Aquinas on the Old Law's Judicial Precepts (I-II q.105 a.1-2): Rulers and the Best Mixed Government, Sharing Goods, Inheritance, the Jubilee and Loans

Orientation #

He says “up to one-o-five, huh? We’re gonna start there,” passing from the previous material to q.105. Before that he reports a question he had been reading in Thomas’s commentary on the Sentences (“probably the twenty-second distinction”) and a physics discussion with a student the night before. The previous class treated the judicial precepts in general (q.104) (prev. lecture).

The class, in order #

1. Why it was necessary that Christ rise (“Was it necessary for Christ to rise from the dead?”) #

He notes two senses of necessary: absolutely necessary — no; but Thomas gives three reasons of fittingness.

1. From Physics III, where Aristotle compares two words that are close but not synonyms, perfect and whole: a part is something imperfect or incomplete. Christ’s body and soul both remained united to the second Person; if these parts were not in a whole there would be something imperfect, and it is not fitting that the second Person take on something imperfect — the whole is better than the part. So the body had to be brought back together.
2. From the death on the cross: it was the most painful and most shameful death; the maximum humility in undergoing it merited the glorification of that same body; therefore it was necessary that he rise glorious.
3. For us: the glorifying of our body must come through Christ, the head of the Church, who must first have perfection of body in himself and then pass it on — “to start the whole process.” Aside: he says he has never seen the question asked this way, that it may be in the Summa too but he does not remember, and that these are “beautiful little texts,” understandable and not too hard.

2. The plan of q.105 (“about this, four things are asked”) #

The four articles answer to the four things law must provide for: (1) judicial precepts pertaining to the princes/rulers; (2) those pertaining to men’s life together; (3) those pertaining to foreigners (extraneis); (4) those pertaining to the household (domesticam conversationem) — husband/wife, father/son, master/slave, the same threefold division of household associations that Thomas finds in St. Paul’s epistles. Method note: since these matters are particular, they will take objection 1 with reply 1, objection 2 with reply 2, and so on; he says he sometimes copies the replies, runs through all objections against them, then reads the body, then the replies again.

3. Article 1, objection 1 and reply: who names the supreme ruler (“the ordering of the people especially depends upon the greatest prince”) #

Objection (from Politics III): the order of a people depends most on the highest ruler, yet the Law says nothing about instituting the supreme prince, only about lower ones (Numbers 11, seventy elders; Deuteronomy 1, “give from you wise men”). He calls this “a serious objection.” Reply: this people was ruled by God under a special care — “your Lord God has chosen you, that you might be a people peculiar to him” (Deuteronomy 7:6) — so the Lord reserved to himself the institution of the supreme ruler. Moses asks (Numbers 27) that the Lord provide a man over the multitude; Joshua is instituted by God’s ordering; the individual judges after Joshua are raised up by the Lord with his spirit in them (Judges 3); the king too is not committed to the people — “you will constitute him king, whom the Lord your God has chosen” (Deuteronomy 17). Student exchange: they note the liturgy has been in Samuel, the people demanding a king; and Samuel passing over each of Jesse’s sons — “the Lord hasn’t chosen any of these.” Asides: “we should have our president chosen — we’re obviously unable to choose”; and “somebody said if God wanted us to have democracy, he’d give us choices.”

4. Objection 2 and reply: kingship best, but corruptible (“the king is the best rule of the people if it not be corrupted”) #

Objection (Plato): it belongs to the best to bring forth the best, and kingship is the best regime because it most represents the divine rule of the one God; therefore the Law should have instituted a king and not left it to the people’s judgment (Deuteronomy 17). He inserts Aristotle’s six regimes: rule of one, few, many, each in a good and a bad form — kingship / tyranny, aristocracy / oligarchy, polity or republic / democracy. Kingship is best and tyranny worst; the rule of the many is “the least good” of the good forms, and its corruption “the least bad.” Reply (“that’s a big if”): because of the great power conceded to the king, the kingdom easily degenerates into tyranny unless the one given such power has perfect virtue, “because it is not except a virtuous man that can bear well good fortunes” (Ethics IV) — and perfect virtue is found in few. The Jews especially were prone to cruelty and avarice, the vices that most bring men to tyranny; so the Lord did not from the beginning give them a king with full power but judges and governors, and later granted a king at the people’s petition, indignatus — “they have not cast off you, but me, lest I reign over them.” But from the beginning he did order how a king, once instituted, should be chosen and behave: (a) in election, await the Lord’s judgment, and do not take a king from another nation, since such kings are little affected toward the nation set over them; (b) toward himself: not multiply chariots, horses, wives, nor have immense wealth, since from desire of these princes decline to tyranny and abandon justice; (c) toward God: always read and think on the law of God, in fear and obedience; (d) toward subjects: not treat them with proud contempt, nor oppress them, nor decline from justice. Student exchanges: whether the framers made a hybrid, a “democratic republic” — yes, and democracy was a bad word for them; Solomon’s many wives leading him into idolatry, with a liturgical text: “You taught your wisdom to Solomon, and he became as one who knew no wisdom”; St. Louis IX as an example of a king in fear of God. Aside: lottery winners who are broke in five years — they cannot bear good fortune.

