Civil Law: a Coercive Institution or a Promoter of the Good Life?
by
David Thunder
16th January 1998
Civil Law: a Coercive Institution or a Promoter of the Good Life?
We all live under laws, whether we like it or not. In the first instance, we live under the laws of nature – that is, we act within certain natural constraints and indications or guidelines. This kind of law – the law of gravity, the laws of our body, our psychological and emotional needs, and so on – we are inclined to accept and feel powerless to change, even if we can act within them in different ways. But we also live under a different kind of law, a law of human making, which we call civil law. Civil laws, unlike natural laws, are subject to the design of frail and fallible human beings. They are not a direct effect of natural laws, since they require the will and rational deliberation of people to come into existence. For this reason, civil laws pose a problem of acceptance in a unique way. They are constructed by human acts and therefore they are intended and designed by finite moral agents for purposes of their own choice. To put it another way, human laws are subject to a moral evaluation, which may trace them to the motives or intentions of their originators in a way which simply cannot be done with laws of nature. Equally relevant to their unique character, human laws can be changed, revised, and abrogated by a human legislator. All these qualities make them seem precarious and at times even arbitrary. They stand in need of justification if they are to be obeyed and respected by a large majority of citizens. Now, the kind of justification which may be offered, and its effectiveness, will depend on how we conceive the purpose and origin of civil law.
In this essay, I will make some remarks on the tendency of modern political theory to conceive political authority as an intrinsically coercive institution, and show that this tendency stems from a more or less individualistic conception of citizenship. My account of liberalism will inevitably involve some over-simplification, but I hope that it will bring out clearly some of the obstacles posed by the tradition of individualism to the survival of civil law as a respected institution. Having highlighted some of the inadequacies of individualistic liberalism (vis-à-vis offering a coherent justification of civil obedience), I will be in a better position to show the advantages of Aquinas’ approach to civil law. Put most simply, civil law, for Aquinas, rests on the natural law of human action, which in turn is a participation in the eternal law, or the divine law which governs all of reality. By showing that civil law is (or should be) ordered to the common good of society, and that the common good is also good for the individual, Aquinas helps us show that there is no need to manufacture the obedience of upright citizens [1] by the threat of coercion or an artificial contract, since citizens are already, by their very nature, members of a common polity and morally bound to be loyal citizens, so long as the laws of the state are not contrary to natural law.
Modern political theory, from Hobbes to Rawls, tends to view political authority as "a monopoly of the means of coercive physical force."[2] This monopoly is justified by the necessity to secure the freedom of the individual against attack. Freedom is conceived as a freedom to mould one’s life according to one’s own aims and conception(s) of the good life. Laws are a social construct, which place limits on the free pursuits of the individual in order to prevent those pursuits from interfering with the equal liberties of others. Thus, the law prevents society from breaking down into anarchy and allows us to pool our resources in order to improve our individual lifestyles and gain access to many goods that we would otherwise have been deprived of. One of the most popular ways of representing the liberal state has been the hypothesis of an original contract formed by free men concerning the fundamental political arrangements of their society.
This contract, whether considered as hypothetical or actual, enables us to find a conceptual justification for the authority of civil law. By imagining a society without any law, the necessity of civil law as a source of order and as a protector of individual liberty is brought home to us. Even from a rigorously individualistic viewpoint (which is that taken by classical liberalism), the law is seen as desirable since, even though it places artificial and sometimes unpleasant constraints on the individual, without such constraints and control, individual liberties would be vulnerable to attack. Fundamentally, man is a self-interested creature. Given the opportunity, he will indulge expansionist and self-aggrandizing dreams. However, he will consent to having his own desires or interests curtailed, since he realizes that the sacrifice pays off in the end, since without common law, he cannot live at peace to pursue his aims in life. Thus, the ultimate liberal justification for law is rational, egoistic consent, whether actual or hypothetical.
