The Treatise on Law

(Summa Theologiae, I-II; qq. 90-97)

Thomas Aquinas, R. J. Henle

• Publisher: University of Notre Dame Press
• Year: 1993
• ISBN:
  9780268045586
• Topic: Jura
• Subtopic: Rechtswissenschaft

In this translation of Saint Thomas Aquinas's The Treatise on Law, R. J. Henle, S.J., a well-known authority on philosophy and jurisprudence, fluently and accurately presents the Latin and English translation of this important work. Henle provides the necessary background for an informed reading of the Treatise, as well as the only in-depth commentary available in English on this text. The first section of the book contains an introduction to St. Thomas's life, work, writings, and jurisprudence. Henle discusses the structure of St. Thomas's magnum opus, Summa Theologiae, from which The Treatise on Law is excerpted. A brief section is included on Scholastic philosophy and also on St. Thomas's approach to the study of law. Henle then examines Thomas's definition of a law and the general doctrinal background for the Treatise. Finally Henle explores St. Thomas's sources, including his use of auctoritates, or authoritative quotations drawn primarily from the Bible, Aristotle, St. Augustine, and St. Isidore of Seville. The second part of the book contains the Latin text of the Treatise presented unit by unit, each followed by the English translation and, when appropriate, by a comment. The Treatise on Law will be of interest to law students, lawyers, judges, and legal scholars. It will also appeal to those interested in St. Thomas's legal philosophy, such as political scientists, theoretical sociologists, and cultural historians. For philosophers, especially beginners in medieval philosophy, it serves as a good introduction to the thought of St. Thomas.

PART B

St. Thomas Aquinas
The Treatise on Law

[BEING SUMMA THEOLOGIAE, I–II, QQ. 90 THROUGH 97]

with
Latin Text, English Translation, Introduction, and Commentary

INTRODUCTION

Part B consists of the Latin Text directly associated with the corresponding English translation and comments. The comments are of two kinds. Some are general, as, for example, the Introductory Comment for q. 91; others are directed to specific texts, as, for example, the comment on the Sed Contra in q. 90, a. 1.

I have taken some liberty with the arrangement of the text. Instead of the original order of objection, sed contra, Corpus, and replies to the objections, I have paired the replies with the corresponding objections. I have done this for two reasons. First, it facilitates the direct comparison of the reply with the corresponding objection. Secondly, since any ad locum comment must refer both to the objection and to its reply, it focuses the comment directly with the pair objection-reply, thus producing a neat unit of study.

There is, of course, a disadvantage in this arrangement, since frequently the reply presupposes the Corpus and cannot be fully understood by itself. However, Part Β is not intended simply for reading; it provides a basis for study, which, in turn, requires a back-and-forth perusal of the text. I believe the advantage of this arrangement for the modern reader in any case outweighs this disadvantage. I try to reduce this disadvantage by referring to the Corpus in the comment.

The translation is my own. I have tried for accuracy and clarity rather than stylistic elegance.

I emphasize again that St. Thomas is not doing jurisprudence per se; he is not writing for jurists or judges. He is writing as a theologian and for “beginners” in that discipline. He is studying everything that bears on the human act, the act for which human beings are responsible agents. Among these influences he finds law.

For these reasons St. Thomas is interested in all types of law that are properly (but analogously) so-called. Modern jurisprudence focuses on Positive Law and deals with Natural Law only inasmuch as it may influence Positive Law.

Yet, St. Thomas’s Treatise was accepted as a classic in all subsequent Scholastic discussion of law or government. It is still recognized in modern jurisprudence as a classic source of Natural Law.

I remind the reader that references like [138–145] are to paragraph numbers in Part A.

DE LEGE CONCERNING LAW

Consequenter considerandum est de principiis exterioribus actuum. Principium autem exterius ad malum inclinans est diabolus, de cujus tentatione in Primo dictum est. Principium autem exterius movens ad bonum est Deus, qui et nos instruit per legem et juvat per gratiam. Unde primo de lege, secundo de gratia dicendum est. Circa legem autem,

primo, oportet considerare de ipsa lege in communi;

secundo, de partibus ejus.

