Holy Apostles College & Seminary Polis Perfected: The Natural Law Foundation for Human Law by Dwight R. Stanislaw Dr. Jon Kirwan PHE 775: Political Philosophy December 8, 2017 Introduction Classical political philosophy, particularly as developed and refined by Thomas Aquinas and subsequent Thomists working within a Natural Law framework, holds that among the many things man is, he is by nature a political animal and thus ordered to the kind of association as embodied by the Polis or City-State. In addition to this, there exists a tripartite hierarchy where each division of the law—namely, the human law, the natural law, and the eternal law—is dependent on and ultimately derived from the one prior in a hierarchical structure. The focus of this paper will be on providing a working distinction between the natural law and the human law, the interrelation between the two, and the dependency of the latter on the former as it concerns a properly-ordered and ideal City-State. I. Natural Law In his Treatise on Law found within the Summa Theologiae (I-II, Questions 90-108), Thomas Aquinas writes the following: “Law is a rule and measure of acts, whereby man is induced to act or is restrained from acting…Now the rule and measure of human acts is the reason, which is the first principle of human acts….” 1. Thomas Aquinas, Summa Theologiae, I-II, q. 90, a. 1, trans. Fathers of the English Dominican Province (1947), at Dominican House of Studies (4 December 2017), at http://dhspriory.org/thomas/english/summa. Thus, for Aquinas, it is from reason whereby we act, and by reason that we understand and establish the law as a rule and measure of those acts. Given that all activities are performed for the sake of an end, it is this end of man that furnishes the content of the natural law which, according to Aquinas, “…is nothing else than the rational creature's participation of the eternal law.” 2. ST, I-II, q. 91, a. 2, trans. English Dominican Province. In order to gain proper footing as regards the natural law, it is important to articulate precisely what this end is and how it is understood by Aquinas. When Aquinas speaks of man’s end he does so by highlighting the fact that our end is twofold. God, as the uncreated and ultimate good, is that which alone can completely satisfy man’s will and perfect his desire, and is therefore his final end simpliciter. In addition to this, man’s final end is happiness, i.e. his end considered in its attainment. To this, Aquinas writes, “Happiness is said to be the last end, in the same way as the attainment of the end is called the end.” 3. ST, I-II, q. 3, a. 1, ad. 3, trans. English Dominican Province. Providing further commentary on this qualified end of happiness, Fagothey notes, “Relatively perfect happiness is completely satisfying to a creature according to that creature’s finite capacity.” 4. Austin Fagothey, Right and Reason: Ethics in Theory and Practice, 2nd ed. (Charlotte, NC: TAN Books, 2000), 46. As Aquinas is careful to observe, happiness is bound to the universal good, and this in turn bound to man’s will: “…happiness is the perfect good, which lulls the appetite altogether; else it would not be the last end, if something yet remained to be desired. Now the object of the will, i.e. of man's appetite, is the universal good…Hence it is evident that naught can lull man's will, save the universal good.” 5. ST, I-II, q. 2, a. 8, trans. English Dominican Province. Keeping in focus Aquinas’s comments about the law, viz. the primacy of reason in our own acts and in establishing law as a rule and measure of human acts generally, and with a clear understanding of man’s final end as happiness found in the attainment of the good of the person in his human nature, the next step is to present and articulate a clear view of the natural law. Recalling that, for Aquinas, the natural law is participation by the rational creature in the eternal law, Fagothey once again provides helpful elucidation to this concise definition: We call it the natural law because it is grounded in nature itself, and manifests itself through the nature or essence or constitution of things…the part of the natural law governing rational creatures in the natural [is called] moral law…on his moral side, by his knowledge of the moral law and his freedom in applying it to his human acts, man becomes partaker in his own governance. 6. Fagothey, Right and Reason, 172. It is clear, then, that the natural law 7. As Fagothey notes, “Because the natural moral law participates more fully in the eternal law than does the natural physical law, it has become customary to use the terms natural law and moral law interchangeably” (Right and Reason, 173). As such, the author’s use of natural law reflects this customary usage and thus refers to the rational creature’s participation in the eternal law. with respect to human persons is grounded in the nature of man qua man, and this universally the case transcending every historical-cultural context in which man has found himself. McInerny confirms as much and writes, The precepts of natural law are general directives to the ultimate end, the most general one pointing to the human good in all its amplitude, other very general ones aiming at constituents of the human good. It is because recognition of the ultimate end is implicit in every human action that Thomas can hold that natural law is valid for all men at all times. 