File: Brewbaker Macro Update Created on: 3/9/2007 10:06 AM Last Printed: 3/9/2007 10:28 AM THOMAS AQUINAS AND THE METAPHYSICS OF LAW William S. Brewbaker III* ABSTRACT Despite modernity’s longstanding aversion to metaphysics, legal schol- ars are increasingly questioning whether law can be understood in isolation from wider questions about the nature of reality. This Article examines per- haps the most famous of metaphysical legal texts—Thomas Aquinas’s still widely read Treatise on Law—with a view toward tracing the influence of Thomas’s metaphysical presuppositions. This Article shows that Thomas’s account of human law cannot be fully understood apart from his metaphysics. Attention to Thomas’s hierarchical view of reality exposes tensions between Thomas’s “top-down” account of law and his sophisticated “bottom-up” observations. For example, Thomas grounds human law’s authority in its foundation in the “higher” natural and eternal laws. At the same time, he is well aware that many if not most legal questions involve “determination of particulars”—the resolution of ques- tions that might reasonably be answered in more than one way. Thomas’s metaphysics sometimes works against his inclination to give place to human freedom in the creation of law. Thomas’s metaphysical approach also raises important questions for contemporary legal theory. His insistence on addressing the question of law’s ontological status, for example, challenges the reductionism of much contemporary jurisprudence and provides a vocabulary for accounting for the wide variety of analytical approaches legal philosophers employ. INTRODUCTION..........................................................................................576 I. THOMAS AQUINAS’S METAPHYSICAL CONCEPTION OF NATURE..........580 II. LAW’S ESSENCE....................................................................................584 A. Defining Law..................................................................................584 B. Metaphysical Influences in the Treatise.........................................588 III. HUMAN LAW’S ONTOLOGY.................................................................592 * Professor of Law, University of Alabama. I am grateful to Alfred Brophy, Alan Durham, David VanDrunen, Timothy Hoff, Mark Murphy, John Nagle, and Michael Pardo for helpful comments on previous drafts of this Article. I am also grateful to Dean Ken Randall and the University of Alabama Law School Foundation for generous research support, to Chris Sanders for research assistance, to Caro- line Barge for secretarial assistance, and to Ben Lucy for his friendship and encouragement. The errors that remain are mine. 575 File: Brewbaker Macro Update Created on: 3/9/2007 10:06 AM Last Printed: 3/9/2007 10:28 AM 576 Alabama Law Review [Vol. 58:3:575 A. Is There Such a Thing as Law?......................................................592 B. Unjust Laws....................................................................................594 IV. ORDERS OF REALITY/METHODOLOGY................................................600 V. BEING: HIERARCHICAL AND ANALOGICAL...........................................605 A. The Hierarchy of Being: An Overview ..........................................605 B. Hierarchy and Analogical Knowledge...........................................607 C. Hierarchy, Analogy, and the Treatise on Law................................609 CONCLUSION..............................................................................................613 INTRODUCTION One of the great, if unsurprising, projects of twentieth-century Ameri- can jurisprudence was the attempt to separate law and metaphysics.1 The project was unsurprising because the objections to metaphysics were both numerous and obvious: If metaphysical speculations prevented scientists from “seeing” the natural world clearly, why should the same not be true of law?2 If we cannot give a full account of even the most common (and largely fixed) features of natural reality with any degree of certainty, why make jurisprudence hinge on our ability to do so with respect to human arti- facts like law? And what is the meaning, in any event, of statements that cannot be verified through sense experience and logical deduction?3 Given the mediated nature of our access even to empirical phenomena, why sup- pose that we can understand the deepest principles of being and action that make the world what it is? Why not avoid the temptation to engage in end- less (and fruitless) debates over essences (including law’s essence4) and focus instead on programs that are more likely to succeed, such as analyzing our social practices and the way we talk about them?5 Why allow legal ar- gumentation that draws upon alleged fixities to hamper officials’ ability to make needed reforms?6 Why impede our politics with the philosophical 1. “It would not be much of a stretch . . . to say that the central effort of legal thinkers from Holmes through the Legal Realists through the modern proponents of ‘policy science’ has been precisely to improve law by ridding it of the curse of metaphysics.” STEVEN D. SMITH, LAW’S QUANDARY 2-3 (2004). See generally id. at 65-96 (criticizing main schools of 20th century legal thought). 