for establishing the natural law. Now, the farther removed the conclusions are from the principia communissima, the more numerous and varied become the possible decisions. Hence a positive law must determine, must decide with greater exactness for concrete cases, what the correct application and conclusion are. There is all the more need of such determination because human nature, deprived and hence wounded somehow (though not destroyed or depraved) by original sin,20 must be—and in conformity with its inner goal also ought to be—constrained to good and restrained from evil. Self-education or addiction to goodness does not pertain to man as such. Consequently men stand in need of a clearly prescribed and adequately sanctioned system of norms, which emanate from an authority and power that in their inmost reality serve justice, and in the individual serve to perfect the essential nature of man. They are therefore ethical. St. Thomas is no romantic optimist like Rousseau.
Furthermore, it is precisely the object of the positive law to render the citizen virtuous. It is not merely a question of maintaining order, or external peace; the law should rather act as a medium of popular education to transform those who live under common legal institutions into perfect citizens. For this very reason positive norms, determinate coercive measures, and a more exact definition of the circumstances in which the general principle shall be applied, are imperative. Thus the definition of what theft consists in is given with the lawfulness of private property. But the punishment which should follow theft, if arbitrariness is to be avoided, requires, with respect to the procedural verification of the theft as well as to the sentence and its execution, exact legal provisions which vary with times, cultures, and individual peoples.
Here, in connection with the positive law which is therefore always “something pertaining to reason,” St. Thomas arrives at the nature of law. It has to do essentially with community life. On the other hand, it is distinguished from and contrasted with social ethics through its being directed to external order. The law wills that man conduct himself in such and such a manner; it concerns the external forum (vis directiva). It is the norm to be enforced: compulsion (vis coactiva) is proper to law, not to morality.
From this inner connection of every positive law with the lex naturalis St. Thomas rightly concludes that the positive law may not conflict with the natural law. So far as it is in conflict with the latter, i.e., with the unchangeable norms, it is not law at all and cannot bind in conscience. For the force and significance of the law consist precisely in the obligation in conscience. Yet it may at times be right to obey even an unjust positive law (one that is not against the natural law: e.g., a law that imposes an unjust tax burden), because the higher natural-law norm enjoins in individual cases the sacrifice of a particular good to a more general good. For instance, the general goods of security under law and the external order of peace constitute a higher value than does the individual right to just treatment in the levying of taxes. It is consequently not the unjust law that binds, but the higher norm of peace and of maintenance of the community.
In this fashion, then, all law, down to and inclusive of its positive individualization, is connected by means of the natural moral law with the eternal law and lives on the latter. Thus rectitudo practica, reasonableness or the relation to human nature still is, and ought to be, the essential element even in the positive law. For St. Thomas the law is somehow reason, not mere arbitrary will.21 The natural law remains the measure of the positive law. But this position is intimately connected with the doctrine of the immutability of the natural law and the enduring essential nature of man, as well as with the primacy of the intellect over the will in both God and man.
But can God, by His absolute power, dispense from the precepts of the Decalogue? St. Thomas unqualifiedly answers that the Ten Commandments admit of no dispensation whatever. “Precepts admit of dispensation when there occurs a particular case in which, if the letter of the law be observed, the intention of the lawgiver is frustrated. Now the intention of every lawgiver is directed first and chiefly to the common good; secondly, to the order of justice and virtue, whereby the common good is preserved and attained. If, therefore, there be any precepts which contain the very preservation of the common good, or the very order of justice and virtue, such precepts contain the intention of the lawgiver, and therefore are indispensable. …
“Now the precepts of the Decalogue contain the very intention of the lawgiver, who is God. For the precepts of the first table, which direct us to God, contain the very order to the common and final good, which is God; while the precepts of the second table contain the order of justice to be observed among men, namely, that nothing undue be done to anyone, and that each one be given his due; for it is in this sense that we are to take the precepts of the Decalogue. Consequently the precepts of the Decalogue admit of no dispensation whatever.”22
But what of the Old Testament passages that appear to involve divine dispensations from the natural law? In reply, St. Thomas notes the sovereign dominion of God over men and over concrete human actions and institutions: “The precepts of the Decalogue, as to the notion of justice which they contain, are unchangeable; but as to any determination by application to individual actions—for instance, that this or that be murder, theft, or adultery, or not—in this point they admit of change; sometimes by divine authority alone, namely, in such matters as are exclusively of divine institution, as marriage and the like; sometimes also by human authority, namely, in such matters as are subject to human jurisdiction; for in this respect men stand in the place of God, though not in all respects.”23
With Duns Scotus (d. cir. 1308), and with the principle of the primacy of the will over the intellect so much emphasized by him, there began inside moral philosophy a train of thought which in later centuries would recur in secularized form in the domain of legal philosophy. The principle that law is will would be referred in legal positivism, as well as in the theory of will in jurisprudence, to the earthly lawmaker (self-obligation).
For Duns Scotus morality depends on the will of God. A thing is good not because it corresponds to the nature of God or, analogically, to the nature of man, but because God so wills. Hence the lex naturalis could be other than it is even materially or as to content, because it has no intrinsic connection with God’s essence, which is self-conscious in His intellect. For Scotus, therefore, the laws of the second table of the Decalogue were no longer unalterable. The crux of theology, namely, the problem of the apparent dispensations from the natural law mentioned in the Old Testament and thus seemingly granted by God (the command to sacrifice Isaac, Raphael’s apparent lie, Osee’s alleged adultery, the polygamy of the patriarchs, and so on), was now readily solved.24 Yet St. Thomas, too, had been able to solve such cases. Now, however, an evolution set in which, in the doctrine of William of Occam (d. cir. 1349) on the natural moral law, would lead to pure moral positivism, indeed to nihilism.
The will is the nobler faculty; the intellect is but the ministering torch-bearer of the will, which is the master. Between God’s essence and that of man there exists, apart from the fact of creation, no inherent connection, no analogy of being. Hence, too, there exists no unchangeable moral order grounded in the nature of things, in the ordered universe of being and value. As all being is founded on the mere absolute will of God without participation in His essence, so all oughtness or obligation rests solely on the same absolute will. Oughtness is without foundation in reality, just as the universals are merely vocal utterances (flatus vocis) and not mental images of the necessary being of the ideas in God. In this way Occam arrived at a heightened supernaturalism, but only to deprive almost completely the natural order of its value.
For Occam the natural moral law is positive law, divine will. An action is not good because of its suitableness to the essential nature of man, wherein God’s archetypal idea of man is represented according to being and oughtness, but because God so wills. God’s will could also have willed and decreed the precise opposite, which would then possess the same binding force as that which is now valid—which, indeed, has validity only as long as God’s absolute will so determines. Law is will, pure will without any foundation in reality, without foundation in the essential nature of things. Thus, too, sin no longer contains any intrinsic element of immorality, or what is unjust, any inner element
