Question 90 Of the Essence of Law (Four Articles)

Is law something pertaining to reason?

o Law is a rule and measure of acts, whereby man is
induced to act or is restrained from acting. All human acts
are ruled and measured by the Reason because it is the first
principle in all matters of action. The first principle in any
genus is the rule and measure of that genus. For example, the
number one is the rule and measure of all numbers, and the
first movement is the rule and measure of all movements.
Thus, law pertains to reason.

Is law always directed to the common good?

o The ultimate end of human life is happiness. Thus, all
action dictated by reason is conducive to happiness. Since
man is part of mankind, the law must take universal
happiness into consideration. Thus, law is always directed to
the common good.

Is any man competent to make laws?

o The right to ordain laws for the common good rests with
either the whole community or a representative of the whole
community; for the directing of anything to the end concerns
him to whom the end belongs.

Is promulgation essential to law?

o Promulgation is necessary for law to obtain force because
the law is a rule and measure that must be applied to the men
who are to be ruled by it.

Conclusion: Law is nothing else than an ordinance of

reason for the common good, made by him who has care
of the community, and promulgated.
I appreciate St. Tomas Aquinas method. He poses a question,
gives three arguments that are contrary to his own position,
and then systematically refutes each one of the three
objections. This type of structured reasoning helps the readers
focus on the most important aspects of a particular question.
Some philosophers will digress from the topic of discussion,
and therefore confuse and frustrate the readers. I am looking
forward to reading the rest of the assigned readings of
Aquinas. Although I might not agree with all of his arguments,
at the very least, I will be able to understand how he arrived
at his conclusions. The same cannot be said for all of Kants
arguments.
Question 91 Of the Various Kinds of Law (Six Articles)

Is there an eternal law?

o Yes. Granted that the world is ruled by an eternal god, then
gods reason is an eternal law since his conception of things is
not subject to time, but is eternal.

Is there a natural law in us?

o Yes. Law can be something that rules and measures, or
something that is measured and ruled, since it is ruled or
measured in so far as it partakes in ruling or measuring. Since
all things are measured and ruled by Divine reason, all things
partake in the eternal law in so far as they derive their
inclinations and acts from it. Because rational creatures have
a share of Eternal Reason, their share of participation in the
eternal Law may be classified as Natural Law. Natural law is
nothing else than the rational creatures participation of the
eternal law.

Is there a human law?

o Yes, because humans need to decide particular matters.
They utilize the natural law, which bestows them with general
principles, to create human laws to rule and measure
particular matters.

Is there any need for Divine law?

o Yes, for four reasons:

Man is directed to an end of eternal happiness, which

is beyond his natural faculty. Thus, man requires direction
in the form of Divine law.

Human judgment is uncertain; different people form

different judgments on human acts. Man requires an
indubitable law that directs them to do something or
refrain from doing something.

Man is not able to judge of interior movements of

other peoples minds. But it is necessary for a man to

conduct himself correctly in both exterior and interior acts

in order to attain moral perfection.

Human law cannot punish and forbid all evils

because many goods would be lost in the endeavor. This
would hinder the advancement of the common good.
Thus, it is necessary for God to intervene and forbid all
sins.

Is there only one Divine law?

o No. Man was in a state of imperfection before the coming
of Christ. At that time men required a certain set of laws that
were based upon temporal fears and temporal rewards. After
the coming of Christ, man now lives in a state of perfection
and requires a different set of laws based upon love and
eternal happiness. In the Old Testament, men are directed by
the Old Law. In the New Testament, men are directed by the
New Law. The Old Law directs our exterior acts. The New Law
directs both our exterior and interior acts.

