242. Natural Law and Human Law: Necessity and Derivation

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Lecture Notes

Main Topics #

The Necessity of Human Law #

Question: Is it necessary for human laws to be established by men?

Three Objections:

1. Voluntary admonition suffices for virtue; laws are unnecessary
2. Animated justice (discretion of wise judges) is superior to inanimate law
3. Human acts are infinite and singular; fixed laws cannot adequately direct them

Thomas Aquinas’s Response: Human law is necessary because:

• Man has natural aptitude for virtue but requires external discipline to perfect it (like cultivation of fields)
• Some people are stubborn and cannot be moved by words alone; they require coercive force
• Fear of punishment is necessary restraint for those prone to vice
• Law provides the peace and order necessary for human flourishing
• As Aristotle states: “Man perfected by virtue is the best of animals; if separated from law and justice he is the worst of all”

Two Modes of Derivation from Natural Law #

Mode 1: Derivation by Conclusion

• Derived as logical conclusions from common natural law principles
• Example: “Do not kill” follows as a conclusion from “Do not harm anyone”
• These pertain to the law of nations (ius gentium) and are universal

Mode 2: Derivation by Determination

• Specifies how common principles apply in particular circumstances
• Analogy to artistic work: common form (house) determined to specific figure
• Examples: Speed limits, which side of road to drive on, specific punishments
• These are particular to each community and vary legitimately

Key Distinction: Not all human laws derive from natural law in the same way. Some are purely conventional determinations with no natural law basis.

The Unity and Diversity Problem #

Objection: If all human laws derived from natural law, they would be the same everywhere (since natural law is universal)

Response:

• Common precepts of natural law are universal
• Secondary precepts and determinations are particular
• Only conclusions from natural law must be the same everywhere
• Determinations vary legitimately: driving on right vs. left side has no natural law principle determining it; either works equally well

Key Arguments #

For the Necessity of Human Law #

1. Discipline Argument

   • Virtue requires discipline (disciplina) for perfection
   • Man has capacity for virtue but needs external habituation
   • Especially youth are prone to unsuitable pleasures and need correction
   • Through discipline under force/fear, people gradually become habituated to virtue and eventually do voluntarily what they first did from fear

2. Stubbornness Argument

   • Some people are ill-disposed by nature and cannot be moved by admonition
   • Words and warnings suffice for well-disposed people
   • But society includes those stubborn and prone to vice
   • These require coercive force and fear of punishment to restrain them from evil

3. Social Order Argument

   • Law maintains peace among citizens
   • Without law restraining the vicious, innocent life cannot be safe
   • Even the vicious eventually find peace and stability through habituation

Against Relying Solely on Judicial Discretion #

1. Difficulty of finding wise judges

   • It is easier to find a few wise men to establish laws (like Solon)
   • Many wise judges are required to handle singular cases

2. Time for deliberation

   • Legislators consider length of time over which law will apply
   • Judges must decide suddenly on cases as they arise
   • Longer deliberation allows seeing more clearly what is right

3. Absence of passion

   • Legislators judge about universal future things
   • Judges judge about present cases and are affected by love, hate, passion
   • Their judgment becomes depraved by these affections

4. Conclusion: Law should determine what should be judged; few things left to judicial discretion

Important Definitions #

Positive Law (Lex Posita) #

• Law laid down (posita) by human authority
• Distinguished from natural law by being established rather than discovered
• Derives its force from natural law but is not itself natural law

Natural Law vs. Human Law Relationship #

• Every law humanly laid down has the aspect of law insofar as it derives from natural law
• If something discords with natural law, it is “not a law but a corruption of law”

Legal Justice (Iustitia Legalis) #

• Distinguished from natural justice
• Things that are naturally just have the same power everywhere
• Things of legal justice “from the beginning either differ whether it be thus or in some other way come about” (legal determination)

Examples & Illustrations #

Traffic and Road Laws #

• Speed limits (30 mph vs. 40 mph): Derived from natural law principle “do not endanger innocent life” but specific limit is a determination
• Right vs. left side of road: Pure determination with no natural law basis; both work equally well for maintaining order
• Difficulty of adjustment: English driver in Ireland looks wrong way at turnarounds because habit is ingrained; Churchill looked wrong way and was hit by truck
• Point: Some laws are conventional but necessary for social order

Childhood Discipline #

• Small boy threatened with father’s belt responds to sound on table without physical strike
• Fear of punishment modifies behavior; through repetition becomes habituated to obedience
• Eventually voluntary compliance replaces fear-based compliance
• Illustrates how external law becomes internalized virtue

Police Authority #

• Town of Watertown, Minnesota: One policeman in whole town
• Aunt Helen tells misbehaving boy he could be put in jail for a day
• Prospect of jail “sobered him up” and he behaved
• Demonstrates effectiveness of law’s coercive force even when not physically applied

Questions Addressed #

Q1: Is human law necessary, or do voluntary admonitions suffice? #

Answer: Human law is necessary for society. While well-disposed people respond to admonition, society includes stubborn and vicious people who require coercive force. Law provides the discipline and fear of punishment necessary to restrain the wicked and eventually habituate them to virtue.

Q2: Are all human laws derived from natural law? #

Answer: No. Some derive as conclusions (these are universal); others as determinations of particular circumstances (these vary by community). Driving on the right side is derived as a determination, not a conclusion, and therefore legitimately differs from England’s left side.

Q3: How can human laws differ if natural law is universal? #

Answer: Natural law’s common precepts are universal and unchanging. But the law of nature permits determination of specifics to particular times, places, and communities. Like geometry’s universal truths admit particular applications, natural law principles admit particular determinations by legislators.

Q4: Why is law superior to judges’ discretion alone? #

Answer: Three reasons: (1) Fewer wise men can make laws than needed as judges; (2) legislators have time to deliberate; judges decide suddenly; (3) judges are swayed by passion and personal affection, while law is impartial. Therefore law should determine what can be determined; judges should decide only particulars that law cannot foresee.