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.

St. Albert the Great: The Natural Law and Practical Reasoning

ST. ALBERT'S NOTION OF NATURAL LAW AS HABITUS must be understood and coupled with his notion of synderesis and practical reasoning. The principles of natural right (ius naturale) which are a habitus are part and parcel of practical reason. "More specifically," Cunningham states, the principles of natural right "inhere in an active power of reason called by some 'naturale iudicatorium,' by the Greeks 'synderesis.'" Cunningham, 489 (citing De bono V, 1, 1).

Though St. Albert does not expand on the notion of synderesis in his De bono, he did so in an earlier work entitled De homine, and in a fragment entitled Quaestio de synderesi which has been attributed to him. Cunningham, 491; Cunningham (2006), 222. In his De homine, St. Albert describes synderesis as "a special power (vis) of the soul in which are inscribed the universal principles of natural right." Cunningham, 489 (citing De homine, qu. 71, art. 1). In his Quaestio de synderesi, St. Albert states that "synderesis is a certain kind of motive power in possession of the universal principles of natural right [quaedam potentia motiva per habitum universalium ius], having something of knowledge and something of appetition, but situated more on the side of knowledge." Following St. Jerome, he also calls it the "light" and the "spark of conscience." Cunningham (2006), 222. These informing principles of natural right embedded in that active power of synderesis "serve as formal determinations directing and assisting the practical intellect of man in his operations." Cunningham, 491. St. Albert then takes the notions of first principles (such as the principle of non-contradiction or excluded middle) and their role in speculative or theoretical reasoning, and analogizes them so as to apply them to practical or moral reasoning.

Just as in the theoretical intellect there are certain innately implanted first principles aiding man in the area of speculative truth, so too in the practical order of human moral acts there are certain universal directive principles through which the practical intellect is aided in its discrimination between moral good and evil, principles moreover which are not acquired by man, but which are simply the content of natural law inscribed upon the human mind. The subject or substratum of these is synderesis.

Cunningham, 489.

Albertus Magnus, Fresco by Tommaso da Modena

Though St. Albert uses the terms potentia and vis (power and force) to describe synderesis, it would be wrong to understand him as proposing a new faculty or power distinct from, and separate of, either the will or the intellect. Synderesis in fact, is "simply the practical intellect itself considered as endowed with the univeral principles of natural right, and thereby innately habituated to an abstract understanding of human goodness." Cunningham (2006), 223 (citing Lottin, PEM, vol. 2, 342). Using the habitus of the ius naturale which inheres in the subject or substratum of synderesis as the first principles of practical reason, St. Albert is able to further refine moral decision-making and the role that the natural law (ius naturale), synderesis, and conscience play. Cunningham, 489.

In clarifying the role the ius naturale, synderesis, and conscience play in moral decision-making, St. Albert makes yet another innovation, "perhaps, his most striking innovation in these questions." Crowe, 133. In a sense, there is a watershed in the doctrine of conscience, pre-Albertinian and post-Albertinian. Prior to St. Albert's innovation, most theologians had identified conscience with the natural law, with synderesis, with free will, or with some sort of habitus, whether innate, acquired, or a combination of both. And there may have been a sort of feeling out for some better concept of conscience during St. Albert's time. But Albert's great innovation was to clear the brush in this area, and he did so by separating synderesis from conscience and the ius naturale, and identifying conscience as an act of reason. Crowe, 134.

Dicimus quod conscientia conclusio est rationis practicae ex duobus praemissis, quorum maior synderesis et minor rationis. . . . . Maior autem istius syllogismi est synderesis, cuius est inclinare in bonum per universales rationes boni. Minor vero est rationis cuius est conferre particulare ad universale. Conclusio autem est conscientiae.

Summa de creaturis, II. q. 72, a. 1 (quoted in Crowe, 134 n. 75). In short, the Albertian contribution was to render moral thinking clearly rational:

The practical syllogism uses a major premiss, provided by synderesis, and a minor premise, the work of reason (which brings the particular under the general rule laid down in the major premiss); and conscience draws the conclusion.

Crowe, 134 (citing Summa de creaturis, II, q. 72, a. 1). So, for example, the synderesis would yield the major premise: I should not kill an innocent, as it is an evil; reason supplies the minor premise: abortion is the killing of an innocent child; conscience draws the conclusion: abortion is evil an prohibited by the natural law.

Albertus Magnus by Fra Angelico

Crowe explains the significance of Albert's teaching on conscience:

The idea of synderesis as the habitual knowledge of first moral principles, providing the major premiss of the practical syllogism in which the actual drawing of the conclusion was the work of conscience, was an extremely important one. As has already been suggested, it went a good deal beyond the function Aristotle saw in the practical syllogism. In fact the practical syllogism, as Albert saw it, will play a vital part in the great natural law synthesis of St. Thomas Aquinas . . . .

Crowe, 134-35. It is this notion of ius naturale, synderesis, conscience, and practical reason that led St. Albert to reject the Ulpian notion that brute animals participate in natural law. "More than any thinker before him, . . . Albert has attempted to delineate the close union between right and reason." Cunningham, 491. Because the entirety of the moral reasoning in man was rational, the natural law, which was at the heart of that reasoning, was likewise to be found only in rational agents. We shall address the issue of St. Albert's rejection of the Decretists and their continued reliance on Ulpian's definition of the natural law in our next blog entry.