The central presuppositions of liberal jurisprudence, though attractive at first sight, fail to provide an adequate foundation for human law. The atomisation of each individual’s private good and the positing of a universal right to liberty (understood chiefly in the negative sense) set up an irreconcilable conflict between individualistic aspirations and communal obligations. Because liberalism bases the institution of law on calculated individualistic consent rather than on any natural moral obligation, coercion inevitably plays a central role in winning and maintaining the loyalty of citizens to the law in a liberal state. However, consistent or stable obedience to the law cannot be based solely, or even primarily, on the threat of coercion. Goerner argues, for example, in "Politics and Coercion", that
…the citizens of liberal theory have no motive to conform to the law aside from its payoffs in each one’s private calculus of satisfactions…Very few individual violations of the law threaten to bring down the whole system. Consequently, each citizen may rationally commit crimes whenever crime pays better than obedience to the law…Only coercion can change enough individual calculations of net interest so as to stabilize the system. [3]
But of course, this is a precarious foundation for the authority of the law, since obedience is exacted from fear and not from loyalty or virtue. Should that fear turn into courage, or should the coercive powers of the State prove weak or ineffectual in a particular area, there is no public moral reason for an individual to obey the law.
Those who obey only for fear of punishment have no good reason to obey whenever they think they can escape the punishment or the punishment is less costly than the crime is profitable. [4]
This is not to say that all individuals in a liberal society, or indeed all individuals who subscribe to a liberal philosophy of law, are selfish or are only capable of acting out of self-interest, or have no sense of solidarity with their neighbours. A liberal theory of law allows the individual maximum freedom to act according to their own convictions. As such, it does not prevent any citizens from acting out of virtue or loyalty or altruism. However, as a theory, it does presuppose that citizens will by and large act out of self-interest and it offers very little reason for obeying the law other than on the basis of a pragmatic, self-concerning calculation.
The liberal model of law falls short of providing a satisfactory moral foundation for human law and fails to tackle the eminent paradox of the liberal state – "a coercive public order to guarantee individualistic liberty." [5]. In both respects, I will argue that liberalism has a lot to learn from St. Thomas Aquinas’ conception of human law, which surpasses the liberal conception on at least two counts: one, he offers a more refined and morally insightful explanation of coercion; while, two, he places the law within the context of a substantive account of human nature, which enables him to show that when certain conditions of justice and moderation are fulfilled, the law is morally binding, even independently of the scale of sanctions attached to disobedience.
Even though our understanding of law is given most directly in the form of human legislation, what leads human beings to frame legislation, and indeed to act as human beings, is the "eternal law" which governs the universe, "the divine wisdom, considered as moving all things according to their several ends in subordination to the end of the whole created universe, the communication of the divine perfection." [6] We may understand this law as the law of an omnipotent Creator, God, or, if we wish, we may simply accept that there is an origin of order in the universe far beyond human understanding, in which all laws perceivable by human understanding are a mere participation. The existence of an eternal law may only be inferred from the wondrous unity and order which the human intellect perceives in the universe, but it cannot be comprehended by the human mind; indeed it can only be understood analogously, by reference to its effects. Aquinas insists that to know something by its effect is not to know that thing in itself.
A thing may be known in two ways: first, in itself; secondly, in its effect, wherein some likeness of that thing is found… So then no one can know the eternal law, as it is in itself… except the blessed who see God in His essence. [7]
On the other hand, human beings find themselves subject to the eternal law in a unique way in so far as they (unlike other animals, for example) are aware of that subjection, and are capable of intelligently discovering the laws of human action and deriving practical consequences from those laws by rational deliberation. [8] Our knowledge of the eternal law of reality is partial and relative to our limited human point of view. It is, nevertheless, a knowledge without which we could not exist as human beings. Furthermore, this knowledge is presupposed by all human actions, whether good or evil. This knowledge, imperfect as it is, is a real participation in the eternal law, and Aquinas calls it the "natural law." It is important to note that the precepts of natural law are neither an arbitrary imposition from without nor a result of an arbitrary personal choice, but objective (not invented or created by us) principles of human action discovered by the human intellect.