5. Objection 3 and reply: the divided kingdom (“every kingdom divided in itself is made desolate”) #

Objection (Matthew 12): experience in the Jewish people shows the division of the kingdom caused its destruction; the Law should have forbidden division into two kings, and the division should not have been induced by divine authority through a prophet. Reply: the division of the kingdom and multitude of kings was given to that people as a punishment for their many dissensions, especially against the kingdom of David. “I will give to them a king in my fury” (Hosea 13); “they shall reign, but not for me” (Hosea 8).

6. Objection 4 and reply: how rulers are to live (“to the princes of the people there ought to be ordered some things whence they are sustained”) #

Objection: priests are instituted for the people’s benefit in divine things (Hebrews 5) and receive tithes, first fruits and the like; princes are instituted for the people’s benefit in human things, so they too should have assigned revenues — especially since they are forbidden gifts, “which blind even the prudent and subvert the words of the just” (Exodus 23). Reply: priests are taken by succession of origin and set apart for sacred things, so that they be held in greater reverence — the honour makes way for reverence toward divine worship — and not just anyone from the people can become a priest; hence they must have tithes, first fruits, offerings and sacrifices to live on. Princes, on the contrary, are taken from the whole people, and so have their own private possessions to live from. Also the Lord forbade even the king to superabound in wealth or magnificent clothing, since from these men are easily raised to pride and tyranny; and if princes are not very wealthy and their office is laborious with full solicitude, they will not be much envied by the people — “and thus be taken away the matter of sedition.” Aside: the radio item about men who go down to Washington poor and come back rich after fifteen or twenty years — “how does that take place?”

7. Objection 5 and reply: “the right of your king” (“that right was not given to the king from divine institution”) #

Objection: as kingship is best, tyranny is the worst corruption; but the Lord in instituting the king instituted the right of tyrants — “this will be the right of your king” (1 Kings/Samuel), taking sons for soldiers and the rest. Reply: that right was not from divine institution but was rather a pronouncement of what kings usurp, degenerating into tyranny and despoiling their subjects. The sign is the ending, “you will be to them as servants” — which properly belongs to the tyrant, who commands his subjects as slaves and not as free men. Samuel said it to deter them from asking a king, “and it follows that the people did not wish to hear the voice of Samuel.” Yet even a good king, without tyranny, may take sons and constitute tribunes and centurions and take many things from subjects for procuring the common good. He remarks that Thomas “got away there pretty well defending the law against his objections.”

8. Sed contra and body: the best regime is a mixed one (“well commixed from the kingship… aristocracy… and from democracy”) #

Sed contra: the people of Israel are commended for the beauty of their order; the beauty of a people’s order depends on the good institution of princes; therefore the Law instituted them well. He pauses on this: order is part of beauty — so is beauty more the object of reason or of will? The class answers, reason; he calls it an interesting topic, and notes order has more to do with reason though with some connection to the other. Body — two things must be observed in the good ordering of rulers:

1. That all have some part in the governing, for by this the peace of the people is conserved and all love and keep such an ordering (Politics II).
2. The species of regime (Politics III): best are kingship, where one rules according to virtue, and aristocracy, the rule of the best, where a few rule according to virtue. Hence the best ordering is where one is set over all according to virtue, under him a few ruling according to virtue, and these princes pertain to all, being able to be chosen from all and chosen by all. That is the best polity, well mixed from kingship (one over all), aristocracy (many ruling according to virtue), and democracy, the power of the people (princes chosen from the people and by the people). This was the divine law’s institution: Moses and his successors governing as one over all — a species of kingship; seventy-two elders chosen according to virtue — aristocratic; chosen from the whole people (“provide from all your people wise men”) and by the people (“give from you wise men,” Deuteronomy 1) — democratic. So the Law’s ordering of princes was the best. His qualification: “How they worked in practice is another question.”

