Thomas Aquinas and the New Natural Law Theory on the Object of the Human Act

Thomas Aquinas and the New Natural Law Theory on the Object of the Human Act Rev. Kevin L. Flannery, SJ Abstract. The author offers, first, an account of St. Thomas Aquinas s Aristotelian-inspired understanding of the object of a moral act and of what morally that species contributes to the act of which it is a part. Then, with special (but not sole) attention to two passages in Aquinas cited frequently by the proponents of the new natural law theory that is, Summa theologiae 2-2.64.7 and the commentary on Peter Lombard s Sentences 2.40.1.2 the author argues that a close analysis of Aquinas s remarks on objects and intentions does not support the claim that the new natural law theory is Thomistic. National Catholic Bioethics Quarterly 13.1 (Spring 2013): 79 104. At the heart of the new natural law theory (NNLT) as propounded by Germain Grisez, John Finnis, and Joseph Boyle is their understanding of the object of a human act. They readily acknowledge that the theory itself contains many ideas that are not found in or at least not emphasized by St. Thomas Aquinas; but, in expounding their understanding of the object, they cite Aquinas repeatedly and sometimes engage in the exegesis of particular passages. The present article argues that any suggestion that their theory represents Aquinas s understanding of the object cannot be sustained. The article looks at NNLT s use of two passages in Aquinas: Summa theologiae (ST) 2-2.64.7 and Scriptum super Libros Sententiarum Magistri Petri Lombardi Rev. Kevin L. Flannery, SJ, is the former dean of the faculty of philosophy at the Pontifical Gregorian University in Rome and presently ordinary professor of the history of ancient philosophy in the same faculty. The author thanks John O Callaghan for his comments on an earlier draft of this essay, and Father Stephen Brock for years of conversation on these topics. 2013 The National Catholic Bioethics Center 79

The National Catholic Bioethics Quarterly Spring 2013 Episcopi Parisiensis (in Sent.) 2.40.1.2. 1 The passages, interpreted in a particular way, are invoked repeatedly over the course of the NNLT corpus, but here they are examined within two particular contexts: in two pieces of writing, appearing some eighteen years apart. The first context is chapter 9 of volume 1 Christian Moral Principles (CMP) of Grisez multivolume The Way of the Lord Jesus, published in 1983; the second is an article originally published in 2001 under the title, Direct and Indirect A Reply to Critics of Our Action Theory, by Finnis, Grisez, and Boyle. 2 But in order to assess the use of the two Thomistic passages, we must first know something about how Aquinas understands the object. That will occupy us for the first three sections of this essay, titled respectively, Aristotle and Aquinas on the Objects of Movements, The Relationship between the Interior and Exterior Acts, and What the Species Does and Does Not Do. 1 ST abbreviates Summa theologiae (Thomas Aquinas, Summa Theologiae, cura et studio Instituti Studiorum Medievalium Ottaviensis [Ottawa: Garden City Press, 1941]); in Sent. refers to Aquinas s commentary on Peter Lombard s Sentences (Thomas Aquinas, Scriptum super Libros Sententiarum Magistri Petri Lombardi Episcopi Parisiensis, ed. Pierre Mandonnet and Maria Fabianus Moos [Paris: Lethielleux, 1929 47]). Sent. refers to Lombard s work itself (Peter Lombard, Sententiae in IV libris distinctae, Spicilegium Bonaventurianum, vv.4 5 [Grottaferrata: Editiones Collegii S. Bonaventurae ad Claras Aquas, 1971 1981 (3rd edition)]). Besides the context treated in the present article (chapter 9 of the first volume of Grisez The Way of the Lord Jesus), ST 2-2.64.7 is either invoked or discussed at (among other places) Germain Grisez, Toward a Consistent Natural-Law Ethic of Killing, American Journal of Jurisprudence 15 (1970): 64 96; Joseph Boyle, Double- Effect and a Certain Type of Embryotomy, Irish Theological Quarterly 44 (1977): 303 318; Joseph Boyle, Praeter intentionem in Aquinas, The Thomist 42 (1978): 649 65; John Finnis, Fundamentals of Ethics (Washington, DC: Georgetown University Press, 1983), 85; Germain Grisez, The Way of the Lord Jesus, vol. 1, Christian Moral Principles (Chicago: Franciscan Herald, 1983), 158, 239; John Finnis, Joseph M. Boyle, and Germain Grisez, Nuclear Deterrence, Morality and Realism (Oxford: Clarendon, 1987), 309 319; John Finnis, Moral Absolutes: Tradition, Revision and Truth (Washington, DC: Catholic University of America Press, 1991), 56, 70, 75; and Germain Grisez, The Way of the Lord Jesus, vol. 2, Living a Christian Life (Quincy, Illinois: Franciscan, 1993), 468 469, 904 905. The passage from Aquinas s commentary on the Sentences, in Sent. 2.40.1.2, is also discussed at Finnis, Moral Absolutes, 65 66; John Finnis, Aquinas: Moral, Political and Legal Theory (Oxford: Oxford University Press, 1998), 143, 166; and John Finnis, Intentions and Objects, in Intention and Identity: Collected Essays, Volume II (Oxford: Oxford University Press, 2011), 165 166. All translations are the author s. 2 Grisez, Christian Moral Principles (to be referred to by means of the abbreviation CMP); John Finnis, Germain Grisez, and Joseph Boyle, Direct and Indirect A Reply to Critics of Our Action Theory, The Thomist 65 (2001): 1 44 (to be referred to as Direct and Indirect ). The latter has been republished with some changes (including a slight change of title) in Intention and Identity, volume 2 of Finnis s Collected Essays. I follow the pagination of the latter: John Finnis, Germain Grisez, and Joseph Boyle, Direct and Indirect in Action, in Intention and Identity: Collected essays, vol. 2 (Oxford: Oxford University Press, 2011), 235 268. 80

