civil disobedience in st. thomas aquinas' natural law theory 1 2

34 Pages·2013·0.2 MB·English

1 CIVIL DISOBEDIENCE IN
2 ST. THOMAS AQUINAS’ NATURAL LAW THEORY
3 TABLE OF CONTENTS
4 I. Opening statement................................................................4
5 II. Developing, examining, and answering the central question......6
6 A. Laying the groundwork .....................................................7
7 1. The preliminary assumptions.........................................7
8 2. The conditions for civil disobedience...............................8
9 3. The dismissive judgment issue in Aquinas’ law.................9
10 B. Summarizing Aquinas’ law...............................................13
11 1. Aquinas classifies the types of law. ..............................13
12 2. Aquinas’ natural law....................................................14
13 C. Answering the central question.........................................16
14 1. The basis for the assessment of laws............................16
15 2. The assessment of Aquinas’ laws..................................18
16 3. The court of conscience...............................................19
17 III. Passing muster on a ‘morally difficult case’...........................23
18 A. The abortion arguments..................................................23
19 1. A fetus is only a ‘potential human’................................24
20 2. A fetus is not an ‘actual human’....................................25
21 B. The replies from Aquinas’ court of conscience....................25
22 1. A reply to a fetus is only a ‘potential human’..................26
23 2. A reply to a fetus is not an ‘actual human’.....................27
24 IV. Summing up Aquinas’ civil disobedience...............................30
25 V. Closing statement...............................................................31
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26 CIVIL DISOBEDIENCE IN ST. THOMAS AQUINAS’
27 NATURAL LAW THEORY
28 The purpose of this paper is to develop and explain ‘civil
29 disobedience’ based on Aquinas’ natural law theory.
30 I. Opening statement
31 The central question is, ‘Is civil disobedience allowed in Aquinas’
32 natural law theory?’ If his theory allows civil disobedience, then it
33 must also answer: (1) how does an individual decide that a law is
34 unjust, (2) how does an individual make this decision concerning
35 just versus unjust; and (3) what does the individual do about an
36 unjust law?a These questions and the central question will be
37 answered in this paper. At the heart of the civil disobedience
38 question in Aquinas’ natural law theory is the dismissive judgmentb
39 issue, “that which is not just does not seem to me to be a law.”c Is
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a Norman Kretzmann, “Lex Iniusta Non Est Lex: Laws on Trial in Aquinas’ Court
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of Conscience,” Philosophy of Law, Eds. Joel Feinberg and Hyman Gross, 5th
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ed. (Belmont: Wadsworth, 1995) 7-8.
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b New Shorter Oxford English Dictionary, 5th ed. (Oxford: Oxford University,
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2002) CD-ROM. Dismissive is defined as, "Of the nature of or characterized by
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dismissal; tending to dismiss; suggesting unworthiness of any further
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consideration; disdainful.” As such, a dismissive judgment is a judgment of an
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object that is denied or dismissed as unworthy of any consideration.
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c St. Augustine, De libero arbitrio, I v 11, Kretzmann 8. Kretzmann points out
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that there is a problem between the quote from Augustine, “lex mihi esse non
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videtur, quae iusta non fuerit” and the ‘quote’ “Lex iniusta non est lex”, some
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philosophers attribute to Augustine and Aquinas. The later, “An unjust law is
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not a law,” is opposed to the former, “To me that which is not just does not
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seem to be a law.”
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40 it a paradoxical judgment for Aquinas? Alternatively, is it a
41 reasoned intellectual judgment for Aquinas? Finally, may humans
42 disobey an unjust law? As the basis for my developing my critical
43 analysis of this issue, I have chosen the argument from Norman
44 Kretzmann’s article “Lex Iniusta Non Est Lex: Laws on Trial in
45 Aquinas’ Court of Conscience.”d Kretzmann’s article provides a very
46 insightful analysis of the dismissive judgment issue. He analyzes
47 and draws a valid conclusion on dismissive judgment and the
48 central question of civil disobedience. Additionally, he provides an
49 excellent analysis of Aquinas’ motives for supporting this doctrine.
50 Finally, with a minor modification, Kretzmann’s argument provides
51 an answer to the civil disobedience issue.
52 However, developing, examining, and answering the question of
53 civil disobedience in Aquinas’ natural law theory is only the start.
54 Does Aquinas’ account of civil disobedience hold up when explaining
55 a modern civil disobedience case? To answer this, we will next
56 examine a modern civil disobedience case in Aquinas’ court of
57 conscience. Should an anti-abortion activist disobey the laws of the
58 United States to protect “unborn” children? Does civil disobedience
59 in Aquinas’ natural law theory pass muster on this ‘morally difficult
60 case’?
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d Kretzmann 7-19.
