Normative Jurisprudence, Aquinas, and the Common Good
posted by Peter Quint
NORMATIVE JURISPRUDENCE, AQUINAS, AND THE COMMON GOOD
By Peter E. Quint
Chapter 1 (Revitalizing Natural Law) in Robin West’s remarkable Normative Jurisprudence gives rise to the following thoughts on Aquinas and the common good and on the implications that Aquinas’s discussion, more generally, may have for the search for the common good that Robin West proposes as a central jurisprudential undertaking.
Each of the following four sections, therefore, comments on aspects of Robin West’s call, in Normative Jurisprudence, for a jurisprudence that undertakes a search for the common good.
1. Aquinas and the Common Good.
There may be an ambiguity in Aquinas’s conception of the “common good”, and it seems worthwhile to focus on this issue and to try to untangle it to the extent possible. From time to time, Aquinas may have in mind two different conceptions of the common good –- generally not inconsistent with each other, but different nonetheless. One conception may be a religious common good, and the other a worldly common good, which comprises the more mundane goals of human life and human law.
In Q90 (II) Aquinas says, ”Now the first principle in practical matters, which are the object of the practical reason, is the last end: and the last end of human life is bliss or happiness” (citing Q2 (VII); Q3 (I)). Later in the same section (Reply Objection III), Aquinas states that “the last end…is the common good.” Thus the common good seems to be identified with happiness.
A problem may arise because Aquinas seems to endorse two different ideas of happiness. One idea is discussed in Q91 (IV) in which Aquinas notes –- in the course of explaining the necessity of Divine Law (scripture) — that “man is ordained to an end of eternal happiness, which is inproportionate to man’s natural faculty” -– certainly a reference to a religious form of happiness. Moreover, Q5 (V), cited at this point in Q91 (IV), refers to a clearly religious form of “perfect Happiness”.
Yet, Q5 (V) also refers to “[i]mperfect happiness that can be had in this life,” and it is certainly clear that in much of the “Treatise on Law” (Questions 90-97) Aquinas is talking about a secular common good. For example, in discussing whether human law may be interpreted broadly, or whether it must be interpreted according to the letter (Q96 (VI)), Aquinas gives the example of defenders of a besieged city who are being chased by an enemy outside the walls. Under these circumstances, may officials open the city gates to save the defenders, when there is a rule of human law stating that the gates must be kept closed? In answering this question Aquinas –- in this instance, as in many others — combines rigor of theory with a very sensible result. Under these circumstances, Aquinas states, “the gates ought to be opened, contrary to the letter of the law, in order to maintain the common weal, which the lawgiver had in view.” Assuming that the “common weal” is equivalent to the “common good” — indeed, Aquinas actually uses the phrase “common good” at an earlier point in the section — this answer certainly sets forth a secular conception of the common good, and it seems likely that it is this secular view of the common good that predominates in Aquinas’s discussion of human law.
Moreover, it is likely that the secular common good largely overlaps with a possible religious common good –- because following human law toward the secular common good generally constitutes an important step toward religious ends. Yet the religious form of happiness requires more than the secular form, and those requirements are covered largely by what Aquinas calls the Divine Law (scripture) because of human inability (in Aquinas’s view) to achieve religious happiness without specific divine assistance.
In Normative Jurisprudence, Robin West is clearly focusing on a secular view of the common good, which is indeed the view that most contemporary readers and thinkers on the subject might well adopt. Yet, to the extent that Aquinas is important for this enterprise, it may be worthwhile to distinguish the secular common good from a possible religious common good, because the religious common good might ultimately require certain abnegations and limitations on aspects of human flourishing that might be broadly inconsistent with our views of the secular common good which, in West’s view, we should be seeking to analyze and achieve.
These speculations also raise another question that eventually may have to be confronted in the search to be undertaken by jurisprudence for the common good: if religion is to be considered an aspect of the common good (as a reading of Finnis, for example, might suggest), and if religion requires an asceticism that may curtail certain other aspects of human flourishing (and therefore other aspects of the common good), how are these tensions or contradictions to be resolved?
2. Aquinas as Democrat and Egalitarian
a. Aquinas as Democrat
It seems remarkable that Aquinas, in the sections on law, endorses certain democratic and egalitarian views — however inconsistent those views may have been with the reality of the 13th Century society that surrounded him. In rejecting the proposition that “the reason of any man is competent to make laws” (Q90 (III)), Aquinas argues that “[a] law, properly speaking, regards first and foremost the order to the common good,” and that “to order anything to the common good, belongs either to the whole people, or to someone who is the vicegerent of the whole people.”
