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LEX INIUSTA NON EST LEX Laws on Trial in Aquinas' Court of Conscience By NORMAN KRETZMANN
INTRODUCTION LAWS OF A STATE are understandably described as the state's system of justice, but there is nothing unusual about a citizen's deciding that some law of the state is unjust. As Hart puts it, "We think and talk of 'justice according to law' and yet also of the justice or injustice of laws."' Of course people disagree over their individual assessments of laws as just or unjust, at least in part because they are applying different moral standards. But disagreement among individuals over the moral assessment of laws is something I want to ignore in order to focus on the underlying disagreement between a moral system and a legal system; so I'm going to proceed on the basis of a single set of moral standards. And since I'm primarily concerned with Aquinas' treatment of disagreements between morality and law, I'll adopt his moral system for purposes of this investigation. From Aquinas' point of view, morality has an essential connection with Christian theology, and civil legislation is a prerogative of the state. For those reasons, in the questions with which I'll begin this investigation the individual citizen could be thought of as a Christian, and the questions could be seen as raising issues of Church and State as well as of morality and law. But for purposes of this investigation Aquinas' theologically based moral and legal philosophy can be almost entirely secularized, as we'll see. Is an individual citizen entitled or obliged to decide whether a law of the state is unjust? If so, on what grounds is he or she supposed to make the decision? And if an individual citizen has decided on appropriate grounds that a law of the state is unjust, what is he or she entitled or obliged to do about it?

THE

THE DISMISSIVE JUDGMENT REGARDING UNJUST LAWS

Several familiar issues are apparent in those questions. There is bound to be controversy over an individual's right to take action against laws

1. H.L.A. Hart, The Concept of Law (Oxford: The Clarendon Press, 1961), p. 7.

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he or she considers unjust, or even to pass judgment on the laws of the state. But the issue I'm concerned with now is less apparent, obscured by its association with the undoubted fact that people are sometimes convinced that a law under which they live is unjust and are particularly angry that their system of justice itself should be flawed in that way. This issue arises because people with such convictions sometimes express them in a radically negative judgment, dismissive of morally bad legislation. Plato provides what is probably the oldest instance of this dismissive judgment when he declares, in the Laws, that "enactments, so far as they are not for the common interest of the whole community, are no true laws" (IV 715B). In other words, laws that fail to fulfill a certain moral condition are not full-fledged laws even if they are on the books. (Plato says things like this elsewhere about lawse.g., Hippias major 284D-and about constitutions-e.g., Laws IV 712E-713A and Statesman 293D-E-but the passage I've quoted is the clearest and most appropriate for my purposes.) Aristotle, too, expresses the dismissive judgment about certain forms of government or constitutions-e.g., in Politics IV 4, 1292a31-34: "it would seem to be a reasonable criticism to say that such a democracy is not a constitution at all"; and he links this judgment with an assessment of individual laws when he says that laws in conformity with perverted constitutions are necessarily unjust (III 6, 1282/b12-13). And Cicero, in his treatise on laws, provides what may be the fullest pre-Christian statement of the dismissive judgment: "those who formulated wicked and unjust statutes for nations, thereby breaking their promises and agreements, put into effect anything but laws. It may thus be clear that in the very definition of the term 'law' there inheres the idea and principle of choosing what is just and true." 2 But for my purpose in this investigation of Aquinas' philosophy of law the only relevant instance of the dismissive judgment earlier than Aquinas' is Augustine's, the only one Aquinas explicitly cites (with approval). Augustine's famous expression of the dismissive judgment occurs in a speech of his own in his dialogue with Evodius on freedom of choice: "A soldier is even ordered by law to kill the enemy, and if he hangs back from the slaughter, he is punished by his commander.

2. De legibus II v 11, cited by John Finnis in his Natural Law and NaturalRights (Oxford: The Clarendon Press, 1980), p. 363. Finnis also cited relevant passages from Plato and Aristotle, but my choices (based on a cursory survey) are in some respects different from his. The opening sections of my paper owe something to Finnis's Ch. XII, "Unjust Laws," the thesis of which strikes me as largely correct.

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Shall we dare to say that those laws are unjust-or, rather, no laws at all? For that which is not just does not seem to me to be a law" ("lex mihi esse non videtur, quae iusta non fuerit" De libero arbitrio I v 11).1 Aquinas, who did at least as much as anyone else to make this Augustinian passage famous, quotes only the last sentence of it and omits the words "to me.'" Without the context and without those words Augustine's expression of the dismissive judgment sounds more general and more confident than it originally was, and it is Aquinas' stronger version of it that has attracted most critical attention in recent legal philosophy. The immediate target of that attention is the form of words typically used to express the dismissive judgment, and the issue I'm concerned with has most often been generated around an expression of the judgment even less tentative than Aquinas' version of Augustine, in the slogan "An unjust law is not a law," quoted by British and American writers almost as often in Latin: "Lex iniusta non est lex." I haven't seen this non-est-lex slogan in Augustine or Aquinas in just those words, and I don't know who coined it. 5 But the tradition of the controversy makes it convenient to adopt non est lex as the standard expression of the dismissive judgment regarding a law. Setting fine points aside temporarily, I think Plato, Aristotle, Cicero, Augustine, and Aquinas 6 are among those who would apply non est lex to morally bad laws.

