Should Good Rulers Require
Citizens to be Good People?
by
David Thunder
8th December 2000
Should Good Rulers Require Citizens to Be Good
People?
“As soon as any part of a person’s conduct affects prejudicially the interests of others, society has jurisdiction over it, and the question whether the general welfare will or will not be promoted by interfering with it, becomes open to discussion. But there is no room for entertaining any such question when a person’s conduct affects the interests of no person besides himself, or needs not affect them unless they like.”
- John Stuart Mill, On Liberty[1]
It is commonplace in contemporary Western societies to hear laws condemned for being ‘paternalistic’ or excessively ‘moralistic.’ One legal scholar, Robert George, has devoted an entire book to the defense of the legitimacy of some forms of legal ‘paternalism’, however circumscribed [2]. It seems that at the heart of the debate over ‘morals’ legislation and its permissibility is the question, to what extent the goals of government ought to include the moral flourishing of individual citizens; and which means, if any, are legitimate for furthering such an end? The question is brought out forcefully by issues such as pornography and drug abuse, which raise the problem, can government legitimately concern itself with the moral flourishing of citizens, even when the acts under consideration have no immediate impact upon the interests or rights of citizens other than the agent himself? Is there any moral principle which would justify the use of the instruments of State power to compel or induce citizens to live virtuously [3], where no immediate rights violation has occurred?
In this paper, I propose to examine the relationship between good government and the moral flourishing of the individual, as understood by St. Thomas Aquinas. The investigation will be guided by the question, “Should good government require citizens to be good people?” I will begin by taking this question in its full, focal sense, whereby ‘good’ implies fully virtuous, both in behavior and in interior disposition (§1). I will then consider the question in its secondary sense, whereby ‘good’ implies merely virtuous ‘on the outside’, but not necessarily virtuous in interior disposition. Virtue in this secondary sense does not imply that one’s will or disposition is in full accord with one’s behavior. We could think of this as the ‘performative’ sense of virtue (§2). Finally, accepting that Aquinas’s account does permit the promotion of virtue (in the secondary sense) by law, I will consider whether Aquinas provides us with any grounds for limiting government actions that promote the moral goodness or flourishing of citizens (§3).
§1 Requiring Goodness in
the ‘Full’ or ‘Focal’ Sense of the Term
If we take ‘good’ or ‘virtuous’ (I use the terms interchangeably) in its full or focal sense, then how are we to make sense of a legal requirement to be ‘good’? Aquinas follows Aristotle in insisting that a person cannot be truly virtuous unless both his external actions and his inner disposition are good, through and through.
An act is said to be an act of virtue in two ways. First, from the fact that a man does something virtuous; thus the act of justice is to do right, and an act of fortitude is to do brave things; and in this way law prescribes certain acts of virtue. Secondly, an act of virtue is when a man does a virtuous thing in a way in which a virtuous man does it. Such an act always proceeds from virtue. [4]
If virtue (in all its dimensions and across a wide array of situations) was legally required, what would it mean to obey or disobey such a law? Theoretically, to obey such a law would be something similar to obeying Christ’s command, “Love your neighbour as yourself.” The citizen would internalize the requirement promulgated by the government to be ‘good’ people, by not only performing good acts, but acting with rectitude or a good inner disposition. If a Christian can reform his inner disposition in order to follow Christ’s command, “Love your neighbour as yourself”, surely a citizen should be capable of altering his inner disposition to bring it into conformity with the requirements of a written law?
