Sources of St. Thomas’ Concept of Natural Law

THE THOMIST A SPECULATIVE QUARTERLY REVIEW OF THEOLOGY AND PHILOSOPHY EDIToRs: THE DoMINICAN FATHERS OF THE PRoviNCE oF ST. JosEPH Publishers: The Thomist Press, Washington 17, D. C. VoL. XX JULY, 1957 No.3 SOURCES OF ST. THOMAS' CONCEPT OF NATURAL LAW I THE EMERGENCE OF THE PRECEPTS INTO RoMAN LAw T HE convergence of two principal lines of influence provide an original source of the concept of natura). law and its primary precepts as understood by St. Thomas Aquinas in the Summa Theologiae.1 Into this fluid and still largely indeterminate deposit St. Thomas brings synthetic, ordered and ultimate expression. Synthetic, in the sense that the law and its precepts are there seen in a context until then unattained. Their formulation within the Summa Theologiae brings an altogether new perspective, within an ontological hierarchy that is primarily and formally theological, 1 The developed doctrine appears between Questions 90-97 of the Prima Secundae. 237 238 PATRICK M. FARRELL but into which the perfection of Roman Law and of Greek philosophical genius has been incorporated and integrated.2 An order of primary precepts is established, and from a twofold standpoint. First in the derivation of the precepts from elementary per se nota principles and ultimately from the principle of contradiction. Secondly, in the disposition of the precepts among themselves. It will be necessary to insist upon this point since much previous and subsequent confusion has its roots in inversions of this order. The formulation is ultimate, again in a double sense. It is ultimate a priori in the unassailable metaphysical basis upon which it is established in the Summa and a posteriori, from the fact that the attempts of subsequent history have provided no satisfactory alternative. The two lines providing the original deposit comprise what we shall term the philosophical factor, with its roots in Hellenic speculation; and the genius of Roman jurisprudence deriving from, and enforced in fact from, the peculiar historical context of which Rome found itself the center. This we shall term the legal factor. We shall consider the main historical features of these two factors and their convergence at a point most fruitful in the express development of the precepts, at the close of the Roman Republic, and before the early Classical period of law under the Principate.3 It will then be possible to examine the principal characteristics of the period of convergence itself. • " Si telles (the rediscovery of antiquity and intense revival of interest therein) sont les deux composantes spirituelles de toute renaissance, nous voici attentifs a discerner dans le cas de saint Thomas d'Aquin ce qu'il recueillera de !'heritage antique, mais aussi ce par quoi son genie transformera l'homme d'Aristote, comme Ia grace renove Ia nature sans en violenter Ia structure originelle. Rarement fut-il plus beau cas d'une concurrence de !'inspiration creatrice, et de Ia plus sincere imitation." M.-D. Chenu; 0. P., Introduction a l'etude de saint Thomas d'Aquin (Montreal-Paris, 1950), p. 28. This work gives (passim) valuable and scientific estimate of various factors, principally in the methodological background of St. Thomas, including the influence of Aristotle. While a historical common-place, this influence is of considerable importance in our context. 3 The close of the Republic is taken as coinciding with the Battle of Actium (81 B. C.), the Principate as beginning in 27 B. C. with the regularizing of his power by Augustus, and the Earlier Classical Period of Law as extending from the SOURCES OF ST. THOMAS' CONCEPT OF NATURAL LAW 239 ARTICLE L The Philosophical Factor. This factor may itself be comprised of two originally distinct elements-the line of the poets (or secondary line), and the line of the formal philosophers (the primary line). (a) The Poetic (or secondary) Line If this is a true line of express but implicit 4 recognition of natural law and of a complex of precepts, then it is chronologically much more ancient than that of the line of formal philosophy . We shall accordingly treat of it first-and principally to dispose of it. It has been suggested that the idea underlying the definition of ius naturale given by Ulpian 5 is already...