1. Introduction The Aristotelian Causes and Law in Aquinas, p. 1.

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1 STEP - St. Thomas Education Project Rediscovering the Roots and the Common Values of Western Culture: The Concept of Law in Thomas Aquinas Palermo, October 25-29, Introduction Natural Law Among the Other Laws in Aquinas s Treatise Friday, October 28, 15:30am Robert A. Gahl, Jr. gahl@pusc.it Pontifical University of the Holy Cross (Provisional Draft ) At the previous STEP Conference, last month, at the International University of Catalonia, in my paper The Aristotelian Causes and Law in Aquinas, I proposed reading the Treatise on Law through the lens of the four causes developed by Aristotle in Book II of the Physics. In that paper, I proposed that the four articles of Question 90 of the Prima Secundae offer five causal components required for a full account of Aquinas s concept of law. According to my proposal, the material cause of law is the subject of the law, the community ordered to the common good. The formal cause of law is its rationality (the ratio legis), the reasonable order promoted by the law. The principal efficient cause of law is the authority who makes the law through competent legislation. The instrumental efficient cause is the promulgation of the law. And the final cause is the common good promoted by the law s rational ordering. At that recent Conference in Barcelona, I mentioned that my proposal regarding the four causes in Aquinas s legal theory was motivated by a twofold purpose. First, my proposal aims to rediscover the philosophically valid balance among the three foci of Thomistic natural law: the anthropic, epistemic, and theonomic dimensions of natural law. These three foci constitute natural law insofar as it is in human nature, insofar as it is in human reason, and natural law insofar as it is from God. To achieve such a balance between the natural, rational, and divine dimensions of natural law, I proposed that each one of Aristotle's causes can be mapped to the constitutive components of Aquinas s account of natural law in the following manner. The material cause of natural law is the community of all human beings. The formal cause of natural law is its ratio legis, that is, its practical reasonableness. The principal efficient cause of natural law is the divine Legislator. Regarding the more complex, instrumental efficient cause, natural law is promulgated by God s creation of human nature and by each human being s coming to know the demands of natural law through the use of his natural light of reason aided by experience, especially by the experience of models of virtue within one's community. And finally, the final cause of natural law is the common good of humanity. Second, my proposal regarding the four causes aims to offer a helpful basis for recovering the delicate balance between the natural exigencies of the law of nature and the necessity of divine aid to fulfill those exigencies. That is to recover the balance between nature and grace within the Treatise on Law. 1 1 The Aristotelian Causes and Law in Aquinas, p

2 Since this Conference aims to rediscover "the Roots and the Common Values of Western Culture and Western Culture has, with few exceptions, entailed the existence of a divine foundation, I find this a most appropriate occasion to offer a further development of my proposal regarding the four causes and their theological implications for Aquinas theory of law. In the conclusion of my paper in Barcelona, I sketched a controversial, Christocentric proposal for situating natural law within Aquinas' Treatise on Law. Here I will first offer a clarification of some of the implications of the proposal that I made in Barcelona regarding the presence of the four causes in the Treatise and then I will offer a more developed description of that sketch of a Christocentric reading of natural law among the other laws in Aquinas s Treatise. 2. Participation: Law in Nature, Law in Reason, and Law from God In the discussion that followed my paper in Barcelona, a few scholars (two in particular) advanced objections against my application of the Aristotelian doctrine of causality to Aquinas s natural law theory. My (mostly friendly) objectors offered challenges from two entirely different directions but both rejected my claim that the subjects of natural law are its material cause. One objector (Josep Corcó) contended that the natural law, as a law of reason, cannot be materially caused by the nature of an animal such as the human being. Another (Fulvio di Blasi) contended that natural law is no different from the eternal law, but simply the human s participation in it. Therefore, he concluded (and expounded further in our ongoing discussion) that, since the natural law is the eternal law nothing other than it the natural law can have no material cause because there is no potency in God. By responding to these two objections, my aim is to further advance the balance between the three foci of Thomistic natural law. Aquinas' neo-platonic and Aristotelian metaphysics of participation, along with his explanation of the ruler and the ruled, offers the basis for my response to the two objectors. 