Is there a law in the inclinations of sensuality?

o In animals, the inclinations of sensuality have the nature of
law, but not in humans; for inclinations of sensuality are
deviations from the law of reason, which only man
participates in. the law of man is that he act in accordance
with reason. The law of animals is to act according to their
inclinations.
This entire question is dependent upon a presumption that
many people of this age do not make i.e. the government of
this universe by a god. Aquinas states in the very first article
of this question: granted that the world is ruled by Divine
providence, all else follows. If you do not accept this
assumption, does that mean that you can disregard the rest of
the discussion of this question? No. I think that there are some
very instructive intellectual exercises and ideas that Aquinas
shares in the other articles. For example, Aquinas claims that
attaining eternal happiness is beyond our natural faculties. We
require supernatural assistance. This is an idea that is
interesting to ponder.
Question 92 Of the Effects of Law (Two Articles)

Is one of the effects of law to make men good?

o Yes. Every law aims at being obeyed by those who are
subject to it. Thus, the proper effect of law is to lead its
subjects to their proper virtue. Virtue is that which makes
something good. Thus, the proper effect of law is to make
those subject to it good. If the law is contrary to Divine law,
then the law does not make men good in a general sense, but
good with regards to that particular government. Thus, a man
can be called a good robber, though he is not good in the
moral sense of the word.

Are the acts of law to command, to forbid, to permit,

and to punish?
o Yes. The law commands all acts of virtue, forbids all acts of
vice, permits acts that are neither good nor bad, and exacts
punishment in order to induce the subjects to conform to the
law through fear. Reward does not properly belong to law
because anyone may reward certain behavior; only the
lawmaker can punish.
I believe that the most interesting article in this question is
the one that considers the acts of law. According to Aquinas,
the law does four things: commands, forbids, permits, and
punishes. Aquinas interpretation of the first three acts of law
is fairly standard, but his reasoning with respect to
punishment surprised me. He argues that the law induces
men behave virtuously through fear of punishment. I agree
that many men do obey the law simply because they fear
punishment, not because they truly wish to behave virtuously.
However, I regard such people differently than I regard people
who are genuinely virtuous. When people are motivated by
fear, their actions ought to be discredited as a mere
animalistic impulse. Such acts do not spring from the will of a
person, but are rather a product of circumstance. Aquinas
argues that From becoming accustomed to avoid evil and
fulfill what is good, through fear of punishment, one is
sometimes led on to do so likewise, with delight and of ones
own accord. Accordingly, law, even by punishing, leads men

on to being good. But until a person reaches the moment

when he delights in good deeds, he does not deserve esteem
for his actions.
Question 93 Of the Eternal Law (Six Articles)

Is the eternal law a sovereign type existing in God?

o Yes. As in every artificer there exists a type of the things
that are made by his art, the type in him who governs the acts
of his subjects bears the name of law. The Divine Wisdom
moves all things to their proper end. Thus, the eternal law is
the type of Divine Wisdom.

Is the eternal law known to all?

o Yes. A thing can be known in itself or in its effect. A man
may know the sun by its rays, despite not being able to see its
substance. No one can know the eternal law except the
blessed who see Gods essence. But all rational creatures can
know the eternal law by its reflection.

Is every law derived from the eternal law?

o Yes. The power of the second mover is always derived from
the power of the first mover. The plan of government or crafts
flows from the king or chief craftsmen to the inferior
administrators and craftsmen. Thus, all laws, in so far as they
partake of right reason, are derived from the eternal law.

Are necessary and eternal things subject to the

eternal law?
o All things created by God are subject to the eternal law. But
things pertaining to the Divine Nature or Essence are not
subject to the eternal law.

Are natural contingents subject to the eternal law?

o Yes. God imprints on the whole of nature the principles of
its proper actions. God commands the whole of nature. All
actions and movements of nature are subject to the eternal
law. Consequently irrational creatures are subject to the
eternal law through being moved by Divine Providence; but
not, as rational creatures are, through understanding the
Divine commandment.

