Preface
(repeated for context, from yesterday’s Part 1 of this 2-part series)
The birth of the “new natural law theory”—whose two primary exponents are Germain Grisez and John Finnis—can be dated with some plausibility to 1965, the year in which Grisez’s article on the first principle of practical reason appeared in the journal then called Natural Law Forum. Over these fifty plus years, these two scholars have associated the theory with the thought of the Angelic Doctor with varying degrees of insistence. The article just mentioned calls itself a commentary on the relevant article in the Summa Theologiae of Thomas Aquinas, and the first two—and most theoretical—volumes of Grisez’s now three-volume work The Way of the Lord Jesus both contain separate indexes to the works of St. Thomas, the first with over 650 entries. Finnis has published fairly recently a substantial volume entitled Aquinas: Moral, political, and legal theory, and the longest entry in the index of his more recent Collected Essays is dedicated to Aquinas. (Coming in at a close second is Aristotle, and this pair leave the rest of the field far behind.)
But, although certainly neither Grisez nor Finnis would ever reject out of hand a thesis proposed by Aquinas, they have both quite candidly declined to follow him in some important—even central—regards. Grisez, for instance, is critical of Thomas’s way of conceiving man’s ultimate end and Finnis maintains that “Aquinas’ efforts to follow Aristotle in classifying types of justice—its species, parts, and associated forms—yield no really clear and stable analytical pattern.”
Given, then, this situation, the present excerpt from a longer essay delivered at the Symposium Thomisticum in Paris, June 2016, does not address directly the question whether the new natural law theory as a whole is genuinely Thomistic: both Grisez and Finnis would be happy to acknowledge that, in certain regards, they depart from Thomas’s teaching. It considers rather specific interpretations of Thomas by Grisez and/or Finnis which the present author believes are mistaken. Showing that these interpretations are not consistent with Thomas’s thought is to present strong evidence that the new natural law theory ought not to be considered Thomistic. Here in this excerpt I briefly consider article 7 of question 64 of the secunda secundae, about “whether it is licit for someone to kill someone in self-defense.”
On Truth and the Foundational Role of Precepts
(Part 2 of 2)
But, importantly for our larger argument, what makes the species of act identified as ‘telling the truth about oneself itself’—but not every act in that species—a good thing to do is its correspondence to the moral precept enjoining telling the truth (which is founded upon the natural inclination to tell the truth). As Thomas says in ST 2-2.64.7—quite nearly quoting ST 1-2.94.2—what makes the species ‘defending oneself’ (but not every act in that species) good is the fact that “it is natural to whatever thing to conserve itself in being as far as possible.” By virtue of this inclination, says Thomas in ST 1-2.94.2, “those things by which the life of a man is conserved and the contrary impeded pertain to the natural law.”
The rest of ST 2-2.64.7c follows this same pattern of citing precepts of the law in order to justify the theses put forward. For instance, as mentioned above, after his initial remarks about what gives species to acts of personal self-defense, Thomas says that even some acts of that species are illicit, for instance, when the agent uses more violence than is appropriate. Thomas then says that, if the self-defender “should repel a force moderately, the defense will be lawful, for, according to law, it is licit ‘to repel force by force,” provided it is “with the moderation of blameless self-protection.'” These latter two phrases—vim vi repellere and cum moderamine inculpatae tutelae—are both taken from a canon in Gregory IX’s Decretalium Collectiones.3 Thomas would not have maintained that this canon, qua canon in the Decretals, belonged to the natural law; but he would certainly have regarded it as consistent with the natural law, which itself (following Augustine) he recognized as consistent with the eternal law.
Thomas also finds support for his position regarding “the soldier fighting against foes” and “the minister of a judge fighting against a thief” in law: that is, in precepts. In the section of ST 2-2.64.7c where these officials are mentioned, he does not indicate this legal basis, but only because he has indicated it just previously, in ST 2-2.64.3, where he quotes in this regard a passage attributed to Augustine which found its way into a canon in the Decretum of Gratian.
The foundational role of precepts is also apparent in the objections and responses of ST 2-2.64.7. One example will suffice to make the point. The first objection quotes a letter by Augustine, although Thomas is apparently taking the quotation (again) from the Gratian’s Decretum, for it begins where the canon in Gratian begins, which is not the beginning of the letter. The objection cites the beginning of the canon in favor of its position that it is illicit for anyone to kill in self-defense. Writes Augustine:
Regarding the killing of men lest someone be killed by them, the suggestion that it is licit does not sit well with me, unless perhaps the person is a soldier or obliged by virtue of a public function, so that he would not do this on his own behalf but for others or for the city in which he finds himself, having acquired the proper authority, if it accords with his person.
The objection uses the canon in order to argue not just that personal but also that public self- defense is immoral, finding particular weight in Augustine’s point that even one who has the proper authority cannot kill “on his own behalf” [pro se].
In his response, Thomas ignores the suggestion that Augustine’s words might be used in favor of the thesis that even public killing in self-defense is immoral. He says simply: “the authority of Augustine is to be understood as applying to that case in which someone intends to kill a man in order to free himself from death” [ut seipsum a morte liberet] (as when a man plans to kill his neighbor because he fears that in the future he may be killed by him). He might have added that a person killing in self-defense on behalf of the public good and with public authority is (per se) not doing so in order to free himself from possible death. But he does not go into this: he simply explains how the relevant law (deriving its authority from Augustine) is to be understood.
Thomas, of course, does not believe that every law proposed by human legislators or by custom is good law. He holds to Augustine’s adage that an unjust law is no law at all. Good human law is law that is consistent with the natural law and with eternal law. But determining what is consistent with natural and eternal law is not—or not simply—a matter of considering the goods that human beings pursue; and determining what is an act in accordance with natural and eternal law is not—or not solely—a matter of considering what an agent intends in performing an act. One comes to understand what is good law by immersing oneself or being immersed, preferably from youth onwards, in a healthy moral culture, and assimilating—not uncritically—its laws and customs by performing actions in accordance with them. If one is a scholar, even a pale imitation of Thomas Aquinas, one will want to study the legal tradition and (especially) its sounder interpreters in order to be able to recognize instinctively what is consistent with the higher law and to reject what is inconsistent.
1Modern editions of the Summa theologiae direct readers to ST 2-2.43.3 and 1-2.72.1.
2John Finnis, Germain Grisez, and Joseph Boyle, “‘Direct and ‘indirect’: A reply to critics of our action theory,” Thomist 65 (2001): 18-19. They also say in the same place that “it is not surprising to find Aquinas [in ST 2-2.64.7] framing his solution to that problem in terms of ‘intention’ rather than ‘object.'”
3Aemilius Ludovicus Richter and Aemilius Friedberg, edd, Decretalium Collectiones, vol. 2 of Corpus Iuris Canonici (Leipzig: B. Tauchnitz, 1881), Decretal. Gregor. 9.5.12.18 (col.800-801).
Rev. Kevin Flannery , S.J., is Professor of the History of Ancient Philosophy, Pontifical Gregorian University in Rome, and Scholar with Virtue, Happiness, & the Meaning of Life.
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