Thomistic Legal Theory Explained

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By Noah Torres, University of Dallas

  1. INTRODUCTION

A. Scholastic Notions of Law and Its Divisions, Considered Generally

At the heart of Scholastic moral theology and political philosophy is the notion of law, which is best articulated by Saint Thomas Aquinas, the Common Doctor, in his Summa theologiae. In the Summa, the Common Doctor devotes eighteen questions in the Prima secundae partis devoted to a theory of law informed by a complex Scholastic metaphysical grammar, collectively entitled the Treatise on Law. In these eighteen articles, Aquinas coheres together a philosophy of law which symmetrically informs both questions of moral and political nature. [1] The fundamental principle of the Common Doctor’s theory is that law is “a kind of rule and measure of acts, by which someone is induced to act or restrain from acting… [and] is something belonging to reason.”[1] In other words, law is a normative rule that directs humans toward acting in this way or that way, or alternatively, in no way at all by preventing a particular human action. Law also belongs to reason and is undergirded by a rational principle, for as the Common Doctor says, “the rule and measure of human acts is reason.”[2]

Consequently, if law is a normative regula et mensura actuum, as is reason, the two must be informed of their essence from the same principle. This principle is the eternal law (lex aeterna), which according to the Common Doctor is simply the “idea of governance [ratio gubernatoris] of things in God the ruler of the universe.”[3] Thus, the eternal law is nothing but the eternal and supreme rational principle directing the order of the universe. Law, however, is not contained in one type. According to Thomas, besides the eternal law, there is the natural law (lex natura), human law (lex humana) and divine law (lex divina), all which can be further divided into secondary and tertiary principles. Ultimately, since every type of law is a principle of reason, and the supreme principle of reason is the eternal law, every type of law has its nature informed by the eternal law. As Thomas says, “all laws, in so far as they partake of right reason, are derived from the eternal law.”[4] Thus, the natural law is simply “the rational creature’s participation of the eternal law,”[5] while the human law is the practical application of the natural law in particular affairs as “as a conclusion from premises, [or] secondly, by way of determination of certain generalities.”[6] That is, human law is nothing by conclusions pertaining to certain human actions from premises of the natural law, including custom. Finally, the divine law is that additional twofold law revealed to man directly by the Deity Itself, either through the very words of the Second Person or the writings of the sacred authors. Thomas says that it is an “additional law given by God, whereby man shares more perfectly in the eternal law.”[7] The eternal is twofold, as it contains both the precepts of the Old Law from the Old Testament, which direct man towards earthly goodness through external action, while the New Law from the New Testament directs man’s internal acts, s.c. the movement of the will and intellect, towards heavenly beatitude.[8]

B. The Question at Hand

While Thomas cohered together an intelligible Scholastic legal theory, it is not without its problems. A central preoccupation of Scholastic philosophers after Thomas is the relation of the divine law to human law, for one pertains entirely to human reason, and the other to divine thing[2]s. This problem has often manifested itself in conflicts between the two spheres of society, namely the Church and the State, and can be seen in a number of historical controversies. While Thomas does not thoroughly treat the relationship of the Church and State– institutions of revelation and reason– in contingent or institutional particulars, he does treat them generally in the Scripta super libros sententiarum; Thomas also offers a treatment of the divine law and human considered abstractly in the Treatise on Law and the De regimine principum. The relationship of the divine law to the human law can best be described as perfective, wherein the divine law– due to the the perfect wisdom it contains immediately from God–is the clearest regula et mensura of human law. For Thomas says, quoting St. Isidore, no law nor “custom can obtain any force contrary to the Divine… law… Evil customs should be eradicated by [the divine] law.”[9] Further, it is the common opinion of Thomas and all the doctors that the Old Law, while it was fulfilled by the New Law, remains binding “except in the point of ceremonial precepts”[10], and therefore perfects human law and natural virtue just as the New Law. In particular, the Old Law directs in matters of human action, and is a clearer articulation of the natural law. Further, Thomas asserts that since “human government is derived from the Divine government [it] ought to imitate it.”[11] Thus, the divine law is perfective of human law and governance, giving it more certainty by nature of its cause and object, namely God. While both are derived from God, divine law is more eminently so, thus the two types of law relate as a “superior power and inferior [that]… spring forth from one supreme power, which subjects the one to the other according as it wishes.”[12]

2. ON THE TYPES OF LAW

B. On the Eternal Law

In order to understand the relations of every law, it is important to understand every type of law. According to the Common Doctor, the eternal law is simply the “the type of Divine Wisdom [ratio divinae sapientiae], as directing all actions and movements”[13] in the universe. Further, this law is nothing more than the “rational pattern existing in”[14] the Divinity which governs all actions and movements of any created thing in the universe. Thomas says that “whatever is subject to the Divine government, therefore, is also subject to the eternal law; whereas anything not subject to the Divine government is not subject to the eternal law,”[15] and all things are subject to the eternal law, thus nothing is free from its jurisdiction. Things are placed under this jurisdiction in two ways, namely, “in so far as it participates in the eternal law by way of knowledge… [or] by acting and being acted upon [per modum actionis et passionis]… in this second way, non-rational creatures are subject to the eternal law.”[16]

