The

Volume 8 Number 1 Volume 8, Winter 1962, Number 1 Article 5

Thomist Natural

Joaquin F. Garcia, C.M.

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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 , please contact [email protected]. THOMIST NATURAL LAW

JOAQUIN F. GARCIA, C.M.*

N THE Summer 1960 edition of The Catholic Lawyer, Dr. R. D. Lumb, a Lecturer in Law at the University of Queensland, had an article entitled "Natural Law - An Unchanging Standard?", in which he con- sidered the doctrines of two thinkers, St. Thomas and Suarez. It is the opinion of this writer that as far as Thomist Natural Law is concerned, Dr. Lumb could have omitted the question mark. It is an unchanging standard. Dr. Lumb himself the task of ascertaining whether the traditional Thomist system takes into account the variables to be found in any system of rules or institutions. The Thomist system of law does take account of the variables but through , through the application of the universal Natural Law principles to particular changing conditions. By no means does it replace positive law. Unlike 18th century rationalis- tic Natural Law which often ignored , which often contained personal, social and political programs, and which often was not Natural Law at all but positive law under a Natural Law label, Thomist Natural Law offers the widest scope for positive law and stresses the importance of experience. St. Thomas says, "The general principles of the natural law cannot be applied to all men in the same way because of the great variety of affairs - hence arises the diversity of positive .",, He says: "The [positive] law .can be rightly changed because of the changed condition of man, to whom different things are expedient accord- '2 ing to the of his condition." Some positive laws are merely "Conclusions," as St. Thomas called them, necessary conclusions from Natural Law principles and so are still part of the Natural Law, as would a law requiring parents to arrange that their infant children be fed be a conclusion from the Natural Law against taking human life. Other laws are what St. Thomas calls

* A.B., St. John's University; M.A., Ph.D., Fordham University; former president of the American Catholic Philosophical Association; presently chairman of the philo- sophy department of Niagara University. 1 , I-I1, q. 92, art. 2. 2 Id., I-1, q. 97, art. 1. 8 CATHOLIc LAWYER, WINTER 1962

"Determinations" or "Specifications" of and it determines a whole series of acts the Natural Law and are the determining brought into as means for the of left undetermined by the Natu- attaining of that end or goal. So to attain ral Law. The Natural Law demands the certain goals, legislators make laws which protection of human life. When a city es- are the means for obtaining those ends. tablishes green and red traffic lights and Since the means-end relation belongs to gives a mandate on them, the ordinance is , law is an act of reason. As St. partly Natural Law and partly positive law. Thomas stated it: "The end is the first The colors could have been reversed. Other principle in all matters of action but it colors could have been used. belongs to the reason to direct to the end. In the opinion of the present writer, Dr. Since directing to an end is the function of Lumb also could have removed the ques- law - law is an act of reason."5 tion mark as far as Suarez is concerned, The intellect- relation poses a diffi- since his Natural Law is also an "Unchang- cult problem. St. Thomas is an intellectu- ing Standard." His doctrine allows of no alist, not a voluntarist, and maintains that change since his Natural Law concerns acts a final , called the last practical which are intrinsically or intrinsically judgment, must be made by the reason evil and which must be ordered or forbid- which determines the will to a specific act den by . Suarez says: "God cannot re- and so renders the will-act reasonable frain from prohibiting those evils which though the plays a part in the human reason shows to be evil." 3 He dis- formulation of that final practical judg- agrees with Scotus and ment. In the case of voluntarists the intel- on the possibility of a dispensation from lect proposes a number of means or courses the . of action as good for a particular end, but it makes no final practical judgment. in General final reason for the decision is the will's To understand Thomist Natural Law determination of itself. No reason can be and particularly these conclusions on its given why one means was chosen over the immutability it may be useful to consider others except the will itself. In St. Thomas first the teaching of St. Thomas on law in will inclines a man to what is agreeable general. He defines law as "an ordination what is an end or goal, and so a good, and or command of reason for the common moves the faculties of man to that goal good made by one who has charge of the The will necessarily seeks and to community and promulgated."'4 St. Thomas the final goal of man, and, as indicated used this one definition to cover various freedom is had regarding the means. types of law, though strictly this definition In the reason why one pertains to . means is selected rather than the others is In St. Thomas the end or goal is the first the last practical judgment of the intellect principle or cause in all matters of action which determines the will-act. If in a part ticular town for instance, a number of per. 3 , Liber I, Cap. XV, 4. See especially sons had been killed in auto accidents and Liber II, Cap. VI for the natural law doctrine of Suarez. 4 SUMMA THEOLOGICA, I-I1, q. 90, art. 4. Id., I-1i, q. 90, art. 1. NATURAL LAW

