Uncommon Sense: St. Thomas Aquinas and John Paul II on Law
Fr. Michael Sweeney, OP
Christopher Dawson, the great cultural historian, once proposed that any culture should be thought first to comprise the products of human reason and praxis of which we are least conscious, the unexamined customs of thought and behavior that shape our relationship to the world and to each other. So, for example, our language affords us the possibility to reflect upon our experience, to render it conscious; at the same time, unconsciously, it shapes our experience by canonizing assumptions that are embedded in the very meaning of the words that we use. Part of the educational project must be, therefore, to render conscious one's own cultural assumptions: there is an ever present urgency that we transcend our own culture.
There are, of course, those who claim that cultural transcendence is impossible. One consequence of such a position must be that the texts of other cultures are, necessarily, closed to us. I suspect that it will not come as a surprise that I hold that this position is not true; otherwise, to read the Scriptures (or any ancient or medieval text) would be, as some would have it, a forlorn and hopeless exercise – one in which, in my case, I find myself engaged every day. The culture that produced the Old and the New Testament is not our own, however much of our culture has been influenced by it. While I do hold that it is possible to transcend our own culture, I am also aware that it is very hard work and that it is a work that, necessarily, must be undertaken with others. Not to undertake this work, moreover, can, and does, lead to dire consequences.
So, for example, I have prayed the Lord's Prayer every day since my early childhood. My childhood was happy and secure, and as a child I was able to pray "Thy will be done" with complete serenity. Later, however, I grew uneasy about the potential consequences of such a petition and, while I continued to pray, "Thy will be done" I found myself thinking such things as, "but please don't send me to Africa or any place that is hot." I had inherited an understanding of “will” that necessarily implies coercion, whether on my own part – I command myself to do what is right, even when I don't want to – or by another: someone else determines what is right and commands me. This understanding, I might add, was very much reinforced by a good many sermons on the subject.
What I did not then know was that, while “commanding” is, indeed, an act of the will, “commanding” does not suggest coercion. In fact, quite the contrary is true: for the ancient and medieval Jewish and Christian authors, the will first signifies, not coercion, but delight. St. Thomas Aquinas insists, for example, that the will is most engaged – most actual, most itself – when it rests in the presence of the beloved. What I am praying when I say “Thy will be done” is, therefore, “May your delight in things be my own” and I am reminded that the one whom I address has looked upon the human creation and pronounced it “very good.”
I am not confident that the majority of those who pray the Lord's Prayer are aware of this. I fear, in fact, that a great deal of the tradition is subject to profound misunderstanding precisely because our cultural assumptions provide the filter through which we approach it. What is necessary is to render our own assumptions conscious and to do this at least two things are required: we must first try to articulate our own understanding of the terms of the texts that are before us, and inquire as to whether this can be what the author understood, in order to illumine what cultural impediments there might be to our appropriating the precise meaning of the text; then, second, we must translate what is said into contemporary categories, taking into account the cultural impediments that we have illumined. This is what John Paul II attempted when he used the term “person” to rehabilitate, or translate for contemporary society, what Aquinas understood and wrote concerning what the law is and, more particularly, what he taught concerning the natural law.
That there may be cultural impediments to our understanding an author becomes most easily apparent when a proposition that he or she holds appears to be absurd. We are then confronted with two possibilities: either the author is an idiot, or there is something that precludes our understanding him. So, for example, we read in the Summa Theologiae of St. Thomas, “A law is in a person either simply, as one who rules, or by participation, as one who is ruled. In the latter way each one is a law to himself insofar as he shares the direction of the one who rules him” (STh I-II, 91, 3 ad 1). We can be reasonably certain that Thomas Aquinas is not an idiot. Yet there are problems with this text: How can a law be “in a person?” Then, how can he say that one who is ruled “is a law to himself?” It would seem that one who is ruled is precisely not a “law to himself,” but rather that his behavior is determined by another. Finally, in what manner does one who is governed “share the direction of the one who rules him?” Is St. Thomas speaking tongue-in-cheek?
