The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• Translator’s Preface
• Part One: History of the Idea of Natural Law
• Chapter I: The Legacy of Greece and Rome
• Chapter II: The Natural Law In the Age of Scholasticism
• Chapter III: The Turning Point: Hugo Grotius
• Chapter IV: The Natural Law In the Age of Individualism and Rationalism
• Chapter V: The Turning Away From Natural Law
• Chapter VI: The Victory of Positivism
• Chapter VII: The Reappearance of Natural Law
• Part Two: Philosophy and Content of the Natural Law
• Chapter VIII: Being and Oughtness
• Chapter IX: Intellect and Will
• Chapter X: The Structure of the Sciences
• Chapter XI: The Nature of Law
• Chapter XII: Morality and Law
• Chapter XIII: The Content of the Natural Law
• Chapter XIV: Natural Law and Positive Law
• Chapter XV: Conclusion
• Select Bibliography
• General Studies
• Ancient
• Medieval and Scholastic
• Enlightenment
• Anglo-american
• Contemporary Debates

CHAPTER XI

The Nature of Law

It may be said with some exaggeration that the era of individualism was the first to pursue a philosophy of right or rights (in the subjective sense), whereas the preceding age had rather developed a philosophy of law. That would be especially justifiable were one to conceive right more as a subjective permission and power to demand, and law as objective order and the basis of duties and rights. The suum would then be first, while the norm, through which the suum would be determined and guaranteed, would come later.

The Christian doctrine of natural law, however, does not first posit the suum and the person, and only afterwards the law. But as the community is perceived simultaneously with the person, because it is “given” with the latter, so the norm which determines it is simultaneously posited with the suum. Man is continually viewed in an order that is simultaneously given, whose natural laws, arising from the nature of the essential order, require observance. Thus since thinkers did not set out from the isolated, abstract individual and did not begin by asking what are to be considered his inalienable rights, but always regarded man as a member of an order instituted by God and manifesting itself in man’s essential being, attention was paid more to the law, to right in the objective sense.1 Besides, whoever is of the opinion that law and morality may not be separated, and hence that positive law and moral law belong together, will be especially capable of appreciating this view. Laws have then an ethical aim or end. They are not merely a safeguard or protection of previously given rights. They have in addition the positive ethical function of making men better, more virtuous. But this implies that the positive law is inwardly connected with the object which the moral law has in view.

‡In St. Thomas Aquinas we find at first an entirely general concept of law. “Law is a rule and measure of acts, whereby man is induced to act or is restrained from acting.”2 This rule or law is an ought, not a blind necessity. It applies to creatures possessed of free will while it leaves their freedom intact. It is not physical compulsion. (Hence the laws established for the movements—motus, not actus—of irrational nature, the laws of nature in the present-day meaning of the phrase, are laws only in an improper sense.) Law is thus a norm for human actions which proceed from free will and are therefore actions of a being who is master of his deeds and omissions, of a being who is a person. But free will presupposes reason, in keeping with the priority of the latter. Consequently it pertains to the nature of human actions that they are somehow determined by reason and are in agreement with it. It is thus nature, and, more explicitly, rational nature, which provides the proximate criterion in passing a judgment of values on a specifically human (morally free) action. But reason, as practical reason, further regulates action since it apprehends the connections and relationships of ordered things among themselves and in relation to their end, because order arises through common direction to an end. Again, all action occurs for the sake of an end. Without purpose, action would be meaningless; without purpose, the will has nothing to strive for. But reason alone can grasp the appropriateness of the actions for attainment of the end; it alone can conceive the means and the series of intermediate ends that lead to achievement of the final end. This activity of reason, through its decision for or against a proposed course of action, precedes the will, the converting of the deliberation and the judgment into act. The content of every norm, therefore, as well as all that has in any way a normative character, is related to reason as essential nature and as principle of knowledge.3

It follows from the foregoing that law is “something pertaining to reason.”4 To the concept of law belongs “an ordinance of reason,”5 not (as it is occasionally thought) an ordinance for reason, although law is this too. For law does not speak to the blind will as such, but to the will guided and informed by reason.