9. Article 2, objection 1 and reply: grapes in the neighbour’s vineyard (“eat grapes as much as you please”) #

Objection: men cannot live peacefully if one takes what belongs to another, yet Deuteronomy 23 permits one entering a neighbour’s vineyard to eat grapes at pleasure. Reply: “who loves his neighbour fulfils the law” (Romans); all the precepts ordered to one’s neighbour aim at men loving one another, and from love men share their goods — “who sees his brother suffering necessity and closes his bowels from him, in what way does the charity of God remain in him?” (1 John); the apostle commands the rich to give and share easily (1 Timothy). A man is not easily communicative who cannot bear his neighbour taking some little thing without great detriment to him. Hence the Law allows eating in the vineyard but not carrying away — from carrying away comes great damage and disturbed peace, whereas among disciplined men the taking of small things does not disturb peace but confirms friendship and accustoms men to easy sharing. Student exchanges and his limits on the permission: some places in Europe still allow picking an apple as you pass; this is not contrary to private property but a way to keep the peace; you may not come with a basket, “pull up the truck,” or open a stand in front of the neighbour’s house. Ruth gleaning, and the law that one not reap clean so the poor may follow and pick up the remnants. A student: small businesses that let employees or customers take a little are “good business.” His own stories: green apples by the Mississippi as a boy; orange groves north of town in Florida on the track team; runners grabbing oranges from open markets; bitter marmalade oranges in Spain versus sweet Valencias; the Lebanese pressing far more food on a guest than he needs; and a burger joint that refused to let him pay when his order was wrong.

10. Objection 2 and reply: inheritance passing to daughters (“the heredity will pass to the daughter”) #

Objection: many cities and kingdoms are destroyed because possessions come to women (Politics II); yet Numbers 27 gives the inheritance to the daughter when a man dies without a son. Reply: the Law gave this only in default of male sons, and then it was granted in consolationem patris — it would be grievous to him that his inheritance pass altogether to strangers. And a caution was added: women succeeding to the paternal inheritance must marry men of their own tribe, so that the lots of the tribes not be confounded (Numbers). Aside: the Salic law in Shakespeare, Henry V, in the opening scene, where the churchmen argue the French are not honest about what the law really was.

11. Objection 3 and reply: the jubilee and the sale of land (“the possession sold would return to the seller”) #

Objection: human society is chiefly conserved by buying and selling what men need (Politics I), but the Law took selling away by commanding return of what is sold in the fiftieth year (Leviticus 25). Reply (Politics II): regulation of possessions adds much to conserving a city; in certain Gentile cities no one could sell his possession [except within a limit]. If possessions could be sold outright, all would come into the hands of a few — “that’s like where we are” — and the region would be emptied of inhabitants. So the Law both met men’s necessities, conceding sale for a time, and removed the danger, commanding return at a set time; and thus the inheritances of the tribes were not confounded but kept the same distinction. Houses in walled cities could be sold forever, like movable goods, since the number of houses in a city was not fixed as the measure of land was — one can add to the number of houses. Houses in villages without walls could not be sold forever, because such houses are built only for the cultivation and care of the possessions. Asides: a Colombian priest in his parish describing villages where they go to Mass at four in the morning before the fields; talk of Colombia’s condition, drugs in the wilderness rather than the cities, Chávez destabilizing it from Venezuela, and Uribe as a good president; a new Maronite bishop for Colombia.

12. Objection 4 and reply: loans, pledges and the year of remission (“it’s most expedient… that men be prompt to lend to each other”) #

Objection: readiness to lend is taken away when creditors are not repaid — “many refused to lend, not out of wickedness, but they were afraid to be defrauded without cause” (Ecclesiasticus). Yet the Law (a) commands that what is owed by a neighbour or brother not be sought after, because the year of remission is of the Lord (Deuteronomy 15), and that if a borrowed animal dies with its owner present one is not held to repay (Exodus 22); (b) takes away the security had by pledge (Deuteronomy 24): do not enter his house to take the pledge, nor keep the pledge overnight, but restore it at once. Reply: the Law’s intention was to accustom men to come easily to each other’s aid in necessity, since this is most of all a fomentum of friendship — and this facility was established not only in what is given gratuitously but also in what is lent, since this kind of help is more frequent. It is instituted in several ways:

