St. Albert the Great: Lex et Ius, Law and Right

PRIOR TO ST. ALBERT THE GREAT'S treatment of it in his De bono, no significant distinction between right (in Latin, ius) and law (in Latin, lex) was made by scholars. "Prior to the Universal Doctor" Professor Cunningham states, "the terms 'right' and 'law' are used interchangeably." Cunningham (2006), 216. "Both in doctrine and procedure Albert distinguishes between these notions." Id. The procedural distinction arises from Albert's handling of the two notions in separate questions. The first question of the last part of De bono deals with right (ius), whereas the second question is devoted to law (lex).

Albert the Great by Vincente Salvador Gomez

In Question 2, St. Albert discusses law (lex) specifically. In article 1 of Question 2 he offers three definitions of law, but favors one in particular which he attributes to Cicero (thought it is not Cicero's): Lex est ius scriptum asciscens honestum prohibensque contrarium. De bono, V, 2, 1 (quoted in Cunningham (2006), 234) "The Law is written right encouraging the good (honestum) and prohibiting its contrary." Beginning from this definition, St. Albert then turns to Aristotle, specifically, his Nicomachean Ethics. According to Aristotle, the end of law is to promote the virtue of its citizens, and so law is ordered to the human good (humanum bonum). Understanding the pseudo-Ciceronian term honestum to mean the goodness relating to virtue, it follows that the end of law should be the virtue of its citizens. In Albert's view, only per accidens can laws be said to be prohibitive of evil; that is, they prohibit evil as a means to achieve the end of virtue.

Whereas goodness signifies its end, "written right" designates the genus in the definition of law. Albert argues that his above definition is still a valid formulation of natural law since scriptum in this case may be taken in a much wider or metaphorical sense to mean "written by the finger of God and inserted in the human heart."

Cunningham (2006), 234 (citing De bono V, 2, 1). In the last two articles of Question 2, St. Albert treats of the various kinds of law, identifying the natural law, the Mosaic law, the law of grace, and the so-called law of sin. De bono, V, 2, 3.

[I]t must be said that law [lex] pertains more to obligation arising from the command of rational nature, whereas right pertains to the deliberations about practicable objects through rational nature; and thus the difference between natural law and natural right is clear. Hence, natural right adopts the good and prohibits the contrary through through the manner of one judging. Natural law, however, effects these two functions through obligation and rule or precept. And thus the difference is clear.

V, 2, 3 (quoted in Cunningham (2006), 235.) And so here we have the kernel of St. Albert's thought on the matter. Law (lex), which is derived from the Latin word ligare, a word meaning to "to bind." The goal of lex is to guide its subject to moral excellence, that is, to virtue. It does so by means of obligation, command, rule, or precept. Ius does not act through means of obligation, command, rule, or precept, but through a work of reason or of judgment (per modum iudicantis), through the deliberations of practical reason regarding the proper course of action for the actor (cogitationes operabilium).

Albert the Great by Ralph Carlin Flewelling
(Mosaic from James Harmon Hoose Library of Philosophy, USC)

Cunningham concludes:

The notion of "right," then, is both ontologically and ethically prior [to that of "law"]: it is the universal knowledge possessed by the person of what is good, fitting, and commensurate with rational nature. But this same habitus or reportoire of first principles carries with it the force or impulse (instinctus) of nature inclining us to goodness. Thus Albert speaks of natural law as an "inclining nature" (inclinans natura). That inclinational or instinctual movement is how Albert conceives the element of "obligation" attaching to natural law.

Cunningham (2006), 235. It would be wrong to view St. Albert's notion of the natural law as a series of prohibitions and rules that are imposed upon us by a legislator without regard to our nature. In fact, St. Albert the Great's notions of the natural right and natural law are an intimate and fundamental part of what it is to be human. In denying the natural law or natural right, we deny our very self. For St. Albert the Great, the natural law and natural right represented:

a dynamic, embedded determination of the practical intellect inclining the agent to human natural goodness through his or her understanding, judgments, and affective nature. In an age when natural law was commonly treated in the jural language of dictates, prohibitions, and restrictions, and where as a result it came to be conceived as if it too were positive law, Albert has launched a striking reversal of an old thinking pattern. The division of his treatise into a question dedication to ius followed by another on lex both reflects and clarifies this move. The quintessence of natural law for Albert is not obligation and prohibition, but the innate wisdom of practical reason. Obligation, not in the sense of a restriction, but rather in the sense of a moral-gravitational pull toward perceived goodness, naturally and necessarily follows upon this. Ius and lex, therefore, though distinguishable, are two facets of the one reality: the debitum rationis [the duty of reason]. The result is a flexible and analogical notion of law wherein priority belongs to natural law because it is the metaphysical and metajuridical foundation of all subsequent human rights, laws, and obligations. In this way, Albert reverses the traditional procedure of viewing natural law through the lens of positive law.

Cunningham (2006), 235-36.

With this blog posting we end our treatment of St. Albert the Great on the natural law.