244. Human Law: Generality, Virtue, and Conscience

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Lecture Notes

Main Topics #

Question 1: General vs. Particular Laws #

Berquist addresses whether human law should be laid down universally or in singular/particular cases:

• The apparent problem: Human acts are singular, so laws should perhaps be particular, not general
• Resolution: Laws are laid down in three ways:
  • Common laws - general precepts for common matters
  • Privileges - particular laws affecting singular persons but with broader power
  • Sentences (legal judgments) - application of common laws to particular facts in specific cases
• Key principle: Unity and certainty require general laws; but human acts are singular, so particular application is necessary
• Example: Speed limit laws are general (20 mph in school zones), but enforcement requires particular judgment (the specific driver on the specific day)

Question 2: Should Human Law Command All Virtuous Acts? #

Berquist systematically refutes the view that human law must command every virtuous act:

• Initial objections (presented but rejected):
  • Laws are made to restrain vice through fear
  • The legislator intends to make citizens virtuous
  • All vices oppose virtues; therefore all virtues must be commanded
• Aquinas’s resolution: Human law commands only those virtuous acts that can be ordered to the common good
• Critical distinction: Acts of virtue vs. acts done virtuously (in the manner of a virtuous person)
  • Acts of virtue can be commanded (e.g., “be brave,” issued by a commanding officer)
  • Acts done virtuously (with the right intention, emotion, and habit) are the end of law, not subject to precept
  • Example: Paying taxes justly can be commanded; doing so from genuine love of justice is the end, not prescribed
• What law does NOT command: Purely private virtuous acts that don’t serve the common good (e.g., private temperance in eating)
• What law DOES command: Virtuous acts ordered to common discipline and the common good (e.g., public sobriety, respect for authority)
• Anecdote: Example of rescue duty in English common law—no legal obligation to rescue a drowning person, despite rescue being virtuous, due to prudential policy considerations

Question 3: Does Human Law Bind Conscience? #

This is treated with careful distinctions between just and unjust laws:

• Just laws bind conscience because:
  • They are ordered to the common good
  • They come from legitimate authority within proper limits
  • They impose burdens proportionally and fairly
  • They derive their obligatory force from eternal law
  • As Proverbs 8 says: “Through me kings rule and makers of laws discern just things”
• Unjust laws do NOT bind conscience:
  • Contrary to human good: Oppressive, onerous laws serving the legislator’s private interest rather than common good (e.g., unfair taxation)
  • Exceeding authority: Laws made by one who lacks power to legislate
  • Unequally imposed: Laws imposing unequal burdens even if ordered to common good
  • Contrary to divine good: Laws commanding sin, idolatry, or violation of divine law
• Principle: “We ought to obey God rather than men” (Acts 5:29)
• Exception to conscience-binding: Even a just law may be obeyed without conscience-binding if it causes scandal; example given is Christ paying the temple tax to avoid scandal
• Berquist’s contemporary application: Discusses laws mandating abortion support in insurance as potentially unjust laws that do not bind conscience

Question 4: Proportionality in Taxation #

Berquist discusses an extended debate about progressive taxation:

• The question: Should the rich pay more in absolute terms, or should taxation be proportional?
• The problem with progressive taxation: Not easily justified by reason; the common justification (“they can afford it”) is insufficient
• Berquist’s analogy: If I sell a loaf of bread to a wealthy person for ten times the price I charge a poor person, claiming “he can afford it,” this seems manifestly unjust—yet proportional taxation rests on the same logic
• Proportional justice principle: Burdens must be imposed according to the quality and proportion of subjects’ ability
• Historical note: Sweden adopted proportional taxation; the US has not, partly because of social mobility (people expect to become wealthy and thus oppose progressive schemes)

Key Arguments #

Argument: General Laws Provide Necessary Unity and Certainty #

1. Laws function as rules and measures of human acts
2. A measure must be certain and consistent
3. If laws were entirely particular, each act would have its own rule, destroying the utility of law
4. Therefore, laws must be laid down generally, with particular application through judicial judgment

Argument: Human Law Commands Only Common-Good-Ordered Virtue #

1. Law is ordered to the common good (its proper end)
2. Some virtuous acts concern only private good
3. Therefore, law cannot command all virtuous acts
4. Law commands only those virtues whose acts can be ordered to common good or common discipline

Argument: Just Laws Bind Conscience; Unjust Laws Do Not #

1. Just laws derive their obligatory force from eternal law
2. They are ordered to common good, proceed from legitimate authority, and impose burdens fairly
3. Therefore, they bind conscience
4. Unjust laws violate one or more of these conditions
5. Therefore, they do not bind conscience and should not be obeyed

Important Definitions #

Ius commune (Common Law) #

• Laws laid down generally for matters affecting the whole community
• Characterized by universality and generality

