Companion to the Commentary J. BUDZISZEWSKI Contents The Commentary on Thomas Aquinas’s Treatise on Law is self-contained. However, this Companion to the Commentary offers additional resources and refl ections for those who wish to investigate further. First, extra commentary on selections from the Treatise on Law , Questions 100, 105, and 106, over and above what is provided in the Commentary itself; second, additional topics of discussion on Questions 90–97 as well as the selections from Questions 100, 105, and 106. I. Additional Commentary The Context of the Selections from Questions 98–108 1 Before Reading the Selections 4 Commentary on St. Thomas’s Prologue to Question 100: Of the Moral Precepts of the Old Law 6 Commentary on Question 100, Article 1: Whether All the Moral Precepts of the Old Law Belong to the Law of Nature? 12 Commentary on Question 100, Article 8: Whether the Precepts of the Decalogue Are Dispensable? 24 Commentary on St. Thomas’s Prologue to Question 105: Of the Reason for the Judicial Precepts 39 Commentary on Question 105, Article 1: Whether the Old Law Enjoined Fitting Precepts Concerning Rulers? 40 Commentary on St. Thomas’s Prologue to Question 106: Of the Law of the Gospel, Called the New Law, Considered in Itself 60 iii iv Contents Commentary on Question 106, Article 1: Whether the New Law Is a Written Law? 62 II. ADDITIONAL TOPICS Explored LISTED IN BOLDFACE Question 90: 74 Refl ections on the Prologue to Questions 90–92 (of the essence of law): 74 The architecture of law 74 Refl ections on Article 1 (whether law is something pertaining to reason): 76 The “dialectical” movement of Question 90 76 Refl ections on Article 2 (whether the law is always something directed to the common good): 78 What is the common good, anyway? 78 Refl ections on Article 3 (whether the reason of any man is competent to make laws): 83 Do-it-yourself lawmaking 83 Refl ections on Article 4 (whether promulgation is essential to a law): 85 Secret laws, vague laws, and other failures of promulgation 85 Question 91: 90 Refl ections on the Prologue to Question 91 (of the various kinds of law): 90 Are these the only kinds of law there are? 90 Refl ections on Article 1 (whether there is an eternal law): 91 Does the eternal lawmaker really exist? 91 Refl ections on Article 2 (whether there is in us a natural law): 97 If the natural law is really natural, why bring God into it? 97 Refl ections on Article 3 (whether there is a human law): 99 Why not base human law on a social contract? 99 Refl ections on Article 4 (whether there was any need for a Divine law): 103 The relation between natural and Divine law 103 Refl ections on Article 5 (whether there is but one Divine law): 106 Revelation – says who? 106 Refl ections on Article 6 (whether there is a law in the fomes of sin): 108 The architecture of law, revisited 108 Question 92: 111 Refl ections on the Prologue to Question 92 (of the effects of law): 111 The elemental operations of law 111 Contents v Refl ections on Article 1 (whether an effect of law is to make men good): 112 Making men good 112 Refl ections on Article 2 (whether the acts of law are suitably assigned): 113 Is there anything law may not command? 113 Question 93: 116 Refl ections on the Prologue to Questions 93–108 (of the eternal law): 116 Eternal law, original justice, and original sin 116 Refl ections on Article 1 (whether the eternal law is a sovereign type existing in God): 119 God as the originator of reality; truth as correspondence with reality 119 Refl ections on Article 2 (whether the eternal law is known to all): 121 How the fi nite intellect knows what it knows 121 Refl ections on Article 3 (whether every law is derived from the eternal law): 123 Law and the “appearance of law” 123 Refl ections on Article 4 (whether necessary and eternal things are subject to the eternal law): 125 Could God have created a different nature? 125 Refl ections on Article 5 (whether natural contingents are subject to the eternal law): 129 Two ways of imposing order 129 Refl ections on Article 6 (whether all human affairs are subject to the eternal law): 131 The “inward motive principle” 131 The indestructibility of the good of nature 132 Question 94: 136 Refl ections on the Prologue to Question 94 (of the natural law): 136 The organization of Question 94 136 Natural laws and natural rights 136 Refl ections on Article 1 (whether the natural law is a habit): 141 Conscience, conscience, and conscience 141 Refl ections on Article 2 (whether the natural law contains several precepts, or only one): 144 The natural inclinations 144 The ruling and subordinate powers of the soul 146 Refl ections on Article 3 (whether all acts of virtue are prescribed by the natural law): 149 Just be reasonable? 