The Catholic

Volume 2 Number 1 Volume 2, January 1956, Number 1 Article 4

The of Natural of St.

Miriam T. Rooney

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This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. The Philosophy of of St. Thomas Aquinas

MIRIAM T. ROONEYt

T HE UNUSUAL FEATURE of the 3rd annual Natural Law Conference of the Catholic Guild of New York was the fact that it had as its main theme the practical application of Thomistic in respect to the of rather than merely their general consid- eration. The following introductory remarks of Dean Miriam Teresa Rooney should serve as a necessary philosophical supplement to such a program which had the solution of current, concrete social problems as its basic object. It was taken for granted by the speakers who dealt with Distributive, Commutative, Legal and Social Justice that St. Thomas provided the most exemplary expression of the traditional wisdom of Western . Dean Rooney's excellent summary of his fundamental teachings is therefore a logical preliminary to their approach which was based in the main upon the language and con- cepts of our time.

Jurists and who are well read in current literature about legal are aware of at least three currents flowing into the main chan- nel. From one side there is the failing strain of a once vigorous : from the other, there is the prevailing current of sociological jurispru- dence - said to be an improvement on the narrow lines of positivism - but exaggerating the social aspects of law at the expense of the personal; and toward the center is the new-found stream called natural law, which is hailed from one side by positivists disillusioned by the Nuremberg , and from the other by those who would protect human from suppression by the sometimes overwhelming pressures of society. Positivism has been long and ably expounded, so that few who have been graduated from our better law schools are free from its claims. Sociological , newer, is not yet widely understood in

-'Dean and Professor of Law, Seton Hall University School of Law. JANUARY, 1956 its fullest implications, but it has given rise example, W. Friedmann, in reviewing the to a learned and impressive literature in the volume in honor of en- 1 last forty years, which has won the adher- titled Interpretationsof Legal Philosophy, ence of many of the ablest of the younger comments upon the failure to discuss the leaders of and . The revival of neo-scholastic of law in that natural law-noted by some, advocated by symposium. Another English writer, H. L. A. Hart, said: It is surprising to find how small a con- tribution to English Jurisprudence in these years has been made by writers in the nat- ural law tradition, for it might have been expected that the extension of state activi- ties into the sphere of the individual would have provoked some vigorous restatement at least of Catholic natural law doctrines.2

