I.

At the beginning of his treatment on law, St. Thomas considers whether law is something pertaining to reason. The purpose of law is to command and forbid, and since commanding belongs to reason, law is therefore an act of reason. Law “is a certain rule and measure of acts in accord with which one is either induced to act or restrained from acting … since law obligates (obligare) one to act. Now the rule and measure of human acts is reason, which as is clear from what was said above (q. 1, a. 1), is the first principle of human acts. For it belongs to reason to order things to their end-where, according to the Philosopher, the end is the first principle in matters of action (in agendis).”Footnote ³ Law belongs to reason because it is an act of a rational being, which is ordered to obtaining a particular end or effect. This is how “we evaluate the rationality of a law and judge its goodness: by looking at its end and at its chosen means to achieve it.”Footnote ⁴ Since the rule and measure of human acts is reason, the law's rational character stems from the fact that it is a certain rule and measure. Furthermore, as a commanded act, law must be in some sense regulated by reason (aliqua ratione regulata). For Aquinas, defining law as a specific kind of rational act prevents any form of voluntarism or positivist prescription of law.

This understanding of law is rather general, and requires greater specification.Footnote ⁵ The human mind is not a ruling-rule, but a ruled-rule: reason “is not in its own right (secundum se) a rule with respect to things.”Footnote ⁶ Since the guiding principle of the Treatise on Law is not “reason,” but the “exterior principle of human acts,” then the more specific nature of law that Aquinas seems to be referring to is that of an exteriorFootnote ⁷ governing order to the good, namely, the common good. He begins his Prologue to Question 90 with the following:

Divine Wisdom's governance has the character of law in so far as it moves all things to their appropriate ends.Footnote ⁸ Therefore, the principle concern of law will be an ordering toward the common good.Footnote ⁹ Moreover, since practical reason is ordered to the ultimate end of human life, and considering that law is a certain rule or measure in regards to human action, then the law must concern itself with man's happiness. Aquinas’ stresses this point by noting that since every part:

As a dictate of reason in the mode of commanding or forbidding some act that is ordered to the common good, this does not imply that just any person's reason is suitable. To order something to the common good is the “role of either the whole multitude or of someone who is acting in place of the whole multitude. Therefore, establishing a law is something that belongs either to the whole multitude or to a public personage who is in charge of (habet curam) the whole multitude.”Footnote ¹¹ Aquinas’ point reveals that law exists not only in the reason of the appropriate authority, but also in “the reasons of citizens who order their own actions through the rule of law. This double existence of law, in the reasons of the ruled as well as the reason of the ruler, supports the idea of a shared or elected government, belonging to the whole multitude.”Footnote ¹²

The authoritative ordering toward the common good presupposes and affirms both mans’ natural aptitude for virtue, and his inability to achieve this of his own accord. This is why men must receive from others a necessary training that is required for the proper acquisition of virtue.Footnote ¹³ The requisite authority has the capacity to order a people to their proper virtue, since law is imposed on others in the manner of a rule and measure,Footnote ¹⁴ and this will be achieved in the mode of issuing a precept (praecipiendi).Footnote ¹⁵ Additionally, the author of law should therefore be vested “with an authority that raises him above the multitude, otherwise his claim would not be founded and his law would not have the power of binding the multitude in conscience.”Footnote ¹⁶

Aquinas also points out that certain acts of reason, such as counsel or advice, do not possess the character of law. Let us say, for example, that my wife has been having a particular difficulty. Every time she opens a bottle of Pinot Grigio in the kitchen, she then immediately drinks half of it. I advise her that, whenever opening a bottle of wine, I must be present with her so that she does not consume most of it herself. This counsel is good for her, but could not be enacted for everyone who seeks to open a bottle of Pinot Grigio. It could not be ordered towards the common good of society.

Providing these few preliminary points regarding the essence of law, and particularly highlighting its rational character prescribing acts ordered toward the common good by the appropriate authority, we must now briefly analyze three types of law distinguished by St. Thomas. The “highest ideal plan” of creation (summa ratio) is nothing other than the Eternal Law. Since the world is governed by Divine Providence, and following that law is a dictate of practical reason on one who has charge over a community, then the very nature of the governance of things that exist in God as ruler of the universe, have the character of law. The wisdom of God is exemplified in His ordination of things to their appropriate end:

God's law is not distinct from His nature, which means that the end of His governing is Himself. For Aquinas, there is no such thing as a law that is ordered to itself as end: it must be ordered towards that which everything else is, namely, God.

