P O L I T I C AL STU D IES: 2000 VO L 48, 929946

Aquinass Two Doctrines of

Natural Law
Tony Burns
Nottingham Trent University

This paper examines the role which the concept of natural law has to play in the political thought
of Aquinas, as this is to be found in the Summa Theologiae. It focuses particularly on Aquinass
understanding of the relationship which exists between natural and positive law. It argues that
Aquinass views are inconsistent and that the Summa actually contains two quite different positions
regarding this subject. One of these is inherited from the Stoic natural law tradition and the other
from Aristotle. The former considers natural law to be a critical standard by means of which
positive law can be evaluated by individuals, whereas the latter does not. On the contrary, it
maintains that according to Aquinas the principles of natural law require interpretation, and that
this interpretation is to be provided, not by the conscience of the individual moral agent, but by
positive law. Focus on either one or the other of these two documents leads to quite different
interpretations of Aquinass political thought as a whole. One such interpretation sees Aquinas as
being a distant forerunner of the liberal political tradition. The other associates Aquinas much
more closely with the notion of authority and hence with conservatism in politics. The article
concludes by commenting on the relevance of these different interpretations of Aquinas for the
contemporary debate between liberals and communitarians.

It is a characteristic feature of the natural law theory of the stoics that the principles
of natural law can be used by individuals to critically evaluate the positive law of
the society in which they live (Burns, 1996, pp. 1521). When considering the
views of Aquinas on natural law, however, we are immediately presented with a
dilemma. For it is generally acknowledged in the secondary literature that Aquinas
subscribes to the stoic conception of natural law. For example, D. G. Ritchie has
maintained that the general conception of natural law in Aquinas corresponds with
that of the stoics (Ritchie, 1903, p. 40).1 And Hans Kelsen has claimed that, unlike
the case of Aristotles political thought, which cannot legitimately be described as an
example of natural law theory at all, so far as Aquinas is concerned:
There is no doubting the theologico-metaphysical basis of St. Thomass
theory of natural law. It is a genuine natural law theory. This is also
apparent in its attitude to the relation between natural and positive law.
The latter has binding force only insofar as it corresponds to natural law.
(Kelsen, 1973, pp. 1356)
Moreover, a number of other commentators have also argued that Aquinas is a
paradigm example of a genuine natural law theorist in the traditional (that is to
say the stoic) sense of the term. Consequently they, too, take the view that, in the
stoic manner, Aquinas considers natural law to be a standard which might be used
to critically evaluate positive law.2
The difficulty with this particular interpretation of Aquinas, however, and the
source of the dilemma to which we referred above, is the fact that it is also generally

Political Studies Association, 2000.

Published by Blackwell Publishers, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
930 TO N Y BU RN S

acknowledged by modern commentators that Aquinass intellectual debt to Aristotle

is evidently very great. Aquinas refers to Aristotle simply as the philosopher in his
writings, and is clearly in some important sense an Aristotelian both generally,
with respect to matters of philosophy or metaphysics, and, more specifically, with
respect to his views on morals and politics.3 Readers will not be too surprised,
therefore, by our own claim that there is strong evidence to support the view that,
at least at times, Aquinas subscribes to what may be described as the Aristotelian
conception of natural law. They will also not be surprised when we maintain that
there is, therefore, strong evidence to support the view that, like Aristotle (see
Burns, 1998), Aquinas does not consider natural law to be a critical standard which
individuals might use for the evaluation of positive law.
This commitment on Aquinass part to Aristotelianism in general, and to the
Aristotelian conception of natural law in particular, is therefore something of a
problem for those interested in the interpretation of his moral and political thought
as a whole, and especially for those who maintain that Aquinas subscribes to the
stoic conception of natural law. It is a problem because the Aristotelian and the
stoic conceptions of natural law are fundamentally incompatible with one another.
Consequently, although very few commentators seem to appreciate the point, it
would in fact not be logically possible for Aquinas to subscribe to both of these
conceptions of natural law at the same time without contradicting himself. Our
argument in what follows will be that Aquinas does indeed contradict himself in
this way and that there is no single, unified or coherent doctrine of natural law to
be found in the Summa Theologiae (Aquinas, 196675). Rather, there are actually
two separate doctrines of natural law to be found in that great work, namely the
stoic conception of natural law, on the one hand, and the Aristotelian conception
of natural law on the other. These two (in some respects) quite different con-
ceptions of natural law sit together side by side, in an uneasy juxtaposition, in
Aquinass thought. It is the presence of the tension or contradiction which lies
between them which, as we shall see, has led to the quite different interpretations
of Aquinass political thought which have been presented by modern
commentators.

Aquinas and the Stoic Conception of Natural Law: the

Case of Caesar and the German Robbers
That there is some evidence to support the view that Aquinas subscribes to the stoic
conception of natural law is undeniable. For example, in the Summa Theo1ogiae
Aquinas indicates on a number of occasions that he considers natural law or justice
to be some sort of critical standard by means of which the validity of positive law
could be assessed (Aquinas, 1966, pp. 61, 97, 105, 12933; Aquinas, 1975a, pp. 911,
71, 81). Thus, for example, at one point he says that if a legal code contains some-
thing contrary to natural right, it is unjust and has no binding force (Aquinas, 1975a,
p. 81). And elsewhere he states that:

In human matters we call something just from its being right according
to the rule of reason. The first rule of reason is natural law Hence in so
far as it derives from this, every law laid down by men has the force of
A Q UI NA S S T W O D OC T R I N E S OF N A T U RA L LA W 931

law in that it flows from natural law. If on any head it is at variance with
natural law, it will not be law, but spoilt law. (Aquinas, 1966, p. 105)

