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Thomas Aquinas on Law
from Summa Theologiae I-II, Questions 90-96 (~1270 AD) translated by Richard Regan (2000)
Question 90. On the Essence of Law
Article 1. Does law belong to reason?
… It belongs to law to command and forbid. But to command belongs to reason … Therefore, law belongs to reason.
Reply. Law is a rule and measure of acts that induces persons to act or refrain from acting. For ‘law’ ( lex ) is derived from ‘binding’ ( ligare ) because law obliges persons to act. And the rule and measure of human acts is reason, which is the primary source of human acts … And so we conclude that law belongs to reason. …
Article 2. Is law always directed toward the common good?
It seems that law is not directed toward the common good as its end: …
1. Law guides the actions of human beings. But human acts regard particulars. Therefore, law is likewise directed toward particular goods. 2. Isidore says in Etymologies , “If law is based on reason, everything founded on reason will be law.” But both things directed toward the common good and things directed toward private good are based on reason. Therefore, law is directed both toward the common good and toward the private good of individuals.
On the contrary. Isidore says in his Etymologies V that laws are “enacted for no private convenience but for the common benefit of citizens.”
Reply. As I have said, law belongs to the source of human acts, since law is their rule and measure. And as reason is the source of human acts, so also is there in reason itself something that is the source of all other kinds of acts. And so law needs chiefly and especially to belong to this source.
Now, the first source in practical matters, with which practical reason is concerned, is the ultimate end. But the ultimate end of human life is
happiness or blessedness, as I have maintained before. And so law especially needs to consider its direction with regard to blessedness.
Moreover, law in the strict sense needs to concern its direction toward general happiness, since every part is directed toward the whole as something imperfect to something perfect, and since a single person is part of a perfect community. And so the Philosopher … says in Ethics V, “We call those laws just that constitute and preserve happiness and its particulars by citizens’ sharing in a political community.” …
Now, regarding any kind of thing, the one most such is the source of the others, and we call the others such by their relation to that one. For example, fire, which is hottest, causes heat in composite material substances, which we call hot insofar as they share in fire. And so, since we speak of law in the first place because of its direction toward the common good, every other precept regarding particular acts has the nature of law only because of its direction toward the common good. And so every law is directed toward the common good. …
Response to 2. Actions indeed concern particular matters, but such particulars can be related to the common good by sharing in the final cause, insofar as we call the common good the final cause, not by sharing in a genus or species.
Response to 3. As theoretical reason firmly establishes nothing except by tracing things back to first indemonstrable principles, so practical reason firmly establishes nothing except by ordering things to our ultimate end, that is, our common good. And what reason so establishes has the nature of law. …
Question 91. On Different Kinds of Law
Article 1. Is there an eternal law?
It seems that there is no eternal law:
1. Every law is imposed on particular persons. But there was no one from eternity on whom law could be imposed, since only God was from eternity. Therefore, no law is eternal.
On the contrary. The Common Gloss on Romans 2:14, “When the Gentiles, who do not have the law, do by nature things prescribed by the law,” etc., says: “Although they do not have the written law, they have a natural law, whereby each of them understands and is conscious of good and evil.”^1
Reply. … [E]verything evidently shares in some way in the eternal law, namely, insofar as all things have inclinations to their own acts and ends from its imprint on them. But the rational creature … shares in the eternal plan whereby it has its natural inclination to its requisite activity and end. And we call such participation in the eternal law by rational creatures the natural law. And so Psalm 4:6, after saying, “Offer just sacrifices,” asks: “Who shows us just things?” and replies: “The light of your countenance, O Lord, has been inscribed on us.” The Psalmist thus signifies that the light of natural reason whereby we discern good and evil is simply the imprint of God’s light in us. And so it is clear that the natural law is simply rational creatures’ participation in the eternal law.
Response to 1. The argument of this objection would be valid if the natural law were to be something different from the eternal law. But the natural law shares in the eternal law, as I have said.
Response to 2. Every activity of reason and the will in us is derived from what exists by nature, as I have maintained before, since every process of reasoning is derived from first principles known by nature, and every desire of means is derived from the natural desire of our ultimate end. And so also the natural law needs first to guide our acts to their end.
Response to 3. Even irrational animals, like rational creatures, share in the eternal law in their own way. But because rational creatures share in the eternal law by using their intellect and reason, we call their participation in the eternal law ‘law’ in the strict sense, since law belongs to reason, as I have said above. And irrational creatures do not share in the eternal law by the use of reason. And so we can call the latter participation law only by analogy.
Article 4. Did human beings need a divine law?
It seems that human beings did not need any divine law:
(^1) The Glossa ordinaria, a 12th-century compilation of patristic and medieval glosses on the Bible.
