Thomas Aquinas

Thomas Aquinas

St Thomas Aquinas (1226-74) became a key figure in the development of a
universal divine law, synthesising the philosophy of Aristotle with Catholic
faith (Freeman, 2001: 105).(For details on Canon Law see Brundage (1969) and Helmholz (1996)). As a philosopher, he drew a distinction between
reason and belief. While his theories assert that God’s law is always superior
to that of man,(According to Aquinas, ‘[d]ivine law is
supreme. But the whole of divine law is not accessible to men’)
by abandoning the idea that all human law-making
was inherently tainted, he granted a rightful place to positivism, setting in
train reinvigorated thinking about how to harmonise legislative power with
natural law axioms and opening avenues for the later domination of legal
positivism. In fact, Aquinas was an unacknowledged early legal pluralist. His
theories are based on the understanding that different types of law co-exist
and interact with each other harmoniously and conflictingly. Harris (1980: 8)
explained:
“His legal theory encompasses four types of law. ‘Eternal law’ comprises
God-given rules governing all creation.36 ‘Natural law’ is that segment of
eternal law which is discoverable through the special process of reasoning
mapped out by the pagan authors intuitions of the natural and deductions
drawn therefrom.37 ‘Divine law’ has been revealed in Scripture.38 ‘Human
law’ consists of rules, supportable by reason, but articulated by human
authorities for the common good.39 As to the interrelation between these
different types of law, two crucial propositions stand out in Thomist philosophy.
First, human laws derive their legal quality, their power to bind
in conscience, from natural law . . . In some instances, the content of law
is deducible from first principles of natural law; for the rest, the legislator
has the freedom of an architect. Secondly, any purported law which is in
conflict with natural or divine law is a mere corruption of law and so not
binding by virtue of its own legal quality; nevertheless, even if an enactment
is contrary to natural law and so ‘unjust’, obedience may still be proper to
avoid bad example or civil disturbance.

Freeman (2001: 106) sees this lex aeterna as ‘divine reason, known only to God and “the
blessed who see God in his essence” . It is God’s plan for the universe, a deliberate act of
God and everything, not only man, is subject to it.’ From a comparative perspective, we
note that this concept is also reflected in other legal traditions, particularly in the Islamic
concepts of Allah’s omniscience, the privileged position of the Prophet Mohammad as
the only human in close contact with God, and the competing claims of later jurists.

37 This is lex naturalis or lex natura, which ‘consists of participation of the eternal law in
rational creatures . . . in so far as this is intuitively and innately known and knowable’
(Freeman, 2001: 106). This natural law is the same for all men, since all people are rational.
However, Aquinas himself conceded that ‘the will to do right and awareness of what is
right may be distorted by habit, custom or temperament’ (p. 106), which further confirms
that Aquinas was an early legal pluralist.


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