At first sight, therefore, the conclusion that Aquinas is a stoic natural law theorist
would appear to be a reasonable one at which to arrive.
What Aquinas means when he says that positive law should not be allowed to
conflict with the requirements of natural law is illustrated by the following passage:
If anything conflict with natural right, human will cannot make it just, for instance
by decreeing that one may rightfully steal or commit adultery (Aquinas, 1975a,
pp. 911). For Aquinas, to say that positive law ought not to contradict natural law
is, in effect, to say that no positive law can rightfully permit the performance of
those actions which, like theft and adultery, are intrinsically wrong. It is evident
that, in making this suggestion, Aquinas allows that a positive law could, in prin-
ciple, declare or decree that an action like theft is morally permissible. Unlike
Bentham, for Aquinas the making of such a declaration is therefore a moral rather
than a logical impossibility. Aquinas also implies that if a particular positive law
were, in practice, to make such a declaration then that positive law would be an
unjust law, having no moral binding force, and ought not to be obeyed (Aquinas,
1966, p. 129).
Aquinas elucidates his claim that natural law both could and should be employed
as a critical standard in the stoic sense by referring to a particular example. This
relates to the precept of natural law forbidding the act of robbery. The example
is based on a remark made, by Julius Caesar in his De bello Gallico (Caesar, 1917).
Commenting on this remark Aquinas claims, on Caesars authority, that the Ger-
manic peoples of Caesars day did not consider robbery wicked apud Germanos
olim latrocinium non reputabatur iniquum (Aquinas, 1966, p. 91). The suggestion
here, then, is that Aquinas is of the opinion that Caesars Germans had a custom
or positive law which actually permitted the act of robbery and that he believes
that this positive law was unjust, having no binding force, precisely because rob-
bery is expressly against natural law (Aquinas, 1966, p. 91). In order to see how,
in Aquinass view, natural law could be used to assess the validity of positive law
we must consider this example of the German robbers in a little more detail
(see Goerner, 1979, pp. 11419; Crowe, 1963, p. 208). An examination of Caesars
De bello Gallico shows that the particular remark on which Aquinas bases his
example is the following:

Acts of brigandage [latrocinia] committed outside the borders of each

several state involve no disgrace; in fact they affirm that such are com-
mitted in order to practice the young and to diminish sloth. (Caesar,
1917, p. 349)

We may infer from this that the positive law of the Germans which Aquinas con-
siders to be unjust is one which permits the open seizure of the possessions of
others outside the borders of the German states. The assumption which lies behind
Aquinass claim that this particular positive law conflicts with the requirements of
the natural law forbidding robbery is, evidently, that all such acts are in fact specific
examples of the act of robbery. This assumption represents, as Aquinas himself
acknowledges, a particular interpretation of the practical requirements of the
932 TO N Y BU RN S

general precept of natural law forbidding robbery (Aquinas, 1969, p. 93). It is

evident that before a positive law could be shown to conflict with the requirements
of a particular precept of natural law, it is first necessary that that precept of natural
law should be given such an interpretation. A key question here, of course, is the
following. According to Aquinas, who or what is to provide such an interpretation?
Can and should this interpretation be provided, as Cicero suggests, by the
individual moral agent, perhaps in the light of his or her own faculty of reason, or
his or her own conscience (Burns, 1996, pp. 1521)? Or does the individual moral
agent require assistance in such matters? Should the interpretation in question
come from some source which is external to the individual moral agent and, if so,
what is this external source?

What Aquinas says about the example of the German robbers supports the view
that the answers which he would give to these questions are basically the same as
those which would be given by Cicero and the stoic conception of natural law. This
account of Aquinass views has a number of important implications. One of these
is that the interpretations that need to be given to the precepts of natural law
before they could be used for the critical evaluation of positive law must them-
selves possess the characteristic features of timelessness and universality that are
usually associated with the precepts of natural law. The argument which Aquinas
uses in order to demonstrate that German positive law conflicts with the natural
law forbidding robbery clearly implies that, in his view, the open seizure of the
possessions of others outside the borders of the state in which one resides is an act
of robbery, not only for the Germanic peoples of the first century B.C., but for all
people, at all times and in all places.

Another implication of this account is that, according to Aquinas here, whether or

not a particular interpretation of a moral concept, such as that of theft or robbery,
is correct is something which is to be discovered rather than decided. Moreover, it
is something which is discoverable by the faculty of reason of the individual moral
agent. This amounts, of course, to saying that, for Aquinas there can only ever be
one correct solution to the question of what the interpretation of a precept of
natural law actually is in any given situation. The term robbery has a definite
meaning, encapsulated in a particular definition, and the meaning which it has is
the same always and everywhere. Aquinas is evidently of the opinion that the ques-
tion, Is the open seizure of the possessions of others outside the borders of the state
in which one resides an act of robbery?, has only one possible answer. In his view
the correct answer to this question is yes. And this answer will remain yes
always and everywhere, regardless of time, place or circumstances. When discuss-
ing this particular example, Aquinass main criticism of German positive law is that,
by implicitly asserting that such an act of open seizure of the possessions of others
is not an act of robbery in the strict sense, it gives the wrong answer to this vital
question of interpretation (Armstrong, 1966, p. 159).

It follows from this that, here at least, Aquinas is of the opinion that there can be
no legitimate disagreements, or variations between different societies, regarding the
question of whether or not a particular interpretation of a moral concept associated
with a precept of natural law is in fact the one correct interpretation. This follows
from the fact that for Aquinas there is only one correct answer to such a question,
A Q UI NA S S T W O D OC T R I N E S OF N A T U RA L LA W 933

and from the fact that this one correct answer is, in principle, ascertainable by use
of ones faculty of reason. Aquinas does, however, acknowledge that although such
disagreements ought not to occur, nevertheless there are occasions when they do
in fact occur. His comments indicate that his principal criticism of the Germans is
that their positive law permitting the open seizure of the possessions of others
outside the borders of the German states is associated with an interpretation of
the concept of robbery, or of the general precept of natural law forbidding robbery,
which is incorrect. In short, it is Aquinass view, that Caesars Germans do not under-
stand the meaning of the word robbery. Aquinass explanation for this disagree-
ment between himself and the Germans, and indeed of all such disagreements in
general, is the usual stoic one, namely that knowledge of what is right may be
distorted by passion or bad custom or even by racial proclivity (Aquinas, 1966,
pp. 8991, 957; Aquinas, 1969, pp. 357). Consequently, like Cicero, Aquinas
here takes the view that the principles of natural law might, in this one sense at
least, be said to be changeable, in that their validity as moral principles is not
always recognized in practice by the different peoples living in different societies.4