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61 We will use the two verdicts developed from the discussion of
62 the central question to inspect this ‘morally difficult case’. First,
63 whether or not an ‘unjust law is no law’, as moral reasoning
64 individuals, we must learn to weigh the cost of disobeying the law
65 versus obeying the unjust law, i.e., obey by ‘turning the other
66 cheek’ for the good of society. Second, an ‘unjust law is no law’, as
67 creatures of a divine being, we must always be disobeyed, i.e., such
68 ‘an unjust law is no law’ and we have no choice but to disobey the
69 unjust law. Let us begin by developing and answering the central
70 question, “Is civil disobedience allowed in Aquinas’ natural law
71 theory?”
72 II. Developing, examining, and answering the central
73 question
74 The desideratum for answering the central question of civil
75 disobedience in Aquinas’ natural law theory is as follows. First, it is
76 essential to the theory that we understand Thomist civil
77 disobedience, i.e., whether the dismissive judgment, “an unjust law
78 is not a law”, is commonsensical or paradoxical and how can it be
79 used explain civil disobedience. We will begin by laying out the
80 preliminary groundwork, the assumptions, basis for the argument,
81 and the issue. Next, it is essential to the theory that we
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82 understand Aquinas’ conception of law, in particular the relationship
83 of natural and human laws. We will summarize Aquinas’ four
84 classifications of law and the types to be used for this analysis.
85 Thirdly, it is essential to the theory that we understand the Thomist
86 view of dismissive judgment and its motives. This will sum up the
87 basis for an assessment of law, Aquinas’ assessment of law, and
88 assessment of law in the court of conscience, the agent intellect.
89 A. Laying the groundwork
90 Let us begin by outlining the preliminary assumptions, conditions
91 for civil disobedience, and the issue of how to determine the justice
92 of a law.
93 1. The preliminary assumptions
94 Kretzmann uses Aquinas’ system as a basis for his investigation.
95 The focus of the discussion is on disagreements between a moral
96 system and a legal system. As such, disagreements between
97 individuals over the moral assessment of laws (e.g., people arguing
98 over their individual assessments of a law as just or unjust) are to
99 be ignored. Kretzmann also writes that in a Thomist viewpoint,
100 there is a fundamental connection between moral philosophy and
101 Christian theology. As such, Aquinas’ legal system does not
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102 separate morality from theology (i.e., the human beings in Aquinas’
103 society are Christians). Nevertheless, even with this linkage, a
104 secularized version of Aquinas is still proper for developing,
105 examining, and answering the question of civil disobedience.e
106 2. The conditions for civil disobedience
107 Dismissive judgment (i.e., a disdainful judgment that dismisses
108 thereby denying a premise or object) concerns whether a law is
109 unjust. However, in this moral judgment, what information must a
110 human being in a society need to determine justice? For
111 Kretzmann, the following questions must be answered concerning a
112 dismissive judgment of a law in terms of civil disobedience: f 1) can
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e Kretzmann 7. And Frederick Copleston S.J., Aquinas, (Baltimore: Penguin
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1957) 219. “[We] can say with truth that Aquinas believed in a set of
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unalterable moral precepts. The question arises… whether [Aquinas’ moral]
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theory is compatible with the empirical fact that different people and different
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social groups [i.e., different religions] have divergent moral convictions [i.e.,
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religious convictions]…. [However, I make] the following relevant point,
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namely that differences in moral convictions do not themselves constitute a
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disproof of the theory…. For there might be an unchangeable moral law and
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at the same time varying degrees of insight into the content of this law” [i.e.,
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reasoning humans in different social groups have just not ‘discovered’ the
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unalterable moral law].
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f Joel Feinberg, “Civil Disobedience in the Modern World,” Philosophy of Law,
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Eds. Joel Feinberg and Hyman Gross, 5th ed. (Belmont: Wadsworth, 1995)
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121-123. Although Kretzmann does not specifically deal with what constitutes
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‘the act civil of disobedience’, which is also an important conclusion for a
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discussion of civil disobedience. ‘The act of civil disobedience’ as ‘lawbreaking’
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against an unjust law can have distinct flavors. A Thomist ‘act of civil
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disobedience’ according to Feinberg’s article would be defined as “not to
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undermine authority but to protest its misuse.” Of the flavors in the article,
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Rawl’s approach to the ‘act of civil disobedience’ seems best in terms of
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Aquinas, as it requires the use of ‘reason’ to determine ‘the act of civil
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disobedience’. Since the use of reasoning to determine ‘the act of civil
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disobedience’ would seem to be a requirement for a Thomist theory. For
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Aquinas then, ‘the act of civil disobedience’ would be similar to John Rawl’s
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113 an individual decide whether a law is unjust; 2) how can an
114 individual make such a decision; and 3) what can or should the
115 individual do about an unjust law. g However, which kind of
116 dismissive judgment should apply to the law and civil
117 disobedience?h
118 3. The dismissive judgment issue in Aquinas’ law
119 Every thing, being, or substance has inclusive conditions that
120 determine its completion. Law is a thing for Aquinas. An inclusive
121 condition, which could be either non-evaluative or evaluative, is a
122 “condition” that a thing, being, or substance must have to be
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“conscientious refusal” than “warfare against the state.” (Especially
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considering Aquinas’ ‘doctrine of the mean’ as well as ‘perversions of law’ as
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developed respectively in Summa Theologica, I-II. Q. 64 A. 1 Obj. 3. and
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Summa Theologica, I-II. Q. 92 A. 1 RObj. 3. Further, Aquinas does not seem
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to advocate armed revolt which would be far away from the ‘mean’.) The ‘act
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of civil disobedience’ requires four characteristics: (1) it must be public; (2) in
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must be nonviolent; (3) it must be either direct or indirect deliberate
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unlawfulness; and (4) it must be conscientiously aimed towards the ‘good of
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society’. Therefore, a reasoned ‘the act of civil disobedience’ as “conscientious
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refusal” seems to me in alignment with Thomist philosophy.
