THE THOMIST A SPECULATIVE QUARTERLY REVIEW OF THEOLOGY AND PHILOSOPHY EDIToRs: THE DoMINICAN FATHERS OF THE PRoviNCE oF ST. JosEPH Publishers: The Thomist Press, Washington 17, D. C. VoL. XX No.3 JULY, 1957 SOURCES OF ST. THOMAS' CONCEPT OF NATURAL LAW I THE EMERGENCE OF THE PRECEPTS INTO RoMAN LAw T HE convergence of two principal lines of influence provide an original source of the concept of natura). law and its primary precepts as understood by St. Thomas Aquinas in the Summa Theologiae.1 Into this fluid and still largely indeterminate deposit St. Thomas brings synthetic, ordered and ultimate expression. Synthetic, in the sense that the law and its precepts are there seen in a context until then unattained. Their formulation within the Summa Theologiae brings an altogether new perspective, within an ontological hierarchy that is primarily and formally theological, 1 The developed doctrine appears between Questions 90-97 of the Prima Secundae. 237 238 PATRICK M. FARRELL but into which the perfection of Roman Law and of Greek philosophical genius has been incorporated and integrated. 2 An order of primary precepts is established, and from a twofold standpoint. First in the derivation of the precepts from elementary per se nota principles and ultimately from the principle of contradiction. Secondly, in the disposition of the precepts among themselves. It will be necessary to insist upon this point since much previous and subsequent confusion has its roots in inversions of this order. The formulation is ultimate, again in a double sense. It is ultimate a priori in the unassailable metaphysical basis upon which it is established in the Summa and a posteriori, from the fact that the attempts of subsequent history have provided no satisfactory alternative. The two lines providing the original deposit comprise what we shall term the philosophical factor, with its roots in Hellenic speculation; and the genius of Roman jurisprudence deriving from, and enforced in fact from, the peculiar historical context of which Rome found itself the center. This we shall term the legal factor. We shall consider the main historical features of these two factors and their convergence at a point most fruitful in the express development of the precepts, at the close of the Roman Republic, and before the early Classical period of law under the Principate. 3 It will then be possible to examine the principal characteristics of the period of convergence itself. • " Si telles (the rediscovery of antiquity and intense revival of interest therein) sont les deux composantes spirituelles de toute renaissance, nous voici attentifs a discerner dans le cas de saint Thomas d'Aquin ce qu'il recueillera de !'heritage antique, mais aussi ce par quoi son genie transformera l'homme d'Aristote, comme Ia grace renove Ia nature sans en violenter Ia structure originelle. Rarement fut-il plus beau cas d'une concurrence de !'inspiration creatrice, et de Ia plus sincere imitation." M.-D. Chenu; 0. P., Introduction a l'etude de saint Thomas d'Aquin (Montreal-Paris, 1950), p. 28. This work gives (passim) valuable and scientific estimate of various factors, principally in the methodological background of St. Thomas, including the influence of Aristotle. While a historical common-place, this influence is of considerable importance in our context. 3 The close of the Republic is taken as coinciding with the Battle of Actium (81 B. C.), the Principate as beginning in 27 B. C. with the regularizing of his power by Augustus, and the Earlier Classical Period of Law as extending from the SOURCES ARTICLE L OF ST. THOMAS' CONCEPT OF NATURAL LAW 239 The Philosophical Factor. This factor may itself be comprised of two originally distinct elements-the line of the poets (or secondary line), and the line of the formal philosophers (the primary line). (a) The Poetic (or secondary) Line If this is a true line of express but implicit 4 recognition of natural law and of a complex of precepts, then it is chronologically much more ancient than that of the line of formal philosophy. We shall accordingly treat of it first-and principally to dispose of it. It has been suggested that the idea underlying the definition of ius naturale given by Ulpian 5 is already found in Homer. 6 This suggestion can be admitted only with difficulty and in most general terms. It would be difficult to overestimate the influence of Horner directly, and particularly indirectly, on the formation of the deposit of Greek thought. The position occureign of Hadrian (117-138) to that of M. Aurelius alone (172-180). Cf. H. E. Jolowicz, Historical Introduction to the Study of Roman Law (Cambridge University Press, 1939), p. xviii. Cf. also Appendix HI to this article. Dates of principal persons are given in Appendix I. 4 The term " express " is used in association with " implicit " to indicate the clear literary expression of an idea containing a fuller significance which at the time is neither accurately formulated nor even fully realized. Thus the idea is expressed-its fuller significance remains obscure, virtual and therefore implicit. 5 " Ius naturale est quod natura omnia animalia docuit: nam ius istud non humani generis proprium, sed omnium animalium (quae in coelo) quae in terra, quae in mari nascuntur, avium quoque commune est. Hinc descendit maris atque feminae coniunctio, quam nos matrimonium appellamus; hinc liberorum pro creatio, hinc educatio: vidimus etenim coetera quoque animaiia, feras etiam, istius iuris peritia censeri." CL 0. Lottin, Le Droit Naturel chez Saint Thomas d'Aquin et .•es predecesseurs (Deuxieme edition-Bruges, Belgique), p. 8, note 2. The definition is incorporated and perpetuated almost in its entirety in the Institutes of Justinian, cf. D. lustinani, Sacratissimi Principis, lnstitutiones. Lib. I, Tit. II, Praem., "De lure Naturali, Gentium et Civili," and is subsequently considered by St. Thomas (IV Sent., d. 33, q. 1, a. l, ad 4) as will be seen. 6 " Questa idea di Ulpiano che e stata assai maltrattata dal punto di vista del diritto razionale, si trova, come osserva lo Schulin, "Lehibuch," p. 80, gia presso il vecchio Omero e presso i filosofi greci, e non e irragionevole dal punto di vista della storia del diritto." Cf. F. Girard, Manuale Elementare di Diritto Romano, Trans. Carlo Longo (Ed. Societa Editrice Libraria, 1909), p. 13, note I. 240 PATRICK M. FARRELL pied by the Iliad and the Odyssey in Greek life was admittedly considerable for a thousand years, 7 extending to Aristotle himself, in whom its psychological influence is certainly present, if impossible to determine fully. 8 Apart from general educational orientation, Homer is cited frequently throughout the works of Artistotle and in the Rhetoric, for instance, he is cited. more often than any other writer, 9 but it is significant that when in that work reference is made to natural law, it is not Homer who is invoked. It is true to say that the influence of Homer is material, but there is little evidence of what may be termed a formal doctrinal contribution to Aristotle. 10 Insofar as the Homeric poems provide a series of " ethical types " performing actions and conforming with norms which are implicitly taken as having universal validity, there is a recognition of natural law, but only in a most virtual and unsystematic sense.11 The 7 ". • • a citation from Homer was the natural way of settling a question of morals or behaviour. Homer could be quoted in diplomatic exchanges, like a Domesday book, to support a territorial claim. . . . The Greeks then, who for a thousand years turned to Homer for the education of their young and for the delight and instruction of the mature, were not turning to mere venerable relics or patriotic historical sagas or charming fairy stories, but to poems which already possessed all those qualities which made the Greek civilization what it was." H. Kitto, The Greeks, Pelican Books, No. A 220 (Middlesex, 1952), pp. 44, 45, and 55. For particular points of influence in the Pre-Socratic period, cf. E. Brehier, Histoire de la Philosophie (Alcan: Paris, 1982), Tom. I, pp. 41-86. 8 For certain of these influences cf. Werner Jaeger, Aristotle, Fundamentals of the History of his Development (Oxford Univ. Press., 2nd Ed., 1948}, v. g., pp. 119, 220, 229, and particularly p. 856. Also interesting, and in this Homeric context, perhaps significant, is the curious extract from a letter at the close of Aristotle's life, " The more solitary and isolated I am, the more I have come to love myths." Cf. Jaeger, op. cit., p. 821, and note 1. For the interrelation of myth and wisdom, cf. also Metaphysics, Bk. I, 2, 982b. 17, and the Commentary of St. Thomas, Lect. (Ed. Cathala}, No. 55, p. 19. • Cf. W. D. Ross, Aristotle (Methuen: London, 2nd revised Ed., 1980), p. 8. It is also useful to note that the Rhetoric, together with the Nicomachean Ethics, the Poetics and others, is assigned in Jaeger's "psychological order " to the later part of Aristotle's life-the 2nd Athenian period. Cf. Ross, op. cit., p. 19. The Homeric references in these works are therefore those of a mind in the state of maximum maturity. 10 We may except certain mythical cosmogonical elements. Cf. Jaeger, op. cit., p. 856. 11 We consider that this explication of the implicit content of Homer concerning SOURCES OF ST. THOMAS' CONCEPT OF NATURAL LAW 241 idea of system, of abstraction and of a critical synthetic approach to reality, has not yet emerged/ 2 Consequently we cannot look upon Homer as more than a general, diffuse and indeterminate contributor to the developed doctrine of natural law. The position of Sophocles is much more important, first in his explicit reference to unwritten unalterable laws, and secondly in his being cited by Aristotle in one of the most significant references to natural law present in the works of the latter. 