Flannery Aquinas and the NNLT on the Object of the Human Act I. Aristotle and Aquinas on the Objects of Movements Aquinas s understanding of the object of the human act comes largely from the fifth book of Aristotle s Physics, which has to do with change and movement the latter being understood very broadly, however, so that a piece of wood s being heated, for instance, counts as a movement. In the first chapter of that book, Aristotle discusses the various elements that go into movement, among which are the mover, the moved thing, that from which the movement comes, and that toward which it goes, as when a piece of wood comes from being cold to being hot: for every movement is from something and to something (224b1). So, it is clear, he says, that the movement is not in the wood nor in the form which latter term is also understood broadly, so that being warm is a form affecting the wood. The movement is not in the wood, since the wood remains wood; it is not in the form that is, the form that comes about, being heated since the form neither moves nor is it moved. (Being heated does not do anything and it always remains being heated.) What cause and suffer change are rather the mover, the thing moved, and that toward which it is moved. For it is with respect to that toward which, rather than that from which, that a change receives its name. 3 It is the latter element, that toward which (εἰς ὃ), which becomes in Aquinas the object. When someone sets out to change something to heat a piece of wood, for instance the object is a thing in a certain state: the wood (the thing), but the wood heated. In his commentary on this passage, Aquinas speaks of that toward which a movement heads as its terminus or, more precisely, its terminus ad quem. 4 The word terminus also invariably appears when Aquinas feels the needs to explain what an object is and what it does. 5 At ST 1-2.18.2, for instance, an objection to the thesis that the goodness or badness of an act comes from its object maintains that goodness comes not from an effect but from a cause. Since, therefore, an object, coming as it does at the end of an act, is a sort of effect, human acts do not have their goodness or badness from their object. The key idea in Aquinas s response is as follows: In so far as the object is in a way the effect of an active power, it follows that it is the terminus of its action and, as a consequence, it gives to it its form and species, since movement has its species from termini. 6 In making this remark, Aquinas clearly has in mind the passage from the fifth book of Aristotle s Physics (Phys.) quoted earlier. Indeed, the combined passages 3 ἡ δὴ κίνησις δῆλον ὅτι ἐν τῷ ξύλῳ, οὐκ ἐν τῷ εἴδει οὔτε γὰρ κινεῖ οὔτε κινεῖται τὸ εἶδος ἢ ὁ τόπος ἢ τὸ τοσόνδε, ἀλλ ἔστι κινοῦν καὶ κινούμενον καὶ εἰς ὃ κινεῖται. μᾶλλον γὰρ εἰς ὃ ἢ ἐξ οὗ κινεῖται ὀνομάζεται ἡ μεταβολή (Phys. v,1,224b4-8). Aristotle also notes in this remark that neither the place in which the change occurs nor the quantity associated with the change are what move or are moved. 4 Thomas Aquinas, In octos libros physicorum Aristotelis expositio, P. M. Maggiòlo (Turin: Marietti, 1965), 643. I use the abbreviation in Phys. for this work. 5 In Quaestiones disputatae de veritate 15.2c, in discussing the object of the human act, Aquinas speaks of termini and mentions explicitly Phys. v: Cum autem obiectum comparetur ad actum sicut terminus, a terminis autem specificentur actus, ut patet in V Phys., oportet quod etiam actus penes obiecta distinguantur; et ideo obiectorum diversitas, potentiarum diversitatem inducit. See also ST 1-2.72.3 ad 2. 6 Ex hoc autem quod obiectum est aliquo modo effectus potentiae activae, sequitur quod sit terminus actionis eius, et per consequens quod det ei formam et speciem, motus enim habet speciem a terminis (ST 1-2.18.2 ad 3). 81

The National Catholic Bioethics Quarterly Spring 2013 help us to understand what Aquinas means when he says, as he says often, that the object gives form and species to the exterior act. The distinction between the exterior act and the interior act will be considered more extensively in section II: for the moment, it suffices to say that the exterior act is what you do (intentionally), as opposed to the interior act of intending to do what you do. 7 As we have just seen, Aristotle says that it is from the terminus that a change receives its name. 8 His point is that the terminus allows us to classify a change or a movement: to put it into its proper species. The movement called being heated gets its name from that toward which the movement heads, the wood s being heated, rather than from the what it was before : cold. In the analysis of natural things, says Aquinas, it is a natural thing s substantial form that does this: the substantial form allows us to classify, for instance, a newly generated human being as a human being. 9 If the result of a potentially generative process has no human form, it is no human being. Similarly, the object (the terminus) of the exterior act allows us to classify it give it a name as the type of human act that it is. The human act of building a cabinet is a movement comprising a number of smaller movements. The terminus of the larger movement is the cabinet or, as we might put it, the wood in a certain state. If right from the beginning the smaller movements are not heading toward a cabinet (if that was not intended), we cannot call the larger movement building a cabinet. So, it is the cabinet which only appears at the end of the larger movement that gives form and species to the act of cabinet building. Both Aristotle and Aquinas are well aware, however, that the cabinet cannot give that species on its own; it can only do this if it comes at the end of a movement of a particular type. The same cabinet might be the terminus of an act of cleaning a cabinet or of buying a cabinet, for instance. Aristotle addresses this issue a couple of chapters later in the fifth book of the Physics, by way of a consideration of the unity of movements. He speaks of circular and rectilinear motion and of rolling and walking. 10 A point on a sphere, he suggests, might be moved to a particular spot either by turning the sphere or by shifting the sphere s position; or a person might get his body to the bottom of a hill either by rolling or by walking (Phys. v,4,227b14-20). So, the point on the sphere s being at a particular spot does not distinguish circular from rectilinear motion, nor does the person s body being at the bottom of the hill tell us by what species of movement he got there. In other words, that toward which 7 As Aquinas explains in ST 1-2.18.6, speaking of the exterior and interior act are two ways of looking at the same act. For a very good discussion of the issue, what gives species to an act, the object (that is, the object of the exterior act) or the intention (the object of the interior act), see Stephen L. Brock, Action and Conduct: Thomas Aquinas and the Theory of Action (Edinburgh: T & T Clark, 1998), 83 93. 8 Phys. v,1,224b7 8 (see above, note 3); see also v,5,229a25-26. Aquinas too speaks of naming at ST 2-2.59.2c: [operatio] recipit speciem et nomen a per se obiecto, non autem ab obiecto per accidens. 9 ST 1-2.18.2c. 10 Aristotle often mixes in this manner strictly physical movements with movements that are human acts. One of his central arguments regarding movements uses the example of teaching: see Phys. iii,3,202a31-b22 or viii,5,256b34-257a14. 82