2. See infra notes 34-38 and accompanying text. 3. See, e.g., Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809, 844-45 (1935). 4. “As Ludwig Wittgenstein described philosophy in general, legal philosophy under a Hartian approach sees its primary purpose as a kind of therapy: a way of overcoming the temptation to ask meta- physical questions (‘what is Law?’ or ‘do norms exist’), and a method of transforming such questions into (re-)descriptions of the way we actually act.” BRIAN BIX, JURISPRUDENCE: THEORY AND CONTEXT 6 (3d ed. 2003) (footnotes omitted). 5. But see Jules L. Coleman & Ori Simchen, “Law,” 9 LEGAL THEORY 1 (2003) (arguing that Hartian jurisprudence is about law itself, not merely the concept of law). See generally H.L.A. HART, THE CONCEPT OF LAW (2d ed. 1994). 6. See generally JEREMY BENTHAM, A FRAGMENT ON GOVERNMENT (J.H. Burns & H.L.A. Hart eds., Cambridge Univ. Press 1988) (1776). File: Brewbaker Macro Update Created on: 3/9/2007 10:06 AM Last Printed: 3/9/2007 10:28 AM 2007] Thomas Aquinas and the Metaphysics of Law 577 vestiges of antiquated religious structures from which we are still in need of liberation?7 Although there is still a near consensus that attempting to define law as a kind and to connect it to a more general account of reality tends to obscure rather than enhance our understanding of law, the verdict is no longer unanimous. Indeed, there seems to have been a modest revival of interest in the relationship between law and metaphysics—not only among religious believers, where such interest might be expected,8 but also among secular theorists as well.9 Conceptual analysis of law, at least in its strong form, has been challenged on methodological grounds;10 there is a stronger philoso- phical argument to be made for moral realism now than was the case a few decades ago,11 and some have questioned whether our ontologically- challenged legal world view can make sense of law as it is practiced by lawyers and judges in any event.12 This Article does not address the merit or demerit of metaphysical legal theory generally. Rather, it has a twofold purpose. First, it attempts to trace the influence of metaphysics in a classic jurisprudential text, Thomas Aqui- nas’s Treatise on Law. Thomas’s understanding of metaphysics is some- what narrower than the conventional modern usage of the word. Contempo- rary usage thinks of metaphysics as “the study of ultimate reality,”13 dealing with questions like, “What are the most general features of the World?[,]” 7. See, e.g., Suzanna Sherry, Outlaw Blues, 87 MICH. L. REV. 1418, 1427 (1989) (reviewing MARK TUSHNET, RED, WHITE, AND BLUE: A CRITICAL ANALYSIS OF CONSTITUTIONAL LAW (1988)) (“[S]uch things as divine revelation and biblical literalism are irrational superstitious nonsense . . . .”). 8. Because the characteristics of the natural world can be ascribed to an Author. 9. “I doubt that there would be a conceivable enterprise called general jurisprudence if law were [merely] a nominal kind . . . .” Michael S. Moore, Law as a Functional Kind, in NATURAL LAW THEORY: CONTEMPORARY ESSAYS 188, 206 (Robert P. George ed., 1992). My own view is that the only things whose nature is fixed by our concepts are ‘things’ that do not exist—Pegasus, the twentieth-century kings of France, and the like. There are no things referred to by such terms, so such words’ meaning can only be given by their concepts. . . . . General jurisprudence should eschew such conceptual analysis in favour of studying the phe- nomenon itself, law. Id. at 205-06; see also SMITH, supra note 1; Ronald J. Allen & Michael S. Pardo, Facts in Law and Facts of Law, 7 INT’L J. EVIDENCE & PROOF 153, 157-61 (2003); Ronald J. Allen & Michael S. Pardo, The Myth of the Law-Fact Distinction, 97 NW. U. L. REV. 1769, 1790-97 (2003); Coleman & Simchen, supra note 5; Michael S. Moore, Legal Reality: A Naturalist Approach to Legal Ontology, 21 LAW & PHIL. 619 (2002). 10. “The aim of Conceptual Analysis is to uncover interesting and informative truths about the concepts we employ to make the world rationally intelligible to us. The basic idea is that concepts are reified objects of thought that structure our experience and make the world rationally intelligible to us, and because they are shared are essential to our ability to communicate with one another.” Jules L. Coleman, Methodology, in THE OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW 311, 344 (Jules Coleman & Scott Shapiro eds., 2002). Coleman further notes that “[i]t is nowadays a com- monplace in philosophy that Quine has presented several compelling arguments adequate to undermine the projects of Conceptual Analysis.” Id. 11. See generally MICHAEL MOORE, OBJECTIVITY IN ETHICS AND LAW (2004). 