1 s Sophocles in the Antigone states in the defence of Antigone before Creon, of her action in burying Polynices in contravention of a positive edict: That order did not come from God. Justice, That dwells with the gods below, knows no such law. I did not think your edicts strong enough To over-rule the unwritten unalterable laws , Of God and heaven, you being only a man. They are not of yesterday or today but everlasting, Though where they come from, none of us can telL natural law is very well exemplified in the following interesting citation from the Republic. Plato is discussing the concupiscible and irascible appetites in their relation to reason. They are distinct from it: " And in the brute beasts too, one may observe yet further, that what you say is truly the case; and besides this, it is attested also by what we formerly cited from Homer-' His breast he struck, and thus his heart reproved '-for in this passage Homer has plainly made one part reprove the other; that part, namely, which reasons about good and evil, to reprove the part which is unreasonably angry." Book IV, Ch. 17, English ed. cit., p. l!'l6. 10 " Homer has, of course, no systematic theology: indeed the very idea of systematic thought has not yet come into existence. But to the Greeks this background (of allusion to physical nature) was not decoration: it was rather a kind of perspective--not in space, but in meaning. It makes us see the particular action we are watching not as an isolated, a casual, a unique event; we see it rather in its relation to the moral and philosophical framework of the universe. This framework, I must repeat, is not one which Homer consciously expounds; he had no complete philosophical system. Nevertheless he sees that there is a unity in things, that events have their causes and results, that certain moral laws exist." Kitto, op. cit., p. 53, 55. 13 Sophocles (born Athens 496 B. C.) occupies a position in the Pre-Socratic stage of philosophy in the period of the first Pythagorean school (530-350). Euripides (born 484) precedes Socrates by about 15 years. 242 PATRICK M. FARRELL Guilty of their transgression before God I cannot be, for any man on earth. 14 Thus natural instinct, in this case of piety and compassion, is acknowledged as part of a law which is superior to positive law, recognizable as distinct from written law, immutable, and carrying with it an interior and inevitable sanction. Part of this statement is cited by Aristotle in the " Rhetoric " where a common law rooted in nature is formally proposed in association with written and unwritten law. 15 At this point the rather insignificant direct and cited contribution of the poets ceases. The binding force of certain natural instincts is beautifully acknowledged later, v. g., in Euripides/A but these works are composed at the beginning of the classical period and during the lifetime of Socrates. Consequently they no longer necessarily express an independent ·poetical development of thought. (b) The Philosophical (or Primary) Line. (i) The Pre-Socratics. It is not here intended to discuss the general structure of pre-Socratic thought 17 but to consider from the fragments of "Cf. Sophocles, The Theban Plays, a New Translation by E. F. Watling, The Penguin Classics, L. 8 (Penguin Books: London, 1958), p. 188. 15 " Dico autem legem aliam quidem propriam aliam vero communem. Propriam quidem earn, quam sibi quique statuunt; eamque aut non scriptam, aut scripto comprehensam. Communem autem earn, quae naturalis est; est enim commune quoddam iustum natura et iniustum, quod omnes quodammodo vaticinantur, etiamsi nulla de eo inter illos communicatio aut pactio intercesserit. Quale etiam Antigone apud Sophoclem dicere videtur, justum esse affirmans, sepelire Polynicen, quamvis vetitum sit, quod id natura iustum sit: ' neque enim hodie ius hoc receptum est, aut heri, aeternitate fixum ab omni sed viget, neque origo quae sit eius, ulli cognitum sit.' " Rhetorica, Lib. I, Cap. 18, !l. Ed. Firmin-Didot et sociis, Paris), Vol. I, p. 840. 16 V. g., "Hippolytus." Cf. the speech of Phaedra in Euripides; Alcestes and other Plays, W. Vellacott (Penguin Classics, L. 81, London 1958), p. 89. 17 It is useful, however, to have the pattern in mind. The reader is therefore referred to the general histories of philosophy, v. g. W. Turner, A History of Philosophy (London, 1908), pp. 80-75; Fr. Copleston, A History of Philosophy (The SOURCES OF ST. THOMAS' CONCEPT OF NATURAL LAW 243 the writings of the philosophers of that period, the contribution made to the Hellenic deposit relative to natural law and its precepts. The Table appended 18 lists in chronological order of their authors those fragments which have some relevance in this context. It should be remembered that they are but fragments, wholly out of their original context and also isolated from the interpretation placed on many of them by the early successors of their authors. They are nonetheless revealing. The recognition of offences universally regarded as shameful is present in Xenophanes. 19 In Heracleitus the thinking faculty is common to all/ 0 the passions must be subjected to reason, though this be difficult; 21 natural law is known to exist, 22 and human law in founded on a divine order. 2 " In Epicharmus we note the primacy of reason over emotion/ 4 and in Alcmaeon the assertion of "understanding" as distinctive of man. 25 In Philolaus there is the very notable distinction of " nature " and "convention"; 26 truth is conceived as the product of Harmony, falsehood and envy as belonging to disorder, the Unintelligent and Irrational; and the brain considered as the controlling factor in man. 27 The fragments of Democritus are particularly relevant. He sees law as the norm of order in behavior 28 and in the last analysis this norm resides within the soul itself. 29 Bellarmine series IX; B. 0. & W. 1946), Vol. I, pp. 13-80; and (for greater detail) Emile Brehier, Historie de la Philosophic (Aican, Paris), Tom. I, Livre I, pp. 41-87; and for more specialized works to J. Burnet, Greek Philosophy, Part I-Thales to Plato (Macmillan: London, 1914); and Kathleen Freeman, The Pre-Socratic Philosophers (Oxford, 1946). 18 Appendix II. 19 Appendix II, Text l. (Future references to texts in this article are to Appendix II until otherwise stated.) 20 Text 2 (d). 21 Text 2 (g) . 22 Text 2 (c). 23 Text 2 (e). 2 • Text 3 (b). 25 Text 4. 26 Text 5 (a). 27 Texts 5 (b) and (c) . But the physiological context should be noted. 28 Text 6 (a). 29 Text 6 (f). 244 PATRICK M. FARRELL The good and the true are an objective universal norm so to which many conform naturally, i.e., without learning. 81 The natural law is expressly stated, is primeval and intrinsic, deriving not from the gods as a series of positive edicts, nor dictated by external motives, such as profit, but by an inner necessity of nature. The procreation of children is of natural law-and this law extends to their education. 32 This fragment is a very remarkable adumbration of the definitions of Cicero and Ulpian, and through these and other intermediaries, the idea extends to the Summa Theologiae. Antiphon, presuming the existence of a natural law, refers to its edicts as being compulsory and carrying with them an inner sanction. This law is universal and is more fundamental and more real than any distinction of " free " or " servile," " barbarian " or " Hellene." The relation of natural to positive law is also discussed. 33 Thus the close of the period has left Greek thought with a developed awareness of the existence of a natural law, universal, intrinsic/ 4 superior to positive law and distinct from convention, and has expressed some of its primary precepts, notably, the primacy of reason,-the procreation and education of children. We are, however, very far from the lapidary statement and order of this law and its precepts, and the total integration which is to be achieved in the Scholastic theological period. The importance of the pre-Socratic achievement should not be exaggerated-its philosophers reached few stable conclusions in ethics and are frequently in opposition to each other on important issues. Their work is also distorted by naive biological and cosmological theories, which draw scant recognition from the later Hellenic masters. Their influence on Cicero and •• Text 6 (c). "'Text6 (b). •• Text 6 (g). •• Text 7. •• Lottin sees in the elaboration and development of this " intrinsic" quality of natural law a pril':tcipal factor in ensuring the permanence of the doctrine of St. Thomas Aquinas. Cf. LoUin, op. cit., p. 103. SOURCES OF ST. THOMAS' CONCEPT OF NATURAL LAW Q45 Ulpian must, however, be recognized, and it will be apparent when these latter are discussed. One further observation must be made. In the pre-Socratic philosophers there is clear evidence of the antiquity of the concept of natural law-and that this concept has emerged on the first express reflexive observation which man has made upon himself. While antiquity, as such, is no adequate criterion of truth, we may observe that this particular concept is one of the few pre-Socratic doctrines which survive the critical analysis of the next period. Where antiquity has shown itself resilient in the face of developed criticism, we have an increasingly cogent criterion. (ii) From Plato to the Stoics. Plato. In considering the contribution of Plato to the developed doctrine of natural law, and with particular reference to an order of precepts, the most significant direct observations will be found in the Republic, and especially in Book IV. From Chapter XI of that Book the question of the nature of justice is examined by a consideration of man as a diminutive of the state-thus possessing, or capable of possessing, the same principles in his soul, namely, temperance, fortitude and wisdom. The question of the unity or diversity of the concupiscible and irascible appetites and reason then arises: This, however, is truly hard (to decide), whether we perform our separate acts by one and the same power, or whether, as they are three, we perform one by one, and another by another; that is, learn by one, get angry by another, and by a third covet the pleasures of nutrition and propagation, and others akin to these; or whether, when we devote ourselves to them, we act on each with the whole soul: these matters are difficult adequately to determine. 