Law
Aquinas: Law is not right exactly, but the norm of right.
As the leading purpose of human law is to bring about the friendship of men among themselves so divine law is chiefly intended to establish men in friendship with God.
Notes. Mind is the primary authority, and so the first emphasis is on the reasonableness of law. It is not the dictate of desire enjoying the might to take advantage of opportunity, but an intelligent plan directing human activity to happiness. (USA take note of pursuing happiness).
Note: Yet though the ultimate motive is to lead to personal happiness, the immediate object of public law is to establish the general conditions that make the good life possible. Law is for the common good, and when the common good is taken as the community we meet another emphasis; the need of economy in the making of human laws. These pragmatic and approximate dispositions , less august and searching than the divine and natural precepts, to which they are related, less as the deduction of legal science than as the inventions of political art, are designed for what happens in the majority of cases though binding in conscience they are bounded by the field of official justice and public peace. The consequences are that legality in its narrow sense needs to be supplemented by other virtues, and especially to be enlivened by the special virtue of equity.
Aquinas: The definition of law - an ordinance of reason made for the common good by the public personage who has charge of the community.
No one is obliged to obey a precept unless he be reasonably informed about it.
Divine providence extends to all things. Yet a special rule applies where intelligent creatures are involved. For they excel all others in the perfection of their nature and the dignity of their end: they are masters of their activity and act freely, while others are more acted on than acting. They reach to their destiny by their own proper activity, that is by knowing and loving God, whereas other creatures show only some traces of this likeness.
The entire purpose of the lawgiver is that man may love God.
Eternal and Natural law
The idea existing in God as the principle of the universe and lying behind the governance of things has the force of law. Because nothing in the divine reason is conceived in time, "for the plan was set up from eternity and of old before the earth was made" therefore it is called the eternal law.
Natural law descends from the primary precepts to conclusions more or less cogent and admitted according to their closeness to moral first principles. Some of these conclusions are approximately acquainted with the jus gentium of Roman jurisprudence, though their legal condition verges into that of positive law.
Positive law can be divided (according to the legislator) into:
Human law itself is subdivided into
Precepts of the natural law may be backed by positive enactment
Aquinas: Some have believed that all justice is arbitrary and not in the nature of things, and have consequently judged injustice accordingly.
All plans of inferior government should be modelled n the eternal law, since it is the prototype. Hence Augustine says that in temporal law there is nothing just and lawful save what man has drawn from eternal law.
"This is one of those startling gems from Aquinas which can touch you like a prayer in the courtroom" - and old Prof.
Since law is a rule and a measure, it can be in a person in two ways: either as in the ruler or as in the ruled. All things subject to divine providence are ruled and measured by the eternal law, for under its influence they have their propensities to their appropriate activities and ends. Among all the rest, rational creatures most superbly come under divine providence, by adopting the plan and providing for themselves and for others. Thus they share in the eternal reason and responsibly pursue their proper affairs and purposes. This communication of the eternal law to rational creatures is called the natural law. The natural light of reason, by which we discern what is right and wrong, is naught else but the impression on us of divine light.
Natural right is contained in the eternal law primarily, and in the natural judicial faculty of human reason secondarily.
The precepts of natural law are to practical reason what the first principles of science are to the theoretical reason.
Natural right is what is fitting and commensurate of man’s very nature. This may come about in two ways. First, without deliberate adjustment, as male is adapted to female for generation (Hey, note the order of priorities ladies!) and parent to child for comfort in the very nature of things. (You can tell he never had kids of his own. COMFORT!). Secondly by a judgement of the consequences. Take ownership for example; in the abstract there is no reason why a field should belong to this man or to that man, but if you consider its development and peaceful exploitation, than a piece of property may well be allocated to one rather than to another. To apprehend a thing absolutely and apart from its implications is not peculiar to man; to some degree it is present in animals as well. Taken in this sense, natural right is common to us and the other animals. But for the ordinary and rational human decencies more factors have to be allowed for. To appreciate a situation with an eye to how things will work out in practice is proper to human reason. Natural rights may be dictated from a judgement of the consequences. The ensuing regulations may not require special legislation, for they are established by the evidence of their reasonableness.