So far, then, it seems at least logically possible for a law enacted by human legislators to ‘require’ virtue from citizens. There is, however, an aspect of the concept of ‘requirement’ that must not be overlooked. To ‘require’ something is not simply to demand it verbally (or in writing); it is to have some means of enforcement at one’s disposal. Let us imagine that a government has issued a legal ‘requirement’ that citizens must privately hold their political leaders in high esteem. People could justifiably object that there is no meaningful distinction between exhorting or counseling citizens to think well of their leaders and ‘requiring’ them to do so, since in either case, there is no real possibility of enforcement. Enforcement is not possible because rulers have no way of reliably ascertaining whether the statute is obeyed, since citizens’ thought processes are not observable: if rulers attempt to infer thought processes from external behavior, then they are either enforcing a different norm than that on the statute books (concerning external behavior and not interior thoughts) or acting arbitrarily, since there is no reliable route from another person’s external behavior to their inner thoughts. Even if there were some way of establishing that the person violated the norm (e.g. hypnosis-induced confession), there would be no way of either preventing, or actively restraining citizens, from having ‘bad thoughts’ about the political leaders. The sphere of interior thought is beyond the scope of enforcement mechanisms available to public officials. Of course, one could imagine a situation in which the government resorted to tactics of psychological or drug-induced manipulation in order to exert control over the minds of citizens. However, in this (albeit extraordinary) scenario, the very concept of ‘legal requirement’ loses its force, since citizens are no longer conforming their wills, in any meaningful sense, with the legal norm – rather, the norm has been incorporated into their lives at the expense of their ability to recognize it as a norm. The only way to guarantee compliance with the law in this case, is to remove the very possibility of conscious or willed (even if reluctant) compliance.
This analysis deliberately focuses on mental processes in order to distinguish clearly between those aspects of human action over which other people can have meaningful control (and not merely influence) – our external acts – and those aspects of human action over which other people can, at most, have an indirect influence, but never any direct control – our interior thoughts and dispositions. Of course, even if a virtuous disposition cannot be legally compelled, rulers may decide to demand a virtuous disposition in law (even if that demand is not altogether coherent, for the reasons already given), and to punish inclinations to vice at the first suspicion that they may be present, based on the speech or actions of the citizen, or the reports of a confidant. This attempt to control a person’s will or punish evil dispositions that have not given rise to evil actions would be wrong, not only because it would inevitably lead to arbitrary judgments (through unreliable, behavior-based inferences), but because even in those cases where punishment was based on a truthful judgment of the person’s disposition, the law would have exceeded its rightful jurisdiction.
The relationship between the ruler and the ruled is not the same kind of relationship as that which holds either between trainer and dog, or between master and slave. For the human is the originator of his own actions, and therefore legislators do not have license to control or manipulate men’s wills according to their own designs, even if such manipulation has as its end the fostering of a virtuous disposition in the citizen. Human society is uniquely “a community of free men”, whose goals ought to differ from those of “a community of slaves. For the free man is the cause of his own actions; the slave, as such, belongs to another.” [5] Aquinas is quite emphatic in maintaining that in matters that affect the movements of the will, rather than external behavior, man is subject to God alone:
…a subject is not bound to obey his superior if the latter command him to do something wherein he is not subject to him. For Seneca says (De Beneficiis iii): “It is wrong to suppose that slavery falls upon the whole man: for the better part of him is excepted.” His body is subjected and assigned to his master but his soul is his own. Consequently in matters touching the internal movement of the will man is not bound to obey his fellow-man, but God alone. [6]
Elsewhere, Aquinas expresses this reservation in terms of the difference between divine and human law, and their respective competencies. Justice requires that he who is responsible for allotting punishment be competent to judge the content of the act being punished. Otherwise, the punishment will be determined by ignorance and not by a clear understanding of the case in hand. Human lawgivers are competent to judge of external acts alone; consequently, the punishment of interior acts is reserved for God: “…man, the framer of human law, is competent to judge only of outward acts; because man seeth those things that appear, according to 1 Kings xvi. 7: while God alone, the framer of the Divine law, is competent to judge of the inner movements of wills…” [7] This passage makes the point that justice cannot be served by judgments which extend beyond the judge’s field of competence, and are therefore unfounded. It supports the view that legally requiring fully virtuous action would have arbitrary and unjust consequences since its enforcement would require judgments that exceed the competence of officials, and thus provide no reliable or rational grounds for enforcement.
