CLASSICAL NATURAL LAW THEORIES WITH FOCUS ON ST. AUGUSTINE AND ST.

THOMAS: AN INTRODUCTION

Muhammad Munir

Abstract
This work explores, in a nutshell, some of the basic questions about the views of classical

theorists about the law but its main focus is on the classical natural law theories. The questions

attempted here include, how was law known at the time of the archaic age of the Greeks? What

was the Sophists’ view of law? What were Plato and Aristotle’s views about the law? How did

the Stoic view the nature of law? What were the views of St. Augustine? What were the views of

St. Thomas Aquinas? Why was Thomas so critical of Averroes and Siger? Who is to blame for

the secularization of natural law?

Key Words

Classical, natural law, theories of law, Sophists, Plato, Aristotle, Stoic, St. Augustine, St.

Thomas Aquinas, Averroes, Siger.

Introduction

This work discusses the views of some selected pre-modern jurists or classical jurists as well

some Christian fathers. It explores the views of Sophists’ philosophers, Plato, Aristotle, Stoic

philosophers, St. Augustine, and St. Thomas Aquinas. The methodology used is doctrinal.


[email protected], http://ssrn.com/author=1633078, https://orcid.org/0000-0003-1336-0892 Prof. Dr.
Muhammad Munir is Professor at the Department of Law, International Islamic University, Islamabad. He wishes to
thank professor Asmatullah Kakar for editing this work and Amr ibn Munir for proof reading it.

Electronic copy available at: https://ssrn.com/abstract=4100520

Law at the time of Homer and Hesiod

Law at the archaic age of Greeks (750-480 BC) is known through the works and poetry of

Homer (800 BC-701 BC) and Hesiod (700 BC). Homer is famous for the epic poems The Illiad

and The Odyssey, which have had an enormous effect on Western culture, but very little is

known about their alleged author. Homer is an enigma in so far as the actual facts of his life are

concerned but we are not interested with the person. Rather we are interested in what he said

about law. Similarly, Hesiod is believed to have lived around 700 BC and is well known for his

two complete epics that have survived, the Theogony, relating to myths of the gods, and the

works and days, describing peasant life. Both Homer and Hesiod mention that the Olympian god

Zeus gave law to mankind. For Zeus law was the order of peace founded on fairness, obliging

men to refrain from violence and to submit their disputes to an arbiter. At the time of old Greeks

there was no difference between law and religion. Religious persons played an important role in

the administration of Justice. The king, as the supreme judge, was believed to have been invested

with his office and authority by Zeus himself. Hesiod does not define justice, but the injustices

he denounces include: bribery, oath-breaking, perjury, theft, fraud, and the rendering of crooked

verdicts by judges.

Sophists were Greek lecturers, writers, and teachers in the 5th and 4th BCE who traveled

in the Greek speaking world and gave instructions on many topics for fees. Philosophy was

separated from religion by Sophists in the 5th BCE in Greece. For the Sophists law was

considered as a purely human invention, born of expediency and alterable at will. Protagoras (d.

411 BCE) asserted that man as an individual was the measure of all things. He took the view that

there are two opinions on every question. Antiphon (d. 411 BCE) stated that no one can violate

the laws of nature with impunity but one who violates a law of the state does not suffer either

Electronic copy available at: https://ssrn.com/abstract=4100520

punishment or dishonour if the violation remains undetected. Callicles proclaimed the right of

the strong as a basic postulate of natural as contrasted to conventional law. Nature in animal as

well as human life rests on the superiority of the stronger over the weaker. Thrasymachus (d. 399

BCE) laws were created by men and groups in power to promote their own advantages. Callicles

and Thrasymachus denounce the virtue of justice, dikaiosunê, as an artificial brake on self-

interest, a sham to be seen through by the wise.

