Disability Law and Thomas Aquinas Natural Law Theory


Posted On : March 11, 2022
Disability Law and Thomas Aquinas Natural Law Theory
Law is a very vast and subjective concept which helps in the smooth functioning of the society. The main objective of law is to regulate the behaviour of different stakeholders in the society. The distinct feature of human behaviour is that it is heterogeneous in nature and is influenced by various factors like culture, tradition, religion, geography, personal bias etc. Therefore, different legal theories or schools of thought have flourished from different societies at different times and one of the earliest is the natural law theory developed in Greece. Philosophers like Plato, Aristotle, Gairus, Aquinas, Hobbes, John Lock, Rousseau, and Immanuel Kant have extensively deliberated upon it and propounded their own views. Salmond defined natural law as “the principles of natural justice if we use the term justice in its widest sense to include all forms of rightful actions.” The natural law theorists study the interaction between society and nature and propounded that there are, usually, two types of laws. The first is laws made by men, called the positive law, to govern their behaviour in the society and hence is heterogeneous with changing societies and time. The other being the natural law made by nature or a sovereign who is above human beings that governs everything in the universe and, therefore, is stable throughout time and places. Natural law is believed to be the source and basis of the positive or manmade law and is interpreted by different societies in their unique ways. The Roman Empire developed its laws Jus Civile, for roman citizens, and Jus Gentium, for colonies and foreigners, based on natural law. However, natural law being very abstract with different interpretations by different philosophers of something claimed to be objective and empirical was rejected by the legal positivist school as irrational and contradictory which lead to emergence of other schools of thought like positive law theory, realist theory of law, and Marxist theory of law etc.
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Thomas Aquinas’ theory of Natural law

Saint Thomas of Aquinas was a classical religious and intellectual revolutionary who extensively contributed to the field of philosophy and religion in the 13th century- a period of many theological, philosophical, and scientific developments. Aquinas tried to abandon the platonic ideas and introduce Aristotelian thought of science, nature, and theology. Aquinas penned down vast amount for works with Summa Theologica being the most significant of them. The book is over three and half thousand pages and meticulously discusses concepts like natural law theory, theological beliefs and other profound insights.

Aquinas’ theory of natural law is a combination of God’s command to do right and the morality or conscience of the human being derived from reasoning. While discussing the interaction between the two there is a great challenge called the Euthyphro dilemma raised for the first time by Plato in his book Euthyphro which states, “Either something is right because the God commands it or the God commands it because it is right. Therefore, if God commands something because it is right, then God does not determine what is right or if the God’s command make it right, known as divine command theory, then there are chances that it contradicts with the morality of human reasoning for example sacrifice of innocent children.”[1] Because of this arbitrary problem many including Aquinas have rejected the divine command theory. Aquinas believes that God’s commands help people realise what action is morally right and virtuous rather than making it right. This reasoning raises questions about the role of God in natural law theory and virtuousness of an action. Aquinas explains it in his theory of natural law which include eternal law, human law, natural law, and divine law.


Eternal Law

Aquinas claims that eternal law is the God’s rationale plan or purpose for all the things with all being the significant word which has been in existence and will continue to exist so. Aquinas believes that everything has a purpose or goal which it should try to achieve as it is set by the God. He is a teleologist and is similar to Aristotelian thought who believes that everything has a telos or objective which they should strive to achieve.

Further, Aquinas believes that if something achieves its telos or purpose then it following eternal law and is good or virtuous under natural law. For example, the purpose of acorn is to grow into an oak, that of an eye is to see; and if they do not fulfil their purpose then they are bad or against the law.[2] However, the purpose becomes difficult to find or ascertain in case of human beings as they have different capabilities and heterogeneous nature.


Natural Law

According to Aquinas, the purpose of humans is reason and this is what makes them special from rest of the objects in the world like table, rat, Sun etc. He believes that the human capability to reason is unique and the purpose of their existence. Human actions should be constructed upon reasons which will lead to overarching general rules, Aquinas calls them primary precepts, which will be accepted by everyone which are absolute and obligatory to all. For example, he believes that pursuing and doing good and avoiding evil is the first percept as everyone wants to do so and is asserted by reason. Protecting human life, educating one’s offspring, contemplating and worshiping God, living in the society are some other primary precepts and are true for all people. One who pursue or achieves them is fulfilling their purpose in Eternal law and these rules or principles form the Natural law. There natural laws are not written but are rules which we recognise because of being rational.


Human Law

Aquinas also defines the Secondary precepts or the Human law which are rules made by men to regulate their day to day activities as the primary precepts or natural law are general and cannot be ascertained for every small human activity. These rules are not based on our reason but are imposed or sanctioned upon us by a sovereign like governments, king, Judges etc. These include speed limit on the roads, not to commit fraud or theft etc.

