Natural Law's Modern Cousin Germain: Lex Pure Poenalis

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.

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.
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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.

Law: Is It Will First or Reason First?

LAW IS A RULE AND A MEASURE OF HUMAN ACTION. With this "nominal and dialectical definition," the "commonly accepted" definition, Yves Simon begins his exploration of human law with the aim of establishing a "real and scientific" definition of law through further reasoning. He does this by trying to grasp what exactly law must have, what conditions must be present, for something to be a rule and a measure of human action. In doing so, Simon fashions four fundamental questions: (1) whether law is the work of reason; (2) what is the end or purpose of law; (3) what is the cause of law; and (4) how and what is promulgation of the law.

In addressing the first question--whether law is predominantly a work of reason--the opposite question naturally raises itself: whether law is principally or predominantly work of the will. Legal rationalism or legal voluntarism appear to be the two choices as we walk the great divide of the law. But whether law involves reason and law involves will are not mutually exclusive options. The real question is which ought to predominate in law? Which is another way of asking which ought to be subordinate in law? Reason or will? Yves Simon concedes what seems apparent: "That every law involves an act of will is taken for granted." Simon, 71.

Thus the first question in our progression from the nominal and dialectical [common] to the real [and scientific] definition of law is whether, in order to have the character of a rule and measure of human action, the thing called law should be primarily a work of the reason or a work of the will.

Simon, 72.

From a historical perspective, a theory of legal voluntarism (where the will predominates over reason in law) has a checkered reputation. It seems a refuge of tyrants and revolutionaries and democratic demagogues. So we see it as a justification for the arbitrary power of Caesar, or the alleged "divine right" of Kings, or the ukase of the Czar: The Roman jurist Ulpian's unsettling dicta: princeps legibus solutus est (the prince is not bound by the laws) and quod principi placuit legis habet vigorem (what pleases the prince has the force of law) come to mind as indicative of this tendency. See Dig. 1.3.31; 1.4.1. More contemporaneously, we might point to Rousseau "for whom law is an act of the general will, and expression of what the people will, so that, in case of dispute about justice or wisdom of the law, the fact that the people wants it to be that way is final." Simon, 73. Populi locuti, causa finita est. Rousseau and his French Revolution minions decapitate the noble tradition of Heraclitus: that the counsel of one man is also law, for the opinion of one man, if he is the best, is worth ten thousand. See DK 33, 49 (νόμος καὶ βουλῇ πείθεσθαι ἑνός, "and it is law also to obey the counsel of one," and εἷς ἐμοὶ μύριοι, ἐὰν ἄριστος ᾖ, "one is ten thousand to me, if that one be the best.") It matters not reason: the general will supplies its own reason. Here, Juvenal's line is relished: Hoc volo, sic jubeo sit pro ratione voluntas. (Satires, VI, 223). "I will this, I order it, so let my will stand for reason." Will, whether of one tyrant or of a tyrannous majority, is the juggernaut in law for the legal voluntarist.

Yves Simon

On the other hand, the proposition that law is "a thing which is a rule and a measure of human action," and "primarily the work of reason," is what Yves Simon calls "axiomatic," which, from a philosophical viewpoint, is to say that it is an "absolute premise," that is, a proposition that is undeducible, indemonstrable. (This, of course, suggests that the opposition premise, that law is "primarily the work of will," is also an opposing absolute premise, one which cannot be deduced or demonstrated to be true, but one, since erroneous, which can be demonstrated to be false.) To say that a proposition is axiomatic is to say "that if we understand the subject" (in this case, "law"), "and the predicate of this proposition," (in this case "a thing which is a rule and a measure of human action"), "we also understand that they are to be connected by the copula 'is'". Simon, 77. That an axiomatic proposition, one which is logically self-evident, is psychologically evident is a different story. "It may take years or generations or centuries for the mind to understand a proposition that is logically immediate." Simon, 77. As an example, one might point to traditional Islamic societies. It is doubtful that these societies, having been so ingrained with the irrational notion that law is nothing but the will of Allah, would recognize the self-evident nature of the proposition that law is a rule or measure principally of reason. (See, e.g., Robert R. Reilly's The Closing of the Muslim Mind (ISI Books 2010). On the matter of legal voluntarism, these minds have been poisoned at the intellect's well, have been stunted by a sort of mental hydrargyria. It exhibits itself by their mercurial, irrational, impulsive violence.