Socrates (469-399 BCE), often referred to as the father of Western Philosophy was an

enigma, an inscrutable individual who, despite having written nothing, is considered one of the

handful of philosophers who forever changed how philosophy itself was to be conceived. All our

information about him is second-hand, most of it vigorously disputed, but his trial and death at

the hands of the Athenian democracy is nevertheless the founding myth of the academic

discipline of philosophy, and his influence has been felt far beyond philosophy itself, and in

every age. Plato thought that the Sophists have put justice upside down. He defined justice as “a

man should do his work in the station of life to which he was called by his capacities.” He was

convinced of the natural inequality of men. He believed in the classed system of society, that is,

gold, silver, iron, and copper. Plato (428/427-348-347 BC) learned from the mistakes of

Socrates. He stated that “The best thing of all is not full authority for laws but rather full

authority for a man who understands the art of Kingship and has wisdom”. He considered the

non-law state as the most perfect type of government but it required men of the highest wisdom

and infallibility of judgment. He proposed the “law state” as the second-best alternative for the

governance of man. He favoured written codes at the end of his life. Aristotle (384-322 BC) paid

more attention to the social conditions. To him the second-best alternative of state is a state

Electronic copy available at: https://ssrn.com/abstract=4100520

based on law as the only practicable means of achieving the good life. Rightly constituted laws,

should be the final sovereign. These laws should be sovereign on every issue.

The Stoic’s Law of Nature

Zeno (350-260 BCE), the founder of Stoicism, placed the concept of ‘nature’ in the center of

Stoics’ philosophical system. For him the whole universe consisted of one substance, and this

was reason. He considered reason as the basis of law and justice. Stoic philosophers developed a

cosmopolitan philosophy. Their ultimate ideal was a world-state in which all men would live

together harmoniously under the guidance of divine reason. Cicero, (his full name Marcus

Tullius Cicero, 106-43 BCE), the Roman, statesman, scholar, lawyer, and writer who vainly tried

to uphold republican principles in the final civil wars that destroyed the Roman Republic. He

considered reason as the dominating force in the universe. According to him, “[T]rue law is right

reason in agreement with nature; it is of universal application, unchanging and everlasting; it

summons to duty by its commands, and averts from wrongdoing by its prohibitions.” He

considered evil laws as not binding.

Early Christian Fathers

St. Augustine (354-430 C.E.) is considered in Roman Catholicism as a doctor of the Church. He

was born in North Africa and lived and died as a citizen of the late Roman Empire. He was

convinced that in a golden age of mankind, prior to man’s fall, an absolute ideal of the “law of

nature” had been realized. Men lived in a state of holiness, innocence and justice; they were free

and equal; slavery and other forms of dominion of men over other men were unknown. All men

enjoyed their possessions and goods in common and lived as true brothers under the guidance of

reason. Not even death existed at this period. He stated that man’s nature was vitiated by original

Electronic copy available at: https://ssrn.com/abstract=4100520

sin at the time of his fall. The absolute law of nature which had mirrored the perfection and

unqualified goodness of the human soul was no longer capable of realization. Reason has to

devise practical means and institutions to meet the new conditions. Government, law, property,

and the state appeared on the scene although products of sin in their roots, they were justified by

Augustine in the light of the deteriorated condition of mankind. He believed that Church was the

guardian of eternal law of God (lex aeterna), may interfere at will with these sinful institutions

and that it has unconditional sovereignty over the state. To him State was needed as a means of

keeping peace on earth. It must defend the church, execute its commands, and preserve order

among men by enforcing the worldly law (lex temporalis). In Augustine’s opinion the worldly

law must strive to fulfill the demands of the eternal law. If it contains provisions which are

clearly contrary to the law of God, these provisions are of no force and should be disregarded. In

The City of God Augustine argues that “Justice being taken away, what are Kingdoms but great

robberies?” He opined that at some time in the remote future, the civitas terrena, the mundane

commonwealth, would be replaced by the civitas dei, the commonwealth of God. In that

commonwealth; envisioned as a community of all the faithful and believing, the eternal law of

God would reign forever, and man’s original nature, contaminated by Adam’s transgression,

would be restored to full glory.

St. Thomas Aquinas (1226-1274 C.E.) was the greatest of the Scholastic philosophers of

the Middle Ages, and his teachings are considered as the most authoritative expression of the

theological, philosophical, and ethical convictions of Roman Catholicism. His views represented

an ingenious synthesis of Christian scriptural dogma and Aristotelian philosophy. He classified

law into lex aeterna or Divine law which is the divine reason and wisdom directing all

movements and actions in the universe. All things subject to divine providence are ruled and

