Thiago Magalhães[1]

1.      Introduction

Javier Hervada shrewdly identified the remote origins of legal positivism in the voluntarist reaction of Duns Scotus and William of Ockham to Aristotelian-Thomistic intellectualism.[2] The purpose of this article is to analyze Scotus and Ockham’s voluntarism from a specific perspective, which allows us to clearly visualize how it leads to the destruction of natural law, and to its full replacement by conventional justice, divine or human. This perspective consists in highlighting the similarities between divine and human conventional justice and how both relate to natural law in Thomas Aquinas’ teaching. Such comparison enables us to understand in depth how Aquinas perfected the Aristotelian notion of conventional justice through the concept of “determinatio”, and clearly demarcate the abysmal difference between his intellectualistic approach of natural law in face of Scotus’s and Ockham’s voluntaristic doctrine. In addition to analyzing positive human law, we will make an incursion into several questions belonging to the field of the Old Divine Law, which, in general, are underexploited by natural law theorists.

2.      Natural Law and Positive Human Law

Positive human law plays a very important role in the Thomistic theory of natural law. Aquinas dedicates several questions and articles to positive human law in the Treatise on Law (Iª-IIae, qq. 95-97) and in the Treatise on Justice (IIª-IIae, q. 57, a. 2), in addition to other scattered articles in these two Treaties.

To be just, positive human law must stem from natural law. Something is called “just” by virtue of its being right (rectum) according to the rule of reason. Now, the first rule of reason is precisely the law of nature. Consequently, a positive human law only has the character of law to the extent that it stems from the law of nature. On the other hand, if it conflicts with the natural law, then it is no longer a law, but a corruption of law.[3]

Positive human law can be derived from natural law in two ways: (i) as conclusions of first principles (sicut conclusiones ex principiis) and (ii) as “specifications” or “implementations” of what is general (sicut determinationes quaedam aliquorum communium).[4]

In the first case, the legislator transforms rules drawn from the first principles of natural law into positive legal commands through practical syllogisms, i.e., in the manner of demonstration (demonstratio). The example given by Aquinas is that of a law which prescribes the duty not to kill, a conclusion derived from the very general precept of natural law according to which one should not do evil to anyone. Positive human laws stemming from natural law in the manner of conclusion are equivalent to secondary precepts of natural law made positive, which gives them some force from the natural law (aliquid vigoris ex lege naturali).[5]

In the second case, the role of humanly made law is to implement certain details relating to the application of the precepts of natural law: “the law of nature says Let him who does evil be punished, but it is a specification of the law of nature that an evildoer should be punished by this specific punishment”.[6] Thus, a positive human law that, like article 121 of the Brazilian Penal Code, criminalizes homicide, with a 30 (thirty) years’ maximum penalty of imprisonment in its qualified modalities, can be divided into two parts: the part that prohibits homicide comes from natural law in the manner of conclusion; the one that specifies the penalty imposed on anyone who commits such a crime is derived from natural law by “specification”. Thomas says that, in this last hypothesis, the positive rule only has “the force of human law”.[7]

 “Determinatio” has a precise technical meaning in the Thomistic theory of laws. According to Finnis, there seems to be no happy English equivalent of “determinatio”. Kelsen translates it as “concretization”; Finnis prefers “implementation”, which he considers to be more elegant.[8]

Aquinas draws an analogy with architecture (or any other practical art) to explain the meaning of determinatio.[9] Let’s imagine an architect who is designing the doors and handles for a house. First, he considers the finalities of the door and the handle (final cause) to, next, conceive their forms (formal cause), which will be implemented in particular doors and handles, with specifications that are derived from the general idea, but which may differ from each other in numerous aspects and details. Likewise, human laws derived from natural law by implementation only come into force after being agreed upon, i.e., after the legislator has decided to establish the rules on some subject relating to the area of determinatio, in this or that way. It is in this sense that positive human law derived from natural law by implementation, according to Thomas Aquinas, only has the force of human law.