Aquinas and the Aristotelian Conception of Natural Law:

the Case of Moses and the Despoiling Israelites
Our next task is to examine what Aquinas has to say elsewhere in the Summa about
the relation which holds between natural law and positive law and to consider
some of the possible objections to the view that Aquinas is a stoic natural law
theorist. We may begin by having a look at another example which is referred to
by Aquinas in the Summa. In many respects this example is similar to that of the
German robbers. In particular, it emphasizes the importance of the idea that
before a precept of natural law, like the precept forbidding theft or robbery, could
be obeyed in practice it is first necessary that that precept of natural law should be
given a definite interpretation. The example in question has to do with an incident,
mentioned in the book of Exodus of the Old Testament, in which the Israelites, led by
Moses, took the spoils of the Egyptians, in the course of their flight from Egypt
(Aquinas, 1969, p. 93; also Crowe, 1963, pp. 2245).

Aquinass main concern here is with the relevance of this particular example
for the general question of whether or not the precepts of natural law, including
the precept forbidding theft or robbery, are changeable [mutabile] or unchange-
able. In his analysis of this particular example Aquinas makes two key claims.
The first of these is that the natural law forbidding theft or robbery is in fact
absolutely unchangeable, in the sense that actions like theft or robbery can never be
morally permissible, no matter what the circumstances may be. The second is that,
as a matter of fact, the Israelites were right to appropriate for themselves the
spoils of the Egyptians in the circumstances presented by this particular example.
In order to meet the objection that he cannot consistently make both of these claims
at the same time Aquinas argues that the action performed by the Israelites in the
example ought not to be regarded as a case of theft or robbery in the strict sense. For:

when someone is deprived of what belongs to him, if he deserves to lose

it, this is not the theft or robbery which is forbidden Therefore when
934 TO N Y BU RN S

the children of Israel, by Gods command, took the spoils of the Egyptians,
it was not theft, because these were due to them by the sentence of God.
(Aquinas, 1969, p. 93)

According to Aquinas, then, this particular example does not show that there are
occasions when the act of theft is morally permissible. Nor, therefore, as some
people think, does it demonstrate that the principle of natural law forbidding
theft is changeable in the sense that its moral validity is not strictly universal in
scope. Aquinas does acknowledge, however, that there is nevertheless another
sense in which the natural law forbidding theft or robbery might correctly be said
to be mutable or admit of change. In an important passage he points out that
some precepts of natural law, like the ones forbidding theft and robbery,
although they are immutable in so far as they embody justice in its essence,
nevertheless:

as applied to particular acts, as, for example, whether they constitute homi-
cide, theft, or adultery or not, they admit of change. Such change may be
effected by divine authority alone, when it concerns what God alone has
instituted or else by human authority as to what has been entrusted to
human jurisdiction. In these matters, though not in all, men act in the
place of God. (Aquinas, 1969, pp. 935)

There are two points relating to this passage which deserve our further attention.
The first is Aquinass statement that the precepts of natural law are, in one sense
at least, changeable after all. It is evident from the passage quoted that what
Aquinas means by this is that although it is certainly true that actions like murder,
theft and adultery are necessarily morally wrong no matter what the circum-
stances, nevertheless it is not the case that precisely the same actions will be
regarded, always and everywhere, as constituting acts of murder, theft and
adultery. That is to say, in the terminology adopted earlier, it is not the case that
the interpretations that are given to the precepts of natural law will be the same
always and everywhere. These interpretations, and hence the specific meaning of
key moral terms such as murder, theft, and so on, will vary from society to
society. What is especially interesting about the passage quoted above is Aquinass
attitude towards these variations in the interpretations of the precepts of natural
law which are to be found in different societies. We have already seen that, in his
discussion of the example of the German robbers, Aquinas regards variations of this
sort as being unjustifiable from the moral point of view. Here, however, his attitude
is quite different. His opinion here is that there is nothing at all morally wrong
about the occurrence of such variations. From this point of view, it would therefore
not make sense for Aquinas to claim that there is only one correct interpretation of
a particular precept of natural law.

The second point of interest relating to the passage quoted above has to do with
the question of the source of the interpretations that need to be given to the
precepts of natural law before those precepts could be obeyed in practice. In his
comments on the case of the German robbers Aquinas suggests that in his view this
source is the faculty of reason (or perhaps the conscience) of the individual moral
agent. Here, however, he implies that it lies elsewhere. In this passage Aquinas
A Q UI NA S S T W O D OC T R I N E S OF N A T U RA L LA W 935

suggests that to offer a particular interpretation of a precept of natural law is in

