The Power of Human Law (ST I-II Q96 a1–4): General Laws, Vices, Virtues, and Obligation in Conscience

Orientation #

He opens by reading the prologue of q. 96 and listing its six articles, then treats articles 1–4, stopping at the end of article 4 (“Maybe stop here”). The previous class covered q. 95, aa. 3–4 on Isidore’s qualities and divisions of human law.

The class, in order #

1. The six questions of q. 96 (“about this six things are asked”) #

He lists: (1) whether human law should be laid down in common; (2) whether it should impede all vices; (3) whether it should command the acts of all the virtues; (4) whether it imposes necessity in the forum of conscience; (5) whether all men are subject to human law; (6) whether those under the law may act outside its words.

• Asides tying each to life: Nebraska complaining of people buying drugs in Colorado; driving 25 in a 20-mph school zone past Floral Street School, hunting licences; “no one is above the law — tell that to the people in law”; the London restaurant Samuel Johnson frequented, near the Inns, with a Johnson dictionary under glass open at the page law.

2. Article 1, objections: law should be particular (“laws are constituted in those things which happen most of the time”) #

1. Ethics V: legal things are laid down about singular matters, and sentences are laid down about singular acts (he links this to the Supreme Court taking a precedent, something singular).
2. Law directs human acts, and human acts are singulars.
3. Law is a rule and measure, and a measure must be most certain (Metaphysics X) — “you don’t need a binder to measure, because it changes its length”; but nothing universal about human acts is certain, since it fails in some particulars. Sed contra: the iuris peritus — the legal expert, peritus meaning experienced — says laws are constituted about what happens most of the time, not about the case that might happen once.

• Student digression, left as raised: the US Constitution is short and general, as per St Thomas; the European approach, from the Justinian through the Napoleonic Code, grows ever more specific, the proposed EU constitution running some 400 pages, producing a hyper-regulatory mentality (they regulated the curvature of bananas in commerce). Also: Washington agencies making their own rules — “the Jews had it easy, it was only 600”; the administrative state and the Supreme Court skewing the checks and balances; biographies of John Quincy Adams and John Marshall; whether Jefferson had a right to the Louisiana Purchase.

3. Article 1, body: law must be proportioned to the common good (“the end of the law is the common good”) #

1. What is for an end must be proportioned to that end.
2. The end of law is the common good — Isidore: law is written not for private commodum but for the common usefulness of the citizens.
3. Therefore human laws must be proportioned to the common good, which is constituted of many things — many persons, many activities, and all time, since the community is made of many persons, its good procured through many actions, and it is not instituted to last a little while but to persevere through the succession of citizens (Augustine, City of God XXII). A student asks whether he is coming down on the side of the common; the answer, as the replies show, is that he distinguishes.

4. Article 1, replies: three parts of legal justice, and diverse certitude (“he lays down three parts of legal justice”) #

Reply 1 (Ethics V, the book on justice, i.e. positive law), three kinds:

• laid down simply in general — the common laws, about which “from the beginning it makes no difference whether thus or otherwise,” though once laid down it does (e.g. that captives be redeemed for a certain sum);
• common in one respect, singular in another — privileges, as private laws regarding singular persons, whose power nevertheless extends to many. He notes he does not know what Aristotle’s “still some things are laid down by law in singular matters” refers to; a student guesses rules guiding the president or the speaker of the house.
• things called lawful not because laws but by application of common laws to particular facts: sentences, which are held for law. Aside on the courtroom use of “sentence”: we have restricted a word for a particular kind of judgment; and on 240 people in the news overcharging in the health business.

Reply 2: the directive must direct many. All things of one kind are measured by one first in that genus (Metaphysics X); if there were as many measures as things measured, the usefulness of a measure — that from one, many be known — would cease. Singular acts are directed by the singular precepts of the prudent; law is a common precept.

• Aside: Minnesotans driving weekly to Colorado, $3,000 of drugs sold for $6,000 back home, caught doing 85 in a 70 — “the entrepreneurial spirit that made this country what it is today.”

Reply 3: not the same certitude in all things; in contingent matters such as human affairs it suffices that something be true ut in pluribus, though it sometimes fails.