In this extraordinary sentence the “whole people” is stated first and the official (perhaps the Sovereign) who as a practical matter will probably make the law is mentioned second and considered a “vicegerent” or a person exercising power delegated by the people. In the next sentence, on the making of law, Aquinas repeats the same proposition, again referring to “the whole people” first, and to a “public personage who has care of the whole people” in second place as an alternative maker of law.
For our purposes, it is particularly important that Aquinas views these aspects of political structure as required by the search for the common good. Behind these conclusions seem to lie the following arguments: First, if given the chance, the people will understand the common good and will choose to implement it in law –indeed, Aquinas notes that “the directing of anything to the end concerns him to whom the end belongs.” Q90 (III). If, however, for some reason the people themselves are not given the chance to implement the common good through law, the official who does make the law should be considered the assistant or vicegerent of the whole people and should make laws that reflect the people’s understanding of the common good.
Aquinas very interestingly returns to the democratic theme when he argues in effect that the people, by engaging in the process of forming a custom through repeated acts, are making law: “although each individual cannot make laws, yet the whole people can.” Q97 (III). Aquinas does recognize, 13th Century reality, however when he notes that if “the people have not the free power to make their own laws”, legal effect must wait until the custom “is tolerated by those to whom it belongs to make laws for that people.”
b. Aquinas as Egalitarian
In discussing law Aquinas — with one significant exception -– does not invoke hierarchical distinctions among individuals. In this respect, the religious equality of souls seems to apply in human government as well.
Aquinas also insists on another aspect of equality when he observes that, in order for a law to be just, “burdens are laid on the subjects, according to an equality of proportion…” and that even a law enacted “with a view to the common good” may be unjust if “burdens are imposed unequally on the community.” Q96 (IV). Martin Luther King picks up this idea -– in a passage highly influenced by Aquinas in “Letter from Birmingham City Jail” –- when he gives as an example of an unjust law “a code that a majority inflicts on a minority that is not binding on itself” –- a reference to segregation, a more contemporary example of a law imposed “unequally on the community”.
The significant exception to the principle of equality in Aquinas is the Sovereign who may make laws for others although, as we have seen, he must act as steward or vicegerent for the whole people. Yet the possible superiority of the Sovereign is a decidedly qualified one in other ways as well. As discussed below his laws may possibly be disobeyed if they are unjust. Moreover, the Sovereign is bound by the commandments of God, like any other mortal, and presumably he will receive a divine punishment if he issues unjust laws whether or not they must be obeyed. See Q96 (V).
These passages of Aquinas seem to raise a number of issues that are pertinent for understanding the scope of the search for the common good urged by Robin West in Normative Jurisprudence. Should this enterprise take the form of a search for “substantive” basic goods drawn from our understanding of human nature, which together might form a general common good? Or should the enterprise be expanded -– as Aquinas seems to suggest -– to include a search for those political structures, presumably following democratic and egalitarian principles, that may generate correct decisions about the common good or may be most effective in implementing the substantive common good that jurisprudence may discover.
Perhaps a deeper question is this. What relationship should there be between the jurisprudential discovery of the common good and the people’s understanding of the common good? Is it possible for a jurisprudential theory of the common good to accept the proposition that the people’s understanding of the common good should ultimately prevail over the view of the common good achieved by jurisprudence? Perhaps this type of superiority is acknowledged in West’s view that the results of the search for the common good should be employed to persuade legislatures, rather than to inform courts in their determination of constitutional law. Yet questions of this sort may reproduce common tensions in constitutional law on a rather different level.
An aspect of this theme will be pursued in the next section.
3. Aquinas and Martin Luther King: Civil Disobedience and the Common Good
Robin West’s brilliant examination of ambiguities in Q96 (IV), Aquinas’s discussion of whether an unjust law can be a law, evokes some further reflections on ambiguities in this famous section.
St. Augustine declared that “a law that is not just, seems to be no law at all”, and Aquinas quotes this declaration in discussing “whether human law binds man in conscience.” Q96 (IV). As Robin West points out (NJ 22-23), Martin Luther King focuses on this language and quotes it in the course of a powerful argument for civil disobedience in “Letter from Birmingham City Jail.” In this argument, King draws a further inference about conduct from the proposition that an unjust law is not a law. For King, an unjust law is not a law and therefore such a “law” should not be obeyed (or, at any rate, need not be obeyed).
Interestingly, Aquinas is considerably less certain on the subject of this further inference. In fact, although Aquinas takes the position that an unjust human law is not a law, he generally hedges on whether that justifies disobedience to the “law” –- or even whether an unjust law fails to bind an individual in conscience.
To see this, let us return to Q96 (IV). After analyzing certain characteristics of just and unjust laws, Aquinas concludes that unjust laws “do not bind in conscience, except perhaps in order to avoid scandal or disturbance, for which cause a man should even yield his right…” (emphasis added). Shortly thereafter, Aquinas declares that “a law that inflicts unjust hurt on its subjects” goes beyond “[t]he power that man holds from God…wherefore neither in such matters is man bound to obey the law, provided he avoid giving scandal or inflicting a more grievous hurt” (emphasis added).