effect to institute a change in that precept of natural law. Such a change can,
Aquinas maintains, be effected in a precept of natural law either by divine author-
ity, in matters which relate to what God alone has instituted, or, alternatively, by
human authority, in matters which have been entrusted to human jurisdiction. If
we are to understand the full significance of this statement it is necessary that we
consider further the question of which matters, in Aquinass view, are entrusted to
divine authority or jurisdiction, on the one hand, and which matters are entrusted
to human authority or jurisdiction on the other.
In the Summa Aquinas associates the notions of authority and jurisdiction with that
of law. Divine authority and jurisdiction are, therefore, associated with a type of
law which Aquinas refers to as divine law, and human authority and jurisdiction
are associated with a type of law which he refers to as human law. Aquinas says
in the Summa that divine law is principally designed to establish loving and
harmonious relations between man and God, whereas human law is principally
designed to achieve harmonious relationships between men (Aquinas, 1969,
pp. 357; also 39, 43, 75). In addition to this, he maintains that divine and human
law are closely related to the Mosaic law of the Old Testament, and especially the
two precepts of this Old Law which state that Thou shalt love the Lord thy God,
and Thou shalt love thy neighbour (Aquinas, 1969, p. 65), precepts which, in
their turn, are themselves explained by the Ten Commandments of the Decalogue
(Aquinas, 1969, p. 103), the first three commandments being concerned with the
love of God, and the others with love of our neighbour (Aquinas, 1969, p. 81).
Moreover, Aquinas also claims that all of the precepts of morality mentioned
above are, at the same time, principles of natural law. The principles enjoining us
to love God and our neighbour are, he says, the two most general precepts of
the law of nature (Aquinas, 1969, p. 65), whereas the precepts of the Decalogue
are deduced as conclusions from these more general first principles, and hence
constitute what may be referred to as secondary precepts of the natural law
(Aquinas, 1966, pp. 89, 93, 97, 103; Aquinas, 1969, pp. 357, 61, 657, 89; also
Armstrong, 1966).
If we take all of these remarks together then the appropriate conclusion appears
to be that the matters which, in Aquinass view, are entrusted to human authority
or jurisdiction, and hence (in the end) also to human law, are precisely those
which have to do with the regulation of mens relations with their fellow men, or
with their neighbours, and that, therefore, these matters must themselves bear a
close relationship to the precepts of natural law which constitute the second
table of the Decalogue. The changes in the precepts of natural law which,
according to Aquinas in the passage we are discussing, are legitimately entrusted
to human authority are, therefore, always changes which relate specifically to
the interpretation of the meaning of certain key moral concepts such as murder,
theft and adultery. More importantly, though, as M. J. Laversin has pointed out,
we may also conclude that, according to Aquinas, the source for the interpre-
tations which must of necessity be given to the general precepts of natural law
before individuals could know what they have to do in order to obey those
precepts in practice is not, as in the case of the stoic conception of natural law, the
reason or conscience of the individual moral agent (Laversin, 1933, p. 182). It is,
936 TO N Y BU RN S

rather, what Aquinas refers to as human law. The full significance of this can
only be appreciated when it is remembered that, in his discussion of human law
in the Summa (Aquinas, 1966, pp. 99156), Aquinas clearly identifies the concept
of human law [lex humana] with that of positive law [jus positivum] and positive
legislation. For example at one point he refers to human law as being human
positive right [jure positivo humano] (Aquinas, 1966, p. 113; also Aquinas, 1969,
p. 39). For it follows from this that in Aquinass opinion, at least on this par-
ticular reading of the Summa, the ultimate source for those interpretations of the
general precepts of natural law which are necessary if the citizens of a particular
society are to be able obey those precepts in practice is none other than the positive
law of that society.

According to Aquinas, one of the principal functions of the positive law of any
society is that of defining or providing a specific determination of the precise
meaning of concepts such as murder, theft and adultery, which are associated with
the secondary precepts of natural law contained in the second table of the
Decalogue (Aquinas, 1966, pp. 1037; Aquinas, 1969, p. 255). One of a number of
commentators on Aquinass thought who have appreciated this point is Frederick
Copleston. According to Copleston:

if we take the precept of the Decalogue, Thou shalt not kill, its
vagueness is obvious. What actions are to be considered murder and
what killings are not to be classified as murderous? One of the functions
of positive law is to define such concepts as clearly as possible and to
provide the temporal sanctions which are not provided by natural law.
(Copleston, 1955, p. 231)5

We are, therefore, quite unable to agree with Frederick Olafson when he says that
the hallmark of Aquinass natural law theory is the Thomistic view that sub-
stantive moral guidance is available to human beings in a state of nature by the
application of the faculty of reason (Olafson, 1966, p. 15; also 18, 201). Nor can
we agree with Perez Zagorin when he criticizes Aquinas for his alleged failure to
understand that even when we are presented with rules which are described as
the dictates of natural law, they turn out to be meaningless without a positive legal
order to define their operation. According to Zagorin, Aquinas takes the view that
the prohibition of theft is an express first [sic] principle of natural law. What
Aquinas does not appreciate, however, Zagorin insists, is that such a prohibition is
devoid of sense until a positive legal order has defined property (Zagorin, 1954,
pp. 1767). From the standpoint of the interpretation of Aquinas presented above
these claims made by Olafson and Zagorin are simply incorrect. Olafson and
Zagorin attribute to Aquinas a position which is the very opposite of the one which
Aquinas actually holds.

It is precisely because he assumes that the source for the necessary interpretations
of the precepts of natural law is positive law that, on this second reading, Aquinas
regards the existence of variations between societies with respect to these inter-
pretations as being entirely acceptable morally speaking. The reason for this is that,
following a lead provided by Aristotle (see Burns, 1998, pp. 1457, 154), Aquinas
believes that positive legislation has, by definition, to do with matters which are
A Q UI NA S S T W O D OC T R I N E S OF N A T U RA L LA W 937