By deepening the analysis of the concept of determinatio, we realize that it contains at its core the impossibility of positive human law derived from natural law disfiguring it. That is to say: even in the field of implementation, where legislators’ decision-making liberty is greater, one cannot subvert natural law. This is because such derivation proceeds sicut determinationes quaedam aliquorum communium, i.e., in the manner of implementation of what is general or common—“communium” alludes precisely to the primary precepts of natural law, the praecepta communissima, known to everyone.[10] This means that legislators have a large margin of decision-making when agreeing upon positive laws arising from natural law by implementation—if, of course, their choice is in line with natural law. In the case of traffic rules, they are free to determine, for example, that vehicles must travel on the right side of the road; however, a convention that would allow each driver to choose traveling at his discretion on the left or right side whenever he wished, would be obviously contrary to the primary precept of natural law related to the conservation of life, as a rule like this would gravely compromise road safety.

Let’s return to the case of the crime of homicide according to the Brazilian Penal Code. A legislator could impose other minimum and maximum penalties for this crime. Natural law prescribes that anyone who commits a crime must be punished, but the penalty that must be applied to the evildoer is an implementation of the law of nature. Nonetheless, a humanly made law that eventually permitted or was lenient with homicide—for instance, imposing very mild penalties for such a crime—would be condoning evil and would not be law, but rather a corruption of law. The same could be said of a traffic rule that authorized drivers to travel freely on either side of the road.

Therefore, starting from the praecepta communissima, legislators may:

1. Carry out practical syllogisms to draw proximate/remote conclusions and convert them into positive laws, which have “some force of natural law”[11], since as they are nothing more than secondary/tertiary precepts of natural law made positive; such precepts “have their binding force (vis obligandi) from the very dictate of reason - i.e., in virtue of the fact that natural reason dictates that such-and-such is to be done or is to be avoided”[12];

2. Formulate rules to establish specific ways of implementing these precepts, which will only have “the force of human law”[13], given that “they do not have their binding force from the very dictate of reason […]”, but “from some statute, either divine or human (ex aliqua institutione divina vel humana)”.[14]

3.      Natural Law and Divine Law

The Old Divine Law contains three classes of precepts: moral, ceremonial, and judicial.

1. Moral precepts: The moral precepts of the Old Divine Law are the commandments of the Decalogue, which belong to the natural law. “The Old Law is distinguished from the law of nature not in the sense of being altogether different from it, but in the sense of adding something to it. For just as grace presupposes nature, so too divine law must presuppose the natural law”.[15] Natural law is made up of classes of precepts (primary, secondary, and tertiary). Primary precepts are indemonstrable and self-evident; secondary and tertiary precepts are demonstrable, but the secondary are known with modica consideratione, whereas the tertiary are known with multa consideratio, and the necessary assistance of the wise. The commandments of the Decalogue are like conclusions deduced from the common principles of the law of nature, with modica consideratione, i.e., secondary precepts of the natural law. It so happens that original sin clouded man’s reason and made it difficult for him to deduce, without fail, conclusions from the first principles of natural law, inducing him to judge things that are evil in themselves as if they were lawful. It is in this sense that the commandments of the Decalogue are an addition to the natural law: they were revealed by God to exclude the error of human reason, which happened to many[16];

2. Ceremonial precepts: man is ordered toward God not only through interior mental acts, i.e., acts of faith, hope, and love (credere, sperare et amare), but also through exterior acts by which he professes his submission (servitudo) to the Creator. This worship is called “ceremony” (caeremonia).[17] The ceremonies provided for in the Old Divine Law are conveniently divided into sacrifices, sacred things, sacraments, and observances.[18]