149 So-called virtue ethics 151 vi Contents Refl ections on Article 4 (whether the natural law is the same in all men): 152 The problem of common ground 152 Are natural rights more “evident” than natural duties? 154 The case of the German tribes: Is it possible not to know that theft is wrong? 155 Refl ections on Article 5 (whether the natural law can be changed): 159 Inventions, innovations, and nature 159 The problem of slavery 160 Refl ections on Article 6 (whether the law of nature can be abolished from the heart of man): 166 Do even sociopaths and psychopaths know the natural law? 166 Is every apparent case of moral ignorance a real one? 169 Question 95: 171 Refl ections on the Prologue to Question 95 (of human law): 171 Are we co-legislators with God? 171 Refl ections on Article 1 (whether it was useful for laws to be framed by men): 172 The futility of anarchism 172 Refl ections on Article 2 (whether every human law is derived from the natural law): 173 Discerning the reasons for the laws 173 Refl ections on Article 3 (whether Isidore’s description of the quality of positive law is appropriate): 176 Rationality is not the same as rationalism 176 Refl ections on Article 4 (whether Isidore’s division of human laws is appropriate): 177 Why does classifi cation matter? 177 Question 96: 179 Refl ections on the Prologue to Question 96 (of the power of human law): 179 Why just these questions? 179 Refl ections on Article 1 (whether human law should be framed for the community rather than for the individual): 180 Legal “privileges” 180 Refl ections on Article 2 (whether it belongs to the human law to repress all vices): 181 What counts as harm to others? 181 The need and the burden of prudence 183 Refl ections on Article 3 (whether human law prescribes acts of all the virtues): 186 Shared private goods 186 Contents vii The problem of toleration 187 Refl ections on Article 4 (whether human law binds a man in conscience): 189 Conscience, conscience, and conscience, revisited 189 Inviolability of conscience 190 Conscientious disobedience to unjust laws 192 Conscientious resistance to unjust governments 195 Are there specifi c “rights of conscience”? 198 Refl ections on Article 5 (whether all are subject to the law): 201 Legal “privileges,” revisited 201 Refl ections on Article 6 (whether he who is under a law may act beside the letter of the law): 204 More diffi cult examples 204 Equality of justice 208 Question 97: 210 Refl ections on the Prologue to Question 97 (of change in laws): 210 Why not skip Article 1? 210 Refl ections on Article 1 (whether human laws should be changed in any way): 210 Shielding laws from change 210 Refl ections on Article 2 (whether human law should always be changed, whenever something better occurs): 214 Prototype of a radical reformer 214 Refl ections on Article 3 (whether custom can obtain force of law): 216 The continuing vitality of St. Thomas’s view of custom 216 Refl ections on Article 4 (whether the rulers of the people can dispense from human laws): 218 The use and abuse of dispensation 218 Question 100: 221 Refl ections on the Prologue to Question 100 (of the moral precepts of the Old Law): 221 The moral architecture of the Old Law 221 The Two Great Commandments 221 The Decalogue 222 The rest of the moral precepts 224 Refl ections on Article 1 (whether all the moral precepts of the Old Law belong to the law of nature): 225 Does what holds for the Old Law hold for the New Law too? 225 Why is Divine instruction needed? 226 Refl ections on Article 8 (whether the precepts of the Decalogue are dispensable): 227 viii Contents False diffi culties 228 Real diffi culties 229 Question 105: 232 Refl ections on the Prologue to Question 105 (of the reason for the judicial precepts): 232 Why Article 1 is important even for secular readers 232 Refl ections on Article 1 (whether the old law enjoined fi tting precepts concerning rulers): 233 What St. Thomas really means by kingship 233 Background on the peril of tyranny 235 Question 106: 236 Refl ections on the Prologue to Question 106 (of the law of the gospel, called the New Law, considered in itself): 236 The relevance of the gospel to philosophy 236 Refl ections on Article 1 (whether the New Law is a written law): 237 The relation between nature and grace 237 Implications of St.