Flannery Aquinas and the NNLT on the Object of the Human Act (εἰς ὃ) such a movement goes does not of itself determine the species: it does not give us the name of the movement. In order to have that, we have to consider the parts of the movement in question and determine what it is that holds them together. This will be the movement s species or form. If a man takes planks of wood, begins to saw them into particular lengths and widths, then joins them together in such a way that at the end of this series of movements there is a cabinet, we can call the whole movement the making of a cabinet as opposed to cleaning a cabinet or buying a cabinet. Since in this case, we are dealing with a human act, we should also mention that the man intends to build a cabinet, although it is unlikely that he could go through those individual movements without intending to build a cabinet. So, although it remains true that the object of this human act (its terminus or that toward which (εἰς ὃ) it goes) does give it its species if the man had no intention of building a cabinet, we could not call his action the building of a cabinet it does not do so on its own. It does so only in so far as it is the terminus of a unified act of that particular type. Because of this close connection between the object of a human act and that act s species, Aquinas not infrequently speaks of an object as it exists within the type of act of which it is the terminus. For example, in an article an aspect of which we have already considered, he remarks, Just as a natural thing has its species from its [substantial] form, so also an action has its species from its object, as does also a movement from its terminus. And so, as the first goodness of a natural thing depends upon its form, which gives to it its species, so also the first goodness of a moral act depends upon an appropriate object. 11... For instance, to use one s own thing [ uti re sua ]. And just as in natural things, the first evil is if the thing generated does not receive its specific form, for instance, if a man is not generated but something in place of a man, so also the first evil in moral actions is from the object, such as to accept things of another [ accipere aliena ]. (ST 1-2.18.2c, emphases added) I put the words one s own thing and things of another in italics in order to indicate that the objects in the two cases mentioned are not the actions to use (one s own thing) and to accept (things of another) but rather the things that is to say, the things in the state of being used or accepted. If it is true that Aquinas not infrequently speaks of an object as it exists within its act, he is not at all hesitant to speak of it as simply a thing ( res ): the terminus of an action, as opposed to the action itself. In ST 1-2.72.1, for instance, an objector argues that objects cannot specify sins since it is possible for the same sin to have widely diverse objects: pride, for example, can have as its object either spiritual or corporal things ( in rebus spiritualibus et in corporalibus ). Aquinas responds that it is possible in diverse things ( in diversis rebus ) to find a single formal aspect 11 For the sake of clarity, I eliminate Aquinas s interjected remark that some people call the first goodness of a moral act the good in genus ( unde et a quibusdam vocatur bonum ex genere ). At the end of the corpus, he suggests that, although the expressions good in genus / bad in genus ( bonum ex genere / malum ex genere ) were standard in his day, one might better use instead good in species / bad in species. 83

The National Catholic Bioethics Quarterly Spring 2013 that allows them all to specify a single sin (an act). The objects here are clearly things that come at the end of acts: they are not the acts themselves. 12 This account of what Aquinas takes from Aristotle with respect a movement s object and the context within which it is an object will be a help in understanding some of the language he uses in speaking of the objects of human acts. Such objects, although they are individual things, are never fully intelligible independently of their contexts, which are always intentional contexts. II. The Relationship between the Interior and Exterior Acts In order adequately to treat of the way in which the exponents of the NNLT understand the object of the human act, additional points are required. The first (to be treated in this section) was introduced briefly above: the relationship between the interior and the exterior acts. The second (to be treated in the next section) concerns the extent of the influence of an act s species: what it determines and what it leaves undetermined. The article in which Aquinas discusses the first theme most explicitly is ST 1-2.18.6, which is about how acts receive their species. Aquinas says there that, in a voluntary act, one can discover a twofold act: the interior act of the will and the exterior act. The object of the first is the end sought by way of the act; the object of the second is the thing that constitutes its terminus: that about which the exterior act is. 13 He compares the relationship between the interior and the exterior act to the relationship between form and matter. In some cases, this does not imply a conceptually close relationship between the interior and exterior act. The one example he gives of this is of a person who steals in order to commit adultery although even here (in his response to the second objection) Aquinas insists that the interior and the exterior acts make up a not insignificant unity such as might also be compared to the unity between form and matter. But interior and exterior acts need not be related in this per accidens way. Think of the cabinet-maker who makes a cabinet. Since this is a voluntary act, according to ST 1-2.18.6, there must be discoverable in it both an interior and an exterior act, each with its own object. The object of the interior act is to make a cabinet; the object of the exterior act is the cabinet that is, the cabinet made, the cabinet as finally existing at the end of a series of movements that receive their unity from the intention to make a cabinet. Obviously, in this case interior and exterior are related to one another conceptually: not per accidens but per se. Aquinas speaks of such a close relationship between interior and exterior acts in ST 1-2.72.3 ad 2, where he clearly wants to distance himself even from the idea that the two might be distinct as matter and form in substances are distinct. He insists in this article that human acts (in this case, sins) receive their species not from their causes in the way that substances do but from their ends. An objection 12 See also ST 1-2.18.2 ad 1. For more passages in Aquinas bearing upon the issue of whether the object is a thing, see Lawrence Dewan, St.Thomas, Rhonheimer, and the Object of the Human Act, Nova et Vetera (English) 6 (2008): 73 92. 13 In actu autem voluntario invenitur duplex actus, scilicet actus interior voluntatis, et actus exterior, et uterque horum actuum habet suum obiectum. Finis autem proprie est obiectum interioris actus voluntarii, id autem circa quod est actio exterior, est obiectum eius. 84

