THOMAS AQUINAS AND THE METAPHYSICS OF LAW William Brewbaker1 ABSTRACT Despite modernity’s longstanding aversion to metaphysics, legal scholars are increasingly questioning whether law can be understood in isolation from wider questions about the nature of reality. This paper examines perhaps the most famous of metaphysical legal texts– Thomas Aquinas’ still-widely-read Treatise on Law-- with a view toward tracing the influence of Thomas’ metaphysical presuppositions. This article shows that Thomas’ account of human law cannot be fully understood apart from his metaphysics. Attention to Thomas’ hierarchical view of reality exposes tensions between Thomas’ “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 questions that might reasonably be answered in more than one way. Thomas’ metaphysics sometimes works against his inclination to give place to human freedom in the creation of law. Thomas’ 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. TABLE OF CONTENTS Introduction ..................................................................2 I. Thomas Aquinas’ Metaphysical Conception of Nature ...........................9 II. Law’s Essence ... ......................................................15 A. Defining Law ....................................................15 1Professor of Law, University of Alabama. I am grateful to Al Brophy, Alan Durham, David VanDrunen, Timothy Hoff, Mark Murphy, and Mike Pardo for helpful comments on previous drafts of this paper. 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 and to Caroline Barge for secretarial assistance. The errors that remain are mine. 1 B. Metaphysical Influences in the Treatise ................................22 III. Human Law’s Ontology ..................................................30 A. Is There Such a Thing as Law? .........................................30 B. Unjust Laws ........................................................32 IV. ORDERS OF REALITY/METHODOLOGY .......................................41 V. Being: Hierarchical and Analogical .........................................50 A. The Hierarchy of Being: An Overview ................................50 B. Hierarchy and Analogical Knowledge .................................53 C. Hierarchy, Analogy and the Treatise on Law ...........................57 Conclusion ..................................................................64 INTRODUCTION One of the great, if unsurprising, projects of twentieth-century American jurisprudence was the attempt to separate law and metaphysics.2The 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?3 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 artifacts like law? And what is the meaning, in any event, of statements 2“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)(note omitted). See generally id.,ch. 4 (criticizing main schools of 20th century legal thought). 3See infra notes * through * and accompanying text. 2 that cannot be verified through sense experience and logical deduction?4 Given the mediated nature of our access even to empirical phenomena, why suppose 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 endless (and fruitless) debates over essences (including law’s essence5) and focus instead on programs that are more likely to succeed, such as analyzing our social practices and the way we talk about them?6 Why allow legal argumentation that draws upon alleged fixities to hamper officials’ ability to make needed reforms?7 Why impede our politics with the philosophical vestiges of antiquated religious structures from which we are still in need of liberation?8 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 4See, e.g., Felix Cohen, Transcendental Nonsense and the Functional Approach,35 COLUM L. REV.809(1935). 5“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 metaphysical 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 (2d ed. 1999)(notes omitted). 6 See generally H.L.A. HART,THE CONCEPT OF LAW (2nd ed. 1994). But see Jules L. Coleman and Ori Simchen, ‘Law’, 9LEGAL THEORY 1-41 (2003) (arguing that Hartian jurisprudence is about law itself, not merely the concept oflaw). 7See generally JEREMY BENTHAM,FRAGMENT ON GOVERNMENT (1776). 8See, e.g., cf. Suzanna Sherry, Outlaw Blues,87MICH.L. REV.1418, 1427 (1989) ("[S]uch things as divine revelation and biblical literalism are irrational, superstitious nonsense . . .."). 