12. See, e.g., SMITH, supra note 1, at 22-37; Robert P. George, What is Law? A Century of Argu- ments, FIRST THINGS, Apr. 2001, at 23, 23-29. 13. PETER VAN INWAGEN, METAPHYSICS 1 (1993). File: Brewbaker Macro Update Created on: 3/9/2007 10:06 AM Last Printed: 3/9/2007 10:28 AM 578 Alabama Law Review [Vol. 58:3:575 “Why does a World exist?,” and “What is our place in the world?”14 Tho- mas understands the term rather more narrowly as referring to the investiga- tion of the general, transcendental characteristics of being and beings.15 Al- though Thomas’s metaphysics leaves an unmistakable imprint on his ac- count of law,16 the Treatise is often read as though Thomas’s understanding of the way things are were not all that different from ours.17 Second, I hope to show that Thomas’s account of law, in all its metaphysical splendor and obscurity, raises questions about law that might profitably be examined in the process of attempting to construct an account of human law that con- nects to worldly realities. Even if we reject Thomas’s metaphysics, the an- gelic doctor may still have something to teach us. Part I begins by connecting Thomas’s account of law—especially his account of natural law—with his conception of nature.18 Thomas’s account 14. Id. at 4. Inwagen also helpfully uses the antinomy of appearance and reality and the idea of “getting behind” appearances to reality to illustrate the domain of metaphysics as the study of “ultimate reality.” Id. 15. In the prologue to his Commentary on the Metaphysics of Aristotle, Thomas characterizes meta- physics as the science that “considers first causes,” that “deals with the most universal principles”— specifically “being and those things which naturally accompany being, such as unity and plurality, po- tency and act”—and that considers things that are “separate from matter” (i.e., God and the angels). ST. THOMAS AQUINAS, COMMENTARY ON THE METAPHYSICS OF ARISTOTLE 1 (John P. Rowan trans., Henry Regnery Co. 1961) [hereinafter AQUINAS, METAPHYSICS OF ARISTOTLE]. These inquiries are unified by their consideration of “being in general.” Id. at 2. The science is known by different names because it considers being under these various aspects: “It is called divine science or theology inasmuch as it con- siders [God and the intellectual substances]. It is called metaphysics inasmuch as it considers being and the attributes which naturally accompany being . . . . And it is called first philosophy inasmuch as it considers the first causes of things.” Id.; see also ANTHONY J. LISSKA, AQUINAS’S THEORY OF NATURAL LAW 86 (1996) (characterizing scholastic understanding of metaphysics as “referring . . . to transcenden- tal claims about being”). 16. Clearly, Thomas does not deduce his account of law from his metaphysical system in a histori- cal and theological vacuum. I have not attempted to sort out the relative influence of history, Christian doctrine, and metaphysics in his thought but only to show that metaphysics conditions his account in significant ways. 17. The obvious exception to this statement is the routine acknowledgment that teleology has an important place in Thomas’s account of law. 18. To understand a particular account of natural law, one must grapple with at least two broad questions. The first is a question of methodology: What is the relationship between nature and ethics or law? In recent years, the fact/value dichotomy has consumed most of this aspect of the discussion. Scholars sympathetic to the natural law tradition increasingly argue that the fact/value dichotomy has “collapsed” or otherwise is avoided in natural-law thinking. See Kevin P. Lee, The Collapse of the Fact/Value Dichotomy: A Brief for Catholic Legal Scholars, 1 J. CATH. SOC. THOUGHT 685, 685-86 (2004); see also LISSKA, supra note 15, at 195-201; ALASDAIR MACINTYRE, AFTER VIRTUE 51-61 (2d ed. 1984). The second question is more basic: When theorists speak of nature, what do they have in mind? Consider, for example, the different images used to represent nature at various times and places. Female imagery for nature abounded in the Middle Ages and Renaissance: “The earth was to be conceived as a nurturing mother, who sustained and supported humanity throughout their time of sojourn in the world.” 