essentially indifferent from the moral point of view. As he himself puts it in the
Summa, The place of positive right is where it is irrelevant to natural right whether
matters be arranged so or otherwise (Aquinas, 1975a, p. 81; also pp. 911). An
important implication of this is that, in the passage we are discussing, Aquinas
assumes that the decisions which are made by those who are responsible for the
positive legislation of a particular society with respect to the specific interpretation
of the secondary precepts of natural law are quite arbitrary when considered from
the standpoint of morality. These decisions represent the (morally) free deter-
mination of some particular act of volition or will on the part of the legislator. For,
as Aquinas himself puts it, a thing is only ever called positive when it proceeds
from the human will (Aquinas, 1975a, p. 7).
It is clear from this that the view which Aquinas expresses here regarding the
changeability of the principles of natural law is directly opposed to that which he
expresses when discussing the example of Caesars German robbers. For, as
Goerner has pointed out, it is evident to anyone who reads Caesars own account
in De bello Gallico that the Germans to whom Caesar is referring there do in fact
possess a positive law forbidding the act of robbery (Goerner, 1979, pp. 11415).
They simply disagree with Aquinas as to whether the particular act of which
Aquinas clearly disapproves, namely the seizure of the possessions of others outside
the territorial boundaries of the German states, does as a matter of fact constitute
an act of robbery in the strict sense. In his discussion of this particular example
Aquinas makes it plain that, in his view, the Germans have got this wrong. Their
interpretation of the natural law forbidding robbery is mistaken. And this is so
because their reason has been corrupted. When discussing the case of the ancient
Israelites and the despoiling of the Egyptians, however, Aquinas expresses a quite
different opinion. From the Aristotelian standpoint which he develops there he
would, if he were to be entirely consistent in his views, have to acknowledge that
the interpretation of the concept of robbery, or of the secondary precept of natural
law forbidding robbery, which is to be found in German positive law is one which
is entirely legitimate morally speaking. From this second point of view, therefore,
the variation or changeability which we find in the application of the precepts of
natural law in different societies is not at all morally reprehensible. Nor, therefore,
unlike in the case of the stoic conception of natural law, is it to be attributed to any
form of perversion, bad habits, or corruption (for the contrary view see Armstrong,
1966, p. 160).
Perhaps the most important implication of Aquinass treatment of the example of
Moses and the despoiling Israelites, however, is that, on this Aristotelian reading of
Aquinas, it is and must be a logical impossibility for the positive law of any society
to conflict with the practical requirements of natural law. This follows from the fact
that, as we have seen, Aquinas takes the view that it is for the positive law of a
particular society itself to decide just what those practical requirements are. He
freely acknowledges that decisions of this sort are a matter for human jurisdiction,
and hence for human (i.e. positive) law. From this second standpoint, as Hobbes
was later to point out, it is evidently a logical impossibility for any precept of
natural law to be used as a standard, in the stoic manner, for the critical evaluation
of positive law. It is interesting that even those commentators who have noted the
fact that Aquinas sees one of the principal functions of positive law as being to
938 TO N Y BU RN S

interpret or define moral concepts such as murder, theft and adultery have not
always appreciated that this is indeed a logical implication of Aquinass position.
Copleston, for example, despite the fact that he gives what is, otherwise, actually
an excellent summary of Aquinass view of the relation between natural law and
positive law, nevertheless immediately goes on to point out, without noticing the
logical contradiction involved, that even so, it is still Aquinass view that legislation
must be compatible with the moral law in no case is the state entitled to pass
legislation which runs counter to the natural law (Copleston, 1955, p. 231).6

Aquinas and Legal Positivism

It is clear that, on an Aristotelian reading of his thought, Aquinas attaches much
more importance to positive law as an external authority guiding the conduct of
the individual moral agent than is usually supposed, especially by those who
associate him with the stoic natural law tradition. On this reading, Aquinas
maintains that, in the end, it is for positive law to determine how the individual
members of a particular society ought to conduct themselves. Moreover, he also
acknowledges that there are no principles of morality, and especially not the
principles of natural law, which individual moral agents can appeal to in order to
critically evaluate the positive law of the society in which they live. In addition, we
have also noted that for Aquinas the definitions of moral concepts like murder,
theft and adultery which are provided by the positive law of any society are,
morally speaking, a matter of complete indifference. There is no reason, from the
moral point of view, why those concepts should be defined in one way rather than
another. According to Aquinas, then, the choice of one particular definition of
these moral concepts rather than another is, in effect, a morally arbitrary one.
Consciously or unconsciously, it is a choice which is made in the light of an appeal
to what are essentially non-moral factors, such as utility, expediency, or the com-
mon good (Aquinas, 1966, pp. 11, 17, 55, 10921, 1279, 13741, 1459, 1535;
Aquinas, 1974, p. 89).

These aspects of Aquinass political thought may well come as a surprise to the
reader, for the principles which we have just referred to are usually associated, not
with natural law theory, but with the doctrine of legal positivism (or even that of
totalitarianism) and, as we have already observed, Aquinas is usually taken
(rightly) to be a paradigm example of a natural law theorist. Their existence has,
however, been noted by one or two commentators on Aquinass thought. Anthony
Lisska, for example, has pointed out that Aquinass natural law theory is much
more congruent with Aristotles position on the contingency of moral judgements
than many historians of philosophy are wont to admit (Lisska, 1997, p. 254).
Another commentator who appreciates and emphasizes the importance of this
particular aspect of Aquinass political thought is Thomas Gilby. As Gilby puts it,
when it is a question of deriving civil laws from the precepts of natural law, then
for Aquinas:

right or wrong was not the only question, or indeed the decisive one.
What was feasible and advantageous, that was the point, and moral theory
could not settle it. (Gilby, 1958, p. 169)
A Q UI NA S S T W O D OC T R I N E S OF N A T U RA L LA W 939

Gilby acknowledges that a logical consequence of this is the recognition by Aquinas