Flannery Aquinas and the NNLT on the Object of the Human Act argues that an act receive its species from its object, which is a material cause and seemingly unsuited to the conferring of species; so, an act might receive its species from its object but, with even more reason, from the other causes (formal, efficient, and final). Aquinas responds, Objects, in so far as they are related to exterior acts, have the character of matter about which [an act is]; 14 but, in so far as they are related to the interior act of the will, they have the character of ends and it is because of this that they give species to an act. Although they also, in so far as they are matter about which, must be understood as termini (by which movements are specified, as is said in the fifth book of the Physics and in the tenth of the Nicomachean Ethics), nonetheless, the termini of movements give species in as much as they have the character of an end. 15 One notices here that one and the same object might be understood as matter about which or as an end, depending on whether it is thought of as part of the interior or the exterior act. Indeed, the object of a human act is more properly called an end if this can be done without denying that it is also the thing that makes the exterior to be the type of act that it is. This is consistent with what Aquinas says two articles earlier, in ST 1-2.72,1, regarding an argument that sins must receive their species not from an object but from an end. He responds, An end has primarily the character of a good and so is related to the act of the will, which is fundamental in any sin as its object. Thus, it comes to the same thing whether sins differ according to their objects or according to their ends. 16 This all explains how Aquinas can sometimes switch, without adverting to the switch, back and forth between talk of the object (normally, of the exterior act) as giving the species and talk of the end of the interior act (which is also an object) as doing the same. In ST 1-2.18.2, for instance, he says that the species comes from the object (by which he clearly means the object of the exterior act), but in ST 2-2.64.7 (to be examined below) he says that it comes according to what is intended (the object of the interior act). If the act under consideration involves two parts related per accidens, as when a man steals in order to commit adultery, the terminus of the 14 See ST 1-2.18.2 ad 2: obiectum non est materia ex qua, sed materia circa quam, et habet quodammodo rationem formae, inquantum dat speciem. 15 Ad secundum dicendum quod obiecta, secundum quod comparantur ad actus exteriores, habent rationem materiae circa quam, sed secundum quod comparantur ad actum interiorem voluntatis, habent rationem finium; et ex hoc habent quod dent speciem actui. Quamvis etiam secundum quod sunt materia circa quam, habeant rationem terminorum, a quibus motus specificantur, ut dicitur in V Physica et in X Ethica. Sed tamen etiam termini motus dant speciem motibus, inquantum habent rationem finis (ST 1-2.72.3 ad 2). 16 Ad primum ergo dicendum quod finis principaliter habet rationem boni, et ideo comparatur ad actum voluntatis, qui est primordialis in omni peccato, sicut obiectum. Unde in idem redit quod peccata differant secundum obiecta, vel secundum fines (ST 1-2.72.1 ad 1, emphasis, of course, added). In any number of places, Aquinas acknowledges that an act described within one analytic context as an exterior act can be described within another as an end. See, for instance, ST 1-2.1.3 ad 3; Thomas Aquinas, In duodecim libros Metaphysicorum Aristotelis expositio, ed. A. M. Pirotta (Turin: Marietti, 1950), 771; Thomas Aquinas, In octos libros physicorum Aristotelis expositio, 181. 85

