Thomas Aquinas’ Natural Law Theory: A Standard For Human Positive Law.

Thomas Aquinas’ Natural Law Theory: A Standard For Human Positive Law.

CHAPTER TWO

LITERATURE REVIEW

The question of Natural law can be traced back to the primitive societies. It was held that there was higher power that controlled human society and so some higher sort of rules, principles or laws which mankind could discover and use for a well-governed existence. Since the universe is governed by the higher power-

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After payment, text the name of the project, email address and your names to 08064502337 God, it follows that the universe is endowed with divine laws from which the principles of human morality and law are derived.

Whereas the Christian era upheld the spiritual development of Natural law, Greek philosophers sought the explanation of Natural law in the light of rationalism. For the Greeks, the universe is governed by intelligible laws that can be discovered by human mind. Some of those Greek Natural Law thinkers include Plato, Aristotle and the Stoics. Augustine would represent the Christian thinkers.

  • PLATO, (427-447)

Plato one of the founders of the philosophy of law as well as the natural law philosophy saw the law of nature as the law of reason. Law for him is an expression of reason, and the ideal law is the law of reason. Plato maintained that laws are necessary only when reason fails, for law of reason is the ideal law. Plato is therefore seen as the founder of the natural law tradition that sees the law of nature as the law of reason. Positive laws are but expressions of the law of reason which are needed because men are weak and cannot observe the law of reason without the help of positive laws. He therefore postulated that positive law is unnecessary where men behave as expected. Thus he opines:

The laws of the state are imperfect expression of the law of reason and they are needed only to help non-virtuous men who cannot willingly observe the law of Nature without some help[1]

The law of nature, which is the law of reason, is the absolute norm of conduct and the standard of justice, which positive laws imperfectly reflect. Thus Plato sees the law of nature as the chief of all laws to which other laws must conform. Thus he says:

We are enquiring into the nature of absolute justice and the character of the perfectly just, and into injustice and the perfectly unjust, that we might judge our own happiness and unhappiness according to the standard which they exhibited and the degree in which they resemble them. [2]

2.2          ARISTOTLE

Aristotle, like Plato his master, maintained that reason is the ideal law of human conduct. A virtuous man is a man who is always guided by the rule of reason, which is “the right rule”[3]. Aristotle’s teleological concept of nature formed the basis of his theory of law of nature. For him nature is teleological and therefore tends towards an end. All things make natural movement towards an end, which is provided by nature. Whatever end nature directs a thing to that end it tends. Aristotle outrightly upheld that nature’s intention of a being is the end or the perfection of that being. Each being has its own proper end intended for it by nature. Thus

Natural law is nothing else than this intention of nature for things expressed through natural tendencies of things[4]

This law of nature is also applicable to man; it is nature’s intention for man, which is expressible through man’s rational tendency. And since Aristotle held that man is a rational being, the law of nature in man’s case is the law of reason. Aristotle further held that in compliance with the law of nature man achieves the perfection of his being.

2.3   THE STOICS

The Stoics’ concept of natural law is based on pantheistic metaphysics. God and the universe are but one reality. God is the soul of the universe that controls all things. They emphasized the existence of natural law through their distinction between the individual state and the world state. Individual state is according to them, ruled by positive laws, whereas only one law the law of nature governs the world-state. This law of nature they maintained is external, immutable and binding on all men. It is the standard of right and wrong. The Stoics would hold that the law of nature is the law of reason, which makes men happy if they comply with it. Hence the Stoics urge men to follow nature and to live according to nature in order to be happy.

This notion of law of nature in Stoicism was given a vivid explanation by Cicero who is also a Stoic philosopher in the first century of the Christian era. Thus Cicero declares:

There is in fact a true law-namely, right reason – which is in accordance with nature, applies to all men, and is unchangeable and eternal. By its commands this law summons men to the performance of their duties; by its prohibition it restrains them from doing wrong. Its command and prohibitions always influences good men, but are without effect upon the bad. To invalidate this law by human legislation is never morally right, nor is it permissible ever to restrict its operation, and to annul it wholly is impossible. Neither the senate nor the people can absolve us from our obligation to obey this law, and it requires no Sextus Aelius to expound and interpret it. It will not lay down one rule at Rome and another at Athens, nor will it be one rule today and “another tomorrow. But there will be one law, eternal and unchangeable, binding at all times upon all people; and there will be, as it were one common master and rules of all men, namely God who is the author of this law, its interpreter and its sponsor. The man who will not obey it will abandon his better self, and, in denying the true nature of man, will thereby suffer the severest of penalties, though he has escaped, all other consequences which men call punishment.5

2.4          AUGUSTINE (350-430)

Augustine was an outstanding philosopher in natural law in medieval era. He views the law of nature as “the reason and will of God which commands the preservation of the natural order and prohibits its disturbance”6. For him this law is the highest reason and should always be obeyed. He opined that it is the law of reason as well as the law of justice. The law of nature stands as the standard to which all positive laws must conform so as to qualify as law. If any positive law is in conflict with the law of nature it becomes null and void because there is no law except it aims to be just. Unjust law is no law but a tyrannical command for Augustine says: “Remove justice and what are kingdoms but gangs of criminals”7. That is to say that what makes a difference between a law and a tyrannical command is that while a law conforms to natural law, tyrannical command conflicts with it.