Since they are not derived from reason they may not be morally acceptable and inconsistent with the natural laws. If these precepts are not consistent with primary precepts one should not follow them as they only do apparent good. However, those secondary precepts which are in consonance with the primary precepts should be followed as they do real good. For example, the persecution of Jews by German laws at the time of Hitler is not morally correct or virtuous. The German laws advocated the persecution but were not backed by Human reason or natural law as they opposed primary precept to preserve human life. Therefore, Aquinas would have argued that these secondary precepts are irrational and if the German lawmakers had thought and acted according to reason they would have seen them as immoral and not acceptable. These precepts unlike primary precepts are not committed to be unique and constant but are subject to change with changing societies and times.


Divine Law

The role of God or religion in natural theory of law is to provide divine law. Divine law is that which is given by God through revelation and is equivalent to human law that are consistent with natural law. According to Aquinas, these are those laws or mysterious rules that God has deemed fit to give us and can be found in religious teachings and scriptures like the Ten Commandments in Christianity.[3] God has revealed them to assist men in finding the secondary precepts as he can easily make a mistake while ascertaining them. Aquinas explains it with the example of adultery. A married man having affair argues that he is in love and surely God would be happy for him and it cannot be wrong. However, the minister in the church cites the Ten Commandments and says that adultery is wrong. The example explains that humans can be confused and commit mistake about their purpose by applying wrong reason, and therefore, God has given these rules. Aquinas believes that divine laws help men in finding and fulfilling their purpose set by God in Eternal law.


Natural Law Theory and People with Disability

Aquinas believes that everything in this universe has a purpose or goal which is set by God in eternal law and one should strive to fulfil them to be good. The purpose of human beings, however, becomes difficult to ascertain and it is much more difficult in case of people with disabilities. Normal people can find their purpose by reasoning and have the capability to fulfil them but in certain cases people with special needs may find it almost impossible to fulfil their purpose.

Aristotle believes telos or purpose of a thing is its essence and achieving it is its fulfilment. Like Aquinas he believes the essence of humans is derived from rationality and every rational being should strive for true happiness or eudemonia which is its telos or purpose of human life. He believes that eudemonia can be achieved by fulfilling their potential for excellence which will help them achieve moral (courage, moderation, magnanimity etc.) and intellectual virtues (scientific knowledge, painting, singing etc.). Virtues means thing humans can do like painting, athletics, scientific discoveries etc. when they have fulfilled their potential which will give them happiness and complete their part in natural order.

While applying these theories in the modern world, the question arises what is the purpose of people with disabilities and if there is then what happens if they are incapable of fulfilling their purpose because God made them so. Let’s take an illustration of a person suffering from full body paralysis who can’t do anything. What can be the purpose of such a person? As he has practically no potential to achieve since he has been suffering from birth; what can be the God’s plan or reason for his suffering? Even if he puts his mind to reasoning and contemplates his purpose or telos of life, it is very likely that he is incapable of achieving it due to the disability God deemed fit to give him. Some religious preachers might say that his sufferings are the consequences of his sins in the past life and his purpose in the present life is to remind others to do good and shun away evil. However, such a line of reasoning when deliberated upon feels immoral and wrong as it is in direct contradiction to the God’s preaching of forgiveness. Such a reasoning defeats the human conscience. Therefore, Aquinas’ theory of Natural Law fails in the aforesaid illustration as it cannot comprehend the purpose a paralysed man is destined to achieve and makes him incapable to follow the natural law even if he wishes to do so.

John Finnis’ theory of natural law and his concept of basic goods can help us understand the above problem. Finnis like Aquinas believes that every moral action or the thing ought to be done is derived from reasoning and every law made should reflect this conscience and morality derived from reason which inclines his thought more towards natural school of thought than legal positivist school. However, he differs from Aquinas about the purpose one is supposed to achieve and instead introduces the idea of basic goods or virtues, central to his theory, which will help an individual to be virtuous and follow the natural law. The seven basic goods as mentioned by Finnis are: Life, Knowledge, Friendship, Play, Aesthetic Experience, Religion, and Practical Reasonableness.[4] These basic goods, according to Finnis, cannot be broken down into more goods as they are fundamental similar to chemical elements and are the explanation and basis of what actions should be performed in order to be moral and virtuous rather than a predefined purpose or goal set by the God. Finnis believes that any activity is good if it is done to achieve these goals. This concept help us understand the aforesaid example as the paralysed person can decide to live under the care of his loved ones and partake his role in natural order as preserving life, Friendship etc. are basic goods fundamental to morality. Finnis has been successful to explain theory of natural law which is applicable to all on the basis of basic goods derived from human reasoning which every rational being will accept and strive for irrespective of his capabilities as against Aquinas’ classical theory of natural law based on the assumption that everyone has purpose which decided by God.


