Notion Of Freedom And Law In St. Thomas Aquinas

Notion Of Freedom And Law In St. Thomas Aquinas

CHAPTER ONE
  • THE GENERAL NOTION OF FREEDOM

The concept of freedom is an analogous one, predicated in different ways to beings of very different types. The various forms of attribution depend, to a certain extent, not by defining the same specific content, but by indicating formal relation, which remains the same. This relation can be put negatively or

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Negatively, freedom means being free from the relation of not being bound to a given being or law, of being independent from something and of not being determined by a given principle of determination. This negative concept is also a relative one because every finite being belongs to a world and is related to the other being in the world. It may be free from this direct relationship to this or that, but only because their place are taken by others.

A being fully free in the negative sense could not be a being in the world, without relationship fully isolated, it would be based on nothing and be nothing.1

Thus in contrast to the negative, relative concept, there is a positive absolute concept of freedom. A being is positively free in so far as it is in possession of itself and possesses in this relationship the sufficient condition for all its being and relations. Here, freedom means self-possession being completely present to oneself, completely self-sufficient.

According to Maslaw

Freedom is the basic acknowledgment

that the individual is more important

than his society.2

However, human freedom is clearly neither merely negative and relative nor fully positive and absolute. Man has dominion over himself and so also over parts of the world. But he is non-the-less inserted into the world and dependent on the beings he finds himself. The basic mode of human freedom may be called transcendental freedom, which is the fundamental propriety of man by which he alone can say he is.

It follows that man can never be deprived of this transcendental freedom, which is part and parcel of his existence. But its emptiness and importance point on to another mode of freedom. Man is not simply there, he does not simply grow, he has to be, he is a task absolutely imposed on himself he has to decide to be himself or what he will be and there is no way in which he can evade this decision.

This mode is called the freedom of decision or existential freedom. This directly implies freedom of choice since an arbitrary freedom would be no freedom, a man free in this sense, will leave his actions at the mercy of mood whim or chance.

Freedom in general may be defined as

the absence of obstacles to the realization

of desires.3

1.1          THE MEANING OF FREEDOM  

Freedom! Everybody wants it, it makes a man a human being, poets praise it, and politicians promise or proclaim it. Some people have given their lives to win it for themselves or for others, but what actually is it? St Thomas Aquinas sees it as absence of coercion. Coercion or compulsion bears on the external action and corresponds to the absence of external coercion. This is variously named according to the kind of activity involved.

Thus we have physical freedom, civil freedom, political freedom, freedom of self-realization, freedom of choice, and freedom for self-perfection. Psychological freedom or freedom of choice corresponds to absence of internal coercion, that is the power of the will to will something or not. External is contingent on internal freedom, since the former has no meaning without the latter, but the converse is not necessarily true.

A Survey of Yves R. Simons book ‘Freedom of Choice,’ contrasts to some extent the St Thomas Aquinas notion of freedom. For example he investigated on freedom and voluntariness, and said that  “there is unqualified voluntariness without freedom”4

1.2              KINDS OF FREEDOM

Man is full of dynamism, and his activities are equally the same. Hence his conception of freedom differs according to their different activities. Man’s activities are not just determined by external factors like a piece of stone that is moved or a computer game that is moved by the pads. It sometimes comes from his awareness of his own freedom and ability to decide for himself. Among all these, freedom still remain verse to comprehend at each moment, but for better apprehension, I will examine briefly the kinds of freedom in the following sequence.

Human Freedom

This is simply a matter of accepting the Universe because you understand its mathematical necessity. This done, you will gain peace of mind, be free from passions and be able to return good for evil. This human freedom implies that man has the natural ability to act at length without being injurious to others.

Freedom Of Religion

Freedom of religion could be identified as the right of a person to have free exercise of religion without compulsion or coercion. He is allowed to worship anything, anywhere, anytime according to the dictates of his conscience. Murray said on his own part that religious freedom is ‘…an immunity from Coercion in what concerns personal relation with God’5

 

For the authenticity of religion to be realized, many societies adopt freedom of religion.