35 What is here significant in relation to the precepts, is that the movement of these appetites is regarded as natural in the sense that it is common. The participants in the dialogue •• Republic, Bk. IV, Cap. XIII, The Wor!.s of Plato, trans. Henry Davis (London, 1908), Vol. IT, p. 246 PATRICK M. FARRELL understand that the appetites and their objects, at least in general, are identical in all men. Consequently, there is no discussion here, precisely on this point. What is sought is the establishment of their distinction and order, which for Plato will be the order of personal justice. It is also possible to distinguish in embryonic form assertion of the principle " bonum est faciendum." Let no one then, said I, trouble us, as if we were inadvertent, (by objecting to us) that no one desires drink, but good drink,-nor meat, but good meat;-inasmuch as all men desire what is good. If then, thirst be a desire, it is one of something good; whether it be of drink, or anything else whatever,-and in the same way with all the other desires. Aye, perhaps, replied he, the man who says this may be deemed to say something to the purpose. 36 The controlling considered: and inhibiting function of reason is then Might it not be said, that there is something in their soul that prompts them to drink, and likewise something that restrains them, quite different, and that prevails over the prompting principle? I think so, said he. Does not the restraining principle then, whenever it arises, arise from reason; while those that urge and lead men onwards, proceed from affections and ailments? It appears so.27 In the temperate man, who will also be just, there a harmony under the dictate of reason: be And do we not, moreover, term a man temperate, from the association and harmony of these very principles, when the governing and governed agree in one,-namely, when reason governs, and when the others are not at variance therewith? 3 s After establishing that injustice consists in the disorder of insurrection of parts which are naturally inferior, over parts intended by nature to govern, the production of justice is seen to be analogous with the maintenance of health: Republic, loc. cit., cap. XIV, p. 19!2. Republic, loc. cit., cap. XV, p. 124. "'Republic, loc. cit., cap. XVII, p. H!S. 36 37 SOURCES OF ST. THOMAS' CONCEPT OF NATURAL LAW 247 To produce health, however, is to establish everything in the body so that they shall mutually govern and -be governed, conformably to nature. . . . Then again, said I, to produce justice, is it not to establish aU in the soul, so that its parts shaH mutually govern: and be governed according to nature;-and does not injustice consist in governing and being governed by one another contrary to nature? 39 These conclusions built up progressively in the latter part of Book IV present probably as close an approximation to the order of principles of natural law as is attained in the works of Plato. Admittedly the basis of the discussion is more precisely the principle of justice, but the outline of natural law is evident, at least implicitly. The principle " bonum est faciendum, is distinctly foreshadowed, the natural instinctual appetites accepted as unquestioned data, and a serious attempt is made to establish an order, at least normative, existing among them-an order which is the order of justice, having as its first operative principle the primacy of reason. The whole remains man, if and where he exists, will act in this way. The developed concept of natural law has a much more immanent and dynamic character, and complete universality in its principles-freedom to deviate remaining. The intrinsic quality of the law of naturf also suffers some diminution in Plato's relegation of the source of the "nomos " to the state, and its actualization to education. The question now arises as to the influence this doctrine exercised directly or indirectly on St. Thomas. The indirect influence of general Platonic philosophy is, of course, received in Aristotle, and with greater detachment in St. Augustine/ 0 39 4 Republic, loc. cit., cap. XIX, p. 130. ° Cf. C. Huit, "Les Elements Platoniciens de !a Doctrine de S. Thomas," art. in Revue Thomiste (19e annee, 1911), p. 742, note 3. This work gives a valuable estimate of the influence of Plato in the works of St. Thomas. While it makes no reference to the question of law, the article shows the position occupied by Plato in the intellectual context into which St. Thomas moved, and the rapidity of the transition to Aristotle. One may regret that the sources of certain critical texts quoted are not given and that the completion of certain works (v. g. the Commentary on the Politics) by persons other than St. Thomas, is not apparently sufficiently adverted to. 248 PATRICK M. FARRELL whose position in :regard to the tract on Law in the Summa Theologiae will be referred to later. Another line of indirect influence can be traced through the eclectic Cicero 41 and thence both directly, and indirectly through St. Ambrose of Milan/ 2 to St. Thomas Aquinas. But the finer line, which is concerned precisely with the natural law and the order of its precepts if it exists, is now obscure and almost impossible to determine. On the one hand, the Platonic doctrines in the Fathers had already been received into a new and transforming Christian perspective and on the other, much of the work of Cicero and some, if little, of that of Plato was available directly to St. Thomas. 43 The line of direct influence is likely to be quite insignificant if it exists at alL While admitting the genius of Plato, St. Thomas is fully aware of defects both in methodology 44 and in doctrine, and this in particular reference to the nature of the souL The essential duality of human nature, proposed by Plato excludes a priori any notable influence in the concept of natural law in the Summa. It must also be remembered that it is not known to what extent the works of Plato which are significant in the question of natural law (notably the Republic) were available to St. Thomas. Research into this point appears to remain inconclusive, despite the appeal sometimes made to the Commentary on the Politics where St. Thomas appears to admit his lack of adequate sources for Platonic doctrine. 45 The part of the "For influence of Plato in Cicero, cf. E. Costa, Cicerone Giureconsulto (Nuova Ed. Nicola Zanichelli: Bologna, 1927), p. 16 f. •• The body of Ciceronic legal doctrine is preserved in and transmitted through St. Ambrose, and the contribution of the latter to the Summa will be noted later. •• It has been claimed that St. Thomas' textual knowledge of Plato was in fact limited to the Timaeus and a few passages of the Phaedo. d. N. Halligan, 0. P., "Patristic Schools in the 'Summa,'" THE TnoMIST, VII (Oct. 1944), p. 527. No detailed proof is given. " " Plato habuit malum modnm docendi. Omnia enim figurate dicit et per symbola docet, intendens aliud per verba quam sonent ipsa verba, sicut quod dixit a.nimam esse circulum." I de Anima, 1, viii (No. 107 in Ed. Sa Pirotta). 45 " D'aprcs quelques mentions .§parses, Ritter ;:wait conjecture que saint Thomas possedait Ia "Republique " et les " Lois," mais cette supposition est contredite par SOURCES OF ST. THOMAs' CONCEPT OF NATURAL 249 LAW Commentary in which the relevant statement appears is, however, written by Peter of Auve:rgne, and not by SL Thomas himself. The position of Plato in :regard to the :relevant section of the Summa Theologiae may be summarized, therefore, in the following citation from St. Albert the Great. The citation is interesting in its indication both of the general importance of Plato as late as the master of the Angelic Doctor-and of the principal reason a priori for Plato's lack of direct influence in the question of natural law: " Considering the soul as it is in itself, we agree with Plato, but considering it as it is the principle of animation which it gives the body, we agree with Aristotle!' 46 Ari8totle. It will now be convenient to attempt the assessment of the direct personal contribution of Aristotle to the concept ot natural law and its constitution; to indicate what is potential SL Thomas in his thought in this regard and later actualized Aquinas in the Summa Theologiae; and finally to indicate the reasons for the comparative lack of influence of the Stagi:rite on the emergence of the idea of natural law into Roman law. For St. Thomas he provides an instrument, a methodology and le tt\moignage formel que voici: 'Opinio Platonis de corruptione rerum publicarum non est bene cognita a nobis, tum quia ad nos non venit per libros ejusdem, nee expositorum ejus, tum quia dicta Aristotelis de ea obscura sunt valde propter brevitatem ipsorum." Huit, art. cit., Revue Thom,iste, p. 742. This citation (the source of which is not given in the article cited), is from the Commentary In Libros Politicorum Aristotelis, Lib. V, Lect. XHI (Ed. Spiazzi, 1951), No. 993, p. 305 and is specifically concerned with the Republic. The text is in fact that of Peter of Auvergne, the commentary of St. Thomas ceasing with Lib. III, Lect. VI (No. 398) inclusive. (Cf. A. Walz, 0. P., San Tommaso d'Aquino, [Ed. Liturgiche: Rome, 1945], p. Consequently, while the argument from the text is strong, Peter oif Auvergne being referred to as " discepo!o attaccatissimo " and " fidelissimus discipulus" (cf. Walz, op. cit., pp. 151-15!il, HlQ) is not that St. Thomas, and soJ scientifically inconclusive. 