by Joseph M. Magee, Ph.D.
At first glance, an intrinsic antinomy seems to exist between law and virtue. Law is commonly thought to place an extrinsic restraint on people's actions, especially morally deficient people, so that their moral deficiency is held in check. Virtue, on the other hand, is commonly understood to be that by which one acts morally on one's own. Virtue frees a person from the constraint of law because the virtuous person is already choosing to act in conformity with law and morality. Law, as an extrinsic restraint, seems opposed to the freedom of the criminal, for the criminal freely wills to do the opposite of what the law commands or forbids. It seems, then, that law can only oppose the freedom of the criminal and never lead to virtue in those who do not have virtue, since virtue must be freely chosen. Thus, there seems to be a problem in claiming that an exterior principle like law can cause, or at least contribute to, an interior trait like virtue.
The problem as presented thus far is not one specific to Aquinas. Nevertheless, the problem does seem to exist in Aquinas' understanding of both law and virtue. In the First Part of the Second Part of the Summa Theologiae, q. 92, a. 1, Aquinas considers whether the goodness of men and women is an effect of law. His position is that the goodness or virtue of citizens is an effect of good laws. "Law is given for the purpose of directing human acts, and insofar as human acts conduce to virtue, to that extent does law make man good."(1) For Aquinas, however, an act is human insofar as one has dominion over it himself. To the extent that a law may compel citizens to perform certain actions, it seems to prevent such actions from being human. As such, it seems that human acts cannot be directed by law, and so law cannot contribute to the development of virtue. Indeed, before we can consider Aquinas' approach to the problem, we need to cast it in more precise terms. Specifically, we need to understand the connection between virtue and properly human actions, and the problem that law, precisely as something exterior to human activity, poses for the development of virtue.
II. Virtue and Human Acts.
When expounding on the essential traits of virtue, Aquinas states: "Virtue, which is an operative habit, is a good habit productive of good works."(2) This understanding of virtue presupposes the voluntariness of the acts that proceed from virtue. Good works are human acts, and human acts are voluntary.(3) All human acts are human precisely insofar as they proceed from reason and will. Moreover, human acts are good to the extent that they conform to what reason judges to be suitable to the ultimate human good of the agent.(4) Thus, good human acts, both as human and as good, proceed from intrinsic principles, especially reason. It is therefore a necessary condition for virtue that one perform good human acts, and so one must both know that what one does is good and choose to obey reason's judgment.
Extrinsic coercion is opposed to human acts since such acts are characterized by the fact that they proceed from intrinsic principles. For Aquinas, coercion is not possible with regard to interior moral acts since
the act of the will is nothing else than an inclination proceeding from the interior principle of knowledge.... Now what is violent is from an exterior principle. Consequently it is contrary to the notion of the will's own act that it should be subject to compulsion or violence....(5)
The will's interior movements, e.g., wish or choice, precisely because they are interior, are not accessible to an exterior agent. From their very nature they cannot be subject to a violent force. Thus, no law can force one to choose against one's will.
Even with regard to the external acts that are commanded by the will, coercion destroys the voluntariness of such acts.(6) An example of such an external act would be a movement of some bodily limb. If the limb is moved by someone or something exterior to the person whose limb it is, the movement is violent and consequently is involuntary. For instance, if one should choose to shoot another, but some violent action or restraint prevents his finger from pulling the trigger, the fact that the intended victim was spared is not a voluntary act.
It seems that law, to the extent that it employs coercion and binds people against their wills, cannot lead to virtue. This seems to be so since acts done from a violent extrinsic principle (which law seems to require), prevents the acts from being human in the technical sense, and thus from even being the concern of virtue. A prisoner in handcuffs, by the very fact of being restrained, cannot be learning the virtue of controlling his anger. The fact that he is not hitting his arresting officer is not to be attributed to the intrinsic principles of his reason and will, but to the exterior restraint of handcuffs and the law which imposes them on him. In order to find a path around the apparent contradiction of claiming that virtue is an effect of law, we need to analyze Aquinas' doctrine of law. We will then be in a position to discover whether his legal theory allows virtue to be an effect of law. We will focus on the role that force or coercion plays in his understanding of the nature of law.
