Aquinas / Lecture 6
.docCORE11-120: Lecture Week Six
Aquinas on Natural and Positive Law
1 The Greek thinkers we have been examining – Socrates, Plato, Aristotle and Epicurus – all started thinking about ethics by examining human happiness. Ethics, they thought, is the business of working out how best to achieve a fitting and proper happiness. But this is only one way to think of ethics. In today’s lecture we are going to look at a very different approach. We are going to examine the ethics of the greatest and most influential philosopher of the medieval period: Saint Thomas Aquinas (1225-1274).
2 The 1,300 years that separates Lucretius (the Roman expositor of Epicurean philosophy) from Aquinas, had seen the rise of Christianity. This makes a profound difference in the field of ethics. Aquinas was greatly influenced by Aristotle (and not at all influenced by Epicurus!). However, his ethics differs crucially from Aristotle’s. Aquinas thinks of ethics, not only in terms of a good life and the virtues needed to secure it, but also in terms of law: something he calls “Natural Law”.
3 What is Natural Law? Since Aquinas is a Christian, he holds that God is the benevolent creator of the world. God rules the world, and does so according to principles. God has a rational plan for the world: and this plan Aquinas calls “Eternal Law”. Non-rational creatures – animals, plants, inanimate objects – “obey” the Eternal Law blindly. They are determined by it. If a stone thrown in the air describes a parabola and falls to earth, it does so because of God’s design of the world. That is, it does so because of the Eternal Law of God. It doesn’t “obey” these laws, strictly speaking, but its path through space is determined by them.
4 We are rational creatures, which means, according to Aquinas, that we have free will and can make up our own minds about how we will act. So how do we experience God’s Eternal Law? Because we have free will, our behaviour is not determined by God’s Eternal Law in the way that a stone’s path through space is. Instead, we experience God’s Eternal Law as normative: as a demand telling us how we ought to behave, not how we inevitably will behave. Normative laws are laws that set out how people ought to behave. Descriptive laws are laws describing how things do in fact behave. Aquinas’s key philosophical claim is that God’s Eternal Law is both descriptive (for non-rational nature) and normative (for rational nature: us and any other rational creatures, e.g. angels). When he speaks of this law in its normative aspect, Aquinas refers to “Natural Law”. Natural Law, therefore, consists in principles that we should respect because they are “natural”: they are part of God’s providential organization of the world.
5 But how can we figure out the content of Natural Law? God made us with basic inclinations which are reliable indications of the content of Natural Law. The basic principle is “seek good and avoid evil”. The complete obviousness and blandness of this principle supports Aquinas’s claim that it is fundamental. What we need to do next is work out what is evil and what is good. Then we need to work out how we should seek good and how we should avoid evil. This is where Aquinas’s Natural Law theory gets a little complicated. First, let us turn our attention to the good things we are supposed to seek. Aquinas gives this list: life, procreation, knowledge, society, and reasonable conduct. He thinks that we know immediately, by inclination, that these count as good and are things to be sought out.
6 So far, so good. But in what ways are we supposed pursue these goods? Should we do just anything to stay alive, or save the life of another, to obtain knowledge, to procreate, or to become friends with another? Obviously not. By examining our actions, their goals and their circumstances we can distinguish between proper and improper or defective ways of trying to obtain goods. For example, to seek friendship with someone because they are rich and influential is to fail to show proper regard for the good of friendship: it is to treat friendship as a tool, something useful for your other purposes. Again, consider the possibility of saving a life by killing another person, an innocent bystander. This fails to show proper regard for the good of life: you intend to kill, so your action is directed against the value of life. This is a defective way of responding to the fundamental value of life.
7 Aquinas does not give us a neat theory about all the conditions under which we act wrongly. We can’t set out a list of all the rules or specify the Natural Law in complete detail. Nonetheless, we can observe many clear, general cases of the Natural Law and its demands upon us. It is always wrong to kill the innocent, to lie, to commit adultery, sodomy or blasphemy. These acts are universally wrong, according to Aquinas, because they invariably violate the dictates of Natural Law. Contemporary applications of Natural Law theory are behind many condemnations of abortion, euthanasia, genetic engineering, embryonic stem-cell research, homosexuality, transexuality, pornography, masturbation. According to many Natural Law theorists, these are all defective ways of dealing with fundamental human goods – life (in the case of abortion, euthanasia, genetic engineering, embryonic stem-cell research) and procreation (in the case of homosexuality, transexuality, pornography, masturbation). Natural Law theory is fundamental to Catholic ethics.