Are all human affairs subject to the eternal law?

o Yes. Both actions of ones own volition, and passionate
actions are subject to the eternal law, and to the punishments
for transgressing the law.
Article 5 of this question is the most interesting i.e. are
natural contingents subject to the eternal law? Aquinas
asserts that the actions of irrational beasts and inanimate
objects are directed by God. This is consistent with the
insurance underwriters classifications of hurricanes, tornados,
tsunamis, etc. as acts of God. However, there is something
very unsettling about this notion given the tremendous
suffering that these acts of god produce. Captain Ahab would
certainly agree with Aquinas. Ahab considers Moby Dick to be
a pasteboard mask that is concealing an inscrutable thing.
That mysterious thing animates the whale; and therefore
Ahab seeks to avenge himself on that thing. It is clear that the
inscrutable thing is God. Aquinas would agree that the whale
is acting according to the will of God, but that Ahab cannot
fully comprehend the divine providence which is directing
everything to eternal happiness. Ahab would likely scoff at the
idea.
Question 94 Of the Natural Law (Six Articles)

Is the natural law a habit?

o Properly and essentially the natural law is not a habit
because it is dictated by reason. But the precepts of the
natural law are held in the reason by habit; for sometimes the
reason does not contemplate the natural law yet it remains
impressed upon ones mind.

Does the natural law contain several precepts, or

only one?
o The natural law contains several precepts, but there are
secondary precepts that are derived from primary precepts. A
self-evident principle is that all things seek the good. Thus,
the primary precept of the natural law is that all things ought
to do and pursue good and avoid evil. All other precepts are
derived from this one. Natural inclinations include selfpreservation and desire to know the truth.

Are all acts of virtue prescribed by the natural law?

o All virtuous acts belong to the natural law; for the rational
part of man is the essence of man, and there is a natural
inclination to act according to the dictates of reason. Acting
according to reason is acting according to virtue.

Is the natural law the same in all men?

o Although there is necessity in the general principles [e.g.
all men are inclined to act according to reason], the more we
descend to matters of detail, the more frequently we
encounter defects. Thus it is right and true for all to act
according to reason: and from this principle it follows as a
proper conclusion, that goods entrusted to another should be
restored to their owner. Now this is true for the majority of
cases: but it may happen in a particular case that it would be
injurious, and therefore unreasonable, to restore goods held in
trust; for instance, if they are claimed for the purpose of
fighting against ones country. And this principle will be found
to fail the more, according as we descend further into detail,
e.g. if one were to say that goods held in trust should be
restored with such and such a guarantee, or in such and such
a way; because the greater the number of conditions added,
the greater the number of ways in which the principle may
fail, so that it be not right to restore or not to restore.

Can the law of nature be changed?

o Things can be added to the law of nature. Many beneficial
things for human life have been added by both Divine and
human laws. But the fundamental precepts cannot be
changed.
o All men alike, both guilty and innocent, die the death of
nature: which death of nature is inflicted by the power of God
on account of original sin, according to 1 Kings 2:6: The Lord
killeth and maketh alive. Consequently, by the command of
God, death can be inflicted on any man, guilty or innocent,
without any injustice whatever. In like manner adultery is
intercourse with anothers wife; who is allotted to him by the
law emanating from God. Consequently intercourse with any
woman, by the command of God, is neither adultery nor
fornication. The same applies to theft, which is the taking of
anothers property. For whatever is taken by the command of
God, to Whom all things belong, is not taken against the will of
its owner, whereas it is in this that theft consists. Nor is it only
in human things, that whatever is commanded by God is right;
but also in natural things, whatever is done by God, is, in
some way, natural