2 First, regarding the objection that emphasizes the rational character of natural law, I appeal to the hierarchy of ruler and ruled offered in the Treatise. 3 The natural law that guides the perfection of humans is most properly a work of reason, even a proposition, and yet, it can also be said to be in the lower inclinations insofar as they are ruled by the rule offered by human understanding. For example, although 2 For Aquinas' reliance on both Plato and Aristotle in order to effect his marvelous metaphysical synthesis, see, for example: ST, I, q. 44, a. 1: "Necesse est igitur omnia quae diversificantur secundum diversam participationem essendi, ut sint perfectius vel minus perfecte, causari ab uno primo ente, quod perfectissime est. Unde et Plato dixit quod necesse est ante omnem multitudinem ponere unitatem. Et Aristoteles dicit, in II Metaphys., quod id quod est maxime ens et maxime verum, est causa omnis entis et omnis veri, sicut id quod maxime calidum est, est causa omnis caliditatis." 3 See for example: ST, I-II, q. 90, a. 1, ad 1: "lex sit regula quaedam et mensura, dicitur dupliciter esse in aliquo. Uno modo, sicut in mensurante et regulante. Et quia hoc est propium rationis, ideo per hunc modum lex est in ratione sola. Alio modo, sicut in regulato et mensurato. Et sic lex est in omnibus quae inclinantur in aliquid ex aliqua lege; ita quod quaelibet inclinatio proveniens ex aliqua lege, potest dici lex, non essentialiter, sed quasi participative. Et hoc modo inclinatio ipsa membrorum ad concupiscendum 'lex membrorum' vocatur." and 94, a. 2, ad 2: "Ad secundum dicendum quod omnes inclinationes quarumcumque partium humanae naturae, puta concupiscibilis et irascibilis, secundum quod regulantur ratione, pertinent ad legem naturalem, et reducuntur ad unum primum praeceptum, ut dictum est. Et secundum hoc, sunt multa praecepta legis naturae in seipsis, quae tamen communicant in una radice." - 2 -

3 the natural law is most properly in human reason, it is also in the concupiscible appetite insofar as it is ordered to partake in pleasurable goods within the due moderation mandated by the rule offered by reason. If one habitually desires just the right amount of ice cream (or Sicilian cassata), then the natural law is in the concupiscible appetite that is constantly ruled and measured by right reason. Moreover, to respond to my "rationalist" objector, human reason is the principal and proper part of human nature. Therefore, to assert that the material cause of natural law is the human being is simply to claim that human understanding and, with it, all other human inclinations are meant to be configured, or informed, by the order of reason that is the natural law. An individual human being is not fully in compliance with the natural law unless all of his inclinations are habitually ordered according to the legal requirements of right reason. Second, to respond to the objector who emphasizes the participation of the natural law in the eternal law, I appeal to Aquinas' metaphysics of participation as applied to creation. Clearly, creatures do exist. Clearly, at least from any perspective but the pantheistic, creatures are not the same thing as God. We are from God and we participate in his transcendent perfection. "Everything that is in any way is from God." 4 Only God is his very being: "ipusm esse per se subsistens". All other things are not their very being. Rather, creatures participate in being, the being that they have received from their Creator. 5 Natural law is different from the eternal law. Contrary to the claims of my objector, on Aquinas' account, they are not the same thing. 6 Natural law exists in creatures. Natural law came to be with the creation of Adam and Eve. And yet, since natural law participates in the eternal law, the practical order promoted by natural law eternally exists in the mind of God as an element of the eternal law. Human right reason and human inclination according to the rule and measure of right reason are not identical in being with the eternal law. They contingently exist in time within creatures while, of course, participating in the eternal order known by God. The second objector, the one who defends the divine character of natural law, (since I know him well) might persist by appealing to another text in the Treatise, q. 92, a. 1, because it locates law in the authoritative lawgiver. "Law is nothing but the dictate of reason in the presider who governs the subjects." 