Because most philosophies that frown on reproduction don't survive.

Thursday, February 20, 2014

Does Aquinas Really Say That?

I found myself reading back through some threads of Commonweal posts -- I'm not sure why these fits of madness take me at times, but they do -- and I stumbled across this Cathleen Kaveny piece where she's arguing that Catholic schools should not dismiss teachers who turn up pregnant out of wedlock.

There are real issues to discuss on the topic, and I don't think there's a single one-size-fits-all answer, but predictably Kaveny's reasons are pretty bad. One bit in particular stuck out to me, however. She says:

Everyone knows that St. Thomas Aquinas says that an unjust law is no law at all, but rather an act of violence (actually, Aquinas’s reasoning is much more subtle on this question, but that is for another day). But he also says something that gets far less attention: a law that imposes a burden unequally upon members of the community is also an act of violence–even if it furthers the common good.

Now, I have a pretty good idea how she's getting to the former, but I'm rather mystified as to what in Thomas she's working off of to get to the latter. I'm certainly not prepared to make a claim that he doesn't say that. I haven't read all of Aquinas and I don't consider myself enough of an expert on him to have an unerring sense for what he would say, but it does seem rather off to me such that I'm skeptical. She provides no citation or elaboration. Does anyone know what she may be referring to?

Perhaps it's my post-enlightenment views about law and government cropping up, but it seems to me that most laws probably impose a burden unequally upon members of the community. Indeed, I would imagine that Kaveny herself supports a number of such laws. For instance, very few people want to play around with trading billions of dollars in risky financial investments, and thus necessarily any laws we impose to prevent such people from inadvertently crashing our banking system would disproportionately burden that small group of people able and eager to do such things. However, I don't think that Kaveny would suggest that the fact that these laws burden those few while not touching people like her or me would make them unjust. Indeed, she'd probably argue that if such laws protect the common good they are morally obligatory.

Of course, what she probably means is laws where the unequal burden falls upon groups that she perceives as oppressed. But if that's the case, it's hardly a general principle. And either way,
I'm a little skeptical that she's pulling this from Thomas -- if only because she is phrasing it in such a modern way.

10 comments:

Anonymous said...

First comment: St. Thomas cites St. Augustine, who does say that an unjust law seems to be no law at all. Credit, sources, etc.! (ST I-II Q95 a2 resp.)

Second comment: I don't know a citation for the second bit, and it runs contrary to some things I know Aquinas does say (namely, in that same article cited above). I'm going to poke around until I see something to explain the reference, but it's just as likely she's pulling from St. Augustine again.

Rob

Anonymous said...

Addendum: I'll think about it some more, but I think she's hashing up ST I-II Q96-97 by working from memory. Those articles don't support her wording but I can sort of see how she's getting it.

Just a guess. The old "this is much more complicated but I'm still going to say it in 140 characters" is never a good idea.

Rob

Brandon said...

I think it's almost certainly 2-1.96.4 (I-IIae q 96 a 4) that she has in mind. St. Thomas is discussing ways in which laws may be just and unjust. To be fully just a law must be just with respect to its end, author, and form. A law is unjust if it violates any of these. The inequality issue comes up when it's a violation of form, and Aquinas's characterizes such violations in two ways:

(a) burdens are laid on the subjects, (not) according to an equality of proportion and with a view to the common good

(b) as when burdens are imposed unequally on the community, although with a view to the common good

(Laws that are not with a view to the common good at all are unjust laws according to end and have no force as laws already.) So, as Rob says, you can see how she is getting it. But, also as Rob says, the wording doesn't quite fit what she is saying. It's not just any equality of burden that's necessary for justice in Aquinas, but a very specific equality: equality of proportion. This is in fact essential to how Aquinas thinks of justice: all justice of any kind is an equality of proportion. So one of the problems with Kaveny's comment is that she makes it sound as if the two things are different; whereas given the way Aquinas understands justice, the latter is just a necessary implication of the former: laws involving no equality of proportion are necessarily unjust and thus not laws, because nothing can be just without equality of proportion.

But equality of proportion of burden is not equality of burden. For instance, if John risks his life for the common good and I don't, it's not unjust if the laws give him fewer burdens than I do, as long as they are relevant (that's the proportion) to his contribution. John and I have unequal burdens under law, but that doesn't matter. As he describes it elsewhere (2-1.61.2), it should be done "in such a way that even as one person surpasses another, so that which is given to one person surpasses that which is allotted to another". It's the proportion that matters and has to be equal, and what is more, it is the proportion in light of common good.

Or to put it all a bit more crudely, and without any nuance: the equality that matters to justice is that people should benefit in the same (equal) proportion as their deserts, where the benefits are incentives and rewards appropriate to common good and the standard of what they deserve is what contributes to common good.

As you say, all laws will

Brandon said...

Whoops, the last paragraph should read, "As you say, all laws will impose unequal burdens. What matters for Aquinas is not the unequal burden but the inequality that comes when burdens are distributed so that people are penalized for doing good or rewarded for doing bad.

Anonymous said...

I think she's also looking to/recalling/has bad notes on the mutability articles and combining this with the article you cite, Brandon. One of the funny things about this is that Q97 is concerned with those in authority improving laws or (the one I think she's really referencing) dispensing people from a law, not with laws being voided in themselves. That we may not normally set them aside ourselves is already established before getting to these questions.

Kaveny has, among other things (she's a very accomplished scholar), a JD from Yale. I suspect this flawed commentary is fruit of a class in law school. Study medieval philosophy, not digests!

Rob

Darwin said...

Thanks, Rob & Brandon.