3. Finnis, op cit., p. 363: "St. Augustine in his early dialogue on Free Will makes one of his characters say, rather breezily, 'a law that was unjust wouldn't seem to be law'." Finnis misquotes the Latin, omitting the "mihi" between "lex" and "esse" (as Aquinas regularly does also). Notice that his translation is debatable, that the character into whose mouth the speech is put is also the author of the dialogue, and that "rather breezily" is an exaggeration. 4. See, e.g., ST IaIIae q. 96, a. 4. 5. I have seen it attributed to Augustine, but without a specific reference-e.g., ... saying with Augustine, 'Lex inuista [sic] non est lex,' " Kai Nielsen, "The Myth of Natural Law," in Sidney Hook, ed., Law and Philosophy (New York: New York University Press, 1964, p. 139; see also n. 9 below. When Hart first introduces 'An unjust law is not a law' in The Concept of Law, his reference is " 'Non videtur esse lex quae justa non fuerit': St. Augustine I, De Libero Arbitrio, 5; Aquinas, Summa Theologica Qu. xcv, Arts. 2, 4." (p. 8, n. 1). The Latin is a misquotation and Aquinas does not use the Augustine passage in ST IaIIae q. 95, a. 4. But what's worth noting is that Hart evidently knows of no better source than the Augustine passage for 'An unjust law is not a law' (which he cites in Latin-"Lex iniusta non est lex"-on p. 152). 6. Not everyone would agree that Augustine and Aquinas belong in this list. In his article "The Essence of Law According to Thomas Aquinas," The American Journal of Jurisprudence30 [1985], pp. 79-96, Edward J. Damich observes that "Positivists criticize naturalists for maintaining that an unjust law is not a law at all. But not all naturalists assert the truth of this statement. Thomas Aquinas ... maintains that unjust laws seem not to be laws at all" (p. 79). And since the word "seems," the

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As for the issue that has grown up around the slogan, it can be effectively introduced as Hart presents it: "the assertion that 'an unjust law is not a law' has the same ring of exaggeration and paradox, if not falsity, as 'statutes are not laws' or 'constitutionallaw is not law'." 7
NON EST LEX: THE SLOGAN AND THE ISSUE

But there is something wrong with the way an issue has been generated around the non-est-lex slogan. Its form of words has been exploited, because the expression of the judgment (in Aquinas' predecessors, in the slogan, and to a great extent even in Aquinas himself) seems to be genuinely uncontroversial, no more than a familiar device for expressing emphatic rejection in cases of a sort I think I can pick out, at least roughly. Many kinds of things have inclusion conditions that are entirely nonevaluative. For instance, it seems reasonable to suppose that no natural kinds have evaluative conditions among their standard inclusion conditions. There are also non-natural, conventional kinds whose inclusion conditions are entirely non-evaluative-e.g., iambic pentameter, or employee. On the other hand, some conventional kinds have evaluative as well as non-evaluative conditions of inclusion. Among these kinds some are overtly and invariably evaluative kinds-e.g., literary masterpiece, or child prodigy. But the cases important for my purposes are cases of conventional kinds that have both non-evaluative and evaluative inclusion conditions without being overtly and invariably evaluative kinds-e.g., sonnet, 'or archeologist. It is only in connection with such kinds, I think, that the dismissive judgment is appropriate. It might be expressed simply as "That's no sonnet," "He's no arche-

cornerstone of Damich's thesis, comes into Aquinas' Treatise on Law via his quotation of the passage from Augustine's De libero arbitrio, Damich would presumably exclude Augustine as well from among the adherents of non est lex. But it is a mistake to rest such a thesis on an emphasized English word that picks up only one ordinary sense of the Latin word "videtur," which can (and in the Augustine passage pretty clearly does) also have the sense of the English phrase "is evidently." Damich goes even further, claiming that "if we examine the writings of Thomas Aquinas . . . we cannot find a single passage in which he declares without qualification that unjust law is not a law at all" (p. 80). But in discussing unjust laws in the Treatise on Law itself Aquinas says, for example, that they "are instances of violence ratherthan laws" and, again, "an unjust law . . . does not have the nature of law, but, rather, of a kind of violence". I came across Damich's article only after I had written mine; while he and I agree in thinking that Aquinas' position can and should be defended against some of the criticism leveled against it in recent legal philosophy, our tactics are ouite different. 7. Op. cit., p. 8; emphasis added.

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ologist." But such sentences will express the dismissive judgment I'm
concerned with only if they are applied to instances that fulfill the non-evaluative conditions for inclusion in those kinds, only if they can be backed up in such ways as these: "A banal sonnet is not really a sonnet, despite the fact that it has the prescribed meter, rhyme scheme, and number of lines"; "An imprecise archeologist is not really an archeologist, despite the fact that he is a professor of archeology and regularly publishes the results of his excavations." It would of course be absurd to infer that someone who says that an imprecise archeologist is not really an archeologist means to deny the possibility or even the existence of imprecise archeologists. One way of bringing out the absurdity is to notice that the same kind of emphatic rejection could have been expressed by saying that an imprecise archeologist is worse than no archeologist at all. The stereotypical rejection speech "You're no son of mine!" would lose its dramatic point if the furious father weren't sure the young man was indeed his son in all non-evaluative respects.' Dismissive judgments of these familiar sorts are, I think, not even exaggerations, much less paradoxes. If I'm right in thinking that the conditions of being included in certain kinds involve implicit evaluative conditions, then a dismissive judgment applied to a technically certifiable instance of one of those kinds can and should be interpreted straightforwardly as emphatically denying that x is really k just because x is 0 only technically, just because x is not a true, genuine, paradigmatic 0, not 0 simpliciter, in virtue of lacking one or more of the evaluative inclusion conditions that supplement the non-evaluative conditions. It seems that evaluative inclusion conditions may be associated primarily with kinds of things that have a recognized function of a sort that directly affects human beings, and that the dismissive judgment is likely to be expressed by someone who believes that the thing being dismissed does not perform that function. 9

