Abstract
The great thirteenth-century philosopher and theologian Thomas Aquinas (ca. 1226–1274) played a pivotal role in the history and development of Western jurisprudence. During his productive but short life, Aquinas wrote extensively on moral matters, and as a corollary, on topics in political and legal philosophy. His exposition in Summa Theologiae on matters of law is often referred to as the classical canon of natural law theory.
All translations are by the author unless otherwise indicated.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
The exact year of Aquinas’ birth has been contested for centuries. Tugwell (1988, 291–2) seems right in asserting that there is now sufficient evidence to assign 1226 as the correct year. Some documents state that Aquinas was forty-eight when he died in 1274. Torrell 1996 argues that 1225 is the appropriate year of Aquinas’ birth.
- 2.
The Summa Theologiae is divided into three major parts, with the second part divided further into two sections. Hence, there is the Prima Pars (The First Part), the Prima Secundae (the First Section of the Second Part), the Secunda Secundae (the Second Section of the Second Part), and the Tertia Pars (the Third Part). There is also the Supplementum, which contains the final sections of this work, compiled from assorted earlier writings after Aquinas’ death. The Prima Pars deals with God and the set of creatures that come from God. The Prima Secundae deals with human actions, moral theory, and law. The Secunda Secundae concerns the virtues in some detail. The Tertia Pars treats Jesus as the sacramental vehicle for human beings to return to God. The Tertia Pars is principally theology, then, while the other two parts are essentially philosophical approaches to questions about the human condition.
- 3.
Several historical references used in this analysis of Aquinas on natural law are dependent upon this thoughtful article by McNabb.
- 4.
There is serious scholarly debate over the structure and content of this opusculum of Aquinas. Early manuscript collections conflate two texts; the first was Aquinas’ De Regno: Ad Regem Cypri and the other De Regimine Principum, often attributed to Aquinas’ confrere, Tolomeo of Lucca. See Aquinas On Kingship, ed. Eschmann 1982 for further discussion of this debate.
- 5.
Epistola ad Ducissam Brabantiae. Parts of this letter are translated in Bourke 1960, 248–51. Torrell 1996, 335, explains the importance and structure of this document, written at Paris in 1271. The letter responds to queries concerning the financial administration of the subjects of a prince. In this text, Aquinas justifies collecting taxes on the principle of the public good. Torrell notes that recent research suggests that the letter was written for Margaret of Constantinople, the countess of Flanders, and daughter of Baldwin, the Count of Flanders and the first Latin emperor of Constantinople.
- 6.
This early modern or “second” scholasticism is discussed in Chapter 14 of this volume.
- 7.
Porter’s analysis here of the formative stages of natural law theory provides a useful guide to this topic.
- 8.
Nelson (1967) refers to synthetic necessary properties as the means to distinguish what he takes to be “nomic universal propositions” from “accidental universal propositions.” A nomic universal proposition is a general claim that will stand up under a counterfactual conditional: for example, “All water is H20.” An accidental universal proposition, on the other hand, is the random assortment of things under a class term: for example, “All the chairs in this room are blue.” A counter-example is used in the following way. It is true to say about a liquid that “If this were water, then it would be H20.” This would indicate that there is a natural kind of water, which is interpreted as a set of essential properties that define the essence. On the other hand, it is not true to say of a blue chair, “If there were a chair in this room, then it must be blue.” The contrary to fact conditional does not hold of accidental universal claims; however, it does hold in the area of essential properties determining a natural kind. See also Lisska forthcoming.
- 9.
In this part of his account of natural law, Fuller refers explicitly to Aquinas’ Summa Theologiae.
- 10.
C. Ryan’s analysis is one of the best overall succinct accounts of natural law theory, explicating many concepts in the writings of Aquinas.
- 11.
Nussbaum (1993, 263–4) offers eight properties that she claims “we can nonetheless identify [as] certain features of our common humanity, closely related to Aristotle’s [and Aquinas’] original list”; they are mortality, the body, pleasure and pain, cognitive capability, practical reason, early infant development, affiliation or a sense of fellowship with other human beings, and humor.
- 12.
Cf. Ayers 1981, 248, who argues that Kripke’s view “is not at all unlike Aristotelian doctrine.” For Aquinas, like Aristotle, an account of a human essence is more than a modal necessity. Aquinas intends a de re (about things) necessity and not a de dicto (about language) necessity, which entails that this is a synthetic necessary claim about the nature of reality.
- 13.
For example, Copleston (1957, 151–4) provides an illuminating discussion of these issues dealing with the problem of universals in medieval philosophy.
- 14.
In contemporary discussions of Aristotle’s moral theory, Anscombe 1958 and Foot 1978 began writing about Aristotelian eudaimonia, which they called “flourishing.” Finnis 1998, 115, uses “integral human fulfillment” to elucidate a more contemporary reading of eudaimonia.
- 15.
Hochberg 2001 claims that the modern analytic philosopher Gustav Bergmann, near the end of his academic career, considered claims similar to the hylomorphic concepts found in Aristotle and Aquinas.
- 16.
Often “phantasm” is rendered as “image.” However, a consistent analysis of the concept of phantasm is more complicated. Each of the three internal sense faculties in Aquinas’ philosophy of mind has its own unique phantasm. For further discussion, see Lisska forthcoming.
- 17.
In commenting on Finnis’ work, Covell (1992, 222–3) writes: “In Natural Law and Natural Rights, [Finnis] claimed that the principles of natural law admitted of an entirely secular derivation, which involved no metaphysical assumptions regarding the existence, nature or will of God.”
