232. The Definition and Elements of Law

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Lecture Notes

Main Topics #

The Four Elements of Law’s Definition #

Thomas Aquinas defines law through four essential components:

1. Something of Reason - Law must be an act or product of reason, not mere appetite or force
2. Ordered to the Common Good - Law directs toward a good that can be shared by many without diminishment
3. Made by Proper Authority - Only those with care of the community can make law (e.g., kings, those in charge of the multitude)
4. Promulgated - Law must be made known to those who are ruled by it

The Distinction Between Partial and Perfect Common Goods #

Berquist explains that common goods exist in degrees:

• Imperfect common good: A pie shared among people—each person gets a portion, and the good is diminished by division
• Perfect common good: Knowledge (e.g., the Pythagorean theorem), truth, God—can be fully possessed by many simultaneously without any diminishment
• Intermediate examples: Music or a play—experienced together, not diminished, potentially enhanced by communal enjoyment

Thomas contrasts law-making with bodily actions: the action of my hand is truly my action (the body has organic unity), but not every action of a family member is an action of the family, nor every action of a citizen is an action of the city. The unity differs fundamentally.

On Promulgation #

Question: Is promulgation essential to the definition of law?

Objections presented:

• Natural law is the preeminent form of law, yet it does not require promulgation in the ordinary sense
• Promulgation is temporal and particular; law binds people both present and future
• The obligation of law extends to those who have never directly received promulgation

Thomas’s Response: Promulgation is necessary, but in an analogous sense. A rule or measure must be applied to those who are ruled and measured. Law obtains its binding power (obligating force) through application to those who are ruled—and this application occurs through leading them into knowledge of the law. Therefore, promulgation is essential to law’s proper operation.

Historical Examples of Law-Making Authority #

Berquist mentions examples of rulers establishing laws:

• St. Louis of France
• King Alfred of England (who even translated law)

The Notion of Natural Law #

Berquist notes that nature does not create superfluous things; if eternal law sufficiently governs all things, why would there be natural law? Yet reason shows that natural law must exist, written in the hearts of men, by which they understand what is good and bad.

Key Arguments #

Promulgation as Necessary to Law #

Thomas’s Argument:

• Law is a rule and measure of acts for those under authority
• A rule/measure is imposed through being applied to those ruled/measured
• This application occurs through making known (promulgation)
• Therefore, promulgation is required for law to exercise its proper power of obligation

On Natural Law’s Promulgation:

• Although natural law does not require explicit public proclamation, it is promulgated in an analogous sense
• God has inscribed natural law in human minds—natural reason makes it known
• The objection that ignorance excuses fails: if you truly do not know you should do good and avoid bad, you require punishment, not excusal

Important Definitions #

Law (Lex) #

An ordinance of reason, directed to the common good, made by one who has care of the community, and promulgated

Common Good (Bonum Commune) #

A good that can be possessed by many without diminishment—perfectly exemplified in knowledge, truth, and God; imperfectly exemplified in shared material goods.

Promulgation (Promulgatio) #

The application of law to those who are ruled, making them aware of its requirements. Can occur through spoken word, written word, or (in the case of natural law) through natural reason inscribed in the mind.

Examples & Illustrations #

Common Goods #

• The Pythagorean theorem: Can be fully known by all simultaneously; not diminished by being shared; may be better understood through collective reasoning
• God: A private good of monks? No—the divine infinity means sharing does not diminish (“we’ve hardly taken a little bit off his finger”)
• Music and theatre: Heard/seen together, not diminished, potentially enhanced by communal experience

Natural Law Examples #

• “Do good and avoid evil”—the first principle of natural law, naturally known
• Aristotle’s teaching that certain acts are always bad: adultery, murder, stealing

Promulgation Examples #

• Typical promulgation: A king announces new laws publicly (e.g., by proclamation or horn-blowing)
• Modern example: Traffic laws (driving on the right side of the street) require promulgation because they are not naturally determined

Notable Quotes #

“A rule and measure are placed upon something through this, that they are applied to those who are ruled and measured. Whence, in order that law would obtain the power of obligating, which is proper to law, it must be applied to men who ought to be ruled according to it.”

“If you don’t know that you’re supposed to do good and avoid bad, you need punishment, really—punishment, not argument.”

“The definition of law, which is nothing other than a certain ordering of reason to the common good by the one who has care of the community, and promulgated.”

Questions Addressed #

Is promulgation essential to the definition of law? #

Objections:

1. Natural law is paradigmatic law, yet it needs no ordinary promulgation
2. Promulgation occurs in the present, but law’s obligation extends to the future
3. Not all who are bound by law have received promulgation

Resolution: Promulgation is necessary in an analogous sense. For law to exercise its proper power of obligation, those who are ruled must be brought into knowledge of it. This application constitutes promulgation, whether through explicit proclamation or through natural reason itself (as with natural law).

Why is natural law necessary if eternal law governs all things? #

Issue: Nature does not abound in superfluous things, yet if eternal law sufficiently orders all things, does natural law add anything?

Implication: Natural law must exist and be distinct in some way, inscribed in human reason as participation in eternal law.