Put simply, the eternal law is the rational ordering principle of the entire universe, making it the first and primal rule of everything in the world. This precept is first found in the words of the Common Doctor, who asserts that since the eternal law is nothing more than the “plan of government in the Supreme Governor, all plans of government which are in the lower governors must necessarily be derived from the eternal law.”[17]

Consequently, if every law is derived from the eternal law, every type of law participates in the essence of the eternal law. While similitudes are not alike in all things, the transmission of law’s nature into its various divisions possesses similar metaphysical grammar as the transmission of human nature into individual persons. For the Common Doctor says in the Quaestiones disputationes de malo:

Just so, we say that the political community does what the ruler of the community does, as the Philosopher says. For we reckon such a community as if one human being, so that different human beings with different functions are united as if different members of the same natural body, as the Apostle points out in 1 Cor. 12:12 regarding members of the church. Therefore, we should consider the whole population of human beings receiving their nature from our first parent as one community, or rather as the one body of one human being.[18]

As for law, the eternal law is like the first parent, or even like the ruler of the political community, and every other type of law is like every other member of the human race, or members of the polity. Further, as the first parent or ruler of the political community give definition to the whole, so does the eternal law give definition and essence to every other type of law. That is, as human being can signify one universal human nature found in the first parent, so law can signify one universal nature of law found in the eternal law of the Supreme Lawgiver[3] . However, law and its different types are not of one substance as the unity of human beings are not of one physical or intellectual substance. As the Common Doctor says, “these plans of inferior governors are all other laws besides the eternal law.”[19] Thus, every law is substantially distinct from other types of law.

However, since the eternal law is that “which is expressed by [the] Word, [and] is not predicated of God personally,”[20] the eternal law cannot be fully grasped by the human intellect.

B. On the Natural Law

Since the eternal law cannot be coherently understood by men due its divine nature, there must be some way through which men can comprehend its precepts. Further, since all creatures participate in the eternal law, and the rational creature “the rational creature is subject to Divine providence in the most excellent way,”[21] the way by which man participates in the eternal law must realize this excellence. This way by which man participates in the eternal law is called the natural law, which is a “natural inclination to its proper act and end… [and] is something constituted by reason.”[22] Put simply, the natural law is natural inclination and reason towards a specific end, which is ultimately heavenly beatitude. Further, as the Master Gratian notes, “natural law is common to all nations through natural instinct, not through any enactment.”[23]

The natural law also contains primary, secondary, and tertiary principles. Some of these principles are said to be self-evident, which means either that their subjects are contained within their predicates, or they are relatively self evident, viz. they are “self-evident only to the wise.”[24] The first principle of the natural law according to the Common Doctor is that “good ought to be done and pursued, and evil avoided.”[25] From this great and first principle, all secondary and tertiary principles of the natural law are determined, from which human actions can be appraised both in the universal and in the individual, from thence men can be directed towards this or that particular commission or omission of action. Further, the natural law directs men in “all virtuous acts”[26] considered as virtuous qua virtuous, however the natural law does not immediately and clearly prescribe all virtuous actions. Those actions the natural law does not immediately and clearly prescribe are those considered in the particular, for “many things are done virtuously which we are not in a primary sense inclined to do by nature, but which, through inquiry of reason, have been found by men to be advantageous to them in living well.”[27][4]  In other words, since reason proceeds from general principles to particular conclusions, so must man with the natural law. These particular conclusions, which are secondary and tertiary principles of the natural law insofar as they rightfully participate in it, are called human laws.

C. Of the Human Law

Aquinas introduces human law by noting that some men are “inclined towards acts of virtue by a good natural disposition… or by rather Divine gift.”[28] Unfortunately, not all men are constituted in this way, for some are “headstrong and prone to vice… [and] cannot easily be moved by words.”[29] Since few men are disposed towards acting well, the Common Doctor asserts that these men must be “restrained from evil by force or fear… [to] be made into virtuous men… this kind of discipline is the discipline of laws.”[30][5]  These laws are called human laws, and are promulgated by the ruler of a political community. Further, these laws are nothing more than the derivation of more general principles of the natural law into more specific principles applicable to contingent political circumstances. For the Common Doctor says that all human laws are truly human laws if they are “according to the rule of reason… [and] the first rule of reason is the law of nature.”[31] If a law is not in accord with reason, Aquinas says that it is both a “corruption of law”[32], and more “acts of violence than laws.”[33]

A human law is in concordance with the law of nature in two ways according to the Common Doctor. First, either by way of “general conclusion derived from its principles [sicut conclusiones ex principiis]; in another way, as a specific application of that which is expressed in general terms [sicut determinationes quaedam aliquorum communium].”[34] To illustrate the first signification, consider the general principle that ‘man naturally lives in society’. From the aforementioned principle, one can draw the conclusion then that ‘one ought not to bring about ruin of society’; thus specific human laws that relate to protecting the integrity of governance or social cohesion of a polity ought to be promulgated. In regards to the second signification, consider that the natural law dictates that “he who does evil should be punished.”[35] The natural law does not say that man should be punished in this way or that, therefore, man can specifically apply this principle to create laws that determine the punishment for the commission or omission of certain actions that constitutes evil, i.e the law should punish murderers or men who knowingly turn a blind eye to sacrilege.