of the fact that positive law could not be wholly evaluated by moral premises.
(Gilby, 1958, pp. 11011). It could, however, be argued that this conclusion is some-
what faint hearted. Rather, one could (and should) go much further than Gilby
himself is prepared to do and claim that, for Aquinas, at least on this Aristotelian
reading of his thought, positive law cannot be evaluated by moral premises at all.
It is highly significant, although at the same time somewhat ironic given Aquinass
status as a paradigm example of a natural law theorist, that Gilby should associate
Aquinass position here with what he himself describes as being a distinct trend
towards positivism in both church and state in the political thought of the thir-
teenth century (Gilby, 1958, pp. 11011). A similar view is also taken by Copleston,
who acknowledges that, despite his commitment to the idea of natural law, never-
theless generally Aquinas subordinates the individual to the state to a remarkable
degree and is much less of an individualist than is usually supposed. Copleston
rightly insists, however, that this should not be taken as implying that Aquinas is
a legal positivist, and still less that he is some sort of totalitarian thinker. Rather, in
Coplestons view, what Aquinas is attempting to do is to steer a third course,
somewhere between the Scylla of totalitarianism and the Charybdis of atomic
individualism (Copleston, 1962, pp. 1378).
The fact that Aquinas attaches so much importance to positive law raises the
question of his attitude towards the distinction between customary law, on the one
hand, and statute law on the other. For it is usually thought that there are just two
main types of positive law. There is statute law, or positive law which is enacted,
and there is customary law, or positive law which is inherited from the past. We
might legitimately ask, therefore, which of these two types of positive law Aquinas
has in mind when he suggests that it is the task of positive law to carry out the
important task of interpreting the principles of natural law. At first sight, the
answer to this question seems very clear. A cursory reading of the Summa definitely
gives the reader the impression that Aquinas accords priority to statute law over
customary law. He sees the choice of definition of concepts like murder, theft and
adultery as being a conscious one. It is a choice which is based on a morally
arbitrary act of volition or will. In this respect, Aquinass views on law in the
Summa appear to be much more heavily influenced by Roman legal thought, and
by the more recent thinking of those Canon lawyers, like Gratian, who sought to
revive and adapt Roman law for the purposes of the medieval Catholic Church in
the twelfth century, than they are by the principles of Germanic customary law
(see Aubert, 1955; Kuttner, 1950).
Thus, for example, at the very beginning of the treatise on law in the Summa,
Aquinas considers the question of the possible sources of law in general. He
suggests there that, as a matter of fact, there are just two possible sources of law,
namely reason or mind, on the one hand, and will on the other. Moreover, he takes
very seriously here the maxim of Roman law, formulated by Ulpian, that the will
of the prince has the force of law. This, Aquinas acknowledges, is fundamentally
correct, always provided that the princes will is ruled by some reason (Aquinas,
1966, pp. 1315). There is no reference at all here to the principle of custom as being
a possible source of law. Nor does Aquinas refer to custom, later on, when he offers
his well known definition of the concept of law, which states that law is nought
940 TO N Y BU RN S

else than an ordinance of reason for the common good made by the authority who
has care of the community and promulgated (Aquinas, 1966, p. 17).
In the light of these remarks, it is not surprising that Gilby should detect traces of
the doctrine known as legal positivism in Aquinass political thought. On the
other hand, though, this is not to claim that Aquinas has nothing at all to say
about customary law in the Summa, or that he attaches no importance to it. On
the contrary, he refers to it on a number of occasions (Aquinas, 1966, pp. 27,
10711, 14551). Moreover, what he says when he does is so laudatory that it
has led more than one commentator to the conclusion that it would be quite
wrong to suggest that little importance is attached to customary law within
Aquinass political thought as a whole. J. B. Morrall, for example, has claimed that
Aquinas certainly did have a respect for customary law and that this is, of
course, entirely in line with Germanic tradition (Morrall, 1958, pp. 756). And
Phyllis Doyle has even gone so far as to suggest that Aquinass conception of
political obligation was based to a large extent upon some of the teutonic notions
which had survived in the structure of the society about him. This amounts,
Doyle points out, to saying that Aquinass political thought is based precisely on
a respect for custom and customary law. For custom, to the early invaders, had
the binding force of law. They, Doyle insists, had no conception of the Roman
idea of the law as the will of the community, nor the Christian idea of the will of
God (Doyle, 1966, p. 74).
It appears, then, that there is a certain ambivalence in Aquinass political thought
regarding the status of customary law, and especially regarding the relationship which
exists between customary law, on the one hand, and enacted positive law on the
other. In the light of later historical developments, especially in seventeenth century
England, this presents us with the further question of Aquinass attitude towards
those situations in which there might be a possible conflict, not between natural law
and positive law, or even between natural law and customary law, but rather between
customary law and statute law. In respect of this particular issue, it seems clear from
what Aquinas says in the Summa that, in his view, such a conflict is unlikely to arise.
His attitude to this issue is that just as natural law and positive law in general are
mutually complementary to one another, so also are customary law and statute law.
Thus, for example, he cites with approval Ciceros remark that although justice took
its start from nature nevertheless, thereafter, certain things became custom by rea-
son of their usefulness, and these same things were then, later on, sanctioned or
promulgated by an enacted positive law (Aquinas, 1966, p. 27). And he also suggests
that a prevailing custom obtains the force of law, when it is allowed by those whose
office it is to make laws. For, in such cases, authority seems to approve what has
been brought by custom (Aquinas, 1966, p. 151). Surprisingly, perhaps, there is an
interesting affinity here between the thought of Aquinas and that of Hegel. Like
Hegel, Aquinas takes the view that such a promulgation of law is absolutely neces-
sary. For what human beings always require is a written code of law (Aquinas, 1966,
p. 17). According to Aquinas, and again like Hegel, such promulgation is not intended
to completely replace or supplant the principles of customary law. Its purpose is,
rather, simply to codify those principles (see Burns, 1996, pp. 1502). Aquinas shares
Hegels view that enacted positive law must respect the customs and traditions of the
people for whom it has been enacted. This is, he says, one of the essential conditions
A Q UI NA S S T W O D OC T R I N E S OF N A T U RA L LA W 941

of human law. For to set aside the customs of a whole people is impracticable
(Aquinas, 1966, p. 151).
Aquinas certainly does therefore, as Morrall and Doyle rightly suggest, have the
greatest respect for custom and tradition, especially because, as he puts it, custom
avails much for the observance of law and therefore acts as form of cement binding
society together. Consequently, any change in the law looked at merely as a change
must be considered as inflicting a definite loss on the common well being, in so far
as it might lead to a possible undermining of the existing social order. For when law
is altered the restraining power of law is weakened in so far as custom is done away
with (Aquinas, 1966, p.147). Nevertheless, at the same time Aquinas also recognizes
that it is actually impossible to prevent things from changing altogether. Although it
is certainly desirable that an enacted positive law which sanctions an existing custom
should be as permanent as possible nevertheless, Aquinas acknowledges, in a
world of change there can be nothing that is altogether and immutably stable.
Consequently, human law cannot be entirely unalterable (Aquinas, 1966, p. 145).
It must be accepted that in certain circumstances, relating to issues which are highly
important and in which there is an urgent necessity for change, an alteration in the
law by those in authority might legitimately be sanctioned. This alteration is always
to be carried out by means of legislative enactment.