1 ALISTER E. MCGRATH, A SCIENTIFIC THEOLOGY: NATURE 105 (2001). Other prominent images in- cluded the organism, Francis Oakley, Medieval Theories of Natural Law: William of Ockham and the Significance of the Voluntarist Tradition, 6 NAT. L.F. 65, 79 (1961) (citing R.G. COLLINGWOOD, THE IDEA OF NATURE (1945)); the machine, id.; the stage; the book; and the mirror, 1 MCGRATH, supra, at 103-05, 107-10. The idea that “laws of nature” exist is a similar construct. Id. at 226-28 (citing Francis Oakley, Christian Theology and the Newtonian Science, in CREATION: THE IMPACT OF AN IDEA 54-83 (Daniel O’Connor & Francis Oakley eds., 1961)). Imagery also may be useful in describing what nature is not; nature frequently is represented in opposition to grace, “unnatural” vices, technology, culture, the mimetic arts, the supernatural, the metaphysical, and even the inexcusable. C.S. LEWIS, STUDIES IN File: Brewbaker Macro Update Created on: 3/9/2007 10:06 AM Last Printed: 3/9/2007 10:28 AM 2007] Thomas Aquinas and the Metaphysics of Law 579 of law depends fundamentally on his conception of human action and the characteristic inclinations of the human person.19 The focus here, however, will be on Thomas’s account of nature in general. Contemporary concep- tions of nature are dominated by the hard sciences, which attempt to identify empirically the connections between individual discrete events in the natural order.20 Thomas’s goal in describing nature, on the other hand, is to identify WORDS 42-74 (2d ed. 1967); see also JOHN HABGOOD, THE CONCEPT OF NATURE 1-5 (2002). Not only is nature represented by conflicting images, but many theoretical accounts of nature also exist. This is not merely a modern phenomenon. Thomas himself notes multiple uses of the word nature. See ST IaIIae.10.1 (for a discussion of this citation format, see infra note 19). Plato and Aristotle, for example, both divided the world into the realms of nature, art, and chance but differed as to each realm’s precise role in the overall scheme of things. 1 MCGRATH, supra, at 90-95. They likewise dif- fered over the origins of human perceptions of universals and particulars. Medievals inherited a tradition of reflection on natural law that drew not only upon conflicting Stoic and Platonic elements but also upon accounts of natural law based in different traditions of inquiry. The project of medieval synthesis involved assimilating accounts of nature and natural law drawn not only from philosophers and theologi- ans but also from canon and civil lawyers. See JEAN PORTER, NATURAL AND DIVINE LAW 66-75 (1999). The natural sciences dramatically and increasingly have influenced accounts of nature since then. Far from seeing nature as a “second book” of God’s revelation, see id. at 71, it is now common to view nature only as “the amoral scene of Darwinian struggle.” RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 235 (1990). The concrete consequences of differing conceptions of nature are perhaps exhibited nowhere better than in law. Scholars who would strenuously resist the label “natural lawyer” nevertheless cannot avoid being interested in the world in which law must operate. The efficiency-minded academic lawyer is concerned with the psychology of market decision-making, the family lawyer with which features of family life are “givens” and which are not, see generally SEX, PREFERENCE AND FAMILY: ESSAYS ON LAW AND NATURE (David M. Estlund & Martha C. Nussbaum eds., 1997), and the environmental law- yer with whether nature is “a material resource for human consumption” or something else, see Holly Doremus, The Rhetoric and Reality of Nature Protection: Toward a New Discourse, 57 WASH. & LEE L. REV. 11, 13-14 (2000) (noting “three principal discourses” of nature in environmental debates: the first “treats nature as a material resource for human consumption”; the second “treats nature as an esthetic resource”; and the third “argues that humanity has an ethical obligation to protect nature independent of any instrumental value nature may have”). See also Alex Geisinger, Sustainable Development and the Domination of Nature: Spreading the Seed of the Western Ideology of Nature, 27 B.C. ENVTL. AFF. L. REV. 43, 47-48 (1999) (criticizing Western ideology of “separation and domination” with respect to nature and noting alternative “metaphors for our understanding of nature,” including “(1) nature as a limited resource on which humans rely; (2) nature as balanced and interdependent; and (3) the model of nature versus society, characterized by the market’s devaluation of nature, the separation from nature that leads to failure to appreciate it, and the American idealization of the environmentalism of primitive peoples”). 19. See ST IaIIae.90.1, c. In citing to Thomas’s Summa Theologica, I have borrowed Norman Kretzmann’s form: [The abbreviation ST is followed by] the traditional designation for the Part (Pars)—Ia (Prima), IaIIae (Prima secundae), IIaIIae (Secunda secundae), or IIIa (Tertia). The first arabic numeral following any one of those des- ignations indicates the Question in that Part, and the next arabic numeral, following a full point, indicates the Article belonging to that Question. A ‘c’ immediately following the sec- ond arabic numeral indicates that the passage belongs to Aquinas’s reply in that Article (the ‘body’ (corpus) of the Article); ‘obj. 1’, ‘obj. 2’, etc., indicates one of the ‘objections’ (op- posing arguments); ‘sc’ indicates the ‘sed contra’ (the citation of an authority or generally ac- ceptable consideration contrary to the line taken in the Objections), and ‘ad 1’, ‘ad 2’, etc., indicates one of Aquinas’s rejoinders to the objections. NORMAN KRETZMANN, THE METAPHYSICS OF CREATION: AQUINAS’S NATURAL THEOLOGY IN SUMMA CONTRA GENTILES II 9 n.16 (1999). Analogous forms are used for Thomas’s other works cited in this Article. Unless otherwise noted, translations of the Summa Theologiae are taken from ST. THOMAS AQUINAS, SUMMA THEOLOGICA (Fathers of the English Dominican Province trans., Christian Classics 1981). 