Man acts for an end. Hence every action has an immediate goal. It is evident, however, that the immediate end, e.g., writing, is subordinated as a means to a higher end, e.g., the communication of thoughts. Ever wider investigation brings to light an ultimate end, to which the subordinate ends are related as to a final cause. Their relation to the final end is that which is common to them all. It belongs to the nature of law to serve a supreme purpose that is ultimate in the respective order. The purpose or end is a creative element in law and right. The final end of all human action and at the same time the principle of such action is felicitas, happiness.6 But universality belongs to this end: it is the common good of all who strive for it. To that extent law is directed to the common good in the general sense, from which it receives the property of universality. Law is thus a general norm of reason which directs the actions of free man to the common good, not to a private or particular good.7 This may not be restricted to the general welfare of the state, although this is its foremost application, but holds good for every higher community with an end of its own, in particular for the Church and the international community, but also for the family and the larger kindred-group.

To law pertains also a lawgiver. For a group of people, order among the individuals who compose it and their direction to the common end are essential. The group first receives its unity and concrete form, its sociological and juridical individuality, through the unity of order and through the end. However, the production of this unity and the enduring realization of the common good through the direction of the acting members to this goal presuppose one or more directors in the specific sense of that term. Chance or accident is not the creator of the community. For this reason the lawmaker pertains to the notion of law, which must be directed precisely to the general welfare. Consequently, too, he is the lawmaker upon whom devolves concretely the care for the common good, whether it be the corporate body itself, the people, or the constitutionally determined holder of the public authority.

Furthermore, since law is the rule of action for rational and free beings, it has of necessity to be made known to them, that they may direct their actions in keeping with it. Promulgation likewise belongs to the nature of law.

Accordingly law is a general rule of reason which is directed to the common good, emanates from public authority, and is duly promulgated.8 The will, too, is included therein. For the framing of a legal decree is just as essentially an act of the will, but only on the basis of a precedent rational weighing of the ends and means which concern the law. A rule that does not issue from the activity of reason, an arbitrary rule or an arbitrary decree, “would savor of lawlessness rather than of law,” says St. Thomas categorically.9

Law, then, is primarily not will, although it owes its positive concrete existence to a volitional act of the lawgiver. Materially considered, it has to be a rule of reason and for reason (in the one subject to the law). That is, only thereby can it obtain the decisive qualification of true law. For rational nature must be directed and guided in accord with reason, i.e., it must be in conformity with truth. That has been common intellectual property ever since the Greeks established the truth of the nomos: law is truth (veritas facit legem).

Closely connected with this idea is the doctrine that the end or aim of law is to make those who are subject to it good.10 Law as a rational norm for the free activity of man must have at bottom this objective; it is not a mere safeguard against the antisocial impulses in man which menace the community. The dignity of the laws rests on this consideration. Wherever, as already among the Greeks, law had this ethical aim, law became something sublime and venerable. This idea corresponds likewise to the ethical character of the community, especially of the state. All law wishes to educate the members of the community. All true politics is education of the people. It has required the entire emptying and disparagement of the state at the hands of individualist liberalism to bring about the denial of the educative function of the law, and to assign to law merely a protective function in behalf of the autonomous, even morally self-sufficing, individual.

Such is the nature of law. It is universal and holds good for all laws: for the moral law and the positive law, whether the latter is a statute of some corporative body or a law of state or Church.

