Thomas Aquinas’ Contribution to Natural Law

INTRODUCTION TO NATURAL LAW

There is no universally acceptable definition for natural law. Generally, the common men believe that Natural Law is those rules and principles which evolved spontaneously, made by some supreme authority other than man, and everybody must obey these rules. Therefore, there is not any straight jacket formula to stipulate the definition of the natural law. However, the definition of the natural law can be traced in the thought of the philosophers and jurists of the ancient world.

EVOLUTION OF NATURAL LAW:

Evolution of the natural can be traced by through the various stages under the following head:

Ø Period of the Ancient Greeks

Ø Medieval period (Christian Ethics)

Ø Renaissance Period

Ø Revival of the Natural Law ( 20^th Century)

PERIOD OF THE ANCIENT GREEKS

Our survey of the evolution of legal philosophy should start with an account of the legal theory of the Greeks rather than that of some other nation, as the gift of the philosophical penetration of natural and social phenomena was possessed to an unusual degree by the intellectual leaders of ancient Greece and the Greek had become the philosophical teachers of the western world and Greek philosophy a microcosm of the world philosophy as a whole. The distinction between the laws made by man and laws which are in accordance with nature or of divine origin may be traced in the works of many Greek writers’ like Socrates, Plato and Aristotle.

It was in ancient Greece where the concept of human rights began to take a greater meaning than the prevention of arbitrary persecution. Human rights became synonymous with natural rights, rights that spring from natural law.

Though the Greeks were among the first to formulate ideas of natural law the Romans made more use of such theories and put their views along this line into more enduring forms. The first indications of the application of this concept are to be found in the work of the praetors.

Sophists:

The new movement was represented by the sophists. The term Sophist originally meant a wise and skilful man, but in the time we describing it came to be applied to the professional teachers who travelled about, giving instruction for pay in the art of thinking and speaking, and preparing the young men for political life. According to Cicero the Sophists brought philosophy down from heaven to the dwellings of men.

The great movement of the entire Sophistic movement consisted in this: it awakened thought and challenged philosophy, religion, custom, morals, and the institutions based on them, to justify themselves to reason. In denying the possibility of knowledge, the Sophists made it necessary for knowledge to justify itself.

Socrates (470 – 399 B.C.)

“Unexamined life is not worth living.” — Socrates

Socrates was the son of a sculptor and a midwife, Socrates himself never wrote any of his ideas down. One example of his effect on philosophy is found in the dialog Euthyphro.  He suggests that what is to be considered a good act is not good because gods say it is, but it is good because it is useful to us in our efforts to be better and happier people.  This means that ethics is no longer a matter of surveying the gods or scripture for what is good or bad, but rather thinking about life.  He even placed individual conscience above the law. The chief concern of the Socrates was to meet the challenges of Sophistry, which, in undermining knowledge, threatened the foundations of morality and the state.Socrates advocated man has capable to distinguish between good and bad on basis of his “Human Insight”. Socrates was a person who, did not deny the authority of the positive law , his decision to drink the poison as punishment awarded by authority shows, his respect for authority and his loyalty to the state he proved by obeying the laws himself and insisting that the others obey them.

Plato (427-347 B.C.) The great pupil of Socrates believed, morality should be based on the objective truth means, it should be independent from the human thought, and belief and it must be council with the objective truth to avoid the conflict. The logic of Plato is to control irrational desire of human being by rational thoughts. Plato’s Republic centers on a simple question: is it always better to be just than unjust?. Plato believed in universal truth and virtue. This idea has continued on to become universalism that human rights are universal, and as such are above the laws of individual states.

Aristotle (384 – 322 B.C.)

“Natural law as justice by the nature”

According to Aristotle, laws are of two kinds, particular and universal. The particular law is laid down by each community and is applied to its members. It is partly written, partly unwritten. The universal law is the law of the nature is binding on the all men, even those who have no association or covenant with each other. Written law often changes. The universal law does not change, since it is the law of the nature. In this way He distinguishes the legally just from the equitable. The equitable, for him, is superior to the legal. The equitable is the correction of legal justice.

According to Aristotle, man is a part of nature in two ways; firstly he is the part of the creature of the God, and secondly, he possesses insight the reason by which he can shape his will. By his reason man can discover the eternal principles of justice. The man’s reason being part of the nature, the law discovered by the reason called ‘natural justice’. He suggested that the ideas of the natural law have emanated from the human conscience and not by the human mind and, therefore, they are farmore valuable than positive law which is outcome of the human mind.

