Thomas Aquinas’ Natural Law Theory; A Standard For Human Positive Law

Project and Seminar Material for Philosophy

Thomas Aquinas’ Natural Law Theory; A Standard For Human Positive Law

Table of Contents

  • Title Page
  • Certification
  • Dedication
  • Acknowledgement
  • Table of Content

Chapter One

1.0- General Introduction

  • 1.1- A Brief Profile of Thomas Aquinas
  • 1.2- Purpose of the study
  • 1.3- Statement of the problem
  • 1.4- Scope of work
  • 1.5- Methodology
  • 1.6- Division of work

Chapter Two

2.0- Literature Review

  • 2.1- Plato
  • 2.2- Aristotle
  • 2.3- The Stoics
  • 2.4- Augustine

Chapter Three

3.0- Thomas Aquinas’ Notion of Law

  • 3.1- Law Defined
  • 3.2- Kinds of Law
  • 3.2.1- Eternal Law
  • 3.2.2- Divine Positive Law
  • 3.2.3- Natural Law
  • 3.2.4- Human Positive Law
  • 3.3- Thomas Aquinas’ Natural Law Theory
  • 3.3.1- Natural Law Defined
  • 3.3.2- Knowledge of Natural Law
  • 3.3.3- Universal nature of Natural Law
  • 3.3.4- Immutable nature of Natural Law
  • 3.3.5- Indelible nature of Natural Law
  • 3.3.6- Indispensable nature of Natural Law

Chapter Four

4.0- Natural Law as a Standard for Human Positive Law

  • 4.1- Human Law Defined
  • 4.1.1- Necessity of Human Positive Law
  • 4.1.2- Natural Law vis-à-vis Just and Unjust Human Positive Law
  • 4.1.3- Natural Law and Justification of Civil Disobedience
  • 4.1.4- Morality and Legality of Law Distinguished

Chapter Five

5.0- Evaluation and Conclusion

  • 5.1- Evaluation
  • 5.2- Conclusion
  • Bibliography

Chapter One

General Introduction

The concept of natural law occupies a central position in the moral theory of Thomas Aquinas. Thomas Aquinas’ treatise on natural law is contained in the first part of the second part of his Summa Theologica where he treated Law. To be precise, he dedicated question ninety-four of the said book to it (the natural law). The Ethics of Thomas Aquinas closely followed the eudamonological ethics of Aristotle; Aquinas built upon Aristotle’s theory. Just like Aristotle, Thomas sees morality as a quest for happiness. He argued that happiness is closely connected with a person’s end or purpose. He further maintained that human nature has both its source and ultimate end in God. For Thomas, God who created man provides him with the means of arriving at his end. This means, through which man arrives at his end, is what Thomas calls Natural Law.

For Thomas Aquinas, natural law is that law which the ultimate efficient cause (GOD) infused in man commanding him to do good and avoid evil in order that he (man) may attain his end. Natural law appeals to reason that naturally has the capacity of discovering it. Natural law, Thomas maintains, is based on the rationality of human nature. Thomas holds that the natural law has such properties as: knowability, universality, immutability, indelibility and indispensability.

However, in spite of these properties of the natural law, it still lacks coercion, i.e., the physical force of law. As a result it is not always obeyed by all. To this effect, natural law needs to be supplemented by human positive law. This is due to the differences inherent in human nature. Consequently, human positive law is needed to ensure an ordered society. Human law lucidly defines and coercively guides social interactions among men. Hence, it greatly contributes to the achievement of common good.

It is an indubitable fact that every law should seek to protect the common good of the people. It is also a well-established truth that morality has to do with the good of the people. Consequently, law and morality are always seen as two sides of a coin. Unfortunately, certain human laws are not based on moral standards. That is to say that there are some human laws that do not consider the common good. For instance, certain governments enact tyrannical laws. Some others enact laws that are immoral. In this kind of situation, the purpose of law, which is to ensure common good and happiness, is not realized.