III. Law and Virtue.
Considering what Aquinas has said earlier in the First Part of the Second Part of the Summa about the voluntary and the involuntary, it comes as a surprise that he, in the article that is the source of our problem (q. 92, a. 1), claims that the effect of law is to make men good. The reason he gives for this claim is that the virtue of one subject to laws is to be well disposed to follow the direction given by the maker of the law. "Now the virtue of any subordinated thing consists in being well subordinated to that by which it is regulated." This virtue of being well-regulated applies generically to those subject to any government, i.e. to those who obey the laws of any regime whatsoever. The virtues that are properly the effect of law, then, are the civic virtues, and in all cases the virtue of being a law-abiding citizen.
The measure of the specifically human virtue of subjects, however, is the rationality of the laws to which they are subject. "For if the intention of the law giver is fixed on the true good ... it follows that the effect is to make men good absolutely." If laws are good, subjects are good simpliciter; that is, their acts have what is due them both in virtue of being citizens and in virtue of being human. "If however, the intention of the lawgiver is fixed on that which is not good absolutely, but useful or pleasurable to himself, or in opposition to Divine Justice, then the law does not make men good absolutely, but relatively, that is in respect to that particular government." Those subject to unjust laws, however, are good only secundum quid, insofar as they have the civic virtue of lawfulness.
In claiming that both just and unjust laws make people virtuous in some sense, we can safely infer that Aquinas primarily intends human positive law since only this kind of law can be unjust. Therefore, we will concentrate our attention on positive law; the extent to which the other species of law, i.e. eternal, natural, and divine, lead to virtue will not be examined here. Furthermore, since only just laws lead to virtue simpliciter on Aquinas' account, we will narrow our focus again and only speak of human laws that are presumed to be just. There are, then, two features or aspects of human positive law that relate it to virtue. According to Aquinas, "Law is a dictate of reason commanding something."(7) Thus considered, law embodies the determination of reason as to the nature of what is good for man, and it is a command that is to be obeyed by those subject to it. Each of these aspects leads to virtue in different respects and by different means.
From these two aspects of law, therefore, when Aquinas considers the relationship between law and obedience to it, he distinguishes three ways a subject may obey a law, i.e. either from virtue, fear, or as dictate of reason.
It is not always through the perfect goodness of virtue that one obeys the law, but sometimes it is through fear of punishment, and sometimes from the mere dictate of reason, which is a kind of beginning of virtue.(8)
Thus, with respect to our specific problem, if virtue can be an effect of law, law must be able to be obeyed because of some principle other than virtue. That is, if law is to effect virtue, it must do so in those who do not already possess virtue. Aquinas, in the passage above, identifies the principles of obedience in those who do not yet possess virtue as fear and reason. For Aquinas, each aspect of law, i.e. as rational and as commanding, has a corresponding principle in the citizen subject to law, i.e. reason and fear. Therefore, each of these principles allows for the development of virtue in the citizen.
IV. Reason and Virtue.
Aquinas lays great stress on the fact that law is a dictate of reason and thereby is an embodiment of rationality. For Aquinas, since both law and reason are the rule and measure of human acts, the nature of law requires that it be rational.(9) The rational character of law, however, derives from the reason of the one who frames the law, the legislator. To the extent that a human law is a determination of the natural law, it is just(10); and since the natural law is human reason's participation in the eternal law by which reality is ordered,(11) every just law reflects the rational order of the universe.
Because human reason discovers this natural or common law, it is one of the links between law and virtue. Thus, Aquinas says, "...the principles of the common law are said to be the seeds of the virtues."(12) For Aquinas, reason has a natural disposition to virtue since
... virtue is natural to man according to a kind of beginning. This is so in respect of the specific nature (of man), in so far as in man's reason are to be found instilled by nature certain naturally known principles of both knowledge and action, which are the nurseries of intellectual and moral virtues, and in so far as there is in the will a natural appetite for good in accordance with reason.(13)
Since reason is essentially the same in all men and women, and what reason discerns, even in law, is the order of reality, the rational element of law can be participated in by the citizen subject to it. Law as an embodiment of reason can lead the citizen to virtue to the extent that its rational character is internalized by the citizen. In this way, Aquinas sees law as teaching virtue to those citizens who are willing to learn, i.e. to those who allow their reason to be perfected by the law's rationality. Law disposes at least some citizens to acquire some jurisprudence.