if lawmakers decided to protect human life, ordering of a subject to do something by the decision to attain that end would be an declaring something to him - and to order 6 act of the will. The will would move the this by declaring is an act of the reason." reason to consider various means for at- This is also the work of law so that it fol- taining this end. Perhaps red and green lows that law is essentially a thing of rea- lights or stop signs or the stationing of a son. "Ordering of actions to an end is policeman at that place or more severe precisely the chief work of the law. We penalties for reckless driving might be con- have a perfect parallel between the work sidered and all would be declared means. of reason and of law, so that it follows that Still working under the impetus of the will, law is essentially a thing of reason."'7 So the reason continues to compare the means in St. Thomas there are two commands of and in intellectualism presents a final prac- reason in , one to the act tical judgment or command to the will. It of the will, which determines what the will- is: "Establish red and green lights." This act will be and a second command after the then becomes the act of the will. The will will-act which orders the subject to do cannot refuse this precept, yet the free will something. plays a part in its formulation. The will Eternal Law then decides on the establishment of "stop St. Thomas lists four kinds of law: on red and go on green lights" as the solu- Eternal Law, Natural Law, Human Law tion of that problem. A law is enacted, (which can be or ecclesiastical), and which, in Thomist doctrines, is an act or Divine (revealed) Law. When God brought command of the reason following that elec- into existence the various creatures of the tion of the will, and it says "stop on red He had to have an end for each and go on green under such and such penal- of them and had to direct them to their ties." However, in the intellect ends. The name given to the law by which would present the four means, indicating God directs all His creatures to their ends the advantages and disadvantages of each, is the Eternal Law. As St. Thomas stated and the decision would be made by the will it, God "governs all the acts and movements itself. It is true that in reason in each single creature." The divine wisdom moves - moves people and faculties to an as directing all actions and movements is end - and that moving is a will-act - yet the Eternal Law.8 Inanimates, plants and St. Thomas explains this by stating that animals God directs through their will and reason work together and that the which lead them to acts suitable to their moving feature of the will-act continues in natures and through these acts to their the command of the reason. Those who ends. These creatures always attain their follow Suarez, who was a voluntarist, deny ends since they are not free. any command of reason after the election That part of the law of God (Eternal by the will - in the preceding case, "stop Law) which directs men as rational, free on red and go on green." In voluntarism creatures is called the Natural Law. This the will gives the command and moves the faculties to action. In St. Thomas, the rea- 6 ld., I-1I, q. 17, art. 1. son gives the command after the act of the 7FARRELL, THE NATURAL LAW ACCORDING TO ST. THOMAS AND SUAREZ 9 (1930). will however, since a command is "an 8 SUMMA THEOLOGICA, i-11, q. 93, art. I. 8 CATHOLIC LAWYER, WINTER 1962 is Natural Law as it is in the "legislator," which is common to all men, and is the as against Natural Law "in the subject." source of those common acts. The preceding is indicative of St. Thomas' This human embraces powers definition of the Natural Law. He says: which each and every man possesses and "The Natural Law is nothing else than the retains permanently even though at cer- rational creature's participation of the tain times he may not be able to use them. 9 Eternal Law." This definition indicates All men have the same specific powers or Natural Law as it is "in the subject." faculties while at the same time they have St. Thomas says one "participates" a many other powers which are individual to law if he is ruled by that law. "A thing is them and which vary greatly from person ruled as it partakes of the rule."'10 This to person. These individual powers are the statement would be true of human law- result of their particular heredity or en- makers and their subjects. So to participate vironment or determinations of their own the Eternal Law means to be ruled by it free wills or combinations of these. If one - to have the law of God become a law accepts the doctrine of forms, as do the in man through an order or command in Scholastics, and holds that all men have in man's head. Just as man's reason partici- them the same form, a rational , which pates Divine Reason, his will participates is the root source of their nature and of the Divine Will, and his existence the their specific acts, the reason for the com- Divine Existence, so this law in man is a mon becomes clearer. Na- participation of God's law for him. St. tural Law examines man's specific natures Thomas maintains that every law is de- and gives universal laws- and does not rived from the Eternal Law. He says: consider individual meh as such. "Since the Eternal Law is the plan of So God gives to each species, and so to in the chief governor, all the men, a nature or "inclinations," as St. plans of government in the inferior gov- Thomas calls them, which are the same in ernors must be derived from the Eternal all men and which lead to certain acts Law. But these plans of inferior governors which in turn lead men to the end God had the Eternal Law." 11 are all the laws besides in view for them. As indicated previously God directs creatures to their ends the only object which can fill out or com- through the natures He has given them. plete the powers of human nature and give One can obtain the Scholastic teaching on man the he craves is God Him- nature in Collingswood's The Philosophy self. From the inclinations impressed on 2 of Nature.' We find that in this man by God, man's reason acquires the world exist in classes or species. They are Moral Law which is known as the Natural not merely individuals but individuals of a Law since these inclinations indicate God's particular class. We see that men too be- Plan and Will for men. Those acts which long to a class or species, that they have are in accord with man's inclinations will certain common acts and a specific nature lead him to his end and so are pronounced 9Id., I-II, q. 91, art. 2. good, and those acts which are opposed to 10 Ibid. man's inclinations and lead him away from 11 Id., I-I, q. 93, art. 3. 