From man’s point of view, the principles of natural law are neither received from without nor posited by his own choice: they are naturally and necessarily known. [9]
Thomas’s claim that we live and act according to naturally known principles is not a controversial claim, at least not any more controversial than the law of non-contradiction. Natural law is foundational to human action. That is, it is a sine qua non with respect to all acts of will and reason. The conception of law as something imposed a posteriori on freely-choosing creatures is anathema to St. Thomas’s theory of natural law, since all human acts (good or evil) find their very source in the natural law, as he explains in this passage:
Every act of reason and will in us is based on that which is according to nature… for every act of reasoning is based on principles that are known naturally, and every act of appetite in respect of the means is derived from the natural appetite in respect of the last end. Accordingly the first direction of our acts to their end must needs be in virtue of the natural law. [10]
The natural law, then, should not be understood as a set of external prohibitions or exhortations, nor merely as the natural tendencies and inclinations of man of which he becomes reflectively aware, but as "the precepts which his reason enunciates as a result of this reflection." [11] The first principle of natural law which nobody of sound reason could deny is, "Good is to be done and pursued, and evil is to be avoided." [12] Whether we pursue objectively good or objectively evil actions, we cannot help pursuing all things under the aspect of good. "As to general principles, the natural law, in the abstract, can nowise be blotted out from men’s hearts." [13]
The secondary or derived precepts of natural law, unlike the primary precepts, are not a given such that we find their truth irresistible or self-evident. This is for two reasons. Firstly, because "the practical reason…is busied with contingent matters, about which human actions are concerned: and consequently, although there is necessity in the general principles, the more we descend to matters of detail, the more frequently we encounter defects." [14] In other words, the application of general principles in concrete situations calls for practical knowledge or prudentia, and general principles may ‘fail’ in special situations.
The second reason that derived principles of the natural law are not evident to all is that human nature has been corrupted by original sin, and consequently, "in some the reason is perverted by passion, or evil habit, or an evil disposition of nature..." [15] What St. Thomas is saying here is that the vastly conflicting conclusions of moral agents who share the same fundamental inclinations is not some impenetrable mystery but a fact attributable to our moral development as human beings. Some are more developed than others; our choices are not made in a vacuum, but in the context of a series of dispositions formed over time by a series of actions. Our fundamental desire is to do good, but even that may be perverted by what St. Thomas calls our "concupiscence", that is, our inclination to sin. In other words, we may pursue evil ends as subjective goods (things desired by the subject), but not as objective goods (things both desired by the subject and conducive to the flourishing of the subject).
From a Thomistic perspective, human laws, while they must take into account the imperfection of human nature (in Christian terms, the damage done to it by original sin), are not essentially a consequence of corruption or vice. On the contrary, just as law in general "is a source of human actions" and "makes human life possible" [16], human laws are indispensable in order for man to fully actualise his natural potentialities. One of man’s fundamental needs is to live in society, as Aristotle said. [17] To live lawlessly is not to live humanly. Just as the natural law is a source of all meaningful human action (and not merely one among a number of possible options to be chosen freely) [18], the law of the land, or positive law (leaving aside for the moment the form it should take) is an essential source of human order, not only collectively, but for each individual. It is impossible for man to order his activities with other people without some form of direction or government. It is therefore clear that government is in accordance with nature and that even before the Fall (hypothetically), government and civil law in some form would have been necessary:
Man is by nature a social animal. Hence in a state of innocence (if there had been no Fall) men would have lived in society. But a common social life of many individuals could not exist unless there were someone in control to attend to the common good. [19]
The question of the place of coercion in civil law can only be answered if we are clear about the purpose of human laws. Human laws, for Aquinas, are never an arbitrary imposition [20], but rather ‘a rational arrangement’ of human acts. [21] The law is only valid in so far as it fulfills its natural function or purpose or telos, which is to serve the common good. The common good is understood by Aquinas not only as the sum of individual goods, as a utilitarian or contractarian might understand it, but as the good constituted by the communion of a group of human beings – as such, this good is a social or intersubjective good. Though such a good is naturally desired by each individual human being, and needed by each individual member of the polity in order to flourish as a human being, it cannot be understood as a simple amalgamation of individual goods. As Goerner puts it, the common good is "not a mere sum of individual goods even though it includes and affirms the goods of individuals." [22] This communal view of law is contained in Aquinas’ famous definition of law as "an ordinance of reason for the common good, made by him who has care of the community, and promulgated." [23]
A straightforward definition of coercion is the compulsion of an individual to perform some action which that individual is unwilling to perform. It is obvious that coercion may be used to serve both good and evil ends. For example, a thief may be punished for his deed, or even arrested in the act of stealing, and this is considered as a valid use of coercion since it conduces men to their common good by impeding or prohibiting an action destructive of the welfare of the community. On the other hand, Aquinas does not hesitate to condemn as "unjust" any law which is conducive "not to the common good" but rather to the "cupidity and vainglory" of a particular ruler. He goes further, insisting that such laws are "acts of violence" which "do not bind in conscience, except perhaps in order to avoid scandal or disturbance." [24] Thus, we must distinguish clearly between just and unjust uses of coercion – the law does not have a carte blanche to employ coercive means wherever it sees fit.
