On Question XCV: Of Human Law, by Thomas Aquinas

Introduction

Thomas Aquinas was born in 1225 and was trained in the liberal arts at the University of Naples. In 1244 he became a Dominican friar and taught extensively. His ideas have been particularly influential as regards political and ethical theory and much of his philosophy still resonates today with modern thinkers.

Question XCV is from the second part the Summa Theologica. The book was intended as a summary of the theological thought that was current at its time of publication, but its content is still relevant for today. This can be demonstrated if we look at question XCV. It consists of two articles; the first asks whether there is any real need for laws at all and the second discusses whether human laws are derived from natural law. Let us look at each in turn.

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Question XCV - Article I

Was there any use in laws being enacted by men?

The main force of article one can be summarised as follows:

All human beings possess a capacity for virtue, but in order to develop this aspect to its fullest realisation, people have to be both disciplined in their own behaviour and often guided by others.
The tendency toward virtue is more developed in some people than in others.
Laws were a necessity created to restrain those prone to evil behaviour and to ensure peace for all.
It is preferable to have laws or a code of practice applicable to all than any alternative.

In this first part of question XCV, Aquinas supports his argument that each and every one of us must be trained to develop our virtue by comparing the lot of humans to that of other animals. He argues that nature has provided the latter with everything they need in order to both satisfy their particular wants and ensure their survival. As regards human beings, additional labour is required if the necessities of life, such as food and shelter, are to be satisfied. Nature provides the basic tools through giving us the ability to reason, but it is our use of this faculty through industry and discipline that ensures the satisfaction of each person’s needs and wants.

Similarly, we must work at being virtuous if we are to realise the full potential of our nature. Aquinas accepts that this is easier for some people than it is for others and spends the next part of question XCV comparing those who have a naturally good disposition to those that are prone to vice or evil. For the former, the law will act as a guide that allows them to perfect their innate capacity for virtue, whilst the threat of punishment and the fear that it induces is a necessity imposed upon the latter. In short, enacted law provides a guide to help people perfect their better natures. In the final part of the first article, Aquinas embellishes the first part of question XCV by giving three reasons why it is better for the law to regulate all things.

The first reason is that many people do not possess the ability to judge correctly and the law provides a framework to remedy this. Secondly, this framework allows the judges to compare a particular case with similar incidences in the past. This is more objective as each case is not considered in isolation. Finally, people can be biased and subsequently make faulty judgements without any set standard to adhere to.

In many respects the content of question XCV can be contrasted with the political philosophy of Thomas Hobbes. Indeed, these two philosophers are often so contrasted. For Hobbes, human beings are motivated to adopt a social contract through fear of the natural world and its violence. Law is enacted through no other reason than individual self-interest and is a view that is in direct opposition to the notion that it acts as a guide promoting virtuous behaviour. Both views also contain ethical concerns relating to the fundamental nature of human beings.

Question XCV - Article II

Is every law framed by man derived from natural law?

The content of this article can be summarised in the following points:

Any law derived by human beings can be considered a law to the extent that it mirrors natural law.
There are two ways in which laws are derived from natural law. Some laws are a direct observation of the principles of natural law, whilst others are a specific development upon the principles of natural law. The latter aims to clarify natural laws that may be vague in character.

The second point needs further elucidation, particularly in relation to the concept of natural law that Aquinas makes reference to throughout question XCV. To illustrate this concept we need to refer to the Summa Theologica in its entirety. For Aquinas, natural law is God’s plan for everything he has created. In relation to human beings, we have a special place in this plan in the sense that we have reason and free will, unlike other animals whose wants and needs are purely determined. From the human perspective, natural law is anything that is in accordance with God’s overall scheme for everything that exists.

This explains the first point, as any law that contradicts natural law is contradicting God’s overall plan for his creation and so cannot be considered as a law in any sense. From this we can also make sense of the second point that relates to how laws are formulated. A crime like murder could never be a part of God’s plan, so the enacted law that states that murder is wrong is a direct observation of natural law. The second derivation of human law takes us back to the first article in question XCV.

Human beings have to be disciplined in developing their innate aptitude for virtue. It is because of this that not all enacted law is a direct mirror of natural law. As human beings develop, the law will necessarily become more sophisticated as our wants and needs become more complex and intricate. At this stage in the proceedings, natural law cannot mirror the free will of human beings, but if we strive toward virtuous behaviour then enacted law will at least, in a general but not specific sense, mirror natural law. In other words, it is a natural law that someone should be punished for doing wrong, but the nature of the punishment will be decided by human law alone.

The concept of natural law is often associated with Aquinas and the notion that enacted law may be derived from it has been a staple of political philosophy ever since. As mentioned earlier, the content of question XCV can be contrasted with Hobbes, but the second article also invites a comparison with the work of Rousseau. Rousseau’s take on what it means to be good is a direct contradiction of Aquinas. Rather than being encouraged toward virtue by the law, Rousseau argues that the law necessarily corrupts man because it turns him into a rational animal. For Rousseau, rationality is not a feature of natural law; it is an aspect that destroys the innocence of man and alienates him from his origins. Thus, enacted law does not mirror natural law, but is in direct contradiction to it. The reader may like to follow up these ideas by referring to the suggested reading list.