I suggest that our difficulty is due to what we, as a culture, assume concerning law. We assume, with Cicero, that “the will of the sovereign has the force of law.” St. Thomas cites this text, but for Thomas there is a caveat: the will of the sovereign has the force of law, but only to the degree that the will of the sovereign has also a double conformity – on the one hand, to the common good as the people (not the sovereign) discern it, and on the other hand to reason. The will of the sovereign cannot have the character of law if what the sovereign wills is contrary to reason.
I submit to your judgment the verdict of a member of the California Bar when I offered in a talk the definition of law that St. Thomas borrows from Boethius. Law, Boethius proposes, is “a precept of reason, for the sake of the common good, enacted by competent authority, and promulgated.” “No it isn't,” the gentleman responded, “the law is whatever the legislature enacts,” limiting, thereby, the definition to “enacted by competent authority.” What Thomas means by “promulgation” is, as we shall shortly see, that laws must be submitted to the judgment of the people; if the will of the sovereign alone has the character of law, then even promulgation is unnecessary; recall that, in modern jurisprudence, ignorance of the law does not excuse its transgression.
I would suggest that the attorney, not Boethius, speaks to what has become the common contemporary understanding of law: that a law is reasonable is no longer the measure of the law; instead, our view is voluntarist, and law in the popular imagination is taken to be whatever is in conformity to the will of the people. This is, of course, an idea that has its roots in the Enlightenment, according to which sovereignty is vested in the people, rather than in the Bourbon or Stuart monarch. We should notice, however, that even this notion of sovereignty has become dubious, inasmuch as the popular will can be overthrown – or not even invoked – by the legislators or the courts, in which case the sovereign has become the one whose office it is to legislate or to interpret the constitution.
However it now functions, the law, in popular imagination and in praxis, has to do with the will rather than with reason: whatever is legislated is what constitutes law. If this is so, then St. Thomas" notion of the manner in which the law is “in” a person could only apply to the legislator (or jurist), as “the one who rules.” The law is, in a sense, imposed upon everyone else. Even the individual who fully assents to a law receives a law as something imposed from without, in that his or her assent to a law, or even knowledge that there is such a law, is not necessary for a law to have binding force.
That the law could be “in” the person who is governed by participation appears to be completely incongruent with contemporary understanding and, therefore, funny: I suppose that I “participate” in a law rather in the manner that I might be said to be a “participant” at my own execution: I am certainly involved in the affair, but the initiative really belongs to somebody else. That my “participation” thereby constitutes me as “a law unto myself” is, simply, incomprehensible; it is too obscure even to be funny.
We have discovered certain impediments to our capacity to understand St. Thomas' text. But we must now engage him on his own terms, which is only possible when we have illumined the otherwise unconscious assumptions that we ourselves hold. Moreover, aware that his view is incomprehensible in the light of popular assumptions, we must reconstruct the whole conversation from his point of view. What are his premises?
St. Thomas' first premise –and the one with which we have the greatest difficulty – is his insistence that reason alone, not the will, is the measure of law. Can we reconstruct his argument?
“It belongs to the law to command and forbid. But it belongs to reason to command” (Summa Theologiae, I-II, 90, 1). That it belongs to the law to command and forbid is evident enough: the sovereign commands and forbids by means of his or her (or, if we are sentimentalists, “our”) will. How can St. Thomas insist that the reason, not the will, commands? His assertion is founded upon the fact that what defines the action of a human person, insofar as the action is properly human, is the exercise of intelligence or reason:
Man differs from a non-rational animal in this, that he is master of his actions. Wherefore those actions alone are properly human, of which reason is master. Man is master of his actions through his reason and will, hence the free will is defined as the faculty of will and reason. Therefore those actions are properly called human which proceed from a free will. What is first in [the person's] intention is what causes [that is, what is the necessary condition of] acting for an end, and this [that is, the intention] is assigned by the reason. The deliberation of reason guides the will (STh I-II, 1, 1).