Because the very nature of reason is disposed toward virtue, even though reason does not have the full perfection of virtue in its nature, virtue is the natural effect of reason being perfected. Thus, to the extent that law perfects the reason of its subjects, it leads to the inculcation of virtue in them by requiring the performance of good actions, i.e. the acts of the virtues. Merely performing good human acts (in the technical sense) is not equivalent to virtue, since virtue must of its nature be a settled disposition to act well. Nevertheless, the very nature of good actions disposes the agent toward the perfection of continuing to act well in the future.
Aquinas supports and elaborates the view that good actions lead to more of the same in his metaphysical analysis of the morality of human acts. Since the goodness of a thing is proportionate to its being, the more a human act has of being, the better it is.
Every action has goodness in so far as it has being, but it is lacking in goodness in so far as it is lacking in something of the fullness of being due to a human action, and thus it is said to be evil; for instance if it lack the quantity determined by reason or its due place or something of the kind.(14)
Thus, the fullness of being of an act constitutes its goodness, and this fullness or intensity belongs to an act to the extent that it is directed by reason. The primary goodness that belongs to a human act makes that act good in its genus "...because so much as it has of action and being so much has it of goodness."(15)
Since Aquinas has grounded the goodness of human acts metaphysically as the fullness or intensity of being derived from a direction by reason, he can claim that a good act disposes the subject of the act to further good actions. As one performs good human actions, being directed by law as a dictate of reason, one does not have the fullness of virtue. Nevertheless, as good, such actions possess a superior intensity. "Accordingly, if the intensity of the act correspond to the intensity of the habit, or even surpass it, every such act either increases the habit or disposes to an increase of it...."(16) In cases such as these, law gives to the performer of the good act the direction by reason that gives his or her action intensity. In this sense, law is a teacher of virtue, perfecting reason and thereby perfecting the other faculties directed by reason, namely the will and the passions. "The act, therefore, which precedes virtue can cause virtue insofar as it (the act) is from reason, from which it has that which pertains to perfection in it."(17) By having its foundation in reason, the act acquires its moral and metaphysical perfection.
It follows that human virtue directed to the good which is defined according to human reason can be caused by human acts, in so far as such acts proceed from reason by whose power and rule such good is established.(18)
Thus, if a citizen appropriates the rational character of good laws, it will give his or her actions a perfection and intensity which will lead to the development of the appropriate virtue.
V. Punishment and Virtue.
Outside of any rational character they may or may not have, all laws are essentially commands. Thus, Aquinas claims that at least part of the purpose of law is that it be obeyed. "But every law aims at being obeyed by those who are subject to it."(19) Law commands even those who do not obey out of virtue, nor are willing to learn from its rationality. These vicious subjects are motivated to obey the law through fear of punishment. "From becoming accustomed to avoid evil and fulfill what is good, through fear of punishment, one is sometimes led on to so likewise with delight and of one's own will."(20) For Aquinas, the vicious are not merely forced to obey law from fear while the disposition of their intellectual and appetitive powers are left in states of vice. The law they are forced to obey also is directed toward making them virtuous. For Aquinas, human law is necessary not only to restrain the vicious, but also to lead them to virtue.
But since some are found to be depraved, and prone to vice, and not easily amenable to words, it was necessary for such to be restrained from evil by force and fear, in order that at least they may cease from evil doing and leave others in peace, and that they themselves, by being accustomed in this way, might be brought to do willingly what hitherto they did from fear, and thus become virtuous. Now this kind of training, which compels through fear of punishment, is the discipline of laws.(21)
In order to elicit compliance through fear, the threat of punishment is essential to the ability of law to lead men to virtue. It is necessary, therefore, that the laws which lead to virtue be framed and enforced by public authority.(22)
Punishment and the fear of it, though, just seems to be the crux of the tension between law and virtue. The problem as I see it is reconciling on a theoretical level how punishment and the fear of it can, as extrinsic forces, can according to Aquinas lead to virtue.