§2 Requiring Goodness in
the Secondary or ‘Qualified’ Sense of the Term
Now, if we think of a good person as someone who performs external deeds that are good, then the concept of a legal requirement to be ‘good’ seems to be feasible. For the sake of greater clarity, we should, however, rephrase it as a legal requirement to act well or virtuously, but only in a qualified sense. That is to say, the most the law can do is require certain types of actions, which a virtuous person would typically engage in (e.g. just actions), but not the corresponding virtuous dispositions which would render such actions virtuous simpliciter – that is to say, in the primary, unqualified sense of ‘virtuous’. Having denied the logical coherence of a legal requirement to ‘be’ virtuous, we can now affirm the logical coherence of a legal requirement to perform acts characteristic of a virtuous person. Logical possibility, however, is not justification. How can the legal enforcement of virtuous actions be justified?
Granting that on Aquinas’s account, legally requiring citizens to be good simpliciter is impermissible, and ultimately, incoherent, we will now consider in what way human government may legally compel or induce virtue in the ‘performative’ sense; and how this relates to virtue in the focal sense. Immediately after distinguishing the two sense of ‘virtue’, Aquinas comments that a fully virtuous act “always proceeds from virtue: and it does not come under a precept of law, but is the end at which every lawgiver aims.” [8] When he says that a (fully) virtuous act “always proceeds from virtue” he is referring to the source of an exterior act of virtue, which must be a stable disposition to act in pursuit of the good; if this disposition is lacking, virtue can only be said to be present in an analogous or partial sense. The second part of Aquinas’ comment should forewarn us that he does not intend to dismiss true virtue entirely from the purview of the law. Granted, “it does not come under a precept of law”; it is, nonetheless, “the end at which every lawgiver aims.” [9] What could Aquinas have in mind by identifying virtue as the ‘end’ or object of the lawmaker? In order to answer this question, we must consider the jurisdiction of the law over external human acts.
The objections Aquinas raised against laws aimed at compelling or controlling interior acts of the will or the mind directly, do not affect outward acts, of which human judges and legislators are competent to judge. Furthermore, he does not produce any principle that would prohibit in a general way laws aimed at inducing virtuous actions. In fact, several key passages suggest that inducing virtuous behavior is a means of encouraging the acquisition by citizens of enduring virtuous dispositions; which is a key element of the purpose of law. This thesis is advanced most clearly in Q. 92 of the Summa Theologiae (Ia IIae), where Aquinas argues that
…since law is given for the purpose of directing human acts, 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 that “lawgivers make men good by habituating them to good works.” [10]
§3 Grounds for Limiting
the Scope of ‘Paternalistic’ Laws
So much for general principles. So far, we have seen that lawmakers may aim to induce virtue in the full sense by encouraging and compelling virtue in the ‘performative’ sense. So there is nothing inherently wrong or illegitimate about what are often termed, in modern discourse, ‘paternalistic’ laws. However, Aquinas does express important reservations concerning his own endorsement of ‘paternalism’. [11] They could be described as ‘prudential’, provided we understand ‘prudential’ to refer to a form of reasoning that concerns the practical application of general political-moral principles, and not some species of a-moral, narrowly instrumental reasoning. The practical or prudential considerations raised by Aquinas mean that rulers can neither suppress all acts of vice nor compel all acts of virtue. The limiting condition is, of course, that the resources of the State could not possibly allow the universal suppression of all acts of vice, or the universal compulsion of all acts of virtue. On the other hand, there are compelling reasons why, even should the State, per impossibile, have the necessary means at its disposal, it should not indiscriminately enforce virtuous behavior of all kinds. Aquinas believes that lawmakers must be cognizant of the condition of those men their laws will be applied to. The general condition of men is one of imperfection, not of perfection. Few citizens have reached the pinnacle of virtuous living. The law can only hope to lead men to virtue “gradually”, not “suddenly.” As such, “it does not lay upon the multitude of imperfect men the burdens of those who are already virtuous, viz., that they should abstain from all evil. Otherwise, these imperfect ones, being unable to bear such precepts, would break out into yet greater evils; thus it is written: “He that violently blows his nose, brings out blood”…” [12] In other words, the standard of virtue demanded by the law must be lowered to take account of the general condition of men, and the kinds of behavior that could be reasonably expected from the majority of citizens. There is one standard of virtue for the wise man; another for the citizen – at least from the perspective of what is required by the common good. Thus, “human laws do not forbid all vices from which the virtuous abstain but only the more grievous vices from which it is possible for the majority to abstain and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained; thus human law prohibits murder, theft, and suchlike.” [13]
Another important qualifying principle enunciated by Aquinas is that “those who are in authority rightly tolerate certain evils, lest certain goods be lost or certain greater evils be incurred.” [14] Even though he applies this principle to the toleration of heretical religious rites, it acts as a general principle for limiting laws aimed at inculcating virtue. One could imagine a law that aims to prohibit a particular vice and ends up curtailing opportunities for virtuous action. For example, we might attempt to curb the vice of dishonesty by legally regulating verbal commitments; but in so doing, we may damage the mutual trust and confidence that was associated with a tradition of verbal and voluntary commitments; and even, unwittingly, create an environment less conducive to the virtues of honesty, and mutual trust.