Further, all human law is ordained for a particular end, namely to the “common good, [which] consists of many things, and so the law must take many things into account.”[36] The common good of the political community is a natural good, as the political community is something derived from the precepts of reason. The common good of the political community, according to Aquinas in his commentary on the Philosopher’s Politics, is the “highest human good.”[37] The highest human, and therefore natural good of the “multitude gathered together is to live according to virtue.”[38] That is, men ought to live well (eu zen), for “a virtuous life is the end of human congregation.”[39] However, human law fails in one particular respect. Namely, since human law is a product of natural reason, it “falls short of the eternal law… [human law] allows and leaves unpunished many things that are punished by Divine Providence.”[40] Notwithstanding this fault, human law is ultimately perfected by another type of law revealed by God through both testaments of sacred scripture and through the very words and deeds of the Incarnate Second Person.

D. Of the Divine Law

The final type of law posited by the Common Doctor is the divine law, which is the type most integral to this discussion. Since “man is ordained to an end of eternal happiness which is inproportionate to man’s natural faculty… it was necessary that, besides the natural and the human law, man should be directed to his end by a law given by God.”[41] Put simply, the divine law is revealed to man due to the failings of his natural reason in relation to his supreme end, which is eternal beatitude. The exalted nature of the content of the divine law, as well as the immediate causation of its existence from God, places it “over and above”[42] the natural and human law. The divine law, therefore, is conditionally necessary for man to achieve this exalted union with the Divinity.

Besides the failings of man’s reason to comprehend and unite with the Divinity, the Common Doctor enumerates three additional causes for the existence of the divine law. The first of these additional three is the fact of “uncertainty in human judgement, especially in contingent and particular matters, [for] different people form different judgements on human acts.”[43] [6] However, when a law is given clearly and distinctly by the Godhead Itself, there is no uncertainty in understanding the species of an act; if something is truly malum in se, revelation says so, as in the case of adultery. Further, Aquinas notes “man can make laws only in respect of those matters which he is able to judge. But man cannot judge inward acts… yet the perfection of virtue requires that man conduct himself rightly [interiorly and exteriorly].”[44] Thus, the divine law was revealed to man, so that the internal forum of the conscience could be directed in one way or another. [7] Finally, the divine law is able to forbid all vices and evils that the human law cannot, for “in seeking to remove all evils, it would as a consequence remove many good things also… [thus] the securing of the common good… would be impeded.”[45]

The divine law is also divisible into two parts, namely the Old Law and the New Law, respectively corresponding to the two testaments of sacred writ. Thomas notes that the relation of these two laws to each other can be understood as they were understood by the Apostle Paul. That is, “the state of man under the law is [like] that of a boy under a schoolmaster, but his state under the new law is [like] that of a grown man who is no longer under a schoolmaster.”[46] Together, both laws direct towards the ultimate common end and good, namely eternal beatitude; Aquinas notes that the Old Law directs towards beatitude externally, while the New Law does so internally. In order to illustrate this distinction, the Common Doctor says that under the Old Law, men were invited into the kingdom of the Canaanites, a physical place, but under the New Law, men are invited into the kingdom of Heaven, a place existing outside of the temporal world.[47] Therefore, the Old Law directs towards the goods in this world, while the New Law directs towards the goods outside of this world. This can be further illustrated through a comparison of the Decalogue and the Beatitudes; the former, which is the surest articulation of the Old Law, is a set of directives from the divine that relate directly to the Israelites’ arrival into the Promised Land. The Beatitudes, however, relate directly towards achieving unification with the Divine.

Moreso, the New Law is superior to the Old Law through the means by which it induces men to observe its precepts. The Old Law, according to Thomas, induced men to act in this way or that way by “fear of [temporal] punishment.”[48] The external means of enforcement of the Old Laws leads Thomas to characterize the Old Law as a means of “show[ing] forth the precepts of the natural law,”[49] and consequently the human law. In other words, the Old Law delineated more perfectly and clearly the precepts of the natural law, while the New Law introduced things “into our hearts by the grace of Christ,”[50] that the natural law could not even coherently grasp. Consequently, the Old Law is incomplete without the New Law, as existing singularly, it can only take cognizance of natural or positive matters, i.e moral, judicial, or ceremonial percepts.[51]

Of these precepts of the Old Law, only the moral precepts remain binding after the advent of the New Law. The other two precepts, namely the judicial and ceremonial, do not remain binding, as for Thomas, they are “determinations of the justice to be maintained among men.”[52] In other words, they are positive laws, which possess the same definition of ordinances as offered by Gratian in the Concordantia. Gratian says, “an ordinance, then, shall be proper, just, possible, in accord with nature, in accord with the custom of the country, suitable to the place and time, necessary, useful, [and] clear.”[53]