It is in the light of the above that this excursus will examine the nature and properties of Aquinas Natural Law as well as the nature of human positive law. This will lead us into seeing the natural law as the standard with which human positive law is measured. This is because, as has been mentioned earlier that there are some human positive laws that deviate from the principles of the natural law at the expense of morality. In presenting the natural law as the standard for human positive law, I shall discuss such issues as just and unjust human positive laws, the justification of civil disobedience, distinction between morality and legality of law. This is to know to what extent the natural law in Aquinas is the standard of all human positive laws.

1.1 A Brief Profile of Thomas Aquinas

Thomas Aquinas was born in the castle of Roccasecca near Naples at the end of 1224 or the beginning of 1225, his father being the count of Aquino. When he was five, he was placed by his parents in the Benedictine Abbey of Monte Cassino as an oblate. He stayed in the monastery from 1230 to 1239 when the Emperor Frederick II expelled the monks. Thomas returned to his family and stayed for some months and later went to the University of Naples in the autumn of the same year. Later Thomas was attracted to the life of Dominican friars that made him enter the Order in the course of 1244. His joining the Dominican friar was not acceptable to his family, instead they wished him to enter the abbey of Monte Cassino, as a step to ecclesiastical preferment, and it may be as a result of this family opposition that the Dominican General decided to take Thomas with him to Bologna, where he himself was going for a General Chapter from where he would send him to the University of Paris. Thomas was however kidnapped by his brothers and was put in prison at Aquino for about a year. Due to his determination to remain steadfast to his Order he later made his way to Paris in the autumn of 1245.

Thomas was probably at Paris from 1245 until the summer of 1248, when he accompanied St Albert the Great to Cologne, where the later was to find a house of studies (Studium generale) for the Dominican Order, remaining there until 1252. In 1252 Thomas returned from Cologne to Paris and went on with his studies, lecturing in Scriptures as Baccalaureus Biblicus (1252-4) and in Sentences of Peter Lombard as Baccalaurus Sententiarius (1254-6), at the conclusion of which he received his Licentiate, the license or permission to teach in the faculty of theology.

In 1268 Thomas returned to Paris and taught there until 1272, engaging in controversy with the Averroists, and also those who renewed the attack on the religious Orders. In 1272 he was sent to Naples to erect a Dominican studium generale, and he continued his professional activity there until 1274, when Pope Gregory X invited him to Lyons to participate in the council. Unfortunately Thomas could not complete the journey he started as he died on the way on March 7th, 1274 at the Cistercian monastery of Fossanuova, between Naples and Rome. He was forty years old when he died. His life was devoted to study and teaching.

1.2 Purpose of the Study:

Many philosophers of different epochs have philosophized on law and its applicability to the human society. Correspondingly, some of them dealt with the law of nature or the law of reason, which Thomas Aquinas referred to as Natural law. Some of such philosophers include Plato, Aristotle, the Stoics, and St Augustine etc.

However the purpose of this study is to expose and analyze St. Thomas Aquinas’ Natural Law theory. This will take us into viewing natural law as the basis as well as the standard with which human positive law is measured.

1.3 Statement of the Problem:

Law is no doubt viewed in relation with morality. Again every society has one system of law or the other. Yet our society today is witnessing some legal and moral disorder; some laws that are in existence today have no bearing on morality any longer. This makes one to question the link between law and morality. What makes morality to be? Is it the law? If it is the law, then, there is nothing wrong with the decline in morality in some societies. This is because there are a number of issues that are not touched by the law. For instance, in some societies abortion and all forms of unnatural sexual relations are legalized. These are but few instances of unjust laws that are in human society today. Is that to say that morality changes with a change in human law? When do we obey and when do we not obey human law?

Consequently, this work is an attempt to find a solution to the above-mentioned problem. We are therefore hopeful that this exposition and analysis of Aquinas’ Natural law theory will help us appreciate the natural law as a true foundation and standard for human laws. According to Aquinas, every law derives from natural law.

1.4 Scope of Work:

Morality has to do with good living and good living is the objective of law. Unfortunately, certain laws seem to deviate from the purpose of law. For Aquinas, every law must necessarily derive from the natural law for it to be just. And for Augustine, any law that deviates from natural law is no law.

As it were, Aquinas dealt with many philosophical issues, among which is his concept of law. However, this work is not to deal with his concept of law in general but fundamentally on his natural law theory.

