On Law, Morality, And Politics, Second Edition (Annotated) by Thomas Aquinas & William P. Baumgarth & Richard J. Regan

Author:Thomas Aquinas & William P. Baumgarth & Richard J. Regan [Aquinas, Thomas]
Language: eng
Format: mobi
Publisher: Hackett Publishing
Published: 2010-11-30T16:00:00+00:00

SECOND ARTICLE

Do We Appropriately Divide Right into Natural and Positive Right?

We thus proceed to the second inquiry. It seems that we inappropriately so divide right, for the following reasons:

Obj. 1. What is natural cannot be changed, and all peoples so judge. But there is no such thing in human affairs, since all rules of human law are wanting in particular cases, nor are they in force everywhere. Therefore, there is no natural right.

Obj. 2. We call anything produced by the human will something positive. But nothing is just simply because it is produced by a human will; otherwise, the human will could not be unjust. Therefore, since the just and right mean the same thing, it seems that there is no positive right.

Obj. 3. Divine right, since it surpasses human nature, is not natural right. Likewise, divine right, since it relies on divine rather than human authority, is not positive right. Therefore, we inappropriately divide right into only two kinds of right, natural and positive.

On the contrary, the Philosopher says in the Ethics that “part of political justice is indeed natural, and part legal,”10 that is, established by positive law.

I answer that, as I have said before,11 right or justice consists of rendering to others things equivalent by some measure of equality. And equivalent things can be rendered to others in two ways. Things can indeed be so rendered to them in one way by the very nature of the things, as, for example, when one gives so much in order to receive so much. And we call this natural right.

Things are equivalent to, or commensurate with, other things in a second way by agreement or mutual consent, namely, when one deems oneself content to receive so much. And this can indeed happen in two ways. It happens in one way by private agreement, as something confirmed by a contract between private persons. It can happen in a second way by public agreement, as, for example, when the whole people agree that things be considered equivalent to, or commensurate with, other things, or when a ruler in charge of the people and acting on its part so ordains. And we call this positive right.

Reply Obj. 1. What is natural for things having an immutable nature needs to be always and everywhere such. But the nature of human beings is mutable. And so what is natural for human beings can sometimes be wanting. For example, it is natural equity to return entrusted things to their owners, and so this principle should always be observed if human nature were always righteous. But since the will of human beings may sometimes be evil, there are cases in which entrusted things should not be returned to their owners lest human beings having a wicked will use the things wickedly (e.g., if a madman or enemy of the commonwealth should demand return of his weapons).

Reply Obj. 2. The human will can, by common agreement, make something just in the case of things as such compatible with natural justice.

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