0 <;: (!OHSIO.el"RilQC: autem earn secundum in II fonnam an.irn.ationis quan1 8'u,m1nae Theologiaeo Tract. }[II, Q. 89, Mexn};. Aris- 250 PATRICK M. FARRELL a body of research which is very largely received into the Summa to be transcended there. 47 The direct personal and formal contribution of Aristotle to the concept is not very considerable, the two principal and explicit references appearing in the Nicomachean Ethics 48 and the Rhetoric. 49 In the Ethics the distinction between what is" natural" and what is" conventional" already appears in the pre-Socratics, 50 and the commentary of St. Thomas 51 is given largely to the reconciliation of Aristotelian terminology with that of the Jurists, concluding in this regard that what Aristotle understands by the " iustum naturale ,, includes both the " ius naturale" and the" ius gentium" of the Jurists. 52 In the Rhetoric he draws from the Antigone of Sophocles and from Empedocles, concluding to an innate natural justice whose dictates are superior to the edicts of positive law-and this both in the urgency and intransigence of their demands, and in their permanence. While the text from the Ethics is notable for its restatement •• " Toute Ia raison grecque, celle d'Aristote et celle de Plotin, est ici assumee en terre chretienne, non certes au titre d'object, ni de lumiere---car de ces beaux fruits du savoir theologique Ia matiere, et Ia seve surtout, demeurent intimement chretiennes--, mais comme instrument, simple instrument, authentiquement qualifie cependent par Ia coherence de Ia nature et de Ia grace." Chenu, op. cit., pp. !i!66, !l67; cf. also E. Gilson, L'E8'pl"it de la Philosophie Mediivale (Vrin: Paris, 1948), particularly Chap. XVI, "Loi et Moralite Chretienne," p. 304 f. and N. Halligan, 0. P., "Patristic Schools in the 'Summa,'" art. cit., particularly p. 527 f. •• " Of political justice, part is natural, part legal,- natural, that which everywhere has the same force and does not exist by people's thinking this or that; legal, which is originally indifferent but when it is laid down is not indifferent. . . . It is evident which sort of thing, among things capable of being otherwise, is by nature, and which is not but is legal and conventional, assuming that both are equally changeable. And in all other things the same distinction will apply; by nature the right hand is stronger, yet it is possible that all men should come to be ambidextrous." Nicomachean Ethics, 1134 b 18 and b. 30. Cf. The Works of Aristotle translated into English (Ed. W. D. Ross: Oxford, 1925), Vol. IX. •• This text is cited in Note 15 .above. •• Cf. Appendix II, Texts 5 (a) and 7. 61 Lib. V, Cap. X, Lect. XII, Ed. Spiazzi, Nos. 1016 f., p. 279 f. •• Loc. cit., No. 1019, p. !l80. SOURCES OF ST. THOMAS' CONCEPT OF NATURAL LAW 251 of the distinction of conventional from natural law, that from the latter work asserts rather the intrinsic or innate character of the law of nature with the suggestion of immutability. When, however, we consider the structural elements of Article 2 of Question 94, the real contribution of Aristotle becomes much more apparent. The article stands at a central point from which lines of reference radiate to a wide variety of the works of the Stagirite, v. g.: 1. The principles of evidence underlying the formula " propositiones per se notae, etc.," have their roots in the Analytica Posteriora 53 and the Physics 54 and find only their refinement in Boethius 55 who is cited in the article. 2. The concept of being as the object of the intellect draws on the Jfetaphysics. 56 3. The cardinal dictum," Bonum est quod omnia appetunt" appears in a highly developed form in the Nicomachean Ethics. 57 4. The penetration and elaboration of the concept of order appears first in the Metaphysics 58 and later :in the achean Ethics. 59 While we have not here exhausted the sources, it is possible to realize more fully the diversity of aspects under which Aristotle is integrated and concentrated in the article of St. Thomas. It seems to us that one of the most :important if rather implicit influences of Aristotle in St. Thomas' conception of natural law is the reference in the Nicomachean Ethics 60 to a certain participation enjoyed by the concu.piscible appetite in No. 7lb 34. •• No. 193 a 5. Cf. also Metaphysics, No. l005b ll-H!. 65 Although the commentary on the cited De llebdomadibus (1257-H!58) was composed ten years before that on the Physics (1267-1268), Boethius is himself in the Aristotelian tradition, at least as a commentator. 56 No. l027b 25. 67 No. 1094a l-2. 58 Nos. 98!i!a 16; l075a 11. 59 No. 1094a l. 60 Lib. I, Cap. XIII, No. HO!i!b 30, St. Thomas, Lect. XX, ed. cit., Nos. 237241, pp. 64-65. 53 252 PATRICK lVI. FARRELL reason. 'When it is recalled that for Aristotle reproduction is ascribed to the same minimal faculty as nutrition 61 and that these for St. Thomas comprise the second and third elementary urges, it is possible to see in this concept of " participation " the source of the unity of human nature and consequently of what may be termed the "continuity" of natural law. The law is "continuous" in the sense that it extends from reason throughout the whole of the intrinsic operative principles of human nature. Such a conception is impossible in a dualistic conception of the nature of man adopted, v. g., by Plato. It has, too, important consequences in the understanding of St. Thomas' ultimate acceptance of the definition of natural law ascribed to Ulpian, which founds natural law on that which is common to animals and men. The " community " of these instincts becomes in fact principally a community of appearances, "fd cum un amen t"" o zn re. The more remote and general influence of Aristotle lies parmetaphysical conticularly in his scientific method and in ceptions. Both are recognizable in Pri,ma Secundae, and have a direct bearing on the structure of the article in question. To the methodology Gz both the total consistency of the Summa Theologiae and the perfection of the tract on owe much. It is useful to insist on this point in evaluating the contribution of St. Thomas to the philosophy of law. We shall see that most of the individual conceptions of which it is comprised are already contained in his predecessors. The great contribution 61 " Reproduction is ascribed by Aristotle to the same faculty as nutrition: and the full name of the primary or minimal faculty of the soul is 'the faculty of nutrition and reproduction.'" VI'. D. Ross. Aristotle, 2nd ed. (London, 1930), p. 136. 62 " Et in de est quod philosophorum intentio ad hoc principaliter erat, ut per omnia quue in rebus considerabant ad cognitionem primarum causarum pervenirent. Uncle scientiam de primis causis ultimo ordinabant, cuius considerationi ultimum tempus suae vitae deputarent. Primo ... incipientes a logica, quae modum scientiarum tradit. Secundo proceedentes ad nmthematicam: . . . Terito ad naturalem philosophiam. . . . Quarto ad moralem philosophiam: cujus juvenis esse conveniens auditor non potest. Ultimo ... scientiae divinae insistebant quae considerat primas entium cau,as." Opusc. de Cansis. lect. 1. Opuscula Omnia, Tom. 1, Ed. P. M:andonnet 1927, p. 195. SOURCES OF ST. THOMAS' CONCEPT OF NATURAL LAW 253 of the Angelic Doctor is one of integration and order-from which the concept of natural law emerges with a new and clear inner coherence and a scientifically established position within a perfect theological system. 68 This integration owes much to Aristotle. The importance of the metaphysical conceptions of the latter can scarcely be overestimated-they permeate the whole of his thought and no particular point in his doctrine can be fully understood without reference to them. " All the lines of (his) philosophy run together in his metaphysics, while it, on the other hand, stretches out into all other disciplines. It expresses his ultimate philosophical purposes and every study of the details of his doctrine that does not start from this central organ, must miss the main point." 64 One of the principal contributions of Aristotle in metaphysics is that of substance, in which is resolved the dilemma of Parmenides and Heracleitusthe notions of" real being-in potency," of "act," "potency" and " becoming." The doctrine of the " good," for instance, of paramount importance in the notion of ethics generally, and ultimately in the Prima Secundae, depends for its understanding upon this doctrine of substance. 