Jonathan McIntosh (Ph.D., University of Dallas) is a Fellow of Humanities at New Saint Andrews College in Moscow, Idaho, where he teaches on the history of western political and economic thought, philosophical theology, natural law ethics, Aquinas, Anselm, and J.R.R. Tolkien. He is the author of The Flame Imperishable: Tolkien, St. Thomas, and the Metaphysics of Faërie, and blogs at The Natural Law Libertarian and The Flame Imperishable.
In this series of posts we have been undertaking a libertarian evaluation of one of history’s most important political writings, the Summa Theologiae’s “Treatise on Law,” by one of history’s most important political thinkers, St. Thomas Aquinas (1225-1274). After defining what law is (law is an ordinance of reason, for the common good, made by one with authority, and promulgated), and after classifying its major species (eternal law, natural law, human law, and divine law), Aquinas turns next to the main effects of law. What is it, exactly that law does? Aquinas’s answer, in summary, is that, first, law makes men good, and second, that law does this by four principal activities, namely commanding, prohibiting, permitting, and punishing actions. We will examine his arguments for each of these answers in turn, as well as what a libertarian response to them might be.
According to Aquinas, the proper effect of law is to make men good (ST I-II.92.1). On the face of it, his view might seem anti-libertarian, yet as we shall see, the exact relationship is somewhat more complicated than this. Aquinas bases his argument with his earlier definition of law: law is a command of reason made by a ruler or lawgiver (whom he also identified as either the whole community or its appointed representative). Law, then, involves a relationship of ruler and subject. From here, Aquinas makes observes that if there is a relation of ruler and subject, then there must be a specific virtue or excellence that is proper to the subject as subject, a virtue, that is, by which an individual’s subjection to his ruler is made perfect or complete.
While the idea of being properly subjected to one’s ruler might, to the libertarian, sound less like a virtue than a vice, the idea itself is not, in fact, incompatible with libertarianism. The first thing to note is that the virtue Aquinas has in view, at least at this initial stage in his argument, does not concern moral virtue in general, but only the very limited and specific virtue of simply being appropriately obedient to one’s ruler, a virtue that, as Aquinas himself will later acknowledge, would also involve being appropriately disobedient if the law or lawgiver were in fact unjust. And even the libertarian might allow that, provided the law is just, prohibiting only acts of aggression against others, there would or at least could be such a thing as the virtue or moral perfection on the part of subjects in being rightly subordinate to such just laws.
Where the disagreement begins to arise, rather, is also, significantly, where the logic of Aquinas’s argument begins to break down. From the unobjectionable claim that the virtue of a subject as subject lies in his being properly subordinated to his ruler or lawgiver, Aquinas draws the conclusion that law must therefore aim at being obeyed by those who are subject to it. But this doesn’t follow, nor does it seem to be strictly true. While laws are made, to be sure, with the expectation that they will be kept, this is not the same thing as saying that they are made for the purpose of being kept. What is more, to say that every law “aims” at being obeyed is to imply that law-keeping or one’s subjection to law is an end or good for its own sake, rather than the mere means to an end.
Aquinas’s argument only gets more confusing from here. From the above conclusion that law aims at making its subjects obedient to it, Aquinas next infers that the proper effect of law is therefore to lead its subjects to their “proper virtue.” What does he mean by the “proper virtue” aimed at by law? Where initially it was merely the very limited virtue of a subject as a subject, Aquinas now asserts that, because law aims at the “true good,” it does not aim at making men good merely “relatively,” that is in a particular way or with respect to a particular good, but aims instead at making men good “simply” or “absolutely,” that is, without qualification. Thus, from the unobjectionable starting point that law makes men good in that limited respect in which men are subjects, he arrives at the illegitimate conclusion that law makes men good in that complete or total respect in which men are men.
For the libertarian, accordingly, the real objection to Aquinas’s thesis lies not with his view that law makes men “virtuous” or “good” in itself, but, first, in his suggestion that law exists for its own sake by making men good at keeping law; and second, in his unwarranted assumption that the good or virtue that law properly aims at is the “true good,” i.e., the highest good and happiness of the community. But for the libertarian, once again, the end of coercive human law is not (and cannot be) the common good of communal well-being or happiness, but the much more limited, even if necessary and contributory, good of protecting the members of society from aggression against their persons and property.
The second effect of law that Aquinas addresses has to do with four operations of law that the ancient Romans had identified, namely commanding, prohibiting, permitting, and punishing (ST I-II.92.2). What Aquinas does, somewhat ingeniously, is correlate these four Roman categories of the operations of law with the three possible moral states that an action can have. An action is either (1) inherently good, in which case law commands it; (2) inherently evil, in which case law prohibits it; or (3) morally neutral or indifferent (i.e., it can be either good or evil, circumstances depending), in which case law permits it. And in each case, finally, whether law commands, prohibits, or permits an action, what distinguishes law is that it is “the fear of punishment that law makes use of in order to ensure obedience,” making punishment to be the fourth effect of law.
Ingenious as it may be, Aquinas’s account suffers from a problem, which is that it’s simply not the case, even for Aquinas, that law commands an action when it is inherently good, prohibits an action when it is inherently evil, or permits an action when it is morally indifferent. On the contrary, for Aquinas there are many inherently good actions which law does not command, many inherently evil actions which law does not prohibit, and many morally indifferent actions which law often does not permit. What this means is that, of itself, the moral status of an action tells us nothing about whether law does or ought to command, prohibit, or permit that action. What determines an action’s relationship to law, accordingly, must be determined on some other, independent grounds that Aquinas, at least in the present passage, does not specify.
For the libertarian, by contrast, because of law’s coercive nature, whether an action is to be commanded, prohibited, or permitted by law has less to do with the moral status of the action in the abstract, than it does with whether the action involves aggression against the person or property of others. For this reason, it would seem that, of the four activities of law listed by Aquinas, it is actually only the fourth one, punishment, that is in fact a distinctive or proper effect of law as law.