7 Granted, the ultimate authority of natural law is the Creator and nature's ordering of reason is ultimately found in Him. Nonetheless, two other considerations should be taken into account. First, if natural law is in nature and is created, it cannot principally exist from all 4 ST, I q. 44 a. 1: "omne quod quocumque modo est, a Deo esse." 5 ST, I q. 44 a. 1: "Deus est ipsum esse per se subsistens. Et iterum ostensum est quod esse subsistens non potest esse nisi unum, sicut si albedo esset subsistens, non posset esse nisi una, cum albedines multiplicentur secundum recipientia. Relinquitur ergo quod omnia alia a Deo non sint suum esse, sed participant esse." 6 Many Thomistic texts point to the difference in being between the natural and the eternal laws. See, for example, De decem praeceptis, "Prima dicitur lex naturae; et haec nihil aliud est nisi lumen intellectus insitum nobis a Deo, per quod cognoscimus quid agendum et quid vitandum. Hoc lumen et hanc legem dedit Deus homini in creatione.... dicit propheta in Psal. IV, 6: multi dicunt: quis ostendit nobis bona? Quasi ignorent quid sit operandum. Sed ipse ibidem 7, respondet: signatum est super nos lumen vultus tui, domine: lumen scilicet intellectus, per quod nota sunt nobis agenda. Nullus enim ignorat quod illud quod nollet sibi fieri, non faciat alteri, et cetera talia. Sed licet Deus in creatione dederit homini hanc legem, scilicet naturae," 7 ST, I, q. 92, a. 1: "lex nihil aliud est quam dictamen rationis in praesidente, quo subditi gubernatur." - 3 -

4 eternity in the immutable mind of God. Unless, of course, you were to hold an idealist Platonic metaphysics, entirely at odds with Aquinas' doctrine of participation, which is at once Platonic and Aristotelian. Second, in the Prologue to the Prima Secundae, that constitutes a programmatic declaration for this whole Part of the Summa, Aquinas affirms that the human being is made in the image of God. Aquinas even speaks of us as examples of God, while affirming that our divine likeness principally consists in our having intellect, free will, and power over our selves. 8 Thus, the human being is at once governed by God's eternal law and self-governed through the dominion of right reason. As John Paul II's Veritatis Splendor felicitously expressed it, natural law is "participated theonomy". 9 Russell Hittinger, in his Aquinas Lecture "Thomas Aquinas and the Rule of Law", persuasively argued that the coercive threat of vis coactiva is not an essential characteristic of Thomistic law, but rather one of its acts and one of its accidental properties. Force is not an essential feature of law. Moreover, as Hittinger summarized, "The ruler is exempt from the law as to its coercion. He cannot coerce himself. But this leaves entirely intact the primary predicate of law, regarding which the ruler is not exempted." 10 Hittinger's contention helps clarify how human reason is at once ruler and ruled. As natural ruler, reason is exempt from the coercive power of natural law. But reason exercises such coercion over the lower inclinations. Nonetheless, insofar as reason is ruled, it is, of course, subject to the coercive power of eternal law by means of the threat of punishment with the loss of eternity either temporarily through the loss of purgatory or definitively through damnation. Natural reason can come to know that by rejecting divine authority in nature's intelligible order, reason risks losing the possibility to participate in the eternal life that only God can grant. Perhaps the perspective of the formal cause can summarize the balance among the foci provided by viewing law through the lens of the four causes. The formal cause of natural law, once known and commanded by reason, shapes (and informs) the whole of human nature, body and soul. Even prior to our coming to know that form, it was present. From all eternity, in God's understanding of human perfection. Our task is to use our natural lights in order to know the divine demands and to effect them in our acts and habits. 3. Nature s Need for the Old and the New Laws But is nature enough for human happiness? Can human beings achieve their longing for eternal life without divine aid? To address the debate regarding the natural and the supernatural end in Aquinas would require a much longer lecture than we 8 ST, I-II, Prologue: "Quia, sicut Damascenus dicit, homo factus ad imaginem Dei dicitur, secundum quod per imaginem significatur intellectuale et arbitrio liberum et per se potestativum; postquam praedictum est de exemplari, scilicet de Deo, et de his quae processerunt ex divina potestate secundum eius voluntatem; restat ut consideremus de eius imagine, idest de homine, secundum quod et ipse est suorum operum principium, quasi liberum arbitrium habens et suorum operum potestatem." 9 Veritatis Spendor, 41: "Human freedom and God's law meet and are called to intersect, in the sense of man's free obedience to God and of God's completely gratuitous benevolence towards man.... Others speak, and rightly so, of theonomy, or participated theonomy, since man's free obedience to God's law effectively implies that human reason and human will participate in God's wisdom and providence. " 10 Draft of "Thomas Aquinas and the Rule of Law" presented in Palermo on October 26, 2005, p