Natural Law theory and Disability Law

Finnis’ approach towards law making in the modern times is correct and the true portrayal of the role of natural law in laws. Our laws should be made out of reasoning portraying the morality and inner conscience. Aquinas’ believes that talking and interacting with people is the best way to discover our real goods, that is human laws which are in accord with the natural laws, and this is the thing our lawmakers need to do while making disability laws. They need to understand the special needs of these people and make them feel inclusive within the society. One of the most important steps taken towards this by the international community is the UN Convention on the Rights of Person with Disability adopted on 13 December, 2006. Article 1[5] of the convention states its purpose as, “protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.” The convention has turned out to be a major catalyst in global movement for rights of people with special needs changing society’s perspective from objects of charity to full and equal responsible members. The convention has led to a revolution by holding its rectified members obligatory to amend laws and undertake new initiatives for fuller inclusion and eradication of discrimination against people with these special needs. The convention has also resulted in the formation of legal framework and institutions at the international level starting with the Committee on the Rights of Persons with Disabilities monitoring the implementation of the convention. The convention has recognised various guiding principles under Article 3 like “non-discrimination, individual autonomy and freedom to make ones decisions, participation and inclusion in the society, accepting people with special needs as part of human diversity, and equality and accessibility of opportunities.” [6] The convention has been successful in helping these people in realising their goals and potential by giving the principle of “reasonable accommodation” which means necessary and appropriate adjustments in the social, legal, economical, and technological structure to ensure people with special needs can realise their potential by giving them special platforms to perform.

The UN Convention on Rights of People with Disability is the best example where law does real good by fulfilling its moral expectations and reaching an accord between the primary precepts and the secondary precepts.


 


[1] Dimmock, Mark, and Andrew Fisher. "Aquinas’s Natural Law Theory." In Ethics for A-Level, 65-77. Cambridge, UK: Open Book Publishers, 2017. http://www.jstor.org/stable/j.ctt1wc7r6j.8 (10 Feb. 2022).

[2] Seagrave, S. Adam. "Cicero, Aquinas, and Contemporary Issues in Natural Law Theory." The Review of Metaphysics 62, no. 3 (2009): 491-523. http://www.jstor.org/stable/40387823 (Last accessed on 11 Feb. 2022).

[3] Marcin, Raymond B. "A Brief Glimpse into Theistic Natural Law Theory." In In Search of Schopenhauer's Cat: Arthur Schopenhauer's Quantum-Mystical Theory of Justice, 74-92. Washington, D.C.: Catholic University of America Press, 2006. www.jstor.org/stable/j.ctt2850nw.14 (Last accessed on 10 Feb. 2022).

[4] Hon, Tan Seow. "JUSTIFICATION IN FINNIS' NATURAL LAW THEORY." Singapore Journal of Legal Studies, 2000, 590-639 http://www.jstor.org/stable/24868152 (Last accessed on 10 Feb. 2022).

[5] Article 1 of Convention on Rights of Persons with Disability (adopted on 13 December 2006, entered into force 3 May 2008) 2515 UNTS.

[6] Article 3 of Convention on Rights of Persons with Disability (adopted on 13 December 2006, entered into force 3 May 2008) 2515 UNTS.

 

Bibliography

 

·      J W Salmond, Jurisprudence, Stevens and Haynes, London, 1913.

·      Dimmock, Mark, and Andrew Fisher. "Aquinas’s Natural Law Theory." In Ethics for A-Level, 65-77. Cambridge, UK: Open Book Publishers, 2017. http://www.jstor.org/stable/j.ctt1wc7r6j.8 (Last accessed on 10 Feb. 2022).

·      Seagrave, S. Adam. "Cicero, Aquinas, and Contemporary Issues in Natural Law Theory." The Review of Metaphysics 62, no. 3 (2009): 491-523. http://www.jstor.org/stable/40387823 (Last accessed on 11 Feb. 2022).

·      Marcin, Raymond B. "A Brief Glimpse into Theistic Natural Law Theory." In In Search of Schopenhauer's Cat: Arthur Schopenhauer's Quantum-Mystical Theory of Justice, 74-92. Washington, D.C.: Catholic University of America Press, 2006. www.jstor.org/stable/j.ctt2850nw.14 (Last accessed on September 10 Feb. 2022).

·      Hon, Tan Seow. "JUSTIFICATION IN FINNIS' NATURAL LAW THEORY." Singapore Journal of Legal Studies, 2000, 590-639 http://www.jstor.org/stable/24868152 (Last accessed on 10 Feb. 2022).

 

Written By:
Anik

Anik

Bangalore

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