Furthermore, St. Thomas says that as a rule and measure, law can exist in something in two ways: 1) in that which regulates and measures, and 2) in that which is regulated and measured. As the architectonic principle of all things, the Eternal Law is the measure and rule of all things. With the imprint of God's image upon him, man participates in the Eternal Law in a more excellent manner as a rational agent. This participation in the Eternal Reason is made manifest in the natural inclinations that orient man to act according to his human nature and ultimately towards happiness.Footnote ¹⁸ Thomas says that since the rational soul is the proper form of man, he has a natural inclination toward acting in accord with reason, which is just to act in accord with virtue.Footnote ¹⁹ This Divine impression upon man is nothing other than the Natural Law.

The principles of Natural Law instilled upon man are common and indemonstrable, requiring their particularization in a more practical way: “From the precepts of the Natural Law, which are, as it were, common and indemonstrable principles, human reason must proceed to determine certain matters in a more particular way.” Given that man's reason does not fully participate in the Eternal Reason, he still can come to know certain general principles of the Natural Law, but not their particular determinations contained with in these principles. Therefore, human reason is necessary to sanction the particulars of good action in the framework of human law. Protecting the lives of others and seeking to avoid harming them is a common example of a general principle of the Natural Law that must be concretized in the manifest human laws of a society. Regarding the relationship between Natural law and civil law, Aquinas’ point is clear: human law is capable of adding good things pertaining to morals,Footnote ²⁰ since Natural law is not sufficient to regulate human conduct.Footnote ²¹ The Thomistic conception of human law stems from its rootedness in the naturally known principles of Natural Law, the rule and measure of everything else, and which require further specification in a legal framework for the citizens of society to help cultivate their moral flourishing.Footnote ²²

II.

Our considerations thus far have been to understand Aquinas’ teaching on the essence of all law in order to establish the objective moral foundation of human law as an act of reason, or as one author deems it, an act of “rational persuasion.”Footnote ²³ The positive pedagogical nature of human law must now be examined, particularly focusing on Thomas’ answer to whether the effect of law is to make men good.Footnote ²⁴ St. Thomas offers a number of possible objections to this question. First, men are made good through virtue, and since God infuses virtue within us, it is not law that makes men good, but virtue. Second, law would do no good for man unless he was to obey it. But the fact that man obeys a law stems from his goodness. Therefore man's goodness is presupposed in relation to law. Third, law is ordered to the common good, but we know that some act well in matters pertaining to the common good and yet do not act well in their own proper affairs.

St. Thomas, following Aristotle, responds that the intention of every lawmaker is to make the citizens good.Footnote ²⁵ Law is nothing other “than a dictate of reason which exists in the one who is in charge (in praesidente) and by which his subjects are governed. Now, in general, the virtue of what is subordinate lies in its being subordinated in the right way to that by which it is governed: for instance, we see that the virtue of the irascible and concupiscible parts of the soul consist in their being obedient in the right way to reason.”Footnote ²⁶ Since law is concerned with human action, whose first principle is the ultimate end of human life, then law must regard ordering man to happiness. Furthermore, the law is ordered so that those subject to it can obey it. It follows that, for St. Thomas, those who are subject to law will become good and virtuous by being obedient to it.Footnote ²⁷

The responses to each of the previous objections reveal Aquinas’ understanding of the role human law plays in shaping the moral character of all citizens.Footnote ²⁸ In response to the first objection, St. Thomas states that as a director of human action, the law is concerned primarily with acquired moral virtue. The regularity of actions whereby men are habituated to become good is a cause of acquired virtue, whereas it merely disposes one for the infused moral virtues.Footnote ²⁹ The scope of human law is to be concerned with acquired moral virtue, and this also enables Aquinas’ legal theory to be practically applied to a variety of societies and capable of analysis from believers and non-believers alike. Recall that, for Aquinas, a virtue is the perfection of a power, a good habit by which we work well. Virtue not only makes the agent good, but the work done good as well. A good habit “is one which disposes one to an act suitable to the agent's nature, while a bad habit is one which disposes to an act unsuitable to nature. Thus, acts of virtue are suitable to human nature, since they are according to reason.”Footnote ³⁰ Thomas’ point is quite simple: the more we carry out repeated actions, the easier it becomes to do them. It is best to understand habits as “channels or grooves metaphorically cut into our character that direct our actions in a certain way. The more we use and dig out and deepen those channels, the easier the action becomes.”Footnote ³¹ Aquinas is quite lucid that this habituation of acts through law is extrinsic, and incapable of directing the interior movements of the will; yet it does little for the common good to say that thoughts and inner movements of the will fall completely outside of it.Footnote ³²