So it seems that Aquinas is really ambivalent on this question. In his view, for example, does public civil disobedience always or almost always constitute “scandal” or “disturbance”? Some people might think so. Although this question probably cannot be answered with any assurance, I would like to suggest that, in the interpretation of this famous section, less emphasis should be placed on what seems to be Aquinas’ ultimately rather inconclusive discussion of civil disobedience and rather more emphasis on the introductory passage in which Aquinas makes clear that all just laws (and perhaps all laws that are not manifestly unjust?) do in fact bind an individual in conscience — because each such human law does possess that binding power “from the eternal law whence they are derived.” Thus this initial portion of Aquinas’s answer may show Aquinas as a “company man” making clear to individuals that they are bound in conscience to obey a just law even if they have some petty personal objection or grudge against it and they must also obey even truly unjust laws, if to disobey them would cause “scandal or disturbance” –- i.e. inconvenience to the state.
There is only one exception to this general structure: the commands of the Divine Law — presumably, the special commands of scripture — must always be obeyed, and inconsistent human laws must be disobeyed without exception. Thus Aquinas would absolutely require the people to disobey if the Sovereign issued an edict commanding them to bow down before a golden image.
Martin Luther King, and Gandhi (who was King’s primary source of inspiration) used civil disobedience to great effect in important social movements. Others, in contrast, have argued that civil disobedience can have a dangerous destabilizing influence on law and society. For our purposes, Aquinas’s ambivalence on the question of civil disobedience — his willingness to balance the importance of disobeying an unjust law against the destabilizing influence that civil disobedience may evoke — suggests that Aquinas was uncertain on the extent to which disobedience to unjust laws constitutes a proper method for pursuing the common good. Aquinas’s ambivalence on this subject suggests that in any inquiry concerning those democratic structures that might assist us in achieving the common good, we might devote some attention to the question of whether, and under what circumstances, civil disobedience could be a tool for pursuing the common good in a democratic society.
If, for example, a jurisprudential inquiry isolated an important aspect of the common good, but the legislature and the people refused to recognize it and refused to put it into law, would it be permissible for the supporters of this jurisprudential position to employ civil disobedience to try to encourage the people and the legislators to take another look? This would be a use of civil disobedience quite different from that contemplated as permissible by Aquinas, and yet it would, in some way, not be inconsistent with his underlying view that human law should be directed toward the common good.
4. Searching for the Common Good
In Normative Juriprudence, Robin West argues that we -– teachers, lawyers, and judges –- should engage in a sustained search for the common good, derived from our examination and analysis of human nature. It might be interesting, in conclusion, to think a bit about what such a search would look like, and how we might begin such an undertaking. Interestingly, Aquinas himself does not tell us very much — in the “Treatise on Law”, at least –- about the substance of the (secular) common good, although this concept seems to be related to the Greek idea of “happiness” (eudaimonia), a flourishing condition of the soul. Perhaps Aquinas gives us a slightly more detailed glimpse into his view of aspects of the common good in Q94 (II) when, in the context of discussing aspects of the natural law, he lists some of the basic human goods. Aquinas lists self-preservation, an inclination which humans share “with all substances” (the besieged city case in Q96 (VI) is a specific example of this); sexual intercourse and the education of offspring (which humans share with other animals); and characteristics belonging to humans alone, such as “[knowing] the truth about God and [living] in society.” (Certain of Finnis’s Basic Values -– life, knowledge, sociability, and religion -– are at least roughly parallel to these goods listed in Aquinas.)
Even with all the uncertainty of this and related passages, one gets the distinct impression that the common good in Aquinas is a highly substantive concept in which, as Aquinas sees it, the “common good” is composed of a series of goods that are applicable to all and valued by all. It is probably not a more procedural concept of the common good, such as that proposed by John Finnis, in which the common good is found in the creation of laws and institutions that will allow a thousand flowers to bloom –- that will allow each individual to find the best way to carry out his or her own unique life plan and to seek the fulfillment of his or her unique combination of a broad set of “basic values”. Indeed, personal autonomy and rights (concepts never explicitly employed in the Treatise on Law) do not play a significant role in Aquinas’s view of law. (But, of course, there is no reason that either a substantive or a procedural view of the common good must be rejected in the search proposed by Robin West.)