8. Cf. J. R. Pennock, Democratic Political Theory, (Princeton, N.J.: Princeton University Press, 1979), p. 11: "The practice of having both an ideal and a practical or technical definition, the first of which tends to be substantive and the second for-

mal or procedural, is by no means uncommon. For instance, we might say of a university

properly incorporated and authorized to grant degrees by the appropriate authority (in the United States, a state or the federal legislature), that even though it is technically a university, it is not 'really' a university, because it has no graduate schools, or those it has are so poor that they are not worthy of the name, or for some like reason." (I am grateful to David Lyons for calling this passage to my attention.) 9. It should be noted that natural (or other) kinds that would ordinarily lack a humanly important function can easily be assigned one. In ordinary circumstances a maple leaf's function is not humanly important, and so the dismissive judgment does not ordinarily apply to damaged maple leaves on maple trees. But if the leaves

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But whatever the explanation of these differences among kinds may turn out to be, I think that law is a kind just like sonnet and archeologist in the relevant respects, a kind that has both non-evaluative and evaluative inclusion conditions without being overtly and invariably an evaluative kind, a kind that has a humanly important function, a kind in connection with which the dismissive judgment is therefore appropriate. And I think it is even clearer that the point of applying the dismissive judgment to a law is to provide moral people with a basis for disobeying that law in good conscience. But philosophers confronting non est lex tend to react to it as if that dismissive judgment were the only one they'd ever encountered, and as if it gave rise to absurd conclusions such as no one would think of drawing from other dismissive judgments except facetiously. Arthur Danto, for instance, sets out to embarrass "the Thomistic defenders of natural law" over "their dictum 'there cannot be an unjust law'. '" ' Since he identifies no other source for this alleged dictum, he is presumably taking the non-est-lex slogan to imply that there cannot be an unjust law. But of course it doesn't. In fact, as we've seen, the dismissive judgment presupposes that the dismissed instance technically is a thing of the kind in question." Hart, on the other hand, points to the non-est-lex slogan as evidence that "the Thomist tradition" is committed to "a refusal, made once and for all, to recognize evil laws as valid for any purpose. This is too crude a way with delicate and complex moral issues." 2 Although this inference of Hart's is less rash than Danto's, in allowing that the tradition can identify the objects of its dismissive judgment as evil laws,

are being considered as specimens for an exhibit, they have been assigned a humanly important function, in which case a damaged maple leaf might very well be dismissed with the judgment "That's no maple leaf!" (I'm grateful to Sydney Shoemaker and
Robert Stalnaker for helpful suggestions about these classifications of kinds.) 10. "Human Nature and Natural Law," in Hook, op. cit., pp. 187-199; p. 187 (quoted in Finnis, op cit., p. 364). 11. In his "Letter from Birmingham City Jail," (April 16, 1963), Martin Luther King clearly employed the non-est-lex slogan as an expression of the dismissive at-

titude in a context which shows that it is not only compatible with but really entails the acceptance of the existence of unjust laws: "There are just laws and there are
unjust laws. I would be the first to advocate obeying just laws. One has not only

a legal but moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with Saint Augustine that 'An unjust law is no law at all'." Quoted in Wolfgang Friedmann, "An Analysis of [H. A. Rommen's] 'In Defense of Natural Law'," in Hook, op cit., pp. 144-160; p. 152. 12. Op. cit., pp. 152 and 206-07; emphasis added.

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NORMAN KRETZMANN we will see that Hart's inference, too, is quite unjustified, at least as regards Aquinas himself. 3 We can learn more about the generation of the non-est-lex issue around the non-est-lex slogan by looking at the way it is carried out by David Lyons. Lyons expresses himself more cautiously than either Danto or Hart does, beginning with what seems to me to be just the right line: "The idea that law and morality are essentially connected is expressed by the claim that 'an unjust law is no law at all.' This claim is associated with traditional ideas of 'natural law,' and . . . is suggested by Aquinas. The claim appears paradoxical, for it seems to say that something which is law (unjust law) is not law. But that is misleading. It may be like the claim that a counterfeit dollar is not a real dollar: an unjust law is so much a perversion of the idea of law that it cannot be counted as a law at all. That would dissolve the paradox." I think Lyons is right to reject the idea that there is anything paradoxical in the non-est-lex slogan. But his counterfeit dollar example gives him unnecessary trouble just because a counterfeit dollar is not a dollar in any respect, any more than a female impersonator is a female. It is a counterfeit, and not a perversion. Perverted instances of a kind-such as plagiarized term papers, corrupt judges, or fairweather friends-instances that satisfy the non-evaluative but not the evaluative inclusion conditions, will turn out to be more appropriate than counterfeit dollars as analogues to unjust laws as assessed by the non-est-lex slogan. The unnecessary trouble Lyons' example leads him into appears in the continuation of the passage I'm quoting, where, having dismissed the notion that the slogan is paradoxical,he suggests that it must, nevertheless, be obviously false: "But can the claim be true? It seems difficult to deny that laws can intelligibly be judged good or bad, wise or foolish, just or unjust. If there are moral standards by which laws may properly be judged, then it would seem that laws can be good or bad, just or unjust. . . . Aquinas' apparent endorsement of this traditional natural law claim is itself misleading, since he agrees that laws framed by humans are either just or unjust.""' It seems to me that when Lyons noticed that Aquinas does indeed recognize the existence of unjust laws, he ought to have considered that Aquinas' in-

13. Hart has, however, often drawn inferences as rash as Danto's. See Finnis's collection of them, op cit., p. 364. 14. Ethics and the Rule of Law (Cambridge: Cambridge University Press, 1984), pp. 62-63.

