St. Thomas defines law in Summa Theologiae I-II q. 90 aa. 1-4. It is an ordinance of reason for the sake of the common good made by someone bestowed with the care of the common good and promulgated. Hence, human law, which St. Thomas treats in I-II q. 95, must share the above definition in addition to being derived from the natural law. The corpus of article two brings us to our topic:
As Augustine says in De Libero Arbitrio 1, “A law that is not just does not seem to be a law at all.” Hence, something has the force of law to the extent that it shares in justice. Now in human affairs something is called just by virtue of its being right (rectum) according to the rule of reason. But as is clear from what was said above (q. 91, a. 2), the first rule of reason is the law of nature. Hence, every humanly made law has the character of law to the extent that it stems from the law of nature. On the other hand, if a humanly made law conflicts with the natural law, then it is no longer a law, but a corruption of law.
Summa theologiae, Ia-IIae, q.95, a.2, c.
In brief, any law that is unjust or is at odds with the natural law is a corruption or perversion of law. We might then ask whether and to what extent do “laws” of this kind indict the legitimacy of the ruler(s) who wrote them and then whether and to what extent the people must oppose and disobey them. We have some guidance from ST I-II q. 96 a. 4:
On the other hand, there are two ways in which laws are unjust. First, in counterpoint to what was said above, they are unjust when they are contrary to the human good either (a) because of their end, as when the lawmaker imposes burdens on his subjects that contribute not to the common welfare but to his own greed or glory, or (b) because of their author, as when someone makes laws that go beyond the authority entrusted to him, or (c) because of their form, as when burdens are distributed unequally over the multitude, even if those burdens are ordered toward the common good. Laws of this sort are outrages (violentiae) rather than laws, since, as Augustine puts it in De Libero Arbitrio, “What is not just does not seem to be a law.” Hence, laws of this sort do not bind in conscience (non obligant in foro conscientiae)—except perhaps for the sake of preventing scandal or social unrest (turbatio), in which case a man should cede his right, in accord with Matthew 5:40-41 (“If someone forces you to go one mile, go with him another two …… and if someone takes away your coat, give him your cloak as well”). The second way in which laws can be unjust is by being contrary to the divine good, as are tyrannical laws that induce men to idolatry or to doing anything else that is contrary to divine law. It is not permissible to obey such laws in any way at all, since as Acts 5:29 says, “We must obey God rather than men.”
Summa theologiae, Ia-IIae, q.96, a.4, c.
There do appear to be instances that one ought not to resist an unjust law to avoid ‘scandal’ or ‘social unrest’ even though the law is an outrage against the human good. However, if the authority does something contrary to divine law, it must not be obeyed at all neither outwardly or inwardly.
Discussion Questions
- Is St Thomas consistent in saying there are some outrageous laws that it might be better to permit, but outrageous laws against the divine good ought never be permitted? For instance, if the state passes a law that steals from its citizens, is that not against divine law (sc., the Ten Commandments)? Furthermore, is it not a consequentialist argument that we ought to go along with x, y, or z evil to avoid a worse evil?
- St Thomas does seem to be treading lightly here with his “except perhaps” clause. Matthew 5:40-1 concerns, perhaps, private rather than public virtue. If we take the ‘maybe’ here as a ‘no’ and these outrages are not morally binding—which is essentially what the entire article claims—what exactly are we supposed to do?
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