ACCORDING TO JOHN FINNIS THERE IS a division between the advocates of the lex pure poenalis theory (whose representative we might make Suarez) and the Thomists who generally do not support the notion of a law purely penal. The difference between the two schools is, in Finnis's view, the result of their notion of the human act. Essentially, the difference between the Suarezians and the Thomists on this issue is the result of their telescoping their views of a human act into the legislative process. The problem comes from their respective views of the ultimate role of the will--both in an individual man's actions and (by telescoping) in the legislature's actions. It is part of a historical tendency to elevate will over reason, in both human activity and in law and politics.
Suarez v. Aquinas
Is Will or Reason Supreme in Law?
For a Thomist (as well as for a Suarezian), a human act is a series of interacting human capacities: there is (i) the cognitive grasp of an end or objective (an act of reason); (ii) there is the elicited desire for that good (an act of will); (iii) there is the practical reason's efforts to find means to that desired end (an act of practical reason); (iv) there is the decision to terminate the means-to-end analysis and to act (an act of will). NLNR, 337-38. Up to this point there is agreement between the Thomist and the follower of Suarez.*
Suarez, however, stops his analysis there, and attributes the final internal action required before the completion of the human act to the be internal decision to terminate the means-to-an-end analysis and to act, which is an act of will. For the Thomist, however, there remains one more step: an executive command or imperative order (an imperium) which is, at root, a directive of reason to oneself.** Suarez, on the other hand, finds Aquinas's imperium to be "unnecessary and indeed impossible, 'certainly a fiction'." NLNR, 339 (quoting Suarez, De legibus, I, c.5, para. 6; c. 4, para. 4).***
It is this subtle difference between St. Thomas and his intellectual opponents (which includes Vasquez and Suarez) as to the human act that explains the difference between them in the legislative act, since both seem to analogize from the human act to the legislative act. So, for St. Thomas, "[t]he important thing is that the expressed imperium, the promulgated 'intention of the legislator', represents to the subject an intelligible determinate pattern of action, which, having been chosen by the lawgiver to be obligatory, can actually be obligatory in the eyes of a reasonable subject because the ruler's imperium can (for the sake of the common good) be reasonably treated by the subject as if it were his own imperium." NLNR, 341.†
NLNR, 342.
While Suarez and Vazquez apply the notion of imperium to the legislative command, they see it "primarily as an expression of the lawgiver's decision (to impose an obligation)." As a consequence, "the important thing for them is the act of will (decision) thus expressed and addressed to subjects." Finnis believes that Suarez (mistakenly), then, "makes the point that unless the lawgiver decides to make obligatory the pattern of action which prefers, it will not be obligatory," which menns that "what makes the conduct actually obligatory is, precisely and simply, the lawgiver's decision that it should be."†† NLNR, 341.
What takes precedence in man's law in foro interno and in man's law in foro externo? Is it reason or is it will? Does the good precede the right, or does the right precede the good? Is the gist, the kernel of law rationalism or voluntarism? The Thomists will stand on the side of reason. The advocates of purely penal law, as well as most moderns, will stand on the side of will.
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*In assessing the thought of Suarez and Aquinas, one ought not to look at reason and will as wholly separate or reified or personified faculties within a man. The one-and-the-same person reasons and wills, and the reason and will "are psychologically entirely interdependent and only analytically distinguishable." NLNR, 338, n. 37. The various steps are not even to be considered to occur separately and seriatim: they are not "necessarily chronologically extended." NLNR, 337.
**Finnis cites to S.T. IaIIae, q. 17, art. 1: "Command [imperare] is an act of the reason presupposing, however, an act of the will. . . . . Consequently it follows that command [imperare] is an act of the reason, presupposing an act of the will, in virtue of which the reason, by its command [imperium], moves (the power) to the execution of the act." [I]mperare est actus rationis, praesupposito tamen actu voluntatis . . . . Unde relinquitur quod imperare sit actus rationis, praesupposito actu voluntatis, in cuius virtute ratio movet per imperium ad exercitium actus."
***Finnis also refers to Gabriel Vasquez who in his Commentarium Ac Disputationum in Primam Secundae, disp. 49, c. 4 (which addresses St. Thomas's Summa Theologiae, IaIIae, q. 17, art. 17, ad. 1). Vasquez states that the Thomist notion of imperium was "unnecessary," "inept," and "futile." NLNR, 339 n. 39.
†Finnis cites to S.T. IIaIIae, q. 50, art. 2, c. and ad 3; q. 47, art. 12, c.
††Finnis cites to De legibus, I, c. 4, paras. 7-8; c. 5, paras. 16, 19.