Although law as command exacts obedience out of fear of punishment, it can still lead to virtue since fear does not destroy voluntariness. It should be remembered that voluntariness is a necessary condition of an act being good and thus leading to virtue. Aquinas at ST I-II, q. 6, a. 6 explains the relationship between fear and voluntariness. In this article, he states that what is done from fear is voluntary simply, i.e. with respect to the act here and now. "A thing is said to be absolutely, according as it is in act; but according as it is only in the apprehension, it is not absolutely, but relatively. Now that which is done through fear is in act in so far as it is done." Aquinas gives the classic example of sailors who, fearing sinking, throw precious cargo into the sea in order to keep their ship afloat. Such actions at the time that they are done are voluntary since the principle by which they are done is intrinsic to the sailors.
"And that which is done through fear, is voluntary, in so far as it is here and now, that is to say, in so far as in this instance it hinders a greater evil which was feared. ... And so it is clear that it is voluntary absolutely. And hence it is that what is done out of fear possesses the character of being voluntary because its principle is within."
Thus, sailors in peril of going down with their sinking ship are faced with a choice of dying or throwing cargo into the sea. In this case, it is obviously better to choose to jettison the cargo, but what is relevant to our present discussion is that, even though motivated from fear, the destruction of the cargo is a voluntary, and thus human, act.
Aquinas acknowledges, however, that acts done from fear are involuntary in a certain respect, i.e. considered insofar as repugnant to the will (outside of actual circumstances).
"But if we consider what is done through fear as being outside this particular case, and according as it is averse to the will, this is merely something existing in our reason. And consequently what is done through fear is involuntary, considered in that respect, that is to say, outside the actual circumstances of the case."
Considered apart from the storm threatening their ship, the sailors do not wish the cargo they are carrying to end up at the bottom of the sea. From this point of view, the destruction of cargo is against the will of the sailors, but only from this point of view. Since this perspective departs from the actual circumstances of the act, the act is involuntary in a certain respect, i.e. abstractly.
In a way similar to the case of the frightened sailors, a vicious person obeys the law through fear of the penalty incurred for disobedience. One who is not inclined to obey the law from either virtue or reason, nevertheless may do so from fear. To such a person, obedience to a just law, even though reasonable and good, seems to be an evil because it entails foregoing some more proximate apparent good, e.g. the appropriation of another person's property. In such a case, when faced with the threat of a penalty for disobeying the law which prohibits theft, the unvirtuous agent must choose between obedience and punishment, each of which is undesirable to him or her. Thus, this person may choose obedience to avoid the greater evil of punishment.
Just as with the frightened sailors, one who obeys a law out of fear of punishment acts involuntarily, but only secundum quid. To the unvirtuous woman who contemplates theft, all things being equal, to have the stolen property is better than not to have it. Her will, then, inclines to thievery, and insofar as she does not steal, she acts against this inclination of her will. But this consideration of obedience as involuntary is in the abstract, apart from how she actually acts in the situation. Apart from the real facts of the case, the unvirtuous person's obedience is involuntary. Apart from the real facts of the case, however, the consideration is artificial, and so the designation of the act as involuntary is only secundum quid, i.e. in a certain respect and not absolutely.
Absolutely speaking, acts done from fear are voluntary. Just as the actions of the sailors jettisoning their cargo proceeds from intrinsic principles, and consequently is voluntary, so likewise does the obedience of the unvirtuous proceed from intrinsic principles. In the actual circumstances in which the law is obeyed, the potential thief makes a choice between what will lead to having another's possessions and what will bring upon herself the punishment of law. Not only in spite of the fact that the unvirtuous agent fears punishment is she voluntarily obedient. On the contrary, it is precisely because she fears it, that obedience seem better than disobedience. Fear, then, engendered because of the law's threat of punishment, far from making obedience involuntary simpliciter, actually makes the act of obeying the law voluntary absolutely.