65 •• "Summarising, we may say, that the lego-philosophical tradition from St. Augustine to St. Thomas Aquinas, so far as its basic substance is concerned, essentially moves along those lines which were laid down authoritatively by St. Augustine. Many conceptual definitions and distinctions were borrowed from Roman Law ..... Towards the end of this development references to Aristotle seem to appear more and more frequently, a phenomenon which must not be taken too seriously, however, for the majority of the quotations from the works of Aristotle are merely ornamental. St. Augustine remains the only true and unchallenged authority, that one universal source and inspiration which gives form and substance to this particular period." A. H. Chroust, " The Philosophy of Law from St. Augustine to St. Thomas Aquinas," The New Sholasticism, XX (Jan. 1946), 71. The author proceeds to admit that what is still lacking is order and ·balance, and the consistent incorporation into a philosophical and theological system. This was part of the achievement of St. Thomas. •• Jaeger, op. cit., p. 876 (emphasis mine). Cf. also H. A. Rommen, The State in Catholic Thought (Herder, 1947), p. 158. •• "The comparative neglect of this theory (of the Good) in general philosophical circles is partly due to the fact that while everyone reads Aristotle's Ethics, his much more difficult Physics and Metaphysics receive less attention. This neglect PATRICK lVL FARRELL It may be said, therefore, that while the direct personal contribution of Aristotle to the notion of natural law and the order of its precepts is not very considerable, his indirect influence is of very great importance and is implicit both in Article 2 of Question 94 and in the position which the whole tract occupies in the theological structure of the Summa Theologiae. The full significance of Aristotle :remained potential, however, its definitive reception into Western Christian thought and its full actual actualization in the high Scholastic period. The historical period immediately succeeding Aristotle was, however, one in which the speculative genius of the Greek tradition was submerged in the growth of an Empire, where the major preoccupation was administrative and essentially practical. The consequent reduction of philosophy to ethics and the inversion of the limited and highly aristocratic Aristotelian concept of society, created an atmosphere in which the possipromise of Hellenic tradition remained largely latent and unrealized. The Stoics. From the point of view of the emergence and development of natural law into Roman law the Stoic school provides a principal nexus between Greek philosophy and Roman jurisprudence. While the extent of the influence of this school on the body of Roman jurists is disputed, 66 doctrine the has another cause also, in that this theory presupposes Aristotle's doctrine of substance, than which no philosophical doctrine has surely been more misunderstood, or more ignorantly criticised. It is important, however, to remember that no one is likely to find Aristotle's ethical doctrine clear unless he has correctly grasped the notion of substance." D. J. B. Hawkins, "Nature as the Ethical Norm," Aquinas Paper No. 16 (Blackfriars Publications, 1951), p. 9. 66 This influence is acknowledged by A. J. Carlyle; cf. R. W. & A. J. Carlyle, A llistorJI of Mediaeval Political Theor11 in the West, Vol. I (Blackwood: London, 1903) and following p. 34. This work is highly and justly recommended by Dom Lottin, Le Droit Nature/ etc., p. 4, but on two points of relevance in this context, viz. the origins of the tripartite division of law attributed to Cicero and those of the definition of natural law attributed to Ulpian, the full reasons for the position adopted are not given. SOURCES OF ST. THOMAS' CONCEPT OF NATURAL LAW 255 school was such as to commend itself to the Rome of its time, and the concept of the virtuous life lived in accord with nature, where nature is conceived as dominated by reason, found a responsive chord in the Roman sense of duty. There seems to be no doubt of the importance of the school in the work of both Cicero and Caius. 67 The Stoic era in the period of its greatest influence in Rome precedes the early classical period of law, receiving its definitive formulation as early as Chrysippus. The doctrine is notable for two factors significant in relation to the concept of natural law. The first of these is the neglect of metaphysics and the reduction of philosophy to ethics, 68 thus preparing for the eclecticism of Cicero and explaining in part the confusion which existed in the concept of natural law until the Scholastic period. The second factor, is the concept of the "civitas rnaxima "-in which the exclusive confines of the classical " polis ,, were destroyed and with them the distinction of " Greek " and " Barbarian." In the doctrine of the virtuous life lived in accordance with reason, the participation of human nature in reason is now conceived as universal and as admitting of no exception. This idea, a revival and reassertion in a much more favorable historical climate, of an idea much more ancient, is to be a dominant motif in the legal thought of Cicero 69 and involves a radical departure from the Aristotelian conception of the position of man in society. 70 Thus, the historical position of Stoicism and its reintroduction of ancient ideas into the developing juridical consciousness of •• Cf. Carlyle, op. cit., p. 30 f.; cf. also Jolowicz, op. cit., p. 75. •• This reduction received very clear expression in Seneca: " Philosophia nihil a!iud est quam recta vivendi ratio vel honeste vivendi scientia vel ars rectae vitae agendae. Non errabimus, si dixerimus philosophiam esse legem bene honesteque vivendi, et qui dixerit illam regulam vitae, suum ille nomen reddidit." Frag. 17, cited by Copleston, op. cit., p. 394. •• V. g., De Re Publica, cf. Applendix IV, Text 8. •• " There is no conception which is more fundamental to the Aristotelian conception of society than the notion of the natural inequality of human nature." Carlyle, op. cit., p. 7. The theory of natural slavery expressed in the Politics (No. H.!55a is denied in Stoic theory. 256 PATRICK M. FARRELL the new Roman society prepares the way for the Roman contribution to the idea of natural law-and incidentally for the notion of the Christian equality of all men. 71 The Legal Factor. (a) The Independent Roman Line. The period of Greek influence in Roman law is generally calculated as beginning about 1$0 B. C.,72 fifty years, therefore, before the maturity of Cicero. It is in fact difficult to determine the extent of this influence even as early as the first codification in the Twelve Tables (451-450), since in the political turmoil which surrounded the formulation of this Code a deputation is alleged to have been sent to Greece for prior study of the laws of Solon obtaining there. In any case, Greek influence was already present in certain colonies in Southern Italy and in Sicily.13 Accepting tentatively the given date, 150 B. C., it will be useful to consider what awareness existed, or what contribution, if any, was made to the concept of natural law before that time. For practical purposes the most convenient point of departure will be the division in 242 B. C. of the Praetorship into that with competence in urban affairs"Praetor Urbanus," and that with control over the affairs of foreigners-the competency of the " Praetor Peregrinus." This division of function was designed not to meet a foreseen need but to cope with a fully developed fact, so that the idea, if not name, of the "ius gentium " was already present and operative before 242 B. C.14 There is no question as yet of a 71 Romans 2:14 and 8:29. •• Cf. Jolowicz, op. cit., p. 102. For comparative dates in Roman legal history, cf. Table in Appendix III, infra. 73 Cf. Jolowicz, op. cit., pp. n· a11d 108: and S. Perozzi, lstituzioni di Diritto Romano (Rome, 1928), Vol. I, p. 46 f. for the composition of this Code, the elements received from custom, and those from positive edict. •• Jolowicz, op. cit., p. 102, cites Schonbauer, art. in Zeitschrift der SavignyStiftung fur Rechtsgeschichte, Romanistische Abteilung, xlix, p. 888-396 in support of the view that the phrase ' ius gentium ' was first used in the earlier period of Romai:t expansion, about 200 B. C. and meaning at that time, a law evolving from custom-but in Rome, not among foreigners. Already it was regarded as comple· SOURCES OF :-;T. THO:VL\S COXCEl'T OF 1'\ATt:RAL L,\ Y1- '25/' triple division of law, i.e., the "ius civile" "ius gentium" and "ius natumle "-but of a complementary distinction of the first two. The "ius civile" is the common positive law obtaining for Romans, and in the beginning, for Romans alone; the " ius gentium," the freer and less formal legal usage obtaining at Rome for the appeals of foreigners, especially among themselves. The question of the formal origins and lhe detailed legal development of the "ius gentium " is both complex and obscure, and is of no direct interest :in tracing an awareness of natural law and of its precepts. What is significant, however, is the fundament upon which this " ius gentium," as yet undistinguished from the " ius naturale," was in fact conceived. For the "ius gentium" was intended to cut through and simplify the very diverse foreign legal procedures and usages to which increasing appeal was made at Rome as the expanding Empire incorporated a greater number of formerly legally autonomous territories. It may be fair to say that what was sought was a workable "common denominator." Since this problem arose the recognized Greek influence it be interest to know where that common ground was found, here, if anywhere, the independent Roman conception of a natural law will be apparent. Opinion on the point is divided. It has been held that the " ius gentium " was in fact a loose system by which the foreigner could appeal at Rome to the usages and laws obtaining in his own country-or again, that the Roman jurists developed a simplified system which incorporated those usages which were more or less common to the legal systems of aU the colonies. 75 An opinion, however, which appears to have greater authentication and to follow from more recent study, is that which founds the " ius gentium " on the idea of the " naturalis ratio," 16 rnentary to the formal civil law. The idea expressed by the term obviously existed before formulation. 