And Professor Lon Fuller, of Harvard , in reviewing Reuschlein's Juris- prudence, Its American Prophets, asks: What does the neo-Thomist philosophy say about such questions as the interpreta- tion of , the proper role of the MIRIAM T. ROONEY , or the methods of reconciling others, and challenged by a few outspoken freedom and control in our complex modern society?3 critics-is a more or less unknown-or at least a rather widely misunderstood, but It would seem, therefore, that an Institute recent-development in contemporary jur- such as this one on the Natural Law and isprudence. From those who view it as Justice needs no apology, but rather en- little more than a recurrent swing of the couragement in undertaking to meet a deep- pendulum away from strict law and toward felt need. , to those who view it as a sinister The project of providing a clear exposi- attack upon the under law which tion of the relation of natural law to jus- others believe would not exist but for the tice, no matter how desirable, presents doctrine of natural law, there is the widest many complexities, however, and this may possible diversity of opinion and an in- account for the scarcity of adequate studies cipient literature. Unfortunately there has on the subject. The most formidable ques- been nowhere nearly enough written as tion is where to start. As far back as the yet to inform honest inquirers on any side history of law goes, philosophers like as to what the natural law can offer to- and have written about ward the solution of contemporary legal natural law. The pages of Sacred Scripture problems. Writers seriously concerned about cur- 1 64 L. Q. REV. 545-549 (1948). rent developments in legal thinking have 2 2AM. J. COMP. L. 355-364, 362 (1953). noticed this gap in our publications. For 3 12 LA. L. REV. 531-535 (1952). THE CATHOLIC LAWYER from Moses to Paul are filled with allusions view in 1951, and wbsequently in a book to it. Not only jurists and philosophers, entitled American Liberty and Natural but conquerors and revolutionaries, have Law, which appeared in 1953. 4 For Mr. sought justification for their activities in Gerhart, the question is not whether such the name of the natural law. Is it fair to a thing as natural law exists, but rather, assume that all are talking about the same whose interpretation of it is to be given thing? If so, how can the disparities be force and effect. He is exceedingly fearful reconciled and the confusion dispelled? It that some authoritarian or absolutist inter- may well be that many of those who talk pretation of the natural law is being advo- about the natural law, like those who call cated which may ultimately set aside the out, "Lord, Lord," not ultimately b American and the it found among the elect. If that is the case, guarantees instead of strengthening them. the next question that may be asked is It is a horrible prospect that he visions but what criterion can be established upon one which fortunately is not likely to hap- which a selection can be made. pen here as long as most of us lawyers who are sworn to ,support the United States The necessity of setting up one particu- Constitution no less than he, remember lar standard or criterion to the exclusion that vigilance is the price of liberty. Less of all others is particularly obvious in read- temperate than Professor Goble, Mr. Ger- ing recent challenges to the natural law. hart nevertheless falls into a similar error For example, in an admirably tempered of flaying a straw man of his own creation article in the May issue of the American instead of winning modem adherents of a Bar Association Journal, Professor George natural law philosophy away from their W. Goble of Illinois University Law School advocacy of the cause. expresses a position about the limits of The fact of the matter is that neither human which is shared by most of Mr. Goble nor Mr. Gerhart have done a us, and then lapses into a non sequitur by fair job of ascertaining what is currently attributing absolutism to adherents of the being proposed by those who recommend natural law school. He thereby beats a a re-study and re-application of natural law straw man of his own creation, instead of principles in confronting present day com- a live flesh and blood enemy of liberty munity problems. Although the lack of under law he apparently aimed to discredit. information about the natural law position An even more distressing critique, because evidenced by both men is quite obvious, based upon hearsay rather than especially since they have undertaken to primary documentary sources, (e.g., he challenge the position seriously in learned relies on the Encyclopedia Britannica for and scholarly periodicals, nevertheless they his of what the Papacy stands may not be entirely to blame, since busy for, instead of citing official documents - lawyers can hardly be expected to devote something he would never do in referring the time and attention necessary to acquire to the United States Supreme ), is a mastery of medieval sources, some of the rejection of the natural law position which are still in the Latin language, and presented by Eugene Gerhart, first in the New York University Law Quarterly Re- 4 Boston, Beacon Press. JANUARY, 1956

all of which are written in. a style not ligible to us and the precision with which easily comprehended by those untrained in he uses language is scientific in the best scientific medieval terminology. Perhaps a sense. His writings are voluminous and are little of the blame for this lack of informa- available for study, many of them in fairly tion must be shared by those of us who recent English translations. These have failed to do our part in making what would be sufficient to justify concentrating literature there is more readily available, on his books were there nothing more to or who have neglected to spell out in simple be said. In the case of Thomas Aquinas, A B C's what it is that we find acceptable in however, there is an even more significant the natural law school of thought. The reason, for he was teaching and writing corrective would seem to be to pay less at the University of Paris at the very time attention to the misunderstandings of the when Henry de Bracton was sitting on the critics and more to making our own con- King's Bench and writing his great book victions intelligible. In this way, a fairer on the of England, just across the hearing may be anticipated from that rea- English Channel. They were both outstand- sonable man to whom we all necessarily ing men in an age of extraordinarily great appeal whenever we undertake to discuss minds-minds capable of mastering archi- the law. tectural and engineering techniques ade- quate to build glorious cathedrals in all The next question in getting the subject the leading cities of Christendom, and of into workable form, concerns the selection providing a university system of education of one author whose notions are worth which has not been successfully superseded analyzing. Shall it be Plato or Aristotle, in the literary capitals of the world in all Grotius or Locke, Suarez or Holmes? Any the centuries since. To be recognized as of these and many others are worthy of greater than all his contemporaries, as study, but for the purpose of this paper Thomas Aquinas is, surely justifies that it is proposed to exclude them all in favor attention be given to what he has to say of Thomas Aquinas. It may appropriately about law. Furthermore, since what he be asked why, in a country, wrote was contemporaneous with the for- one is urged to look to a medieval philoso- mulation of the common law system as pher for an exposition of the meaning of expounded by Bracton, a reading of his natural law. Not one answer but many may works provides us with a context which be given. First of all, Thomas Aquinas was cannot be ignored if Bracton's treatise on widely read in all the writers who pre- law is to be fully comprehended. ceded him, drawing freely upon Plato and Augustine, Aristotle and Justinian, Gratian Were these reasons not enough, there is and St. Paul, as needed. Second, his view- at least one other that compels our atten- point was unusually broad, embracing an tion. Approximately one hundred years extraordinary number of aspects to many after the Declaration of Independence had kinds of problems which are at present of been signed in this country, an astute dip- great importance to us. Third, his method lomat, experienced teacher, and learned of progressing from the observation of bishop was elected Pope at Rome and took facts to conclusions about them is intel- the name of Leo XIII. In his own life time, THE-CATHOLIC LAWYER

