Acting Outside the Words of the Law and Changing Human Law (ST I-II q.96 a.6; q.97 aa.1-2)

Orientation #

He does not announce a previous or next class; the recording begins mid-article, already in the objections of the article on acting outside the words of law. At the end he asks “time for another article or not?” and stops. The previous class had also been reading in this region of the treatise on law.

The class, in order #

1. Objections: act only by the words of the law (“it is not lawful to what judge about them”) #

The three objections against ever departing from the letter:

1. Augustine, De vera religione: in temporal laws men judge about them when instituting them, but once instituted and firm it is not lawful to judge about them, only according to them.
2. Interpreting the law belongs only to him whose it is to make the law; subjects do not make law, so they may not interpret the legislator’s intention but must follow the words.
3. Every wise man knows how to express his meaning in words, and lawgivers are reckoned wise (Proverbs 8: “through me kings rule, and the givers of laws discern just things”); therefore the intention is to be judged only through the words.

Attached digressions: John Quincy Adams and the admission of Missouri — though opposed to slavery he judged the Constitution did not let the federal government prohibit it there; Maine split from Massachusetts to even the Senate, with the line drawn north and south. Early Washington D.C. as a muddy mess of rats, pigs and slave shacks (the French ambassador’s complaint; the HBO John Adams mini-series). On objection 3 he notes Aristotle’s example of the silly Greek laws that persist despite reason — “a sign he gives there the force of custom. You know, you have to watch out for force of custom.” And: “where the hell do they find the abortion right there in the constitution?” — answer from a student, “from the emanations from the penumbra”; compared to “spirit of Vatican II.”

2. Sed contra: Hilary, speech subject to the thing (“things are not to be subject to what speech”) #

Hilary, De Trinitate IV: the understanding of things said is to be taken from the causes/reasons of the saying, since the thing is not subject to the speech but the speech to the thing.

Aside he says Thomas often uses this in Trinitarian matters: should one say the Son is always being born or always born of the Father? The present tense seems most proper to eternity, but for something coming to be, the present signifies what is not yet complete; so to signify God’s perfection one says the Son is always born. Christ’s “Before Abraham was, I am” shows the present is most appropriate to eternity — but sometimes another tense must be used because of the defect of our language, which is fitted to things being born, “not quite out.”

3. The body: law falls short, and then does not bind (“the common what safety of men”) #

1. Every law is ordered to the common safety of men, and has the force and the definition of law only so far as it is; where it falls short of this it has not the notion of binding.
2. The jurisperitus (he gropes: “Justinian… probably Antoninus here”): no law or equity or benevolence suffers that things introduced healthfully for men’s usefulness should, by a harsher (durior) interpretation, be drawn to severity against the common usefulness.
3. Something useful for the common salvation holds ut in pluribus (in most cases), yet in some cases is harmful. He aligns this with Aristotle’s saying in the Ethics that the way of that science is “roughly,” which Thomas explains as the applying of universal and simple things to singular and complex things.
4. Since the lawgiver cannot look upon all singular cases, he lays down law for what happens ut in pluribus, keeping his intention on the common usefulness.
5. Therefore when a case emerges in which observance harms the common safety, it is not to be observed.

Examples: Thomas’s besieged city whose statute says the gates stay shut — useful in most cases, but when the enemy pursues citizens through whom the city is preserved, the gates must be opened against the words, to keep the common usefulness the legislator actually intends. His own: sometimes you should drive on the left side of the street — when the right side is blocked, or there are downed electric wires.

But the limit: if observance does not carry a sudden danger needing immediate action, it does not pertain to just anyone to interpret what is useful or useless to the city — only to the princes, who have authority to dispense in the laws for such cases. If the danger is sudden and admits no delay of recourse to the superior, the necessity itself carries a dispensation, “because necessity is not subject to the law” — “there goes the necessity again.”

Aside: Andrew Jackson going into Spanish Florida after Indians and runaway slaves who raided Georgia — was it lawful? Self-defense; and it forced Spain to cede Florida, the Spanish fearing “the Napoleon of the woods.”

4. Replies (“he judges about a singular case”) #

1. One who in necessity acts apart from the words does not judge of the law itself but of a singular case in which he sees the words ought not to be observed.
2. He who follows the legislator’s intention does not interpret the law simply, but in a case where it is manifest by the evidence of harm that the legislator intended otherwise; if it is doubtful he must either follow the words or consult the superior.
3. No man’s wisdom is great enough to think out all singular cases, so he cannot sufficiently express in words what suits the intended end; if he could consider all cases he would not need to leave anything open, but law must be laid down according to what happens [for the most part].

Asides on reading: Cajetan on Thomas — he so reverenced the Fathers of the Church that he seemed to have inherited the mind of all of them; the reward of reading “carefully, frequently, and with reverence.” Aristotle’s same reverence for the early Greeks though he is far superior to them (the golden age from Thales to Aristotle). Contrast Hume, for whom Aristotle’s reputation “has all evaporated” — and Johnson’s impatience with Hume’s remark that not existing after death bothers him no more than not having been born. On history: it relaxes him after universal matter, since the singular is proportioned to our senses — “the best description of history is one damn thing after another”; a student offers Rousseau’s “a bag of tricks.” Closing: Marie Schwartz of South Dakota — “God is still in charge.”