The natural moral law, too, bears the character of law. Indeed, as has already been mentioned, a heated controversy over this point took place among the Late Scholastics. It reached its climax in the dispute between Vasquez and Suarez. The argument turned on the nature of law: Is law an act of reason, or is it an act of the will? Vasquez was in agreement with tradition when he said that law is an act of the intellect on the basis of an act of the will. Materially, therefore, he regarded law as an act of the intellect; formally, as an act of the will. Therefore Vasquez was unwilling to characterize the natural law as law proper, simply because the law of nature as an intimation of that which is good in itself, i.e., in accord with reason, and of what is bad in itself, i.e., at variance with reason, contains no element of will. Some had on this account termed the natural law a lex indicans, in contradistinction to lex praecipiens.

The idea that rational nature as such is the natural law, and that the latter has force even in the impossible hypothesis that there be no God, was carried forward by Arriaga and Grotius almost to the point of the autonomy of human reason. The contrary position was the Occamist doctrine that law is but an act of the will: hence the natural law is divine positive law, and the basis of the goodness and rightness of certain actions is not found in their conformity with nature, but in the absolute will of God, who is completely free to prescribe even the opposite course of action. That meant the dissolving of the concept of natural law. Therefore Suarez was at pains to point out that, as the light of natural reason indicates by way of judgment the inner agreement or internal contradiction of actions with rational nature, it likewise indicates in the very same act that this corresponds also to the will of God, the Author of nature.11

All law is first and foremost an act of reason. Even technically the deliberation precedes the decree. Yet law is also a decree of the will.12 The answer to the question about the nature of law is thus the answer to the question of the relationship between intellect and will. And the answer to this decides the question of whether a natural law is possible at all. The historical theories of the nature of law down to the present time cover the whole range of the antithesis: Law is reason—law is will. Besides, the nature of the law provides the basis for differentiating forms of government, and it renders philosophy of law possible or impossible.

In the United States, the judge, in virtue of his right to review the law, inquires whether an act of the legislative body is unconstitutional. Actually, however, he examines whether the act is reasonable, and he disallows it if he finds it arbitrary. The judge, or the Federal Supreme Court, thus becomes in the United States the first chamber, wholly unprovided for in the Constitution, with absolute right of veto.

The demand for a public consideration of the laws in parliament or congress, i.e., for the discussion of the reasonable grounds pro and con, is likewise understandable only on the basis of the view that law must be reason. Furthermore, paradoxical as it may sound, the same view underlay even the absolutism of a Louis XIV of France. For, as the latter passed not for a mere man but for a vicegerent of God, the reasonableness of a law which emanated from him was by inference a presumption of law and of right. The same is true of the enlightened despotism of the following century, which rested on the view that the ruler, because of his superior, enlightened reason, can manage the state to the advantage of the people.

Only Occam’s positivism in moral philosophy and that of the closing nineteenth century in jurisprudence, by clinging to the principle that law is will, held fast to the theory of will. The unfruitfulness of this theory is at the same time the reason for its rejection.

Law must be reason, too, for the sake of man’s dignity. The human person is not a means for the ruler’s use. Obedience, to be ethical, must be reasonable obedience. This requires a certain insight into the reasonable character and the purpose of the norm. Hence the lawgiver, precisely in those governments in which the laws do not originate in public deliberation, almost always adduces, generally in a detailed and solemn form, the motives of the law.

Somewhat different is the question of whether the unreasonableness of a law or an actually deficient insight into its reasonableness exempts one from obedience. Here the Christian doctrine and individualist liberalism part company. The latter optimistically considers that the individual is always sagacious enough to have the requisite insight. In addition, it proceeds from a preconceived notion that the law, as a restriction of freedom, is rather a necessary evil than a means for making the citizen good. Lastly, it is filled with a distrust on principle toward the lawmaker, whether he is a single tyrant or a hundred tyrants, i.e., a parliamentary majority. The legislator should lay down only the formal rules of procedure. The individuals themselves determine the material content of law through their contracts, which, moreover, constitute the principal form of individualist jurisprudence.