The National Catholic Bioethics Quarterly Spring 2013 interior act (to commit adultery) is quite distinct from the terminus of the exterior act (things belonging to another). But if one is considering a single act, such as building a cabinet, it comes to much the same thing when referring to the specifying object whether one speaks of a cabinet (built) or of to build a cabinet. In other words, in such contexts it amounts to much the same thing whether one speaks of the object of the exterior act or of the object of interior act, since these objects give the same species to the same act. III. What the Species Does and Does Not Do Our final preliminary point is that, when Aquinas says that the (or an) object gives the species to an act, he does not mean that once we have identified the object we have identified everything in the act that might affect its moral character. All that identifying the object allows us to do is to place the act into its proper species: to give it a name. Where an act is placed in the taxonomy of human acts is important, of course it can determine whether or not an agent is obliged to make restitution for an act performed, for instance; but the story does not end there. In the body of ST 1-2.72.1, Aquinas asks whether sins differ in species according to their objects. He will argue that, yes, they do so differ with respect, that is, to the object of the interior act of the will. His concerns are quite abstract. What factors go into making a sin to be a sin? And of these, which is primary, which secondary? He begins with a reference to the previous article (ST 1-2.71.6) in which he identified two factors. First, since a sin is a human act, it must be voluntary; but, since also good human acts are voluntary, there must be involved a second factor: the sin s disorder, its departure from the law of God. Aquinas draws this same line of thought further along in ST 1-2.72.1, the concern of which is (to repeat) to show that sins differ in species according to their objects: As was said, two things contribute to the nature of sin: the voluntary act and its disorder, which is its departure from the law of God. Of these two factors, the one pertains per se to the sinner, who intends to perform such and such an act in such and such matter; the other, that is, the act s disorder, is related per accidens to the intention of the sinner for, as Dionysius says in De divinis nominibus, chapter 4, no one acts while directing his intention at evil. It is clear, however, that anything whatsoever receives its species according to that which it is per se and not according to that which it is per accidens, for those things that are per accidens are outside what it is to be the species. And so sins are distinguished according to species more by looking to voluntary acts than by looking to the disorder existing in the sin. But voluntary acts are distinguished in species according to their objects, as shown above (ST 1-2.18.5). It follows, then, that sins are properly distinguished in species according to their objects. 17 17 Respondeo dicendum quod, sicut dictum est, ad rationem peccati duo concurrunt, scilicet actus voluntarius; et inordinatio eius, quae est per recessum a lege Dei. Horum autem duorum unum per se comparatur ad peccantem, qui intendit talem actum voluntarium exercere in tali materia, aliud autem, scilicet inordinatio actus, per accidens se habet ad intentionem peccantis; nullus enim intendens ad malum operatur, ut Dionysius dicit, IV cap. 86

Flannery Aquinas and the NNLT on the Object of the Human Act It is apparent that Aquinas is not supposing here that the moral character of an act can be determined simply by looking to what is within the intention of the sinner, its object. He is after all talking about sin, even while he acknowledges that no one acts while directing his intention at evil ( intendens ad malum ). His point is simply that disorder which is a factor in the characterization of sins is not that with respect to which sins are placed into their species. There is a bit of a hedge in Aquinas s argument, for he says that sins are distinguished according to species more ( magis ) by looking to the object of the will than to the disorder; but he is quite clear in asserting that, in so far as the disorder is per accidens (which it is), it cannot provide the species. And yet that an act is disordered (and therefore a sin) is characteristic of the act itself. 18 Aquinas also uses the per se / per accidens (per se / praeter intentionem) distinction in analyzing particular sins (as opposed to sin in general, as in ST 1-2.72.1). In ST 2-2.150.2, for instance, where he asks whether drunkenness is a mortal sin, he acknowledges that a man might drink an immoderate amount (as one might eat an immoderate amount) without realizing how intoxicating this might be. In that case, the drunkenness is a venial sin. If, however, a man not only knows that he is drinking immoderately and that this will be intoxicating but he prefers getting drunk to abstaining from drink, he commits a mortal sin. Regarding the latter case, he says, And such a man is properly called a drunkard since moral acts receive their species not from those things that per accidens come about beside the intention but from that which is per se intended. 19 This does not mean, however, that the former case is morally in order or that the problem is not a person s being drunk. Aquinas has already de Div. Nom. Manifestum est autem quod unumquodque, consequitur speciem secundum illud quod est per se, non autem secundum id quod est per accidens, quia ea quae sunt per accidens, sunt extra rationem speciei. Et ideo peccata specie distinguuntur ex parte actuum voluntariorum, magis quam ex parte inordinationis in peccato existentis. Actus autem voluntarii distinguuntur specie secundum obiecta, ut in superioribus ostensum est. Unde sequitur quod peccata proprie distinguantur specie secundum obiecta (ST 1-2.72.1c). 18 The hedge is the consequence of Aquinas s concern to maintain the unity of the sin as a human act even while maintaining that there are two factors in its analysis: its voluntariness and its disorder. Cajetan alludes to this concern in his commentary on ST 1-2.72.1: Regarding sin, since it contains in itself plural things because of which it is not one per se one of these being privative, the other being positive it is never possible to issue a judgment simpliciter unless it is supposed that it [sin] is something one per se simpliciter and absolutely ( De peccato, cum plura in se claudat ex quibus non fit unum per se, uno existente privativo, altero positivo, nunquam poterit iudicium simpliciter dari, nisi supponatur ipsum simpliciter et absolute esse aliquid per se unum ). Cajetan goes on to conclude that sin is one per se and it is a being contrary to virtue; and the privative disorder is necessarily accompanying it as informing it ( peccatum est unum per se, et est ens contrarium virtuti; et inordinatio privativa est necessario concomitans ipsum ut informans illud ). Thomas Aquinas and Thomas de Vio Cajetan, Summa theologiae cum commentariis Thomae de Vio Caietani Ordinis Praedicatorum, Opera omnia, vv.4 12 (Rome: Typographia polyglotta S. C. de Propaganda Fide [Commissio Leonina], 1888 1906), v.7 13 (II). 19 Et talis proprie dicitur ebrius, quia moralia recipiunt speciem non ab his quae per accidens eveniunt praeter intentionem, sed ab eo quod est per se intentum (ST 2-2.150.2c). 87