20. “Modern science studies the world of space and time, not some reality beyond them, and arose File: Brewbaker Macro Update Created on: 3/9/2007 10:06 AM Last Printed: 3/9/2007 10:28 AM 580 Alabama Law Review [Vol. 58:3:575 the common characteristics of “beings” and the principles underlying their movements, i.e., to develop a science of metaphysics. Part II begins the exploration of the specifics of Thomas’s metaphysics with an account of his attempt to define law’s essence. Examination of Thomas’s famous definition of law shows how, following Aristotle’s method, Thomas thinks law can be understood by focusing on its formal, final, material, and efficient causes. It also shows how Thomas’s meta- physical assumptions about bodies and human action affect the specifics of Thomas’s account. Part III examines Thomas’s account of human law’s ontology, which raises a number of metaphysical questions, including the ontological status of human law relative to other types of law, the status of unjust laws in Thomas’s framework, and how it is that human laws can vary so significantly notwithstanding their shared ontological dependence on the single natural law. Part IV describes Thomas’s methodology, which is grounded on the as- sumption that there are different orders of reality and, thus, different meth- ods of analysis that may obtain for different kinds of realities in the world. Thomas’s account challenges the reductionism of some contemporary juris- prudence, while at the same time explaining why law is fruitfully analyzed from so many competing perspectives. Part V examines two of the most well-known features of Thomas’s metaphysics: the analogy of being and his assumption that reality is funda- mentally hierarchical, proceeding in a chain from God downward through successively inferior orders of angels, humans, animals, plants, and inani- mate objects. Part V connects these assumptions about reality with Tho- mas’s account of law. Thomas affirms a substantial degree of human free- dom in human lawmaking, drawing a helpful analogy between rulers and architects. Nevertheless, because Thomas holds that God’s plan for the uni- verse extends even to the minutest details of human law, and because all being is, for Thomas, hierarchical, there is a noteworthy gravitational pull against human freedom in lawmaking at work in the Treatise, albeit one that Thomas himself repeatedly seems to be striving to resist. I. THOMAS AQUINAS’S METAPHYSICAL CONCEPTION OF NATURE Thomas Aquinas is probably best known to legal scholars for his ac- count of natural law in Question 94 of the Treatise on Law. One of the first when a logical quest for timeless patterns gave way to a mathematical, hypothetical and experimental approach to the contingent rationality of space and time . . . .” COLIN E. GUNTON, THE ONE, THE THREE AND THE MANY 75 (1993) [hereinafter GUNTON, THE ONE, THE THREE AND THE MANY]; see also ETIENNE GILSON, THE CHRISTIAN PHILOSOPHY OF THOMAS AQUINAS 178 (Univ. of Notre Dame Press 1994) (1956) (modern empiricism reduces causation to “constant relationship[s] between phenomena”); COLIN E. GUNTON, THE TRIUNE CREATOR 134 (1998) [hereinafter GUNTON, THE TRIUNE CREATOR] (“[T]he modern age replaced an essentially Hellenic philosophy of nature, according to which it is what it is by virtue of intrinsic rational powers and causes operating above material being, with one of contin- gencies consisting in patterning within it.”). See generally M.B. Foster, The Christian Doctrine of Crea- tion and the Rise of Modern Natural Science, 43 MIND 446 (1934). File: Brewbaker Macro Update Created on: 3/9/2007 10:06 AM Last Printed: 3/9/2007 10:28 AM 2007] Thomas Aquinas and the Metaphysics of Law 581 questions that will occur to any reader of Question 94 (or indeed to anyone who thinks much about the phrase “natural law”) is which “nature” is grounding the enterprise: Human nature? The cosmos? The nature of law? In his treatment of natural law, Thomas explicitly connects law and na- ture in two ways. First, he says in Question 90 that “God instilled [natural law] into man’s mind so as to be known by him naturally.”21 Second, the characteristic inclination of the human person is to use the “light of natural reason, whereby we discern what is good and what is evil.”22 Implicitly, however, Thomas’s account of law is also influenced dramatically by his presuppositions about the nature of reality. For Thomas, what is most im- portant about nature is not the observable web of contingent patterning23 but rather the universal