Types of Law — The Beginnings of an Analogical Expansion

|||Aquinas, Thomas. Summa theologica. Westminster, Md: Christian Classics, 1981.|||

In names predicated of many in an analogical sense, all are predicated because they have reference to some one thing; and this one thing must be placed in the definition of them all. And since that expressed by the name is the definition, as [Aristotle] says (Metaph. iv), such a name must be applied primarily to that which is put in the definition of such other things, and secondarily to these others according as they approach more or less to that first. Thus, for instance, “healthy” applied to animals comes into the definition of “healthy” applied to medicine, which is called healthy as being the cause of health in the animal; and also into the definition of “healthy” which is applied to urine, which is called healthy in so far as it is the sign of the animal’s health. ST. I Q. 13 A. 6.

So far, we have provided a general notion of “law,” though it likely appears to be coterminous with the realm of so-called “positive” or “human” law. As I wrote in my last article, it is best to begin with the law from a perspective that is most obvious to us–one that we recognize most regularly. Such are the ways and means of our poor human intellects–limited lights that they have, working step by step from embodied experience to spiritual intelligibility.

There is a general “problem” in Thomistic logic regarding the genesis of certain terms that are called “analogous.” I am sure that a number of my readers are familiar with expressions like “analogy” and perhaps “the analogy of being.” I have very particular views on these controversial topics, but we needn’t be detained with the details. Likewise, do not make any assumptions regarding my position; though, if you so desire to have some idea of my bearings on this matter, see Yves Simon’s lovely article on analogical predications, “On Order in Analogical Sets.”

Cardinal Cajetan, in his De Nominum Analogia notes well the rather common-sense fact that most analogical terms begin being applied univocally. For instance, we first know human wisdom, and attach a meaning to the term “wisdom” long before we realize that (e.g.) God too might be called wise in a positive way, though one that is eminently higher and, indeed, of a wholly different order than the way that we mean the term as applied to humans. Of course, there are many who would say that anything that is not univocal is merely equivocal, but the standard Thomistic position–defended with greater and, sadly, lesser insight–holds that there is a “middle way” between the extremes of having one meaning (e.g. “wisdom” meaning the same in all of its uses) and having multiple, unrelated meanings (e.g. like the word “bark” when read outside of a textual context). It is between these two extremes that analogy is posited, and I must beg that you mercifully trust my estimation that the Thomist position is able to stand up to criticism–though its defense is a philosophically involved affair.

Why do I make this logical diversion? Well, we will soon see that the notion of “law” itself contains an analogical scope. However, one of the great weaknesses of Thomism seems to be empirical, pedagogical presentations–though Simon is a great exception to this. What is it like to see a term like (e.g.) wisdom begin to emerge as being analogical in scope? Well, I will not present that here. However, I will attempt to do so for the notion of “law.” In so doing, it is my hope to give you some insight into the schema presented by Aquinas in ST I-II q.91.

In my last article, we considered the problem of the stop sign. The example was a bit homely, but I hope that this did not dissuade my reader from seeing its cogency. I now want to ask another homely question regarding the scenario–one whose answer was already implied in the last article: “Why are we concerned about the stop sign?” The answers can be more or less proximate, of course. “Because people are sick and tired of these blasted accidents.” “Because people are now clogging up the other roads since they are avoiding this critical intersection.” However, the more general reason is, “Because we want to live a human life together. This small matter helps to order this living-together, this way that we interact and live as a community.”

Why, however, is this important? What is this “living-together” that gives force to the law? From whence does it come? Of course, there is a whole domain of law scholarship that opens up, and a survey article like this–with a very particular aim vis-à-vis the Angelic Doctor–cannot do justice to other positions. Still, behind every ideal for a community, there is some conception of what it is to be a human person. The good of the group is based upon some anthropology–even if it is so cheap as the pleasures of bourgeois individualism. So long as he or she is not an anarchist, even the person with existentialist proclivities will have to say something like, “In order to enable creativity.” (I think here of the implied reasoning of a number in the legislature today regarding health care regulation, but that is another matter. It is, though, very telling about anthropology–creativity and social-economic freedom, whatever might be the means to attaining it, are being posited as implied goods.)

So, we ask, “Where does the stop sign law get its grounding?” Well, on the one hand, it is grounded in contingencies. That is, it had to be decided in the “here and now” that it was the appropriate law. Let us not forget this originating condition–it will be quite important in our next article. Still, the general source of this obligation must somehow presuppose some aspect of the responses that were noted above. It is right into this “spot” of “natural finalities”–very broadly construed at this moment–that the notion of the natural law has regularly been fitted. Notice, however, that it is completely fair that a secular interlocutor can pound his fists at this point, for the notion of “law” does not yet come to mind when we make the transition from the standard usage of law to that of the “kind of being that man is.”

In order not to overburden my reader, I will leave things in suspense at this point, though I am here offering a clear promissory note. The many openings / questions that remain to be addressed will set the agenda for the remaining articles in this series. They will cover the following topics in sequence. 1) Most importantly, we will consider this notion of promulgation and how it can be schematized; this will be key to understanding the general “expansion” of the notion of law offered by Aquinas. From this point of view, we can consider several ancillary points that will be elucidating, namely: 2) some important notes on the distinctions between the “eternal law” and what we have come to know as the “laws” of Judeo-Christian tradition; 3 how the natural law is known and how this knowledge is related to positive law and the somewhat mysterious ius gentium (the law of nations). Finally, 4) I will present some clarifications on the notion of “law as pedagogue.” This last topic will hopefully answer some concerns about despotism potentially raised in an earlier article.

About Matthew Minerd Matthew Minerd Matthew Minerd, PhL is a PhD student at The Catholic University of America. His research and reading interests are the history of the Thomistic Tradition, 20th Century French Thomism, and sundry topics metaphysical and ethical. Follow Matt on Google+