75 For a considerable literature on this point, d. v. g., Costa. op. cit., p. 10 f., op. cit., p. 91 f. Carlyle, op. cit., Chap. I, Jolowicz, op. cit., p. 102 f. and 76 Cf. Perozzi, op. cit., p. 93 f. for explanation of other opinions and p. 95 for preference for the "natura/is ratio." 258 PATRICK M. FARRELL where the latter is conceived as the " more common postulates of the juridical conscience of man." 77 A recent study 78 confirms this view and allows some penetration of the substratum of the "naturalis ratio" or" juridical conscience." From the works of the poets and writers of the Republican period, notably Plautus and Terence, it is clear that already in their time there existed a recognized distinction between that order which is more formally juridical, and the moral order-between the "lex, and the "mores," the latter being made up of those moral and intellectual instincts which comprise the practical wisdom of a people. This wisdom is basically a recognition of the natural moral order, and when there is added a series of derived precepts or norms, varying according to geographical, economic, and other local conditions, and according to cultural evolution, there is formed what Savigny was later to term the " spirit of the people." This formula is the expression, we believe, of what is more precisely the natural law as received and elaborated in any particular society. It provides, in tum, a criterion more profound more ultimate than any artificial and formally legal structure which may subsequently be built around it. It is from this substratum that the "ius gentium" derives, becoming explicit in the jurisdiction of the Praetor Peregrinus. The concept of natural law is, therefore, implicit very early in Roman legal consciousness, becoming more and more explicit under the pressure of historical circumstances, and in the form of the" ius gentium." In seeking, however, for an independent and express Roman contribution to the doctrine, the appeal to the poets of the Republic is open to serious objection. Both Plautus and Terence are under Greek influence 79 and it is 11 " Per spiegare poi come si verificasse l'universale valore del diritto delle genti, dissero che cio dipendeva dal fondarsi esso sulla ' naturalis ratio,' dal suo corrispondere cioe ai postulati piu communi della giuridica dell'uomo," Perozzi, op. cit., p. 94. 78 S. Riccobono, " I! Problema Attuale pili Arduo della Storia del Diritto Romano," Responsibilita del Sapere, Anno VII, vol. XXXIII-IV (Maggio-Agosto, 1953), esp. p. 184 f. •• Cf. Jolowicz, op. cit., p. 195, note l. SOVRCES OF ST. THOJ\IAS' CONCEPT OF NATFRAL LAW 259 difficult to determine how much of their work is native_, and how much the application of Greek and expression to unreflective Roman practice. Consequently, we are led to conclude that independent Homan juridical thought before Cicero has made no significant contribution to the terms and concepts which St. Thomas is later to employ in the Summa Theologiae. We may, perhaps, except the practical recognition of the "ius gentium," which, however, was only later to receive theoretical justification, and that under Greek influence. It seems also that while the period in which this latter influence was considerable and general may begin about 150 B. C., in respect of the development of the " ius gentium " it must be acknowledged to have entered much earlier. (b) The Graeco-Roman Line (or Period of Convergence) (i) Cicero. With Cicero, however, there is attained a point of full convergence in the history of Greek philosophy and of Roman jurisprudence. In philosophy an eclectic, Cicero draws on concepts either already formulated in Plato and Aristotle, or current among the Stoics and in the new Academy, modifying and remoulding the whole according to the exigencies of the Roman aversion to abstract thought, and the dominant passions of his age.8° From the legal standpoint he is one of the most important direct sources for a knowledge of the pre-classical period of law. 81 As Carlyle observes, he expresses what was 8 ° Cf. Costa, op. cit., p. 16. A representative selection of extracts from the works of Cicero relevant to natural law and its precepts, is given in Appendix IV infra. 81 " Chief among these (sources) must be reckoned the works of Cicero. Many of the speeches were actually delivered before the courts, though mostly in criminal cases, and thus necessarily contain much legal material, but the philosophical writings are also of great importance. The 'Republic ' and the 'Laws,' though professedly descriptive of the ideal state, are to a considerable extent based on idealisations of actual Roman practice and they, as well as the other works, contain many legal anecdotes. Even the letters often refer to legal matters, especially, of course, to Cicero's private affairs." Jolowicz, op. cit., p. 195. 260 PATRICK :\I. FARRELL generally current in his time. 82 While lacking any great originality of mind, his importance as a source and in the synthetic presentation which he provides of contemporary thought should not be underestimated. His work continues, for instance, in Lactantius and in St. Ambrose, and through the latter had considerable influence on subsequent legal theory in the West. 88 Frequent citations from eight of his works appear in the Summa contra Gentes and the Summa Theologiae.8 ·1 \Vhen we speak, therefore, of the " contribution " of Cicero to the doctrine of natural law, we refer to concepts and formulas expressed in his works, irrespective of the actual origins of their clements, and we believe that he must be credited with this, if with no other originality, that he is the first to provide a coherent system in which the elements of various current philosophical doctrines are seen in relation to the legal practice (even i£ somewhat idealized) of an era which was to provide a permanent source and criterion for all subsequent legal institutions. The representative texts cited in Appendix IV are in general clear and self-explanatory, and indicate something of the extent to which Cicero was preoccupied with the philosophy of law. The definition proposed in the very early "De Inventione" is cited by St. Thomas 86 as a classical and valid description of one of the three modes under which the natural law can be considered. It insists on the intrinsic or innate character of the law, i.e., its incorporation into the very nature of things, and •• Op. cit., pp. 4-5. 83 The De Officiis Ministrorum, v. g., written in 886, is modeled closely on the De Officiis of Cicero, both in arrangement and content. Cf. Chroust, art. cit., The New Scholasticism, XX (Jan. 1946), p. 80. •• The citations in these two works are from the De Arte Rhetorica, the Rhetorica, the Rhetorica seu De lnventione Rhetorica, the Topica, the Tusculanae Disputationes, the De Natura Deorum, the De Divinatione, the De Officiis and the Paradoxa ad M. Brutum. Only three references are made to these works in questhe Rhetorica and the De Officiis. tions 90-97 of the Prima Secundae, and are Cf. Opera Omnia, Ed. Leonina, vol. XVI, Indices in Tom. IV-XV, p. 207. •• Appendix IV. Text I. All future references to tests in this section are to Appendix IV unless otherwise stated. •• IV Sent. d. 88, q. I, a. I, ad 4. SOURCES OF ST. THOl\'!J\_s' CONCEPT OF NATURAL LAW 261 s.uggests a series of precepts. These precepts are, however, rather a selection of general examples than an ordered hierarchy, and they reflect distinctly Cicero's sensitivity to the received norms of the ethics of his day. 87 The" De Natura Deorum" 85 asserts the "naturalness" of the law of reason from the universality of the faculty, and suggests as the first principle of the law, the prescription of right and the avoidance of evii,89 the only true good being the " bonum honestum." 90 In later works the fundament of the law is seen as the " recta ratio," and its first principles are stated with greater precision and in formulas which will be familiar in later writers. The principle " bonum est faciendum, malum vitandum " is very closely approximated 91 but its formulation in those precise terms is impeded, as will be seen, by the influence of Chrysippus. The law is conceived as consonant with human nature, participated in all men, of divine origin, immutable, requiring no interpreter other than nature itelf correctly understood, and admits of no essential distinction of master and slave nor of any variation by positive law. 92 It is ordained to the good of society 93 and carries with it an inevitable sanction 94 which will follow even in defect of that reinforcement which positive law should in fact provide. 95 In the De Officiis 96 Cicero approximates rather closely to the Texts 1, 7, 15. '"Text 3. 89 It should be noted that the " rectum " and the "pravum" are considerably more limited in connotation than the " bonum " and " malum " of the first principles in the developed doctrine in the Summa. Cicero has made insufficient use here of- the rich Aristotelian dictum in the Ethics-" Bonum est quod omnia appetunt." •• Text 5. 91 Texts 8, 9, 10, U. 92 Texts 3, 8, 9, 10, 14. o 'lex naturae' e l'insieme delle norme pre" 3 Text 7, 13, 14. "'Jus naturale' costituite nella forza stessa delle cose, a regolare i rapporti degli uomini fra loro, independentemente dalla loro appartenenza all'una o all'altra aggregazione politica; e a regolare insieme i rapporti degli uomini colla divinita." Costa; op. cit., p. 17. •• Text 8. •• Text 14. •• Text 1!l. 87 262 PATRICK JVL FARRELL order of precepts which St. Thomas will ultimately stabilize in the Prima Secundae, L e., an order of innate rational, biological and sexual tendencies towards objects concordant with nature, in the acquisition of what is neessary, and the exclusion of what is inimical to life; and in procreation and the care of the procreated" Thus the complex of elements which will be reduced to order and incorporated into the system of the Prima Secundae are already present, sometimes with striking resemblance to the definitive form they will subsequently assume there. Two points of detail remain to be considered. First, what is it in Cicero which causes St. Thomas to prefer the definition of natural law attributed to Ulpian? 