principles that lie beneath observable particulars.24 Thus, for example, in the Treatise on the Creation,25 Thomas begins neither with the particular story told in Genesis 126 nor with a bottom-up account of natural phenomena but rather with a philosophical demonstration that “God is the efficient, the exemplar and the final cause of all things, and [that] primary matter is from Him.”27 Thomas’s focus on universal principles of being is no accident. Rather, he argues, it is the culmination of human scientific progress over the centu- ries: The ancient philosophers “failed to realize that any beings existed ex- cept sensible bodies,” and because they regarded matter as eternal and un- created, they had trouble accounting for changes they observed in it.28 The recognition of “a distinction between the substantial form and matter”29 improved upon this understanding, even though the causes of change in bodies continued to be attributed mistakenly to “universal causes” like the zodiac or Platonic ideas. Further refinements of the classical understanding of the interconnection between form, substance, accident, and causation likewise aided human understanding, but the most significant change, ac- 21. ST IaIIae.90.4, ad 1. 22. ST IaIIae.91.2, c. John Finnis characterizes Thomas’s answer to the question why natural law is so called as follows: Why are these principles natural law? Not because they are somehow read off from nature or human nature. Rather, for at least three reasons. They are not made by human devising {ad- inventio} but rather are first-order realities, as are the other realities which pertain to our na- ture. Their reasonableness, moreover, is a sharing in the practical reasonableness, the wis- dom, of the very author of our nature, the creator by whose wisdom and power the fulfilment which we can freely choose is (like our freedom itself) made possible. And no human choices or acts are against the natural law (or indeed against any divine law) except in so far as they are against human good. JOHN FINNIS, AQUINAS: MORAL, POLITICAL, AND LEGAL THEORY 309 (1998) (footnote omitted); see also RUSSELL HITTINGER, THE FIRST GRACE xxi-xxiii (2003). 23. See supra note 20. 24. I do not mean to suggest Thomas is uninterested in the natural world, only that he thinks the most important task for understanding the natural world is understanding “being in general.” 25. ST Ia.44-49. 26. But see Treatise on the Work of the Six Days, ST Ia.65-74, which appears afterward. 27. ST Ia.44.4, ad 4. The quotation appears at the end of Question 44 and seems to summarize Thomas’s position as set out in the various articles therein. 28. ST Ia.44.2, c. 29. Id. File: Brewbaker Macro Update Created on: 3/9/2007 10:06 AM Last Printed: 3/9/2007 10:28 AM 582 Alabama Law Review [Vol. 58:3:575 cording to Thomas, was one of focus—from a consideration of “being under some particular aspect . . . to the consideration of being, as being.”30 Tho- mas concludes that “whatever is the cause of things considered as beings, must be the cause of things [generally].”31 Thomas’s primary approach to nature, then, is to try to discover princi- ples that apply generally to all beings, an approach that involves back- ground assumptions radically different from those modern readers would bring to the same enterprise. Most of us are unaccustomed to thinking in explicitly metaphysical terms at all, much less in the highly developed Aris- totelian scheme Thomas inherits and reconfigures. More fundamentally, we tend to take our conception of nature from the contemporary natural sci- ences, which are largely empiricist. Because modern science’s goals involve the identification of generalizable relationships and working principles that enable prediction or manipulation of future states of affairs, it cannot avoid metaphysics (or something like it) entirely.32 Nevertheless, modern concep- tions of metaphysics are far more limited and modest than those Thomas employs.33 As noted above, a working assumption of the modern scientific method is that a too-robust metaphysics hinders efforts to learn the truth about the world. At least since Francis Bacon’s assault on Aristotle in The New Or- ganon,34 empiricists have argued that a priori conceptions of reality obscure 30. Id. 31. ST Ia.44.2, c; see also Jan A. Aertsen, Aquinas’s Philosophy in Its Historical Setting, in THE CAMBRIDGE COMPANION TO AQUINAS 12, 28-30 (Norman Kretzmann & Eleonore Stump eds., 1993) (citing passage in relation to Thomas’s belief in philosophical progress); cf. ST Ia.75.1, c. Thomas never- theless conceived of himself as a naturalist. See generally GUNTON, THE TRIUNE CREATOR, supra note 20, at 105-07, 112. 32. See, e.g., WILLEM B. DREES, RELIGION, SCIENCE AND NATURALISM 152, 259-74 (1996) (argu- ing that “our understanding of reality raises some questions, questions which are not themselves an- swered by science and thus may be considered as pointing beyond science to metaphysical issues, with- out, however, pointing to one particular metaphysical view”); 3 ALISTER E. MCGRATH, A SCIENTIFIC THEOLOGY: THEORY 250-58 (2003) (arguing that scientists’ attempts to evade metaphysics entirely have been unsuccessful). 