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The Question of the Legal Character of Natural Law
The question is how the definition of law that Thomas Aquinas lays out in the Summa theologiae is meant to be applied to what he calls natural law.
Anyone moderately familiar with the section on law in the Summa theologiae, and not so familiar with the literature on natural law in Aquinas, may very well wonder why it is even a question. Can there be any doubt as to how his definition of law in general applies to natural law? Hardly any work of interpretation seems necessary.
In the very article in which he brings his definition of law to completion, Thomas says that ânatural law has the nature of law to the highest degree (maxime).â It is true that he makes this assertion in one of the articleâs objections, so that it cannot immediately be taken to express his own view. But the reply to the objection, far from denying the assertion or qualifying it in any way, only confirms it. It also seems to indicate rather clearly the precise manner in which natural law possesses the nature of law. The objection was against the proposition that promulgation belongs to the essence of law. Natural law, it said, is law to the highest degree, and yet needs no promulgation at all. The reply simply denies that natural law is without promulgation. If natural law stands in no need of promulgation, the reason is that it has been promulgated already, âby the very fact that God has inserted it into the minds of men as something to be naturally known.â With this statement, how natural law fits under Thomasâs definition of law in general seems quite easy to see. That definition, given in the same article, is âan ordination of reason, for the common good, promulgated by him who has care of the community.â Natural law, then, would be an ordination of divine reason, for the common good of the universe, promulgated to man by God as governor of the universe, through the instilling of the natural light of the human intellect.
Two articles later, Thomas offers a rigorous argument to show the existence of a natural law in us. It concludes with his description of natural law as ânothing other than a participation of the eternal law in the rational creature.â Taken as a whole and as it exists in His own mind, the ordination by which God governs the universe is called the eternal law. This certainly fits the definition of law. And in the reply to the articleâs first objection, Thomas insists that natural law is not something diverse from the eternal law, but only a certain participation in it.
Still, unequivocal as these texts seem, Aquinasâs subsequent treatment of natural law does raise one or two questions. The article that presents natural law as a participation of the eternal law in the rational creature belongs to a quaestio devoted to the âdivision of law.â A little further on, Thomas devotes an entire quaestio to the subject of natural law. There he determines what sort of entity in manâs mind it consists in, whether it has one or many precepts, and other characteristics of it. The curious thing is that, in this whole quaestio, the eternal law is not mentioned even once. Nor is its having God as its authorâeven though Godâs being Lord of the universe and author of a divine, supernaturally transmitted law is mentioned. Natural law is treated entirely on the human or natural level and is not referred to God at all.
This is one consideration that has led some interpreters to regard the description of natural law in terms of the eternal law as a mere function of Aquinasâs theological procedure, and not as his strict or sole definition of it. Nor is it the only such consideration. Alan Donagan offers others:
Donagan refers to Aquinasâs derivations of the various precepts of natural law. Usually article 2 of ST IâII.94 is taken to lay the groundwork for these derivations. This article focuses entirely on things pertaining to human nature: the theoretical and practical truths naturally grasped by human reason and the natural inclinations of the human agent. The term natural law, as it is used there, appears to signify nothing other than the first principles of practical reason. Moreover, Thomas nowhere says that people need to have learned of Godâs legislative activity before they can grasp the truth of the first principles of practical reason. These principles are naturally per se nota, self-evident, to everyone. By contrast, Godâs universal providence and legislation, on Thomasâs view, are not naturally self-evident to us. This is the point that Donagan is making with his reference to Aquinasâs assertion that all men know the common principles of the natural law.
The question that Donaganâs claim raises is the following. Can an account of natural law that makes no mention of God, or of the eternal law, still present natural law as a law in the full sense, according to Thomasâs definition of law? It seems...