For St. Thomas there can be no act of the will apart from reason, because, whereas the will moves the reason to act, it is reason, and not the will, that assigns the intention or purpose according to which one wills; the will cannot be thought apart from the reason which, in all human activity, has the pride of place:
Those beings that are possessed of reason move themselves to an end because they have dominion over their actions through their free will, which is the faculty of will and reason. . . . It is proper to the rational nature to tend to an end by directing (agens) and leading itself to the end (STh I-II, 1, 2).
Notice that free will (the faculty of will and reason) belongs to the very definition of the human person: in this view, man and woman cannot be alienated from the exercise of their reason and will, and therefore they cannot cease to be the first agents or subjects of their own acts. What, then, is the role of law?
Because law is proper to reason as the measure and rule of human acts, universal propositions of the practical intellect that are directed to action have the nature of law. Therefore in order that the relation of what is commended may have the nature of law, it needs to be in accord with some rule of reason (STh I-II, 90, 1 ad 2).
First, St. Thomas holds that law is the measure and rule of every properly human act. The behaviors that characterize our animal nature – eating sleeping and the like – become properly human only when we subordinate them to our intention, which is to say, when we impose a law, such as when we fast or diet. Thus, “law” pertains whenever we act according to our own intention, that is, “whenever universal propositions of the practical intellect are directed to action.”
We can now begin to understand what St. Thomas means when he says that the law is “in” the one who is governed by means of participation: when one acts according to a law that has been enacted by the sovereign, he or she receives it, that is, perceives its rationality, and applies it to his or her own action. But in doing so, the one who is governed remains the agent or subject of his or her own action – remains, as St. Thomas terms it, “a law unto himself.” So, for example, if I approach a stop sign, I obey the law when I grasp the reasonableness of regulating traffic for the sake of myself and others, and apply the law to my own circumstance, whereby I slow down my vehicle and stop. Obeying the law requires an assertion of my agency, not a suspension of it; I command according to my intention or, otherwise put, I am sovereign in my own acting, a law unto myself.
This being so, what happens in a situation in which I do not grasp the reasonableness of some law that has been enacted? And, for that matter, if each person necessarily regulates his or her own acts according to the measure of reason – that is to say, according to law – then how do we account for the need for legislating things? What are the need for and the role of positive law?
To answer this question requires that we probe a little more deeply the character of law itself. Again, for St. Thomas, law is nothing other than a rational measure of human acts – that is, acts that are properly human, because rational. Now the function of intelligence is nothing other than to perceive and grasp order in things. There is an order to creation and to human existence; this order that is true of creation St. Thomas terms the “eternal” law. Unlike the other animals, the human person is rational, i.e. the human person participates in the created order by perceiving and understanding it, and using it as a measure of his or her own acts. In this sense, he is “a law unto himself.” This manner of receiving the eternal law he terms the “natural” law. The natural law is not a “law of nature” but the human person understanding the order in things, and acting for his or her own good in terms of it.
This order is first grasped intuitively, and it is grasped by every human person, insofar as he or she retains use of the rational faculty; what Thomas refers to as the first principles of human action – or, to say the same thing, the fundamental precepts of the natural law – are not derived, and are therefore not known referentially. There are four characteristics of these first precepts of the natural law that proceed from the order that intelligence grasps: they are known by everyone, they are the same for everyone, they are unchanging and unchangeable, and knowledge of them cannot be lost. So, for example, everyone acts for the sake of what is his or her own good, at least so far as he or she perceives it. Thus, everyone knows that the good is to be done, and evil to be avoided. There is no human person who lacks knowledge that there is something that he or she seeks, something that we designate in English, “good,” and this understanding has been constant in time. The good that the human person seeks is, at the most fundamental level, “common”: it is true of everyone and therefore and necessarily true of each.
While the first, intuited, principles of human action are universally grasped and the same for all, their application to particular times, places and circumstances necessarily differs. This, then, is the purpose of positive law: to apply the universally grasped principles of human action to particular circumstances in order that the good may be achieved, which is to say that the order that characterizes human life is preserved (cf. STh I-II, 92, 4 and 5). So, for example, it is evident to all that each creature seeks to preserve itself in being, that life and health are fundamental human goods. How society cares for those who cannot care for themselves – whether due to youth, sickness, disability or age – is something that must be discerned according to the particularities of time, place and circumstance.