Circa legem autem in communi tria occurrant consideranda,

primo quidem, de essentia ipsius;

secundo, de differentia legum;

tertio, de effectibus legis.

[Being Summa Theologiae, I–II, qq. 90–97]

Consequently, we must consider the extrinsic principles of human acts. Now, the external principle inclining to evil is the devil concerning whose temptation we discussed in the First Part. But the extrinsic principle moving us to good is God Who instructs us through law and helps us through grace. Wherefore, we must first speak of law and secondly about grace. However, with regard to law, we will consider

first, the nature of law in general (qq. 90–92)

secondly, the different types of Law.

Now, concerning law in general, there are three points to consider,

first, the essence of law itself (q. 90);

secondly, the various types of Law (q. 91);

thirdly, the effects of law (q. 92).

QUESTION 90
DE ESSENTIA LEGIS CONCERNING THE ESSENCE OF LAW

Circa primum quaeruntur quatuor:

1. utrum lex sit aliquid rationis;

2. de fine legis;

3. de causa ejus;

4. de promulgatione ipsius.

Question 90

Concerning the first topic, there are four points of inquiry:

1. whether law is something pertaining to reason;

2. concerning the end of law;

3. concerning its cause;

4. concerning its promulgation.

Introductory Comment

In this Question St. Thomas develops his general definition of law. An understanding of this Question is therefore a prerequisite for the understanding of the rest of the Treatise as St. Thomas himself makes clear by his constant references to the elements of the definition throughout the Treatise. The reader is therefore urged to study Question 90 thoroughly before proceeding to the rest of the Treatise.

The definition is framed in terms of the Aristotelian Doctrine of the Four Causes, one of Aristotle’s most important contributions to the methodology of Western philosophy, theology, and science [178–210]. St. Thomas’s definition is the first concise yet comprehensive definition in the history of jurisprudence.

ARTICLE 1
UTRUM LEX SIT ALIQUID RATIONIS?
WHETHER LAW IS SOMETHING PERTAINING TO REASON?

OBJECTION 1

Videtur quod lex non sit aliquid rationis. Dicit enim Apostolus, Video aliam legem in membris meis, etc. Sed nihil quod est rationis est in membris, quia ratio non utitur organo corporali. Ergo lex non est aliquid rationis.

Objection 1

It would seem that law is not something pertaining to reason. For the Apostle says (Rom. vii. 23): I see another law in my members, etc. But nothing pertaining to reason is in the members; since the reason does not make use of a bodily organ. Therefore law is not something pertaining to reason.

REPLY 1

Ad primum ergo dicendum quod, cum lex sit regula quaedam et mensura, dicitur dupliciter esse in aliquo. Uno modo sicut in mensurante et regulante; et quia hoc est proprium rationis, ideo per hunc modum lex est in ratione sola. Alio modo sicut in regulato et mensurato; et sic lex est in omnibus quae inclinantur in aliquid ex aliqua lege; ita quod quaelibet inclinatio proveniens ex aliqua lege potest dici lex’ non essentialiter, sed quasi participative. Et hoc modo inclinatio ipsa membrorum ad concupiscendum ‘lex membrorum’ vocatur.

Reply 1

Since law is a kind of rule and measure, it may be in something in two ways. First, as in that which measures and rules: and, since this is proper to reason, it follows that, in this way, law is in the reason alone. Secondly, as in that which is measured and ruled. In this way, law is in all those things that are inclined to something by reason of some law, so that any inclination arising from a law, may be called a “law,” not essentially but by a kind of participation. And thus the inclination of the members to concupiscence is called the “law of the members.”

Comment

Briefly, the problem here is that St. Paul is using “law” to apply to something that has nothing to do with “reason,” while St. Thomas, on the other hand, asserts in the Corpus that law pertains to “reason.” Hence, St. Thomas must, on the one hand, justify the auctoritas from Scripture while, on the other hand, removing it as an objection to his own position.