3. Judicial precepts: as mentioned above, moral precepts relate to the dictates of natural law, and ceremonials are specifications of divine worship. Judicial precepts, in turn, are specifications of justice to be observed among men.[19] The Old Divine Law contains a series of rules concerning (a) the relationship between princes and people (e.g., about the reverence that should be given to them); (b) the relationship of fellow citizens one to another (e.g., about purchases and sales, judgments and penalties); (c) strangers (e.g., about wars against enemies, the reception of pilgrims) and (d) domestic coexistence (e.g., about the relationship between husband, wife, children etc.).[20]

Judicial precepts, as well as ceremonial ones, “have force solely by virtue of their being instituted, since before they were instituted, there was no apparent difference between things being done one way or another. By contrast, the moral precepts would have had efficacy on the basis of the dictates of natural reason even if they had never been codified in the Law.”[21]

It should be noted that not all the precepts of the Old Divine Law that command man in relation to God are ceremonial. There are, among them, some that reason itself dictates, informed by faith, as that God should be loved and worshipped. The others, however, are ceremonial, which have no force to oblige except by divine institution.[22]

Among the precepts that command man in relation to his neighbor are also moral precepts, and even more so, because the order of man to his neighbor falls directly under reason to a greater degree than does the relation of a man to God. Therefore, it was necessary that there were more ceremonial than judicial precepts in the law.[23]

Ceremonial and judicial precepts are certain specifications (determinationes) of moral precepts (sunt determinationes quaedam moralium praeceptorum).[24] As with the human positive law derived from the natural law by implementation, the ceremonial and judicial precepts have force solely by institution, since before they were instituted, acting in this way or otherwise did not seem to differ.[25] It is clear, therefore, that they could have been established by God differently.

Nonetheless, among the precepts that command men in relation to God, there are some that are moral, belonging to the law of nature. For Aquinas, the conclusion that God must be loved and worshiped can be reached rationally by human beings, regardless of divine institution. It is a moral precept, inasmuch as it arises from the very relationship between human and divine essences. God could not have commanded men to hate Him.[26] It is interesting to note that even the precept of Sabbath, in some way, is moral, since it prescribes that some time should be reserved to worship God. “However, it is not a moral precept as far as the exact specification of the time is concerned (quantum ad taxationem temporis), since in this respect it is a ceremonial precept”.[27]

The same occurs concerning the precepts of the Old Divine Law that order men towards each other: there are, among them, moral precepts, capable of being rationally apprehended, regardless of divine institution.

We have seen that positive human law derived from natural law by implementation can be arranged by the human legislator with a certain margin of liberality, but cannot contradict natural law. Considering that Aquinas applies the ratio of “determinatio” to the mode in which ceremonial and judicial precepts relate to moral precepts, we are led to conclude that the ceremonial and judicial precepts, although they can be established with ample freedom by God, cannot be contrary to moral precepts. In other words: divine law cannot contradict natural law.  

With the advent of Christianity and the New Divine Law, the ceremonial and judicial precepts of the Old Divine Law were abrogated[28], which is perfectly possible, as they have force only through the institution – nothing prevented them from being instituted in a different way.[29] However, this could not happen with the moral precepts, which, by drawing their strength from natural reason, remained “in their entirety under the New Divine Law, since they involve the essence of virtue in themselves”.[30]

4.      The Aristotelian-Thomist paradigm: the primacy of reason over will

The analysis of the relationship between the natural law and both the positive human law and the divine law in the Thomistic doctrine reveals that, in Thomas Aquinas’ theory of natural law, reason is on the throne and rules over the will. In view of this, some scholars called his doctrine “intellectualist”. Intellectualism can be defined as the philosophical stance that considers reason the main human potency, to which the will and feelings are subordinated. The law is intimately related to this potency; it is the rule and measure of human acts. Arbitrariness does not translate into law, but into the corruption of law.  