The purpose of government is, in an important sense, bigger than the virtues of any individual citizen within the community, or indeed the moral development of the community at large: government serves a series of basic societal needs, that could be said to provide the conditions for moral flourishing, virtue and happiness, but cannot be equated with any of the latter. Even though lawmakers ‘aim’ at the moral goodness of citizens, and the overall moral goodness of citizens is, according to Aquinas, a constitutive element of the common good [15], the common good does not consist merely in citizens’ attaining the perfection of virtue. Rulers must consider all aspects of the common good in framing laws, not merely the cultivation of virtue for its own sake. Thus, “human law does not prescribe concerning all the acts of every virtue but only in regard to those that are ordained to the common good – either immediately, as when certain things are done directly for the common good, or mediately, as when a lawgiver prescribes certain things pertaining to good training whereby the citizens are disciplined in the upholding of the common good of justice and peace.” [16] The end of law, the common good, is not a simple one, but a complex one, which imposes a plurality of responsibilities on leaders. In De Regno, Aquinas suggests that the king (or lawmaker, in our case) has at least three responsibilities: ensuring the stability and continuity of political leadership; restraining people from immorality and leading them to virtuous action; and ensuring the safety of the community from external attack. [17] Needless to say, this third aim presupposes that rulers should be concerned that the community has a means of supplying itself with the basic material goods essential for survival, such as food and shelter.
Because the end of law, the common good, is complex and not simple, lawmakers must take account of many different interests and goods in deciding where to concentrate the resources available to them. [18] This will involve the prioritizing of goals and the judicious allocation of resources, whether they be time, personnel or finances. Independent of specific details, it is difficult to state in advance whether rulers ought to (on Aquinas’ account) encourage or inculcate a specific virtue in their citizens. However, quite apart from a host of prudential considerations, as a general principle, the law should only concern itself directly with a) external acts of virtue (rather than interior dispositions) and b) those specific acts of virtue that conduce to the common good. [19] Having said this, Aquinas states that all virtues may, depending on the context, be judged to contribute towards the common good [20]; and it is difficult in practise to draw a line between acts of virtue of a ‘private’ nature and acts of virtue which, whether immediately or mediately, contribute towards the common good. Certainly, it might be helpful to restate the principle by stipulating that rulers in their ruling capacity ought to concern themselves first, as a matter of priority, with those acts that are directly and obviously related to the common good of the community, e.g. courage in the army, industriousness among workers and honesty in business dealings; and only subsequently (as a matter of priority) with those acts indirectly conducive to the common good.
