Natural law seems like a relic, remembered only by Catholics who use it as thin grounds for odd sexual theories: the evil of condoms, the intrinsic disorder of homosexuals. Undeterred, our Not School Philosophy of Law group decided to take a look at this relic, including selections from Aquinas and Martin Luther King. It turns out to provide some interesting foundations for our constitutional principle of equal protection of law. That may sound surprising, since equal protection is the primary basis for the string of recent court decisions in favor of gay marriage, yet natural law is portrayed as the enemy of such equality. But hear me out.
Here’s a paraphrase of Aquinas’ key syllogisms:
Premise: Law consists of rules.
Premise: Rules are selected by the faculty of reason. (That is, people can figure out which patterns of behavior they should follow in order to achieve their long-term goals.)
Conclusion: Law is selected by the faculty of reason. (ST I-II, Q. 90, Art. 1.)
Premise: Law is selected by the faculty of reason.
Premise: Things selected by the faculty of reason are selected for the purpose of obtaining human happiness. (In other words, whenever you decide to follow some pattern of behavior, you must have some overarching goal in mind. Moreover, by pursuing those goals, you're trying to fulfill your full potential as a human being.)
Conclusion: Laws are selected for the purpose of obtaining human happiness. (ST I-II, Q. 90, Art. 2.)
Premise: Laws are selected for the purpose of obtaining human happiness.
Premise: Obtaining each individual’s happiness requires obtaining the happiness of the individual’s whole community. (Think of it this way: Each person is a part of a larger whole, the community. As a result, each person can reach his or her potential only with the support of a fully functional community, yet the community cannot be fully functional unless each person reaches his or her potential.)
Conclusion: To achieve their purpose, laws must further the happiness of the whole community. (ST I-II, Q. 90, Art. 2.)
Premise: To achieve their purpose, laws must further the happiness of the whole community.
Premise: Obtaining happiness for the whole community ideally involves the participation of the whole community, since the best judge of how to be happy is the person or people seeking that happiness. (I take it that’s what Aquinas means when he says, “the directing of anything to the end concerns him to whom the end belongs.”)
Conclusion: To achieve their purpose, laws must be chosen with the participation of the whole community. (ST I-II, Q. 90, Art. 3.)
Aquinas isn’t terribly clear, so maybe this paraphrase is off base. But maybe Aquinas isn’t just some anti-condom goofball. Maybe Aquinas is instead laying the philosophical foundation for the democratic principle that everyone should be treated equally under law.
Indeed, Martin Luther King appears to assume such a reading of Aquinas in his famous letter from a Birmingham jail, where King paraphrases Aquinas:
A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law [i.e., a law not conducive to happiness]. Any law that uplifts human personality is just. Any law that degrades the human personality is unjust.
From these principles, King concludes, “All segregation statutes are unjust because segregation distorts the soul and damages the personality.” Reflecting Aquinas’ concern that law serve the entire community, King states, “An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself.” Reflecting Aquinas’ concern for the participation of the entire community in law-making, King says, “A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law. Who can say that the legislature of Alabama which set up that state’s segregation law was democratically elected?” Perhaps Aquinas didn’t intend these conclusions or couldn’t have foreseen them, but they do appear to follow from his principles.
This January, our Not School Philosophy of Law group will be doing another set of readings, this time on legal positivism (Hume, Bentham, Hart, etc.). Please join us!