St. Thomas indicates that even the fear of punishment can be an inducement to virtue, precisely because “being accustomed to avoiding evil and doing good through fear of punishment, man is sometimes led to enjoy doing good and to do it of his own will.Footnote ³³ Punishment can provide serious motives for deterring one from committing certain types of vicious action. The efforts of legitimate authority to curb evil actions are for the purpose of habituating even the minutest inklings of virtue within the agent, so that the person begins to taste the pleasures of acting well. Even through this habituation of restricting vicious action, there is the intention of leading a person to willingly act in a virtuous manner instead of merely through fear only.Footnote ³⁴ This notion of fear as a beginning and not the end of virtue is fundamental to understanding Aquinas’ theory of law as innate to the moral perfection of human acts.Footnote ³⁵

Concerning those who appear to act well in public, but not in private, Aquinas clarifies that the goodness of a part is seen in relation to its whole. Any part that does not fit in with the whole is bad (turpis). Therefore, “since every man is part of a political community (pars civitatis), it is impossible that any man should be good without being related in the right way to the common good; nor can the whole consist appropriately of anything except parts that are proportioned to it.”Footnote ³⁶ Broadly understood, law plays a key role as a common guide for allFootnote ³⁷, not just those who are malicious and in need of correction. Human law is to be framed for the community rather than for the individual because whatever is for an end should be proportionate to that end.Footnote ³⁸ Now the end of law is the common good, since the common good is “greater and more divine than the private good.”Footnote ³⁹ This Aristotelian dictum expresses the truth that human communities are the highest achievements of nature, for they are unlimited with regard to the diversity of their perfections.” Footnote ⁴⁰

Later in the body of the response to the third objection, Thomas says that it would be impossible for the common good of political society to fare well unless, at the least, the rulers were virtuous. It seems as though, at this point, that St. Thomas were positing that only virtuous men can enact the kinds of laws that can further genuine virtue in society; it would be good men alone that would be capable of making good laws. This very question arises in his consideration on civil law's utility where, in the first article of his treatment of lex humana, Aquinas poses the following question: shouldn't men have recourse to the “living justice” of a virtuous judge than the “non-living” justice of written laws?Footnote ⁴¹ The prudential response that Thomas offers is that it would be better for things to be regulated by an inanimate written law than through the decisions of judges. He provides three reasons for this:

Thomas identifies inanimate justice with written laws because this is how lawmakers are normally capable of directing human acts. Secondly, if laws were enacted on a case-by-case base, with little overarching consideration through the avenue of experience, then law would extend beyond its limits, and be the cause of greater societal frustration and worse evils. Finally, inanimate human laws can provide a necessary constraint on the unrestricted passions of judges. Ideally, the best society would be one in which both the lawmakers and the citizens would be virtuous. However, practical wisdom for Aquinas dictates that just because an individual (or individuals), having the requisite authority, lacks moral virtue does not invalidate a civil law, because the common good of society cannot be solely dependent upon the virtuous or vicious soul of its lawmakers.Footnote ⁴³

The positive pedagogical nature of law briefly discussed thus far can be further strengthened when considering the example of a school classroom. Elementary and middle school teachers often have to administer their fair share of necessary discipline. This can become a rather disconcerting problem in an institution where the seeds of morality in the student body are severely deficient. One could become so habituated to administering consequences for disobeying classroom or school rules that eventually, those students who were good, or desired to become better, will often be unattended to. They frequently seek paths for greater moral development, but often find none. The ensuing result over and again is that even the good students start to digress, and break the rules because they believe the rules contain only something negative: restricting them from becoming worse, but not providing something for them to become better. Rewards are rarely dispensed, and virtue seldom recognized, so that the good students will often act out just to get noticed and this would be a “reward” for them. Teachers in this setting learn rather quickly that the common good of the classroom has to be such that the viciously inclined are habituated to becoming good, and that those already good students be capable of becoming even better. In an analogous way, the good-intentioned people need influence of law and instruction in order to flourish, since they are primarily social by nature.Footnote ⁴⁴ Furthermore, the example thus mentioned is in congruity with Aquinas’ point concerning the proper subjects of human law:

