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THOMAS AQUINAS’ NATURAL LAW THEORY: A STANDARD FOR HUMAN POSITIVE LAW.

CHAPTER ONE

GENERAL INTRODUCTION

The concept of natural law occupies a central position in the moral theory of Thomas Aquinas. Thomas Aquinas’ treatise on natural law is contained in the first part of the second part of his Summa Theologica where he treated Law. To be precise, he dedicated question ninety-four of the said book to it (the natural law). The Ethics of Thomas Aquinas closely followed the eudamonological ethics of Aristotle; Aquinas built upon Aristotle’s theory. Just like Aristotle, Thomas sees morality as a quest for happiness. He argued that happiness is closely connected with a person’s end or purpose. He further maintained that human nature has both its source and ultimate end in God. For Thomas, God who created man provides him with the means of arriving at his end. This means, through which man arrives at his end, is what Thomas calls Natural Law. For Thomas Aquinas, natural law is that law which the ultimate efficient cause (GOD) infused in man commanding him to do good and avoid evil in order that he (man) may attain his end. Natural law appeals to reason that naturally has the capacity of discovering it. Natural law, Thomas maintains, is based on the rationality of human nature. Thomas holds that the natural law has such properties as: knowability, universality, immutability, indelibility and indispensability.

However, in spite of these properties of the natural law, it still lacks coercion, i.e., the physical force of law. As a result it is not always obeyed by all. To this effect, natural law needs to be supplemented by human positive law. This is due to the differences inherent in human nature. Consequently, human positive law is needed to ensure an ordered society. Human law lucidly defines and coercively guides social interactions among men. Hence, it greatly contributes to the achievement of common good. It is an indubitable fact that every law should seek to protect the common good of the people. It is also a well-established truth that morality has to do with the good of the people. Consequently, law and morality are always seen as two sides of a coin. Unfortunately, certain human laws are not based on moral standards. That is to say that there are some human laws that do not consider the common good. For instance, certain governments enact tyrannical laws. Some others enact laws that are immoral. In this kind of situation, the purpose of law, which is to ensure common good and happiness, is not realized.

It is in the light of the above that this excursus will examine the nature and properties of Aquinas Natural Law as well as the nature of human positive law. This will lead us into seeing the natural law as the standard with which human positive law is measured. This is because, as has been mentioned earlier that there are some human positive laws that deviate from the principles of the natural law at the expense of morality. In presenting the natural law as the standard for human positive law, I shall discuss such issues as just and unjust human positive laws, the justification of civil disobedience, distinction between morality and legality of law. This is to know to what extent the natural law in Aquinas is the standard of all human positive laws.

1.1 A Brief Profile of Thomas Aquinas

Thomas Aquinas was born in the castle of Roccasecca near Naples at the end of 1224 or the beginning of 1225, his father being the count of Aquino. When he was five, he was placed by his parents in the Benedictine Abbey of Monte Cassino as an oblate. He stayed in the monastery from 1230 to 1239 when the Emperor Frederick II expelled the monks. Thomas returned to his family and stayed for some months and later went to the University of Naples in the autumn of the same year. Later Thomas was attracted to the life of Dominican friars that made him enter the Order in the course of 1244. His joining the Dominican friar was not acceptable to his family, instead they wished him to enter the abbey of Monte Cassino, as a step to ecclesiastical preferment, and it may be as a result of this family opposition that the Dominican General decided to take Thomas with him to Bologna, where he himself was going for a General Chapter from where he would send him to the University of Paris. Thomas was however kidnapped by his brothers and was put in prison at Aquino for about a year. Due to his determination to remain steadfast to his Order he later made his way to Paris in the autumn of 1245.

Thomas was probably at Paris from 1245 until the summer of 1248, when he accompanied St Albert the Great to Cologne, where the later was to find a house of studies (Studium generale) for the Dominican Order, remaining there until 1252. In 1252 Thomas returned from Cologne to Paris and went on with his studies, lecturing in Scriptures as Baccalaureus Biblicus (1252-4) and in Sentences of Peter Lombard as Baccalaurus Sententiarius (1254-6), at the conclusion of which he received his Licentiate, the license or permission to teach in the faculty of theology.

In 1268 Thomas returned to Paris and taught there until 1272, engaging in controversy with the Averroists, and also those who renewed the attack on the religious Orders. In 1272 he was sent to Naples to erect a Dominican studium generale, and he continued his professional activity there until 1274, when Pope Gregory X invited him to Lyons to participate in the council. Unfortunately Thomas could not complete the journey he started as he died on the way on March 7th, 1274 at the Cistercian monastery of Fossanuova, between Naples and Rome. He was forty years old when he died. His life was devoted to study and teaching.

1.2- Purpose of the Study:

Many philosophers of different epochs have philosophized on law and its applicability to the human society. Correspondingly, some of them dealt with the law of nature or the law of reason, which Thomas Aquinas referred to as Natural law. Some of such philosophers include Plato, Aristotle, the Stoics, and St Augustine etc. However the purpose of this study is to expose and analyze St. Thomas Aquinas’ Natural Law theory. This will take us into viewing natural law as the basis as well as the standard with which human positive law is measured.

1.3- Statement of the Problem:

Law is no doubt viewed in relation with morality. Again every society has one system of law or the other. Yet our society today is witnessing some legal and moral disorder; some laws that are in existence today have no bearing on morality any longer. This makes one to question the link between law and morality.  What makes morality to be? Is it the law? If it is the law, then, there is nothing wrong with the decline in morality in some societies. This is because there are a number of issues that are not touched by the law. For instance, in some societies abortion and all forms of unnatural sexual relations are legalized. These are but few instances of unjust laws that are in human society today. Is that to say that morality changes with a change in human law? When do we obey and when do we not obey human law?  Consequently, this work is an attempt to find a solution to the above-mentioned problem.  We are therefore hopeful that this exposition and analysis of Aquinas’ Natural law theory will help us appreciate the natural law as a true foundation and standard for human laws. According to Aquinas, every law derives from natural law.

1.4  Scope of Work

Morality has to do with good living and good living is the objective of law. Unfortunately, certain laws seem to deviate from the purpose of law. For Aquinas, every law must necessarily derive from the natural law for it to be just. And for Augustine, any law that deviates from natural law is no law. As it were, Aquinas dealt with many philosophical issues, among which is his concept of law. However, this work is not to deal with his concept of law in general but fundamentally on his natural law theory. This work is to particularize the natural law as a way of providing a yardstick with which human law is measured. This is geared towards finding a panacea for the promulgation of unjust laws, which is caused by deviations of human laws from the principles of the natural law.      

1.5 Methodology

This work is both expository and analytic. It is expository in the sense that it exposes the tenets of Aquinas Natural law theory. On the other hand, it is analytic in that it involves an analysis of the natural law in order to present it as the basis of human law. 

1.6 Division of Work

This excursus is divided into five chapters. Chapter one contains the general introduction, a short profile of Thomas Aquinas, the purpose of the study, the statement of the problem, the scope of work, methodology and division of work. Chapter two presents some philosophers’ view on the natural law. Chapter three dwells on Aquinas notion of law but most especially on his Natural lawtheory and its properties. Chapter four presents the natural law as the standard for human positive law. Here we talk of the natural law and just and unjust human law, when civil disobedience is justifiable and then the distinction between morality and legality of law all to show that the natural law remains the basis of human positive law come what may. Finally, chapter five recapitulates the entire study by way of evaluation and conclusion.

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