As was explained above (q. 17, a. 1), it is from the will that reason has its power to effect movement. For it is because someone wills the end that his reason issues commands regarding what is ordered toward the end. However, for an act of will about what is commanded to have the character of law, it must be regulated in some way by reason (aliqua ratione regulata). And this is how to understand the claim that the ruler’s will has the force of law; otherwise, the ruler’s will would constitute wickedness (esset iniquitas) rather than law.[31]

From an ethical point of view, intellectualism holds that there are things reason captures as being naturally good or evil in themselves, understanding that the former should be pursued, and the latter avoided. Thus, morality consists in acting according to right reason, which is equivalent to acting according to the rational nature of the human being. It is within the intellectualistic worldview that one can truly speak of the existence of a natural law, as what is good and just will be natural if reason expresses what in itself is good (in the form of warrants) and evil (in the form of prohibitions).[32]

The moral precepts—as opposed to the ceremonial and judicial precepts—concern things that in their own right (secundum se) have to do with good morals. Now since human morals are set apart by their relation to reason, which is the proper principle of human acts, morals are called good when they are consonant with reason and bad when they are at variance with reason. And just as every judgment of speculative reason stems from the natural cognition of first principles, so too, as was explained above (q. 94, a. 2), every judgment of practical reason stems from naturally known principles on the basis of which one can proceed to make judgments in various ways about various matters. (…). So, then, it is clear that since (a) the moral precepts concern matters that belong to good morals, and (b) these good morals are consonant with reason, and (c) every one of human reason’s judgments stems in some way or other from natural reason, it must be the case that all the moral precepts belong to the law of nature—though in different ways. (…).[33]

 5.      Scotus and Ockham’s voluntarist reaction to Aristotelian-Thomistic Intellectualism

Voluntarism, on the other hand, maintains that the superior human potency is the will, to which reason is subjugated. God is, above all, will. Good and evil do not have rational bases, but only voluntaristic ones, and the law is nothing other than the expression of the will of the one who governs. Now, if good and evil do not exist in themselves, if they are not integrated into the very nature of things, it becomes meaningless to theorize about the existence of a natural law, which is either denied by voluntarism, or is interpreted as a mere will of God, being confused with the positive divine law.[34]

The differences between intellectualism and voluntarism become even more evident when one confronts the thinking of the two main philosophers who undertook the voluntarist reaction to Aristotelian-Thomistic intellectualism: Duns Scotus and William of Ockham.

Duns Scotus upheld the primacy of the will over reason, arguing that the general laws determining what is good and just are established by the divine will, and not by the divine intellect, so that they are devoid of intrinsic rationality. God did not want them because they are intrinsically good: they are good because God wanted them. Scotus, however, mitigated his voluntarism by admitting that God, being goodness Himself, must love Himself and, consequently, must be object of love, asserting that the first two commandments of the Decalogue – which are related to the obligation to love and worship God and belong to the First Table –, are the only ones truly necessary and, therefore, pertain to natural law (natural law in the strict sense). The commandments of the Second Table, which refer to the relationships of men with each other and are endowed with a legal dimension, only exist by virtue of the divine will; they could, for this very reason, be dispensed by God, since they lack any need inherent in human nature. But Duns Scotus does not consider them arbitrary. For him, these precepts are adequate to the command to love God: if God is a loving will, He wants creatures to love one another. On this basis, only in a very loose sense can the commandments of the second table be considered as belonging to the natural law.[35]

B. Scotus’ own Opinion
1. Double Way of Understanding how Certain Things Belong to the Law of Nature
16. I say, then, to the question that things can be said to belong to the law of nature in two ways: In one way [cf. n.25] as practical principles known from the terms, or as conclusions necessarily following from them. And these things are said to belong to the law of nature strictly. 17. And the reasons against the first opinion [nn.13-14] prove that in such things there cannot be dispensation (and these are contained in Gratian Decrees p.1 d.5, where it is said that “natural right begins from the beginning of the rational creature, nor does it change in time but remains immutable”) – this point I concede.
18. This is not so when speaking as a whole of the all the commandments of the second table of the decalogue, because it is of the idea of what is prescribed or prohibited there that the commandments are not simply necessary practical principles nor simply necessary conclusions. For there is in what is prescribed there no goodness necessary for the goodness of the ultimate end. Nor in what is prohibited there is there any malice necessarily turning away from the ultimate end such that, were the good not prescribed, the ultimate end could not be attained and loved. And if the evil in question were not prohibited, the acquisition of the ultimate end would remain consistent with it. 19. But it is otherwise with the commandments of the first table of the decalogue, for these regard God immediately as object. (…).
2. Summary of Theses Stated
29. So collecting things together, then: First it has been denied that all the commandments of the second table belong strictly to the law of nature [n. 18]. Second it has been admitted that the first two commandments of the first table belong strictly to the law of nature [n.20]. Third a doubt was raised about the third commandment of the first table [nn.21-24]. And fourth it was admitted that all the commandments belong to the law of nature, speaking broadly.[36]  