5. Article 2, objections: law should restrain all vices (“that people’s audacity might be forced by the fear of them”) #

1. Isidore: laws are made so that audacity may be restrained by fear of them — which is not sufficient unless all evils are inhibited.
2. The legislator intends to make citizens virtuous (“I don’t know if they ever seen anybody say that in Congress”), and one cannot be virtuous unless restrained (compescere — restraining, checking, curbing) from all vices.
3. Human law derives from natural law, and all vices are repugnant to natural law. Sed contra: Augustine, De libero arbitrio I — the law written for ruling the people rightly permits such things, leaving them to divine providence to vindicate; and providence vindicates only vices; therefore human law rightly permits some vices by not impeding them.

• Asides: “the teetotalers love this one”; the Baptist minister in the John Quincy Adams biography who thought all dancing wrong; a chapel of St John the Baptist with the martyrdom-for-a-dance over the altar arch to discourage dancing; a Puritan governor of Massachusetts (perhaps Winthrop) — “It is not yet time for Massachusetts to dance.”

6. Article 2, body: law is measured to the condition of the multitude (“a measure ought to be homogeneous with the measured”) #

1. Law is a rule and measure of human acts, and a measure must be homogeneous with what it measures — measure a length by a length; diverse things by diverse measures.
2. So laws are laid down for men according to their condition: Isidore, law should be possible, according to nature, and according to the custom of the country (a student: “a system of checks and balances there — nature, customs”).
3. The power of acting proceeds from an interior habit; what is possible to the man with the habit of virtue is not possible to one without it — as the same is not possible to the boy and to the grown man. Hence no one law for boys and adults: much is permitted boys that in adults is punished by law or at least blamed. Likewise much is permitted men not perfect in virtue that is not tolerated in the virtuous — “some things are tolerated in men out here in the world that are not tolerated in the monastery.”
4. Human law is laid down for a multitude the greater part of whom are not perfect in virtue. Therefore it prohibits not all vices, but only the graver ones from which the greater part can abstain, and especially those harmful to others, without whose prohibition human society could not be conserved — homicide, theft.

• Aside: “notice how quiet is the neighborhood when I go to Mass on Sunday.”

7. Article 2, replies: audacity, gradual leading, and imperfect derivation (“not suddenly, but gradually”) #

Reply 1: audacity pertains to invading others, hence to sins that injure one’s neighbour, which are the ones human law prohibits. Reply 2: human law leads men to virtue gradually, not at once imposing on the imperfect multitude what belongs to the virtuous; otherwise the imperfect, unable to bear the precepts, break out into worse evils — Proverbs 30: he who violently blows his nose brings out blood; Matthew 9: new wine (the precepts of the perfect life) in old skins (imperfect men) bursts them, the precepts are condemned, and men from contempt break out into worse evil.

• Extended student discussion: the common good has been divorced from virtue and virtue replaced by “values”; Moynihan’s essay “Defining Deviancy Down,” where redefining unacceptable behaviour makes crime disappear on paper and drags people lower; “you can do anything if you don’t harm others,” applied to homosexual marriage and equality; the replacement of the common good by group and individual interest — white male, black male, white woman, black woman perspectives, and at Union Theological Seminary a white theology and a black theology, “a strange tower of Babel.”
• He adds: the harm claim is stretched to opinions — prejudice, homophobia, hate speech, “because they don’t feel good about it” — which is itself an excuse for harming those who disagree; political correctness. On “judge not”: our Lord said it right after “do not give what is holy to dogs” and “cast not pearls before swine,” and after the mote and beam he said first take the beam out, then you can do that — so he judges the what, not the who. Reply 3: natural law is a partaking of the eternal law in us, and human law too derives from it; Augustine (De libero arbitrio) — the law brought forth for ruling cities concedes many things and leaves unpunished many that providence vindicates; because it does not do all things, what it does do is not to be disapproved. Hence human law cannot prohibit everything the law of nature prohibits.