Law involves a rule or measure of "human action." By "human action" we mean to exclude those parts of men's activities that are involuntary or the result of insanity, temporary or lasting, or some sort of pathological emotion. (These latter are "cosmic events" in Simon's nomenclature, not "human actions," though the acts of humans may be incidentally involved.) In other words, to be in the world of "law" we must be placed in the realm where there is a sufficient modicum of freedom so that actions can be governed by rational measure or rational rule. This is the realm where the external action would be generally viewed as having with it moral implication in addition to a mere physical implication. Where the man is answerable for it, where he ought either to be praised or to be condemned.

How do we know that a case of killing is a cosmic event rather than a human action? We hold that the mind of a man is gone, that the use of his judgment is suspended, that his reason is out of commission. It is the presence of reason which makes all the difference. . . .Thus by reflecting upon the rational character of what is recognized as "human action" we come to understand that ruling human action primarily pertains to reason. The rule of an action proceeding from the reason must be rational. If the will is reasonable, if it follows the reason, it is to the reason that primacy belongs; but if the will is held to enjoy primacy, it is also held to be free from reasonableness, from agreement with the reason, from direction by the reason. Such a will is arbitrary, and the most adequate way to convey the rationality of the law may be to say that such a will is lawless.

Simon, 79-80. Ordinary cosmic events, events which man has no control over, such as the movement of the planets, the countless physical and chemical processes witnessed every day, are subject to "law," as they exhibit an order; however, it is an order or law entirely outside the scope of human law. In comparing the order relating to "cosmic events," to a notion of legal voluntarism, the absurdity of the latter relative to legal rationalism is apparent: "A voluntaristic interpretation of law would place less rationality in human actions than in processes that are just natural. The absurdity of such an interpretation helps to perceive the truth of the opposite view and of its consequences." Simon, 80. In other words, to hold to legal voluntarism would mean to say that man is governed by processes less rational than the world of nature in which he finds himself. There is a fundamental absurdity in such a proposition. Thus, the self-evident proposition that "law" must be a measure or rule principally based upon reason preserves itself through the apparent absurdity of the opposite proposition.

There is, however, the question of instinct, which itself is a sort of "rule" or "intelligence" by which animals, and in a certain manner, also man are governed. How does human "law" differ from such rule of instinct? It is in the apprehension of an end, knowing it to be an end, that we find what distinguishes instinct from reason. The ordering of activity with knowledge of an end, knowing it to be an end, and the structuring of means to achieve that known end, is what distinguishes the impulse of instinct from the impulse based upon reason. The legislative activities of man, which encompass "a constant effort to embody a certain philosophy of man and society," cannot be confused with animal instinct. If there are societies, or part of societies, that base themselves on such nonrational instinct, they are, at least to that respect, infrarational or subhuman. Simon, 81.

St. Thomas Aquinas: Definition of Law, Reason

ST. THOMAS ADDRESSES the definition of law in Question 90 of his so-called “Treatise on Law” (which is actually part of his Summa Theologica, specifically Questions 90-97 of the first part of the second part of this multi-volume work). St. Thomas first addresses the issue of whether the law is something that is based upon the faculty of practical reason of the law giver, or something else, in particular, the will of the law giver.

Relying principally on the insights in Aristotle’s Physics, St. Thomas concludes that law must principally pertain to reason, and not to the will. He reaches this conclusion because the “rule and measure” of all human acts must be the reason, since reason, and not will, is the proper faculty to direct the end of man. Since law is something that induces man to act, or restrains him from acting, it must accord with the “rule and measure” directing all human acts, which is reason. Ultimately, in St. Thomas's view, it is at the bar of reason to which law is answerable. Naturally, this determination would apply to all law. Thus Eternal Law, the Natural Law, Divine Law, and Human Law would all conform to Reason. Although the Natural Law and Human Law operate under the right reason of man, all manner of law is ultimately subject to conformity with the Divine Reason.

In his handling of the issue, it is apparent that St. Thomas recognizes that the word "law" may be used in an inexact sense. He observes that it is precisely in an imprecise sense that St. Paul uses it when he talks about the “law in my members” in Romans 7:23 to refer to the disposition or tendency toward sin that is referred to as concupiscence. This "law" is not actual law, since it is not based upon reason, but a disordered disposition. Nor is such law actually in the members of a human being, since reason is not be found in the bodily members, but only in the intellect Nevertheless, the term "law" may imprecisely be used to refer to concupiscence because it tugs on us though in a different manner than law, strictly defined, does. Similarly, the "laws of nature," such as scientific "laws," are not strictly laws, but are called laws only in a manner of speaking.

