From Aquinas to Ricoeur on the law

THE Summa Theologica, Thomas of Aquino’s magnum opus (and truly magnum in ponderousness as well as thematic breadth), was never finished. It was a “victim” of his mystical experience convinced him all he had written — which meant, practically his entire life’s work, as he wrote volumes and did not live to be old — was “as straw.”

It was left to Reginaldo da Piperno, one of his students, to finish the Summa — Part 3 — with selections from other works of Aquinas. But right at the center of Thomas’ — what is classically cited as Summa Theol. Ia-IIae, Q. 90, A.1, read as “Summa Theologica, First Half of the Second Part, Question 90, Article 1” begins his “Treatise on Law.” Nothing in the life of Aquinas suggests he was a lawyer. He neither went to court to argue cases and appeared to negotiate on behalf of clients. Each Question in the Summa takes four to five, sometimes more, articles and the Treatise on Law turns from Question 90 to Question 109. If one attempts to spite Aquinas’ legal scholarship by dismissing his writing as ruminations on “the law of God,” then quite clearly one has not read the Summa. It is from this work we get the classic definition of law: “an ordinance of reason promulgated by one in charge of society for the common good.” From this succinct, lapidary formulation, the following crucial elements emerge: first, that law is an ordinance, not a request, not a suggestion, not advice, but an order; second, it has to be reasonable — in conformity to the dictates of right reason; third, it must be promulgated, which is the basis for the requirement of the Civil Code laws become effective only following completion of their publication; fourth, they issue only from authority — otherwise, orders issued by a hijacker with an Uzi on one hand and a grenade on the other would constitute law; fifth, these orders be for the common good. Beyond his Treatise on Law, when he takes the cardinal virtues, he gives plenty of attention to justice. Note the questions he takes under the heading of Justice: Of Justice, Of Injustice, Of Judgment, Of the Parts of Justice, Of Restitution, Vices Opposed to Distributive Justice, Of Murder, Of Other Injuries Committed to the Person, Of Theft and Robbery, Of the Injustice of a Judge in Judging, Of Matters Concerning Unjust Accusation, Of Sins Against Justice on the Part of the Defendant, Of Injustice with Regard to the Person of the Witness, Of Injustice in Judgment on the Part of Counsel. Those are the Questions. Question 67, takes up the issue of Injustice of a Judge, Article 1 and raises the matter “whether a man can justly judge one who is not subject to his jurisdiction.” And in the Second Article of Question 71 takes up the role of counsel, he asks “whether it is fitting the law should debar certain persons from the office of advocate.”

Certainly, Aquinas was not content with reflections in broad strokes on the nature of law. He delved into questions that, under our present-day categories, would fall under civil law, criminal law, remedial law and judicial ethics.

Jurgen Habermas, for his part, in Between Facts and Norms, expounds on what he calls his contribution to a “discourse theory of law and democracy.” But one finds him taking up the themes of political law: the constitutional state, the nature of the legislature, the judicial discourse, including the counter-majoritarian difficulty. The second half, in fact, of this volume is an academic treatise on political law.

Paul Ricoeur’s volume, Le Juste, is slender — but powerful. He discusses the nature of due process and the role of courts. He examines the concept of penalty and sanction and offers alternatives to prevailing, unsatisfactory theories. He questions whether a purely procedural concept of justice is possible.

The point to all this is that there have been men (and women) who have continued the traditions started by the universities of Bologna, Paris, Oxford, Cambridge, Leiden, Salamanca gave the Corpus Juris Civilis attributed to Justinian its “second lifetime,” not really as the law of an empire but as a subject of academic discourse, study, debate, research and publication. In fact, in the broad field of study called “social science,” one should be able to situate the law as one of the elements in the ordering and cohesion of society. Approaching these scholars — called jurisconsults — when one gets into legal trouble is asking for even more trouble. They may not even know what a courtroom looks like, nor what the procedure of entering an appearance may be. That is not their ken, nor is it their interest. But they will be able to make sense of the requirement that summons be properly served, relating to the requirement of due process, and ultimately, to the elemental demand of fairness. A legal scholar will interest himself likewise in the origin of legal provisions: their provenance and evolution, to be better able to understand the provisions as they presently stand in our statute books. What was the origin of equitable remedies? What is the reason for the oft-cited principle in jurisprudence that “certiorari is not a substitute for a lost appeal?”

It might be thought such scholars serve no useful purpose. Well, indeed, hardly any truly scholarly engagement serves any direct useful purpose. The difference between theory and practice has always been recognized. But in Roman times, jurisconsults advised praetores and the iudices who were the “practical” persons. And when one inquires into the evolution of law, the development of legal concepts and categories, the formulation of characterization and classification, much will be owed without doubt not to those engaged in the oratory and jousts of court but to the silent diligence of scholars in libraries, buried in tomes and publications and engaging in exchanges with other scholars through publications or academic congresses and convocations.

There are and should be such persons as legal academics in the tradition of the jurisconsults of old.