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.
Thus far in our libertarian study of St. Thomas Aquinas’s famed “Treatise on Law,” we have seen Aquinas define law as an ordinance of reason, for the common good, made by one with authority, and promulgated; distinguish four principal kinds of law—eternal law, natural law, human law, and divine law; and address the principal effects of law as that of making men to be good, and of commanding, prohibiting, permitting, and punishing human action. In the next chapter of his study of law, Aquinas returns to take a more detailed examination of the different kinds of law, beginning with eternal law. In so doing, he provides us yet another opportunity to reflect on the relationship between libertarianism and the eternal law.
The eternal law, Aquinas reminds us, is simply the providential pattern by which God, as the supreme artisan and governor of everything that exists, wisely directs the activity or operations of all his creatures towards their respective ends (ST I-II.93.1). And although God’s eternal law for creation as it exists in the mind of God remains an unfathomable mystery to man, it is nevertheless something eminently knowable to man insofar as it is “reflected” and “participated” in by God’s creaturely effects (ST I-II.93.2). Indeed, insofar as it is the eternal law that regulates all of existing reality, giving each creature its determinate nature and stable, dependable, and hence intelligible structure, to know anything at all is ultimately to know something of God’s eternal law.
Of special interest to us here, however, is Aquinas’s question as to whether all other laws, including human law, are or are to be derived from God’s eternal law (ST I-II.93.3). What he says is that human law has the nature of law only so far as it partakes of the ultimate rationality of the eternal law, and that insofar as human law deviates from the right reason of the eternal law, it is an unjust law and actually “has the nature, not of law, but violence.” This is significant: earlier in his Summa Theologiae, Aquinas had defined violence as any movement of a thing that is contrary to its natural inclination, and he had defined coercion in particular as that form of violence that seeks to move a specifically rational being contrary to the inclination of his own will (ST I.82.1). What Aquinas gives us to understand here, accordingly, is that unjust laws are not only contrary to reason because of their legislative content, but due to law’s inherently coercive nature, they are also a matter of violence, inasmuch as they seek to move human beings contrary to their free, rational nature.
In addition to what it commands and prohibits, eternal law also holds implications for what human law must permit. Following St. Augustine, Aquinas acknowledges that human law must permit many actions whose regulation properly belongs to the jurisdiction of God’s eternal law. Aquinas’s primary point, however, is that just because human law permits these things, it does not on that account necessarily approve of them, but may simply allow them as things that human law is unable or unqualified to direct or control. This distinction between permitting something and approving it is an important one for any proper understanding of libertarianism, for it reminds us that what is or ought to be legally permissible does not define or exhaust what is morally permissible. Thus, just because an action is legal does not mean that one therefore has a “right” to commit that action. Legal permission, rather, is less about what a person has a “right” to do than it is about the lack of right that anyone else, including those in civil government, has in using force to stop you from doing it. Eternal law, accordingly, and as Aquinas further implies, therefore determines not only that area where human law is to operate, but also that (much larger) area in which it is not to operate. Not only in what it regulates, therefore, but also in what it doesn’t regulate, human law is to be subject to and derived from the eternal law.
One place where Aquinas’s discussion of eternal law would seem to take an anti-libertarian turn is in the parallel he draws between the way in which God, by means of his eternal law, “imprints” on things the principle of their proper activity and the way human rulers are able to “impress” or “imprint” on the minds of their subjects their own “inward principle of action” (ST I-II.93.5). Human rulers, in short, are able to direct their subjects similar to the way that God does, by moving their own will or natural inclination to act in a desired way. This comes as something of a surprise, since in both earlier and, as we shall see, later passages, Aquinas characterizes human law as much more limited in its reach: working by the coercive means of punishment, human law, like the Old Law of the Hebrew Scriptures, is able to direct only the “hand” but not the “heart” or mind. In the present passage, by contrast, Aquinas adopts a much more optimistic and even paternalistic—if not ultimately idolatrous—posture according to which human law is able to act on and incline human beings to act in a way that only God can do.
The final point Aquinas wishes to make clear in regard to the eternal law is that all affairs of all humans at all times are subject to God’s eternal law, but that this universal subjection to the eternal law is nevertheless accomplished in different ways (ST I-II.93.6). While the good actions of men are subject to the eternal law in an absolute or unqualified sense, evil actions, while not subject to God’s eternal law at one level, nevertheless are not able to escape God’s eternal law at another level. Specifically, Aquinas points out that those who do evil cannot escape the negative consequences that have been decreed for and which inevitably follow their evil actions. The eternal law, accordingly, determines not only how human beings ideally ought to act, but also what the (God-ordained) natural and moral consequences are when they fail to act this way. The lesson to be appreciated by the libertarian here is that, not only must human law not try to govern human actions in a way that only God’s eternal law can do, but the reason eternal law is able to govern human actions is through its establishment of an objective, natural and moral causal order in which, whether in the short term or the long, good actions never escape reward and evil actions never escape penalty.
In the next post we will consider Aquinas’s deep-dive into his second category of law, that of the natural law.