97 Secondly, can a definite and formulated distinction between "ius gentium" and " ius natumle " be attributed to Cicero? To understand the preference of St. Thomas for a definition which asserts a community of nature between man and animal at the biological and sensitive levels, it is necessary to recall substantial unity of human nature and the essential unity of its animating principle" For Aristotle and for SL Thomas there is generic identity between rational and irrational nature. For Cicero, this would also be true, 98 but the legal preoccupation of his time causes a confusion of the "lex" and the "ius," where "lex" is conceived in a peculiarly juridical context. this matter will see the Consequently, while later thought universal· character of " lex," and will understand " lex '' as founding a "ius" limited to human rational beings alone, for Cicero, since " ius " does not extend to animals, " lex " too, is likewise limited. There is no "lex" where there is no "ius," and a limitation is therefore imposed upon the generic univer"' The question of the authenticity of this definition is considered later in section (iii) of this article. 08 " (Some authorities note) una corrispondenza fra il concetto ulpianeo del ' ius naturale ' e le dottrine filosofiche di Cicerone, che ravvisano Ia commune partecipazione al ' sensus ' et all ' appetitus ' degli uomini e degli animali. Ma Cicerone, pur riconoscendo il rapporto esistenti tra Ia fisica costituzione dell'uomo e quella degli animali, nega che ne discenda una partecipazione di questi al ' ius.' " Costa, op. cit., p. ll8, note 4. SOURCES OF ST. THOMAS' CONCEPT 0.1<' NATURAL LAW 263 sality of natural law, which is seen as applying to the rational species alone. This position would appear to have been adopted in reaction against the contrary opinion which would acknowledge the universality of a law of nature, and argue to the consequent universality of right. Cicero, therefore, asserts the limitation of natural law because of the known limitation of legal right to human beings, in opposition to the view which would assert the generic universality of right because of the known universality of the natural law. The latter school, recognizing a common condition of nature among all animated things, and claiming for them the common participation in a right constituted by nature itself, 99 is represented in Pythagoras and Empedocles. Following the Stoic school, and in particular Chrysippus, in the latter's affirmation of the supremacy of man and the ordination of all other things to man, alone participating in right, Cicero acknowledges that the Pythagorean view is held by " great and learned men," but concludes nonetheless only rational beings participate right and law. 100 Only the later clarification of the generic universality of law, and the specific limitation of right, will permit the ultimate harmony of the truths latent in both positions. Because of this limitation in the Ciceronian definition of natural law, St. Thomas prefers the concept attributed to Ulpian, which has its roots in the Pythagorean theory rejected by Cicero, a theory which coexisted nonetheless alongside Stoic thought into the following century. Both conceptions stress the innate character of the law, but the latter permits a generic continuity which is much closer to St. Thomas' understanding of human nature and the position which that nature occupies in the order of created things. It seems probable, however, that the more immediate cause for preference for the definition attributed to Ulpian is found in •• Cf. Costa, op. cit .• p. 18. Text 4. 100 264 PATRICK M. FARRELL the problem arising in the IV Sentences. 101 The definition preferred preserves the integrity of the natural law in its primary precepts, and permits the proof that the divine permission of polygamy in certain historical circumstances in fact respects the law in its essentials, but for special reasons allows temporary variation in its secondary precepts/ 02 This harmony between divine positive law and that participation of eternal law which is the natural law would be more difficult to sustain if the definition of Cicero were alone adopted. As St. Thomas shows in the article cited from the Sentences, polygamy is contrary to natural law as conceived by Cicero, but not against that law as defined in the preferred formula. Nor is this a mere opportune device to evade a difficulty; it is rather the fruitful ·penetration of the lesser known in the light of facts certainly known. The known factors are the revelation of the historical divine sanction of temporary polygamy, and the absolute integrity of the Eternal law, which is ultimately Divine Wisdom itself, of which natural law is a participation. Consequently, the selection of one definition is not designed to evade a difficulty, but the difficulty in a sense causes, and is resolved by, the selection of a more adequate definition. The question of the origin of the triple division of law, "ius civile," " ius gentium," and " ius naturale-, is of sufficient indirect relevance in the question of the sources of the precepts of natural law to justify some consideration. Two principal positions have been adopted on the point, one asserting that the distinction is known to Cicero,103 the other that it is a postclassical Byzantine accretion of the Justinian era, about 600 years later. 104 The adherents of the first position claim that an unprejudiced IV Sent., d. 88, q. 1, a. 1 ad 4. IV Sent., d. 88, q. 1, a. corp. and I-ll, q. 94, a. 5 corp. 103 Cf. Costa, op. cit., p. !i!5 f. and Lottin, op. cit., p. 8 who cites Cathrein, Recht, Naturrecht und positives Recht (Freiburg i. B., 1909), pp. 192-198 as showing that 101 102 the division is already found in Cicero. 10 ' Cf. Jolowicz, op. cit., p. 102 f. and especially Perozzi, op. cit., p. 98 f. Lottin, op. cit., p. 7-8, appears to trace the division through mpian to Gains. SOURCES OF ST. THOJ.\iiAS' CONCEPT OF NATURAL LAW 2(;5 reading of his works will show that in many places the coucept of the " ius gentium " is fixed by Cicero somewhere between a "ius civile" and a "ius naturale." Thus in the De Officiis" ius gentium " can have no other sense than that complex of norms common to the positive laws of a number of peoples (" di pi£'t popoli ") 105 and is thus coincident with the " ius civile " in this common part, although not exhausted in it. 106 In the Re Publica, however, the "ius gentium" is conceived as forming an external complementary addition to the " ius civile " the whole being modeled on the ethical substratum of the " ius naturale " and on those precepts ascribed to the latter by the philosophers. Finally, in the De Oratore the " ius gentium " appears as the body of norms which is common to the positive statutes of a number of peoples, being thus opposed to the "ius civile," comprising for its part only those laws proper to one given" civitas"; and to the" ius naturale" founded on the " naturalis ratio " and common to all men. 101 The difficulty in this opinion lies in Cicero's definite limitation of the participation of "ius " to human beings, and the apparent identification of " ius " with " lex." While he would admit common biological and sexual urges implanted by nature in all living beings/ 08 his peculiarly juridical concept of "lex" precludes its extension beyond rational beings. This would seem to be confirmed by the type of precept listed after the classical definition in the De Inventione. 109 Consequently, it Cf. Costa, op. cit., p. 25, note 6, and Text 14. Cicero ... identifies the law of Nature with the 'ius gentium' in the sense of law common to all peoples, and draws the inference that what is part of the ' ius gentium' should also be part of the 'ius ci·vile,' i.e. of the law of each particular state, although what is 'ius civile ' is not necessarily 'ius gent-ium,' for, as in Aristotle's view, there are matters on which nature is indifferent and each community can lay down rules for itself." Jolowicz, op. cit., p. 104. (Cf. IV Sent., d. 33, q. 1, a. 2 ad 1.) 107 This argument and a mere exegetical proof based principally on Text 14 are given fully by Costa, op. cit., p. 18 f. The principal texts involved are. from the De Officiis, Lib. III, Cap. 5, 23 (Vol. 4, p. 96) and from the De Haruspicum Responso Oratio, Cap. 14, 32 (Vol. II, 2, p. 527-Teubner). 108 Text 12. 100 Text I. 1 "' 106 " 266 PATRICK M. FARRELL appears that Cicero's statement in the De Natura Deorum 110 that law and right are exclusive to rational beings, is to be taken as it stands. The second position, relegating the triple division to the post-classical period, appears to be the more common and the more convincing. 