Liberalism and Conservatism in the Political Thought

of Aquinas
We have argued that there are actually two contradictory doctrines of natural law
to be found in the Summa Theologiae, one deriving from the stoic and the other from
the Aristotelian natural law tradition. Although these doctrines evidently share at
least some basic presuppositions, they also differ on a number of significant issues.
One of these, as we have seen, has to do with our understanding of what it means
to say that the principles of natural law are in some sense changeable. Perhaps the
most important difference between these two doctrines, however, lies in their
respective understandings of the nature of the relationship which exists between
natural law and positive law.

The stoic reading of Aquinas differs from the Aristotelian reading in that it presents
him as a thoroughgoing individualist who takes the view that natural law con-
stitutes an absolute standard of justice which might be used to critically evaluate
positive law. As Ernst Cassirer has observed, most of the stoic thinkers were deter-
mined individualists (Cassirer, 1967, p. 102). On the stoic reading, as F. Aveling
has put it, whereas the State is regarded by Aristotle as prior to and more import-
ant than the individual, whose duty was to become a good citizen and thus further
the end of the State to which he was subordinated, for Aquinas, on the other hand,
the position is reversed (Aveling, 1928, p. 97). In Aquinass case, the state is sub-
ordinated to the individual, and not the other way around. Although, historically,
it is of course something of an anachronism, we might nevertheless, for the sake of
convenience, label this particular reading of Aquinas as the liberal interpretation of
his thought. For, as G. H. Sabine and S. B. Smith have noted, the stoic conception
of natural law might be said to rest upon much the same fundamental moral
942 TO N Y BU RN S

conceptions as are to be found, although of course much later on, at the foun-
dation of all political liberalism (Sabine and Smith, n.d, p. 38). In this respect, as
the Carlyles, Friedrich and Sabine have all observed, the thought of Cicero and the
stoic conception of natural law is evidently much closer to that of Kant than it is to
that of Aristotle (Carlyle and Carlyle, 190336, 1, pp. 89, 165; Friedrich, 1963, pp. 31,
34; Sabine, 1973, pp. 1623). This interpretation of Aquinas, therefore, might be
said to consider him (precisely because of his commitment to the idea of natural
law understood in the stoic sense) as being, essentially, a forerunner of the modern
liberal political tradition. Maurice de Wulf, for example, has gone so far as to
suggest that the ethics associated with scholastic philosophy generally, and hence
with the philosophy of Aquinas in particular, are essentially libertarian in char-
acter (de Wulf, 1909, p. 344). And, as Alasdair MacIntyre has noted, in a piece
significantly titled Too many Thomisms?, the French philosopher Jacques Maritain
has taken this idea up and made a systematic attempt to offer a Thomistic
defence of the Enlightenment doctrine of natural rights, as it is enshrined in the
United Nations Declaration of Human Rights (MacIntyre, 1990, p. 76; Maritain,
1945).7

The Aristotelian interpretation of Aquinass views on natural law, on the other

hand, presents Aquinas in quite a different light. According to this interpretation
Aquinas is much less individualistic and libertarian in his approach to political
affairs. He does not consider natural law to be a critical standard which individuals
might use to evaluate positive law. On this alternative reading, Aquinas takes the
view that, in matters of politics, individuals should always have the greatest respect
for order and authority, and especially for the authority of the positive law of the
society in which they happen to live, which he considers to be a practical appli-
cation, or a specific determination, of the more general principles of natural law.
As John Bowle has put it, the essentially Augustinian idea of harmony and order
might be said to represent the very essence of the Thomist approach to politics
(Bowle, 1961, pp. 190, 2089. See also Doyle, 1966, pp. 756, 823). From this
point of view, Aquinas certainly does not consider natural law as establishing and
protecting any natural or human rights which individuals might appeal to in order
to critically evaluate positive law, in the manner of the liberal natural rights theor-
ists of the seventeenth and eighteenth centuries. For such a critical enterprise
would, of course, represent a challenge to the authority of the existing social and
political order. Interpreted in this Aristotelian way, as a number of commentators
have pointed out, Aquinass political thought might, generally speaking, be said to
be in some important sense fundamentally conservative in terms of its political
implications. As J. W. Harris has claimed, the Thomist version of natural law may
properly be seen as a conservative doctrine when we compare it with the revo-
lutionary implications to which natural law theory later gave rise in the seven-
teenth and eighteenth centuries (Harris, 1980, p. 100).8 It could of course be
argued, either on historical or methodological grounds that it is not legitimate to
employ the label conservative in this particular context. A discussion of methodo-
logical issues of this sort is something which must be left for another occasion. It
will suffice to say here that, at the very least, one could plausibly maintain that the
natural law theory of Aquinas is certainly a distant forerunner of what we now
refer to as the conservative conception of natural law, as that conception is to be
A Q UI NA S S T W O D OC T R I N E S OF N A T U RA L LA W 943

found in the writings of a number of eighteenth century critics of liberalism and

especially in the works of Edmund Burke.

The location of Aquinas within the Aristotelian natural law tradition supports the
interpretation which presents him as a precursor of the ideology of conservatism,
rather than of the ideology of liberalism. Those who look at the political thought
of Aquinas from this point of view are likely to agree with Alasdair MacIntyres
claim that any attempt to ground a commitment to the doctrine of human rights,
understood in the modern liberal sense, in the thought of Aquinas is mistaken. It
is mistaken because it is based upon an individualistic conception of rights which,
as MacIntyre puts it, is for the most part (though not entirely) alien to and absent
from Aquinass own thought just as it is from that of Aristotle (MacIntyre, 1990,
p. 76; also dEntrves, 1972, p. 48; Sigmund, 1971, pp. 1912).