1. The natural law is our participation in the eternal law, as I have said. But eternal law is divine law, as I have said. Therefore, we do not need another divine law besides the natural law and the human laws derived from natural law. … 3. Human nature is more self-sufficient than irrational creatures. But irrational creatures have no divine law besides the inclinations that nature implants in them. Therefore, much less should rational creatures have a divine law besides the natural law. …
Reply. In addition to the natural law and human laws, divine law was necessary to give direction to human life. And there are four reasons for this.
First, law directs our acts in relation to our ultimate end. And human beings, if they were indeed directed only toward an end that did not surpass the proportion of their natural ability, would not, regarding reason, need to have any direction superior to the natural law and human laws derived from the natural law. But because human beings are directed toward the end of eternal happiness, which surpasses their proportional natural human capacity, as I have maintained before, God needed to lay down a law superior to the natural law and human laws to direct human beings toward their end.
Second, because of the uncertainty of human judgment, especially regarding contingent and particular matters, different persons may judge differently about various human actions, and so even different and contrary laws result. Therefore, in order that human beings can know beyond any doubt what they should do or should not do, a divinely revealed law, regarding which error is impossible, was needed to direct human beings in their actions.
Third, human beings can make laws regarding things they are able to judge. But human beings can judge only sensibly perceptible external acts, not hidden internal movements. And yet human beings need to live righteously regarding both kinds of acts in order to attain complete virtue. And so human laws could not prohibit or adequately direct internal acts, and divine law needed to supplement human laws.
Fourth, human laws cannot punish or prohibit all evil deeds, as Augustine says in On Free Choice [I.5]. This is because in seeking to eliminate all evils,
Therefore, since virtue makes those possessing it good, the proper effect of law is consequently to make its subjects good, either absolutely or in some respect. For if the aim of the lawmaker strives for real good, that is, the common good regulated by divine justice, law consequently makes human beings absolutely good. But if the aim of lawmakers is set upon what is not absolutely good but what is useful or desirable for themselves or contrary to divine justice, then law makes human beings relatively, not absolutely, good, namely, in relation to such a regime. So also does good belong to things in themselves evil. For example, we speak of a good robber, since he acts suitably to accomplish his end. …
Response to 2. People do not always obey law out of the perfect goodness of virtue. Rather, they sometimes indeed obey law out of fear of punishment and sometimes only out of dictates of reason, which cause virtue, as I have maintained before.
Response to 3. We weigh the goodness of any part in relation to the whole to which it belongs. … Therefore, since every human being is part of a political community, no human being can be good unless rightly related to the common good. Nor can a whole be rightly constituted except by parts rightly related to it. And so the common good of a political community can be rightly disposed only if its citizens, at least those to whom its ruling belongs, are virtuous. …
Response to 4. A tyrannical law, since it is not in accord with reason, is not a law, absolutely speaking. Rather, it is a perversion of law. And yet such a law strives to make citizens good inasmuch as it partakes of the nature of law. For it only partakes of the nature of law insofar as it is a ruler’s dictate for his subjects and strives to make them duly obedient, that is, to make them good in relation to such a regime, not absolutely good. …
Question 93. On the Eternal Law
Article 1. Is the eternal law the supreme plan in God?
… Reply. As there preexists in every craftsman a plan ( ratio ) for the things produced by his skill, so also there needs to exist in every ruler an orderly plan for the things his subjects ought to do. And as we call the plan for the things that a craft produces, the craft or ideal type of the things crafted, so also the plan of a ruler for his subjects’ actions has the nature of law … And
God in his wisdom creates all things and is related to them like a craftsman to the products of his craft, as I have maintained in the First Part. God also governs all the actions and movements in particular kinds of creatures, as I have likewise maintained in the First Part. And so, as the plan of divine wisdom has the nature of a craft or type or idea because all things are created through it, so the plan of divine wisdom causing the movement of all things to their requisite ends has the nature of law. And so the eternal law is simply the plan of divine wisdom that directs all the actions and movements of created things.
Article 2. Do all know the eternal law?
It seems that not everybody knows the eternal law:
1. The Apostle says in 1 Corinthians 2:11: “Only the Spirit of God knows the things proper to God.” But the eternal law is a plan in God’s mind. Therefore, no one but God knows the eternal law. …
On the contrary. Augustine says in On Free Choice [I.6] that “knowledge of the eternal law is imprinted on us.”
Reply. We can know things in two ways: in one way in themselves; in a second way in their effects, in which a likeness to them is found. For example, those who are not looking at the sun know it in the effects of its rays. Therefore, we should say that no one except the blessed, who see God by his essence, can know the eternal law as it is in itself. But every rational creature knows it in some of its radiating effects, whether greater or lesser. For every knowledge of truth is a radiation and participation of eternal law, which is incommunicable truth, as Augustine says in On True Religion. For everybody knows truth to some extent, at least regarding the general principles of the natural law. But some share more and some less in knowing truth regarding other things. And so also they know more or less of the eternal law.