Thomas has a unique understanding of the law's necessary relationship to the moral flourishing of its citizens, and his insights require mentioning two inter-related points regarding the effective character of law. First, as a command of reason, guiding human actions toward its ultimate end, it would be odd if law did not contain an effectiveness by which the end could be reached. Even those who obey the law for the fear of punishment do so because they recognize, albeit in a limited sense, that the law ought to be obeyed because of the loss of some good that they desire. This too applies to the virtuous law abiding citizen. The good man is obedient to the law because he is led towards a good to which, separate from the law, he could not acquire on his own.Footnote ⁴⁶ Therefore, law must be ordained to the common good of society by one who can enforce it as law. As the above example concerning my wife's drinking habits illustrated, private acts of reason such as counsel cannot be posited as law because they are not of the kind that can lead the community to virtue as a final cause.Footnote ⁴⁷

The second point to be made also regards the law's effectiveness, but presupposes it. The common good of society requires obedience to the promulgated laws enacted by the pertinent authority. Why would one be obedient to a law that he was not confident that its obedience would bring about the common good? The right ordering to the common good through the virtue of obedience brings to light what Fulvio Di Blasi refers to as the principle of autonomy, “namely something belonging to the nature of the agent and determining what for him is good or bad.”Footnote ⁴⁸ Law understood as being rooted in reason (instead of the will) guides lawmakers so as not to be able to command things that are contrary to it, since reason and law pertain to virtue. For example, it would be simply absurd for a law to command that I hate my wife, or that every time I cross the street, I must dance like Fred Astaire. It is for this reason that human law is derived from the Natural Law, because human law “must operate, in order to achieve its end by binding human beings as nature itself would have acted.” Footnote ⁴⁹

III.

Aquinas’ account of human law considered hitherto seems to reveal a positive capacity to affect the moral habits of its citizens. Yet, the Summa treatise must be coupled and integrated with Thomas’ treatment of the role of the governing office as presented in the De Regno, since this will offer a more complete and synthesized account of law. In the De Regno, Thomas is quite emphatic that the common good of society is not merely limited to establishing a condition of civic tranquility and unity among people. Aquinas provides further support to the view that genuine virtue is the proper aim of any ruler. In paragraph 114, Thomas argues that the ruler is not a rule unto himself, but subject to the Divine Governance. Being cognizant of man's ultimate end, the ruler is to direct them by the laws enacted through the office of authority given to him:

As those rulers of society are subject to a higher law, so too in an analogous way, the citizens will be subject to human laws which lead to their virtue. Even the human goods of wealth, profits, health, and learning have a hierarchical status that orders them to serving the virtuous life of citizens. Thomas continues by describing the proper role of a ruler as guiding those in his care to their proper end, namely, happiness:

Notice the emphasis Aquinas places on ordering something to its proper end: something made is constructed in such a particular way because of the end or goal that its form requires. Thus, the form of a sword is specifically for fighting, and the form of a house for habitation. A sword or house cannot be used for anything else but that for which they were made, i.e., that end which was the guiding principle for how and why it was made.Footnote ⁵² Likewise, the ruler is to order his citizens in such a way that is fitting to their form, and this is nothing other than genuine virtue. Beatitude is the end of the virtuous life on earth; yet it is acquired moral virtue as opposed to infused moral virtue that the ruler can affect most (since moral virtue is the means and more readily disposes one to infused moral virtue) through the laws enacted and the right ordering of society.Footnote ⁵³

Given that the goal of any ruler will be the good life of the citizens, Thomas proposes three aspects of society that the ruler must attend to regarding legislation: 1) to establish a virtuous life in the multitude subject to him; 2) to preserve it once established; and 3) having preserved it, to promote its greater perfection. Concerning the first way, he distinguishes fostering the virtuous life of the individual with cultivating virtuous living in the multitude:

Man is by nature a social animal, and considering that men become virtuous only through the help of others, it is necessary that he form a community in order to achieve a virtuous life. Foundational to establishing the good life of citizens is that they be united in a bond of civic peace, what Aquinas has called “the temporal peace within the political community (temporalis tranquillitas civitatis).”Footnote ⁵⁶ This civic unity is not the finis of human law, since this unity is a prerequisite for the purpose of enabling men to act well through legislation. Furthermore, those basic and necessary goods “required for proper living” are a means to further the end of virtue. Calling to mind the example of the builder, it is necessary that his materials be finely ordered to the end of building the house well. If he does not take time to consider how the supplies and tools used tend to this end, then he will have produced a rather weak home, and be deemed no good at his profession. In like manner, the ruler must reflect upon how the natural and necessary goods for proper living can be more prudentially and definitively oriented towards accomplishing the goal of societal virtue.

