Is there any such thing as human
law?
It seems that there is no such thing as
human law:
Objection 1: As has been
explained (a. 2), natural law is a participation in
eternal law. But as Augustine says in De Libero
Arbitrio 1, all things are completely ordered through
eternal law. Therefore, natural law is sufficient for
ordering all human affairs. Therefore, it is unnecessary
for there to be any such thing as human law.
Objection 2: As has been
explained, (q. 90, a. 1), law has the character of a
measure. But human reason is not the measure of things;
just the opposite, as Metaphysics 10 insists.
Therefore, there cannot be a law that proceeds from human
reason.
Objection 3: As Metaphysics
10 says, a measure should be absolutely fixed (certissima).
But human reason’s dictates about things to be done are
not fixed, since according to Wisdom 9:14, “The thoughts
of mortal men are fearful and our counsels uncertain.”
Therefore, there cannot be a law that proceeds from human
reason.
But contrary to this: In De
Libero Arbitrio 1 Augustine posits two kinds of law,
one eternal and the other temporal, and he calls the
latter ‘human law’.
I respond:
As was explained above (q. 90, a. 4), law is dictate
of practical reason. Now practical reason and
speculative reason proceed in similar ways, since, as
was established above (q. 90, a. 1), both proceed
from given principles to given conclusions. Accordingly,
then, just as, in the case of speculative reason, conclusions
in the diverse sciences, which are not naturally known
to us but are instead discovered by the activity of
reason, are brought forth from naturally known indemonstrable
principles, so too from the precepts of natural law,
which are, as it were, common and indemonstrable principles,
human reason must proceed to determine certain matters
in a more particular way. And these particular
determinations, devised by human reason, are called
human laws—assuming the preservation of all the other
conditions, described above (q. 90, a. 4), that
are relevant to the nature of law. Thus,
in his Rhetorica Tully says, “The beginnings
of justice came from nature; next, certain things came
to be customs because of their advantageous nature;
afterwards, fear and reverence sanctioned both what
had come from nature and what had been approved by custom.”
Reply to objection 1:
Human reason is incapable of participating fully in the
ordering (participare plenum dictamen) of divine
reason; rather, it participates in its own way and
incompletely. And so just as, in the case of speculative
reason, there is in us, through our natural participation
in God’s wisdom, a cognition of certain common principles
but not a proper cognition of every truth such as is
contained in God’s wisdom, so too, in the case of
practical reason, man naturally participates in eternal
law with respect to certain general principles, but not
with respect to the particular determination of singular
acts, even though the latter are contained within the
eternal law. This is why it is necessary for human reason
to proceed further to the particular sanctions contained
in laws.
Reply to objection 2:
Human reason is not on its own (secundum se) a rule
with respect to things; instead, the principles that are
naturally instilled in human reason are general rules and
measures of all the things which are to be done by man and
with respect to which natural reason is the rule and
measure—even though it is not a measure of those things
that stem from nature.
Reply to objection 3:
Practical reason is concerned with actions (operabilia),
which are singular and contingent, and not with necessary
things like those which speculative reason is concerned
with. And so human laws cannot have the sort of
infallibility that the demonstrated conclusions of the
sciences do. Nor is it necessary that every measure
should be in every way infallible and fixed; rather, it
should be as fixed as its possible within its own genus. |