33. See generally LISSKA, supra note 15, at 86. Even modern religious believers outside the Thomist tradition are likely to find Thomas’s approach to nature uncongenial. To begin with, they are likely to share—in practice if not in theory—the culture’s empiricist approach to understanding nature. Even assuming they are prepared to find a place for a divine ordering in nature, Thomas’s emphasis on being and his use of Aristotle’s fourfold account of causation will seem strange and out of kilter with modern scientific understanding. Readers from Christian traditions marked by a skepticism toward natural theology also may find an insufficient connection between Thomas’s account of the created order and more particular aspects of the biblical narrative, including Jesus’s incarnation and promised return to consummate all things. 34. Bacon writes: The most obvious example of the first type is Aristotle, who spoils natural philosophy with his dialectic. He constructed the world of categories; he attributed to the human soul the no- blest substance, a genus based on words of second intention; he transformed the interaction of dense and rare, by which bodies occupy greater and smaller dimensions or spaces, into the unilluminating distinction between act and potentiality; he insisted that each individual body has a unique and specific motion, and if they participate in some other motion, that motion is due to a different reason; and he imposed innumerable other things on nature at his own whim. He was always more concerned with how one might explain oneself in replying, and to giving some positive response in words, than of the internal truth of things; and this shows up best if we compare his philosophy with other philosophies in repute among the Greeks. File: Brewbaker Macro Update Created on: 3/9/2007 10:06 AM Last Printed: 3/9/2007 10:28 AM 2007] Thomas Aquinas and the Metaphysics of Law 583 rather than illuminate natural phenomena.35 Bacon argued, for example, that acceptance of Aristotle’s emphasis on natural teleology discouraged con- crete investigation into more immediate cause-and-effect relationships.36 Though it took some time for the inductive method to take root, the modern natural sciences are now so firmly committed to the priority of empirical observation over a priori theorizing that it can be difficult to imagine an alternative conception of the “scientific method.”37 Thomas’s conception of nature, then, is at odds with modern working assumptions about the natural world in two respects. First, his account is metaphysical in the general sense that its primary goal is to identify and apply the unseen principles that govern all reality (specifically everything that partakes of being) to all facets of life rather than to examine particular phenomena in a systematic way to discern connections between events. Second, Thomas assumes, contrary to Bacon and the empiricists, that the most important thing to understand about an object is what it is for—where it fits in the cosmic order. While it seems unlikely that science will abandon its quest for something like the underlying principles that were the subject of the metaphysicians’ quest, a strongly teleological account of the natural The ‘similar substances’ of Anaxagoras, the atoms of Leucippus and Democritus, the earth and sky of Parmenides, the strife and friendship of Empedocles, the dissolution of bodies into the undifferentiated nature of fire and their return to solidity in Heraclitus, all have something of natural philosophy in them, and have the feel of nature and experience and bodies; whereas Aristotle’s physics too often sound like mere terms of dialectic, which he rehashed under a more solemn name in his metaphysics, claiming to be more of a realist, not a nominalist. And no one should be impressed because in his books On Animals and in his Problems and other treatises there is often discussion of experiments. He had in fact made up his mind before- hand, and did not properly consult experience as the basis of his decisions and axioms; after making his decisions arbitrarily, he parades experience around, distorted to suit his opinions, a captive. Hence on this ground too he is guiltier than his modern followers (the scholastic philosophers) who have wholly abandoned experience. FRANCIS BACON, THE NEW ORGANON 51-52 (Lisa Jardine & Michael Silverthorne eds., 2000) (1620) (Aphorism LXIII). 