3 modest revival of interest in the relationship between law and metaphysics– not only among religious believers, where such interest might be expected,9but also among secular theorists as well.10 Conceptual analysis of law, at least in its strong form, is widely taken to be a failure;11 there is a stronger philosophical argument to be made for moral realism now than was the case a few decades ago,12 and some have challenged whether our ontologically-challenged legal world view can make sense of law as it is practiced by lawyers and judges in any event.13 9Because the characteristics of the natural world can be ascribed to an Author. 10 “I doubt 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 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 words, so such words’ meaning can only be given by their concepts. . . . General jurisprudence should eschew such conceptual analysis in favour of studying the phenomenon itself, law.” Id.at 205-06. See also Michael S. Moore, Legal Reality: A Naturalist Approach to Legal Ontology,21 LAW &PHIL.619 (2002); SMITH,supra note 2; Coleman & Simchen, supra note 6; Ronald J. Allen and Michael S. Pardo, The Myth of the Law-Fact Distinction,97NW.U. L.REV.1769, 1790-97 (2003); Ronald J. Allen and Michael S. Pardo, Facts in Law and Facts of Law,7INT’L J. EVID.&PROOF 157-161 (2003). 11 “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 Coleman, Methodology,in THE OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW 311, 344 (Jules Coleman & Scott Shapiro, eds. 2002). Coleman notes further that “[i]t is nowadays a commonplace in philosophy that Quine has presented several compelling arguments adequate to undermine the projects of Conceptual Analysis.” Id. 12 See generally MICHAEL MOORE,OBJECTIVITY IN ETHICS AND LAW (2004). 13 See, e.g., SMITH,supra note 1; Robert P. George, What is Law? A Century of Arguments,FIRST THINGS 23-29 (April 2001). 4 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 Aquinas’ Treatise on Law. Thomas’ understanding of metaphysics is somewhat narrower than the conventional modern usage of the word. Contemporary usage thinks of metaphysics as “the study of ultimate reality,” dealing with questions like “What are the most general features of the World?”, “Why does the World exist?”, and “What is our place in the world”?14 Thomas understands the term rather more narrowly, as referring to the investigation of the general, transcendental characteristics of being and beings.15 Although Thomas’ metaphysics leaves an unmistakable imprint on his account of law,16 the Treatise is often read as though Thomas’ understanding of the way things are were not all that 14 See PETER INWAGEN,METAPHYSICS 1-3 (1993). 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 metaphysics 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,potency and act”–and that considers things that are “separate from matter [i.e.,God and the angels].” These inquiries are unified by their consideration of “being in general.” The science is known by different names because it considers being under these various aspects: “It is called divine science ortheology inasmuch as it considers [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.” THOMAS AQUINAS,COMMENTARY ON THE METAPHYSICS OF ARISTOTLE 1-2 (John P. Rowan trans., 1961). See also ANTHONY J. LISSKA,AQUINAS’STHEORY OF NATURAL LAW 86 (1996) (characterizing scholastic understanding of metaphysics as “referring . . . to transcendental claims about being”). 16 Clearly, Thomas does not deduce his account of law from his metaphysical system in an historical and theological vacuum. I have not attempted to sort out the relative influence of history, Christian doctrine, and metaphysics in his thought, only to show that metaphysics conditions his account in significant ways. 5 different from ours.17 Second, I hope to show that Thomas’ 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 connects to worldly realities. Even if we reject Thomas’ metaphysics, the angelic doctor may still have something to teach us. Part I begins by connecting Thomas’ account of law – especially his account of natural law – with his conception of nature.18 Thomas’ account of law depends fundamentally on his 17 The obvious exception to this statement is the routine acknowledgment that teleology has an important place in Thomas’ account of law. 18 Tounderstandaparticularaccount ofnatural law,onemust grapplewithat least two broad questions. Thefirst is aquestionofmethodology: What is therelationshipbetweennature andethics orlaw? 