8. Ralph McInerny, Ethica Thomistica: The Moral Philosophy of Thomas Aquinas (Washington, D.C.: The Catholic University of America Press, 1997), 47. As far as the precepts of the natural law are concerned, Aquinas is clear that there is one upon which all the others depend and from which they are derived: “Hence this is the first precept of law, that ‘good is to be done and pursued, and evil is to be avoided.’ All other precepts of the natural law are based upon this….” 9. ST, I-II, q. 94, a. 2, trans. English Dominican Province. Given that the natural law is all-encompassing in scope and that there is a singular, universal precept serving as its foundation and first principle, we must be careful not to think of the natural law as either an innate moral rulebook or a static abstraction without application in practical ethics. If we return to Aquinas’s insistence on the role of reason in the law generally, and specifically as regards the natural law, it is clear that it is because of man’s rational faculties in conjunction with his possession of a common nature—that is, as mentioned previously, a nature that is common among all men—that the natural law is itself discoverable and thus able to be apprehended immediately and subsequently elucidated by thorough speculative and practical analysis. Fagothey comments, Man’s nature is a rational nature, and he finds the natural law by the use of his reason in drawing conclusions about his own nature…he is equipped by his nature with faculties for forming such judgments, has a natural tendency to use these faculties, and his own nature is the object from which he draws his moral ideas and concerning which he frames his moral judgments. 10. Fagothey, Right and Reason, 174. The upshot here, then, is that while the natural law is itself the foundation and skeletal structure concerning man’s practical reasoning as regards ethics, there exists a potentially infinite number of ways in which the individual man in his historical-cultural context may work towards the attainment of happiness—becoming a good man and good citizen as he does—in the concrete in accordance with it, thus perfecting and fulfilling his nature through a wide variety of means. The recognition of this fact is brought to light by McInerny who, commenting on moral absolutes, says, “The discussion of man’s ultimate end and the development of natural law precepts gives us a sense of the human moral ideal. It is this ideal that provides criteria for deciding when precepts are absolute and when they are not.” 11. McInerny, Ethica Thomistica, 47. In considering precepts which are indeed absolute and always preventative of actions inimical to the good of man—actions such as murdering, stealing, or coveting another man’s wife—namely negative precepts, McInerny writes, “…such actions always and everywhere thwart the human ideal. There is no way that you can murder well, steal well, commit adultery well—except metaphorically.” 12. McInerny, Ethica Thomistica, 47. Negative precepts, of course, are accompanied by positive precepts, and these have a more open and less restrictive nature to them. McInerny is once again helpful: “Be temperate. Be just. Be generous. Such positive precepts call us to the ideal, but they do not specify or necessitate particular ways of being temperate or just or generous. This absence of specificity may seem to be a defect, but it is rather the liberating aspect of the moral ideal.” 13. McInerny, Ethica Thomistica, 47-48. Having a firm grasp on natural law, its ultimate principle, and the general notion of negative and positive precepts that follow therefrom, let us proceed to an examination of the human law as articulated by Aquinas. II. Human Law Returning to his Treatise on Law, Aquinas writes thusly about the human condition and necessity of law: “…man has a natural aptitude for virtue; but the perfection of virtue must be acquired by man by means of some kind of training.” 14. ST, I-II, q. 95, a. 1, trans. English Dominican Province. It is clear that, while it is goodness and happiness which is man’s final end, the utilization of reason by which man directs himself to this end through various means is often disordered or defective in a way which hinders his perfection and leads instead to immoral acts and a vicious disposition, and all in opposition to the natural law. On this very issue, Feser offers the following commentary: For a variety of reasons—ignorance, stubbornness, irrationality, peer pressure, addiction, habituated vice, genetic defect, mental illness, and so on—people sometimes do not want what is in fact good for them, and even want what is not good for them, their natural desire for the good being oriented away from its proper object…Subjective feelings that would incline us to act contrary to our nature must themselves be judged defective, something we have a moral duty to strive against and try to overcome. 