Freedom Of Choice

This is the principle of action by which man judges freely. Apart from this, Aquinas maintained that freedom of choice is not a habit but a power since it proceeds from man. He called it an election. He compared ‘man’ and ‘animal’ and stated that man acts out of comparism in the reason, while animals acts from natural instinct. Since man acts out of comparism, he acts by free Judgment and equally retains the power of being inclined to many things. Thus man has free choice.

Freedom of choice refers either to the act of the will, or to the object of the will. In the first instance, there is freedom of exercise, in the second, freedom of specification. Freedom of exercise means that the will is at liberty to choose or not to choose, to operate or not to operate. The point to emphasize here is that one is not compelled to act.

Freedom Of Self-Perfection

Here St. Thomas believed and taught that man ought to tamper and train his Soul, and the dignity of man lies in self-mastery. Now, man’s nature is constituted in such a way that reason and will must always guide and direct his actions. In so doing man has self-control, since that makes him a person. Any man who allows passion, money, power etc to overtake him, is not free, since he feels free outwardly, but inwardly remain enslaved to vice, greed, power, pride, and ambition.

Fulton Sheen in his book ‘On Being Human’ maintained that freedom is not gained at once, but a gradual process, which continues until one reaches the peak. Man is not expected to become an angel, but man, which is his ontological vocation, man cannot be perfect in an imperfect world

Freedom of Self Realization

Each man is a microcosm, in other words, said to be represented in a small scale. He occupies an important and irreplaceable position in the entire universe. He is a being who has a mission in the world. And the achievement of this mission is the realization of himself. Each man is a bundle of potentialities. These potentialities when realized or actualized become the individual’s contribution to development of the entire human family.

Self-realization, according to Anthony Storr is said to be:

The fullest possible expression in

life of the innate potentialities of

the individual, the realization of

this uniqueness as a personality.6

It consists in productiveness, spontaneous activity as opposed to compulsion, love and active solidarity with human beings. It consists in accepting oneself as the bearer of human potentialities and being ready to grow through creative activity. It is the man who uses his powers that answers the fundamental question of his individual existence. Freedom of self-realization is only possible in and through the facticity, which surround each person, it cannot be more than this. They include, height, colour, strength, intelligence, sex, race etc.

Karl Rahner held that:

Freedom is only freedom in the

concrete sense, when all those

freedoms are combined.7

Aquinas on his own part noted that,

Freedom is seen not as independence

from an absolute but as independence

From the relatives.8

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In the history of philosophy and social thought, freedom has a specific use as a moral and social concept to refer either to circumstance which arise in the relations of man to man to specific conditions of social life. Philosophical argument about the meaning or the nature of freedom is concerned with the legitimacy or convenience of particular application of the term. Bertrand Russels often held that freedom in general is that absence of obstacles to the realization of one’s desires.

1.3          AQUINAS NOTION OF FREEDOM

This medieval theologian understood freedom to be the harmony of the will and the act. And the consideration is the divine influence and the will. Implicitly, the relation of harmony, the divine influence and the will is freedom. Hence, a free act is constituted by the assent of the will rather than by the decision of the will. It implies then that this cannot be freedom as self-determination.

It is to be free from constraint and violence from others, which cannot be, where there are no law10

Freedom may mean absence of constraint and this is what is proper to man. There is no right minded individual who would applaud constraints. Being free from constraint means being free from choice imprisonment.

1.4          LIMITS OF FREEDOM

While we reject the view that man is not free, or that freedom is an illusion, we must not accept the Sartrean exaggerated notion of freedom. According to Sartre in his book ‘Being and Nothingness’, man is absolutely free. Man he said, is condemned to be free and man’s authentic existence is realized to the extent that he makes use of his freedom.

Man is free, yes, but his freedom has to be limited by certain things such as his body, will, environment, desires and passion, pressures from heredity, society etc.

Walter Farrel in his book ‘A Companion to Summa’ vol. iii supported this when he used the analogy of a wild bird beating out its life against the windows of a desolate house into which it has wondered, to awaken pity on us. Also in man, who is confined to a space and who is imperfect and limited, struggling day in and out to be unlimited and free. We find such a situation in the incessant discoveries by science to know if it can give meaning to human life, but what happens, we still experience some sort of imperfection in all these.