Perhaps Martin Luther King points us in the right direction when, in “Letter from Birmingham City Jail,” he discusses the difference between just and unjust laws, in the passage heavily influenced by Aquinas, noted above. According to King, “[a]ny law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority, and the segregated a false sense of inferiority.” A page earlier, King has given a vivid example of this distortion of the soul when he describes a little girl whose personality is distorted by bitterness when she learns that an amusement park advertised on television is closed to black people. According to Aquinas, a just law must be directed toward the common good, and so we might interpret King as saying that the common good is composed of qualities that uplift the soul and is devoid of qualities that distort the soul. This suggestive idea seems closely related to Aquinas’s apparent view that the common good is directed toward “happiness”, as the Greeks understood it, a flourishing condition of the soul.
Yet this is just a starting point. Perhaps for more detailed assistance in the search for the common good we might turn to constitutional law. In the context of Normative Jurisprudence, this suggestion might seem paradoxical or even perverse, because Robin West argues that it is precisely a focus on constitutional law that has absorbed available energies and discouraged a search for the common good -– which may be used to criticize constitutions and constitutional law. Yet, I suggest, perhaps we can turn the tables a bit to search out and employ various concepts propounded by the constitutional courts of the world as sources from which we might begin our jurisprudential (and non-constitutional) inquiries into the common good.
Of course, it is true, that the Constitution of the United States may not necessarily be the best place to start on this quest. The negative nature of American constitutional rights may not yield a rich array of suggestions for substantive aspects of the common good. One such aspect of the common good, however, might be the general sense of security that could be furthered by an array of negative guarantees such as those against unreasonable searches and seizures, double jeopardy, etc. Perhaps the jurisprudence of the United States Supreme Court may contain some valuable suggestions. One fruitful starting place, for example, could be found in the famous concurring opinion of Justice Brandeis in Whitney v. California, an opinion that seems to be infused by Justice Brandeis’s life-long interest in Greek philosophy and culture. In one particularly important sentence Brandeis states: “Those who won our independence believed that the final end of the State was to make men free to develop their faculties.” The development of the faculties, presumably both mental and physical, might provide an excellent starting place for an analysis of important aspects of the common good.
But probably more fertile territory for this search might be found in the jurisprudence of constitutional courts in other constitutional systems, in which the constitutional theory itself is directed more explicitly to the role of the state in assisting individuals to achieve a flourishing condition of life.
In lieu of a quixotic attempt to investigate all constitutional systems, I suggest that a fruitful search for elements of the common good might well begin with a review of German constitutional law and constitutional history, because the progressive elements of this tradition seem largely directed toward creating a good society in which individuals may attain a flourishing condition of life. From the progressive Weimar Constitution of 1919, which sought to “constitutionalize the welfare state,” to the present post-War German Constitution, the Basic Law of 1949 (still in effect), and then further to certain extraordinarily inventive documents of the era of German unification, such as the East German citizens movement’s Roundtable Draft of 1990, and subsequent constitutions adopted by the new eastern German states, these documents -– and, in some instances, judicial decisions interpreting them -– contain a broad array of provisions concerning marriage, family, the role and protection of children, education, health care, housing, protection of natural resources, environmental provisions, old age and unemployment insurance, and labor unions and the role of the worker in society -– among many others.
Moreover, litigation in the German Constitutional Court under the Basic Law has raised many other suggestive possibilities. For example, the German
Constitutional Court has developed and elaborated a much more comprehensive doctrine of individual privacy — as a constitutional matter — than that accepted in the United States. To what extent is this extended notion of privacy or personality a basic value that should constitute part of the common good? Finally, the German Constitutional Court has developed a doctrine requiring that the government must leave untaxed an amount equal to the cost of items necessary to provide for the basic existence of each individual (the “existence-minimum”). The interesting point for our purposes is that the German Constitutional Court has attempted to define the “existence-minimum” by isolating and listing those aspects of human life in society that must be considered part of the minimum resources necessary for a decent existence. (These discussions sometimes are very informative and detailed; for example, the cost of educational supplies for children has been found by the Court to be part of the “existence-minimum”). One might well interpret the German Constitutional Court as saying that, in light of human nature in contemporary society, the common good is composed (at least in part) of the factors that the German court lists and discusses as constituting the “existence-minimum.”
These German constitutional provisions, and their interpretation, may or may not be good or effective as constitutional law. But they might well be the launching point for a rich discussion of the common good, which, when detached from its origin in constitutional law, could well form part of the philosophical and jurisprudential discussion urged by Robin West in Normative Jurisprudence.
 No doubt there are suggestive starting points in the philosophical and political science literature (among others), but there is no reason why we, as lawyers, should not be able to search for assistance in the law as well.
 For this purpose, I take no position on the extent to which (if any) this aspiration has actually been achieved in Germany. Needless to say, the unspeakable Nazi period is omitted from this suggested survey; indeed, the German constitutional law of the post-War period was, to a significant extent, a reaction against the enormities of the Nazi regime.