St. Thomas never tires of reminding us that the human subject retains, fully, the agency of his or her properly human acts. At the same time, the human person also must be taught to act according to reason; we well know that one"s rationality can be compromised by passions and appetites. Accordingly, from this perspective, the fundamental purpose of positive law is not to impose order – order in human acts is already present insofar as they are human acts – but to inculcate virtue: to teach how to apply the universal notions that are common to concrete and particular circumstances. In this way children are taught, by means of the order that regulates their homes, to become less and less slaves to their own passions and more and more fully the subjects of their own acts. They participate in the law by becoming “laws unto themselves.”
Positive law, so construed, cannot be arbitrary, in that it is contrary to the very definition of law that it be arbitrary: law is a rational (ordered) measure of human acts. Moreover, because every human person can grasp what is reasonable, a law must be promulgated: it must be proposed as reasonable to the citizens by one who acts as the “vice-regent” of the people (STh I-II, 90, 3). The appeal is not to the “will” of the people or to the “will” of the sovereign, but to the order itself that each human person perceives. It therefore follows that if the sovereign proposes anything that is unreasonable, his or her subjects are not obliged to obey; on the contrary, if anything that is proposed is contrary to a fundamental precept of the natural law there is an obligation to resist, so long as the common good is not thereby done greater harm than it would be by receiving the lawless edict of the sovereign.
The acts of the sovereign are themselves subordinated to the same order that each person perceives, and in the exercise of prudence –the virtue which governs all action in the practical order – the whole people must therefore ratify what the sovereign legislates. This holds true, according to St. Thomas, whether the particular form of government is monarchy, aristocracy or democracy, and for this reason Mortimer Adler referred to St. Thomas as the first true democrat. (I might be moved to add, even without being asked, that he is one of the very few real democrats known to history.)
We have seen that what St. Thomas holds regarding the law is not absurd, but we can also well see how it is that his insights are at odds with the understanding of law that is held by the vast majority of our contemporaries. Notice, too, that it is not the case that the notion of order in human acts is itself disputed; rather it is that we tend to begin the conversation about law one step too late: we neglect to consider whither our idea of law and we therefore miss the facts both that the law is a necessary product of reason and that, in principle, to act in an intelligent and ordered manner is common to humanity.
By what means is it possible to translate St. Thomas" insights into contemporary categories? This was, I contend, what John Paul II attempted in rehabilitating and placing before us the notion of “person.”
There is no question that John Paul's understanding of law depends upon and comments St. Thomas. His understanding of the natural law is exactly that of St. Thomas:
The light of natural reason whereby we discern good from evil, which is the function of the natural law, is nothing else but an imprint on us of the divine light. It also becomes clear why this law is called the natural law: it receives this name not because it refers to the nature of irrational beings but because the reason which promulgates it is proper to human nature (Veritatis Splendor, 42.2).
Like St. Thomas, John Paul insists that moral agency belongs in the particular human subject, who cannot be alienated from it. He does this, however, not by considering the objective character of human acts as does St Thomas, but through a consideration of the human person as the subject of moral agency:
The natural moral law expresses and lays down the purposes, rights and duties which are based upon the bodily and spiritual nature of the human person. Therefore this law cannot be thought of as simply a set of norms on the biological level; they must be defined as the rational order whereby man is called by the Creator to direct and regulate his life and actions and in particular to make use of his own body. Human life, even though it is a fundamental good of man, acquires moral significance in reference to the good of the person, who must always be affirmed for his own sake (Veritatis Splendor, 50. 1).
It had not occurred to St. Thomas to assert that the human person “must always be affirmed for his own sake.” In fact, the use of “person” by St. Thomas is limited; he utilizes the term, for example, in his study of the Trinity. Rather than asserting the agency of the human person, St. Thomas speaks of “man” and of man's “faculties.” His treatment of the law is objective, in the sense that he justifies positive law by means of the necessity to apply the universal principles that reason grasps to particular circumstances. However, John Paul appears to rest the legitimacy of positive law on the assertion of “the good of the person”; in his analysis the focus is on the human subject. Why this emphasis?