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g Kretzmann 9. Kretzmann’s paper is contingent on the plausibility of the notion
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of civil disobedience: its role, justification, and nature. Kretzmann deals
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thoroughly with the justification for civil disobedience. However, Kretzmann
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seems unaware in the article that he is facing a problem in the areas of the
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role and nature of civil disobedience; I feel that he has left his argument open
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to questioning in these two areas. In spite of this, for the purpose of this
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paper I feel that we can properly explain Aquinas and civil disobedience
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without specifically dealing with the distinctions concerning the role and nature
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of civil disobedience. It seems to me that for Aquinas, an entitlement for the
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‘role of civil disobedience’ might be understood as both a ‘right’ and a ‘duty’ to
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disobey the unjust law, i.e., for unjust laws vis-à-vis ‘divine law’ there is a
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duty to civil disobedience and for unjust laws vis-à-vis ‘reasoning to the
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natural law’ there is a mere right to civil disobedience. Please note: The
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‘nature’ or the act of civil disobedience was discussed in a previous footnote.
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Thank you to Dr. Corlett for pointing out this problem with Kretzmann’s article.
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h Kretzmann 7-8.
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123 considered complete. Non-evaluative means that the thing simply
124 has the condition (e.g., the leg of a chair is a non-evaluative
125 condition of “chair-ness”). Evaluative conditions are abstracted by
126 reason to determine whether the conditions for inclusion in the form
127 of the thing have been met (e.g., “masterpiece” is an evaluative
128 condition of “musical masterpiece”, because an evaluation must be
129 made to determine inclusion).i
130 There are two of the kinds of things: non-natural conventional
131 kinds and natural conventional kinds.j Of non-natural conventional
132 kinds, their inclusive conditions are non-evaluative (e.g., for a
133 Haiku poem or soldier, they simply need to meet the defining
134 conditions). Of the natural conventional kinds, some are overtly
135 and invariably evaluative. An example of this would be fine artwork
136 or gifted person where an evaluation determines whether the
137 condition is met for its inclusion. There are also natural
138 conventional kinds that are not overtly or invariably evaluative.
139 Evaluative conditions that are not overt involve implicit evaluative
140 conditions and are linked with things that have a familiar human
141 function. An illustration of this would be artwork or anthropologist.
142 For these kinds of things with non-overt evaluative conditions, the
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i Kretzmann 8.
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j Kretzmann 8.
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143 non-evaluative conditions must be met before applying the
144 evaluative (i.e., “He is no general,” makes sense only if “A bad
145 general is not really a general, despite the fact that he holds the
146 rank and commands an army”). Is it the natural conventional kind
147 of things, with conditions that are both non-evaluative and
148 evaluative, but not overtly or invariably evaluative, and has an
149 important human function, which is the appropriate kind to apply
150 dismissive judgment?k It is here that Kretzmann’s argument has a
151 problem interpreting Aquinas.
152 The problem with Kretzmann’s argument is, “How do you explain
153 ‘without being overtly evaluative’ condition in Aquinas?” l The
154 etymology of ‘overt’ is the Latin word aperire–exposed to view or
155 knowledge, open, evident, straightforward.m Is Kretzmann correctly
156 saying, “Without being exposed, evident and open to knowledge”?
157 Is this not a contradiction of Aquinas’ writings? For Aquinas,
158 humans possess a unique inclination towards reason.n This
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k Kretzmann 9.
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l There is another problem, that of conscientia or synderesis? Which
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‘conscience’ from Aquinas do you use? [Aquinas, Summa Theologica, I. Q. 79
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A. 12 and I. Q. 79 A. 13. The Human Constitution, trans. Richard Regan,
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(Scranton: University of Scranton Press, 1997) 75-78.] While Kretzmann
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points out that he is aware that he is facing a problem in this area, I feel that
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he has left his argument open to question form this area as well. However, for
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the purpose of this paper I feel that we can properly explain Aquinas and civil
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disobedience without specifically dealing with this distinction.
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m The Shorter Oxford English Dictionary.
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n St. Thomas Aquinas, Summa Theologica, I. Q. 79 A. 4 and I. Q. 79 A. 8, The
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Human Constitution, trans. Richard Regan, (Scranton: University of Scranton
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Press, 1997) 57.
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