The Christian philosophy of law, however, absolutely demands the positive law. And if it declares reasonableness to be an essential note of the concept of law, it can still, with St. Thomas, characterize only the absolutely unreasonable law, i.e., one that is at variance with the natural law, as savoring of lawlessness rather than of law. But since order is a very great good, just as is the will of the state which realizes and preserves this order, so along with the demand, addressed to the lawmaker, for the reasonableness of laws goes a demand addressed to the subjects to preserve the great good of order even when a particular law cannot be entirely justified before the bar of reason. The continuance of any order at all, however mixed it may be with injustice and arbitrariness, is of greater value than the utter lack of order, than total disorder. The Christian philosophy of law can demand this because in its eyes the nature of the state is not exhausted in the legal order, although the state must be essentially a constitutional state: it must be in the law. But the state is more than that, for it does not live by law alone; it also lives by the acts of all the social virtues through which the idea of man is perfected.

We have this antithesis: law is reason (veritas facit legem); law is will (auctoritas facit legem). The Christian philosophy of law holds that, although auctoritas alone can enact the law, veritas so pertains to the nature of law that law is quite as essentially reason, i.e., an act of the intellect; indeed, from the standpoint of the precedence of the intellect, law is primarily reason. For only then can human law feed on the eternal law and be truly a norm of rational nature. The dignity of law is founded on the fact that it is “an ordinance of reason for the common good,” that it is a “dictate of the practical reason.” As norm of human conduct, i.e., of rational behavior, law must be a reasonable norm.

For the same reason, too, coercion cannot enter into the definition of law, even though, in contradistinction to moral law, physical enforceability is proper to the positive law of the state. “Hence compulsion is rather an element of wrong than of right, since the latter, so long as it functions normally, has no need at all of forcible execution” (F. von Martens). Coercion is the consequence of the dignity and necessity of the positive law. The rational end or goal of the positive law is the ethical legitimation of compulsion.

The genius of legal reason cannot, therefore, rest content with self-denying positivism. It keeps returning to the natural law, to reason and truth in the law.

[1.]“The story of the spectral analysis of the law of nature into the prismatic colours of ‘natural rights’ is a long one. The chief influence was undoubtedly the Christian religion” (J. H. Muirhead, “Rights,” Encyclopaedia of Religion and Ethics, edited by James Hastings [12 vols. and Index, New York: Charles Scribner’s Sons, 1924–27] X, 771). Moreover, as Francis P. LeBuffe, S.J., and James V. Hayes explain, “all rights come from law and they come from law because it places a duty on the subject. But the fundamental law from which all other laws derive their force and efficacy is the Natural Law. Now the Lawgiver of the Natural Law is God, who has the right man’s obedience. Immediately consequent upon this right of God is duty in man. Hence, prior to every right in a man is his duty, general or particular, and prior to every duty is God’s right to the ultimate purpose of creation and to the submission and service of mankind” (Jurisprudence, p. 136). Accordingly, man’s primary right is the right to do his duty, i.e., to achieve his end, to perfect himself, to realize his essential nature, and thus to attain true happiness, his subjective end, in this life and in the next.

[2.]Summa theologica, Ia IIae, q. 90, a.1.

[3.]For men “an action is natural only in so far as it harmonizes with the law of reason. This agreement with reason is not only the mark of naturalness, of humanity, it is the stamp of virtue; our actions are virtuous or good exactly in so far as they harmonize with the commands of reason, or, in other words, precisely in so far as they follow the directions of reason and move towards the goal of man” (Walter Farrell, O.P., A Companion to the Summa, II, 382).

[4.]St. Thomas, op. cit., Ia IIae, q.90, a.1.

[5.]Ibid., a.4.

[6.]“The first principle in practical matters, which are the object of the practical reason, is the last end: and the last end of human life is happiness or beatitude” (ibid., a.2). Cf. ibid., q.1, a.6; q.2, a.7; q.3, a.1; q.69, a.1. What man’s last end or happiness does and does not consist in, how far and in what way it is attainable in the present life, and how we are to conceive the final and perfect happiness of the next life, St. Thomas deals with, ibid., q.2–5; Summa contra Gentiles, Bk. III, chaps. 1–63.