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terpretation of the slogan must have been different from his, rather than inferring that Aquinas' endorsement of the slogan was misleading. But I think I'll be able to show how the non-est-lex slogan can after all be true, and that Aquinas' endorsement of it is not misleading when considered in more detail. The way contemporary philosophers have generated the non-est-lex issue out of the non-est-lex slogan expresses the spirit of legal positivism, which can be traced back at least as far as the English jurist John Austin (1790-1859), who sums up its leading idea in these words: "The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry."' 5 Here is Austin's own diatribe against non est lex as he discerned it in Blackstone: "Now, to say that human laws which conflict with the divine law are not binding, that is to say, are not laws, is to talk stark nonsense. The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals. Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God, who has commanded that human lawgivers shall not prohibit acts which have no evil consequences, the Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have impugned the validity."' 6 Like Danto in our time, Austin reads the nonest-lex slogan as if it entailed the absurd claim that unjust laws are never promulgated or enforced, and then takes himself to have refuted the slogan by pointing out in patronizing detail the undoubted fact that they sometimes are. Austin's attempted refutation of non est lex is as silly as it would be to try to contradict the dismissive judgment that a plagiarized term paper is not really a term paper by pointing out that plagiarized papers do get turned in as term papers and are sometimes accepted as term papers. To call the claim that unjust laws are never promulgated or enforced absurd is of course not yet to show that Aquinas didn't make that claim or say things that imply it. But even in our necessarily brief investigation of Aquinas' treatment of the questions regarding a citizen's appraisal of the laws of the state we'll see that his philosophy of law is not guilty as charged. Correctly understood, the non-est-lex slogan
15. The Province of JurisprudenceDetermined (first published 1832; reprinted, with Introduction by H. L. A. Hart, London, 1954), p. 184. 16. Op. cit., p. 185; quoted by Finnis, op. cit., pp. 354-355; emphasis added.

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NORMAN KRETZMANN is neither absurd nor even inflammatory, but commonsensical and useful. The fervor and frequency of the attacks on it by philosophers of law is explained to some extent by its association with the concepts of natural law or even of divine law, which are of course anathema to legal positivism and unfashionable to boot. We have seen some of the attackers suggesting such an association, and what they were suggesting certainly is at the heart of Aquinas' philosophy of law, to which we can now turn.
THE FOUR TYPES OF LAW AND THE INTERRELATIONS

Everything Aquinas has to say about law rests on his classification of law into four types and his understanding of the relationships among those types. Eternal law is the foundation of the other three types and can be thought of as God's plan, God's providence, God's intellect, or simply God himself conceived of as the ruler of the universe. The laws of physics as well as the principles of morality are completely included within the eternal law, which human beings know only very incompletely and often uncertainly. Absolutely every sort of rational law or principle derives more or less directly from the eternal law, whether or not it is recognized as having that source." Naturallaw occurs only in human beings, in the form of innate principles of rational action, and is explained as a (very limited) participation in the eternal law, appropriate for a rational creature since "it is itself a participant in providence, providing both for itself and for others.'"I Human law, broadly speaking, is just what you'd expect it to be: the legislation devised by human beings for their organization and governance. To the extent to which human laws are rational, they depend on principles of natural liw either as conclusions inferred from premises (as in legislation against murder) or as particular determinations of general principles of rational action (as in legislation regulating traffic).' 9 Divine law, the fourth and last of these basic types, consists in the moral and legal contents of Scripture, expressly revealed elements of the eternal law intended as aids to human life and as indispensable guides to what Aquinas sees as the ultimate, supernatural goal of human existence and action.20 My investigation from now on will be concerned almost exclusively
17. 18. 19. 20. See ST See See esp. ST lallae q. esp. ST esp. ST lallae q. 91, a. 1, and q. 93. 91, a. 2; see also esp. q. 94. lallae q. 91, a. 3, and qq. 95-97. lalIae q. 91, aa. 4 & 5, and qq. 98-108.

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with natural law and human law, especially human law. The role of eternal law in this scheme will not concern me much and can for present purposes be understood in terms of the universal applicability of general principles of rationality. Divine law will play only a very small part in the rest of this investigation.
AQUINAS' CONCEPTION OF NATURAL LAW

It is human nature to which natural law is natural, and human nature, or rational animality, is a set of essential potentialities associated with inclinations to actualize those potentialities. We all recognize in ourselves inclinations that we have in common with other living things, as well as natural but distinctively human inclinations. Because we naturally have such inclinations, we naturally recognize the objects of those inclinations as good to get and as bad to be deprived of. The innate precepts of natural law can be thought of as more or less articulate injunctions corresponding to such natural recognitions. As such, they are the fundamental directives of human action, founded directly on the principles of practical reason. Here is how Aquinas introduces the most fundamental of those principles and precepts: "The first thing that comes to the attention of the practical reason, which is oriented toward action, is what is good; for every agent acts for an end which has the nature of a good. And so the first principle in practical reason is the one that is founded on the nature of the good: The good is what all things seek. Therefore, the first precept of law is this: What is good is to be done and pursued; what is bad is to be avoided. All the other precepts of natural law are founded on this, so that all the things that practical reason naturally recognizes as human goods pertain to precepts of natural law as things to be done (or to be avoided)." 2 ' And here is his account of the connection of the precepts with the inclinations, in which we can also see at least suggestions of some less general, secondary precepts: "The order of the precepts of natural law follows the order of natural inclinations. For in a human being there is, first of all, an inclination toward a natural good which he shares with all substances, insofar as every substance seeks the preservation of its being according to its own nature. In keeping with this inclination, conditions in which a human being's life is preserved and its contrary is prevented pertain to natural law. Second, there is in a human being an inclination toward certain more specific [goods], an inclination he shares with other
21. ST Iallae q. 94, a. 2.