The National Catholic Bioethics Quarterly Spring 2013 said that it is a case of sin (venial sin), even though the disorder is per accidens and beside the intention ( praeter intentionem ). The fault present even in this case, he says, is an instance of the fault of drunkenness ( culpa ebrietatis ). Along the same general lines, a man who steals in order to commit adultery is more adulterer than thief (ST 1-2.18.6) since the stealing is per accidens with respect to the adultery. But he is still a thief. And so it is apparent that, even once we have identified the object that gives the species of an act, we have not yet identified everything in the act that accounts for its moral character. IV. The Interpretation of Summa theologiae 2-2.64.7 Germain Grisez describes chapter 9 of his CMP as one of the most important. 20 The chapter is titled The Voluntary: What Moral Norms Bear Upon, a theme much bound up with his conception of the object of a human act. He says there that he does not claim to reproduce Thomas thought precisely on object of the act, since I do not think his distinction between the exterior act and the act of the will is altogether clear or coherent (CMP 9n3). Although Grisez issues this disclaimer, it will be worth our while showing that his understanding of the object is not Aquinas s since, besides himself frequently citing Aquinas in arguments related to the object and thereby giving the impression that he is following Aquinas in that regard, other works in the NNLT corpus put forward the CMP understanding of the object and claim that it is genuinely Thomistic. 21 Central to Grisez theory (and to NNLT generally) is choice, understood in a particular way. Says Grisez, here in chapter 9, If one makes and carries out a choice, what one does one s human act in the strictest sense is precisely the unified whole: one s choice and what one has chosen to do. By choice one adopts a proposal to do something.... The action of an individual is defined by the proposal adopted by a choice, just as the action of a group is defined by the motion adopted by a vote (CMP 9C1). A couple of paragraphs later, he writes, The expression, the proposal adopted by choice, has more or less the same meaning as Aquinas s expression, the object of an action. The point made here by saying, The action is defined by a proposal adopted by choice, often is expressed in his language, The action is specified by its object (cf. ST 1-2.18.2) (CMP 9C3). Choice is a key concept 20 Grisez says this in the introduction to the chapter. Besides the introduction and a summary, three appendices, and 11 endnotes, chapter 9 of Christian Moral Principles (CMP) contains seven sections (A through G), each of which contains several numbered subsections. Since the more readily accessible online version of the The Way of the Lord Jesus does not contain the page numbers of the original and, in any case, referring to the sections, subsections, etc., is more precise, I will refer to these. CMP 9D11, for instance, refers to chapter 9, section D, subsection 11; CMP 9app2 refers to the second appendix in chapter 9; CMP 9n2 refers to the second endnote in chapter 9. I make occasional reference to places outside of chapter 9, using the same method. The online version of the work can be found at http://www.twotlj.org/index.html. 21 See the references in note 1. See especially the works authored solely by either Boyle or Finnis. 88

Flannery Aquinas and the NNLT on the Object of the Human Act also for Aquinas, as it was for Aristotle, but it is not equivalent to the object of the act. A choice ( electio in Aquinas; προαίρεσις in Aristotle) is primarily for quae sunt ad finem / τὰ πρὸς τὸ τέλος: often translated as the means but signifying literally, things that are for the end. As we shall see shortly, Grisez would exclude from the ambit or scope of choices many of the things ( things that are for the end ) that Aquinas would include. In a later section of chapter 9, Grisez comes back to the same theme, acknowledging that other things typically linked to human acts do have a bearing upon their morality but insisting once again that choice is the determinative factor: Although one bears responsibility for foreseen side effects, one does not have the same sort of responsibility for them as for what one chooses (see ST 2-2.43.3; 2-2.64.7). Moral responsibility is to be found first and foremost in one s choosing (CMP 9F2). The two citations internal to this latter quotation are crucial since, if the corresponding passages were to articulate something supporting this very central thesis of NNLT action theory, Grisez would have some grounds for associating the theory with Aquinas. But in fact they offer no such support: quite the contrary. Of the two citations, more pivotal for the theory is ST 2-2.64.7, about whether it is licit for someone defending himself to kill someone. After citing a passage in scripture to the effect that one who kills another in self-defense is not guilty of homicide, in the body of the article Aquinas says, Nothing prohibits there being two effects of a single act, only one of which is intended, the other being beside the intention. Moral acts, however, receive their species according to what is intended, not from that which is beside the intention, since this is per accidens, as is made clear above. So, the act of self-defense can have two effects: one, the preserving of one s own life; the other, the killing of the aggressor. Such an act, therefore, since one s intention is to save one s own life, is not illicit, for it is natural to whatever thing to keep itself in being as far as possible. And yet, though proceeding from a good intention, an act may be rendered unlawful, if it be out of proportion to the end. So, if a man in self-defense uses more than necessary violence, it will be unlawful: if, however, he repels force moderately, the defense will be lawful, for, according to law, it is lawful to repel force by force, provided one does not exceed the limits of blameless defense. 22 Nor is it necessary for salvation that a man omit an act of moderate self-defense so as to avoid killing the other, since one is bound to take more care of one s own life than of another s. But because it is unlawful to take a man s life, except for public authority acting for the common good, as stated above [in ST 2-2.64.3], it is not lawful for a man to intend killing a man in self-defense, except for such as have public authority, who while intending to kill a man in self-defense, refer this to the public good, as in the case of the soldier fighting against the foe and of the 22 Aemilius Friedberg, ed., Decretalium Collectiones, vol. 2 of Corpus Iuris Canonici, 2d ed. (Leipzig: B. Tauchnitz, 1881), cols. 800-801 [Decretalium Gregorii IX lb.5 tit.12 ( De homicidio voluntario vel casuali ) cap.18 ( Significasti... ). 89