5. The division of q. 97 (“Then we ought to consider about the change of laws”) #

Four questions: (1) is human law changeable; (2) should it always be changed when something better occurs — “the new and improved”; (3) is it abolished by custom; (4) does custom obtain the power of law. He then reads a fifth-sounding item — whether the use of human law should be changed by the disposition of the rulers — and remarks on the mismatch: “what can we ask them? You know, up to three and not four.”

Asides: the political science interview about state trooper policy — the speed limit is 60, but do they stop you at 65 or wait for 70? That customary margin. A student: the UN’s big international conferences on women and children are attempts to build a body of custom to be transformed into binding international law. Then the ten-dollar-bill joke (Hamilton displaced; Lincoln-Douglas: “if I had another face, would I wear this one?”).

6. q. 97 a. 1, objections: law ought never change (“a measure ought most of all to be what permanent”) #

1. Human law is derived from natural law, and natural law remains immobile; therefore human law ought to remain.
2. Ethics V: a measure ought most of all to be permanent; human law is the measure of human acts. His example: don’t use a rubber band as your measure — it changes when stretched; use wood or metal. And the standard metre kept in Paris: the whole world would be discombobulated if it lost its permanence.
3. It belongs to law to be just and right; what is once right is always right; so what is once law ought always to be law.

“Are you all convinced by this? The author of that objection has to be German” — with Warren Murray’s story of the German landlady laying down the house rules, unlike renting in Paris.

Sed contra: Augustine, De libero arbitrio: a temporal law, though just, can rightly (juste) be changed. “Augustine doesn’t buy into these three objections, but that’s three against one anyway” — yet given the reverence owed Augustine, “you better think twice, or thrice.” Compare the Pope’s word: whoever disagrees with Thomas is always suspect.

7. a. 1, body: two causes of just change (“a twofold cause that human law be justly what changed”) #

Human law is a dictate of reason directing human acts (he asks aloud whether dictate is related to dictator). Hence two causes of just change:

• On the side of reason: reason proceeds paulatim, step by step, from imperfect to perfect — as in the speculative sciences, where the first philosophers treated things imperfectly and later men perfected them. So too in things to be done: the first who sought something useful to the community, unable to consider everything themselves, instituted imperfect things failing in many ways, later changed for things failing in fewer.
• On the side of men whose acts are ruled: law is rightly changed because of the changing condition of men, since different things are expedient to different conditions. Augustine’s example (De libero arbitrio I, the same work as the sed contra): when a people is moderate, grave, and a most diligent guardian of the common utility, a law is rightly laid down letting it create its own magistrates; but if paulatim the same people becomes depraved — a student supplies the rendering: “become so corrupt as to sell their votes and entrust the government to scoundrels and criminals” — “Perfect.”

Attached: the father’s house rule about hanging up the keys, revised over time. “Low information voters”; the old property requirement for voting, abolished in Connecticut and elsewhere from the 1820s while the western states admitted full male suffrage. His brother-in-law’s friend canvassing a Massachusetts governor’s race, amazed that people back candidates standing for the opposite of what they want. A student on how the media portray the undecided swing voter as Solomonic. Then the Augustine conclusion: take from such a people the power of giving honors and return judgment to the few — the judgment of the good few; which is what John Quincy Adams thought, refusing to campaign for the presidency.

8. a. 1, replies (“the natural law is a partaking of the eternal law”) #

1. Natural law is a participation of the eternal law and so remains immobile, having its immobility from the perfection of the divine reason instituting nature; human reason is changeable and imperfect, so its law is changeable. Further, natural law contains universal precepts that always remain; human law contains particular precepts according to the diverse cases that emerge. His examples: the drinking age, eighteen in some states, twenty-one in others; the attempt in this state to lower to sixteen the age at which a girl may get an abortion — “they’re very defective in the law sometimes.”
2. A measure ought to be permanent quantum est possibile; but in changeable things it cannot be altogether permanent, so human law cannot be entirely unchangeable.
3. What is right in bodily things is said absolutely and so always remains right; but the rightness of law is said in order to the common utility, to which one and the same thing is not always suitable — so such rectitude is changed.

Asides: legislation so long and complex that legislators do not read it; Cardinal Wright’s dramatic warning on what abortion will do to this country; the Wisconsin bishop on the Pope’s encyclical — “it’s not as long as the Affordable Care Act”; Senator Markey praising the encyclical for holding science and technology to be the answer, “the Pope says exactly the opposite.”

9. a. 2, objections: change whenever better occurs (“the new and improved”) #

1. Human laws are found by human reason like the other arts, and in the arts what was held is changed when something better occurs (medicine); so too in law.
2. From past things we provide for future; unless laws were changed when better things are found, many inconveniences follow, since ancient laws are found to contain many crudities.
3. Human laws are made about singular acts of men, and in singulars perfect knowledge comes only through experience, which requires time (Ethics II) — hence “the Senate is named from senex,” from being old, men of experience. So through succession of time something better occurs to be established.