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CHAPTER THREE

THOMAS AQUINAS’ NOTION OF LAW

3.1 Law Defined: According to Thomas Aquinas, the term “law” derives from the word “to bind” because law obliges us to act. Thus he says:

Law is a rule and measure of acts, whereby man is induced to act or is restrained from acting: for Lex -Law is derived from Ligare (to bind), because it binds one to act.8

Law is a rule, which directs people towards their proper ends by imposing the obligation to act or not to act. St Thomas further defines law as, “An ordinance of reason for the common good, promulgated by him who has the care of the community”9

Law is an ordinance of reason; an order or command of reason. Hence it is not a mere counsel, advice or even suggestion to act. Law obliges one to act. It is of the practical reason, ordained to act. To say that law must be reasonable implies the following: it should be consistent and should not impose contradictory obligations, it should be just, respecting higher rights (rights emanating from Natural Law) and distributing duties equally it should be observable and not unreasonably harsh. It should be enforceable so that all would observe it.

Above all, Law is for the common good. This singular character of law distinguishes it from commands or precepts given only to individual for some personal good. The purpose of the law is for the good of the community as a whole.

Law is promulgated by him who has the care of the community. Here promulgation implies that law must be made known to people who are obliged to keep it. That is to say that for law to be effectively binding on those subject to it, it has to be applied to them. The subjects must have knowledge of it.

On the whole, Aquinas defines law as nothing else but a dictate of practical reason emanating from the ruler who governs a community. The end of law is to realize the common good, and its effect is to make them good.

3.2 Kinds of Law: For Aquinas, law has to do principally with reason. The rule and measure of acts is the reason, because it is the reason that directs a person’s whole activity toward his or her end. Aquinas further argues that since God created all things, human nature and the natural law are best understood as the product of God’s wisdom or reason. Based on this postulation, Aquinas distinguishes four kinds of law as we shall briefly examine below:

3.2.1 Eternal Law: The eternal law is the role of divine wisdom, which is eternal, ordering all things to their end. It is the rational guidance of created things on the part of God.

 3.2.2 Divine positive Law: This is part of eternal law, which is made manifest through revelations in the Christian scriptures.

3.2.3 Natural law: This is the law by which God governs rational beings. Man as a rational creature is governed by God through natural law. Natural law is nothing else but a participation of the rational creature in the eternal Law.

  • Human Positive Law: Human positive law is that which does man, especially civil law, make. Human law must be derived from the natural law.
  • THOMAS AQUINAS NATURAL LAW THEORY:
    • NATURAL LAW DEFINED

Natural law is a tendency residing in all natural things to a definite kind of activity. According to Aquinas, while God governs other creatures in the universe by physical laws of necessity, he governs men through the moral law. St. Thomas Aquinas notion of moral law is synonymous with the natural law, such that when he talks of natural law he means moral law.  Since eternal law rules all things subject to divine providence, it follows that all things in one way or the other partakes of the eternal law. Now among all other things, the rational creature is subject to divine providence and therefore partakes of the eternal law. This participation in the eternal law is called natural law.

Natural law is the manifestation of the eternal law in the rational creature. God promulgates the natural law to man through his rational nature. The principles of the natural law are imprinted in our beings. Now the basic principle of natural law is that ‘the good must be done and evil avoided. Because man’s nature is rational, man discovers this basic principle by the light of natural reason.

From what has being said, it can be asserted that the natural law is the practical judgment of the right reason. It is the tendency of man’s rational nature towards his goals. It is the eternal law as knowable by sound human reason without the help of supernatural revelation. It is the sharing in the eternal law by human beings. Thus St Thomas Aquinas maintains that “the natural law is nothing else but the participation of a rational creature in the eternal law”10. It is the law by which God governs rational beings. The law which directs human behaviour and human acts is called moral law and in so far as man recognizes it with his own reason, it is called natural law. Natural law and eternal law are one law viewed from different angles. Thus M.A Gonsalves has it thus:

What is called natural law from the standpoint of the human subject is called eternal law from the standpoint of God, the lawgiver. In a sense it is the same law looked at from the two sides.11

Furthermore, concerning the existence of natural law, Thomas Aquinas has this to say:

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… Therefore, since all things subject to divine providence are rule and measured by the external law… it is evident that all things partake in some way in the eternal law, in so far as, namely, from its being imprinted on them, they derive their respective inclinations to their proper acts and ends. Now among all others, the rational creature is subject to divine providence in a more excellent way, in so far as it itself partakes of a share of providence, by being provident both for itself and others. Therefore, it has a share of the eternal reason whereby it has a natural inclination to its proper acts and ends; and this participation of the eternal law in the rational creature is called the natural law… The light of natural reason, whereby we discern what is good and what is evil, which is the function of the natural law, is nothing else than an imprint on us of the divine light12

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In the eternal law God decrees that all creatures attain their end by proper acts. This is true of man. By the light of natural reason man discerns God’s plan in his nature through his natural inclinations towards his proper ends.