Briefly, the answer consists of pointing out that there are two different ways of using the term “law.” The first use is the essential use in which law is in the reason, functioning as regulating something else. This is St. Thomas’s usage. The other way is to use the term “law” to refer to what is regulated. This is a derivative use which is therefore called “by way of participation.” There is one unsolved problem in this Reply. What is the proper law from which St. Paul’s use is derived? St. Thomas devotes an entire Article to the problem in q. 91, a. 6. I will postpone a fuller explanation to that Article.

Now some clarification: By “member” St. Paul means the body. In the body he finds desires for food, drink, sex, and sensible comfort; these constitute “concupiscence.” In itself concupiscence is good, but it does lead us into sin and so is at war with the law of the mind. Concupiscence, viewed precisely as leading to sin, is called the fomes peccati, “that which foments or promotes sin.”

According to St. Thomas’s philosophy of human nature, “reason” (the “intellect”) is a spiritual faculty that cannot be reduced simply to a physical organ (i.e., the brain); hence the “law in the member” has nothing to do with reason.

OBJECTION 2

Praeterea, in ratione non est nisi potentia, habitus, et actus. Sed lex non est ipsa potentia rationis; similiter etiam non est aliquis habitus rationis, quia habitus rationis sunt virtutes intellectuales, de quibus supra dictum est; nec etiam actus rationis est, quia cessante rationis actu lex cessaret, puta, in dormientibus. Ergo lex non est aliquid rationis.

Objection 2

Further, in the reason there is nothing else but power, habit, and act. But law is not the power itself of reason. In like manner, neither is it a habit of reason, because the habits of reason are the intellectual virtues of which we have spoken above (q. 57). Nor, again, is it an act of reason, because then law would cease, when the act of reason ceases, for instance, while we are asleep. Therefore, law is nothing pertaining to reason.

REPLY 2

Ad secundum dicendum quod, sicut in actibus exterioribus est considerare operationem et operatum, puta, aedificationem et aedificatum, ita in operibus rationis est considerare ipsum actum rationis, qui est intelligere et ratiocinari, et aliquid per hujusmodi actum constitutum; quod quidem in speculativa ratione primo quidem est definitio; secundo, enuntiatio; tertio, vero Syllogismus vel argumentatio. Et quia ratio etiam practica utitur quodam syllogismo in operabilibus, ut supra habitum est (q. 12, a. 3; q. 76, a. 1), secundum quod Philosophus docet in Ethic. vii, 3, ideo est invenire aliquid in ratione practica quod ita se habeat ad operationes sicut se habet propositio in ratione speculativa ad conclusiones; et hujusmodi propositiones universales rationis practicae ordinatae ad aciones habent rationem legis: quae quidem propositiones aliquando actualiter considerantur, aliquando vero habitualiter a ratione tenentur.

Reply 2

Just as, in external action, we may consider the act of working and the work done, for instance, the work of building and the house built; so in the acts of reason, we may consider the act itself of reason, i.e., to understand and to reason, and something produced by this act. With regard to the Speculative Reason, this is first of all the definition; secondly, the proposition; thirdly, the syllogism or argument. And since the Practical Reason also makes use of a kind of syllogism in respect of the work to be done, as stated above (q. 12, a. 3; q. 76, a. 1), and as the Philosopher teaches (Ethic. vii, 3), hence we find in the Practical Reason something that holds the same position in regard to operations, as, in the Speculative Intellect the proposition holds in regard to conclusions. Such universal propositions of the Practical Intellect that are directed to actions have the nature of law. And these propositions are sometimes under our actual consideration, while sometimes they are habitually retained in the reason.

Comment

The Objection assumes that there are only three things in the reason, namely, the power of reason itself, the habits that perfect the reason, and acts of reason. Law is not the power itself, it is not a habit, it is not an act. Therefore it is not in the reason. The basic ...