NATURAL LAW IN ROMAN SYSTEM

During the Roman period, there was three division of the law,i.e. Jus civile, Jus gentium, and jus natural, Jus civile was applicable only to Roman citizens and law which is applied on roman as well as foreigners called the Jus gentium. It consisted of the universal legal principles which conformed to natural law of reason. Later, both these were merged to be known as Jus natural.

Cicero

According to him “there is indeed a true law, right reason, agreeing with nature, diffused among all men, unchanging, everlasting, it is not allowed to alter this law, nor to derogate from it, nor can be repealed. We cannot release from this law, either by the praetor or by the people, nor is any person required to explain or interpret it. Nor it is one law at Rome and another at Athens, and there will be one common lord and ruler of all, even God the framer and proposer of this law.

NATURAL LAW IN MEDIEVAL PERIOD (CHRISTIAN ETHICS)

In the Middle Ages all Christians shared one common concept of the universe: that which has been laid down in the New Testament and in the teaching of the fathers of the Church. Legal philosophy, like all others branches of sciences and thinking, was dominated by the Church and its doctrines. A reference to “natural law” can be found in the epistle of Paul to the Romans, in which he speaks of a “law written in hearts”.

Perhaps the most important and influential among the fathers of the Church was St. Augustine. It was Augustine’s conviction that in golden age of mankind, prior to man’s fall an absolute ideal of the “law of nature” had been realized. Men lived in the state of holiness, innocence and justice; they were free and equal; slavery and other forms of dominion of men over other men were unknown. Augustine believed that the Church, as the guardian of the eternal law of God (lex aeterna),. It has unconditional sovereignty over the state. The state is only justified by enforcing the worldly law (lex temporalis). The worldly law, in Augustine’s opinion, must strive to fulfill the demands of the eternal law.

Thomas Aquinas (1224- 1274)

“Natural law as law of God”

Thomas, the son of Count Landolfo, of Aquino, was born 1225 or 1227 at the ancestral castle near Naples. He was pupil of Albert the Great. He was teacher of theology and philosophy at Cologne, Paris, Bologna, Rome and Naples, changing his residence frequently, and he devoted himself to the construction of the greatest Catholic system of thought, that has ever been offered. His fundamental aim is to demonstrate the rationality of the universe as a revelation of God.

Aquinas’s theory of natural law is articulated in his famous work “Summa Theologiae” Furthermore, these text are dependent structurally on Aquinas’s treatment of Aristotle’s moral theory in his Commentary on Nicomachean Ethics. According to Thomastic view

“natural law is a divine law, written in the hearts of all men, obliging them to do those things which are necessarily consonant to the rational nature of mankind, and to refrain from those things which are repugnant to it”.

THE THOMAS’S PHILOSOPHY OF LAW

The theology and the philosophy of medieval Catholicism reached its culmination in the monumental system of Thomism. St Thomas Aquinas was the greatest of the Scholastic philosophers of the middle Ages, and his teaching may still be regarded as an authoritative expression of the theological, philosophical, and ethical conviction of Roman Catholic. His system represented an ingenious synthesis of Christian scriptural dogma and Aristotelian philosophy.

Thomas Aquinas says, that basic human need such as self preservation requires fundamental human rights.

In order to understand his efforts, we must appreciate its historical context. During the dark period in Europe (After the collapse of the Roman empire, Western Europe lapsed into the so-called Dark Ages.) between the demise of the ancient civilization and the birth of the medieval order, the idea of natural law continued to prevail but the fathers of the Church, most notably Ambrose, Augustine, and Gregory, linked it with the Christian doctrine of original sin. Political society and the state became the institution of sin. A break from this thought began in the twelfth century. Therefore, the conflict between the spiritual lawgiving authority and secular lawgiving authority was to occupy Europe for centuries. During this conflict, both sides invoked natural law. The result was the Scholastic system of law most thoroughly formulated by St. Thomas Aquinas.

For Aquinas, there are two key features of the natural law, these are following:

a) God’s role as the giver of the natural law,

b) Human’s role as recipient of the natural law (rationality of human being).

So according to Aquinas from God’s-eye point of view, it is law through its place in the scheme of divine providence, and from the human’s-eye point of view, it constitutes a set of naturally binding and knowable precepts of practical reason.