The National Catholic Bioethics Quarterly Spring 2013 minister of a judge struggling with robbers although even these sin if they are moved by private animosity. (ST 2-2.64.7c) Of particular interest here is the remark in the first paragraph that acts receive their species from what is intended, not from that which is beside the intention. 23 As we have seen, Grisez suggests that Aquinas s point here is that moral responsibility is to be found first and foremost in one s choosing, these being his (Grisez ) words immediately after citing ST 2-2.64.7 in CMP 9F2. But our earlier examination of Aquinas s theory suggests a different construal. Human acts receiving their species has to do rather with the way in which they are given names and classified. There is no suggestion in ST 2-2.64.7 that an act of killing in self-defense is licit simply because the death of the assailant is not within the self-defender s choice or intention. The body of ST 2-2.64.7 presupposes that there is a type of human act as it turns out, a good type of human act whose object, when we look to the interior act, is the conservation of one s own life. (One could just as well look to the exterior act and describe the object as one s own life, being conserved by oneself.) That act gets its name or classification conservation of one s own life from that object, not from anything that is beside that object ( praeter intentionem ). We have already seen that even a sin receives its species from the object of the interior act, which is necessarily a good thing, otherwise it could not be sought; its badness comes into it by another door, so to speak: by way of its disorder, which has to do rather with the way in which the exterior act is inconsistent with the law of God (ST 1-2.72.1c), the ultimate criterion of all moral action. But in this case (in ST 2-2.64.7), the act is not bad but good since it is natural to whatever thing to keep itself in being as far as possible. Even still, however, such an act can be rendered bad, says Aquinas, if what is done is not proportionate to the end, which (as he has said) is simply to conserve one s own life. Thus, to use a modern example, if a man uses a fully automatic assault rifle instead of less lethal instrument which is equally available and equally effective for the purpose of conserving his life, the act is rendered illicit. This itself goes contrary to Grisez general approach since, in this case, the moral character of the act does not enter in by way of that which is intended or, as Grisez prefers, chosen but by way of facts regarding what the man does: he uses an assault rifle rather than an available less lethal alternative. 24 The assault rifle is a thing for the end a means, if you will. Its lack of proportion with respect to the situation at hand is a characteristic of the act itself, making it an immoral act. Aquinas goes on then to say that it can be licit for someone to intend to kill another in self-defense: It is illicit for a man to intend killing a man in self-defense, except for such as have public authority, who while intending to kill a man in 23 Morales autem actus recipiunt speciem secundum id quod intenditur, non autem ab eo quod est praeter intentionem, cum sit per accidens. 24 Grisez acknowledges that factors other than what is within a choice can have a bearing upon the moral character of an act; but these factors are side-effects. The fact that the man uses a disproportionate means to achieve his end is not a side-effect. I discuss Grisez treatment of side-effects below. 90

Flannery Aquinas and the NNLT on the Object of the Human Act self-defense, refer this to the public good. 25 So, once again, we see that Aquinas s action theory is very different from Grisez. Far from holding that self-defense is licit because the intention (for Grisez, the choice) is to conserve one s life, Aquinas maintains that someone might indeed intend to kill another and do so licitly provided he is functioning in the appropriate public office. In this case, the act is classified differently. Aquinas does not give this type of killing in self-defense a name but we might call it killing in the line of duty. The species comes from what is intended in this case, the death of a supposed malefactor which again must be a good end, otherwise it could not be an object sought, that is to say, the object sought by that type of act and which gives it its species. Even this good species of action might be rendered bad, however, if some other disorder enters in: if, as Aquinas suggest, the agent is moved by private animosity. Corroboration for this interpretation of ST 2-2.64.7 can be found by following up the back reference that Aquinas appends to the very sentence that Grisez regards as crucial: Moral acts... receive their species according to what is intended, not from that which is beside the intention, since this is per accidens, as is made clear above. Both modern editions of the Summa give as references ST 1-2.72.1, which we have already examined, and ST 2-2.43.3, the other passage that Grisez cites while making his point that moral responsibility is to be found first and foremost in one s choosing. 26 So, let us take a look at the latter. The article considers the question whether scandal is a special sin. This title itself suggests the sort of answer Aquinas will make, for the expression special sin just means a sin belonging to a particular species. The objections with which the article begins all suggest that giving scandal is (as someone might put it today) just generally being bad ; Aquinas, on the other hand, maintains that we can give a precise definition of the core concept behind our diversified talk about scandal. He first makes a distinction between active and passive scandal, saying that the latter someone else s being scandalized cannot give us the definition (the species) of the sin since sin has to do with what we do, not another. With respect to active scandal, he identifies two varieties: per se and per accidens. In fact, it is per se scandal an act by means of which someone intends to draw another into sin that stands at the core of our idea of scandal; 27 but of 25 Sed quia occidere hominem non licet nisi publica auctoritate propter bonum commune, ut ex supradictis patet, illicitum est quod homo intendat occidere hominem ut seipsum defendat, nisi ei qui habet publicam auctoritatem, qui, intendens hominem occidere ad sui defensionem, refert hoc ad publicum bonum (ST 2-2.64.7c). 26 By modern editions I mean the Leonine and the Ottawa editions: Thomas Aquinas and Thomas de Vio Cajetan, Summa theologiae cum commentariis Thomae de Vio Caietani Ordinis Praedicatorum, Opera omnia, vv.4 12 (Rome: Typographia polyglotta S. C. de Propaganda Fide [Commissio Leonina], 1888 1906); and Thomas Aquinas, Summa Theologiae, cura et studio Instituti Studiorum Medievalium Ottaviensis. ST 2-2.59.2 also mentions the per se object, what is intended, and what is beside the intention ( praeter intentionem ), but Aquinas s interests there are quite different from those of ST 2-2.64.7. 27 Aquinas is clearly thinking here of the interior act and its object to draw others into sin ; but he could just as well speak of the exterior act and its object: others (drawn into sin). 91