35. Thomas’s metaphysics has been accused of obscuring both scientific observation and biblical interpretation. Later theologians have argued (in a vein not dissimilar to Bacon) that philosophical con- ceptions of God inherited from the ancient Greek philosophers, some of which Thomas inherits and does not modify adequately—particularly his account of God and God’s relation to the creation—have inhib- ited a full understanding of the biblical narrative as it might inform a theological understanding of crea- tion. Colin Gunton, for example, argues that neglect of the doctrines of the incarnation, the divine cove- nants, and eschatology generally has hampered an understanding of the created order that makes room both for the integrity of the created order as distinct from the Creator and for God’s continuing purpose for, and interaction in time within, creation. See generally GUNTON, THE TRIUNE CREATOR, supra note 20; see also OLIVER O’DONOVAN, RESURRECTION AND MORAL ORDER 53-75 (1986) (eschatology). 36. Bacon argues: It is no less of a problem that in their philosophies and observations they waste their efforts on investigating and treating the principles of things and the ultimate causes of nature (ulti- matibus naturae), since all utility and opportunity for application lies in the intermediate causes (in mediis). This is why men do not cease to abstract nature until they reach potential and unformed matter, nor again do they cease to dissect nature till they come to the atom. Even if these things were true, they can do little to improve men’s fortunes. BACON, supra note 34, at 55 (Aphorism LXVI). 37. Oliver O’Donovan has made the point succinctly: “Only when thought could escape the inhibit- ing influence of a teleological philosophy could it examine the universe in a way that was open to the contingency of relations, not presupposing that it would find a unifying purposiveness but prepared to find exactly what it did find.” O’DONOVAN, supra note 35, at 45. File: Brewbaker Macro Update Created on: 3/9/2007 10:06 AM Last Printed: 3/9/2007 10:28 AM 584 Alabama Law Review [Vol. 58:3:575 world has come to be seen as implausible in the wake of the natural sci- ences’ extraordinary successes, which have been brought about largely by the abandonment of a teleological focus.38 As discussed below, Thomas’s metaphysical presuppositions decisively shape his account of nature and thus his accounts of natural and human law. However, unless we are to re- peat the scholastics’ mistakes, we cannot simply assume a priori that Tho- mas’s account of law is unenlightening because of its metaphysical orienta- tion. The account itself must be explored. II. LAW’S ESSENCE A. Defining Law The Treatise on Law begins, naturally enough, with a consideration of law’s essence. Thomas analyzes law, by analogy,39 as if it were a natural kind.40 In Thomas’s world, natural kinds are marked by their essences, which are identified in terms of the characteristic tendencies of the members of the group marked out as that kind of being.41 Although Thomas modifies important aspects of Aristotle’s metaphysics, he adopts Aristotle’s basic framework for understanding essences in the natural world. Thomas accepts Aristotle’s hylomorphic account of objects; his account of motion, act, and potentiality; and, most importantly for present purposes, his fourfold ac- count of causation.42 Like Aristotle, Thomas is interested in accounting for the observed fact that all material beings exhibit both stability and change and for material beings’ simultaneous universality (i.e., membership in a class of beings) and particularity (e.g., Socrates and John are both men, but they are not each other). In broad outline, a material being’s essence is understood best in terms of four causes: (1) its form—that which allows one to know what something is; (2) its matter—what it is made of; (3) its efficient cause— where it came from or the point at which its motion started; and (4) its final cause—what it is for/where it is headed.43 Because law is not a material entity, the fourfold causation model can be applied only analogically.44 Thomas argues that law’s formal cause is “an 38. See O’DONOVAN, supra note 35, at 45. But see GUNTON, THE TRIUNE CREATOR, supra note 20, at 105-06 (criticizing Aristotle for de-emphasizing the material relations of things in favor of “ideal or intellectual relations of things”); id. at 106 (“[T]he key to later science is the combination of experiment and mathematics which goes ill with Aristotle’s tendency to classify phenomena rationally . . . .”). 39. See infra Part V (C). 40. See infra Part III. 41. Cf. LISSKA, supra note 15, at 103-05. 42. See generally F.C. COPLESTON, AQUINAS 73-110 (Penguin Books 1991) (1955). 43. See 1 AQUINAS, METAPHYSICS OF ARISTOTLE, supra note 15, I.L.4:C, at 70-71; see also PIERRE CONWAY, METAPHYSICS OF AQUINAS 34 (Mary Michael Spangler ed., 1996). 44. See infra Part V; cf. FINNIS, supra note 22, at 31. On Aristotle’s application of fourfold causa- tion to manmade and other objects, see R.J. Hankinson, Philosophy of Science, in THE CAMBRIDGE COMPANION TO ARISTOTLE 109, 121-22 (Jonathan Barnes ed., 1995). In addition to that adduced below, the textual evidence favoring the claim that Thomas consciously is using the fourfold causation model is