William of Ockham went further, extending voluntarism to the commandments of the First Table. He argued that even the act of loving God is not a moral precept, because it does not stem from the relationship between human and divine essences, but purely from the will of God, which could even command rational creatures to hate Him.  

From this it appears that God would not sin were He to do every act as a total cause which He now does with sinners as a partial cause; because something is not called a sin, as has been said, unless it is some act of commission or omission to which man is obligated on account of which act of omission or commission man is mortgaged to eternal punishment. However, God is not able to be obligated to any act. Therefore, with him, what God wills is right to be done (...). Only obligation makes someone a sinner or not a sinner. If God as a total cause were to cause hatred toward himself in the will of someone (just as he now causes it as a partial cause) such a person would not be guilty of sin and neither would God, because he is not obligated to anything. Likewise, the person would not be obligated either, because the act would not be in his control.[37]  

In this extreme voluntaristic perspective, the precepts of natural law are nothing more than the expression of the divine will, which is not subject to any element of rationality. Such a perspective falls within the context of Ockham’s nominalism, according to which universal concepts are considered mental generalizations without foundation in reality; only the singular being is real. For Ockham, the dictates of natural reason are not considered unavoidable reflections of human nature, but of the divine will, or even as subjective manifestations of each person.[38]

 With respect to the first principal argument which proved that generally as in predestination and as in reprobation, there is some reason and cause, it can be said that every right will is in conformity with right reason, but it is not always in conformity with right reason before the latter shows the reason why the will ought to will it; but because the divine will has willed it, right reason declares that it ought to be willed.[39]

6.      Conclusion

The primacy of reason over the will is so striking and central to the Thomistic theory of laws that Aquinas makes a point of highlighting that it also governs positive divine law: divine law commands and prohibits certain things because they are good or evil in themselves (natural justice); others are good or evil because they are ordered or prohibited by divine law (conventional justice).

What is called the divine right is that which is divinely promulgated. And the divine right is partly about things that are naturally just (even if their being just lies hidden from men), but also partly about things which are made just by divine institution. Hence, the divine right can likewise be divided into two, just as the human right can be. For in divine law certain things are commanded because they are good and prohibited because they are bad, whereas there are other things that are good because they are commanded and bad because they are prohibited.[40]  

It could not be otherwise, for after all, God has intellect and will, and the eternal law, for Aquinas, results from divine reason. In this context, divine conventional justice is not arbitrary, as it reports to divine reason. It turns out that, with the dethronement of reason by the will, there are no longer parameters of reasonableness to establish the limits between legality and arbitrariness. “God is omnipotence, free will, will without hindrances, not even the hindrances of reason”, says Marias on Ockham’s voluntaristic perspective.[41] This is the quintessence of legal positivism. For positivists, law is the sole result of human conventionality, based on the “will without hindrances” of the legislator, who is not limited to anything beyond the guidelines provided for in the legal system itself. Some may object that Hartian “soft positivism” foresees a “minimum content of natural law” that the legislator must observe, but the fact is that positivists themselves rejoice that this content is truly minimal and mostly formal and does not interfere with the will of the legislator.[42]

There is no escape: with the destruction of natural law, all that remains is conventional arbitrariness.