In the understanding of John Paul there is one problem which, more than any other, precludes any grasp of an objective presentation of law in the manner of St. Thomas. We have already observed that our popular notion of law really consists in a voluntarism: law is determined by the will of the legislator or of the people. For John Paul, who is unquestionably in this regard a disciple of St. Thomas, this understanding of law is flawed. But it derives, he holds, from a more fundamental misunderstanding concerning human freedom. Contemporary society, according to John Paul, understands freedom, not in the manner of St. Thomas – that is, as a characteristic of one who, through reason and will governs himself by assigning his own ends – but in terms of a radical autonomy from others:
…The roots of the contradiction between the solemn affirmation of human rights and their tragic denial in practice lies in a notion of freedom which exalts the isolated individual in an absolute way, and gives no place to solidarity, to openness to others and service of them (Evangelium Vitae, 20).
The exaltation of “the isolated individual” has two consequences in John Paul's analysis. First, it leads to the incapacity to grasp what is common; contemporary society now consists, not in a community of persons, but in a “mass of individuals”:
If the promotion of the self is understood in terms of absolute autonomy, people inevitably reach the point of rejecting one another. Everyone else is considered an enemy from whom one has to defend oneself. Thus society becomes a mass of individuals placed side by side, but without any mutual bonds. Each one wishes to assert himself independently of the other and in fact intends to make his own interests prevail (Evangelium Vitae, 20).
We should notice that John Paul juxtaposes “individuals” and “persons”: to the degree that men and women regard themselves as individuals whose supreme value is autonomy, they cease to regard themselves as persons, for to be a person, according to John Paul, is to be a subject in relation to other subjects. The second consequence of exalting the individual is, accordingly, a false subjectivity that alienates the human subject; overlooking what is common, the individual also loses the capacity to grasp the truth about himself or herself:
Man is no longer capable of posing the question of the truest meaning of his own existence, nor can he assimilate with genuine freedom the crucial moments of his own history. He is concerned only with "doing," and, using all kinds of technology, he busies himself with programming, controlling and dominating birth and death. Birth and death, instead of being primary experiences demanding to be "lived," become things to be merely "possessed" or "rejected" (Evangelium Vitae, 22).
Note that John Paul makes the rather startling claim that man has come to lack the capacity of questioning the most fundamental meaning of his own existence. But can this be so, particularly on the part of a disciple of St. Thomas? Remember that St. Thomas asserts that the human subject cannot lose or be deprived of the fundamental precepts of the natural law; nor can the agency of the human subject be alienated from him or her, so long as one is alive. Hence the capacity to perceive order in one's own existence, which is itself the natural law – and therefore to interrogate it – must somehow be present.
From another point of view, St. Thomas can be challenged in his assertion of the universal applicability of what he calls the fundamental precepts of the natural law, simply on the grounds that apparently not everyone holds them. So, for example, St. Thomas asserts that the ordination of marriage to the procreation of children is a fundamental precept of the natural law, and as such is apparent to everyone; that marriage is monogamous, on the other hand, is not. But many in our culture would now assert that the ordination of marriage to procreation is not apparent. If there is an order that reason perceives, how can it be that some seem to miss it? (Recall that St. Thomas holds that everyone is capable of grasping order in things, not merely the most intelligent.) Must we, in every such case, presume bad will? If we were to assume that everyone grasps the ordination of marriage to children, then only a culpable refusal of what one knows could account for separating them.
Here John Paul might be said to reply both to Thomas and to his detractors. What renders St. Thomas inaccessible to contemporary society, John Paul suggests, is not merely our cultural assumption that law is founded upon voluntarism. Rather, there is another cultural assumption at play: that freedom is not a characteristic of the human person, but, understood as autonomy, is, as we have seen, the fundamental value of modernity and its goal. But this cultural assumption, according to John Paul, deprives the human person of the social basis for his or her development, and sunders, in popular understanding, the unity of body and soul. This matters:
The person, including the body, is completely entrusted to himself, and it is in the unity of body and soul that the person is the subject of his own moral acts (Veritatis Splendor, 48. 3).