It has occasionally been suggested that one of the great differences between
modern natural law theory and pre-modern natural law theory is that the former
is rigid or inflexible whereas the latter is not. Classical and medieval conceptions of
natural law, it has been said, do allow for the possibility of a legitimate change in
the positive law of a particular society, and for the possibility of a legitimate
variation between the systems of positive law of different societies. For example
E. K. Lewis has claimed that the flexibility of medieval natural law theory contrasts
sharply with the rigidity of natural law in the eighteenth century (Lewis, 1954,
p. 11; also Lewis, 1946); and J. L. Montrose has insisted that it is only the eighteenth
century rationalists who thought that detailed rules, valid for all times and all
places, could be deduced with certitude from basic principles (Montrose, 1961,
p. 214; also Selznick, 1961, pp. 912, 103). Although the distinction between two
quite different types of natural law theory referred to here is certainly a valid one,
nevertheless the way in which this difference is formulated and presented is actu-
ally quite inaccurate. For this is a distinction which should not be located chrono-
logically, between pre-modern and modern natural law theory, as is suggested
by Lewis and Montrose. It is, rather, a distinction between two quite different
traditions of natural law theory, each one of which has an intellectual pedigree
which can be traced back to classical antiquity. More specifically, it is the stoic
natural law tradition which is rigid and inflexible, whether it is represented in the
writings of Cicero or in the writings of the stoic natural law theorists of the
eighteenth century. This is not, however, the only natural law tradition. Perhaps,
the best example of such an alternative approach is the Aristotelian natural law
tradition which, as we have seen, is also that of Aquinas (if not all of the time).

The claim that Aquinass doctrine of natural law possesses the flexibility to which
we have just referred is made by John Finnis. Like Copleston, however, Finnis does
not acknowledge that a logical implication of this flexibility is the fact that a doc-
trine of this sort is unable to provide a vehicle for the critical evaluation of positive
law (Finnis, 1980, pp. 3601). Finnis does not recognize that it is precisely the
dogmatic and inflexible character of stoic natural law theory which gives it its
critical cutting edge. The price which one pays for adopting a more flexible and
realistic doctrine of natural law, one which is sensitive to the importance of
changing historical circumstances, is the importation in to natural law theory of a
degree of cultural relativism which subordinates individuals to the customs and
944 TO N Y BU RN S

traditions of the particular communities in which they happen to live, and which
thereby undermines the potential for the principles of natural law to serve as a
vehicle for the protection of natural or human rights. As D. J. OConnor has put it,
if the detailed precepts of the natural law can be supposed to change in the
manner which is associated with the Aristotelian reading of Aquinass thought
then natural law theory is clearly, in its application, as relativist as any other
(OConnor, 1967, p. 79).9 It is, we might add, precisely this which transforms
Aquinass natural law theory from a liberal into a conservative doctrine. This has
been noted by Hans Kelsen, according to whom the view that the interpretation
of natural law is the prerogative of the authorities established by positive law is
one which serves, not to weaken but precisely to strengthen the authority of
positive law. Consequently, this type of natural law theory has, on the whole, a
strictly conservative character (Kelsen, 1957; p. 150. See also Lloyd, 1959, p. 53).
This is something we need to bear in mind when evaluating the doctrine known as
communitarianism, and especially the views of those commentators like Alasdair
MacIntyre who, in their efforts to develop a critique of the rights based political
thought of Enlightenment liberalism, make a direct appeal to the ideas of Aquinas
and to the Aristotelian political tradition more generally (MacIntyre, 1990,
p. 77).
(Accepted: 30 March 2000)

About the Author

Tony Burns, Department of Economics and Politics, Nottingham Trent University, Burton Street,
Nottingham NG1 4BU, UK; email: tony.burns@ntu.ac.uk

Notes
1 See also dEntrves, 1972, p. 45; Doyle, 1966, p. 75; Robson, 1935, pp. 206, 2212; Rommen, 1979,
pp. 55, 66, 2556; Salmond, 1895, pp. 1334; Sigmund, 1971, pp. 39, 40, 45.
2 See Finnis, 1980, pp. 28, 357, 3601; Finnis, 1998, p. 272; Lisska, 1997, pp. 84, 10912; Ryan, 1965,
pp. 1318.
3 See Copleston, 1962, pp. 14455; Lisska, 1997, pp. 6, 50, 846, 195, 250, 294; MacIntyre, 1985,
p. 178; MacIntyre, 1990, p. 137; Martin, 1988, pp. 45.
4 See also Armstrong, 1966, p. 160; Begin, 1959, p. 88; Gierke, 1958, p. 175; Maritain, 1958, pp. 8494;
Strauss, 1974, pp. 9, 978.
5 See also Copleston, 1962, pp. 1389; Armstrong, 1966, p. 4; Battaglia, 1981, pp. 9091; Begin, 1959,
pp. 945; Finnis, 1980, p. 286; Gilson, 1966, p. 267; Laversin, 1933, pp. 48, 180, 184, 18990, 195,
206, 21011; Rommen, 1979, pp. 2513; Sabine, 1973, p. 242.
6 See also Begin, 1959, pp. 945, 98101, 1156, 1301, 139, 165; dEntrves, 1972, pp. 456; Laversin,
1933, pp. 48, 180, 184, 18990, 195, 199, 206, 21011; Rommen, 1979, pp. 55, 66, 226, 2289, 2501.
7 See also Finnis, 1998, pp. 13279; Lisska, 1997, p. 112; Ryan, 1965, pp. 1718; Sigmund, 1971, p. 46.
8 See also Berki, 1984, p. 107; Eccleshall, 1978, p. 55; Neumann, 1957, pp. 81, 85.
9 See also Armstrong, 1966, pp. 1779; Crowe, 1963, pp. 21620; Fay, 1960.

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