Electronic copy available at: https://ssrn.com/abstract=4100520

measured by the eternal law. The lex aeterna is known in its entirety to God only. However,

exceptionally it is known to some blessed individuals. Ordinary human beings know it partially

through their faculty of reason. This participation of the rational creature in the cosmic law is

called natural law (lex naturalis) by St. Thomas. For him the natural law is merely an incomplete

and imperfect reflection of the dictates of divine reason, but it enables man to know at least some

of the principles of the lex aeterna. Natural law directs the activities of man by means of certain

general precepts. The most fundamental of these precepts is that good is to be done and evil to be

avoided. St. Thomas’ criteria for what is good and what is evil is that the voice of reason in us

(which enables us to obtain a glimpse of the eternal law) makes it possible for us to distinguish

between morally good and bad actions. According to St. Thomas, those things for which man has

a natural inclination must be apprehended as good and must be regarded as forming part of the

natural law. First, there is the natural human instinct of self-preservation, of which the law must

take cognizance. Second, there exists the attraction between the sexes and the desire to rear and

educate children. Third, man has a natural desire to know the truth about God, an inclination

which drives him to shun ignorance. Fourth, man wishes to live in society, and it is therefore

natural for him to avoid harming those among whom he has to live. It is obvious that natural law

according to St. Thomas consists of certain physical and psychological traits of human beings

and, in addition, of some dictates or reason which direct man toward the achievement of the

good. The latter are regarded by him as ‘natural’ in the same sense that the instinct of self-

preservation or the sex instinct are natural. He argues that “There is in every man a natural

inclination to act according to reason: and this is to act according to virtue. Consequently,

considered thus, all acts of virtue are prescribed by the natural law: since each one’s reason

naturally dictates to him to act virtuously.” Under this view, irrational antisocial, and criminal

Electronic copy available at: https://ssrn.com/abstract=4100520

acts are interpreted as morbid deviations from our normal nature, just as the innate instinct of

self-preservation may in some people and under certain circumstances be blotted out by an urge

to destroy one’s own life.

In St. Thomas scheme natural law is supplemented by additional directions from God as

to how men should conduct their lives. In his scheme this function is performed by the divine

law (lex devina) which is the law revealed by God through the Holy Scriptures and is available in

the Old and New Testaments. In Thomas’ view the last kind of law is the human law (lex

humana) which is an ordinance of reason for the common good, made by him who has care of

the community, and promulgated. In other words, Thomas incorporated the concept of reason

into his definition of law. For him, in order that a governmental mandate may have the quality of

law, it needs to comply with some postulate of reason. He argues that an unjust and an

unreasonable law, and one which is repugnant to the law of nature, is not a law, but a perversion

of law. Finally, in his view, an enactment which is arbitrary, oppressive, or blasphemous does

not bind in conscience, “except perhaps in order to avoid scandal or disturbance, for which cause

a man should even yield his right.” He believed that the right of resistance becomes a duty of

disobedience in the case of laws promulgated by tyrants which induce to idolatry or prescribe

anything else contrary to the divine law. He argues that law of this kind must not be observed,

because “we ought to obey God rather than men.”

It is interesting to note that Thomas was perhaps sent to Paris to counter the philosophical

thoughts of the Averroes/Ibn Rushd (1126-98 C.E.)1, the outstanding representative of Arabic

philosophy in Spain, who was known as the great commentator and interpreter of Aristotle and

1
His full name in Arabic is Abū al-Walīd Muḥammad ibn Aḥmad ibn Muḥammad ibn Rushd.

Electronic copy available at: https://ssrn.com/abstract=4100520

whose philosophy was just becoming known to the Parisian masters. From 1266 C.E. on, the

quality of Averroës’s exegesis and the wholly rational bent of his thought began to attract

disciples in the faculty of arts at the University of Paris. One of the main targets of Thomas at

Paris was Siger de Brabant (1240-1281 C.E.) – philosopher at the University of Paris, who along

with his colleagues inaugurated purely rational lectures that reinterpreted the works of Aristotle

without regard for established teachings of church. This was blended with the teachings of other

philosophers such as Proclus (410-485 C.E.), Avicenna (980-1037 C.E.), and Averroes. Thomas

Aquinas rose in protest against his colleagues; nevertheless, the parties retained a mutual esteem.