3. ON THE RELATION OF THE DIVINE LAW TO THE HUMAN LAW

A. On the Relation Generally Considered

Evidently then, the both twofold expressions of the divine law relate to the human law, and consequently the natural law. Both divisions of the divine law surpass the human law in the four ways enumerated by Aquinas, namely in ends, judgement, legislation, and punishment. The relation between the divine law and the human law, however, are best illustrated by considering the the supreme end of man, which ultimately encompasses the other three categories in which the divine law excels. As a brief note, any deficiency in human laws in relation to beatitude is consequent of any deficiency in natural law in the same respect, for if human laws are nothing but positive determinations or conclusions of the natural law, they necessarily cannot take clear cognizance of principles higher than the highest principle of the natural law. In order to understand this, consider an analogy offered by Thomas in the De regimine principum. The Common Doctor says that “to exercise governance is to lead that, over which governance is exercised, suitably to its proper end,”[54] This proper end, of course is, the Divine Vision. Thomas then offers his analogy, saying:

Governance is said to be exercised over a ship when the industry of the sailor conducts it unharmed on a correct route to the port. If therefore, something is ordained to an end beyond itself, as a ship to a port, it pertains to the office of governance not only to preserve the thing safe in itself, but also to conduct it to its end. If there is something whose end is not beyond itself, the intention of the governor should be directed solely to preserve that thing in its perfection.[55]

To lay out Thomas’ analogy more plainly, consider that the maintenance of the ship relates towards human laws ordained to a distinctly natural end, which would be the maintenance of the polity through living well (eu zen). However, the maintenance of the ship is not done merely to maintain the ship so that it may be adored in its port of departure, rather, it is maintained in order for it to reach its final destination. Thus, the political community legislates and acts in the same way in regards to the supreme end. That is to say, the political community cultivates a natural end, or rather proximate end of virtue with beatitude in mind in order to reach the supernatural or ultimate end. This analogy is further affirmed by Thomas, who says that “if human beings were not ordained to another, external end [besides virtue], the responsibilities just mentioned [simply maintaining the ship] would be enough for them.”[56] However, men are ordained towards a “certain good extrinsic to human beings.”[57] Citing the Jurist, Ulpian, Thomas notes that the “end of law is to be useful to man,”[58] insofar as usefulness is considered in relation to an end.  If law is to be useful to man, especially in light of the revelation of sacred precepts through the twofold expression of the divine law, then it must meet three conditions first laid out by Isidore of Seville. Namely, human laws must be “consistent with the Divine law; conducive to discipline. Inasmuch as it is consistent with the law of nature; and that it be productive to welfare, inasmuch as it is consistent with the advantage of mankind.”[59]  Thus, if a legislator of human laws has an eye for this “true good, which is the common good regulated according to Divine justice, it follows that the effect of his [human and positive] law is to make men good absolutely.”[60] In other words, the sovereign must see to it that human laws are in concordance with the divine law, and therefore aim men towards Goodness Itself.

However, while “human government is derived from the Divine government, and ought to imitate it,”[61] matters pertaining to the divine are not within the cognizance of human legislators of natural communities. Rather, Thomas asserts that an authority exists separate and distinct from the natural political authority to ensure the correct transmission of divine precepts. Thomas thus says:

So that spiritual things might be distinguished from earthly things, the ministry of this [divine] kingdom was committed not to earthly kings, but to priests, and especially the highest priest, the successor of Peter, the Vicar of Christ, the Roman Pontiff, to whom it is necessary that all kings of the Christian people be subject, just as to the Lord Jesus Christ Himself. For those responsible for antecedent ends should be subject to and directed by the command of him with responsibility for the final end.[62]

In other words, the natural authority of the human legislator ought to be subject to the divine authority of the Supreme Pontiff, who due to the nature of his office, is inherently most intimate with the divine truths and therefore responsible for their dissemination and adherence throughout the world. Put simply, Aquinas asserts that the Church exists as a superior over the natural institution of the political community and is responsible for ensuring that human legislators see to that their human and positive laws are in concordance with the divine law. Therefore, human legislators are subject to priestly legislators.

 Moreso, Thomas notes that the Church assumes the care of spiritual matters due to the reception of authority immediately and directly from the Son, thereby making the Church an institution resulting from the promulgation of the New Law, and not the Old Law. Recall that Thomas says that the contents of the New Law are contained in the Old Law as “as an effect in its cause, or as the complement in that which is incomplete; thus a genus contains its species, and a seed contains the whole tree, virtually.”[63] To paraphrase, the Church or any of the other precepts of the New Law were not actually present in the Old Law, they were present virtually, as unactualized potentials. However, with the coming of Christ, who “fulfilled the precepts of the Old Law both in His works and in His doctrine,”[64] both the Church and other efficacious aspects of the New Law were realized. Thus, the “the grace of the Holy Ghost [is] bestowed inwardly,”[65] via the New Law, particularly through the Sacraments which the Church brings to men.