1 2 COLLINGSWOOD, THE PHILOSOPHY OF NATURE his end are labeled bad. The Natural Law 116 (1961). orders the good ones to be done and the NATURAL LAW bad ones to be avoided. So the Natural Law man nature takes man to his end. All the could be defined as a moral law obtained other precepts of the Natural Law flow and pronounced by reason from an analysis from or are conclusions of these first of human nature. principles. St. Thomas states that man has three The "secondary" precepts are derived sets of inclinations: ( 1 ) certain inclinations from the primary by easy reasoning. These in common with all other creatures (2) in- are known to practically all, even to the clinations in common with other animals uneducated, but can be missed by a few, (3) inclinations which are proper to him particularly in their application. Precepts as a rational creature. An example of the like: "Do unto others as you would have first set is the inclination to continue in others do unto you," "Don't murder," existence, which is common to all crea- "Don't steal," belong to this class. The Ten tures. This leads to the moral precepts in Commandments, with the exception of the man concerning the preservation of life. "Sabbath Day" part of the Third, are all The second set considers generation and secondary precepts of the Natural Law as the education of offspring and gives rise known by reason- and they can be so to moral precepts on the generation and known. education of children. The third set con- The Remote Conclusions or "tertiary" siders the inclinations to attain the , precepts (St. Thomas did not use the to live with our fellow men, to form a state, expression "tertiary") are far removed etc., and gives rise to precepts on respect from the primary principles and are difficult for authority, the practice of , the to learn. Although objectively certain also, worship of God. they are not known to ordinary people but When we state that human nature is to those who are better trained in ethical the foundation of the Natural Law, we do matters, to the "wise" as St. Thomas put not mean merely a human nature in its it. The Natural Law principles in certain intrinsic , in the relation of one complex medical problems such as eutha- faculty to another, but human nature taken nasia and ectopic gestation, in certain tax completely, including its relation to God, and insurance cases and in hunger strikes to other men and to animals, plants and are "tertiary" precepts. inanimates. There is added reason why some men Three Classes of Precepts do not comprehend the "tertiary" and at The Natural Law may be said to com- times the "secondary" precepts and that is prise three classes of precepts: first - some "the interposition of emotions in the con- "primary" or very general principles which sideration of conclusions." Hence, among are self-evident. Examples of these "pri- the listed by St. Thomas for missing mary" principles are: "Follow human na- the truth in these precepts are "concupis- ture," "Attain your end," and "Good is to cence or some other passion," "evil persua- be done and evil is to be avoided." The last sions," "vicious customs" and "corrupt is St. Thomas' formulation. These precepts habits." Men are at times prejudiced and are the same. Good here means what leads don't want certain answers a priori since to one's end or what is in accord with such answers mean suffering and demand human nature. What is in accord with hu- a change in conduct. Men are inclined to . 8 CATHOLIC LAWYER, WINTER 1962 justify the activity which is pleasing to faculties and inclinations established in them, especially if they have been engaging man by the Author of his nature. The in that activity. As someone has said: "If spiritual faculties of intellect and will, with you don't act as you think, you will ulti- their corresponding inclinations, which are mately think as you act." wider in scope and deal with the universal, For Thomists none of the preceding pre- the super-sensible and the spiritual, are cepts are "innate." They are all empirical higher than sense faculties dealing with in some way. For example, before a man proximate goals, with the individual and concludes that in ordinary circumstances it the material. is wrong to kill his neighbor, but it is not wrong for him to kill his cow or pig, he Conclusion must learn the nature of his neighbor and Among the of Natural Law, the nature of these animals. That knowl- two are outstanding - its universality and edge begets the right and wrong. its immutability. It applies to all men and It might be mentioned that these precepts it is unchangeable. Regarding the possibil- of the Natural Law concern acts which ity of change, many have misunderstood necessarily lead to man's end and so are said St. Thomas and have taught that the Nat- to be intrinsically good - such as worship- ural Law can change or fail in some cases. ping God, honoring parents, respecting au- Now, in a number of places, St. Thomas thority - and acts which necessarily take has taught that the Natural Law is immuta- man away from his end and so are said to be ble. For instance he says: intrinsically bad - such as murdering, steal- The Natural Law is a participation of the ing, blaspheming. Because these precepts of Eternal Law and therefore endures without the Natural Law concern acts which are change, owing to the unchangeableness and the Author necessary means for man's attaining his end, of the Divine Reason, of Nature. The Natural Law contains cer- they beget in man an "obligation" to obey tain universal precepts which are everlast- them. ing whereas human law contains certain particular precepts according to various 3 Conflict - Higher and Lower emergencies.' At times, a conflict takes place among It is true that St. Thomas does use the the inclinations in man and the precepts word "change" but not in its present-day built on those inclinations - for instance, meaning. He says "a change in Natural when the same object will satisfy one appe- Law may be understood in two ways. First, tite or inclination of human nature and by way of addition . . ."14 (this would impede or prevent the satisfaction of an- occur if a state law would be made on other. In human nature there is a certain killing, for instance, by declaring mercy- order of higher and lower, a certain hier- killing illegal and so adding to the law. archy among man's faculties and inclina- Nobody today would say that the addition tions (each faculty has an inclination). of a positive law "changes" the Natural Man has the duty of keeping the higher Law) and "secondly, a change in the nat- faculties and inclinations higher, and the ural law may be understood by way of sub- lower, lower; of preferring the higher to 13 SUMMA THEOLOGICA, I-I, q. 97, art. 1. the lower- of maintaining the order of 14 Id., I-fI, q. 94, art. 5. NATURAL LAW