From 1266, when his name first appears, to 1276, Siger was prominent in the disputes at Paris

over Aristotelianism. Bonaventure, the minister general of the Order of Friars Minor, and

Aquinas, head of the Dominicans, both attacked Siger’s teachings. In 1270 the bishop of

Paris, Étienne Tempier, condemned 13 errors in the teaching of Siger and his partisans. Six years

later the inquisitor of the Roman Catholic Church in France summoned Siger and two others

suspected of heterodoxy, but they fled to Italy, where they probably entered an appeal before the

papal tribunal. In 1277 the masters of Paris, the highest theological jurisdiction in the church,

condemned a series of 219 propositions; 12 of these propositions were theses of Thomas. This

was the most serious condemnation possible in the Middles Ages; its repercussions were felt in

the development of ideas. It produced for several centuries a certain unhealthy spiritualism that

resisted the cosmic and anthropological realism of Aquinas. Thomas had spent most of his life as

a teacher in universities at Paris, Roman Curia, Paris again, and Naples. It seems that in the

young universities all the ingredients of a rapidly developing civilization were massed together,

and to these universities the Christian church had deliberately and authoritatively committed its

doctrine and its spirit. In this environment, Thomas found the technical conditions for

Electronic copy available at: https://ssrn.com/abstract=4100520

elaborating his work—not only the polemic occasions for turning it out but also the enveloping

and penetrating spiritual milieu needed for it. It is within these contexts and environment that it

is possible today to discover the historical intelligibility of his work, just as they supplied the

climate for its fruitfulness at the time of its birth. Thomas was canonized a saint in 1323,

officially named doctor of the church in 1567, and proclaimed the protagonist of orthodoxy

during the modernist crisis at the end of the 19th century. However, one cannot obliterate the

historical difficulties in which he was embroiled in the 13th century during a radical theological

renewal – a renewal that was contested at the time and yet was brought about by the social,

cultural, and religious evolution of the West. Thomas was at the heart of the doctrinal crisis that

confronted Christendom when the discovery of Greek science, culture, and thought seemed about

to crush it.

Thomas might have incorporated the element of reason into the definition of law perhaps

to counter the blended philosophy of Siger and Averroes but this amalgamation became

problematic. If reason becomes the master of right and wrong then, reason would differ from

person to person and what is wrong to one person might be considered right to another. This is

the reason why Thomas’ philosophy provided the tool for the secularization of natural law for

too many people. In other words, Thomas is blamed for the secularization of natural law.

Conclusion

To sum up the above discussion, according to Homer and Hesiod the Olympian god Zeus gave

law to mankind. To Zeus law was the order of peace founded on fairness, obliging men to refrain

from violence and to submit their disputes to an arbiter. At the time of old Greeks law and

religion were mixed and religious persons played a vital role in the administration of Justice. The

king, as the supreme judge, was believed to have been invested with his office and authority by

Electronic copy available at: https://ssrn.com/abstract=4100520

Zeus himself. Philosophy was separated from religion by Sophists in the 5th BCE in Greece. For

the Sophists law was considered as a purely human invention, born of expediency and alterable

at will. Callicles, Sophist philosopher proclaimed the right of the strong as a basic postulate of

natural as contrasted to conventional law. Nature in animal as well as human life rests on the

superiority of the stronger over the weaker. Plato was convinced of the natural inequality of men

and believed in the classed system of society, that is, gold, silver, iron, and copper. He

considered the non-law state as the most perfect type of government but it required men of the

highest wisdom and infallibility of judgment. He favoured written codes at the end of his life.

Cicero, considered reason as the dominating force in the universe.

According to St. Augustine, law, property, and the state appeared on the scene although

products of sin in their roots, they were justified by Augustine in the light of the deteriorated

condition of mankind. He believed that church was the guardian of eternal law of God (lex

aeterna), therefore, it may interfere at will with these sinful institutions and that it has

unconditional sovereignty over the state. To him State was needed as a means of keeping peace

on earth. It must defend the church, execute its commands, and preserve order among men by

enforcing the worldly law. According to St. Thomas, ordinary human beings know eternal law

partially through their faculty of reason. This participation of the rational creature in the cosmic

law is called natural law (lex naturalis). For him the natural law is merely an incomplete and

imperfect reflection of the dictates of divine reason, but it enables man to know at least some of

the principles of the lex aeterna. St. Thomas has incorporated the element of reason into the

definition of law which eventually led to the secularization of natural law as people started

judging good and bad through their own reason. Thus, what was reasonable to one was

unreasonable to another. This weakened natural law.

Electronic copy available at: https://ssrn.com/abstract=4100520

Electronic copy available at: https://ssrn.com/abstract=4100520