Also as a social being, man is limited by his very nature of being forced to be social by nature, he is compulsorily limited to stay where his body permits him to be. The existentialists emphasized this when they said that man as a social being in the world is subjected to the laws of nature.

We should not say that limitation is the essence of human freedom because man’s insatiable tension towards the absolute and good is limitless, rather as an incarnate being, a being in the world, his body which situates him in the world limits his freedom. It then follows that man is not absolutely free, since there are some limitations.

  • SOCIAL STRUCTURE OF FREEDOM.

Since freedom is transcendental distance and transcendental spontaneity, it is essentially part of man. But this primordial freedom is still only the basis for existential freedom, the realization of man as person, it is not yet this personal being in actual reality, transcendental and transcendental freedom are actuated only in the decision of the existential freedom for its own essence – as basic form. But R.S. Peters held that:

Freedom means not doing what one wills

without restraints but accepting

the law or the real will of the community.11

It follows that human freedom can never be a simple state of man or a specialized propriety, but neither is it simply the actuation of selfhood, nor pure act without the history like the divine freedom. But on the contrary, human freedom is history by its very nature. Man is wholly claimed by the works to be done and the states to be achieved. He becomes truly a person by going freely out of himself- to throw himself into the work to be done.

Thus human freedom is not a state, as it is in things, freedom from this or that compulsion nor is it as in God a pure act of self-consciousness. Freedom is the history of a person’s coming to himself, which culminates in fully conscious self-possession. In the strict sense, only the individual is with himself, self-possession can be predicted only analogously of a community or a people.

All these principles recur in the principle which regulates the mode of realization of freedom, the freedom of subsidiary. Freedom in act is identical with the personality of the person. It is the person’s mode of being. This mode of being is at once individual and supra individual condition and uncondition. Conscious selfhood, as an act  feasible only to the self, makes the individual unique as a person.

These common works are modes of self-realization, of the reality of freedom and the person. But as such modes, there are forms taken by freedom and they retain their meaning and purpose only by being referred back to the person and its reality.

CHAPTER TWO

2.0          GENERAL NOTION OF LAW

Law is often seen as a pointer, an index of conduct, which serves to give shape and direction to our freedom. Just as I said before in the introduction that law and freedom are two sides of the same coin, and they are related to each other as water and container, as the shape of the container determines the shape of the water it holds, so does law shape our individual freedom. Law is often made out of common good, and determines the limits of our freedom as we prosecute our individual good.

Law is often believed to have come from reason, and so it must be reasonable enough. It is often a command, and not always a counsel or advice. In Aquinas, one finds the most comprehensive treatment of law in general and natural law in particular. Using Aristotle’s theological and hierarchical conception of the universe, Aquinas   carefully worked out in detail the hierarchy and the interdependence of all laws. On another vein, the reality of law does not consist solely in commands or coercion on the part of the ruler. This is precisely why Paul Vinogradoff remarked that law is not just what a sovereign commands, or, what the council enforces, but a body of rule of human conduct recognized by the people as obligatory upon all and sundry. Hence he said;

The law of a given community is the body of rules which one recognized as obligatory by its members.1

  • THE NATURE OF LAW.

For St. Thomas Aquinas, law (lex) originates from the word bind (ligere) because law induces and, or obliges us to act or restrains us from acting. Practical reason plays a role here, for law is the concern of reason. Right and reason (recta ratio) is the justification of Ethical judgment in Aquinas’ thought.

The law is a rule and measure of acts, whereby man is indeed to act or is restrained from acting, because it binds one to act. Now the rule and the measure of human act is the reason:

… For it belongs to the reason to direct to

the end which is the first principle in all

matters of action …2

Now that which is the principle in any genus is the rule and measure of that very genus. Consequently it follows that law is something pertaining to reason. Now as reason is a principle of human acts, seen in reason itself there is something which is the principle in respect of all the rest. Hence to this principle chiefly and mainly law must be referred.