B. On the Significance of the Old Law in Christendom

It therefore seems that in light of the advent of the Savior and the establishment of the New Law, with its justifying precepts and efficacious channels of grace through Christ and His Church, the Old Law’s usefulness, especially in relation to the political community is significantly dwindled. What worth is the Old Law when the Church possesses the right and duty to direct kings to carry out their own respective duty to legislate for the ultimate good? Thomas is clear that the Old Law is fulfilled by the New Law, however, he emphatically states that the moral precepts of the Old Law remain. In fact, it is necessary that these precepts remain, for in existing in conjunction with the New Law, they serve an important purpose. Consider that the Common Doctor says that in regards to “human affections and human actions… the New Law does not justify,”[66] or take cognizance. That is, since the New Law directs internal actions, it does not bind us to do or avoid certain things, except such as are of themselves necessary or opposed to salvation, and come under the prescription or prohibition of the law.”[67] Aside from establishing divine ordinance in this regard, Thomas is clear that the New Law “had no other external works to determine, by prescribing or forbidding, except the sacraments.”[68]

Since the New Law directs internal action, while the Old Law directs external action, yet both are part of a single and coherent divine law, and the divine law is necessarily perfective of human law, the Old Law continues to play a preeminent role in appraising and directing human action and legislation. Namely, it does this through its moral precepts, which are the only precepts that remain universally binding, as previously established. The moral precepts, according to Thomas, “are about matters which concern good morals,”[69] that is to say, living and acting well. Thus, good morals are something pertaining to right reason, so as previously mentioned, the moral precepts of the Old Law “belong to the law of nature absolutely.”[70]

Readily, Thomas affirms that natural law and human law fail to sufficiently legislate against certain kinds of action or deliver good judgement. As Randall Smith says, “Thomas makes clear that if man were left to his natural powers, he would, by these powers alone, not be very happy at all.”[71] Thus, if the Old Law contains the precepts of the natural law, yet is still insufficient for grasping the totality of divine truth, consider that the Old Law simultaneously emphasizes the failings of human legislation as indicated in quaestio 91 and corrects the failings of human legislation by making natural law precepts absolutely clear. It does not, as has been emphatically stated, reveal ultimate truths pertaining to the supreme end, such as the single and undivided Trinity, which is necessary to believe in order to have union with the Divine Nature. The Old Law’s moral precepts, as Smith says “articulate in a written way what the natural law expresses in an unwritten way.”[72] Thus, the divine communication of the natural law in written form is more eminent than the natural law expressed in an unwritten form, whose secondary and tertiary principles are not necessarily self-evident to all men. Consider that things are self-evident in two respects according to the Common Doctor—either in themselves or relatively by way of wisdom[73]— and neither way is particularly accessible to most men, especially legislators. Thomas also asserts the supremacy of written law over the discretion of judges in matters of appraisal and direction of action,[74] however affirms that judges can perceive matters of fact in ways that law cannot. Nevertheless, the lucid and written form of the Old Law’s natural precepts leave no room for dissension, confoundation, nor error in appraising the species of actions or directing the commission or omission of actions. Furthermore, this affirmed by Master Gratian, who says, “natural law is what is contained in the Law and the Gospel.”[75] That is to say, the Old Law and New Law are not parasitic to the natural law, rather in them the natural law absolutely exists. It is important to make the distinction that while the Old Law is natural law, it is first and foremost divine law by merit of its cause.

Moreso, Thomas believes that the Old Law was communicated to man at an ideal time in history. He notes that during this time, “the natural law began to be obscured on account of the exuberance of sin: for it was fitting that this help should be bestowed on men in an orderly manner,”[76] For instance, idolatry was rampant amongst the Jews and other people, and the metaphysical theology subsisting in man’s natural reason can sufficiently articulate that divinity does not exist in created, corporeal, or moveable things. Nevertheless, the Israelites often failed and adored gold idols, believing divinity to exist within the very confines of corruptible metals.

The necessity of this assistance by Old Law remains today, primarily because even with the advent of Christ, men can still fall into habitual sin which blinds their reason with false notions of good. Smith recalls the Common Doctor’s own words, who says, “we must consider human nature as it exists in us now, corrupted due to original sin (corrupta in nobis post peccatum primi parentis).”[77] As man exists now, man existed in the time of Moses and the prophets, therefore the moral precepts of the Old Law remain and affect human legislation and action in the same way as they did then. Plainly and succinctly, Thomas asserts that “The Old Law is said to be “for ever” simply and absolutely, as regards its moral precepts.”[78]  More specifically, the Old Law– not the New Law– is that aspect of the Divine Law that corrects and defines certain human actions, as previously established. In this lies the Old Law’s usefulness in ethics and politics. As Smith says, the Old Law “given to man as a salutary aid in light of his fallen state, then we should be able to use the moral precepts of the Old Law as an authoritative guide to the content of the natural law.”[79]