Pope Leo had seen the exile and death of attention, not on natural law gen- Napoleon, the revolutions of 1848 in Eur- erally, but on Thomas Aquinas' exclusively, ope, the movement for the of in the expectation of obtaining a succinct German law, the beginnings of psycho- summation of the bases of liberty which analysis, and the spread of industrialization have prevailed in the common law tra- under the expansion of corporate forms of dition from before Magna Carta until long ownership, along with recurrent depres- after the formulation of the Bill of Rights. sions and famines. Upon Pope, For the purposes of this paper, a sum- the first thing he did was to advocate mary rather than an extensive study of renewed study of the writings of Thomas Thomas Aquinas' philosophy of law is Aquinas, and then throughout the rest of presented. his Pontificate he wrote an extraordinary The series of Encyclical Letters in order to scholarship of St. Thomas was evi- denced demonstrate that the teachings of Christ early in his career when he urged the use of and the expression of those teachings in original Greek texts of the treat- the writings of Thomas Aquinas contained ises of Aristotle rather than the traditional abstracts much illumination for those confronted by derived from Latin translations. His the almost insoluble problems of modern earliest comprehensive work, the Sum- ma community life. The Popes who have suc- Contra Gentiles was a critical exami- nation ceeded Leo XIII, notably Pius XI and of the work of Mohammedan Pius XII, have reinforced the work. philosophers in Spain. Furthermore, it is not exactly without The work for which St. Thomas is most significance for the jurists of this day and famous was begun as an orderly digest or place that the revival of Thomistic philoso- summation of all his previous writings and phy inaugurated by Pope Leo XIII was studies for the benefit of the students who paralleled by a fresh study of the writings were seeking his guidance in achieving their of Bracton and his fellow jurists, first by own mastery of the sciences, sacred and Frederick William Maitland in England, profane. With his customary intellectual and later by George Woodbine at Yale and spiritual humility, he thought of the University in this country. Just as seven work as a manual or handbook for stu- hundred years ago, the theories of Aquinas dents; and he frankly offered it as nothing could be measured by their application in more nor less than a logically arranged the legal practice of Bracton, so today the statement of his own reasoning and con- legal practice established by Bracton and clusions about many of the problems of his successors may be reappraised by a life upon which he had been consulted. fresh study of the philosophical principles At his death he left the book unfinished, of Aquinas. Parallel readings of the works without pride of authorship, but with a of both men in the face of contemporary dying declaration that everything he ever problems about guaranteeing liberty under wrote was submitted entirely to the judg- law should provide a unique criterion by ment of Holy Mother Church. The title of which progress or retrogression can be this last book which he bequeathed to us more precisely measured. For all these is the Summa Theologica, meaning a ra- reasons it is proposed here to concentrate tionalized summary of all his thoughts JANUARY, 1956 about the relation of man to the Creator law in general is a rule and measure of of the universe. human acts,7 so is a rule and 8 Much of the criticism of St. Thomas measure of all things. As the end is the 9 Aquinas has come from a lack of familiarity first in all matters of action and with his great writings and the background as the end of Divine government is God 10 in which they were produced. He has been Himself, so Divine law is not distinct 1 criticized on the one hand for undertaking from God's Will or His . It would to write a definitive answer on every possible appear that St. Thomas uses Divine law times interchangeably, 12 question that occurred to him, and, on the and eternal law at other hand, for offering such an encyclQ- but at other times he speaks of eternal law pedic work as a manual for students. as the "plan of government in the Chief Governor";1 3 as the type of the Divine Criticisms such as "authoritarian," "re- government; 14 or as the idea of the govern- lies on ," "fails to con- ment of things in God. 15 However, human sider facts," and so on, evidence a lack of knowledge of eternal law cannot be other understanding of the intent and purpose than imperfect, 16 since each person's of St. Thomas, for they identify him with knowledge of it is limited according to his the very obscurities which he undertook to own capacity.' 7 Furthermore, he can know clarify. it, not as it is in itself, but only in its He has been singled out by Pope Leo effects.' 8 For these reasons, no person can XIII as the ablest of all the scholastics, but of eternal law. 19 it is not so much for his conclusions but Natural law is a participation in human his method of reaching them that he has of the eternal law, St. Thomas been held up as a model for our time. says. 20 Not only human beings but all In the small treatise, De Legibus,5 St. things partake somewhat of the eternal law Thomas Aquinas mentions five kinds of insofar as it is imprinted upon them 2 1 and law: Divine law, eternal law, natural law, they are moved to obey it by the natural human law, and . In addition inclinations 22 impressed or imprinted on to indicating 1) that law differs from coun- 7 Id., q. 90, art. 1. sel in that it has coercive power; 2) that 8 Id., q. 93, art. 1, ad 3. it is more than a mere lawgiver's will ii 9 Id., q. 90, art. 1. that it necessarily concerns the common 1O Id., q. 91, art. 1, ad 3. ; and, 3) that it is directed to human I IId., q. 93, art. 4, ad 1. reason, he points out that law includes both 12 Id., qq. 93, art. 4; 93, art. 5; 91, art. 2. 13 Id., q. 93, art. 3. general principles and particular rules or 14 Id., q. 93, art. 4; 93, art. I; 93, art. 5, ad 3. applications. It is his discussion of the lat- 15 Id., q. 91, art. 1. ter, with particular consideration of human 16 Id., q. 91, art. 2. law, that will concern us chiefly here. 17 Id., qq. 91, art. 3, ad 2; 93, art. 2, ad 3. 18 Id., q. 93, art. 2, ad 1. Divine law he defines as the very mind 6 19 Id., q. 93, art. 2, ad 3. and will of the Creator of the universe. As 20 Id., q. 96, art. 2, ad 3. 21 Id., q. 91, art. 2. 5 SUM MA THEOLOGICA, ]-It, qq. 90-96. 22 Id., qq. 91, art. 2, ad 3; 90, art. 1, ad 1; 91, art. 6 Id., I-ll, q. 93, art. 4, ad 1. 6; 94, art. 2. THE CATHOLIC LAWYER