This work is to particularize the natural law as a way of providing a yardstick with which human law is measured. This is geared towards finding a panacea for the promulgation of unjust laws, which is caused by deviations of human laws from the principles of the natural law.

1.5 Methodology:

This work is both expository and analytic. It is expository in the sense that it exposes the tenets of Aquinas Natural law theory. On the other hand, it is analytic in that it involves an analysis of the natural law in order to present it as the basis of human law.

1.6 Division of Work:

This excursus is divided into five chapters. Chapter one contains the general introduction, a short profile of Thomas Aquinas, the purpose of the study, the statement of the problem, the scope of work, methodology and division of work. Chapter two presents some philosophers’ view on the natural law. Chapter three dwells on Aquinas notion of law but most especially on his Natural law theory and its properties. Chapter four presents the natural law as the standard for human positive law. Here we talk of the natural law and just and unjust human law, when civil disobedience is justifiable and then the distinction between morality and legality of law all to show that the natural law remains the basis of human positive law come what may. Finally, chapter five recapitulates the entire study by way of evaluation and conclusion.

Chapter Five

Evaluation and Conclusion

5.1 Evaluation

This work has previously treated in an extensive manner the notion of natural law in Thomas Aquinas as well as the features of the natural law. In the immediate past chapter we saw the natural law as the basis and the standard for Human positive law.

As Thomas Aquinas’ Natural law theory is a philosophical discourse, it goes to say that it cannot stand without criticism and applause. Therefore this chapter is apt to present an overall appraisal of Aquinas Natural law by way of evaluation and subsequent conclusion. In the first place, one of the criticisms leveled against Aquinas lies on the theistic nature of his natural law doctrine. This criticism holds that Thomas’ doctrine holds only for believers in God and no one else. Proponents of this criticism often ask the question –how can atheistic philosophers appreciate this theory? Among these critics are the positivists who have no place for the spirits or the transcendental being.
However, the above criticism does not nullify Aquinas doctrine as unphilosophical. This is because often atheists and extreme positivists reject certain realities simply because they cannot be subjected to the principles of scienticism. Hence, that they do not accept Aquinas’ Natural law doctrine does not destroy its argument and philosophical value. Moreover, truth is one irrespective of its point of origin; that one is engaging in philosophizing will not make one not to refer to the ultimate and efficient cause of all things-God. As a matter of fact every philosopher talks from a particular background. Aquinas is no exception; he talks from Christian background. Thomas was a Christian and he believed in God as the maker and the ruler of all things. Thus his theory portrays a Christian belief in the means towards the beatific vision. Therefore his Natural law should not be discredited simply because he did not tour the route of atheistic philosophers like Aristotle for whom God is an indifferent, disinterested and unconcerned final cause. Aquinas linked his Natural law doctrine with the providential nature of God who directs all beings to their proper end.

On another note, Thomas has been criticized based on the phenomenon of change. Most philosophers are of the view that nothing abides. For Heraclitus, every thing is in a state of flux. Critics of the Natural law on the ground of changing world hold that there were in the past certain scientific theories that were held as truth but which are no longer so today. To this effect, natural law they say should follow the trend of change. Hence they criticize and reject the unchanging principle of the natural law. But Thomas presented the natural law as immutable. These critics dismissed the immutability of the natural law as a mere subjectivism. In line with this criticism the 18th century philosopher, Thomas Hobbes saw the natural law as man’s guide when he was still inferior to nature in his primitive days. But now man has conquered nature and so the natural law should no longer apply to man. This is because certain long-standing traditions often collapse as man discovers his error.

In as much as it holds true that the phenomenon of change exists, it nevertheless does not result in the destructibility of the immutability of Aquinas’s Natural law. The immutability of Aquinas natural law is rooted in the immutability of human nature. As a matter of fact, one can say that those critics do not understand human nature in Aquinas view. Human nature in Aquinas theory is neither the mythical and mysterious nature of the primitives nor the sciento-technological nature of the modern man. It is rather the authentic human nature as a rational animal.