1. That loans be easily obtained, and men not be held back by the approaching year of remission (Deuteronomy 15).
2. That the borrower not be burdened with usuries, nor have taken in pledge things wholly necessary to life — “you shall not take in pledge the upper or the lower millstone, because you will place his soul to yourself”; if you take a neighbour’s cloak, return it before sunset.
3. That he not be dunned with importunity: if you lend to the poor man who dwells with you, do not urge him like one exacting; do not go into his house for the pledge but stand outside and he will bring it out, “because the house is the safest receptacle of each thing” — whence a man’s house is his castle, and to invade it is to molest the man. Nor may the creditor take what pledge he wishes; rather the debtor gives what he needs less.
4. That in the seventh year debts be entirely remitted: those able to repay would probably repay before the seventh year and not defraud the lender; and those wholly unable should have the debt remitted out of the same love that would have given anew on account of their indigence. On borrowed animals: if through the borrower’s negligence, in the owner’s absence, the animal dies or is weakened, he must make restitution; if the owner is present and guarding diligently, he need not — and especially not if the animal was hired for a price, since then a price is already paid for the use, and to require restitution besides would make the loan not gratuitous; where it was not hired, some equity requires at least restoring the value of the use that might have been rented. Student exchange: St. Basil’s homily “Take heed to thyself,” on the wicked thought that steals upon a man not to give because the year of remission is coming — and Basil uses that as an occasion to think about knowledge. Asides: “Hey, socialists here”; “I guess near that seventh year, I’m not going to lend anything to you — maybe not even the sixth”; borrowing a tool from his father-in-law; “I don’t know if we can get this through Congress.”

He ends by counting: “There are twelve arguments. Seven more to go.” (He has treated objections 1-4 of article 2, so the article’s remaining objections are left for the next class.)

His words #

• extraneis — those outside the city, foreigners; the third of the four parts of q.105.
• domesticam conversationem — household living together: husband/wife, father/son, master/slave.
• “peculiar or special to him” — Deuteronomy’s peculiaris, a people belonging specially to God.
• indignatus — “as it were indignant,” how God conceded a king at the people’s petition.
• “polity” / “republic” — the good rule of the many; he notes the framers disliked the word democracy.
• in consolationem patris — for the consoling of the father, why daughters may inherit.
• fomentum of friendship — something encouraging or fostering friendship; why easy lending is commanded.
• mutuum — a loan of something to be repaid; he distinguishes giving from lending.
• omnino vitae necessaria — things wholly necessary for life, which may not be taken in pledge.
• “the death of the sun” — his literal rendering of occasus solis, sunset, “I always like that expression.”

Texts #

Read in class

• Thomas Aquinas, Summa Theologiae I-II, q.105, a.1 — objections 1-5 with replies, sed contra, corpus.
• Thomas Aquinas, Summa Theologiae I-II, q.105, a.2 — objections 1-4 with replies.
• Thomas Aquinas, commentary on the Sentences, Bk. III, d.22 (inferred) — the necessity of Christ’s resurrection, three reasons.

Mentioned

• Aristotle, Physics III (perfect and whole); Politics I (exchange), II (all sharing in rule; regulation of possessions; possessions coming to women), III (the greatest ruler; species of regime); Nicomachean Ethics IV (only the virtuous bear good fortune).
• Scripture: Numbers 11, 27; Deuteronomy 1, 7:6, 15, 17, 23, 24; Judges 3; 1 Samuel/Kings (Samuel and the people; Jesse’s sons); Leviticus 25; Hosea 8, 13; Matthew 12; Romans; 1 Timothy; 1 John; Hebrews 5; Exodus 22, 23; Ecclesiasticus; Ruth (gleaning).
• Plato — “it belongs to the best to bring out the best.”
• St. Basil, homily “Take heed to thyself.”
• Shakespeare, Henry V (Salic law).

His questions #

• Was it necessary for Christ to rise from the dead? Not absolutely; but necessary by three reasons — the whole is better than the part, his humility merited glorification, and our glorification must begin in the head.
• Why does the Law say nothing about instituting the supreme ruler? Because God reserved that choice to himself over a people peculiarly his own.
• Why did God not give them a king from the beginning, if kingship is best? Because power easily degenerates into tyranny without perfect virtue, which is found in few, and this people was prone to cruelty and avarice.
• Is beauty more the object of the reason or the will? Reason — order is a part of beauty, and order has more to do with reason, with some connection to the other.
• What is the best ordering of rulers? A regime well mixed of kingship, aristocracy and democracy, which is what the divine law instituted (Moses, the seventy-two elders chosen from and by the people).
• Why may one eat grapes in a neighbour’s vineyard but not carry them off? Because small takings confirm friendship and accustom men to sharing, while carrying off causes great damage and disturbs peace.
• Why did the Law let land return to the seller in the jubilee year? Lest all possessions come to a few and the region be emptied, and lest the tribes’ inheritances be confounded.
• Why must the pledge be taken outside the house and returned before sunset? Because the house is each man’s safest receptacle — his castle — and because what is wholly necessary to life may not be held.
• How did those men go to Washington poor and come back rich? Left open.