Privilegium (Privilege) #

• A particular law affecting specific persons
• Extends to many but is not purely general

Sententia (Sentence/Judicial Judgment) #

• Application of common laws to particular facts and cases
• The work of the judge or magistrate

Just Law (lex iusta) #

• Ordered to the common good as its end
• Proceeds from legitimate authority within its proper power
• Imposes burdens proportionally and fairly
• Derives obligatory force from eternal law

Unjust Law (lex iniusta) #

• Contrary to human good (oppressive, serving private interest)
• Exceeds the legislator’s authority
• Imposes unequal burdens
• Contrary to divine good (commanding sin)

Act of Virtue vs. Virtuous Act #

• Act of virtue: The external action (e.g., paying taxes)
• Virtuous act: The action performed in the manner and disposition of a virtuous person (e.g., paying taxes willingly from love of justice)
• The former can be commanded; the latter is the end toward which law aims

Bonum commune (Common Good) #

• The good of the multitude as a whole
• Constituted by many things and many persons
• Must endure through the succession of citizens over time
• Distinguished from private good

Examples & Illustrations #

School Zone Speed Limits #

• General law: “20 mph on school days in school zones”
• Particular application: Officer determines whether a specific driver violated this law in a specific case
• Illustrates how general laws require particular judgment

Drug Trafficking and Speed Limits #

• Minnesota men repeatedly driving to Colorado to buy drugs cheaply and sell at profit
• Were caught speeding (85 mph in 70 mph zone)
• Illustrates how speed limit laws (particular determinations from natural law) serve broader law enforcement and public safety purposes

Colorado Border Law Enforcement #

• Discussion of Nebraska’s concerns about Colorado drug buyers crossing borders causing trouble
• Illustrates conflict between different jurisdictions and the limits of particular legal authority

Rescue Duty in English Common Law #

• English common law imposes no legal duty to rescue a drowning person
• Though rescue is virtuous, law does not command it
• Prudential policy reason: Making rescue mandatory might paradoxically discourage actual rescue attempts
• Shows that law does not command all virtuous acts, even those beneficial to common good

Restaurant and Samuel Johnson’s Dictionary #

• Anecdote about eating in London at a famous restaurant Johnson frequented
• Restaurant displays Johnson’s dictionary open to the page on “law”
• Illustrates the importance of law in civilized society and its enduring significance

Christ and the Temple Tax #

• Example of obeying an unjust or questionable law to avoid scandal
• Matthew 17: Christ pays the temple tax despite potentially being exempt
• Illustrates that conscience-binding can be suspended when obedience prevents greater harm

Administrative Agencies and Balance of Powers #

• Discussion of US executive agencies creating their own rules
• Concern that agencies exceed their proper authority (similar to unjust laws exceeding legislator’s power)
• Notes European Union’s “hyper-regulatory mentality” (e.g., regulations on banana curvature)
• Shows how confusion about proper legislative authority creates unjust laws

Baptist Minister and Dance #

• Reference to John Quincy Adams’s biography mentioning a Baptist minister who thought all dancing was sinful
• Berquist notes how extreme positions on law’s authority over virtue can become absurd
• Illustrates the prudential limits on legislating private virtue

Questions Addressed #

Q1: Should human law be general or particular? #

A: Both. Laws are properly laid down generally (common laws) for matters of common concern. However, particular applications (sentences/judgments) are necessary because human acts are singular. Additionally, some particular laws (privileges) serve specific persons or groups while affecting the common good.

Q2: Should human law command all virtuous acts? #

A: No. Only those virtuous acts that serve the common good or public discipline. The distinction between the act of virtue (which can be commanded) and the virtuous act (done in the manner and disposition of a virtuous person) is crucial. The latter is the end of law, not subject to precept.

Q3: Does human law bind conscience? #

A: Just laws bind conscience because they derive from eternal law and serve the common good. Unjust laws do not bind conscience. A law is unjust if it is contrary to human good (oppressive), exceeds the legislator’s authority, imposes unequal burdens, or commands sin. In such cases, one must obey God rather than human law.

Q4: Can the rich be taxed more than the poor? #

A: This question is explored but not definitively resolved in the lecture. Berquist notes that proportional taxation is difficult to justify by reason; the common justification (“they can afford it”) fails to provide a real principle of justice. Fair taxation requires proportionality in the quality and type of burden imposed.

Notable Quotes and References #

“Through me kings rule and makers of laws discern just things.” - Proverbs 8 (cited by Aquinas on the derivation of human law from eternal law)

“We ought to obey God more than men.” - Acts 5:29 (foundational principle for conscience and unjust laws)

The principle of proportionality: Laws must impose burdens “according to the quality of proportion” (secundum proportionem) on those subject to them

“If he be perfected by virtue he is the best of the animals; if he be separated from law and justice he is the worst of all.” - Aristotle, Politics (illustrating necessity of law)