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,1J. CATH.SOC.THOUGHT 685 (2004). See also LISSKA,supra note 3, at 195-201; ALASDAIR MACINTYRE,AFTER VIRTUE 51-61 (2d ed. 1984). Thesecondquestionis morebasic: Whentheorists speakofnature,what dotheyhavein mind? Consider,forexample,thedifferent images usedtorepresent natureat various times and places. FemaleimageryfornatureaboundedintheMiddleAges and Renaissance: “[T]heearth was tobeconceivedas anurturingmother,whosustained andsupportedhumanitythroughout theirtimeofsojournintheworld.”ALISTER E. MCGRATH,1ASCIENTIFIC THEOLOGY:NATURE 105 (2001). Otherprominent images includedtheorganism,Francis Oakley, Medieval Theories of Natural Law: William of Ockham and the Significance of the Voluntarist Tradition,6NAT. LAW FORUM 65, 79 (1961) (citing R.G. COLLINGWOOD,THE IDEA OF NATURE (1945)); the machine,id.; thestage; thebook; andthemirror, MCGRATH,supra,at 103-05, 107-10. The idea that “laws of nature” exist is a similar construct, id.at 226-28 (citing Oakley, Christian Theology and the Newtonian Science,in CREATION:THE IMPACT OF AN IDEA 54-83 (Daniel O’Connor & Francis Oakley eds., 1961). Imageryalsomaybeuseful indescribing what natureis not; nature frequentlyis representedinoppositiontograce,“unnatural”vices,technology,culture,the mimeticarts,thesupernatural,themetaphysical,and eventheinexcusable. C.S. LEWIS,STUDIES IN WORDS 42-74 (2d ed. 1967). See also JOHN HABGOOD,THE CONCEPT OF NATURE 1-5 (2002). Not onlyis naturerepresentedbyconflictingimages,but manytheoretical accounts of naturealsoexist.This is not merelyamodernphenomenon. Thomas himselfnotes multipleuses ofthewordnature.SeeSTIaIIae.10.1.Platoand Aristotle,forexample,bothdividedtheworld 6 conception of human action and the characteristic inclinations of the human person.19 The focus intotherealms ofnature,art,andchancebut differedas toeachrealm’s preciseroleintheoverall schemeofthings. 1MCGRATH,supra,at 90-95. Theylikewisedifferedovertheorigins of humanperceptions ofuniversals andparticulars. Medievals inheritedatraditionofreflectionon natural lawthat drewuponnot onlyconflictingStoicandPlatonicelements,but alsoaccounts of natural lawbasedindifferent traditions ofinquiry.Theproject ofmedieval synthesis involved assimilatingaccounts ofnatureandnatural lawdrawnnot onlyfrom philosophers and theologians but alsofrom canonandcivil lawyers.SeeJEAN PORTER,NATURAL AND DIVINE LAW 66-75 (1999). Thenatural sciences dramaticallyandincreasinglyhaveinfluencedaccounts ofnaturesincethen. Farfrom seeingnatureas a“secondbook”ofGod’s revelation,seeid.at 71, it is nowcommontoviewnatureonlyas “theamoral sceneofDarwinianstruggle.”RICHARD A. POSNER,THE PROBLEMS OF JURISPRUDENCE 235-36 (1990). Theconcreteconsequences ofdiffering conceptions ofnatureperhaps areexhibited perhaps nowherebetterthaninlaw. Scholars whowouldstrenuouslyresist thelabel “natural lawyer”nevertheless cannot avoidbeinginterestedintheworldinwhichlawmust operate. The efficiency-mindedacademiclawyeris concernedwiththepsychologyofmarket decision- making,thefamilylawyerwithwhichfeatures offamilylifeare“givens”andwhicharenot,see, e.g.,SEX,PREFERENCE AND FAMILY:ESSAYS ON LAW AND NATURE (David M. Estlund & Martha C. Nussbaum eds., 1997), andtheenvironmental lawyerwithwhethernatureis “amaterial resourceforhumanconsumption”orsomethingelse,seeHolly Doremus, The Rhetoric and Reality of Nature Protection: Toward a New Discourse,57WASH.&LEE L. REV.11, 13-14 (2000) (noting “three principle discourses” of nature in environmental debates: “nature as a material resource for human consumption,” “nature as an aesthetic resource,” “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,27B.C. ENVTL.AFF.L. REV.43, 47 (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 independent; 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 ST IaIIae.90.1, c. IncitingtoThomas’SummaTheologiae,IhaveborrowedNorman Kretzmann’s form. TheabbreviationSTis followedby thetraditional designationforthePart (Pars)–Ia(Prima),IaIIae(Prima secundae),IIaIIae(Secundasecundae),orIIIa(Tertia).Thefirst arabicnumeral followinganyoneofthosedesignations indicates