Sed contra, from the Decretals: Ridiculum est et satis abominabile — it is ridiculous and abominable that we allow the traditions handed down from our forefathers to be infringed.

Attached: Prohibition — nobody observed it, it made the gangs, and Roosevelt appointed old Kennedy to police it (“it takes a thief to catch a thief”); Warren Carroll’s point that an absolute prohibition changed a few years later bred great contempt for law. Eliot Ness, asked what he would do when Prohibition ended: “I think I’m going to go out and get a beer.” A student on Burke, and Chesterton’s tradition as “the democracy of the dead,” valued because it has withstood the test of time.

10. a. 2, body and replies: only for great utility or necessity (“much important is what custom”) #

1. Human law is rightly changed only so far as the change provides for the common usefulness.
2. But the change itself, taken in itself, has some detriment to the common safety — because for the observance of law custom (consuetudo) counts for much: things done against common custom seem graver even if in themselves lighter. So when law is changed, the law’s restraining power is diminished, inasmuch as custom is taken away.
3. Therefore human law should never be changed unless the common safety is recompensed on the other side — either because some very great and evident utility comes from the new enactment, or because there is the greatest necessity, in that the standing law or custom contains manifest iniquity or its observance is greatly harmful. (He instances the drink law.) Hence the jurisperitus: in new things constituted there must be evident usefulness, that one may recede from a law long seen to be just.

Replies: (1) Things of art have efficacy from reason alone, so change with the better reason — a better medicine, change at once; but laws have their power most of all from custom, as the Philosopher says in Politics II, and so should not easily be changed. (2) and (3) That argument concludes that laws should be changed, but not for just any amelioration — only pro magna utilitate vel necessitate.

Attached: “when people start changing a lot of things… everything can be changed” — the spirit of Vatican II, change for the sake of change; Father Alma Bennett’s bishop after the council: “are they going to throw out causality now too? They can’t change that, can they?” Obama’s “time for change.” Then the Bobby Jindal announcement — convert, strong for life, effective with bureaucracies, shrank government in Louisiana after Katrina. He stops: “time for another article or not? We’ll stop there.”

His words #

• ut in pluribus — for the most part, in the majority of cases; how the lawgiver must legislate.
• jurisperitus — the jurist quoted by Thomas; he guesses “Justinian… probably Antoninus.”
• durior interpretation — a harsher, more stubborn reading that would draw a benevolent law into severity.
• roughly — Aristotle’s way in the Ethics, explained by Thomas as applying universal and simple things to singular and complex things.
• necessity is not subject to the law — sudden danger itself carries the dispensation.
• spiritus [ed.: superior, the ruler] — whom one consults in a doubtful case.
• paulatim — gradually, step by step: how reason advances and how a people becomes depraved.
• dictate of reason — his definition of human law; he wonders aloud at the kinship with dictator.
• consuetudo / custom — that from which laws have their greatest power (Politics II).
• magna utilitas vel necessitas — the only warrant for changing a law.
• low information voters — his phrase for the modern counterpart of Augustine’s corrupted people.

Texts #

Read in class

• Thomas Aquinas, Summa Theologiae I-II, q. 96, a. 6 — objections, sed contra, body, replies.
• Thomas Aquinas, Summa Theologiae I-II, q. 97 — division of the question; a. 1 entire; a. 2 entire.
• Augustine, De vera religione (obj. 1 of q. 96, a. 6); De libero arbitrio I (sed contra and body of q. 97, a. 1).
• Hilary, De Trinitate IV (sed contra of q. 96, a. 6).
• Proverbs 8 (obj. 3).
• Decretals, Ridiculum est et satis abominabile (sed contra of q. 97, a. 2).

Mentioned

• Aristotle, Ethics II (experience requires time) and V (the measure must be permanent; the “rough” way).
• Aristotle, Politics II (laws have their power from custom); his example of persisting silly laws.
• John 8:58, “Before Abraham was, I am.”
• Cajetan on Thomas’s reverence for the Fathers; Boswell’s Life of Johnson on Hume; Burke; Chesterton on tradition.

His questions #

• Are you all convinced by this [that law should never change]? No — Augustine’s one authority against the three objections carries it.
• Where do they find the abortion right in the constitution? “From the emanations from the penumbra” — as with the “spirit of Vatican II.”
• Should one say the Son is always being born or always born of the Father? Always born: the present signifies something not yet complete, unfitting for God’s perfection.
• When the letter of the law would harm the common good, who may depart from it? Only the princes who have power to dispense — unless the danger is sudden, and then necessity dispenses of itself.
• Is dictate related to the word dictator? Left open.
• Is the division four questions or five? He notes the mismatch and leaves it: “up to three and not four.”
• Why is change of law itself harmful? Because custom counts for much in observance, and changing the law diminishes its restraining power.
• Should law be changed whenever something better occurs? No — only for great and evident utility or the greatest necessity.
• Was Jackson’s action in Spanish Florida lawful? It was self-defense.