Moreover, since every part is ordained

to the whole as the imperfect to the

perfect, and since one man is a part

of the perfect community, law

need to concern itself properly with

the order directed to the universal happiness.3

Law is nothing else but a dictate of practical reason emanating from the ruler who governs a perfect community. Law being a rule and measure, can be in a person in two ways, in one way as in him that rules and measures, in another way, as in that which is ruled and measured. Since a thing is ruled and measured in so far it partakes of the rule of measure, then, in order that man might have peace and virtue, it is necessary for laws to be formed for as the philosophers says:

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As man is the most noble of animals,

if he be perfect in virtue, so he is the

lowest of all, if he be severed from

law and justices. 4

Law for Aquinas, has to do primarily with reason. The rule and measure of acts is the reason because it belongs to reasons to direct a man’s whole activity towards his end. Law consists of these rules and measures of human acts and therefore is based upon reason.

2.1          DEFINITION OF THE TERM LAW.

Etymologically, law comes from the Latin word ‘Nomos’ and from the Hebrew word “Tuka”. Law can be made by man and can also be made by God. In its proper sense, law connotes a rule and measure of acts directing man to his proper end.

Elias T.O. in his note, held that law ‘is any rule of human conduct which is recognized as being obligating5

Bittle, on his own part, says that there is another sense in which we can use the term law and he defined it as:

The rule or norm which governs the actions of rational being in any field of practical endeavour6.

From the sociological point of view, Selznick contends that;

law is more than a set of principles and rules. It is a kind of activity carried on by living men in a living institution 7

For him, the question of law should be seen as from the above viewpoint: law is only limited to the living in any living institution.

 

2.2          AQUINAS NOTION OF LAW  

Aquinas on his own part defined law thus:

Law is nothing than an ordinance of reason for the common good promulgated by him who has the governance of the community8

For a clearer understanding of what he wrote as the classical definition of law above, it is good to study the component side by side.

Law As Ordinance
Because it is an establishment of order [between the subjects of law and the ends that are to be achieved, by means of the actions that have been commanded] it is hence a mandate imposing legislators will on the subjects with moral necessity, it is not an advise or suggestion.

Of reason

Here Aquinas is speaking of right reason, if a law did not proceed from judgment of right reason it would have no obligatory force, it would be lawless. Therefore, it must not be inconsistent, illogical or arbitrary whim but intelligent directio

For the common good

This is what distinguishes law from a particular command, which is imposed on an individual. When we talk of law being for the common good, we mean that it must have the purpose of directing man and society to their final end.

Since anything is called law especially because it is ordered to the common good, no other precept has the nature of law unless it has order for common good9

Hence, a true common good is ‘universal, singular or collective, and is distributive in character, being communicable to many without becoming once private good’10.

By Him Who Has Care Of The Community

The task of planning for the end to be achieved always belongs to the person who is primarily responsible for seeing that this end is achieved. Private person cannot sit at his house and dictate a law, no, because he lacks the power of transition and hence may not be adhered to and it will not be efficacious.

The efficacy of law depends on its

coactive force, the force resides

only on the communities or its vicar11 

Has to be promulgated

This promulgation is necessary in order that the law might have its efficacy. St Thomas emphasized it thus: ’Law is imposed on others after the manner of a rule or measure…12

Hence, for a law to be effectively binding on those subject to it, it must have to be applied to them, and it must be published in such a way that it can be known readily, though each subject need not be given a personal notice.

Judging from what we have seen about law in thomistic sense, we will find out that thomistic law is based almost strictly on justice. This is evident in the identification of four distinguishing qualities in his definition of law as, ordinance of reason, for the common good, promulgation and authority.

Finally, the purpose of law, according to Aquinas is to command, forbid, permit, punish and in consequence to help make people good. The goodness that is spoken here should be understood in relation to the well being of the community in question. What the laws of the state aim at is the formation of good citizens, therefore, law must be mandatory in form, reasonable in content, community Serving in purpose, knowable in manifestation (promulgation) and authoritative in source. Without all these, it is not a genuine law.