The National Catholic Bioethics Quarterly Spring 2013 interest to us is what Aquinas says about active per accidens scandal: an act in which the intention is to do something else which, beside the agent s intention ( praeter intentionem ), gives scandal, as when someone misbehaves in public not because he wants to lead others into sin but simply in order to satisfy his desires. Such active scandal, says Aquinas, is not the special sin since what is per accidens does not constitute a species. There is no question, however, but that such scandal is a sin: Aquinas calls it active scandal. It just does not give the sin its species: that role belongs rather to active per se scandal. 28 At CMP 9F2, Grisez clearly makes reference to ST 2-2.43.3 because of the language found there: what is per accidens does not constitute a species. In ST 2-2.64.7, Aquinas makes reference to the same article because of that language as well. Grisez thinks that the language lends Thomistic support to his thesis that moral responsibility is to be found first and foremost in one s choosing. In fact, Aquinas s remark implies the contrary: there is a sin indeed, a serious sin in which the agent s choice, the interior act of the will, is aimed at something quite different from that which (in active per se scandal) gives the act its species. Grisez understanding of the role of choice in the analysis of human action is apparent in a threefold distinction he makes among kinds of actions, distinguished by the simplicity or complexity of various elements of the action as a whole (CMP vd3). The first kind of action is simple in structure: the only relevant good actually affected is that actualized in the state of affairs brought about in carrying out the choice. He gives the example of playing golf for the sake of play. The second kind is more complicated in outward structure, although morally, as he maintains, it is as simple as the previous type. He gives the example of taking medicine for the sake of health: From the point of view of medical technique, taking medicine is a means to health. From a moral point of view, the act is as simple as playing golf for the sake of play. There is a real difference between the cause and the effect, but it is morally unimportant, since the two are humanly inseparable and both are included in one actuation of the will the choice to do a health-giving action. The choice determines the person only in respect to the single good: health (CMP 9D5). The third kind, Grisez says, is morally more complicated ; Although carrying out a proposal will have an effect upon a human good, one makes this choice for the sake of some good other than that involved in the carrying out of the choice and the unfolding of its humanly inevitable effects (CMP 9D6). He gives the example of choosing to play golf, even though one detests the game, for the sake of making a business deal. In such cases, he says, the action or omission one chooses is a means from the existential point of view; thus the means end distinction has ethical significance here (CMP 9D7). When one chooses something from the existential point of view, according to Grisez, one determines one s own self with respect to that choice (CMP 9D8). The first kind of action is relatively uncontroversial. The combination of the second and third accounts, however, leads Grisez to a number of positions about 28 Aquinas s response to objection.2 speaks simply of active scandal (including both per se and per accidens scandal) as a sin. 92

Flannery Aquinas and the NNLT on the Object of the Human Act which one might have doubts for a number of different reasons ranging from simple implausibility to incompatibility with Catholic teaching. For instance, at one point Grisez says that the object of an act of driving somewhere in an automobile is determined by the choice to travel to that place, and this remains so even if the auto belongs to another, is used without permission, and in using it one accepts the side effect of grave partiality toward oneself against the other (CMP 9n3, Grisez emphasis). Such an act would fall under the second kind of action just described. Since the person who steals the car would have been just as happy had he been given permission, the difference between that which is for the end and the end is morally unimportant. The moral essence of the act itself is contained in the choice, to travel to that place. This means that whatever blameworthiness that attaches to the act does so not because it is an act of stealing not, that is, because that which brings the agent to the desired place is a car that does not belong to him but because it demonstrates the agent s unfairness: his grave partiality toward oneself against the other. But this is implausible. No one doubts that the act does demonstrate unfairness, but it is also an act of stealing. In ST 1-2.18.7, Aquinas says that one who steals in order to commit adultery commits an act belonging in a sense ( quasi ) to disparate species: theft and adultery. Since the two parts of the act are related per accidens (stealing and adultery are not conceptually related to one another), they must be analyzed understood separately. The same holds when the end is a good one, as when one steals a car in order to visit one s grandmother. Both aspects (or acts) enter morally into the larger act performed and the one makes that act immoral. Grisez understanding of the way in which choice gives species to an action, supposedly consistent with ST 2-2.64.7, leads him to reject quite explicitly a position set out in another work by Aquinas. At De malo 2.6 ad 2, Aquinas says that, if a person steals a precious object which just happens to be located in a sacred place (such as a church), he not only commits a theft but also an act of sacrilege. 29 Grisez rejects this position for his standard reason: any wrongness attaching to the act independently of the stealing would have to do only with the thief s attitude toward sacred things; it would not enter into what he actually does. But this means that that same wrongness would have been present had the thief stayed at home that night with his disrespectful attitudes regarding sacred things. Besides being implausible, Grisez general position would entail that Aquinas has contradicted himself. The supposed contradiction is resolved by showing that Grisez has misinterpreted and misapplied ST 2-2.64.7. The moral character of the act itself is not determined simply by looking to that which is intended (or chosen). Finally, Grisez would use his second kind of action to analyze the muchdiscussed craniotomy case, in which, in order to save the life of the mother, the 29 The example is not a stray one: it is discussed also at Sent. 4.16.3.2 and at ST 2-2.52.2 ad 3. Grisez rejects De malo 2.6 ad 2 at CMP 9n3, just before discussing car-stealing example. On Grisez argument, see Brock, Action and Conduct: Thomas Aquinas and the theory of action, 218, n.57; on the role of circumstances in Aquinas s action theory, see Steven J. Jensen, Good and Evil Actions: A Journey through Saint Thomas Aquinas (Washington, DC: Catholic University of America Press, 2010), 103 116. 93