Saint Thomas Aquinas on Law, Morality, and Politics
Thomas Aquinas ought to be accredited for revolutionizing Christian thought and making it open to the ideas and contributions of human thought. He is simply the one who brought down the walls of the exclusivist kingdom of God and made it possible for Christians to live in the worldly Kingdom of man without giving up all their religiosity. For the first time, Christian theology became capable of dealing with social justice outside the purely religious context. This discussion on social justice and human rights and duties may sound banal today, but those familiar with the nature of the religious Christian discourse that dominated prior to Aquinas, would certainly be more than impressed by this new intellectual orientation.
On justice, we read the following:
Justice appears in jure, and yet, further, we say even that a man who has the office of exercising justice administers the just even if his sentence be unjust.
Reply Obj. 2. Just as there pre-exists in the mind of the craftsman an expression of the things to be made externally by his craft, which expression is called the rule of his craft, so too there pre-exists in the mind an expression of the particular just work which the reason determines, and which is a kind of rule of prudence. If this rule be expressed in writing, it is called a law, which according to Isidore is a “written decree” and so law is not the same as right but an expression of right.
Reply Obj. 3. Since justice implies equality, and since we cannot offer God an equal return, it follows that we cannot make Him a perfectly just repayment. For this reason, the Divine law is not properly called “jus” but “fas,” because, to wit, God is satisfied if we accomplish what we can. Nevertheless, justice tends to make man repay God as much as he can, by subjecting his mind to Him entirely.
Is Right Fittingly Divided into Natural Right and Positive Right?
We proceed thus to the Second Article: Obj. 1. It would seem that right is not fittingly divided into natural right and positive right. For that which is natural is unchangeable and is the same for all. Now, nothing of the kind is to be found in human affairs, since all the rules of human right fail in certain cases, nor do they obtain force everywhere. Therefore, there is no such thing as natural right.
Obj. 2. Further a thing is called positive when it proceeds from the human will. But a thing is not just simply because it proceeds from the human will, else a man's will could not be unjust. Since then the just and the right are the same, it seems that there is no positive right.
Obj. 3. Further, divine right is not natural right, since it transcends human nature. In like manner, neither is it positive right, since it is based, not on human, but on divine authority. Therefore, right is unfittingly divided into natural and positive. On the contrary; The Philosopher says that “political justice is partly natural and partly legal,” i.e., established by law.
I answer that. As stated above, the right or the just is a work that is administered to another person according to some kind of equality. “Now, a thing can be adjusted to a man in two ways: first, by its very nature, as when a man gives so much that he may receive equal value in return, and this is called natural right. In another way, a thing is adjusted to another person by agreement, or by common consent, when, to wit, a man deems himself satisfied if he receive so much. This can be done in two ways: first, by private agreement, as that which is confirmed by an agreement between private individuals; secondly, by public agreement, as when the whole community agrees that something should be deemed as though it were adjusted to another person, or when the judge appointed by the ruler who is placed over the people and acts in its stead, and this is called positive right.
Reply Obj. 1. That which is natural to one whose nature is unchangeable must need be such always and everywhere. But man's nature is changeable, wherefore that which is natural to man may sometimes fail. Thus the restitution of a deposit to the depositor is in accordance with natural equality, and if human nature were always right, this would always have to be observed, but since it happens sometimes that man's will is unrighteous, there are cases in which a deposit should not be restored, lest a man of unrighteous will make evil use of the thing deposited, as when a madman or an enemy of the common weal demands the return of his weapons.
Reply Obj. 2. The human will can, by common agreement, make a thing to be just provided it be not, of itself, contrary to natural justice, and it is in such matters that positive right has its place. Hence the Philosopher says that “in the case of the legal just, it does not matter in the first instance whether it takes one form or another; it only matters when once it is laid down.” If, however, a thing is, of itself, contrary to natural right, the human will cannot make it just, for instance, by decreeing that it is lawful to steal or to commit adultery. Hence, it is written, “Woe to them that make wicked laws.”
Reply Obj. 3. The divine right is that which is promulgated by God. Such things are partly those that are naturally just, yet their justice is hidden to man, and partly are those made just by God's decree. Hence, also, divine right may be divided in respect of these two things, even as human right is. For the divine law commands certain things because they are good and forbids others because they are evil, while others are good because they are prescribed, and others evil because they are forbidden.
Is Right Common among Nations the Same As Natural Right?
We proceed thus to the Third Article: Obj. I. It would seem that right common among nations is, the same as natural right. For all men do not agree save in that which is natural to them. Now, all men agree in right common among nations, since the jurist says that “right common among nations is that which is in use among all nations.” Therefore, right common among nations is natural right.
Obj. 2. Further, slavery “among men is natural, for some are naturally slaves according to the Philosopher.” Now, “slavery belongs to right common among nations,” as Isidore states: “Therefore, right common among nations is natural right.
Obj. 3. Further, right as stated above is divided into natural and positive. “Now, right common among nations is not a positive right, since all nations never agreed to decree anything by common agreement.” Therefore, right common among nations is natural right. On the contrary, Isidore says that “right is either natural or civil or common among nations,” and consequently right common among nations is distinct from natural right. I answer that. As stated above, natural right is that which by its very nature is adjusted to or commensurate with another person. Now this may happen in two ways: first, according as it is considered absolutely; thus a male by its very nature is commensurate with the female to beget offspring by her, and a parent is commensurate with the offspring to nourish it. Secondly, a thing is naturally commensurate with another, not according as it is considered absolutely, but according to something resultant from it, for instance, the possession of property. For if a particular piece of land be considered absolutely, it contains no reason why it should belong to one man more than to another, but if it be considered in respect of its adaptability to cultivation and the unmolested use of the land, it has a certain commensuration to be the property of one and not of another man, as the Philosopher shows. Now, it belongs not only to man but also to other animals to apprehend a thing absolutely; wherefore the right which we call natural is common to us and other animals according to the first kind of commensuration. But right common among nations falls short of natural right in this sense, as the jurist says, because “the latter is common to all animals while the former is common to men only. On the other hand, to consider a thing by comparing it with what results from it is proper to reason; wherefore this same is natural to man in respect to natural reason which dictates it. Hence the jurist Gains says: “Whatever natural reason decrees among all men is observed by all equally and is called right common among nations.” This suffices for the reply to the First Objection.
Reply Obj. 2. Considered absolutely, the fact that this particular man should be a slave rather than another man is based not on natural reason but on some resultant utility, in that it is useful to this man to be ruled by a wiser man, and to the latter to be helped by the former, as the Philosopher states. Wherefore, servitude which belongs to right common among nations is natural in the second way but not in the first.
Reply Obj. 3. Since natural reason dictates matters which are according to right common among nations, as implying & proximate equality, it follows that they need no special institution, for they are instituted by natural reason itself, as stated by the authority quoted above.