To put it very simply, the divine law and the natural law– and by extension the human law– all derive from God. However, the divine law derives from the Godhead immediately in terms of causation, for God communicated the Old Law directly through Moses and the prophets, and the New Law through the Incarnate Son Himself. The natural law, however, derives from God by way of human reason, and therefore is less perfect, for whatever is closer to a cause is more eminent than things further from a cause. Thus, the divine law is perfective of the natural law, and by extension of the human law, as it gives man certainty pertaining to his end, actions, judgement, punishment, appraisal, and direction. Both aspects of the divine law maintain a contemporary purpose. The Old Law’s moral precepts are the divine source for appraisal and direction of external action, while the New Law is the divine source for appraisal and direction of internal action. Thus, in ethics and politics after the time of Moses and after the fulfillment of the Old Law by Christ, the Old Law’s moral imperatives remain in force, especially for political society. In regards to human action, the Old Law is the most perfect communication of the precepts of the Eternal Law, and thus the natural law, in regards to external behavior of rational animals. Thus, it assumes a position of eminence in political society.

  1. CONCLUDING REMARKS

The coherent legal theory posited by St. Thomas Aquinas, as demonstrated above, is expansive, touching upon natural and supernatural precepts. Thomas’ theory can best be understood through his four classifications of law, namely eternal law, human law, natural law, and divine law. The Common Doctor posits that the eternal law is nothing but the divine governance of the entire universe by the Godhead Itself, who is Infinite Wisdom. However, because of man’s corrupt state and hampered reason, which is severely disabled by sin and disturbed concupiscence, man is unable to ascertain clearly the eternal law. However, the rational creature participates in the eternal law by way of the natural law, which is synonymous with natural instinct. The natural law contains primary, secondary, and tertiary precepts present in natural reason, however, not all precepts are lucid enough for particular situations, nor are they self-evident. Thus man posits human law, which is the practical application of the natural law through determination or conclusion. However, because of man’s sinfulness and proclivity for error in judgement and legislation, the human law remains insufficient in certain respects. External to the natural law and human law, however is the divine law, which consists of the Old Law and the New Law. The Old Law consists of those moral, ceremonial, and judicial precepts communicated from God to man as recorded in the Old Testament. The New Law consists of those precepts relating to grace and sanctification as communicated by Christ in his acts and deeds recorded in the New Testament. The divine law, because of its eminent origin and object, which is God, is the most exalted type of law intelligible to men. Thus, it is perfective to natural and human law in terms of assisting man in reaching his ultimate end, which is eternal blessedness. The Old Law, with the coming of Christ, now only directs in moral precepts, and thus gives absolute clarity to external action. Further, the Old Law clarifies absolutely what is contained in the natural law, but was previously difficult– but possible– to comprehend due to sin. The New Law gives directions in sanctification. Since both are perfective of the natural and human law, they must be adhered to by the legislator of the political community. Since the legislator of the political community is primarily concerned with external action, while the priestly legislator of the Church is concerned with internal action and belief, the Old Law’s moral precepts are of utmost importance to the political community and ethical life.

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Gratian, Concordantia discordantium canonum: The Treatise on Laws (Decretum DD. 1-20), with Ordinary Gloss. Translated by Augustine Thompson and James Gordley. Washington, D.C: Catholic University of America Press, 1993.

Ptolemy of Lucca (Lucensis), Thomas Aquinas. On the Government of Rulers: De regimine principum. Translated by James M. Blythe. Philadelphia, PA: University of Pennsylvania Press, 1997.

Smith, Randall. “What the Old Law Reveals About the Natural Law According to Thomas Aquinas.” The Thomist: A Speculative Quarterly Review 75, no. 1 (2011): 95-138. doi:10.1353/tho.2011.0003.


[1] Thomas Aquinas, Summa theologiae IaIIae Q. 90, a.1, respondeo dicendum quod.

[2] Summa theologiae IaIIae, Q.90, a.1, respondeo.

[3] Summa theologiae IaIIae, Q.91, a.1 respondeo. Latin original insertion mine.

[4] Summa theologiae IaIIae, Q. 93, a.3 respondeo

[5] Summa theologiae IaIIae, Q. 91, a.2 respondeo

[6] Summa theologiae IaIIae, Q.95, a.2 respondeo

[7] Summa theologiae, IaIIae, Q. 91, a.4, ad secundum.

[8] Summa theologiae, IaIIae, Q.91, a.5, respondeo. “This good may be twofold. It may be a sensible and earthly good; and to this, man was directly ordained by the Old Law: wherefore, at the very outset of the law, the people were invited to the earthly kingdom of the Chananaeans (Exodus 3:8-17). Again it may be an intelligible and heavenly good: and to this, man is ordained by the New Law. Wherefore, at the very beginning of His preaching, Christ invited men to the kingdom of heaven, saying (Matthew 4:17): “Do penance, for the kingdom of heaven is at hand.”

[9] Summa theologiae, IaIIae, Q.97, a.3, ad primum.