Response to 1. We indeed cannot know things proper to God in themselves, but such things are evident to us in their effects, as Romans 1: says: “We perceive the invisible things of God when they are understood through the things he created.”
Reply. The eternal law is the plan of divine governance, as I have said above. Therefore, everything subject to divine governance is also subject to the eternal law, but things not subject to divine governance are not subject to the eternal law. This distinction can be seen in the context of human affairs. For example, things that human beings can do are subject to human governance, but things that belong to the nature of human beings (e.g., that human beings have souls or hands or feet) are not subject to human governance. In the same way, then, everything belonging to created things, whether contingent or necessary, belongs to the eternal law, but things belonging to the divine nature or essence are in fact the eternal law itself and not subject to the eternal law. …
Question 94. On the Natural Law
Article 2. Does the natural law include several precepts or only one?
… Reply. As I have said above, the precepts of the natural law are related to practical reason as the first principles of scientific demonstrations are related to theoretical reason. For both the precepts of the natural law and the first principles of scientific demonstrations are self-evident principles. And we speak of things being self-evident in two ways: in one way as such; in a second way in relation to ourselves. We speak of self-evident propositions as such when their predicates belong to the nature of their subjects, although such propositions may not be self-evident to those who do not know the definition of the subjects. For example, the proposition ‘Human beings are rational’ is by its nature self-evident, since to speak of something human is to speak of something rational, although the proposition is not self-evident to one who does not know what a human being is. And so, as Boethius says in his work On the Hebdomads, there are axioms or universally self-evident propositions, and propositions whose terms all persons know (e.g., ‘Every whole is greater than one of its parts’ and ‘Things equal to the same thing are themselves equal’) are such. But some propositions are self-evident only to the wise, who understand what the proposition’s terms signify. For example, for those who understand that angels are not material substances, it is self-evident that angels are not circumscriptively in a place, something not evident to the uneducated, who do not understand the nature of angels.
And there is a priority regarding the things that fall within the understanding of all persons. For what first falls within our understanding is being, the
understanding of which is included in everything that one understands. And so the first indemonstrable principle is that one cannot at the same time affirm and deny the same thing. And this principle is based on the nature of being and non-being, and all other principles are based on it , as Metaphysics III says. And as being is the first thing that without qualification falls within our understanding, so good is the first thing that falls within the understanding of practical reason. And practical reason is ordered to action, since every efficient cause acts for the sake of an end, which has the nature of good. And so the first principle in practical reason is one based on the nature of good, namely, that good is what all things seek. Therefore, the first precept of the natural law is that we should do and seek good, and shun evil. And all the other precepts of the natural law are based on that precept, namely, that all the things that practical reason by nature understands to be human goods or evils belong to precepts of the natural law as things to be done or shunned.
And since good has the nature of end, and evil the nature of the contrary, reason by nature understands to be good all the things for which human beings have a natural inclination, and so to be things to be actively sought, and understands contrary things as evil and to be shunned. Therefore, the order of our natural inclinations orders the precepts of the natural law.
First, for example, human beings have an inclination for good by the nature they share with all substances, namely, as every substance by nature seeks to preserve itself. And regarding this inclination, means that preserve our human life and prevent the contrary belong to the natural law.
Second, human beings have more particular inclinations by the nature they share with other animals. And so the Digest says that things “that nature has taught all animals,” such as the sexual union of male and female, and the upbringing of children, and the like, belong to the natural law [Justinian, Digest I, title 1, law 1].
Third, human beings have inclinations for good by their rational nature, which is proper to them. For example, human beings by nature have inclinations to know truths about God and to live in society with other human beings. And so things that relate to such inclinations belong to the natural law (e.g., that human beings shun ignorance, that they not offend those with whom they ought to live sociably, and other such things regarding those inclinations).
the most part, but it might in particular cases be injurious, and so contrary to reason, to return the goods (e.g., if the owner should be seeking to attack one’s country). And the more the particular conclusion goes into particulars, the more exceptions there are … For the more particular conditions are added to the particular conclusion, the more ways there may be exceptions, so that the conclusion about returning or not returning entrusted goods is erroneous.
… And also as to knowledge of the natural law, the law can be wanting because emotions or evil habituation or evil natural disposition has perverted the reason of some. For example, the Germans of old did not consider robbery wicked, as Caesar’s Gallic Wars relates, although robbery is expressly contrary to the natural law. …
Question 95. On Human Law
Article 2. Is every human law derived from the natural law?