Having examined in some detail the relationship between law and the moral goodness of citizens in Aquinas’ thought, we can conclude that goodness in the ‘full’ sense, understood as including the interior disposition of the agent, cannot be required by the law without destroying both its rational foundation and its moral authority. It may, however, be ‘aimed’ at by lawmakers: that is to say, while they may not demand virtue (in the full sense) of citizens, they may act in such a way as to foster a virtuous disposition among citizens, either by demanding specific, external acts of virtue, or by concerning themselves with the moral culture of society more generally, which is reflected in its institutions and mores or customs. The goal of fostering or inducing virtue among citizens is not a free-standing goal to be relentlessly pursued; it must be tempered by prudential considerations and it must be reconciled with the other elements of the common good - primarily peace, material prosperity and justice.
Bibliography
Aquinas, St. Thomas, Summa Theologiae Ia-IIae, IIa-IIae, translated by Fathers of the English Dominical Province
Aquinas, St. Thomas, De Regno, translated by Gerald B. Phelan’s (Toronto: Pontifical Institute of Medieaeval Studies, 1982).
George, Robert P., Making Men Moral (Oxford: Clarendon Press, 1993)
Mill, John Stuart, On Liberty (London: Oxford University Press, 1948)
END
REFERENCES
[1] John Stuart Mill, On Liberty (London: Oxford University Press, 1948), Ch. IV, pp. 92-93.
[2] See Robert P. George, Making Men Moral (Oxford: Clarendon Press, 1993).
[3] A distinction should be drawn between laws that compel by coercive sanction, and laws that induce by reward or deprivation of some good.
[4] St. Thomas Aquinas, Summa Theologiae, I-II, Q. 96 a. 3 ad 2. All citations from the Summa Theologiae reproduce the translation by the Fathers of the English Dominical Province. Henceforth, Summa Theologiae will be abbreviated to ‘S.T., I-II’ (Summa Theologiae, Prima Secundae) and ‘S.T., II-II’ (Summa Theologiae, Secunda Secundae).
[5] De Regno, Bk. I, Ch. 1 (p. 7). Citations are from Gerald B. Phelan’s translation of De Regno (Toronto: Pontifical Institute of Medieaeval Studies, 1982).
[6] S.T., II-II, Q. 95, a. 5 c. (my italics).
[7] S.T., I-II, Q. 100, a. 9 c.
[8] S.T., I-II, Q. 96 a. 3 ad. 2.
[9] Ibid.
[10] S.T., I-II, Q. 92 a. 1 ad 2.
[11] I use the term, ‘paternalism’ as convenient shorthand for ‘laws aimed at inducing virtuous dispositions in citizens.’ I am aware that it is often used in a pejorative sense, but I mean it in a strictly descriptive sense here.
[12] S.T., I-II, Q. 96 a. 2 ad 2.
[13] S.T., I-II, Q. 96 a 2 c.
[14] S.T., II-II, Q. 10 a. 11 c.
[15] Cf. De Regno, Bk. I, Ch. 3 (p. 60): “It is…clear that the end of the multitude gathered together is to live virtuously. For men form a group for the purpose of living well together, a thing which the individual man living alone could not attain, and good life is virtuous life. Therefore, virtuous life is the end for which men gather together […] If men assembled merely to live, then animals and slaves would form a part of the civil community.”; also De Regno, Bk 1, Ch. 4 (p. 65): “…to establish virtuous living in a multitude three things are necessary. First of all, that the multitude be established in the unity of peace. Second, that the multitude thus united in the bond of peace, be directed to acting well […] In the third place, it is necessary that there be at hand a sufficient supply of the things required for proper living, procured by the ruler’s efforts.”
[16] S.T., I-II, Q. 96 a. 3 c.
[17] De Regno, Bk. II, Ch. 4 (pp. 66-67).
[18] Cf. S.T., I-II, Q. 96 a. 1 c.: “…the common good comprises many things. Wherefore law should take account of many things, as to persons, as to occupations, and as to times, because the political community is comprised of many citizens and its good is procured by many actions…”
[19] Cf. S.T., I-II, Q. 96 a. 3 c.: “…human law does not prescribe concerning all the acts of every virtue but only in regard to to those that are ordained to the common good…”
[20] S.T., I-II, Q. 96 a. 3 ad. 3: “There is no virtue whose act is not ordainable to the common good, as stated above, either mediately or immediately.”