5 have time for here. 11 So I will address the issue only from the perspective of the relationship among the laws as described towards the end of the Prima Secundae. But before entering into the Treatise on Law, the Thomist should take into account the article of the Summa that immediately precedes the Treatise, the very last article of the Treatise on Sin: q. 89, a. 6. In this text, often referred to as the fundamental option article, while taking into account that all human beings are infected by original sin, Aquinas argues that if the non-baptized does that which nature requires of him "faciens quod in se est", and orders himself to his due end, he will receive the remission of sin and grace. 12 Later, in the Treatise on Law, Thomas clarifies that all of those who do (or have done) that which is in them by nature and turn towards their due end, whether or not they have been baptized, are under the new law of Jesus Christ. 13 For Aquinas, moral perfection always entails the new law. On account of original sin, that is, because of the fall, nature is not enough for us to gain even our natural end. We are all in need of grace. Nonetheless, in q. 91, a. 4, when considering the necessity of divine law in its two forms, the law of Moses and the new law of Christ, Aquinas offers four reasons why we are in need of divine law. He does not include the consideration that, in our fallen state, grace is needed for natural perfection. Perhaps he sees no need to rehash the claim carefully argued at the very end of the preceding Treatise. Rather, he focuses his argument on how the divine law is needed in order for us to reach our supernatural aim. Divine law is needed for four reasons. 1) We are ordered to the end of eternal beatitude that exceeds all proportion to our natural faculties. 2) Human judgment is prone to incertitude and error. 3) Human law is an inadequate aid because it is incapable of ordering our interior acts. And, 4) human law is incapable of prohibiting and punishing all human evil. If the new law is needed for the natural law to reach its perfection, then what is the role of the old? The old law prepares the way for the new as a pedagogue prepares a child for maturity. The old law is imperfect, the new, perfect. 14 Like natural law, the old law makes demands that cannot be fulfilled without the aid of the new law which both instructs and aids with divine power. Yet, unlike natural law, the old law is superseded by the more perfect, new law. Surely, those requirements of the old law, that are inherent to natural law, always remain valid, but only because they belong to the natural law, not because they were handed down by God to Moses for his chosen 11 For an excellent summary of the Thomistic debate and a strong defense of the distinction between the natural and the supernatural ends, see Lawrence Feingold's Dissertationes, Pontifical University of the Holy Cross, Roma. 12 See ST, I-II, q. 89, 6: "Cum vero usum rationis habere inceperit, non omnino excusatur a culpa venialis et mortalis peccati. Sed primum quod tunc homini cogitandum occurrit, est deliberare de seipso. Et si quidem seipsum ordinaverit ad debitum finem, per gratiam consequetur remissionem originalis peccati. Si vero non ordinet seipsum ad debitum finem, secundum quod in illa aetate est capax discretionis, peccabit mortaliter, non faciens quod in se est. Et ex tunc non erit in eo peccatum veniale sine mortali, nisi postquam totum fuerit sibi per gratiam remissum." 13 See, for example, ST, I-II, q. 98, a. 2, ad 4: " quamvis lex vetus non sufficeret ad salvandum hominem, tamen aderat aliud auxilium a Deo hominibus simul cum lege, per quod salvari poterant, scilicet fides mediatoris, per quam iustificati sunt antiqui patres, sicut etiam nos iustificamur. Et sic Deus non deficiebat hominibus quin daret eis salutis auxilia." and ST, I-II, q. 106, a. 1: "Ad tertium dicendum quod nullus unquam habuit gratiam spiritus sancti nisi per fidem Christi explicitam vel implicitam. Per fidem autem Christi pertinet homo ad novum testamentum. Unde quibuscumque fuit lex gratiae indita, secundum hoc ad novum testamentum pertinebant." 14 See, for example, ST, I-II, q. 91, a

6 people. 15 The imperfect and the perfect requirements of the old and the new have their one common counterpart in the natural law whose exigencies remain the same throughout the history of salvation. 16 Both the old and the new laws serve to aid human fulfillment of natural law while pointing to a higher happiness. The old law prepares the way for the new by teaching through irony the impossibility of its own fulfillment according to its own terms Christ and the Four Causes Since all who fulfill the demands of natural law are aided by grace and are, therefore, under the new law of Jesus Christ, whether by implicit or explicit faith in him, the application of the four Aristotelian causes to the Treatise on Law leads to further, even fascinating implications regarding the Christocentrism of all law, including natural law. In fact, if the four causes of natural law are considered while taking into account the fact that natural law may only be fulfilled with the aid of the sanctifying grace of Jesus Christ, whether received through the sacrament of baptism or by less visible means, the person of Jesus Christ can be seen in each of the four causes. God Incarnate lives in every human being who achieves natural perfection. Or, in other words, only by becoming one with Christ (alter Christus) can one live in accord with human