II-Ie.90.2: Whether law is always something directed to the common good?
Having offered in Article 1 a definition of law as a rational, objective “rule and measure of acts” which operates on the will to regulate and form, Aquinas now turns in Article 2 to another fundamental question. As usual, he starts with the wrong answer: “It would seem that the law is not always directed to the common good as to its end.”
Objection 1, from the difference between individual goods and the common good: concrete laws aim at some individual good, but not at the common good per se.
Objection 2, from the same, but with reference to the human actor: concrete human actions regulated by laws aim at particular goods, not the common good per se.
Objection 3, from authority: “Isidore [St. Isidore of Seville] says (Etym. v, 3): ‘If the law is based on reason, whatever is based on reason will be a law.’ But reason is the foundation not only of what is ordained to the common good, but also of that which is directed private good.” Therefore law might aim at either private or common good, and therefore not always the common good.
You might predict already that this difference between the private and the common good is going to be part of the answer as well. Specifically, how are they related? Is it possible to aim at the private good, without also implying a contribution to the common good? Modern notions of “the common good” and “the private good” generally allow that implication to be absent. But, remember that he’s not working with a modern definition of the “private good,” which opposes the private good of individuals against each other. He’s not Hobbes or Rousseau, positing a “zero-sum game.” To be good, even the private good must exclude real harm of others, and be compatible, not in competition, with the private good of others. The appearance of competition or exclusion comes rather from human imperfection and sin, than from the imperfection of law as such.
And indeed, this is the argument he deploys. Individual goods are related to the common good as parts to the whole, or as imperfect to perfect. Because individual laws aim at individual goods specifically as part of the common good, law as a whole must aim at the totality of individual goods, which is the common good.
He continues in Article 3 with the same thrust: Whether the reason of any man is competent to make laws? In other words, how is law in its nature related to the individual?
Wrong answer first: “It seems the reason of any man is competent to make laws.”
Objection 1, from Paul: Gentiles don’t have the OT Law, so they are “a law unto themselves.” (Rom 2:14). He means this generally, and so man’s reason can make laws.
Objection 2, from Aristotle: the intention of lawmaking is to lead men to virtue (by forming good habits and inhibiting the formation of vices), which (at least in a natural sense) any person can in theory do for another.
Objection 3, from analogy: the governor of a state makes laws for a state; the head of a household makes laws for the household in the same way.
These objections are pretty forceful. For us in the modern world, the analogy argument is particularly potent, because who wouldn’t agree with the basic justice of a “rule of law” and accountability of the lawmakers to their subjects? And to have that kind of basic structure of justice, you need the human competence to make law. You assume it, in fact, because without it the whole modern project of classical liberalism (democracy, no legally-privileged aristocracy, parliamentary rule, religious freedom, personal freedom for the sake of the common good, and so on) just falls apart.
So how does Aquinas respond to these objections? He starts with his “on the contrary,” another interesting quote from the same Isidore: “A law is an ordinance of the people [the sovereign], whereby something is sanctioned by the Elders [the governing elite, whether they form a class or not] together with the Commonalty [the citizen-voters].” In other words, a law must be accepted to be law; it must be agreed to, as part of the shared vision of the common good and how to get there.
This is a fundamental point, even to the objections. Even if you argue for a basic human competence to make laws, you’re still presuming that this understanding of law includes its legitimacy, along with its rationality and its goodness.
But what this means, he argues in his “I answer that,” is that the only “person” competent to make legitimate (and therefore just) laws is the sovereign. And the sovereign is not a human person at all, but a “body politic.” Even in the case of monarchy, when the sovereign is reduced to one in the person of the king, one still distinguishes between the king as a person, and the king as sovereign. (This is why the power of monarchical kingship can in fact be shared, as by Diocletian, or as by crowning an heir even before the king’s death, for example in order to prevent a civil war.) This was a basic point of medieval political theory, and its echoes in our familiar system of representative democracy surprise us only in the antiquity of their origins.
In saying, then, that any man’s reason is not competent to make laws, Aquinas is not saying that only God may make laws – he’ll get to the relationship between human and divine law in qu. 91 – but rather that laws made by just any man are necessarily arbitrary, rather than sovereign and legitimate; and if they are arbitrary, then they are neither rational, nor aimed at the common good, and therefore not truly law at all.