them by the Creator. 23 Irrational creatures from the common to the proper. 33 This are moved to act through being moved by process differs somewhat in the two aspects Divine Providence 24 without any knowl- of reason, the speculative and the prac- edge or free choice on their part, but solely tical.3 4 In order to understand just how by reason of their participation in' the eter- limited our knowledge of natural law really nal law. Human beings are moved to act is, it is necessary to follow St. Thomas' in accordance with eternal law, first of all thought about the different operations of through being so inclined or disposed as the speculative and . That other creatures are, but they are also which, before anything else, falls under moved to act by knowledge 25 and under- apprehension is being, the notion of which 2 6 standing of the Divine commandment. is included in all things that man appre- It is the power of which distin- hends.33 It is the speculative reason which guishes man from the rest of creation that is busied chiefly with necessary things - he sees about him, and it is the appeal it things which cannot be otherwise than they makes to his reason which distinguishes are.3 6 Because it is concerned with things man's participation in the eternal law from as they are, its proper conclusions, like that of other created things. 27 Principles of universal principles, contain the with- reasoning are known naturally 28 by man out error.3 7 However, proper conclusions for no other reason than that he is so are not known to all men 38 but only the created by God. Man thereby participates principles which are spoken of as common in eternal law not only by inclinations which notions.3 9 Now if the knowledge of truth in move him to act but also by sharing in the speculative matters is thus difficult for man eternal Reason 29 which enables him to to attain, it is much more so in practical know. This participation of the eternal law matters relating to action, for St. Thomas in the rational creature is called the natural says plainly that: law and is nothing else than an imprint on [I]n matters of action, truth or practical rec- titude is not the same for all, as to matters of us of the Divine light.3 0 It is in virtue of the detail, but only as to general principles; and natural law therefore that man has his first 3 1 where there is the same rectitude in matters direction of acts to their proper end. of detail, it is not equally known to all.40 The first direction of human acts is a In order to be sure that his meaning is very imperfect guide, nevertheless, because understood, he restates the same notion in 3 2 the knowledge it gives is limited. As St. a slightly different way, where he says: Thomas explains, the process of reason is As regards the general principles whether 23 ld., q. 93, art. 5. of speculative or practical reason, truth or 24 Ibid. 25 Id., q. 93, art. 6. 33 Id., q. 94, art. 4. 26 Id., q. 93, art. 5. 34 Ibid. 27 Id., q. 91, art. 2, ad 3. 35 Id., q. 94, art. 2. 2 8 Id., q. 91, art. 2, ad 2. 36 Id., q. 94, art. 4. 2 9 Id., q. 91, art. 2. 37 Ibid. 30 Ibid. 38 Ibid. 31 Id., q. 91, art. 2, ad 2. 32 Id., qq. 91, art. 3; 91, art. 3, ad 1; 91, art. 3, .39 Ibid. 40 Ibid. ad 3. JANUARY, 1956