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NORMAN KRETZMANN animals. In this connection those things that nature has taught to all animals are said to belong to natural law, such as the mating of male and female and the raising of offspring. Third, there is in a human being an inclination to what is good according to the nature of reason, an inclination that is his alone-e.g., a person has a natural inclination to find out the truth about God, and to live in society. In this connection things that have to do with an inclination of that sort pertain to natural law-e.g., that a person avoid ignorance, that he not offend others with whom he has to live, and the like.''22 Our unhesitating recognition of the unjustness of the Nazis' laws regarding Jews or of nineteenth-century America's laws regarding blacks could, therefore, be explained in terms of our natural adherence to precepts of natural law innate in us. Since we're heading toward a consideration of issues raised regarding a conscientious individual's assessment of his community's laws, and since Aquinas, like most of us, thinks of that assessment as carried out at least initially in an individual's conscience, it is important to note the essential connection between natural law and conscience in Aquinas' view: "Conscience is called the law of our intellect insofar as it is a dispositional state containing the precepts of natural law, which are the first principles of human actions." 2 As principles of human action, the precepts of natural law are the fundamental moral rules. And since we've already noted that Aquinas takes human laws to depend on precepts. of natural law, it may look more and more as if he must conceive of human laws as no more than derived moral rules. If he does conceive of them in that way, the nonest-lex issue will get a new lease on life, since an unjust moral rule is not merely a perversion, like an unjust law, but a counterfeit, a contradiction in terms. But Aquinas does not conceive of human laws as no more than moral rules, as can be seen from the following passage, in which he is discussing the relationship between natural and human law: "It is on the basis of the precepts of natural law, as from general and indemonstrable principles of a certain sort, that human reason must proceed to certain matters that must be dealt with in more detail. And those detailed dispositions, arrived at in accordance with human reason, are called human laws, provided that the other conditions that

22. Ibid. 23. ST Iallae q. 94, a. 1, ad 2. The word I have translated "conscience" here is actually "synderesis," not "conscientia." Aquinas draws a technical distinction between synderesis and conscience (ST Ia, q. 79, aa. 12 & 13), but it is irrelevant in this context.

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pertain to the essence of law have been met." 2 4 Appropriate derivation from the precepts of natural law-i.e., the fundamental moral rules-is not by itself a sufficient condition for inclusion in human law; and so it is already apparent that Aquinas does not identify human laws with moral rules.
DEFINITION AND EVALUATION IN AQUINAS' TREATISE ON LAW

A philosopher who, like Aquinas, seriously invokes anything like non est lex in assessing a law must be basing his assessment on a putatively complete list of inclusion conditions for law. Aquinas develops such a list in his "Treatise on Law," which occupies Questions 90-108 of Summa theologiae IaIIae. The last part of the Treatise, Questions 98-108, deals specifically with divine law and has very little to contribute to the issues we are concerned with now. Definitional and evaluative passages occur together throughout Questions 90-97, but Questions 95-97 deal with human laws in general (q. 95), with the power of human laws (q. 96), and with their alterability (q. 97); and so the greatest concentration of evaluative claims occurs there. But by that stage of the Treatise, Aquinas has already conducted an investigation of law's essential characteristics, and so the most important definitional passages are naturally clustered in Questions 90 (the essence of law), 91 (the kinds of law), and 92 (the effects of law). (Questions 93 and 94 deal with the eternal law and the natural law, respectively.) Nowhere in the Treatise do we get a unified, complete list of inclusion conditions, however. We have to assemble such a list ourselves out of conditions Aquinas lists in various definitional passages or appeals to in evaluative passages.
INCLUSION CONDITIONS FOR LAW

At the end of the Question on the essence of law, Aquinas announces that from the four articles of the Question we can put together "a definition of law: Law is nothing other than an ordinance of reason directed toward the common good, promulgated by one who has responsibility for the community."2 5 Near the beginning of the next Question, on the kinds of law, he invokes that definition in these words: "Law is nothing other than a dictate of practicalreason in a sovereign (princeps)who governs a complete community." 26 Although the phrase
24. Q. 91, a. 3.

25. Q. 90, a. 4. 26. Q. 91, a. 1.

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"nothing other than" in both of these definitional passages appears to guarantee completeness, each of them contains at least one inclusion condition the other omits. 27 Drawing on both of them, we can extract the following inclusion conditions for law: (A) a directive of reason, (B) aimed at the common good, (C) promulgated by the government, (D) pertaining to a complete community. These four conditions did get mentioned in the four articles of Question 90,28 but so did at least two others, which were not included in either of the definitional passages: (E) leading people to or restraining them from certain actions,29 (F) having coercive power.3" I suppose that (E) could be thought to be entailed in the notion or an ordinance, a dictate, or a directive in (A), and I'm not sure it isn't. But (F) strikes me as clearly not entailed in that notion or in the notion of the government (the sovereign, the one responsible for the community) in (C), and those are the only likely places to look for it in the first four conditions. So to be on the safe side it seems right to say that by the end of the Question expressly devoted to the essence of law Aquinas has provided us with these six inclusion conditions. The fact that each of them appears again in later Questions is strong confirmation for including all six in the list. 3 ' A seventh inclusion condition is employed more than once after those

