Tuesday, August 24, 2010

Moral Theology 3 - Aquinas on Law cont'd: Qu. 90, art 4

Aquinas finishes his qu. 90, on the nature or essence of law, with Article 4: “Whether promulgation is essential to a law?”

As usual, wrong answer first: “It seems promulgation is not essential to a law,” because:

Objection 1: natural law binds without formal promulgation;
Objection 2: law binds or obliges not only those to whom it is promulgated, but also others;
Objection 3: some of those others are future persons who will be subject to the law, but promulgation takes place only in the present.

On the contrary, from Gratian’s (“The Jurist”) Decretals (a major compilation of canon law in the 12th cent.), “laws are established when they are promulgated.”

Given what he’s said about the rational (and therefore objective and universal) nature of law, it follows that laws that remain unpromulgated can’t be objective, and therefore can’t be law. Gratian is correct, in other words. If law is a “rule and measure,” Aquinas argues, then it must be applied in some way in order to regulate and measure. The promulgation is the application of the yardstick to the situation. Without the promulgation, the yardstick is only leaning in the corner, not doing anything.

Aquinas goes on to note that promulgation is not only functionally necessary for law, it’s also part of the nature/essence/definition. He puts all these four articles together thus:

Law is nothing other than “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” That is, law is rational, implying also objective and universal; law is properly made by the sovereign, not by private interests; law is for the common good, implying that partisan laws are unjust, along with various forms of discriminatory laws; and law must be promulgated.

From this, his replies to the objections are fairly obvious.

Again, remember that his use of terms can be a bit different than ours, especially in things like “common good.”

Discussion: What do you think about this definition of law? Does it work today? If not, what would be a better definition? Do the laws we make at national, state, and local levels generally aim at this standard? If not, why not? What are the implications here for what we call “checks and balances”?


drtom12 said...

So, why do the words of Mr. Spock from the movie the Wrath of Kahn keep coming into my mind? "The needs of the many out weigh the needs of the few or the one" But I believe it is important to understand that it is the One who lays down their life freely of their own volition rather than it being forced upon them by others that this can apply or be moral. I look at so many area of our society where this is not the case and it is forced. To carry this to the next Star Trek movie, the search for Spock, the quote is quite similar "the needs of the one out weigh the needs of the many." Again, this only makes sense when the many give that of their own free will.

Don't know if this actually contributes to the discussion, but like I said, it kept coming into my head and now it's in your head so you'll have to deal with it.

Peace to you all

dgoebel said...

Unfortunately the definition of law (by those in power) in our country today seems to me to be: "that which benefits a select few".
I think laws made at the local level are generally more in line with the standard. I think this is because local leaders are right there in the thick of the community and they have their own people to answer to.

Deacon David said...

We're still a long way from establishing some sort of nobility with legal privileges and so on. But, yes, an awful lot of our law is designed to protect special interests rather than the common good. Partly that's because we don't really have a shared understanding of the common good anymore. Partly, also, our theory of capitalism in which the common good is achieved by the competition of private goods is being applied politically. And partly, it's because power corrupts; and those who can, will.

I think it's an excellent point that local politics is experienced quite differently from state and national politics. The humanity of those subject to the law is much more difficult to misrepresent or to idealize or to anecdotalize, the closer you are to their (our) real lives. This is the reason, of course, that the founding fathers did not want to see a political class established here, but that's almost impossible to avoid with a bureaucratic substructure, in any governing system.

dbrockhaus said...

Ordinance of reason for the common good, wouldnt the "reason" be releveant only to a certain group of people? so this method of Law would work well with small groups, but then loose it's effectivness when the group size increases.So you put in the system of checks so not 1 group can dominate the choice of who's "reason". so i would apply, in our church, of the necesity of a Holy Pope. In the secular would, it has failed, in my opinion, due to the judiciary branch over powering the other 3 branches. Of course the other 3 branches could settle this BUT, they have not the courage.
So we loose the formula for reasonable laws concerning the common good by loosing rationalization?
Praise God for Holy Popes to rationalize the churches laws.
"And the gates of Hell will not prevail against it"

Deacon David said...

Ordinance of reason for the common good, wouldn't the "reason" be relevant only to a certain group of people?

In theory, no; in practice, and especially as "pluralism" increasingly means incompatible (rather than merely different) core ideas, it tends to work that way. If you have mutually exclusive core assumptions in play, the judiciary is more or less forced to choose among them. And while it's true that most of our politicians lack effective courage, it's also true that those who don't or didn't can't be effective in shaping how the judiciary will choose among competing core ideas.

There needs to be some objective standards, in law as in everything else. Otherwise, as we have seen, law becomes irrational, private, and subjective; self-referential rather than for the common good; and privileges either those with the most leverage, or those whose privileging causes the least short-term disturbance.