A second important aspect of coercion is that it is not a general feature of law but is relative to the degree of willing obedience of those subject to the law. Obedience to the law is not inherently a degradation or reduction of human freedom, as liberal theory implies, but an essential exercise of human freedom, given that human beings need to participate in the life of a community in a rational way in order to fulfill their nature. Human law, argues Aquinas, "is given for the purpose of directing human acts". Therefore, "as far as human acts conduce to virtue, so far does law make men good. Wherefore the Philosopher says in the second book of the Politics (Ethic. ii) that lawgivers make men good by habituating them to good works." [25] The point is that human acts are potentially conducive to virtue, and since the law has some part in directing human acts (according to the common good), the law to that extent "makes men good." What emerges from this conception of civil obedience is that a) the law, as long as it is just and conducive to the common good, is not coercive from the point of view of the virtuous and discerning person [26] and b) the just law can only be coercive from the point of view of somebody lacking in virtue. The law only employs coercive means because it must contend with the practical reality that for many, admonition without a threat of punishment is not a sufficient inducement to virtue.
Men who are well disposed are led willingly to virtue by being admonished better than by coercion: but men who are evilly disposed are not led to virtue unless they are compelled. [27]
Liberalism fails conspicuously to provide a morally compelling justification of civil law. This is because it refuses to recognize a final common good for a polity and is bound by an individualistic conception of citizenship. [28] Aquinas’ account succeeds where liberalism fails by giving human law a foundation in human nature and grounding it not merely in the subjective good of the individual but in the communal good of the polity. By positing social intercourse as a natural human good, Aquinas can show that living under laws that make possible a rational arrangement of human affairs is not per se contrary to freedom or a sacrifice of freedom, but on the contrary, an antecedent condition of human freedom. By setting up his account in this way, he is able to i) make sense of civil law as a purposive and natural (i.e. founded on nature) institution, without having recourse to any hypothetical contract or ‘original position’, ii) show that obedience to the law is not merely a pragmatic, self-concerned calculation but a morally responsible decision, made for one’s own good and the common good, that is, with the welfare or thriving of the whole community in mind, iii) as a consequence of the above, avoid the liberal conclusion that all laws present a problem of coercion even for virtuous, law-abiding citizens. [29] This is because for Aquinas civil law, deriving all its authority from natural law, commands the obedience of virtuous citizens in a non-coercive or voluntary fashion. Sanctions exist, however, to exact obedience from and control the behaviour of those citizens who, being "depraved, and prone to vice, and not easily amenable to words", need to be "restrained from evil by force and fear, in order that, at least, they might desist from evildoing, and leave others in peace." [30] Thus, the constraints of law are liberating to the morally mature, who are integrated into the community, and enslaving from the point of view of those who pursue their own private goods in isolation from the community. [31]
The attempts of liberalism to ground civil obedience in a rational, egoistic calculation and thus avoid making any substantive moral commitments fail to defend the institution of civil law against the attacks of its individualistic subjects. This is because the concept of individualistic liberty, by stigmatising the constraints of law and the harmonising demands of a community, does not provide a strong moral reason for obeying the law. Aquinas’ theory, on the other hand, fills this moral ‘gap’ by conceiving the good of the individual and the good of society as co-relative and essentially interlinked. Furthermore, he does not rely on any hypothetical social contract to justify the existence of civil law; civil law enables us to live a full human life, and therefore he can safely say that the existence of civil law is ‘a good thing’. Finally, the moral legitimacy of a particular civil law is a matter for moral evaluation: if it is in keeping with the natural law and proportionate to the end of law, the common good, it is morally binding. If, on the other hand, civil law contravenes natural law, it no longer has the character of law, but of an act of violence, and clearly, loses its moral authority. Aquinas’ theory poses a real challenge to ethically ‘neutral’ liberal theories, since his theory shows that the problem of coercion is much less of a ‘problem’ if one admits that civil law is ordered not merely to the sum of individual subjective goods, but to the common good of the community.
