love,” and a text on the Trinity)
• A text of Thomas on reading the Fathers frequently, reverently and carefully — locus not recalled
• Shakespeare, Love’s Labour’s Lost (eutrapelia)

His questions #

• How many conditions does Isidore lay down in the later list? — “Four”; “at least seven, I think” (he does not settle a number).
• Why must the form of a thing be determined in a certain way? — Because it must be proportioned to its end, and, if ruled, to its rule and measure.
• To what are Isidore’s later conditions reduced? — To his three: agreeing with religion, suitable to discipline, profitable for salvation.
• Is the ius gentium natural or positive? — Positive, yet in a way natural, since derived from natural law as a conclusion, not far from the first principles, which is why nations easily agree.
• Why does Thomas put defining before dividing? — Because you must define a thing before you can see which division of it is per se.
• How is something derived from the law of nature? — Two ways: as conclusion from principles (ius gentium) and by particular determination (civil law).
• How can one part of a city rule for its own good? — By being more powerful: in numbers, in riches, or in arms — democracy, oligarchy, tyranny in the bad sense.
• Where does Thomas say we should read the Fathers frequently, reverently and carefully? — Left open; he knows the text but cannot place it.