15. Edward Feser, “Classical Natural Law Theory, Property Rights, and Taxation,” in Neo-Scholastic Essays, ed. Edward Feser (South Bend, IN: St. Augustine’s Press, 2015), 335. What emerges from experience—and this by the experiences we have of our own actions and those of others—is that there exists a need for man to be aided and trained in his pursuit of actual goods so as to conform his acts to the perfection of his nature, begin movement towards virtue, and obtain peace both individually and collectively, all in accordance with natural law, and with this we see the necessity of human law as a rule and measure of such acts. In response to the question of whether or not every human law is derived from the natural law, Aquinas notes, Now in human affairs a thing is said to be just, from being right, according to the rule of reason. But the first rule of reason is the law of nature…Consequently every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law. 16. ST, I-II, q. 95, a. 2, trans. English Dominican Province. Thus, a human law is a true representation of law only insofar as it is derived from the natural law, and should it defect from this grounding it then ceases to be a true representation of the law and ends up a perversion thereof. Indeed, Aquinas quotes Augustine, “’…that which is not just seems to be no law at all,’” and comments, “…wherefore the force of a law depends on the extent of its justice.” 17. ST, I-II, q. 95, a. 2, trans. English Dominican Province. To the extent that human laws legislated and enacted approximate the good of man as such, and to the extent that they are just, they therefore provide the requisite training for man mentioned previously and also obligate the individual in their conformity to them. When Aquinas poses the next question as regards positive law, viz. “Laws promulgated by some external sign of enactment,” 18. Fagothey, Right and Reason, 167. he is careful to illuminate, as with the natural law, its teleological or goal-oriented nature and explains thusly: Now the end of human law is to be useful to man…Wherefore Isidore in determining the nature of law, lays down, at first, three conditions; viz. that it "foster religion," inasmuch as it is proportionate to the Divine law; that it be "helpful to discipline," inasmuch as it is proportionate to the natural law; and that it "further the common weal," inasmuch as it is proportionate to the utility of mankind. 19. ST, I-II, q. 95, a. 3, trans. English Dominican Province. In order that a positive human law be useful it must, according to Aquinas, facilitate movement towards religion—and this to be understood as the true revealed religion of Christianity—, dispose the individual to the precepts derived from the natural law which perfect him, and which cultivate, develop, and refine the ordering of the State to the common good. It is the role of reason found typically within the body politic of the State which is to promulgate the human law. Here, Aquinas is concise: “…the definition of law…is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” 20. ST, I-II, q. 90, a. 4, trans. English Dominican Province. Because care of the community is the responsibility of the State inasmuch as the State is a natural association, and insofar as the State is made for man, we will end with a few points with respect to the State itself and the common good which it seeks to promote. III. State and the Common Good In defining the State, Fagothey writes, “The state is defined as a perfect and self-sufficient society, consisting of many individuals and families, united under a common authority, for the attainment of the temporal welfare of the community.” 21. Fagothey, Right and Reason, 409. As the State is for man it is composed of many parts, each of which is ordered to the State as a parts to the whole, so there exists a reciprocity existing within the relationship thereof. Fortin articulates this clearly: Just as the whole is more important than the part and is prior to it as that to which the part is ordered and without which it could not exist, so the city is prior to the individual in the order of final causality and its good is higher in dignity and “more divine” than that of each man taken by himself. 