Thomas Aquinas presents a hierarchical scheme of law, in which he defined that, divine law is supreme. This is so because the whole community of the universe is governed by divine reason. In which he mentioned that, not all of divine law is intelligible to man. The intelligible part reveals itself through eternal law, which is the incorporation of the divine wisdom, and the lex divina, which is the enactment of God as found in the Scripture. The hierarchy appears as follow Divine Law

Intelligible to man Not intelligible to man

Eternal Law Lex divina

Natural Law

Human Law

He distinguished between four different kinds of law: In which he mentioned divine law is the supreme:

a) Eternal law (Lex Aeterna)

b) Natural law (Lex Naturails)

c) Divine law (Lex Divina)

d) Human or Positive law (Lex Humana)

The first three kinds of law are interrelated conceptually within the ontological scheme of Aquinas proposes. The fourth, divine law refers to what Aquinas understood as ‘Revelation’, which is set of statement found in the Biblical texts. Put simply, the first three kinds of law are philosophical in nature, while divine law which must not be confused with eternal law- is theological in character.

Eternal law (Lex Aeterna):

Natural law is also the eternal law, as having existed from the commencement of the world, uncreated and immutable.

All the things subject to divine providence are ruled and measured by the eternal law. In its entirety it is known as only to God. No human being is capable of knowing it as it is.”But though no ordinary mortal can known the eternal law in its whole truth, he can have a partial notion of it, by means of the faculty of reason, which God has endowed him. This participation of the rational creature in the cosmic law is called natural law.

Natural law (Lex Naturails)

The natural law is merely an incomplete and imperfect reflection of the dictates of divine reason, but it enables man to know at least some of the principles of the lex aterna. Natural law directs the activities of the man by means of certain general precepts is that, “Good is to be done and evil to be avoided”. But what were are the criteria of that which is to be regarded as good and that which must be apprehended as evil? St. Thomas is convinced that the voice of reason in us (which enables us to obtain a glimpse of the eternal law) makes it possible for us to distinguish between morally good and bad action. According to his theory, those things for which man has a natural inclination must be apprehended as good and must be regarded as forming part of the natural law.

First, there is the natural human instinct of self-preservation, of which the law must take cognizance. Second, there exists the attraction between the sexes and the desires to rear and educate children .Third, man has a natural desire to know the truth about God, an inclination which derives him to shun ignorance. Fourth, man wishes to live in society, and it is therefore natural for him to avoid harming those among whom he has to live.

Divine law (Lex Divina)

Natural law, as a body of abstract principles, it is supplemented in directions from God as to how men should conduct their functions. This function is performed by the divine law. It is the law revealed by God through the Holy Scriptures and recorded in the old and new testaments.

Human or Positive law (Lex Humana)

It is defined by the Aquinas as “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” Thus Aquinas, like Aristotle, incorporates the concept of reason into his definition of the law. In order that a governmental mandate may have the quality of law, it needs to comply with some postulate of reason. An unjust and unreasonable law, and one which is repugnant to the law of the nature, is not a law, but a perversion of law.

So according to his propositions, he defines law as an ordinance of reason for the common good, which is made by one who has care of the community, and which is promulgated.

There are four basic principles given by Thomas Aquinas, these are:

Ø Fundamental need

It includes food, health and physical security, which are the basic requirements of human beings, but not superior.

Ø Social co-ordination among community to achieve individual goal

According to this precept, there is requirement to fulfill the social needs of family, society and individual, which can only be possible through the greater co-operation of an individual. And nobody, would be able to fulfill their own individual needs on their own.

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Ø Knowledge of truth for better understanding of himself/herself and God

This most important precept, upon which all the precepts are based, this precept facilitates achievement of truth, which leads to happiness.

Ø Is human law positive law?

This precept is based on the rationality of human being, which should be consistent with the divine law.

The association of ideas that causes natural law to be looked upon as “law” in the same sense as civil law has had three main consequences. In the first place, natural law, and its product “natural rights”, was conceived as having sufficient legal force to render void a human law that was repugnant to them.

Second place, the idea of natural law as a kind of law helped judges to alter the civil war.

In the third place, international lawyers seized upon the doctrine as seeming to give ‘legal’ efficacy to international law, which was supposed to conform to natural law.

The doctrine passed from Greek and Latin literature to the traditional jurisprudence of the Middle Ages.

According to Thomas Aquinas: Law is a rational and promulgated prescription for a common good made by one who has responsibility for the community whose good it is . the eternal law is God’s providence or plan for the world , and natural law is the way in which intelligent creature are subject to it. He gave some principles of the natural law the first one connotes “good is to be done, evil is to be avoided”. And the secondary principle is arises from the human tendencies towards the goods of the nature, and of rational animal nature.\

CRITICISM OF THOMAS AQUINAS:

There are some following criticisms of Aquinas’s theories made by some thinkers:

Thomas Aquinas never says that Augustine is wrong, but he was silent on the point of right to wage war. Furthermore, St. Anselm, the Catholic archbishop of Canterbury and a Doctor of the Church, criticized the theory of Aquinas’s by saying that, Thomas Aquinas has no evidence of existence of the God, except relying independence on human reason.