  • CHARACTERISTICS OF LAW

We cannot conclude Aquinas concept of law without considering its characteristics and they include:

  1. Immutability
  2. Universality
  3. Knowability
  4. Indispensability
  5. Indelibility
  • IMMUTABILITY OF LAW

By immutability, we mean that things don’t change, it then implies here that law does not change, since it is guarded by reason and there is no way man can move from rationality to irrationality. As Copleston strongly held, “human nature remains fundamentally the same, and that it is the same for all.”13 Hence, natural law, which follows from nature, remains unchanged as St. Thomas Aquinas maintained, “natural law dates from the creation of the natural creation and it does not vary according to time but remains unchanged.”14

Nothing can change law, including power, authority, money or even God as Grotius maintained. And since natural law is founded on the immutability of eternal law, natural order will always demand that good be done and evil avoided.

  • UNIVERSALITY OF LAW

By universality of law it means that natural law pervades all people of all places and time. This is based on the fact that all men have the same specific nature and also all men have the same last end. So it is reasonable that the same guide leads all men to their common end.

  • KNOWABILITY OF LAW

Natural law is founded on human nature, this same nature is endowed with reason, it is by using this intellectual faculty that man knows. Aquinas insists that man knows the principles of natural law, for they belong to the self-evident operations of the practical reason. The first principle of natural law is that good is to be done and evil to be avoided by all men. In line with this, Francis Suarez opined; “their binding force is so easily recognized that no one can remain ignorant of it for a length of time.”15

2.3.4       INDISPENSABILITY OF LAW

Some anarchists, voluntarists and Marxists would support the programme for law to wither away, but anybody who had been a victim of anarchy would not pray for that. Law makes life worth living and equally makes a man. Without law, many people would have died and anarchy would prevail. The story of Jean Sheildon gives us an insight of what society will look like if unrestrained by law.

On 7 October, 1969, the police of one North America’s largest cities went on strike, two men were murdered, forty eight were wounded, seven banks were held up, and one thousand plates of glass-windows were smashed in the center of the city, and so the question is where would men alternatively be without law and its enforcement16

2.3.5       INDELIBILITY OF LAW

This implies that natural law cannot be erased in the hearts of men, St. Augustine said it when he wrote “:the natural law is written in the hearts of men, which iniquity itself effaces not”17 A good sign of this is the good inclinations that exists in every man, spontaneously recognized as good, as distinct from the bad ones man follows this natural law freely, not out of fear but because he wants good.

2.4    KINDS OF LAW

St. Thomas Aquinas (and the Scholastics) categorized and distinguished laws between eternal and temporal laws. Temporal laws are divided into natural and positive laws. The positive are further categorized into divine positive and human positive laws. So in general, we have four main divisions of law;

  • Eternal law
  • Natural law
  • Positive human law
  • Positive divine law.

2.4.1       ETERNAL LAW

This law has been defined by St. Augustine as “the divine reason or will commanding that the natural order be preserved and forbidding that it be disturbed”18. By this law, God governs all created beings directing them as it were to their respective ends.

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St. Thomas Aquinas on his own part describe it thus;

The eternal is nothing but God’s wisdom in so far as it directs all activities and motion19

This law is implanted in the very being of every creature and thus makes every creature behave the way it does, fulfilling the purpose for which it is made. He calls it the ultimate norm of morality, the ultimate source of all laws and the ultimate directive principles of all acts and motions of creatures to their proper ends. All right and true laws are, in last analysis derived from the eternal law. While all are subject to this law, God is not because he in the eternal law himself.

2.4.2       NATURAL LAW

Following what was said in eternal law, that all things are subordinate to it, it then implies that all things participate to some extent in the eternal law. Since they receive their proper end from it. Such participation by the rational creature in the eternal law is called natural law. Thus Aquinas holds that “natural law is nothing else than participation of the eternal law in the rational creature”20.

In the area of human activity, the natural law is called moral law since man recognizes it with his own reason. In the sub-human world the natural inclination is the reason for all necessary happenings (physical law). Natural law is that which so necessarily agrees with the nature and state of man, that without observing its maxims the peace and happiness of the society can never be preserved.

M.A. Consalves on his own part maintained that

What is called natural law from the standpoint of the human subject is called eternal law from the standpoint of God, the law giver. In a sense it is the same law looked at from two sides21

At this point one must have seen that this natural law has a lot of controversies surrounding it, some have different conceptions while some even deny its existence.