[10] Summa theologiae, IaIIae, Q. 107, a.2, ad primum.

[11] Summa theologiae, IIaIIae, Q. 10, a.11, respondeo

[12] Thomas Aquinas, Scripta super libros sententiarum II, Dist. 44, Q 2, a.3.

[13] Summa theologiae, IaIIae, Q. 91, a.3, respondeo.

[14] Summa theologiae, IaIIae, Q. 93, a.1, respondeo.

[15] Summa theologiae, IaIIae, Q. 93, a.4, respondeo

[16] Summa theologiae, IaIIae, Q.93, a.6, respondeo.

[17] Thomas Aquinas, Summa theologiae, IaIIae, Q. 93, a. 3, respondeo.

[18] Thomas Aquinas, Quaestiones disputationes de malo, Q. 4, a.1, respondeo.

[19]  Thomas Aquinas, Summa theologiae, IaIIae, Q. 92, a. 3, respondeo

[20] Thomas Aquinas, Summa theologiae, IaIIae, Q. 93, a.1, ad secundum

[21]  Thomas Aquinas, Summa theologiae, IaIIae, Q. 94, a. 2, respondeo.

[22] Thomas Aquinas, Summa theologiae, IaIIae, Q. 94, a.1, respondeo.

[23] Gratian, Concordantia discordantium canonum, trans. Augustine Thompson and James Gordley. (Washington, D.C: Catholic University of America Press, 1993).Dist I, C.7, sec. 2.

[24] Thomas Aquinas, Summa theologiae, IaIIae, Q. 94, a.2, respondeo.

[25] Thomas Aquinas, Summa theologiae, IaIIae, Q. 94, a.2, respondeo.

[26] Thomas Aquinas, Summa theologiae, IaIIae, Q.94, a.3, respondeo

[27] Thomas Aquinas, Summa theologiae, IaIIae, Q.94, a.3, respondeo.

[28]  Thomas Aquinas, Summa theologiae, IaIIae, Q. 95, a.1, respondeo

[29] Thomas Aquinas, Summa theologiae, IaIIae, Q. 95, a. 1, respondeo

[30] Thomas Aquinas, Summa theologiae, IaIIae, Q. 95, a. 1. respondeo

[31] Thomas Aquinas, Summa theologiae, IaIIae, Q.95, a.2, respondeo.

[32]Thomas Aquinas,  Summa theologiae, IaIIae, Q. 95, a.2, respondeo.

[33]Thomas Aquinas,  Summa theologiae, IaIIae, Q.9 96, a.4, respondeo

[34]Thomas Aquinas,  Summa theologiae, IaIIae, Q.95, a. 2, respondeo. Latin inserts mine.

[35]Thomas Aquinas,  Summa theologiae, IaIIae, Q. 95, a. 2, respondeo.

[36]Thomas Aquinas,  Summa theologiae, IaIIae, Q. 96, a.1, respondeo.

[37] Thomas Aquinas, Sententiae libri politicorum. Trans. Ernest L. Fortin and Peter D. O’Neill. Dominican House of Studies. , Lib. I, 1.10

[38] Ptolemy of Lucca (Lucensis) and Thomas Aquinas, On the Government of Rulers: De regimine principum, trans. James M. Blythe. (Philadelphia, PA: University of Pennsylvania Press, 1997), 99.

[39] Thomas Aquinas, De regimine principum, 99.

[40]Thomas Aquinas,  Summa theologiae, IaIIae Q.96, a.2, ad tertium.

[41]Thomas Aquinas, Summa theologiae, IaIIae, Q.91, a.4, respondeo

[42]Thomas Aquinas,  Summa theologiae, IaIIae, Q. 91, a.4, respondeo

[43]Thomas Aquinas, Summa theologiae, IaIIae, Q. 91, a.4, respondeo.

[44]Thomas Aquinas, Summa theologiae, IaIIae, Q.91, a.4, respondeo.

[45]Thomas Aquinas,  Summa theologiae, IaIIae, Q.91, a.4, respondeo.

[46]Thomas Aquinas,  Summa theologiae, IaIIae, Q. 91, a. 5, respondeo.

[47]Thomas Aquinas, Summa theologiae, IaIIae, Q.91, a.5, respondeo, “This good may be twofold. It may be a sensible and earthly good; and to this, man was directly ordained by the Old Law: wherefore, at the very outset of the law, the people were invited to the earthly kingdom of the Chananaeans (Ex. 3:8,17). Again it may be an intelligible and heavenly good: and to this, man is ordained by the New Law. Wherefore, at the very beginning of His preaching, Christ invited men to the kingdom of heaven, saying (Mt. 4:17): “Do penance, for the kingdom of heaven is at hand.”

[48]Thomas Aquinas, Summa theologiae, IaIIae, Q.91, a.5, respondeo.

[49]Thomas Aquinas Summa theologiae, IaIIae, Q.98, a.5, respondeo.

[50]Thomas Aquinas, Summa theologiae, IaIIae, Q.91, a.5, respondeo.