27. The facts that there are discrepancies between these two occurrences of the "definition" and that some inclusion conditions frequently employed by Aquinas are entirely omitted from the "definition" suggest that it is only a loose summation. His applications of the inclusion conditions, both before and after the introduction of the "definition," give us a much more reliable understanding of his concept of law than we can get from the "definition." 28. For (A), see q. 90, a. 1, ad 2; ad 3; a. 2, ad 3. For (B), see q. 90, a. 2c; ad 3. For (C), see q. 90, a. 3; a. 4. For (D), see q. 90, a. 3, ad 3. 29. Q. 90, a. 1. 30. Q. 90, a. 3, ad 2. 31. Some later occurrences-(A); q. 91, a. 1; a. 3; q. 92, a. lc; ad 4; q. 93, a. 1; a. 3c; ad 2; q. 94, a. 2, obj. 3; ad 3; q. 97, a. lc; a. 3c. (B): q. 91, a. 5; q. 93, a. 1, ad l; q. 94, a. 3, obj. l; ad 1; q. 95, a. 3c; a. 4c; q. 96, a. lc; a. 3, obj. 3; a. 3c; a. 4c; a. 6c; q. 97, a. 2c. (C): q. 91, a. lc(?); ad 3(?); a. 6(?); q. 92, a. 1, ad 4; q. 93, a. 1; q. 93, a. 3, ad 2; q. 93, a. 5; q. 95, a.4c; q. 97, a. 3c; a. 4c. (D): q. 91, a. 1 [the universe as the paradigm of the complete community]; q. 92, a. l, ad 4(?). (E): q. 91, a. 4; q. 92, a. l, ad l; a. 2; q. 93, a. lc; ad 1; a. 3; a. 4, s.c.; a. 5c; ad 1;q. 95, a. 1, obj. 3; a. lc; a.4c; q. 96, a. 1,obj. 2; a. 2c; a. 5c; q. 97, a. lc. (F): q. 93, a. 3, ad 2; q. 95, a. 1c; q. 96, a. 5c; q. 97, a. 2c.

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two definitional passages and should probably be added to the list at once: (G) intended to be obeyed.3"

Characteristic (G) is obviously closely related to (F), but it seems clearly distinguishable from (F) since a law might fulfill (G) without fulfilling (F), although presumably not (F) without (G). (There is at least one more interesting candidate for inclusion among the essential characteristics, but it raises problems that aren't relevant to our present concerns, and so I'm leaving it out of account. 33 ) We now have a list that is at least nearly complete and certainly full enough to support some general observations about the conditions and some investigation of the ways Aquinas uses them in evaluating laws.
NON-EVALUATIVE AND EVALUATIVE CONDITIONS

Conditions (A) and (B) are fundamentally different from conditions (C)-(G), although Aquinas' initial presentation of these conditions obscures the difference. (A) and (B) are evaluative (moral) conditions of inclusion among full-fledged laws; (C)-(G), on the other hand, set out non-evaluative (formal) conditions that must be met by anything that is to count as a law at all. To take one of Aquinas' examples of a failure to satisfy a formal condition, the head of a household may make rules that fulfill conditions (A)-(C) and (E)-(G), but because a household is not a complete community (a political unit with some degree of sovereignty) those rules do not satisfy condition (D). In failing to meet one of the formal conditions, those household rules fail to count as laws even technically. If they were put forward as laws, they would be to laws as counterfeit dollars are to dollars: "A person who governs a family can of course make rules or regulations, but

32. Q. 91, a. 5; q. 92, a. ic; ad 4. 33. Aquinas sometimes writes as if it were an essential characteristic of law to contribute to an individual's achieving of his ultimate end-perfect happiness in the beatific vision. See, e.g., q. 91, a. 4: "By law a human being is directed to actions that are appropriate in connection with his ordered relationship toward his ultimate end." But an individual's ultimate end can't be included in the common good (except accidentally), and Aquinas surely does not think that any law other than the divine law can make a direct contribution to an individual's destiny. Elsewhere in the Treatise Aquinas writes in a way that heightens the impression that the suggestion in q. 91, a. 4, is unintentional. See esp. q. 96, a. 1: "Now the end of law is the common good, because, as Isidore says (Etymologiae II, 10; V, 21), 'A law must be framed for no private advantage but for the common benefit of the citizens.' That is why human laws must be adapted to the common good."

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NORMAN KRETZMANN not such as have the nature of law strictly speaking." 3 ' A so-called law that failed to meet any one of the formal conditions would simply be a non-starter in the process of assessment that interests me now. It seems clear that conditions (A) and (B) are at issue only in case conditions (C)-(G) have been met. Aquinas indicates as much when he says that the derivability of a human law from a precept of natural law (or at least its compatibility with those precepts) becomes crucial to its status "provided that the other [i.e., the formal] conditions that pertain to the essence of law have been met." The status of a law that meets those formal conditions and fails to meet either of the moral conditions remains to be seen, but it should already be clear that Aquinas will not declare it to be no law at all. Aquinas' discussion of law is an extension of his moral philosophy, in which conformity to reason is the principal moral criterion; and so it comes as no surprise to find that his first inclusion condition for law [condition (A)] is that it be a directive of reason. As for condition (B), it can hardly be surprising to find any writer on jurisprudence maintaining that being aimed at the common good is an evaluative inclusion condition of law. On the basis of (A) and (B) we expect to find Aquinas dismissing irrational laws or laws that run contrary to the common good, and we won't be disappointed. But in view of my having begun this investigation by focusing on the slogan "An unjust law is not a law" and listing Aquinas as a subscriber to it, it might well be surprising that the justness of a law is not explicitly cited among these evaluative conditions. And the surprise would only be heightened by finding out that one of the definitions of law propounded by Aquinas' respected predecessor, Isidore of Seville (ca. 560-636), began with the words: "A law will be virtuous, just, naturally possible ...... ,3 But the reason Aquinas doesn't explicitly include justness among the evaluative inclusion conditions of laws is that he takes it to be involved in both (A) and (B) in different ways."6 In commenting on Isidore's definition, he says "Human discipline of course gives primary consideration to the order of reason, and that order is implied in Isidore's using the word 'just' ".37 Likewise,