After establishing virtuous living in the multitude, it will be necessary that it be conserved over time. Aquinas says that a triple charge (curae) is laid upon the king: he must take care to select competent men for the various governing offices (since men are mortal, but the common good is, in a sense, perpetual), he should punish those who commit vice and reward the virtuous, and protect society from external dangers, “since it would be useless to prevent internal dangers if the multitude could not be defended against external dangers.” Aquinas is quite practical in his analysis here, for he is proposing to the king something which is to come about by degrees, and not all at once. Thomas accentuates a non-utopian understanding of society: things will not be perfect, but they must be tended to with great care lest denigration and corruption eat away at political society's proper orientation. The second point, though, seems central to Aquinas: the laws are to be such that they restrain men from vice and seek to foster virtuous activity.

Lastly, preserving the virtuous living of citizens requires that the king (or rulers) seek to bring about its greater perfection:

St. Thomas here provides a coherent account of authentic “progress:” as society grows in the wisdom of experience, there must be signs of maturation through its becoming better. Since the condition of society is one that at this point is already good, perhaps it would be necessary for certain laws to be amended so as to achieve greater effectiveness in enhancing virtue. In regards to the meaning of the “better gifts” that the Apostle Paul mentions, Michael Pakaluk maintains that for Aquinas, “the zenith of accomplishment, for kingly rule, is to have provided for the growth of charity in the state under one's care.”Footnote ⁵⁸ This interpretation would align well with Thomas’ point concerning the end of law, where he says that human law aims at establishing the friendship of men with one another,Footnote ⁵⁹ which can only be had through genuine virtue.

At this point, we can reiterate that St. Thomas has made it clear that the proper aim of the ruler will be the common good of the polis, and this will be nothing other than the practice of communal virtue (bona vita). Furthermore, the moral virtue that is to be inculcated through the legislation of the king, is a means to the further end of eternal beatitude. St. Thomas is seeking to establish a substantial account of the common good, and such a common good is the proximate aim of the ruler. However, as a remote goal, the king must never forget that his subjects are ordered to a common good that transcends the city, namely, communion with God. The point here is that, for St. Thomas, while man is ordained to an end that is suprapolitical, this need not entail giving insufficient accounts of the common good, moral virtue, and the necessary role of human law.

Concerning the De Regno, and integrated with the Summa, it is clear that Aquinas understands the character of human law to be such that it can, and ought to, foster the moral virtue of society. For the common good of society to be established, conserved, and made better, it is incapable of being limited to instituting civic tranquility or basic human goods. While necessary for the foundation of any lasting society, these goods must be ordered in some type of hierarchy, such that man can acquire the unique quality or habit of moral virtue which will bring about his true flourishing. It will be the habits of moral virtue furthered and brought about through civil law that will be the greatest blockade and remedy against any form of tyrannyFootnote ⁶⁰ or totalitarianism.

IV.

The treatment of Thomas’ teaching on human law has clearly not been exhausted in this paper. However, from examining the texts from the Summa Theologiae and the De Regno, it appears evident that St. Thomas has provided a concise and intelligent framework for seeing the necessary relationship between human law and moral virtue. The positive relationship between law and morality should not be misunderstood, for Aquinas' political realism is such that he does not see it as good that society impose excessively moralistic demands upon a citizenry that is weak in virtue, since they must come to it only “by degrees.” St. Thomas is never lacking in reminding us that this life will never fully satisfy the demands of justice, and that participation in political life, although constituting a good in its own order, will ultimately entail recognizing the truth of some levels of moral imperfection. At this point, I would like to briefly summarize some important points concerning St. Thomas’ notion (ratio) of law and virtue:

1. 1) It is important for the good of society that its rulers seek to become virtuous, but this does not entail that human law cannot inculcate virtue only if the rulers are themselves good.

2. 2) The positive pedagogical nature of civil law highlights the fact that it must take into account the viciously inclined and those who are already good and seeking to become better. A society whose primary legal role is to restrict vicious criminals will not be capable of authentic moral and cultural development.

3. 3) Human law is not limited to merely establishing and securing civic tranquility, and fostering the “right” for self-determination and self-definition. Such a role for government avoids concerning itself with whether this “self-determination” in fact deteriorates a respect for human laws, and neglects a genuine concern for the moral habits cultivated therefrom.Footnote ⁶¹ A dualistic approach towards “public” and “private” behavior falsely assumes that the allowance or protection of “private vice” has no causal relationship to “public virtue.”Footnote ⁶²

4. 4) The most comprehensive political philosophies are not going to be strictly concerned with questions of an economic, material, or technological realm, but primarily with how to secure the rational foundations of human living. Footnote ⁶³ This “human living” can only be secured, and enabled to burgeon, when there is an established and right connection between human law and moral virtue and vice.