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: Lex Naturalis Cum Bottis

WHEN WE SPEAK OF ALBERT THE GREAT we are in the company of the bright lights in heaven, in the circle hosted by St. Thomas Aquinas, the Fourth Sphere of Heaven by the Sun. There we shall find St. Albert the Great, at his former student's right hand, if Dante is to be believed.

Questi che m’è a destra più vicino,
frate e maestro fummi, ed esso Alberto
è di Cologna, e io Thomas d’Aquino.

He who is near me on my right,
My brother friar and master was, and that Albert
Haled from Cologne, and I, Thomas, from Aquino.

Dante, Paradiso, X.97-99.

Illustration of the First Circle of Wisdom in by Giovanni de Paolo

(Albert the Great is to the right of St. Thomas, with a crosier and Dominican habit)

There, accompanying St. Thomas, St. Albert the Great greets Dante and Beatrice. And these two great intellectual lights are joined by such other sages as Siger of Brabant, Boethius, Gratian, Peter Lombard, Dionysius the Areopagite, Orosius, St. Isidore of Seville, the Venerable Bede, Richard of St. Victor, even King Solomon.

From the poetic dalliances of Dante with heaven, let us turn return to earth, and to history. St. Albert the Great (ca. 1200 - 1280) is one of the great figures of the medieval Church. Haling from Lauingen in Swabia, Germany, Albert joined the Dominican order, devoted himself to philosophy and theology, taught St. Thomas Aquinas, was at the forefront of the Aristotelian revolution, became a provincial of the Dominican Order, was appointed bishop of Regensburg, and managed to to write numerous works, so that his opera omnia filled thirty-eight volumes when aggregately published by Borgnet. And as if that was not enough, he was canonized a saint, and then recognized as a Doctor of the Church, the Doctor Universalis.

Son of a family of lesser nobility, a traditionally military family that was in the service of the counts of Bollstadt, Albert was born sometime between 1193 and 1200 in Lauingen, in Swabia. Under the care of his uncle, Albert studied liberal arts at Padua. Against the desires of his family, in 1223, at a young age, he joined the relatively new Order of Preachers founded by St. Dominic. He was sent by his order to the Dominican house in Cologne, there to complete his novitiate and study theology, and where later in 1228, after becoming a lector, he also lectured. He also lectured at Regensburg, Freiburg, Strasburg, and Hildesheim. In 1245 he went to Paris, obtained his master in theology, and there taught the young Thomas d'Aquino. In 1248, his order sent him back to Cologne, accompanied by Thomas d'Aquino and other friars. Between 1254 and 1257, he served as Provincial of the Dominican Order for the Province of Teutonia, and in that capacity oversaw more than thirty-six priories for men, and twenty cloisters of nuns, handling his visitation on foot. He was allowed to resign that office in 1257, and returned to Cologne to study and to teach. In 1260, however, Pope Alexander IV appointed him bishop of Regensburg, and office he accepted unwillingly. Refusing to ride a horse (in conformity with his vows as a Dominican), Bishop Albert earned the sobriquet, episcopus cum bottis, the bishop with walking boots. After devoting himself sedulously to his duties as bishop, Albert asked to resign, a request granted by Alexander IV's successor, Urban IV. In 1263, he was ordered to preach the Crusade, and he did so again on foot, until the end of his commission upon the death of Urban IV. The rest of his life (at least until his memory and intellect failed him when he was an octogenarius et amplius) Albert devoted to studying, writing, and lecturing. (See generally, J. A. Weisheipl, O.P., "The Life and Works of St. Albert the Great," in Albertus Magnus and the Sciences: Commemorative Essays 1980 (Toronto: Pontifical Institute of Mediaeval Studies, 1980), 13-52).

Albert's intellect was prodigious, and the corpus of his works is concomitantly massive. When the majority of them were collected in 1899 by the editor Borgnet, they amounted to thirty-eight volumes, and cover all sorts of areas, from astrology to zoology.

Albertus Magnus by Fra Angelico

Albert the Great expressly addressed himself to the natural law, most notably in his Summa de bono (which is the third part of his Summa de creaturis), written around 1242. He also addresses the topic at some length in his Commentary on the Nicomachean Ethics which was transcribed between 1248 and 1252 (by his student St. Thomas). Finally, he approaches the subject in his Ethica, which was composed later than 1260. Crowe, 120-22. Nevertheless, "De bono contains the most thorough and technically elaborated treatment of natural right and law within the entire Albertinian corpus . . . ." Stanley B. Cunningham, Reclaiming Moral Agency: The Moral Philosophy of Albert the Great (Washington, D.C., CUA 2008), 207. Albert the Great's contributions to the natural law are many, but the most important are surely his teaching on the natural law (ius naturale) as a habitus, and his teaching on synderesis and conscience and their role in the syllogism of practical reasoning. Another significant contribution is his distinguishing between law (lex) and right (ius). Equally important is Albert the Great's insistence that the natural law was a law of reason, and therefore was not one in which brute animals shared. Included in this view was his unequivocal rejection of the Roman jurist Ulpian's definition of natural law, adopted uncritically by-and-large by the Canon lawyers, the so-called Decretists. In their definition of the natural law, they included, at least in its fringes, the brute animals.

In the next few blog postings, we will review St. Albert the Great's contributions to the natural law. We will in particular focus upon his treatment of the natural law in his early work De bono. We will pay special attention to the Albertine notion of the natural law as habitus, and his teaching on the role of conscience and syllogism of practical reasoning, perhaps St. Albert the Great's greatest contributions in the area of natural law. We will review the Albertinian distinction between right (ius) and law (lex). We will also address the issue that St. Albert had with the definition of the natural law that had been inherited from the Roman jurisconsult Ulpian.

Albertus Magnus, Fresco by Tommaso da Modena

In his Apostolic Letter where he declared St. Albert as patron of the natural sciences, Pius XII described Albert the Great as a "beacon shining in a world engulfed in gloom." In his mutual trust of both reason and faith, and in his eagerness to study the natural and supernatural sciences, St. Albert set an example "even in his own day, when many, puffed up with a hollow science of words, were turning their eyes away from the things of he spirit." Therefore, this great thinker and great believer teaches us moderns "how we should rather mount from the things of earth to the things above." More recently, Pope Benedict XVI echoed the encomium of his predecessor regarding Albert the Great. In a general audience on March 24, 2010, Pope Benedict XVI said the following: "St. Albert the Great reminds us that between science and faith there is friendship, and that the men of science can undertake, through their vocation to the study of nature, a genuine and fascinating journey of sanctity." It would be an improvement indeed if those who advanced the science of law, that is our law professors, judges, and lawyers, were to look toward St. Albert the Great, and to the student was no lesser genius, St. Thomas Aquinas, for their guidance on how to think, how to believe, how to live, and how to love.