8. Article 3, objections and body: does law command acts of all the virtues? (“only about those which are able to be ordered to the common good”) #

Objections: (1) vicious acts are opposed to acts of virtue, and law does not prohibit all vices; (2) acts of virtue proceed from virtue, and virtue is the end of the law, so what is from virtue cannot fall under precept; (3) law is ordered to the common good, and some acts of virtue are ordered to the private good — “is my eating ordered to the common good? my drinking? so why do they tell me I shouldn’t eat too much or get drunk?” Sed contra: Ethics V — the law commands brave works, temperate acts, mild ones, and likewise the other virtues, commanding these and prohibiting their vices. Body: species of virtues are distinguished by their objects, and all objects of the virtues can be referred either to the private good of a person or to the common good of the multitude — acts of fortitude can be done for preserving the city or for preserving oneself. Since law is ordered to the common good, there is no virtue about whose acts the law cannot command; but it commands only those orderable to the common good, immediately or mediately, as pertaining to the common discipline by which citizens are formed to conserve the common good of justice and peace ("Iustitia et Pax — the same motto").

9. Article 3, replies (“no duty to rescue”) #

Reply 1: law neither prohibits all vicious acts nor commands all virtuous ones by precept; it prohibits and commands some acts of single virtues. Illustration: the commanding officer at your back ordering you forward — the law commanding bravery, at the risk of being shot.

• Student example: in the English common law there is no legal duty to rescue a drowning man — shocking to first-year law students; there is some “negative psychology” in the policy, supposedly that it would make people less prone to rescue. An act of virtue one might expect the law to enforce, and it does not. Reply 2: two senses of “act of virtue” — (a) doing what is virtuous, as the act of justice is to do what is right and of fortitude to do something brave: this the law commands; (b) doing it as the virtuous man does it, which always presupposes virtue, does not fall under precept, and is the end the legislator intends. Aside: paying your taxes because you like the act.
• Long student aside: a woman who wrote a book on chastity for adults, abused as a child and acting out before her conversion; the Belfast interviewer who could only suppose chastity was another form of her warped behaviour, or that she wanted to be a nun, or both — “he can’t figure out it’s a virtue.” Reply 3: there is no virtue whose acts cannot be ordered to the common good, mediately or immediately.

10. Article 4, objections: does human law bind conscience? (“does not place upon man necessity in the form of conscience”) #

1. A lower power cannot impose law in the judgment of a superior power; human power making human law is below divine power.
2. The judgment of conscience depends most of all on divine commands, and human laws sometimes void them — Matthew 15:6, irritum fecistis mandatum Dei, “you have made void the command of God on account of your traditions,” said to the Pharisees.
3. Human laws often bring calumny and injury — Isaiah 10: “Woe to you who make iniquitous laws and write down oppression, to oppress the poor in judgment and do violence to the humble of my people” — and anyone may avoid oppression and violence. (He mentions laws compelling support of abortion through insurance.) Sed contra: 1 Peter 2:19 — this is grace, if for the sake of conscience one bears sorrows, suffering unjustly.

11. Article 4, body: just and unjust laws (“they have the strength of obligating us in the form of conscience”) #

Just laws bind conscience from the eternal law from which they derive — Proverbs 8: “through me kings reign and lawmakers decree just things.” A law is just (a) in its end, when ordered to the common good; (b) from its author, when the lawgiver does not exceed his power; (c) in its form, when burdens are imposed on subjects according to an equality of proportion, in order to the common good.

• Extended digression on taxation, from “equality of proportion”: a night-class discussion on whether the rich should be taxed more, and proportionally more. He says it is very hard to justify a progressive income tax by reason; the only reason given is that they can afford it. His counter-case: should I charge the rich man ten times as much for a loaf of bread, or for the same car, because he can afford it? “Is that just? You can scratch your heads.” A student adds that Sweden adopted such taxation but it never flew here because of mobility — you can start poor and end wealthy, so it is not in most people’s interest — though a dependency class now forming in the tens of millions has a different perspective. Then: since a man is part of the multitude, what he is and has belongs to the multitude, as a part to the whole; whence nature inflicts some detriment on the part to save the whole. Such proportionate laws are just, bind in conscience, and are legal laws. Unjust laws are of two sorts:
• contrary to the human good, in the three ways answering the three conditions: from the end (a ruler imposing burdensome laws for his own glory rather than the common good), from the author (one making a law beyond the power committed to him — “like Obama does”), or from the form (unequal distribution of burdens, even if ordered to the common good). These are “more violences than laws,” since as Augustine says (De libero arbitrio) that does not seem a law which is not just; they do not bind conscience, except perhaps to avoid scandal or disturbance — why did Christ pay the tribute? — and Matthew 5: whoever forces you to go a thousand paces, go another two; if he takes your tunic, give your cloak.
• contrary to the divine good, as laws of tyrants inducing to idolatry or anything against divine law: these are in no way to be observed — Acts 5, “we ought to obey God rather than men.”