rectitude is the same for all, and is equally the second way have no other force than 44 known by all. As to the proper conclusions that of human law. of the speculative reason, the truth is the Efforts of human reason are required same for all but is not equally known to whenever conclusions or determinations all ... But as to the proper conclusions of are the practical reason, neither is the truth or reached, since the knowledge needed in 45 rectitude the same for all, nor, where it is both cases is not imparted to us by nature. 4 1 the same, is it equally known by all. As St. Thomas puts it: It is not only with respect to reaching Just as, in the speculative reason, from true conclusions that human reason finds naturally known indemonstrable principles difficulty in knowing what the law is. A we draw the conclusions of the various sciences, the knowledge of which is not im- rule of action may also be derived from the parted to us by nature, but acquired by natural law in another way. To quote St. efforts of reason, so too it is from precepts Thomas again: of the natural law, as from general and in- demonstrable principles, that human reason It must be noted that something may be needs to proceed to the more particular derived from the natural law in two ways: determinations of certain matters. These first, as a conclusion from premises, sec- particular determinations, devised by ondly by way of determination of certain human reasons, are called human laws, pro- generalities. The first way is like to that by vided the other essential conditions of law which, in sciences, demonstrated conclu- (i.e. ordinance, for the common good, sions are drawn from the principles: while made by him who has the care of the coin- the second mode is likened to that whereby, and promulgated) 46 be observed. 47 in the arts, general forms are particularized munity, as to details . . . Some things are therefore The indemonstrable principles referred derived from the general principles of na- to in this paragraph are explained else- tural law by way of conclusions . . . while where, where St. Thomas, after observing some are derived therefrom by way of de- that being is the first thing that falls under termination, e.g. the law of nature has it 48 that the -doer should be punished; but the apprehension, continues: that he be punished in this or that way, is a Wherefore the first indemonstrable prin- determination of law of natuie.42 ciple is that the same thing cannot be affirmed and denied at the same time, which The distinction so made between conclu- is based on the notion of being and not- sions and determinations is very important being: on this principle all the others are in showing the relationship between natural based . . . Now as being is the first thing law and human law. Both modes of deriva- that falls under the apprehension simply, so tion are found in the human law43 says St. good is the first thing that falls under the apprehension of the practical reason, which Thomas, but those which are derived by is directed to action; since every agent acts way of conclusions are contained in human for an end under the aspect of good. Con- law not as emanating therefrom exclusively, sequently the first principle in the practical but have some force from the natural law reason is one founded on the notion of also. But those things which are derived in 4 4 Id., q. 91, art. 3. 45 Ibid. 46 Id., q. 90, art. 4. 41 Ibid. 42 Id., q. 95, art. 2. 47 Id., q. 91, art. 3. 43 Ibid. 48 Id., q. 94, art. 2. THE CATHOLIC LAWYER

