Aquinas, Law and Reason

Essay Questions
1. In your view, what are the best arguments against hate crime legislation. Does the Supreme Court in Wisconsin v Mitchell address these arguments? If so, does it give a convincing reply? Give reasons for your view. ( 2-3 pages )

2. Attempted murder is a crime. But should attempted suicide be a crime? Give three reasons for, and three reasons against. (1-2 pages )
3. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. –That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
Does this passage from the Declaration of Independence affirm a ‘natural law’ viewpoint? Justify your answer by defining what natural law is supposed to be; by reference to Aquinas’ discussion of the subject;and by a careful analysis of the passage. (2-3 pages). Please, answer all three (3) questions above. Incorporates many scholarly resources effectively that reflect depth and breadth of research.

Aquinas, Law and Reason
The discussion in this module will begin by studying Aquinas’ definition of law. As in many other subjects, Aquinas sums up deftly the classical view on the subject and integrates it with the Judeo-Christian tradition.
According to Aquinas, law may be defined as a precept of reason, pertaining to the common good, framed by someone who has authority for the common good, and which is promulgated. This section will briefly consider each of these elements of the definition. Again, this brief consideration here is meant to help students identify the important themes and discussions in Aquinas’ treatment.
Law is a precept. A precept is a statement of the form “X is to be done” or “X is not to be done”. In saying that law is a precept, Aquinas is claiming that it belongs to what he calls “practical reason”. According to Aquinas, who follows Aristotle on this point, human reason has two different functions. First, it can consider how things are. In that case it is functioning speculatively or “theoretically”. It is saying how things are. In that case, reason is confined to making statements that use the verb “is” (e.g. “The sun is 93 million miles from the earth.”). Second, it can consider how things ought to be. In that case it is functioning practically and saying how things ought to be (e.g. “Each human being ought to show love for every other human being.”)
Law is of reason. As has already been said, in saying how things ought to be, a law is a precept of practical reason. To say that law is the product of reason is to say that one can give reasons for a law; and therefore one can accept a law on the basis of those reasons. Also, to say that law is the product of reason is to deny that it is the product of will. Will is always arbitrary. There is no reason for something that comes from will, except “I want it to be so.”
Law pertains to the common good. The reasons that can be given in favor of a law involve the “common good”. This is a difficult notion, but it may be explained briefly as follows. People form associations to accomplish what they cannot accomplish individually. For instance, citizens of a country could not defend themselves from invaders by leaving it so that each citizen defended simply his own property. Rather, all of the able-bodied men of the country need to get together in an “army” and then cooperate under the
leadership of a general to have a chance of defeating an invading aggressor. That which people hope to achieve through forming an association is the “common good” of association. The plan that they agree upon or accept as advancing that “common good” also belongs to the common good. This plan is the “law” of that association. It binds them all qua belonging to that association. Thus there is an intrinsic connection between the law of an association and the common good of that association: the law of an association is simply a concrete way of attaining that common good.
Law is framed by those who have responsibility for the common good. Either one person, or a few, or many may be responsible for the common good. When one person is responsible, the group is organized in the manner of a kingship. When a few are responsible, it is as it were an aristocracy. When many have responsibility for the common good, then there is a “democracy.” If someone who does not have responsibility for the common good attempts to make law, this is known as “usurpation”.
Law is promulgated. It is essential to law that it be made known to those who are supposed to be bound by it. The reason is that law is a means of coordinating the behavior of rational beings in order to achieve a common good. Rational beings act on account of their grasping something. So if they are to follow the law, they must first grasp it, and they cannot grasp it if it has not been promulgated.
Aquinas on the Natural Law
As Module One demonstrated, Aristotle distinguished between conventional and natural justice. Something is naturally unjust, Aristotle thinks, if it is so prior to any human decision or choice. But Aristotle had no notion of “natural law”, because he tended not to think of ethics and morality in terms of law. The first classical thinkers to approach ethics in this way were the Stoics, who believed that there was a beneficial deity (Zeus) who regulated the entire universe through law. The Stoics also held that morality involved “following nature”. They thus naturally conceived of morality as a matter of following laws which governed nature and were “laws of nature”. Something was lawful by nature if it was inherently allowable because of the order that Zeus had given to things; something was unlawful by nature if it was inherently not allowable because of the order that Zeus had given to things.

This Stoic notion of a “law of nature” became very influential, no doubt because it reflects how ordinary people tend to think. People very easily conceive of morality as consisting of a “higher law” which trumps human law. A good example of this ordinary conception is in the play Antigone, by Sophocles. Antigone’s brother rose up in rebellion against the city; he was killed in the ensuing battle, but because he was a rebel, king Creon decrees that his body should be left to rot in the field, to be picked on by vultures and dogs. Antigone disobeys the king’s command; she sneaks out to the field of battle and gives her brother’s corpse a fitting burial. When the king later discovers this and challenges her, Antigone replies to him as follows:
Creon: You, you with your face bent to the ground, do you admit, or deny that you did this? Antigone: I declare it and make no denial. Creon: You, tell me— not at length, but briefly— did you know that an edict had forbidden this? Antigone: I knew it. How could I not? It was public. Creon: And even so you dared overstep that law? Antigone: [450] Yes, since it was not Zeus that published me that edict, and since not of that kind are the laws which Justice who dwells with the gods below established among men. Nor did I think that your decrees were of such force, that a mortal could override the unwritten [455] and unfailing statutes given us by the gods. For their life is not of today or yesterday, but for all time, and no man knows when they were first put forth. Not for fear of any man’s pride was I about to owe a penalty to the gods for breaking these.
The notion of “laws of morality” having a higher authority than human law is also consistent with the Judeo-Christian tradition, which regards morality as captured in the Decalogue (or Ten Commandments). So it is not surprising that the concept of a “natural law” was of central importance for Western Civilization and lies at the basis of philosophical treatments of a free society. Appeal to natural law has throughout history been a way of justifying resistance to tyranny and oppression.
However, it is more usual in discussions in the modern era (post 1600) to speak of “natural rights” rather than “natural law”. This transition from the language of “natural law” to the language of “natural rights” is extremely important in the history of thought. Briefly, the notion of “natural rights” seems more individualistic; it seems to involve conceiving of human beings as having by nature an adversarial relationship to one another.

As it has been previously said, historically people have appealed to natural law in order to justify their disobedience of human, positive law. Because of this, it is sometimes said that the theory of natural law should be rejected, because it is a recipe for anarchy. After all (the argument goes) if each person can reject a law when he thinks it is wrong, then each person is his own lawgiver, and chaos will be the result. For example, someone who thinks that the government spends money on things that are wrong might hold that he should stop paying taxes to the government, as this would be against the “natural law”.
But there are two good replies to this objection. First, natural law by definition includes only those binding precepts that can be known by all human beings, such as “Do not kill” or “Do not steal”. It therefore has nothing to say directly about particular issues of policy where “prudential judgment” is important, such as particular tax policies. Second, one should distinguish between laws that unjustly impose a burden on citizens and laws that unjustly require one citizen to commit an injustice against another. Arguably, only the latter sort of laws would be directly contrary to “natural law” and are of the sort that they should be disobeyed. (Note: It is relatively “easy” to dismiss a law that imposes a burden on you, and that is why one might be reasonably dubious about someone who claims that in conscience he thinks he should disobey that law. In contrast, it can be difficult to disobey a law that enjoins an individual to harm someone else— e.g. the German soldiers who shot Jewish civilians when ordered to do so usually gained materially from this injustice (by stealing watches, money, and so forth from their victims).

 

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