12. Article 4, replies (“we ought to obey God more than men”) #

Reply 1: Romans 13, every human power is from God; whoever resists a power in those things pertaining to the order of that power resists the order of God, and so is guilty in conscience. Reply 2: the second objection’s argument holds of human laws ordered against the command of God — that is Christ’s text — and to that the order of power does not extend; in such things human law is not to be obeyed. Reply 3: the third argument holds of a law imposing an unjust burden, to which the divinely conceded order of power likewise does not extend; there a man is not bound to obey, if without scandal and greater harm he is able to resist.

• Aside in passing: “Sing joyfully to the Lord, all your land; serve the Lord with gladness.”

His words #

• “laid down in common” — framed as a general law [ed.: in communi, universally].
• Iuris peritus — “the legal expert; peritus means experienced, a man experienced in the law.”
• Ut in pluribus — true “most of the time,” the certitude proper to contingent human things.
• “Privileges, as were private laws” — laws common in power, singular as to the persons they regard.
• “Sentences, which are had for law” — applications of common law to particular facts.
• Compescere — he asks the word, and takes it as restraining, checking, curbing, blocking.
• “Homogeneous with the measured” — “measure a length by a length.”
• “In the form of conscience” — [ed.: usually “in the forum of conscience”].
• “Equality of proportion” — the form of a just law, in the distribution of burdens.
• “More violences than laws” — his rendering of unjust laws.

Texts #

Read in class

• Thomas Aquinas, Summa Theologiae I-II, q. 96, prologue and aa. 1–4 (the whole of each article: objections, sed contra, body, replies).
• Aristotle, Nicomachean Ethics V (the three parts of legal justice; law commands brave, temperate, mild acts).
• Aristotle, Metaphysics X (the measure must be most certain; things of one kind measured by one first in the genus).
• Augustine, De libero arbitrio I (the law for ruling cities permits and leaves unpunished; not a law if not just).
• Augustine, City of God XXII (the city persevering through the succession of citizens).
• Isidore, Etymologies (law written for common usefulness; law possible, according to nature and country’s custom; laws made that audacity be restrained by fear).
• Scripture quoted within the articles: Proverbs 30; Matthew 9; Matthew 15:6; Isaiah 10; 1 Peter 2:19; Proverbs 8; Matthew 5; Acts 5; Romans 13.

Mentioned

• Samuel Johnson’s dictionary, open at “law,” in a London restaurant.
• Biographies of John Quincy Adams, Washington, and John Marshall.
• Moynihan, “Defining Deviancy Down.”

His questions #

• Should human law be laid down in common or in the singular? In common: law is a measure, and a measure is useful only if from one many can be known; singular acts are directed by the prudent man’s singular precepts.
• Must a measure be most certain, so that law must be particular? No — not the same certitude in all things; in contingent human matters it suffices that it hold ut in pluribus.
• Does human law restrain all vices? No — only the graver ones the greater part of a multitude can abstain from, especially those harmful to others, without whose prohibition society cannot stand.
• Why does law not impose on all what the virtuous do? Because it leads to virtue gradually; the imperfect, unable to bear such precepts, would condemn them and break out into worse evils.
• Does human law command the acts of all the virtues? There is no virtue about whose acts it cannot command, but only as they are orderable to the common good.
• Is my eating and drinking ordered to the common good? Left open as put, but answered in principle: any virtue’s acts can be ordered to the common good, mediately or immediately.
• Is a progressive income tax just by reason? Very hard to justify — “they can afford it” would equally justify charging the rich man ten times for a loaf of bread.
• Do human laws bind conscience? Just laws do, from the eternal law they derive from; unjust ones do not, except to avoid scandal — and laws contrary to the divine good are in no way to be observed.
• What did Aristotle mean by “still some things are laid down by law in singular matters”? Left open — “I don’t know what that’s referring to.”