Can the law of nature be abolished from mens

hearts?
o The fundamental principles of the natural law can never be
blotted out from mens hearts. Thy law is written in the
hearts of men, which iniquity itself effaces not.
In this section, Aquinas makes a very provocative assertion.
He states that whatever is done and commanded by God is
right; as when God commanded Abraham to slay his innocent
son (Gn. 22:2); and when he ordered the Jews to borrow and
purloin the vessels of the Egyptians (Ex. 12:35); and when He
commanded Osee to take to himself a wife of fornications
(Osee 1:2). One can further extrapolate Aquinas reasoning
to include those acts of god alluded to in my analysis of the
previous question. Aquinas justifies all that happens by stating
that it is necessary to attain eternal happiness, and that we
cannot fully comprehend the divine plan; thus, though it may
seem unjust for innocent children to suffer, it is necessary
according to Gods will, and we should accept it.
Dostoyevskys Ivan thoroughly assaults this argument in the
Brothers Karamzov in one of the most beautiful passages in
literature. It is found in the chapter that precedes the Grand
Inquisitor and is worth a reading if you are not familiar with it.
I also noticed some similarities between Aquinas and Kant in
this chapter. While both men agree that there is a
fundamental principle. Aquinas asserts that the fundamental
principle becomes more difficult to apply as the particular
details and circumstances grow. Whereas Kant obstinately
states that his categorical imperative can be applied in all
situations, regardless of the circumstances, Aquinas realizes
that such an application is not feasible in certain situations.

For example, although it is right to return goods to the rightful

owner, it is not right to return those goods if the owner
intends to harm others with those goods. In this debate, I side
with Aquinas.
Question 95 Of Human Law (Four Articles)

Is it useful for laws to be framed by men?

o Laws check human audacity, safeguard the innocent in the
midst of wickedness, and prevent harm by fear of punishment.
Though some men are naturally benevolent and virtuous,
others are prone to vice. It is necessary to compel the latter
people to behave virtuously by means of force and fear.
Since some are found to be depraved, and prone to vice, and
not easily amenable to words, it was necessary for such to be
restrained from evil by force and fear, in order that, at least,
they might desist from evil-doing, and leave others in peace,
and that they themselves, by being habituated in this way,
might be brought to do willingly what hitherto they did from
fear, and thus become virtuous. Now this kind of training,
which compels through fear of punishment, is the discipline of
laws.
o It is better to have things regulated by law than by judges
for three reasons:

It is easier to find a few wise men to frame just laws

than it is to find the many wise judges necessary to decide
aright in every single case.

Those who make laws decide what is right with

impartiality, being removed from the present
circumstances and considering only abstract notions and
general acts.

Judgments made of present things are susceptible to

corrupting influences such as love, hate, or avarice.

Is every human law derived from the natural law?

o Yes. A thing is just if it accords with reason. The first
principle of the natural law is to act in accordance with
reason. Thus, all human law, in so far as it accords with this
principle, is just and is derived from the natural law. If a law
contradicts at any point with this fundamental principle, then
it is not a law, but a perversion of the law.

Is Isidores description of the quality of positive law

appropriate?
o Isidore asserts that law is anything founded on reason,
provided that it foster religion, be helpful to discipline, and
further the common weal. This description is appropriate; for
law fosters religions in so far as it agrees with the Divine law;
it is helpful to discipline in so far as it is proportionate to the
natural law; and it furthers the common weal in so far as it is
useful to mankind.

Is Isidores division of human laws appropriate?

o Isidore appropriately divided laws; for as men differ in their
occupations, different rules are necessary to direct their
actions. Furthermore, different laws address different actions,
and thus laws can appropriately be divided into such classes
as assault, rape, murder, theft, etc.
Aquinas reinforces his argument that it is necessary to compel
vicious people to behave virtuously by means of force and
fear. Clockwork Orange is a wonderful novel written by
Anthony Burgess. The novel details a radical conditioning
method by which a criminal is forced to behave virtuously. The
novel asks a provocative question: is it best that we remove a
persons ability to choose between right and wrong? Aquinas
says yes.
Aquinas also believes that if a person is forced to behave
virtuously by means of force and fear, then the person will
eventually behave virtuously of his own volition. There is a
scene in Orwells 1984 which is very similar to this notion. In
that novel, the narrator is tortured until he truly loves Big
Brother. Aquinas would argue that the narrator willingly loves
Big Brother at the end of the novel, but it seems clear to me
that he was coerced and manipulated to hold this sentiment.
Question 96 Of the Power of Human Law (Six Articles)

Should human law be framed for the community

rather than the individual?

o Yes. The end of law is the common good, not individual

good.