PERIOD OF RENAISSANCE:

Hugo Grotius (1583 – 1645)

Grotius built his legal theory on ‘social contract’. He departed from St. Thomas Aquinas scholastic concept of Natural Law and ‘reason’. He advocated on ‘right reason’, i.e. ‘self-supporting reason’ of man.

19TH CENTURY HOSTILITY TOWARDS NATURAL LAW

The profounder of analytical positivism, notably, Bentham and Austin rejected Natural Law on the ground that it was ambiguous and misleading. They preached that, there are no absolute and unchangeable principles. Priori methods of the natural law philosophers were unacceptable in the emerging age of science.

REVIVAL OF THE NATURAL LAW ( 20^th CENTURY)

Lon L. Fuller (1902- 1978)

In 20^th century legal thinkers Fuller rejected Christian doctrines of the Natural Law and 17^th and 18^th century rationalist doctrine of natural rights. He did not subscribe to a system of the absolute values. His principle affinity was, with Aristotle. He found a “family resemblance” in the various natural law theories, the search for the principles of social order. He believed that in all theories of natural law it was assumed that “the process of moral discovery is a social one and that there is something akin to a ‘celebrative articulation of shared purposes’ by which men come to understand better their own ends and to discern more clearly the means for achieving them.

CONCLUSION

As a theologian and philosopher Aquinas remained highly influential, through his philosophy. He emphasized human law must have a moral purpose to be valid: that immoral law is no law at all, and the rulers must act for the common good of the people. His classic argument was later used against absolutism and totalitarianism, and, indeed, against any illegitimate use of state power. He said, natural law does not mean what is chosen by human being, but it means what is given by the God. In his theories he argues that the Ten Commandments are basically sound rational moral principles derivable from analysis of the human nature. So last but not least there is some contribution made by Thomas Aquinas as follows.

Ø Thomas justified possession of individual property which was considered sinful by the early Christian Fathers.

Ø During the dark period in Europe, his theory “Natural law as law of God” Worked as dawn to remove this darkness.

Ø He demarcated human being from beasts on the basis of “Reason”.

Ø He incorporated the concept of “Common Good”, based on Benthamite concept, “Maximum happiness for maximum number of people”

Ø He denied the concept of arbitrariness and totalitarian concept by saying that law which is contrary to divine law cannot be become just law.

Ø He focused on two concept

God’s role as the giver of the natural law

The second is that, when we focus on the human’s role as recipient of the natural law

Aquinas concept denying the concept of arbitrariness and totalitarian and advocating the right to property stimulate the rule of law in consonance with human rights.

BIBLIOGRAPHY

BOOKS

Ø Anthonyj.Lisska, Aquinas’s Theory of Natural Law, Clarendon Press. Oxford (1997).

Ø Edgar Bodenheimer, Jurisprudence, The Philosophy and Method of the Law, Delhi: Universal Publication, (2001).

Ø Frank Thilly, A History of Philosophy, New Delhi: SBW publishers (1993).

Ø Salmond P.28, 29. [1] Sir John Salmond, Jurisprudence, 10th ed. London: Sweet and Maxwell Limited (1947).

Ø Surya Prakash Sinha, Jurisprudence Legal Philosophy in Nutshell, St. Paul. Minn west publishing Co. (1993).

DICTIONARY

Ø Black’s Law Dictionary, 8^th edition, Bryan A. Garner (editor in chief).

Ø New Oxford Advanced Learner’s 7^th edition, Sally Wehmeier 2005.

ENCYCLOPEDIA

Ø Mark Bevir, encyclopedia of political Theory, Vol.1, University of California, Berkeley.

WEB SOURCES

Ø legalservicesindia.com/article/article/natural-law-519-1.htm (visited on November 24, 2011).

Ø plato.stanford.edu/entries/natural-law-ethics (visited on November 21, 2011).

Ø webspace.ship.edu/cgboer/athenians.html - United States. (Visited on November 20, 2011).

Ø www.webspace.ship.edu/cgboer/athenians.html (Visited on November 20, 2011).

Ø www.constitution.org/haines/haines_001.htm (visited on November 20, 2011).

Ø www.library.thinkquest.org/C0126065/hrhistory.html (visited on November 22, 2011).

Ø www.saintaquinas.com/philosophy.html (Visited on November 18, 2011).

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