  • KNOWLEDGE OF NATURAL LAW

Thomas Aquinas calls the precepts of natural law the first principles of human action. For Aquinas the first precept of natural law is that “the good is to be done and pursued, and evil is to be avoided”13. All other principles derive from the first. Now a question may come up as to how the principles of the natural law are discovered. That is, how do we know them? In relation to the above question, Aquinas averred that “the primary principles are self-evident and are known by synderesis”14. Other principles are discoverable by man’s reflection on his natural inclinations. According to Thomas Aquinas, man has certain inclinations towards certain ends intended for him by God. These natural inclinations indicate God’s will for man, and by reflecting on them we can come to have the knowledge of the natural law, for “the order of the precepts of the law of nature follows the order of natural inclinations”15

Now, the knowledge of natural law is based on man’s natural inclination towards his ends-good. As it were, natural law is founded on human nature that is endowed with reasons. Since, good has the nature of an end, it follows that all those things to which man has a natural inclination are naturally apprehended by reason as being good, and therefore as objects of pursuit. Therefore man possesses the knowledge of the natural law by virtue of his natural inclination towards his good and away from evil.

Furthermore, because the natural law is founded on human nature endowed with reason, man cannot outrightly claim being ignorant of it especially as it concerns the fundamental principles, namely, that good is to be so done and evil is to be avoided. In line with this, Grotius posited that to claim ignorant of it (fundamental principle) amounts to doing harm to oneself. Thus he postulates:

I have made it my concern to refer the proofs of things touching the law of nature to certain fundamental conceptions that are beyond question, so that no one can deny them without doing violence to himself. For the principles of that law, if only you pay strict heed to them, are in themselves manifest and clear, almost as evident as are those things which we perceive by the external senses16

From the foregoing, we can see that natural law is written in the hearts of all men; its evident character cannot be questioned or denied by anyone who has the light of reason. It is the light of understanding placed in us by the creator and through it we know what we must do and what we must avoid. Hence the knowledge of the natural law is innate in man so long as man’s reason remains

  • UNIVERSAL NATURE OF NATURAL LAW

To talk of the universal nature of natural law is to talk of natural law pervading all people at all times and at all places. It implies that the natural law is the same for all men in respect to its primary and general principles.  Now to the natural law belongs those things to which a man is inclined naturally. Among all these, it is proper to man to be inclined to act according to reason. This is because man’s nature is endowed with reason through which he discerns the good to be done and evil to be avoided. Now since man’s nature is the same everywhere and natural law is founded on man’s nature, it therefore follows that natural law is universal so long as man can know it by means of his natural reason.

There is not a natural law for primitives and another for the civilized. The natural law is the same for all men according to its rectitude that is founded in our common rational nature. In relation to this Thomas Aquinas maintained “truth or rectitude is the same for all and is equally known by all”17. Consequently we can conclude that the natural law, as to general principles, is the same for all, both as to its rectitude and as to its knowledge.

Furthermore, in man reason rules and commands the other powers, so all the natural inclinations belonging to the other powers need be directed according to reason. Therefore it is universally right for all men, that all their inclinations should be directed according to reason. Put differently, “it is right and true for all to act according to reason”18 Thus, it becomes clear that as far as the general principles of reason are concerned, there is one standard of truth or uprightness for all, and all equally know it. For instance, it is true for all that the three angles of a triangle are together equal to two right angles.

In sum, Natural law is found in all men. It binds every man at all times and in all places for its basis is the very nature of man. All men recognize the force of the first precept of natural law, which is to do good and avoid evil. That is to say that the natural law of reason is based on man’s recognition of the fact that the natural inclination of every man is an inclination towards good.

This fact is a glaring proof that the natural law is universal. Natural law is engraved in the very being of every man because it is human reason urging him to do good and avoid evil. Since it is human reason that urges people to act, every one who has reason is therefore bound by natural law. And since man at all times and all places is endowed with reason, it follows that natural law is universal. In his words, Vernon J. B. Bourke maintains that “natural law designates those rules of justice which may be found written in the hearts of every man”19

3.3.4 IMMUTABLE NATURE OF NATURAL LAW

The talk of immutable nature of natural law implies that natural law cannot be changed. Natural law is immutable and permanent through periods of history. The fundamental principle of the natural law has remained substantially valid and unchanged. That is, that the good is to be done and evil avoided. Natural law flows from the very principles of human nature itself, and human nature does not and in fact cannot change. Human nature is founded on rationality and since natural law flows from this rationality, it follows that natural law cannot change unless human rationality changes.