The reason that St. Thomas refers to in his definition of law is what is called the practical reason (ratio practica). This sort of reasoning should be distinguished from the speculative or theoretical reason. The speculative or theoretical reason, entirely intellectual, works by means of argument, applying syllogistic thinking to definitions and propositions to arrive at truths. Speculative or theoretical reason is thus used by humans to determine what is or what one ought to assent to or believe in, that is, what is true, and not what one is supposed to do, that is, to do good and avoid evil.

On the other hand, practical reason is the faculty that man uses to determine what he is supposed to do, and as such it informs us of what is good and what is evil. It relates to one's intent or end (purpose) in acting and is the basis or odering that end. (Some philsophers, such as David Hume, reject the suggestion that practical reason is able to determine what is good and what is evil, and they hold that practical reason is purely instrumental, but that is another issue for another day.)

Because practical reason relates to action, it is a combination of both reason and will. As R. J. Henle puts it: "The act of Practical Reason is a composite one and involves an interplay of will and intellect." R. J. Henle, S.J., ed. The Treatise on Law (Notre Dame: Notre Dame University Press, 1993), [314], 65.

Practical reason similarly uses a syllogistic thinking, applying it to definitions and propositions. But in the practical reason, the “universal propositions of the practical intellect that are directed to actions have the nature of law.” ST IaIIae Q.90, art.1, ad.2. Sometimes, these universal propositions are applied as a result of habit. At other times, these propositions are applied with full awareness and express consideration.

In assessing the interplay of reason and will in the faculty of practical reasoning, St. Thomas insists that reason is preeminent over will. Therefore, law pertains primarily to the reason, and not the will. In taking this position, St. Thomas rejects any implication to the contrary that may have been inferred in the Institutes of the Emperor Justinian. The legal text referred to by St. Thomas defined law in terms of the will of the emperor: Quod principi placuit legis habet vigorem. Inst., I.ii.6. (“Whatsoever pleases the sovereign has the force of law.”) In the Middle Ages, the Institutes and Digest (which with the other laws known as the Novellae) were known as the Corpus Juris Civilis or Codex of the Emperor Justinian. These laws were held in great esteem because of their antiquity and because of the reputation of Justinian as a Christian emperor (the Eastern Church considered him a saint). Justinian's Code, therefore, was to considered to be written reason (ratio scripta), and so was applied to human law as the Scriptures were applied to Divine belief. In his Summa Theologica, St. Thomas Aquinas calls the Emperor Justinian, "the Jurist," like he calls Aristotle, "the Philosopher."

St. Thomas rejects the notion that it is the will which moves us to act; rather, St. Thomas believes that the law is what commands and what forbids, and that this command is properly something pertaining to reason, and it is not something the will engages in except after reason has done its task. While the a person may will a certain end, the reason is what should determine that end, and which issues the command that ordains to that end. Without reason's ordering and guidance, there would be no rule of reason behind that act of will. In St. Thomas’s view, therefore Justinian "the Jurist" must be understood as implying that the will of the sovereign is in accord with some rule of reason. Otherwise, St. Thomas urges, "the sovereign’s will would savor of lawlessness rather than of law." Therefore, St. Thomas concludes, the source of moral obligations, and similarly legal obligations, are based upon a "reasonable will" (rationabile . . . voluntate) or a "will regulated by reason" (voluntate . . . ratione regulata). ST IaIIae, Q. 97, art. 3, resp.

It is apparent that St. Thomas's doctrine would exclude any theory of law that places something other than right reason at the helm of law, whether that something else is the will (even the alleged Divine will), convenience, custom, politics, power, freedom, the genius of the peoples, any idealogy, or anything else. Though these latter factors may have a role to play in fashioning human law, in St. Thomas's view they must always play a subordinate role to rightly-fashioned practical reason. (recta ratio practica).

The French scholar Jean Gerson (1363-1429) is in full compliance with St. Thomas when he states: "Lex est recta ratio practica secundum quam motus et operationes rerum in suos fines ordinatate regulantur." "Law is right practical reason according to which the mode and operations of things are regulated to their final end." Jean Gerson, Oevres Complètes, IX, ed. P. Glorieux (Paris, 1973), p. 134, quoted in Latin in Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge University Press, 1981), 27.

In this, Aristotle, Cicero, St. Thomas Aquinas, and Jean Gerson are united. This teaching is our heritage.