[51] Randall Smith, “What the Old Law Reveals About the Natural Law According to Thomas Aquinas,” The Thomist: A Speculative Quarterly Review 75, no.1 (2011): 105. “Thomas distinguishes three basic types of precept that make up the Old Law: moral precepts (moralia), ceremonial precepts (cæremonialia), and judicial precepts (judicialia). It is only the first of these, the moral precepts, that relates directly to the natural law. The latter two, the ceremonial and judicial precepts, are essentially positive law precepts given by God to the Jewish people to deal with their particular needs during the historical circumstances of the Old Testament period. Though related to the natural law, they represent more specific “determinations” of the natural law.

[52]Thomas Aquinas,  Summa theologiae, IaIIae, Q. 99, a.4, respondeo.

[53] Gratian, Concordantia, Dist. IV, C.2.

[54] Thomas Aquinas, De regimine principum, 99.

[55] Thomas Aquinas, De regimine principum, 97-98.

[56] Thomas Aquinas, De regimine principum, 98.

[57] Thomas Aquinas, De regimine principum, 98

[58] Thomas Aquinas, Summa theologiae, IaIIae, Q.95, a.3, respondeo.

[59]Thomas Aquinas, Summa theologiae, IaIIae, Q.95, a.3, respondeo.

[60]Thomas Aquinas, Summa theologiae, IaIIae, Q.92, a.1, respondeo.

[61]Thomas Aquinas, Summa theologiae, IIaIIae, Q.10, a. 11, respondeo

[62]Thomas Aquinas, De regimine principum, Lib I, 15.10, p.100.

[63]Thomas Aquinas, Summa theologiae, IaIIae, Q. 107, a.3, respondeo.

[64]Thomas Aquinas, Summa theologiae, IaIIae, Q. 107, a.2, respondeo.

[65]Thomas Aquinas, Summa theologiae, IaIIae, Q. 106, a.2, respondeo.

[66]Thomas Aquinas, Summa theologiae, IaIIae Q. 106, a.2, respondeo

[67]Thomas Aquinas, Summa theologiae, IaIIae, Q. 108, a.1, ad secundum.

[68]Thomas Aquinas, Summa theologiae, IaIIae, Q.108, a.2, respondeo.

[69]Thomas Aquinas Summa theologiae, IaIIae, Q. 100, a.1, respondeo.

[70]Thomas Aquinas, Summa theologiae IaIIae, Q. 100, a.2, respondeo.

[71] Smith, “Old Law”, 120.

[72] Smith, “Old Law”, 107.

[73] Thomas Aquinas, Summa theologiae, IaIIae, Q. 94, a.2, respondeo, “Now a thing is said to be self-evident in two ways: first, in itself; secondly, in relation to us. Any proposition is said to be self-evident in itself, if its predicate is contained in the notion of the subject: although, to one who knows not the definition of the subject, it happens that such a proposition is not self-evident. For instance, this proposition, “Man is a rational being,” is, in its very nature, self-evident, since who says “man,” says “a rational being”: and yet to one who knows not what a man is, this proposition is not self-evident. Hence it is that, as Boethius says (De Hebdom.), certain axioms or propositions are universally self-evident to all; and such are those propositions whose terms are known to all, as, “Every whole is greater than its part,” and, “Things equal to one and the same are equal to one another.” But some propositions are self-evident only to the wise, who understand the meaning of the terms of such propositions: thus to one who understands that an angel is not a body, it is self-evident that an angel is not circumscriptively in a place: but this is not evident to the unlearned, for they cannot grasp it.”

[74]Thomas Aquinas, Summa theologiae, IaIIae, Q. 95, a.1, ad secundum, “

[75] Gratian, Concordantia, Dist. I.

[76]Thomas Aquinas, Summa theologiae, IaIIae, Q.98, a.6, respondeo.

[77] Smith, “Old Law”, 110.

[78] Thomas Aquinas, Summa theologiae, IaIIae, Q. 103, a.3, ad primum.

[79] Smith, “Old Law,” 113.


treatise addresses moral and political topics

Problem at hand: how does the human law relate to divine law? One is the result of the principle of secondary causality and the other comes immediately from the divine

the transmission of the nature of law is like the transmission of human nature. Human nature exists in the first parent, however it is the same in human persons as members of the same body

Not all human acts are described by the natural law with absolute clarity.

human laws exist to restrain men who cannot restrain themselves. if all men could restrain themselves, then the natural law as it exists within the person would be necessary and sufficient for the governance of natural relations,.

divine law makes the species of actions very clear. If the divinity says something is wrong, then it is truly wrong. There can be no contradiction in God’s goodness

human law concerns external actions, but not internal actions. One could retort that internal actions are signified by external actions, but this is still an inferential reading of internal actions by way of external actions. Consider the example of a man taking out an insurance policy on his wife before killing her. A court may say that the taking out of the insurance policy signifies an internal disposition to kill, but the court really has no certain there- they are merely deducing from prior judgements of external act

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