- 18.
While Finnis would agree on the role of God in Aquinas’ account of natural law as developed in this chapter, nonetheless he would not accept the totality of the account of human essence and its relation to natural law theory articulated here. Finnis rejects basing natural law theory on what he calls “philosophical anthropology.” Resolving this debate, however, is beyond the limits of this inquiry. For a complete analysis of these meta-philosophical differences in reading Aquinas on natural law, see Lisska 1996, chaps. 6–7; an earlier version of this argument is found in Lisska 1991. McInerny 1998 refers to Finnis’ position as “doing natural law without nature.”
- 19.
This is a distinction that Aristotle did not make. For a discussion of the difference between Aquinas and Aristotle on the essence/existence distinction, see Owens 1993. See also Wippel 2000.
- 20.
Commenting on these issues, Finnis (1998, 228) writes: “Aquinas’s position remains firmly outlined […]: Those vices of disposition and conduct which have no significant relationship, direct or indirect, to justice and peace are not the concern of state government or law. The position is not readily distinguishable from the ‘grand simple principle’ […] of John Stuart Mill’s On Liberty.”
- 21.
A more thorough discussion of Ockham’s position on moral theory is found in Chapter 13.
- 22.
Some recent scholarship on the writings of Aquinas proposes that Aquinas adopted more of a theological principle than a philosophical one. Jordan 1993 affirms this interpretation. Wippel 2000, to the contrary, argues that one can articulate independently and consistently a philosophical position, especially in metaphysics, from Aquinas’ texts. Tugwell (1988, 257–8) provides probably the best succinct analysis of this issue: “Gauthier argues that Thomas’ concern was always theological, even in his ‘philosophical’ writings, but his critics have pointed plausibly enough to signs that Thomas did have a serious philosophical purpose and that he was interested in clarifying Aristotelian philosophy in its own right. Probably there is no real contradiction between the two positions. As we have seen, Thomas’ own theology drove him to recognize the importance of philosophy as a distinct discipline, if only because philosophical errors that might threaten faith need to be tackled philosophically. But his philosophical interests were not just apologetic. He was surely sincere in believing that the theological attempt to understand faith is essentially at one with the universal human attempt to understand reality. In his last years, as we have noted, the philosophers seem to have been more enthusiastic about Thomas than many of his fellow theologians were; it is quite likely that he in return found the philosophers more congenial than some of the theologians. He believed that the best way to discover the truth is to have a good argument, and in this he was being true to the tradition of Albert and indeed St. Dominic.”
- 23.
The historical development of the modern concept of rights is controversial, but there seems to be a scholarly consensus that the concept of a subjective natural right was developed by canon lawyers, philosophers, and theologians during the later middle ages. See Chapter 10, Section 10.5, of this volume on medieval canon law and rights; Chapter 13, Section 13.4, on Ockham and natural rights; and Chapter 14 passim for early modern scholasticism and rights. See also Chapter 4, Section 4.8, and Chapter 6, Section 6.6, respectively, for controversies over possible ancient Greek and Roman antecedents of rights concepts.
- 24.
While Aquinas does not consider the concept of natural right directly, nonetheless, contemporary natural law philosophers like Veatch and Finnis, among others, argue that a philosophical derivation of rights from Aquinas’ moral theory of natural law is possible: see Veatch 1985; Finnis 1982 and 1998. According to Veatch, one determines a concept of “duty” based on the set of dispositions. A natural right becomes the “protection” of the duties that are derived from the natural kind of the human person. This proposed derivation, so Veatch suggests, limits the present debate on the nature and scope of rights. One source of contention in Veatch’s analysis, however, is the discussion of positive and negative rights. Veatch argues that a theory of natural law can provide an analysis only of what he calls negative rights. A negative right is a protection (e.g., rights to property, life, and liberty). These are, Veatch writes, the “rights simply not to be interfered with” (Veatch 1990, 315). Positive rights, on the other hand, are entitlements (e.g., rights to education, health care, retirement benefits, and so forth). One might respond that Aquinas’ account based on the fundamental dispositions of the human person could justify a limited set of positive human rights. Space constraints limit the explication of this argument here, but see Lisska 1996, chap. 9.
- 25.
See Chapter 14 of this volume for discussion of further developments of just war theory by Vitoria and Suárez.
- 26.
One should note that in their analysis of Aquinas’ account of truth, Milbank and Pickstock 1999 argue for a noncognitivist account of truth in Aquinas. In fact, Pickstock writes: “How should one respond to the death of realism, the death of the idea that thoughts in our minds can represent to us the way things actually are in the world? For such a death seems to be widely proclaimed by contemporary philosophers” (Pickstock 2000, 308). For a critical response to this postmodern interpretation of Aquinas’ concept of truth, see Kenny 2001.
- 27.
The author is grateful to Marianne Lisska for excellent proofreading assistance.
Author information
Authors and Affiliations
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2015 Springer Science+Business Media Dordrecht
About this chapter
Cite this chapter
Lisska, A.J. (2015). The Philosophy of Law of Thomas Aquinas. In: Miller, F.D., Biondi, CA. (eds) A Treatise of Legal Philosophy and General Jurisprudence. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-9885-3_12
Download citation
DOI: https://doi.org/10.1007/978-94-017-9885-3_12
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-017-9884-6
Online ISBN: 978-94-017-9885-3
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)