It is as a unity of body and soul that the human person is the subject of his or her own moral acts, but that unity is intuited only in relation, as a subject, to other subjects. An insistence upon autonomy, to the degree that it is lived and comes to characterize the actual condition of the person, precisely compromises the relationship with others whereby one experiences oneself as a subject, and whereby the fundamental goods that the person seeks are intuited. This leads, according to John Paul, to a “practical materialism” which, in turn, “breeds individualism, utilitarianism and hedonism” (Evangelium Vitae, 23.1) and depersonalizes the physical reality of the human person:
Within this same cultural climate, the body is no longer perceived as a properly personal reality, a sign and place of relations with others, with God and with the world. It is reduced to pure materiality: it is simply a complex of organs, functions and energies to be used according to the sole criteria of pleasure and efficiency. Consequently, sexuality too is depersonalized and exploited: from being the sign, place and language of love, that is, of the gift of self and acceptance of another in all the other's richness as a person, it increasingly becomes the occasion and instrument for self-assertion and the selfish satisfaction of personal desires and instincts. Thus the original import of human sexuality is distorted and falsified, and the two meanings, unitive and procreative, inherent in the very nature of the conjugal act, are artificially separated: in this way the marriage union is betrayed and its fruitfulness is subjected to the caprice of the couple. Procreation then becomes the "enemy" to be avoided in sexual activity: if it is welcomed, this is only because it expresses a desire, or indeed the intention, to have a child "at all costs," and not because it signifies the complete acceptance of the other and therefore an openness to the richness of life which the child represents.
In the materialistic perspective described so far, interpersonal relations are seriously impoverished. The first to be harmed are women, children, the sick or suffering, and the elderly. ….The criterion of personal dignity - which demands respect, generosity and service - is replaced by the criterion of efficiency, functionality and usefulness: others are considered not for what they "are," but for what they "have, do and produce" (Evangelium Vitae, 23.3 and 23.4).
As a consequence, while never ceasing to be capable of perceiving order in human acts, the human person can, nonetheless, be alienated from the possibility of applying that perception to his or her self-understanding and therefore to its application in considering questions of individual rights and of positive law: "the moral conscience, both individual and social, is today subjected, also as a result of the penetrating influence of the media, to an extremely serious and mortal danger: that of confusion between good and evil, precisely in relation to the fundamental right to life" (Evangelium Vitae, 24.1).
This was a circumstance undreamed of by St. Thomas, but, in the conviction of John Paul, the very circumstance in which we now find ourselves as a culture and as a civilization.
John Paul's emphasis upon the person – “the good of the person”, “the person as an end and not a means”, “the truth about the person” – is ubiquitous in his works in that he is convinced that apart from restoring and teaching a proper understanding of the human person as subject, much of the Western tradition in philosophy and theology is rendered inaccessible to contemporary society. What is otherwise put at risk is the actual experience of response to other subjects which alone situates and makes evident the moral agency of the person.
There is one other, equally dire, consequence to a forgetfulness about the person: if it is, indeed, true that moral consensus founded upon a fundamental intuition of order in human action is not possible, then neither is democratic society. One cannot invest ultimate confidence in a process that is arbitrary with respect to the human subject. Moreover, if it is not the case, as St. Thomas holds, that each human subject can judge the reasonableness and therefore the legitimacy of laws, then there is no reason to consult the people in the framing of laws.
The educational project represented here at St. John's is, it seems to me, ideally suited to the task of transcending the limitations of our culture. I have never met a Johnnie who exhibited much reticence for engaging with others as a subject. In offering this reflection, therefore, I fear that I find myself in the proverbial position of bringing owls to Athens. I would like, nonetheless, to suggest that there is a great deal riding upon the work that you have undertaken: very possibly the survival of our Western civilization and its institutions.
 St. Thomas never uses the term “law of nature”; he speaks instead of the eternal law when he refers to the order that is in things themselves.