Does it belong to human law to repress all vices?

o No. Laws must take into consideration possibility. The same
type of life is not possible for the virtuous man and the vicious
man. Law is framed for a number of people, the majority of
whom are not perfectly virtuous. It is only necessary that the
law repress particularly grievous vices. Otherwise, the
imperfect people would be unable to bear such rigorous
precepts, and consequently fall into greater evils.

Does human law prescribe acts of all the virtues?

o Like the repression of particular vices, the law only
prescribes certain virtues for the same reasons of feasibility.

Does human law bind a man in conscience?

o If laws are just, then they are in accordance with the Divine
law and bind a man in conscience. If laws are not just, then
they are not laws at all, but rather violence, and do not bind a
man in conscience.

Are all subject to the law?

o The law is a rule of human acts and a coercive power.
Thus, a man is not subject to the laws of a foreign sovereign;
a man is not subject to a law if he is subject to a higher law;
and a man is not subject to a law if he cannot be coerced to
follow the law.
o Just men are not subject to the law because the will of the
just men are in accordance with the law, and thus are not
subject to the coercive power of the law. Wicked men are
subject to the law because their will is contrary to the law; and
thus they are subject to the coercive power of the law.

Can a subject of the law act beside the letter of the

law?
o Yes. It is proper that men should constantly evaluate the
current laws to ensure that they promote the common good. If
the laws no longer promote the common good, then they
ought to be altered. Furthermore, a man may act beside the
letter of the law in circumstances of necessity; for necessity
knows no law. If, however, the peril be so sudden as not to
allow of the delay involved by referring the matter to
authority, the mere necessity brings with it a dispensation,
since necessity knows no law.
While I agree with Aquinas argument that the law ought to be
altered when it is found to be contrary to the advancement of
the common good, I think that his statements regarding the
impunity bestowed upon those who act under necessity to be
a little unsettling. Aquinas believes that people who act under
necessity are immune from observing the law; for, in his
words, necessity knows no law. What I find unsettling about
this notion is the difficulty in deciding when one is acting
under necessity. As Aquinas states, the majority of men are
not perfect in virtue. Locke and Rousseau both conclude that
men are not the best judges in their own cases. They can
never be impartial. Thus, it seems unlikely that anyone can
make an objective determination about whether it is
acceptable to transgress the law because of necessity.
Question 97 Of Change in Laws (Four Articles)

Should human law be changed in any way?

o Human law ought to be changed when reason discovers
that a new law would advance the public good more than a
previous law. Human law ought to be changed as the
condition of men change.

Should human law always be changed when

something better is presented?
o Changes ought to be made to the human law only when
the benefits of change can compensate for the harm done to
the binding force of law whenever a law is changed; for the
mere fact of a change in law is prejudicial to the common
good.

Can custom obtain force of law?

o Yes. Human reason may be made manifest through words
and deeds.

Can the rulers of the people dispense from human

laws?

o Yes. When an occasion arises in which the law would fail to

achieve its end the common good the sovereign may allow
the precept of the law not to be observed. He cannot grant
this permission for any other reason than the promotion of the
common good.
Aquinas discussion of custom in this question reminded me of
Montaignes essay on the same topic. Montaigne detailed the
tremendous power of custom, and describes how custom can

obtain the ultimate power i.e. the force of law. Aquinas also
asserts a very similar argument made by Montaigne, Locke,
and likely many more political thinkers. They believe that
changing a law harms the respect a community possesses for
the law. Therefore, the law ought only to be changed
whenever there would be a greater good that would
compensate for the inherent harm.