traction, so that what previously was life. When cases of lawful killing are met, according to the natural law ceases to be the Natural Law on taking human life does so. In this sense the natural law is alto- not change. gether unchangeable in its first principles: Therefore, when St. Thomas speaks of but in its secondary principles, which are the law's changing, he refers to these abbre- certain detailed proximate conclusions viated expressions. The well-known theo- drawn from the first principles, the natural logian, Rev. Francis Connell, C.S.S.R., law is not changed so that what it prescribes states on the preceding: be not wrong in most cases. But it may be Frequently the mode of expressing the changed in some particular cases of rare natural law even by the Almighty in the occurrence."15 of the ten commandments is The problem here concerns not a change abbreviated, so that the precise meaning can be found only through a certain measure of in but a change in the precept interpretation and expansion. Thou shalt not itself. The case frequently mentioned is kill would be expressed thus in its fullness: that of the return of a deposit or some- 'Thou shalt not kill directly an innocent thing held in trust, an example used by St. person, apart from a special divine authori- Thomas many times. "Deposits should be zation.'16 returned" is a law of justice. If however St. Thomas and Thomist thinkers main- the deposit should be a gun and the deposi- tain that the Natural Law is not only intrin- tor returns in a drunken or insane condition sically unchangeable but that it cannot be or expects to use the gun for suicide or changed extrinsically, i.e., by men or by murder, the gun should not be returned. the or by God Himself through a Some say there is here a change in the dispensation, if the word dispensation is Natural Law. The previous statement no taken in a strict sense. St. Thomas says, longer holds. The statement - "Deposits "God cannot dispense a man so that it be should be returned" - supposes ordinary lawful for him not to direct himself to God conditions. Since most depositors would or not to be subject to his justice, even in return in this condition, that principle those matters in which men are directed to would hold for most cases but it would one another.' 7 He also states, "the pre- not cover a few, like those mentioned cepts of the Decalogue admit of no dispen- above. St. Thomas indicates that the law sation whatever."' 8 Instances of alleged in all these cases of justice is unchangeable dispensations in Natural Law are not dis- when he says "the precepts of the Deca- pensations in the strict sense. Thus when logue [which are Natural Law commands] God ordered Abraham to kill Isaac, He did as to the essence of justice are immutable." not dispense him from the Fifth Command- "Deposits should be returned" is an in- ment since Abraham had been given by complete and abbreviated expression of the God the right over Isaac's life whereas Natural Law on deposits. It is a formula murder is the killing by one who has not which, if understood absolutely, is incor- the right of life over another. rect- just as "Thou shalt not kill" taken absolutely is an incorrect expression of 16 CONNELL, OUTLINE OF MORAL 31 the Natural Law on the taking of human (2d ed. 1958). 17 SUMMA THEOLOGICA, I-I, q. 100, art. 8. 1"Ibid." I8 Ibid. 38 8 CATHOLIC LAWYER, WINTER 1962