nature. Consequently, only the human being configured in Christ as an adopted son or daughter of God can conform to the demands of natural law. Thus, the material cause of the fulfillment of the natural law is the human being configured by grace in Christ. As Perfectus Homo, Christ is the archetype or principal exemplar, formal cause in Whom the natural law is perfectly informed. Since it is only through the aid of sanctifying grace that one can perform acts of charity, and as Aquinas states in q. 100, a. 3, ad 1, to love God above all things is the first precept of natural law, it is only through the aid of the efficient causality of grace that one can conform to natural law. 18 Thus, Christ acting in the human as efficient cause of right action is the efficient cause of the fulfillment of natural law. And, more specifically, regarding the efficient causality of legislation and promulgation, parallel to the divine Father's promulgation of the eternal law in his begetting of the Son, the natural law is most properly legislated in the Humanity of the Incarnate Son. Moreover, the promulgation of natural law is made fully knownable in the Humanity of Jesus Christ. Finally, full attainment of the end and purpose of natural law may only be achieved by identification with Christ by means of the beatific vision. Natural law orders us to God as our end. Communion with Him may only be achieved by that end which far surpasses the deepest yearnings of our nature. 15 See ST, I-II, q. 98, a See ST, I-II, q. 91, a. 5, ad 3: "Ad tertium dicendum quod lex naturalis dirigit hominem secundum quaedam praecepta communia, in quibus conveniunt tam perfecti quam imperfecti, et ideo est una omnium. Sed lex divina dirigit hominem etiam in quibusdam particularibus, ad quae non similiter se habent perfecti et imperfecti. Et ideo oportuit legem divinam esse duplicem, sicut iam dictum est." 17 Although Aquinas does not use the term "pedagogy of irony", for a strong basis for such terminology see, for example, I-II, q. 98. a. 2, ad 3: "Deus aliquando permittit aliquos cadere in peccatum, ut exinde humilientur. Ita etiam voluit talem legem dare quam suis viribus homines implere non possent, ut sic dum homines de se praesumentes peccatores se invenirent, humiliati recurrerent ad auxilium gratiae." See also Thomas S. Hibbs, "Divine Irony and the Natural Law: Speculation and Edification in Aquinas," International Philosophical Quarterly, 30, 4 (1990) ST, I-II, q a. 3, ad 1: "illa duo praecepta sunt prima et communia praecepta legis naturae, quae sunt per se nota rationi humanae, vel per naturam vel per fidem. Et ideo omnia praecepta Decalogi ad illa duo referuntur sicut conclusiones ad principia communia." - 6 -

7 To put it more succinctly, Aquinas' theory of natural law is deeply integrated within a theology of salvation that, while always attentive to the theoretical distinction between that which is proper to nature and that which is proper to grace, nonetheless contends that any human who succeeds in complying with the exigencies of the natural law does so only insofar as he satisfies the following four requirements. 1) He is configured by the grace of Christ into a son (or daughter) of God, sanctified by the justification won by Jesus Christ. 2) He resembles Jesus Christ in his action. 3) He is assisted by the grace won by Jesus Christ. And 4) He achieves union with Jesus Christ. A small minority of Thomistic scholars (perhaps all of them non-catholic Christians), such as Eugene Rogers, have claimed that, for Aquinas, nature is so irremediably wounded by original sin, that natural law is inadequate to guide the moral life. For Rogers, the new law supplants the natural law as moral guide. 19 A much more common, but also extreme position among Thomists is the claim that natural law may be fulfilled without the aid of grace or the instruction of the new law. One of the more influential, albeit extremely vexed, versions of this position was tentatively proposed by Francis de Vitoria in his Relección, De Eo Quod Tenetur. Neither of these alternative readings does justice to the intricate integration and careful distinction between nature and grace effected by Aquinas in the Treatise. One very useful way of uncovering this marvelous integration within the thought of Aquinas, is by taking into account the Augustinian, narrative structure of his anthropology and its integration within the narrative of the history of salvation as the dramatic story in which we are all, very currently, very active characters. St. Josemaría Escrivá captured this drama and the divine import of our moral lives when he asserted "for you the moment has arrived to play out a human comedy before a divine spectator... Our interior life involves no more show than this, it is Christ who is passing by quasi in occulto." Eugene F. Rogers, Jr., "The Narrative of Natural Law in Aquinas' Commentary on Romans 1," Theological Studies, 59, 2 (June 1998) For an enlightening discussion of Rogers' position see Jean Porter, Natural & Divine Law: Recolaing the Tradition for Christian Ethics, Ottawa, Novalis, 1999, Friends of God,