  • HUMAN POSITIVE LAW

These are law made by human authority. It is often referred to as the specific statutes of government. This law could be civil or ecclesiastical. But here, we are concerned with civil laws. Civil laws or political law (human positive law) is the law made by a sovereign government to all its subject or to all of a certain class of its subjects. To support this view Marsilio has this to say:

Human law is a command of a whole body of citizens or its prevailing parts, arising directly from the deliberation of those empowered to make law about voluntary acts of human beings to be done or avoided in this world, for the sake of attaining the best and or some condition desirable for in this world22.

According to man’s mode of knowing, civil law primarily realizes the common definition of law as how Aquinas defined it earlier. Human law should be made to suit all and sundry and not few, and it should emanate from natural law, as St. Thomas still argued that any law that does not emanate from natural law, is not law at all but a perversion of law and must not be obeyed. The role of positive laws is to make possible for the direction of the society to a common good.

2.4.4       POSITIVE DIVINE LAW

Divine law is said to be the law revealed by God. St. Thomas Aquinas said that the divine law is necessary since it directs man to his proper end. Since man is ordained to an end of eternal happiness, in addition to his temporal happiness, there must be a kind of law that can direct him to that supernatural end. The divine laws are often found in the scriptures, it is often divided into two old law (mosaic law) which is the law of God as expressed in the old testament of the holy scripture and the new law which is the evangelical law or law of grace or law of God given in the new testament. Divine law is a gift of God’s grace rather than a discovery of natural reason Aquinas maintained this view when he said that it is “an additional law given by God whereby man shares more perfectly the eternal law”23

2.5    FUNCTIONS OF LAW

Many people had written about law, including St. Thomas Aquinas. As it is always said, behind every action, there is always a reason, or a need for doing things. If I decide not to got to church anymore, I must always be ready to present my reasons. In like manner, those who had advocated for the existence of law had certain reasons and these reasons are articulated under any of these functions of laws or the essence of law or effects of law.

Although we are rational and moral beings, some times we exhibit certain inhuman actions, due to some kind of greed, egoism and the demonstrations of individuality. Hence, subjectively, in a way, we crush the mutual relationship that should exist between men, and this in what law tends to eliminate. The functions of law includes:

  1. Law makes order and discipline possible: Law is all about order and harmony in society. Law is therefore synonymous with order and order in turn presupposes discipline and decorum. Order is one of the prerequisites that enable men to achieve their essence as social and political beings.
  2. Law neutralizes our heterogeneous society: All men are not the same, but are made same due to society, hence each person joins a social compact with all his/her individuality preserved. The law neutralizes both traditional and individual differences to ensure harmony.
  3. Law ensures freedom and fairness: Every freedom comes with an obligation, hence law guarantees every individual the liberty to do the right and to shun the wrong, and at the same time limits the individual’s liberty in order to ensure mutual respect and coalescing existences among members of society. It equally checks authority’s acts in order not to infringe on the ruled rights and freedom.
  4. Law achieves justice: In the absence of law, the strong would prevail over the weak and crime would reign. Hence law achieves natural justice which is the necessary ingredient for peaceful co-existence.
  5. Law checks against morally bankrupt behaviour: Law is meant for moral and rational beings who decide to be crippled with evil acts. Law is in a sense curative, because it strips morally bankrupt people from the disease and helps them to reform such. Thus, law could be said to be a code to supervise manners and morals. No wonder, when men consciously neglect their moral duties, law takes over the control of their behaviour.
  6. Law settles dispute: Human beings most of the time, engage in wrangling, quarrels, agitations and so on. Law acts as a mediatirx of peace. Hence, it ensures peaceful co-existence.
  7. Law is sometimes used to fix price on behavour, by determining its quality and the price to be paid for violating legal rules. In other words, the quality of human conduct are evaluated against the back drop of what law demands.
  8. Law makes men good: Aristotle proclaimed that the essence of law is to make good citizens. It is pertinent as said earlier that the proper effect of law is to lead its subjects to their proper virtue, and since Virtue is that which makes its subjects good, it follows that the proper effect of law is to make those to whom it i

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