Again, the most important and indeed the strongest opposition raised against the natural law came from the legal positivists. They defend the autonomy and self-sufficiency of positive human law. Consequently, they reject the natural law as a higher law to which human positive law is subordinate. They outrightly maintain that human positive law is the only law that exists, no more no less. Outstanding members of legal positivism include: Jeremy Bentham, John Austine, Hans Kelsen and H. L. A. Hart. The funny thing about them is that some of them claim to give us account of law without any reference to the natural law. But at long last they had recourse to the natural law even though they did not call it natural law .For instance, Helsen and Hart hold that law is essentially a system of rules in which one law derives its legal validity from another within the same legal system. Then the entire legal system itself derives its validity from the basic norm or the grand norm that is outside the legal system itself. Therefore they could not actually do without referring to the natural law; they introduced the natural law in disguise.

The futile effort of the legal positivists to deny the existence of the natural law is an indication of the indestructibility of the natural law. As a matter of fact, most of human inventions are imitations of nature. Art for instance is an imitation of nature and artifacts are imitations of natural things. Nature is always the model which man tries to imitate. In a similar vein, human positive law is an imitation of nature; it is an imitation of the ideal, namely, the natural law. Moreover, the denial of the natural law by the legal positivists is unfounded. This is because we often commend certain things as good because they are natural and condemn certain things as bad because they are unnatural. For instance, we commend marriage between opposite sex as good because it is natural and at the same time we frown at same sex marriage because it is not natural. This implies that nature intends man to act in a certain way. This idea that nature intends man to act in a certain way and to refrain from certain things constitutes the ground and the origin of the natural law. Therefore, the denial of the existence of the natural law by the legal positivists is outrightly unfounded.

Another notable criticism of Aquinas’ natural law theory is based on ambiguity. It is believed that this particular problem is rooted in the Roman distortion of Greek analysis; the Greek ‘ius,’ meaning right was translated into ‘lex’ meaning law. Aristotle spoke of this ‘ius’, but he did not speak of natural law but natural right and justice. St Thomas Aquinas, unlike Aristotle, called his ‘natural law’. This is the genesis of the confusion. Hence this group of critics hold that what Thomas meant by natural law is law exactly in the understanding of human law. They therefore criticize Thomas on the ground of ambiguity.

Be that as it may, the so-called ambiguity does not suffice to dismantle a well-established natural law theory by Thomas. We cannot reject the natural law theory simply because Thomas deviated from Aristotle. While it is true that Thomas is Aristotelian in his philosophy we have to note that the context in which he philosophized is different from Aristotle’s. The background in and from which both of them philosophized is different and so it is possible that that have affected their natural right and the natural law respectively. Again, because Thomas’ natural law is theistically founded, he is not to be judged on the same parlance with Aristotle.

At long last, in spite of the criticisms leveled against Aquinas’ natural law, he still has many points to his credit. In the first place natural inclination and teleology occupy the central position in Aquinas natural law. This is a huge credit to Thomas because from experience we see that man is inclined to act in some ways without hesitation. Man does those things because he is naturally inclined to doing them. Examples include begetting children, self-preservation and others.

Another point of credit to Thomas is the indestructibility of the first principles of the natural law. That good is to be done and evil avoided can hardly be disproved or doubted. This is the primary principle of the natural law that serves as the basis of human positive law.

5.2 Conclusion:

We have succeeded from the foregoing in presenting Thomas Aquinas’ natural law as a universal natural precept intended by nature to regulate human conduct. Natural law does this by enjoining man to do good and avoid evil. This is the primordial law as well as the foundation of all laws. This natural law, because it comes from nature, becomes the ideal law and the source of all laws. As the ideal law, natural law is the standard to which all human positive laws must conform for them to have validity. Therefore any human positive law that does not conform to the natural law is ipso facto devoid of binding force.

It is worthy of note that conventionalism of human law should not be denied; nevertheless we should not forget that it is rooted in the natural law. Even though human law emphasizes the notion of right and justice, it cannot be adequately regarded as its source. Human law discovers them just as the natural sciences discover the physical laws. What human law does is to apply the principles of the natural law to concrete situations. According to Aquinas, human law is more meaningful when it aligns with the natural law. Human law when denied of its foundation (natural law) becomes empty words, arbitrary and not leading to virtue.

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