8 Natural Law contrasts with what Aquinas calls “Positive Law”. Positive law is the law enacted by societies. Some positive laws reflect natural law. For example, it is against natural law and against positive law in most societies to murder somebody. Some positive laws are conventional and not part of natural law. For example, it is against the positive laws of Australia to drive on the right hand side of the road. But there is no corresponding natural law against this practice. Finally, some natural laws are not part of properly constituted positive laws. This is to say that, positive law should not be in the business of making laws for all moral issues. For example, gluttony is against natural law, but it would be a mistake to make gluttony against the law (i.e. against society’s positive law). Aquinas recognises two main constraints on what positive laws: the possibility of obedience and the possibility of enforcement. Positive laws should be clear, publicly known, and capable of general obedience. For example, a legal prohibition against lying is not something we could reasonably expect people to keep. By contrast, a prohibition against perjury (i.e. lying in legal courts) is something we reasonably expect people to obey. Positive laws should also be enforceable. For example, gluttony is against natural law, but it would be wrong and foolish to pass a positive law against gluttony, because this law would be unenforceable.
9 Here is a problem. According to Natural Law theory it is absolutely wrong to kill another human being, even if killing the person would save other lives. The life of one cannot morally be sacrificed for the lives of others. However, what about self-defense? Say I am attacked by someone, and the only way for me to defend myself is to kill the attacker. Does Aquinas say that it is wrong for me to defend myself? No. He has a way out, called the “Doctrine of Double Effect”. He writes:
“Nothing hinders one act from having two effects, only one of which is intended, while the other is beside the intention. … Accordingly, the act of self-defense may have two effects: one, the saving of one’s life; the other, the slaying of the aggressor.” … “Therefore, this act, since one’s intention is to save one’s own life, is not unlawful, seeing that it is natural to everything to keep itself in being as far as possible. … And yet, though proceeding from a good intention, an act may be rendered unlawful if it is out of proportion to the end. Wherefore, if a man in self-defense uses more than necessary violence, it will be unlawful, whereas, if he repels force with moderation, his defense will be lawful.” Summa Theoligica (II-II, Qu. 64, Art.7.)
10 This basic idea, that it is permissible to do something with a morally bad effect as long as this effect is not your intention, has been refined and developed over the centuries. Here is a more contemporary version of the doctrine, from Joseph Mangan (“An Historical Analysis of the Principle of Double Effect”. Theological Studies 10, 1949, pp. 41-61.):
A person may licitly perform an action that he foresees will produce a good effect and a bad effect provided that four conditions are verified at one and the same time:
that the action in itself from its very object be good or at least indifferent;
that the good effect and not the evil effect be intended;
that the good effect be not produced by means of the evil effect;
that there be a proportionately grave reason for permitting the evil effect” (1949, p. 43).
These modern versions make self-defense tricky. I can’t save myself by shooting my assailant, because shooting dead another is a directly bad effect, violating condition 1. But I could, perhaps, strike my assailant hard enough to knock him out, foreseeing that the strike could well also kill him.
Here are two other examples of the doctrine of double effect in action. (Both are taken from Alison McIntyre “The Doctrine of Double Effect” Stanford Encyclopedia of Philosophy, accessible here.)
The terror bomber aims to bring about civilian deaths in order to weaken the resolve of the enemy: when his bombs kill civilians this is a consequence that he intends. The strategic bomber aims at military targets while foreseeing that bombing such targets will cause civilian deaths. When his bombs kill civilians this is a foreseen but unintended consequence of his actions. Even if it is equally certain that the two bombers will cause the same number of civilian deaths, terror bombing is impermissible while strategic bombing is permissible.
A doctor who intends to hasten the death of a terminally ill patient by injecting a large dose of morphine would act impermissibly because he intends to bring about the patient's death. However, a doctor who intended to relieve the patient's pain with that same dose and merely foresaw the hastening of the patient's death would act permissibly.
When, if ever, is a decision to go to war morally justified? How should armies conduct themselves in war? How should the victors of a war behave towards the losers? These are main questions studied in the branch of moral philosophy called Just War Theory. Just War Theory divides into three subjects, which have Latin titles: jus ad bellum (when is it right to go to war?); jus in bello (how should fighting in war be conducted?); jus post bellum (what is the right way to behave at the conclusion of a war?). Aquinas made an important contribution to the first two of these. We know from his account of Natural Law, that the intentional killing of innocents is morally impermissible, and this principle dominates accounts of jus in bello. But what of the decision to go to war in the first place? Is this ever justified? What conditions must be met before a decision to go to war is justified? Here is what Aquinas says on the matter.
“In order for a war to be just, three things are necessary. First, the authority of the sovereign by whose command the war is to be waged. Secondly, a just cause is required, namely that those who are attacked, should be attacked because they deserve it on account of some fault. Thirdly, it is necessary that the belligerents should have a rightful intention, so that they intend the advancement of good, or the avoidance of evil.” Summa Theoligica (II-II, Qu. 40, Art.1.)
This is a fairly simple theory; perhaps it is too simple to deal with the complexities of modern conflict. Contemporary just war theorists have expanded Aquinas’ account of just ad bellum, considerably. Here is one representative account of the conditions that must be satisfied by any just decision to go to war.
A just war must be declared by a legitimate authority.
A just war must have a just cause (e.g. defence of one’s country; defence of another’s country; to rescue a threatened people.)
A just war must be declared and prosecuted with the right intention.
There must be a strong probability of success.
The good obtained must be proportional to the harm done.
War must be a last resort (i.e. reasonable peaceful means of address must be exhausted).