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Natural law could be said to be changeable if only man’s original nature were subject to change. But as long as man’s original nature (nature based on rationality) does not change, then outrightly, natural law is not subject to change. In line with this argument, Fredrick Copleston opines that “human nature remains fundamentally the same”20

For Thomas Aquinas, the natural law dates from the creation of the rational creature. It does not change according to time, instead it remains unchangeable. He further sees natural law as a certain participation in the eternal law and so derives its immutability from the unchangeableness of the eternal law.

As a matter of fact, natural law is based upon the proposition, “do good and avoid evil”, it follows therefore that natural law eschews what is evil by nature and embraces what is good. Now this moral axiom has remained from time immemorial so that there has never been any time intrinsic good was seen as evil nor intrinsic evil seen as good. So if this principle of natural law has remained the same and unchanged it follows that natural law itself is unchangeable. In support of this argument, Grotius is of the opinion that since God cannot change the nature he has made, then He cannot exchange good for evil and vice versa. Thus he postulates:

Just as even God, then cannot cause that two times two should not make four, so he cannot cause that which is intrinsically evil be not evil21

But if there is a change in natural law, it may be understood in two ways. According to Aquinas, there is a change by way of addition and by way of subtraction. By way of addition, it seems that many things have been added to the natural law for the benefit of human life by human laws. However, this is not addition so to speak neither it is substantially a change. It is rather the application of natural law to concrete and practical cases of human life. In this sense of subtraction, natural law remains completely immutable especially in its first principles for as Suarez opines:

No human power, even though it be the papal power, can abrogate any proper precepts of the natural law, nor truly and essentially restrict such a precept, nor grant a dispensation from it22

In sum, we can say that as long as human reason remains unchangeable, natural law in itself remains unchangeable because it is founded on human rationality.

3.3.5 INDELIBLE NATURE OF NATURAL LAW

By indelible nature of natural law we mean precisely that natural law cannot be effaced from human nature. All men endowed with reason know the primary principle (do good and avoid evil) and the moral axioms as universal principles of morality. Even when this principle (do good and avoid evil) is rejected, it cannot be destroyed or removed from the heart of man. For Augustine would say “thy law is written in the hearts of men, which iniquity itself effaces not”23. But we know that the law which is written in men’s hearts is the natural law. Therefore the natural law cannot be blotted out. Moreover, inclination to do good and avoid evil is itself rooted in “inclination to preserve oneself in existence”24Thus natural law based on this inclination cannot be blotted out from men’s hearts because all men strive towards self-preservation. For Thomas Aquinas “the natural law in the abstract can no wise be blotted out from men’s hearts”25

Natural law flows from the very principles of human rational nature and human nature does not change. Thus Natural law cannot be blotted out.

3.3.6 INDISPENSABLE NATURE OF NATURAL LAW

Indispensable nature of natural law implies that man cannot do without natural law. Or put in a different way, it means that natural law is part and parcel of human life in so far as it inclines man to his proper end.

In the preceding section it was stated that the natural law is a participation of the eternal law by the rational creatures. Eternal Law itself is indispensable in the order of created creatures because by means of it God directs all things as it were to their proper ends.  For Aquinas puts it thus;

Wherefore, since all things subject to Divine providence are ruled and measured by the eternal law, it is evident that all things partake somewhat of the eternal law, in so far as, namely, from its being imprinted on them, they derive their respective inclinations to their proper acts and ends26

If eternal law is indispensable in the order of created things it follows that in a more obvious and excellent manner that natural law as a participation in the eternal law by rational creature is indispensable. Thomas Aquinas puts it succinctly when he said;

Now among all others, the rational creature is subject to Divine providence in the most excellent way, in so far as it partakes of a share of providence … wherefore it has a share of the Eternal reason, whereby it has a natural inclination to its proper act and act this participation in the eternal law is called natural law27

Moreover, natural law is indispensable because it is founded on man’s original nature – reason, which is what directs man to his proper end. If man’s reason is indispensable, it follows that natural law founded on reason is as well indispensable. Thomas Aquinas bringing this to limelight opined;

For every act of reasoning is based on principles that are known naturally, and every act of appetite in respect of the means is derived from the natural appetite in respect of the last end. Accordingly, the first direction of our acts to their end must need be in virtue of the natural law28

Finally natural law derives its indispensability from the indispensability of the eternal law, from where it is deriv

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