As voluntary, acts chosen from fear of punishment are still human, i.e. are not violent. Because the principle by which a person obeys a law through fear is intrinsic to himself or herself at the time and in the circumstances in which it is actually done, such an act is still human. Moreover, such an act is a good human act since it proceeds from a true judgment that obedience (in that it prevents punishment) is better than disobedience. Consequently, the good act done from fear tends toward the development of virtue in those who act in this way. Granted, such an act is not as good as if it were done by one who understands and appropriates the rational character of the law. Much less is the obedient act done from fear as good as one done by a virtuous person, for then the law is obeyed easily, joyfully, and for the right reason. Nevertheless, such an act is a good human act properly so called because it is voluntary and is directed by a true, i.e. a rational, judgment of the order of the world. Since such an act is good, it enjoys a certain fullness of being that disposes its agent toward further good actions. In this way, it tends toward the development of virtue. This is not to say that good acts done from fear will necessarily lead to virtue. Aquinas only says that such fearfully motivated acts tend toward the development of virtue, and that the imperative feature of law is not a theoretical obstacle to such development in unvirtuous citizens.
One should not conclude from this discussion that Aquinas would have favored using the public authority, and the force that that authority has at its disposal, in order to command and enforce universal morality. Although law, through the commanding of certain acts of the virtues, and enforcing such commands with the threat of force, is able to bring about virtue in the citizens, Aquinas recognizes the limits of legislating morality.
Human law is framed for the multitude of human beings, the majority of whom are not perfect in virtue. Therefore 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 injurious to others, without the prohibition of which human society could not be maintained.(23)
Although, for Aquinas, law should lead men to virtue, it should do so gradually; were law to try to forbid every vice, the vicious, "... being unable to bear such precepts, would break out into yet greater evil."(24) Likewise, "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...."(25) Thus, while every command of law can lead to virtue, law cannot command every virtue or forbid every vice.
I have done no more than sketch the intricate relationship in the thought of Aquinas between true law and the full development of virtue in those subject to it. That relation obtains on two fronts. First, from the fact that they are rational, true laws can serve as an instrument of teaching virtue by being internalized in those seeking to learn. Second, all laws as commands cause fear in those who are not of themselves inclined to obey them, and so bring about obedience, but nevertheless allow the possibility that those induced to obedience through fear may thereby become virtuous.
My overall aim was to show that the fact that law obliges obedience, and even demands it through the imposition of force, does not diminish its ability and effectiveness for eliciting virtue in its subjects for Aquinas. The force that law carries with it does not cause the acts that are in compliance with it, but which are done from fear, to become involuntary. Since they are still voluntary, they are still human, and so essentially good. As good, such acts enjoy a certain intensity or fullness of being which contribute to the increase of good habits, i.e. virtues.
1. Thomas Aquinas, Summa Theologiae. Translated by the Fathers of the English Dominican Province. New York: Benziger Brothers, Inc., 1947. I-II, q. 92, a. 1 ad 1. All further citations of the Summa Theologiae will be to this edition, and hereafter abbreviated ST.
2. ST I-II, q. 55, a. 3.
3. ST I-II, q. 6, a. 1.
4. ST I-II, q. 18, a. 1.
5. ST I-II, q. 6, a. 4.
6. ST I-II, q. 6, a. 5.
7. ST I-II, q. 92, a. 2.
8. ST I-II, q. 92, a. 1 ad 2.
9. ST I-II, q. 90, a. 1.
10. ST I-II, q. 95, a. 2.
11. ST I-II, q. 91, a. 2.
12. ST I-II, q. 51, a. 1.
13. ST I-II, q. 63, a. 1.
14. ST I-II, q. 18, a. 2.
15. ST I-II, q. 18, a. 4.
16. ST I-II, q. 52, a. 3.
17. Thomas Aquinas, Quaestio Disputata de Virtutibus in Commini, a. 9 ad 13 in Quaestiones Disputatae. Edited by P. Mandonnet. Paris: Lethielleux, 1925. Actus igitur qui virtutem praecedit, potest causare virtutem inquantum est a ratione, a qua habet id quod perfectionis in ea est.
18. ST I-II, q. 63, a. 2.
19. ST I-II, q. 92, a. 1.
20. ST I-II, q. 92, a. 2 ad 4.
21. ST I-II, q. 95, a. 1.
22. ST I-II, q. 92, a. 2 ad 3.
23. ST I-II, q. 96, a. 2.
24. ST I-II, q. 96, a. 2 ad 2.
25. ST I-II, q. 96, a. 3.