Looking at this section, this appears to be what she's talking about:

Now laws are said to be just, both from the end, when, to wit, they are ordained to the common good--and from their author, that is to say, when the law that is made does not exceed the power of the lawgiver--and from their form, when, to wit, burdens are laid on the subjects, according to an equality of proportion and with a view to the common good. For, since one man is a part of the community, each man in all that he is and has, belongs to the community; just as a part, in all that it is, belongs to the whole; wherefore nature inflicts a loss on the part, in order to save the whole: so that on this account, such laws as these, which impose proportionate burdens, are just and binding in conscience, and are legal laws.

On the other hand laws may be unjust in two ways: first, by being contrary to human good, through being opposed to the things mentioned above--either in respect of the end, as when an authority imposes on his subjects burdensome laws, conducive, not to the common good, but rather to his own cupidity or vainglory--or in respect of the author, as when a man makes a law that goes beyond the power committed to him--or in respect of the form, as when burdens are imposed unequally on the community, although with a view to the common good. The like are acts of violence rather than laws; because, as Augustine says (De Lib. Arb. i, 5), "a law that is not just, seems to be no law at all."


If I'm reading this and Brandon's explanation right, it seems to me that Aquinas is saying here that the law must be formed with an eye towards the common good and that it must also impose upon the governed a proportionate balance of burden and benefit. In other words, that laws are not just if they seek the common good through essentially predator means: imposing all the burden and none of the benefit on certain people.

Is that right?

Darwin said...

I see Rob and I cross-posted. Looking at Q97, I'm thinking this is probably the relevant section:

Objection 2. Further, those who are placed over others are commanded as follows (Deuteronomy 1:17): "You shall hear the little as well as the great; neither shall you respect any man's person, because it is the judgment of God." But to allow one man to do that which is equally forbidden to all, seems to be respect of persons. Therefore the rulers of a community cannot grant such dispensations, since this is against a precept of the Divine law.
...
Reply to Objection 2. It is not respect of persons if unequal measures are served out to those who are themselves unequal. Wherefore when the condition of any person requires that he should reasonably receive special treatment, it is not respect of persons if he be the object of special favor.

Brandon said...

Rob,

You might be right. And it does seem like the sort of misreading that would arise if someone had studied the point quite some time ago and was going on memory.

Darwin,

I think that's essentially right. The equality point is exactly about means to the end, which is common good, and insisting that distribution of burdens should be (so to speak) fair and beneficial exchanges for the parties involved.

Hans-Georg Lundahl said...

You quoted different Questiones.

I answer that, Laws framed by man are either just or unjust. If they be just, they have the power of binding in conscience, from the eternal law whence they are derived, according to Proverbs 8:15: "By Me kings reign, and lawgivers decree just things." Now laws are said to be just, both from the end, when, to wit, they are ordained to the common good--and from their author, that is to say, when the law that is made does not exceed the power of the lawgiver--and from their form, when, to wit, burdens are laid on the subjects, according to an equality of proportion and with a view to the common good. For, since one man is a part of the community, each man in all that he is and has, belongs to the community; just as a part, in all that it is, belongs to the whole; wherefore nature inflicts a loss on the part, in order to save the whole: so that on this account, such laws as these, which impose proportionate burdens, are just and binding in conscience, and are legal laws.

On the other hand laws may be unjust in two ways: first, by being contrary to human good, through being opposed to the things mentioned above--either in respect of the end, as when an authority imposes on his subjects burdensome laws, conducive, not to the common good, but rather to his own cupidity or vainglory--or in respect of the author, as when a man makes a law that goes beyond the power committed to him--or in respect of the form, as when burdens are imposed unequally on the community, although with a view to the common good. The like are acts of violence rather than laws; because, as Augustine says (De Lib. Arb. i, 5), "a law that is not just, seems to be no law at all." Wherefore such laws do not bind in conscience, except perhaps in order to avoid scandal or disturbance, for which cause a man should even yield his right, according to Matthew 5:40-41: "If a man . . . take away thy coat, let go thy cloak also unto him; and whosoever will force thee one mile, go with him other two."

Secondly, laws may be unjust through being opposed to the Divine good: such are the laws of tyrants inducing to idolatry, or to anything else contrary to the Divine law: and laws of this kind must nowise be observed, because, as stated in Acts 5:29, "we ought to obey God rather than man."


This is Q 96 A 4 "whether human laws bind in conscience", corpus articuli.

Darwin answered by quoting some answers belonging to somewhere else.

Reply to Objection 2. It is not respect of persons if unequal measures are served out to those who are themselves unequal. Wherefore when the condition of any person requires that he should reasonably receive special treatment, it is not respect of persons if he be the object of special favor.

This is from Q 97 A 4. The question is not whether unequal burdens are acceptable, but whether dispensations and similar privilege do constitute such. The title is: "Whether the rulers of the people can dispense from human laws?"

Hans-Georg Lundahl said...

Now, the piece about treating non-equals not equally and this being proportional equality, for one thing, it is Aristotle.

For another thing, insofar as it is right it can be used as an argument for keeping either no female schools (arguing that future mothers profit from being universally homeschooled rather than just occasionally) or for female schools being separate from male schools.

This latter was obviously a very general rule, and either nuns or near to monastic vocations being the teaching force, in schools run by the Catholic Church seventy years agoand admitting girls.

As to the present situation, one can argue that female teachers committing fornication are hit more badly than male teachers doing so.

Unless, in addition to fornication, they "frown on procreation".

Either case, a pregnancy out of wedlock is a matter that can be regulated by the two parties marrying.

A rule more equitable for the present situation would be:

- if male or female teachers commit fornication they are suspended

- when and if they marry the other person they are resumed.