22. Ernest L. Fortin, “St. Thomas Aquinas,” in History of Political Philosophy, 3rd ed., eds. Leo Strauss and Joseph Cropsey (Chicago, IL: University of Chicago Press, 1987), 255. As we’ve seen, human law is derived from the natural law, and thus the natural law is embodied by and present in the ideal state in all it is and does. This interplay is captured well by Fagothey who says, “The natural law obliges men to maintain the state and obey the civil law, because the state is demanded by man’s social nature and it accomplishes its end by the civil law.” 23. Fagothey, Right and Reason, 430. The State is thus a natural association given man’s social nature, and as it governs man according to the precepts of the natural law in its promulgation of human law, this is done so with an aim towards the common good. With respect to the common good, and recalling Aquinas’s insistence that the law is an ordinance of reason thereto, Goyette provides the following insight: Aquinas is clear in this text: the ultimate end of the multitude is virtuous living, the life of virtue as lived in common. The civitas is ordered toward the good life, the life of virtue lived in common with other members of the city. We also see, again, that it is by means of law that men are ordered toward the life of virtue. The city does more than provide the indispensable context or support, it actively orders and directs men toward the good life. 24. John Goyette, “On the Transcendence of the Political Common Good: Aquinas versus the New Natural Law Theory,” National Catholic Bioethics Quarterly, no. 13.1 (Spring 2013), 141. Here, then, we see that the ideal State’s function is not merely one of permission or the removal of obstructions, but it is active as it relies upon the natural law in its formation and promulgation of human law in order to direct men toward the good life, viz. the attainment of happiness. Individual freedom and natural rights, while important, must therefore be properly qualified in light of the natural law and the common good as well. Feser is instructive on this and writes, “But this freedom cannot possibly be absolute, for while there is much that the natural law allows, there is also much that it forbids as absolutely contrary to the human good, and rights only exist to allow us to fulfill the human good.” 25. Feser, “Classical Natural Law Theory, Property Rights, and Taxation,” 336. The common good is therefore not common in an arbitrary sense as that which is simply agreed upon at the outset by any given political regime of the State, but is, rather, common because it is the proper end for which the State exists and the State exists for man. As we read from Fagothey, “The common good is the end for which society exists…When we say that the common good is the end of society, we mean that it is the end that is distinctive of society as such.” 26. Fagothey, Right and Reason, 348. Given its proper position as the end of society qua society, and apprehending that society as manifested politically in the State is made for man, we see that the common good is indeed the same as that of the individual man, though shared among the members with their respective cooperation in order that the end be realized among them. Commenting on this is Fortin: …the city is more than the sum of its parts and its overall end more than the sum of the particular interests of its members. To be sure, that end is not different from the end of the single man; but since the single man depends on the city for his full development, the end of the city assumes the nature of a common good, that is to say, of a good which, while numerically one, is yet shared by every citizen of that city. 27. Fortin, “St. Thomas Aquinas,” 255. To be an ideal State, then, is to seek the common good, and this in a variety of different ways depending on the historical-cultural context, though always anchored in the natural law. Conclusion For Aquinas, and the classical political philosopher generally, human law depends on the natural law for its foundation precisely because the natural law is universal in its recognition of man as such, and because its ultimate principle is that from which every further precept is derived which in turn provides the blueprint for the concrete, particularized human laws whereby the State promotes the common good. Should the Polis be perfected in itself, it is necessary that it governs in such a way as to properly order its citizens and direct them to the good life of apprehended happiness. Bibliography Aquinas, Thomas. Summa Theologiae. trans. Fathers of the English Dominican Province (1947) at Dominican House of Studies, 8 December 2017, at http://dhspriory.org/thomas/english/summa. Fagothey, Austin. Right and Reason: Ethics in Theory and Practice, 2nd ed. Charlotte, NC: TAN Books, 2000. Feser, Edward. Neo-Scholastic Essays. South Bend, IN: St. Augustine’s Press, 2015. Fortin, Ernest L. “St. Thomas Aquinas.” In History of Political Philosophy, 3rd ed., ed. Leo Strauss and Joseph Cropsey, 248-271. Chicago, IL: University of Chicago Press, 1987. Goyette, John. “On the Transcendence of the Political Common Good: Aquinas versus the New Natural Law Theory.” National Catholic Bioethics Quarterly, no. 13.1 (Spring 2013): 133-155. McInerny, Ralph. Ethica Thomistica: The Moral Philosophy of Thomas Aquinas. Washington, D.C.: The Catholic University of America Press, 1997. 12