34. The head-of-the-household example is discussed in q. 90, a. 3, obj. 3 and ad 3. 35. Etymologiae V, 21; quoted in the introduction to g. 95, a. 3. 36. In at least one passage in the Treatise on Law he does come very close to making justness an explicit criterion, however, apart from any consideration of Isidore's definition: "it pertains to law to direct human actions in accord with the order of justice" (q. 91, a. 5). 37. Q. 95, a. 3.

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in one of Aquinas' evaluations of laws he says that "in order for [someone's] willing of things that are commanded [by that person] to have the nature of law, they must be regulated by some reason. That is how we understand the claim that the sovereign's will has the force of law; otherwise the sovereign's will would be injustice (iniquitas)rather than law." 38 In other words, justness as a moral condition of laws is implicit in rationality as a condition. That he considers it to be implicit also in the notion of the common good is apparent when he says, drawing on Aristotle, that "justice is counted as a virtue, whether it is particular justice, which directs a person's action rightly relative to another individual human being, or legal justice, which directs a person's action rightly relative to the common good of society."" In the same vein he says that "the acts of all the virtues can pertain to justice in the sense in which it directs a person to the common good. . . . And since it pertains to law to direct people to the common good (as was maintained above), justice of that sort . . . is called legal justice, because through it a person comes to agree with the law directing the acts of all the virtues toward the common good."" So when Aquinas dismisses a law as lacking either of the explicit moral conditions, (A) or (B), he can also be understood to be dismissing it as unjust.
AQUINAS' ASSESSMENTS OF LAWS

Aquinas' assessment of certain actual laws as unjust is not always merely implicit. More importantly (in view of the controversy over the non-est-lex slogan), not even an explicit assessment of that sort is always explicitly dismissive, as in this remark of his, which simply acknowledges the existence of unjust laws: "some lawgivers have made statutes contrary to secondary precepts of natural law, statutes which are unjust (iniqua)."4 l But what happens when he does offer the kind of dismissive judgment the non-est-lex slogan leads us to expect? Not what its critics lead us to expect. Here is the first full-fledged instance of that sort in the Treatise on Law: "A tyrannical law, since it is not in accord with reason,"-i.e., since it fails to meet condition (A)-"is not unconditionally a law but is, rather, a perversion of law. And yet, in-

38. 39. 40. 41.

Q. ST ST ST

90, a. 1, ad 3. IaIIae q. 113, a. 1; cf. q. 100, a. 2, and q. 96, a. 3. IIaIIae q. 58, a. 5; cf. q. 58 passim. lallae q. 94, a. 6, ad 3.

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NORMAN KRETZMANN sofar as it does have something of the nature of law, it aims at the citizens' being good. For it has the nature of law only in the sense that it is a dictate of someone who presides over subjects"-condition (C)-"and that it aims at the subjects' being properly obedient to the law"-condition (G). "Their being properly obedient is their being good-not unconditionally, but in relation to such a government." 2 Two of the five formal conditions we have identified are expressly mentioned here, and they are said to be the only respects in which a tyrannical law is law, but there is every reason to suppose that the other three formal conditions-(D), (E), and (F)-would also apply to such a case. At least one of the two moral conditions-rationality-is said to be unfulfilled and, as a consequence, Aquinas says (in effect), "An irrational law is not a law." But in this passage he has spelled out what he means by the dismissive judgment. An irrational law is not a law unconditionally because it falls short of at least one of the moral conditions essential to full-fledged law, but it is a law in a certain respect because it satisfies the formal conditions sufficient to establish it technically as a law. It is not a counterfeit but, like the plagiarized paper, a perversion. No "dictum" that "there cannot be an unjust law," such as Danto thought he had identified, could stem from this dismissive judgment regarding tyrannical law, a judgment which also to recognize contains the contrary of what Hart called "a refusal . evil laws as valid for any purpose." A second example of a dismissive judgment, this one more emphatic than the first, should help to confirm the impression that the critics of the non-est-lex slogan have misinterpreted it. "A human law has the nature of law to the extent to which it is in accord with right reason, and it is clear that in that respect it derives from the eternal law. But to the extent to which it falls short of reason, it is called an unjust law. In that case it does not have the nature of law but, rather, of a kind of violence. And yet, an unjust law itself also derives from the eternal law to the extent to which something of the image of law is preserved in it because the power belonging to the one who administers the law has an ordered relationship [to other power]; for all power is from the Lord God, as is said in Romans 13:1.""1 The same lessons are to be learned from this second example, I think, but I want especially to call attention to the fact that while it expressly says that an unjust law "does not have the nature of law," it also labors to bring out