END REFERENCES
[1] Of course, the subtlety of Aquinas’ account is that he makes a clear distinction between virtuous citizens, who voluntarily order their actions (primarily by obedience to the law) to the common good, and not so virtuous citizens, who only obey because of the sanctions attached to non-obedience.
[2] Goerner, E.A., "Politics and Coercion" in Political Theory (vol. 24, no. 4, nov. 1996), p. 621
[3] ibid, pp. 621-622
[4] ibid, p. 634
[5] ibid, p. 621
[6] Copleston, Frederick, Aquinas on Law, p. 220
[7] Aquinas, St. Thomas, Summa Theologicae, Ia IIae, q. 93, art. 2. Almost all primary references are based on the translation in Treatise on Law (Chicago: Regnery Gateway) of QQ. 90-97 of St. Thomas’ Summa Theologicae, part I of book II. Henceforth, their source will be abbreviated to S.T.
[8] cf. S.T., Ia IIae, q. 91, art. 2: "Now among all others, the rational creature is subject to Divine providence in the most excellent way, in so far as it partakes of a share of providence, by being provident both for itself and for others."
[9] Grisez, Germain G., "The First Principle of Practical Reason" in Aquinas: A Collection of Critical Essays edited by Anthony Kenny, p. 376
[10] S.T., Ia IIae, q. 91, art. 2, ad. 2
[11] Copleston, Frederick, Aquinas, p. 222
[12] S.T., Ia IIae, q. 94, art. 6
[13] op. cit.
[14] S.T., Ia IIae, q. 94, art. 4
[15] op. cit.
[16] Grisez, Germain G., "The First Principle of Practical Reason" in Aquinas: A Collection of Critical Essays edited by Anthony Kenny, p. 370
[17] cf. Aristotle, Politics, I 2: "He who is unable to live in society, or has no need because he is sufficient to himself, is either a beast or a god."
[18] cf. Grisez, Germain G., "The First Principle of Practical Reason" in Aquinas: A Collection of Critical Essays edited by Anthony Kenny, p. 378: "The precepts of natural law, at least the first principle of practical reason, must be antecedent to all acts of our will. There is nothing surprising about this conclusion so long as we understand law as intelligence ordering human action toward an end rather than as a superior…commanding a subject’s performance."
[19] S.T., Ia Iae, q. 96, art. 4
[20] By ‘arbitrary’, I mean subject to no moral constraints or guidelines. Of course, there is a certain arbitrariness in the law since particular laws, though bound by general natural laws, are formed according to the discretion and prudentia of legislators.
[21] S.T., Ia Iae, q. 90, art. 4
[22] Goerner, E.A., "Politics and Coercion" in Political Theory (vol. 24, no. 4, nov. 1996), p. 630
[23] S.T., Ia IIae, q. 90, art. 4
[24] S.T., Ia IIae, q. 96, art. 4
[25]] S.T., Ia IIae, q. 92, art. 1, ad. 1
[26] cf. McInerny, Ralph, "Ethics" in A Cambridge Companion to Aquinas, p. 210: "Our actions within society are constrained by laws, but…this is a guidance of our freedom to the true shared good of the community of which we are a part."
[27] S.T., Ia IIae, q. 95, art. 1, ad. 1
[28] Goerner, E.A., for example, argues in "Politics and coercion", p. 643, that "denying that there is a common final good for a polity, standard liberal theories are on a path that inexorably leads to the end of politics."
[29] cf. Goerner, E.A., "Politics and Coercion" in Political Theory (vol. 24, no. 4, nov. 1996), p. 621: "…the liberal state is a paradox: a coercive public order to guarantee individualistic liberty. Coercion, therefore, is permanently a central problem for such a state."
[30] S.T., Ia IIae, q. 95, art. 1
[31] A ‘private good,’ in this sense, is not an authentic good, since by pursuing a good contrary to the common good, an individual is going against his own natural need to live harmoniously in society.
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Copleston, Frederick, Aquinas (Middlesex: Penguin Books, 1967)
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Goerner, E.A., "Politics and Coercion" in Political Theory (vol. 24, no. 4, nov. 1996), pp. 620-652
Grisez, Germain G., "The First Principle of Practical Reason" in Aquinas: A Collection of Critical Essays (London: Macmillan, 1969) edited by Anthony Kenny, pp. 340-382
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