111 In this view, Cicero would identify the " ius gentium " and the " ius naturale," an opinion which appears to be substantiated by his explicit opposition to Pythagoras and Empedocles in the matter. While it is difficult to reach any definitive conclusion, it seems more likely that while the elements of an adequate distinction between the three aspects of law are present in Cicero, his writings do not in fact adequately formulate that distinction. Nor can it reasonably be objected that all this argumentation is in fact concerned with the appearance of the triple distinction as a juridical phenomenon, whereas what should be sought is the presence in Cicero of such a distinction on philosophical grounds, and that while the distinction does not appear in a legal code until later, its philosophical origins should be buted to Cicero. In the first place, the Romans did not fully succeed in distinguishing law from the more philosophical science of ethics; 112 again, the source of the definition preferred in St. Thomas are themselves of juridical origin; and finally, the elements of the distinction on philosophical grounds are present much earlier than Cicero, in Pythagorean theory and especially in Democritus of Abdera. 113 We may conclude, therefore, that the notable place occupied by Cicero in the development of the concept of natural law and the formulation of its precepts is deserved, not so much for any originality, but because of his lucid expression of the thought current at a time critical in the history of philosophy and particularly in the history of law. St. Thomas cites his works frequently and respects his definition of the law, but, for the Text 4. Cf. Perozzi, op. cit., p. 93 f. 112 Cf. Jolowicz, op. cit., p. 104. 113 Cf. Appendix ][V, Text 6, and Appendix H, Texts 6 (b) (f) and especially (g). 110 111 SOURCES OF' ST. THOMAS' CONCEPT OF NATURAL LAW 267 reasons ·given, finds that it is not wholly adequate. In the distinction of a natural law from the "ius gentium," it seems doubtful that Cicero made any real progress; and if the natural law be taken in the sense which St. Thomas ultimately adopts it, the philosophical sources of the distinction are not to be found in Cicero, but much earlier, and their final legal formulation much later. (ii) Gaius. The elements of the doctrine of natural law as they will be integrated into the Summa Theologiae are implicit, and in large part explicit, (if still confused and disorganized) during the lifetime of Cicero, who is consequently placed at the head of the period of convergence. Two further early Jurists are, however, principal sources for the formulas and distinctions which St. Thomas will adopt and stabilize in the Prima Secundae; 114 and in the Secunda Secundae. 115 These are Gaius, the compiler of the Institutes of the early classical period of law-and Ulpian, belonging to the close of the late classical period. In the context of natural law and its precepts Gaius is important on three accounts: :first, because of the favor in which he was held by the Justinian compilers; secondly, because of his possible distinction of " ius naturale " from " ius gentium "; and finally, because he is cited by St. Thomas in the Secunda Secundae 116 in the distinction and clarification of the " ius gentium," being thus of correlative importance in relation to the natural law against which the "ius gentium" is distinguished there. The favor accorded Gaius by the Justinian commission appears to rest principally on the clarity of exposition and the synthetic character of his Institutes which had been used for centuries as a textbook for :first-year students. Thus they form the basis of the Institutes of Justinian which had a some'" Cf. I-II q. 90, a. 1, obj, S; q. 96, a. 5, obj. S; 97, a. corp. where llipian is cited. 116 Cf. II-II, q. 57, a. S, obj. 1 and corp. where both llipian and Gaius are cited. 118 Loc. cit. 268 PATRICK M. FARRELL what similar purpose. 117 Citations are also contained in the more difficult Digest of Justinian which is presumably St. Thomas' source for Gaius. 118 What is of particular interest is the fact that the Institutes are the only fairly complete work of a classical jurist extant in its original form. 119 The comparison is thus possible of an original text with the form taken by that text in the Justinian compilations, a principal source, and usually the only source for the classical jurists. The extent of the interpolations and variations can thus be measured in part. This, in turn, is of importance in the questions of the true original derivation of the triple division of law, of the distinction between " ius gentium " and " ius naturale," and of the definition of the latter attributed to Ulpian. 120 The question as to whether the triple division is to be attributed to Gaius has been disputed. 121 The consensus of Cf. Jolowicz, op. cit., p. 898. Cf. Lottin, op. cit., p. 63, Note 119 The manuscript was discovered in the Cathedral library at Verona in 1816 and recognized by Savigny as original and authentic. It is in the form of a palimpsest under some works of St. Jerome apparently belonging to the 5th century. "The importance of the discovery for the history of Roman law can hardly be overestimated, for it· is the only one giving a work of a classical jurist in its original form which we possess. Only about a fifth of it is missing .... " Jolowicz, op. cit., p. 898. For more recent discoveries and literature in this regard, cf. Jolowicz, op. cit., p. xvi, and J. de Ghellinck, S. J., Le Mouvement Theologique du. XII• Siecle, edit. (Desclee de Brouwer: Paris, 1948), p. 54, anrl especially p. 55, note 1. 120 It is of interest that in all the citations made by St. Thomas from the jurists of the 1st to the 8rd centuries significant in this regard, and listed by Lottin (op. cit., p. 68, n. !'rk, 1950), p. 75. •• Cf. e. g., Concluding Unscientific Postscript, trans. David F. Swenson and Walter Lowrie (Princeton University Press, 1944), p. !i!74, p. !i!91. •• Cf. ibid., p. !i!64, !i!73, SO!i!. •• "Arguit quorumdam errorem, qui non operantur opera virtutis, sed confugiendo ad ratiocinandum de virtutibus aestimant se fieri bonos philosophando." II Ethic., lect. 4, n. 288. •• "Aliud est adinventio rationis, quando scilicet aliquis vult metiri ea quae sunt fidei secundum principia rerum, et non secundum sapientiam divinam. Ex hoc enim multi decipiuntur." S. Thomas In Epist. ad Colossenses, cap. 2, lect. 2. 306 RALPH MCINERNY If one were to subject matters of faith to the measure of human understanding, accepting oniy what is intelligible to us, faith would be destroyed. Kierkegaard's reaction to the rationalization of faith is to make faith absurd. If what he meant were that we hold truths by divine faith which we do not understand, there would be no difficulty. The assent of faith is not the result of the recognition that what is proposed is necessarily true, in the sense that it is so intelligible to us that we see the necessary connection of the predicate and the subject. 39 It is a question whether Kierkegaard can be interpreted as meaning only this. However, our primary interest her is the contradiction he professes to see involved in the temptation of Abraham. That contradiction is said to consist in the opposition of the ethical and religious judgment of the killing of Isaac: for the former it is murder, for the latter it is a sacrific.e. This contradiction involves the absurdity that Abraham as the particular is higher than the universal. In the light of the remarks of St. Thomas, it would seem that this "contradiction" is based on a misunderstanding of the relationship which obtains between the precepts of the first and second tables. (This is to interpret Kierkegaard's ethical as embracing the laws of the second table, and his religious as referring to the first table.) Since the second is for the first, it is not a contradiction of a law of the second table which prevents Abraham from being a murderer. It is not, again, that this murder is not sinful, but that this killing is not a murder. Kierkegaard's use of the qualification " teleological " in speaking of the suspension of the ethical seems to be a recognition that no contradiction is involved. Abraham is not held simultaneously to kill Isaac and not to kill him. To take the prohibition of killing as something which applies in this case would provide the contradiction Kierkegaard requires. We have already seen that this is not so. It is extremely interesting that Kierkegaard calls the suspension of the ethical a teleological one. Within the ethical, one telos can be more universal and thus contain another. It •• Cf. De Veritate, q. 14, a. 1. THE TELEOLOGICAL SUSPENSION OF THE ETHICAL 307 because Abraham's telos is outside the ethical that he is distinguished from the tragic hero. Abraham's action is said to place him in an absolute relation to the absolute, unmediated by any universal. One can easily see the ambiguity involved in this approach. From the point of view of the precepts, Abraham's telos is the most universal, the common good who is God. Every act must be directed primarily to the common good in order to be good. And yet everyone is not required to do what Abraham did. How can the most universal telos be private? This indicates the basic fallacy of Kierkegaard's argument, which arises from an uncustomary (on his part) confusion of. theory and action. In the case of the " ethical " universal, Kierkegaard reads the prudential almost completely out of the picture. The contingent circumstances which enter into the formality of the particular act are seemingly disregarded, and the emphasis is placed on the universal principles to which appeal might be made in explaining an action to another. But that the action itself consists in an application of the universal to particular circumstances is hardly unimportant. The viewing of the particular circumstances in the light of the common principle is the judgment of prudence, and it is the very singularity and particularity of the circumstances which renders the action incommunicable. When an action is explained, it is only the major premise of the prudential syllogism which is truly communicable, for it alone is intra limite.