In short, in examining the purely penal law theories, with their attribution of all moving and obligatory force to the lawgiver's will, we are examining one limited aspect or offshoot of that vast movement of thought which has sought, with overwhelming historical success, to expel from the analysis of individual and political action all systematic attention to the intelligibility of the good which are realizable in action.NLNR, 342.
Suarez v. Aquinas
Is Will or Reason Supreme in Law?
For a Thomist (as well as for a Suarezian), a human act is a series of interacting human capacities: there is (i) the cognitive grasp of an end or objective (an act of reason); (ii) there is the elicited desire for that good (an act of will); (iii) there is the practical reason's efforts to find means to that desired end (an act of practical reason); (iv) there is the decision to terminate the means-to-end analysis and to act (an act of will). NLNR, 337-38. Up to this point there is agreement between the Thomist and the follower of Suarez.*
Suarez, however, stops his analysis there, and attributes the final internal action required before the completion of the human act to the be internal decision to terminate the means-to-an-end analysis and to act, which is an act of will. For the Thomist, however, there remains one more step: an executive command or imperative order (an imperium) which is, at root, a directive of reason to oneself.** Suarez, on the other hand, finds Aquinas's imperium to be "unnecessary and indeed impossible, 'certainly a fiction'." NLNR, 339 (quoting Suarez, De legibus, I, c.5, para. 6; c. 4, para. 4).***
It is this subtle difference between St. Thomas and his intellectual opponents (which includes Vasquez and Suarez) as to the human act that explains the difference between them in the legislative act, since both seem to analogize from the human act to the legislative act. So, for St. Thomas, "[t]he important thing is that the expressed imperium, the promulgated 'intention of the legislator', represents to the subject an intelligible determinate pattern of action, which, having been chosen by the lawgiver to be obligatory, can actually be obligatory in the eyes of a reasonable subject because the ruler's imperium can (for the sake of the common good) be reasonably treated by the subject as if it were his own imperium." NLNR, 341.†
For, just as an individual's imperium, his formulated resolve to act, motivates his exertions by being transparent for the value of his objectives and the appropriateness of teh chosen means to them, so in the eyes of the subject the ruler's imperium is compelling precisely be being transparent for the common good, tot the needs of which the ruler's stipulation is treated by the subject (who recognizes the need for authoritative resolution of social problems) as a relevant response.
NLNR, 342.
While Suarez and Vazquez apply the notion of imperium to the legislative command, they see it "primarily as an expression of the lawgiver's decision (to impose an obligation)." As a consequence, "the important thing for them is the act of will (decision) thus expressed and addressed to subjects." Finnis believes that Suarez (mistakenly), then, "makes the point that unless the lawgiver decides to make obligatory the pattern of action which prefers, it will not be obligatory," which menns that "what makes the conduct actually obligatory is, precisely and simply, the lawgiver's decision that it should be."†† NLNR, 341.
What takes precedence in man's law in foro interno and in man's law in foro externo? Is it reason or is it will? Does the good precede the right, or does the right precede the good? Is the gist, the kernel of law rationalism or voluntarism? The Thomists will stand on the side of reason. The advocates of purely penal law, as well as most moderns, will stand on the side of will.
_________________________________
*In assessing the thought of Suarez and Aquinas, one ought not to look at reason and will as wholly separate or reified or personified faculties within a man. The one-and-the-same person reasons and wills, and the reason and will "are psychologically entirely interdependent and only analytically distinguishable." NLNR, 338, n. 37. The various steps are not even to be considered to occur separately and seriatim: they are not "necessarily chronologically extended." NLNR, 337.
**Finnis cites to S.T. IaIIae, q. 17, art. 1: "Command [imperare] is an act of the reason presupposing, however, an act of the will. . . . . Consequently it follows that command [imperare] is an act of the reason, presupposing an act of the will, in virtue of which the reason, by its command [imperium], moves (the power) to the execution of the act." [I]mperare est actus rationis, praesupposito tamen actu voluntatis . . . . Unde relinquitur quod imperare sit actus rationis, praesupposito actu voluntatis, in cuius virtute ratio movet per imperium ad exercitium actus."
***Finnis also refers to Gabriel Vasquez who in his Commentarium Ac Disputationum in Primam Secundae, disp. 49, c. 4 (which addresses St. Thomas's Summa Theologiae, IaIIae, q. 17, art. 17, ad. 1). Vasquez states that the Thomist notion of imperium was "unnecessary," "inept," and "futile." NLNR, 339 n. 39.
†Finnis cites to S.T. IIaIIae, q. 50, art. 2, c. and ad 3; q. 47, art. 12, c.
††Finnis cites to De legibus, I, c. 4, paras. 7-8; c. 5, paras. 16, 19.
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