… Reply. Augustine says in On Free Choice [I.5]: “Unjust laws do not seem to be laws.” And so laws have binding force insofar as they have justice. And we say regarding human affairs that things are just because they are right according to the rule of reason. But the primary rule of reason is the natural law, as is evident from what I have said above. And so every human law has the nature ( ratione ) of law to just the extent that it is derived from the natural law. A human law diverging in any way from the natural law will be a perversion of law and no longer a law.
But we should note that we can derive things from the natural law in two ways: … For example, one can derive the prohibition against homicide from the general principle that one should do no evil to anyone. And some things are derived from general principles of the natural law as specifications. For example, the natural law orders that criminals should be punished, but that criminals be punished in this or that way is a specification of the natural law. …
Question 96. On the Power of Human Laws
Article 2. Does it belong to human laws to prohibit all vices?
It seems that it belongs to human laws to prohibit all vices: …
2. The aim of lawmakers is to make citizens virtuous. But citizens can be virtuous only if they are curbed of all vices. Therefore, it belongs to human law to curb all vices. 3. Human law is derived from natural law, as I have said above. But all sins are contrary to the natural law. Therefore, human law ought to prohibit all vices. …
Reply. Laws are established as the rules or measures of human actions, as I have already said. But measures should be homogeneous with what they measure … And so laws need also to be imposed on human beings according to their condition … And the power or ability to act results from internal disposition or condition, since the virtuous and those without virtuous dispositions do not have the same power to act. Just so, children and adults do not have the same power to act, and so the law is not the same for children and adults. For example, many things are permitted children that the law punishes in adults, or even that public opinion censures. And likewise, many things are tolerated in persons of imperfect virtue that would not be tolerated in virtuous persons.
And human law is established for the collectivity of human beings, most of whom have imperfect virtue. And so human law does not prohibit every kind of vice from which the virtuous abstain. Rather, human law prohibits only the more serious kinds of vice, from which most persons can abstain, and especially those vices that inflict harm on others, without the prohibition of which human society could not be preserved. For example, human laws prohibit murders, thefts, and the like. …
Response to 2. Human laws aim to induce human beings to virtue little by little, not all at once. And so the laws do not immediately impose on the many imperfect citizens what already belongs to virtuous citizens, namely, that citizens abstain from everything evil. Otherwise, the imperfect citizens, unable to endure those commands, would erupt into worse evil things. Just so, … Matthew 9:17 says: “If one should put new wine,” that is, the precepts
so such laws do not oblige in the court of conscience, except perhaps to avoid scandal or civil unrest, to avoid which human beings ought to yield even their rights. Just so, Matthew 5:40-41 says: “If someone has taken your coat from you, give the person your cloak as well, and if someone has forced you to go one mile, go with the person another two.”
Laws can be unjust in a second way by being contrary to the divine good (e.g., the laws of tyrants inducing their subjects to worship idols or to do anything else contrary to the divine law). And it is never permissible to obey such laws, since “we ought to obey God rather than human beings,” as Acts 5:29 says. …
Response to 2. The argument of this objection is valid about human laws ordered contrary to God’s commandments. And the scope of human power does not extend to such laws. And so one should not obey human laws in such matters.
Response to 3. The argument of this objection is valid about laws that inflict unjust burdens on citizens, and also the scope of power granted by God does not extend to such laws. And so human beings are not obliged in such cases to obey the laws if it be possible to resist them without giving scandal or causing greater harm. …
Article 6. Are those subject to the law permitted to act contrary to the letter of the law?
… Reply. As I have said above, every law is directed toward the common welfare of human beings and has the force and nature of law insofar as it is so directed. But a law has no power to bind morally insofar as it falls short of this direction. … And it often happens that observing the law is generally beneficial to the common welfare but most harmful to it in particular cases. Therefore, since lawmakers cannot envision all particular cases, they direct their aim at the common benefit and establish laws regarding things that generally happen. And so one should not observe a law if a case happens to arise in which observance of the law would be harmful to the common welfare. For example, if a law should decree that the gates of a besieged city remain shut, this is for the most part for the benefit of the common welfare. But if a situation should arise in which enemy soldiers are pursuing some citizens defending the city, it would be most harmful to the community if the gates were not to be opened to admit the defenders. And so, contrary
to the letter of the law, the city gates should be opened in such a situation in order to preserve the common welfare, which is the lawmaker’s intention.
And yet we should note that not everyone is competent to interpret what may or may not be beneficial for the community if observance of the letter of the law does not risk a sudden danger that needs to be immediately resolved. Rather, only rulers are competent to make such interpretations, and they have authority in such cases to dispense citizens from laws. On the other hand, if there be a sudden danger that does not allow enough time to be able to have recourse to a superior, the very necessity includes an implicit dispensation, since necessity is not subject to the law. …