good, viz., that good is that which all things ther statement that "the natural reason is seek after. Hence, this is the first precept of the rule and measure of human conduct, law, that good is to be done and pursued, although it is not the measure of things that and evil is to be avoided. All other precepts are from nature."' 5 1 Now, since it is the of the natural law are based upon this: so that whatever the practical reason naturally practical reason which is concerned with apprehends as man's good (or evil) belongs conduct, and since the practical reason is to the precepts of the natural law as some- concerned with the particular and contin- 49 thing to be done, or avoided. gent, rather than with the necessary, the It is to be noted that these first indemon- human laws which it devises cannot have strable principles cannot be argued about, that inerrancy that belongs to the demon- since they are by definition indemonstrable. strated conclusions of the sciences. St. They may be either accepted, as they have Thomas speaks in several places of "the un- been for centuries by most people, or re- of human , especially on jected, as they are by a few philosophers contingent and particular matters. '52 In- like Hegel who substitutes becoming for he goes so far as to say that: being, and replaces the first principle of [I]n contingent matters, such as natural and identity (or contradiction) by the premises human things, it is enough for a thing to be of thesis and antithesis, attaining thereby certain as being true in the greater number a new synthesis. These premises of his of instances, though at times, and less fre- quently, it fail.5 3 thereby become matter for argumentation as well as subject to acceptance or rejection. There is another way in which the re- The necessity of the first indemonstrable lationship between natural law and human principle is not at all to be found in giving law makes a correct statement of the law us desired answers without the efforts of difficult to formulate and that is in its appli- reason, but rather in pointing out the limita- cation. On this point St. Thomas says that: tions of reason. If one were to paraphrase The general principles of the natural law St. Thomas' first definition of law and take cannot be applied to all men in the same it out of context-by saying merely that law way on account of the great variety of human affairs; and hence arises the diversity is a rule and measure of acts ... and ... the of positive laws among various people.54 rule and measure of human acts is reason- Elsewhere he refers to differences in per- an undue burden, much heavier than that sons, 55 as, for example, between children which it actually has, would be placed upon and adults, where the measure is not the human reason thereby. St. Thomas himself same56 and as between the virtuous and the supplies the corrective when he points out vicious, where, the motivation being differ- that: ent, 57 the application also may vary. Human reason is not, of itself, the rule of things: but the principles impressed on it by 51 Ibid. nature, are general rules and measures of 52 Id., q. 91, art. 4. 50 all things relating to human conduct. 53 Id., q. 96, art. 1, ad 3. In this way is to be understood the fur- 54 Id., q. 95, art. 2, ad 3. 55 Id., qq. 93, art. 2, ad 2; 91, art. 3, ad 1. 49 Ibid. 56 Id., q. 96, art. 2. 50 Id., q. 91, art. 3, ad 2. 57 Id., q. 93, art. 6.