[7.]Cf. Summa theologica, Ia IIae, q.90, a.2.

[8.]Law is “an ordinance of reason for the common good, promulgated by him who has the care of the community” (ibid., a.4).

[9.]“Reason has its power of moving from the will … ; for it is due to the fact that one wills the end, that the reason issues its commands as regards things ordained to the end. But in order that the volition of what is commanded may have the nature of law, it needs to be in accord with some rule of reason. And in this sense is to be understood the saying that the will of the sovereign has the force of law; or otherwise the sovereign’s will would savor of lawlessness rather than of law” (ibid., a.1 ad 3). “Command is an act of the reason, presupposing an act of the will, in virtue of which the reason, by its command, moves to the execution of the act” (ibid., q.17, a.1); see also the commentary of Cardinal Cajetan upon this article of the Summa theologica. The way the intellect and will mutually react and interact at all stages of conceiving, formulating, issuing, and executing a command is convincingly depicted by Walter Farrell, O.P., A Companion to the Summa, II, 49–62.

[10.]Cf. St. Thomas, Summa theologica, Ia IIae, q.92, a.1.

[11.]Yet it must be insisted that the obligation of the natural law does not depend for its efficacy on a knowledge either of God as legislator or of the divine will. For in the impossible hypothesis that God might not will the natural law, the latter would nevertheless become known to men and would oblige men in the same way as now because human nature would be constituted in the same way as now by command of the divine reason, and both human nature and its acts would be ordained to the last end—a truth glimpsed by Grotius. “The essential order of things, more particularly the rational good of man, is the proximate source of the obligation of the Natural Moral Law. It is a secondary but true cause in the moral order, producing a true effect, a true obligation.” Ultimately, of course, the efficacy of this secondary cause of moral obligation, which simply results from the necessity of an act in relation to an absolutely necessary end, depends on the first and supreme cause, God and His eternal law. Obviously, if there were no God, nothing would exist, and hence there would be no natural law of any kind. Yet “the obligation of the Natural Moral Law no more demands a knowledge of God as legislator for its efficacy than do the first principles of the speculative order for their validity. This obligation follows from a first principle, the principle of finality, which like the other first principles has ontological value.” To command is the function of law, however, and obligation on the part of the subject is but the inseparable corollary or consequent of command. Since the act of command is immediately and substantially directive or ordering (and not intimating and moving), obligation is primarily a product of the intellect; yet since the act of command is fundamentally and radically motive or effective, obligation is also a product of will. Thus the natural moral law implies the existence of God and His eternal law, and all men are in some degree aware of its obligation as a dictate of practical reason concerning necessary means to an absolutely necessary end, namely, personal perfection and happiness. For nature itself imposes this end upon man by physical necessity—he cannot but will it; and, on the other hand, reason can perceive that certain particular goods and actions suited to man’s rational nature pertain to that end as necessary means or conditions of this perfection and ultimate happiness and that certain others do not. The natural moral law is no mere ideal to be pursued or not in accordance with one’s whims or temperament; it imposes a strict obligation. It simply involves the obligation to apply the supreme moral principle, “Do good and avoid evil,” to every deliberate human course of action. Cf. Walter Farrell, O.P., A Companion to the Summa, I, 383–88; The Natural Moral Law According to St. Thomas and Suarez, pp. 6–13, 54–61, 130–41, 148 ff.; “The Roots of Obligation,” The Thomist, I (1939), 14–30; Michael Cronin, The Science of Ethics, I, 211–30; O. Karrer, op. cit., pp. 52–57, 233 ff.

[12.]Law as it is in the legislator consists in an act of command. But “command is immediately and substantially from the intellect, radically it is from the will; it is an elicited act of the practical reason, presupposing an act of the will” (Walter Farrell, O.P., “The Roots of Obligation,” The Thomist, I [1939], 17).