theQuestioninthat Part,and thenext arabicnumeral,followingafull point,indicates oneofthe‘objections’ (opposingarguments); ‘sc’indicates the‘sedcontra’(thecitationofanauthority orgenerallyacceptableconsideration contrarytothelinetakenintheObjections), 7 here, however, will be on Thomas’ account of nature in general. Contemporary conceptions 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’ goal in describing nature, on the other hand, is to identify 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’ 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’ metaphysical assumptions about bodies and human action affect the specifics of Thomas’ account. Part III examines Thomas’ account of human law’s ontology, which raises a number of metaphysical and‘ad1’,‘ad2’,etc.,indicates oneofAquinas’s rejoinders totheobjections. NORMANKRETZMANN,THEMETAPHYSICSOFCREATION:AQUINAS’SNATURALTHEOLOGYIN SUMMACONTRAGENTILESII9n.16(1998). Analogous forms are used for Thomas’ other works cited in this article. Unless otherwise noted, translations of the Summa Theologiae are taken from THOMAS AQUINAS,SUMMA THEOLOGIAE (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 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 GUNTON, THE ONE,THE THREE AND THE MANY 75 (1993) [hereinafter “GUNTON,THE ONE,THE THREE AND THE MANY”]; See also COLIN GUNTON,THE TRIUNE CEATOR 134 (1998) [hereinafter “GUNTON,THE TRIUNE CREATOR ”]. “[T]he modern age replaced an essentially Hellenistic 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 contingencies consisting in patterning within it.” Etienne Gilson, THE CHRISTIAN PHILOSOPHY OF THOMAS AQUINAS 178 (U. Notre Dame 1994) (1956) (modern empiricism reduces causation to “constant relationship[s] between phenomena”). See generally Michael Foster, The Christian Doctrine of Creation and the Rise of Modern Natural Science,34MIND 446 (1934), reprinted in C.A. RUSSELL,ED., SCIENCE AND RELIGIOUS BELIEF 294-315 (1973). 8 questions, including the ontological status of human law relative to other types of law, the status of unjust laws in Thomas’ 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’ methodology, which is grounded on the assumption that there are different orders of reality and, thus, different methods of analysis that may obtain for different kinds of realities in the world. Thomas’ account challenges the reductionism of some contemporary jurisprudence, 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’ metaphysics: the analogy of being and his assumption that reality is fundamentally hierarchical, proceeding in a chain from God downward through successively inferior orders of angels, humans, animals, plants, and inanimate objects. Part V connects these assumptions about reality with Thomas’ account of law. Thomas affirms a substantial degree of human freedom in human lawmaking, drawing a helpful analogy between rulers and architects. Nevertheless, because Thomas holds that God’s plan for the universe 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’METAPHYSICAL CONCEPTION OF NATURE Thomas Aquinas is probably best known to legal scholars for his account of natural law in Question 94 of the Treatise on Law.One of the first questions that will occur to any reader of 9 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 nature in two ways. First, he says in Question 90 that “God instilled [natural law] into men’s minds so as to be known by them 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’ account of law is also influenced dramatically by his presuppositions about the nature of reality. For Thomas, what is most important about nature is not the observable web of contingent patterning,23 but rather the universal principles that lie beneath observable 21 ST IaIIae.90.4, ad 2. 22 ST IaIIae.91.2, c. John Finnis characterizes Thomas’ 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 {adinventio} but rather are first order realities, as are the other realities which pertain to our nature. Their reasonableness, moreover, is a sharing in the practical reasonableness, the wisdom, of the very author of our nature, the creator by whose wisdom and power the fulfillment 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 309 (1998)[hereinafter “AQUINAS”](notes omitted). See also RUSSELL HITTINGER,THE FIRST GRACE xxi-xxii (2003). 23 See supra note *. 10