42. Q. 92, a. 1, ad 4. 43. Q. 93, a. 3, ad 2.

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a respect in which it is law, emphasizing with its recurrent use of "to the extent to which" (inquantum) that the dismissive judgment admits of degrees. Austin, Danto, Hart, and even Lyons are barking up trees Aquinas never considered climbing."
LAWS ON TRIAL IN THE COURT OF CONSCIENCE

We have now seen something of Aquinas' conception and classification of law, of the evaluative and non-evaluative conditions he considers essential to genuine law, and of the way he applies those conditions as criteria in dismissing unjust laws. Against that background we can understand and evaluate his answers to the questions with which I began. First, is an individual citizen entitled or obliged to decide whether a law of the state is unjust? Second, if so, on what grounds is he or she supposed to make the decision? And third, if an individual citizen has decided on appropriate grounds that a law of the state is unjust, what is he or she entitled or obliged to do about it? By far the most important source for Aquinas' answers to such questions is his reply to Question 96, article 4, "Does human law impose necessity on a person in the court of conscience?" Laws laid down by human beings are either just or unjust. If they are just, they do of course have the force of obligating a person in the court of conscience, [a force they acquire] from the eternal law, from which they derive (in accordance with Proverbs 8:15: "Through me kings reign and lawgivers decree just things"). Now laws are said to be just [1] on the basis of their end-i.e., when they are directed toward the common good; [2] on the basis on their source or authority-i.e., when the law that is decreed does not exceed the power of the one who decrees it; and [3] on the basis of their form-i.e., when burdens for the sake of the common good are imposed on those subject to them in accord with proportional equality.... Laws of that sort, which impose burdens proportionally, are just, they do obligate a person in the court of conscience, and they are legal laws.
44. The dismissive judgment that comes closest to looking like what the critics
say it is may be this one: "As Augustine says in De libero arbitrio,Bk. I, 'that which is not just does not seem to be a law.' Thus it has the force of law to the extent to which it has justice. Now in human affairs something is called just because it is right according to a rule of reason, but the first rule of reason is natural law (as is clear from things said earlier). Therefore, every law laid down by human beings has the nature of law to the extent to which it derives from natural law; but if it is inconsistent with natural law in some respect, it will no longer be law but a corruption of law" (q. 95, a. 3). But here, too, it seems to me there is evidence of flexibility, which is strengthened by the fact that this passage comes after the two evaluative passages we have just been looking at.

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On the other hand, laws are unjust (iniustae) in two ways. In the first way [I], by being contrary to human good because of opposition to the conditions mentioned above. Either [1.1] with reference to the end-e.g., when someone in authority imposes on people subject to his authority burdensome laws that pertain not to the common good but, rather, to his own greed or glorification; or [1.2] with reference to the source or authority-e.g., when someone decrees a law that goes beyond the power entrusted to him; or [1.3] with reference to the form-e.g., when burdens are unequally distributed in the community, even if they are directed toward the common good. Occurrences of that sort are instances of violence rather than laws; for, as Augustine says, "that which is not just does not seem to be a law." Therefore, such laws do not obligate a person in the court of conscience, except, perhaps,for the sake of avoiding a scandal or disruption,for which a person should even give up his right (in accordance with Matthew 4:40-41: "If someone compels you to go a mile, go with him another two miles; and if someone takes away your coat, give him your shirt as well'" 4 5 ). Laws can be unjust in a second way [II] by being contrary to divine good-e.g., tyrants' laws leading people to idolatry or to anything else that is contrary to the divine law. Such laws must not be observed in any way because, as is said in Acts 5:29, "We ought to obey God rather than men." Aquinas' reply offers answers to all three of my questions, but it can be understood and evaluated only in the light of the question it explicitly addresses. If that question had been merely "Does human law impose necessity on a person?," John Austin's line regarding the probable fate of the conscientious objector to a law of the state would constitute an appropriate answer after all. The fact that the question is about the effect of human laws only in the court of conscience (in foro conscientiae) shows that the primary interest is not in what the community should do about laws of one sort or another, but in what the individual should think about them (and, secondarily, in what the individual should do on the basis of those thoughts). And the fact that the question is whether they impose necessity in the court of conscience shows that the primary concern is not whether they create legal obligations-we should assume they do-but whether they create moral obligations. Finally, although the question itself does not show this, Aquinas' citations of Scriptural authority indicate that in his view it is pre-eminently the conscience of the morally upright, Christian citizen in which these laws are on trial. Since every citizen, Christian or not, is a rational creature, every

45. Aquinas is obviously quoting (paraphrasing) from memory here.

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citizen has a conscience and, as we have seen, a conscience is at least potentially furnished with the precepts of natural law, morality's innate Constitution, against which every human law is measurablesomewhat as laws promulgated in this country are measurable against its Constitution. With just these observations my first question can already be answered affirmatively: Every individual citizen is at least entitled to decide in the court of conscience whether a law of the state is unjust. But three verdicts are available. A law of the state may be judged just, unjust-I, or unjust-II. Beginning with the third and easiest of them, we can see that the grounds on which to hand down the verdict "unjustII"is that the law on trial is contrary to some precept of divine law, which is taken to be publicly accessible (in Scripture), and which the Christian citizen is obliged to employ in the court of conscience as a criterion of human law. That answers my second question, about the grounds on which the decision that the law is unjust-II is to be made. And the answer to my third question is plain in this case, too. If an individual Christian has decided on those divinely established, objectively accessible grounds that a law of the state is unjust-II, then he or she is obliged not to obey it: such "human laws are directed against a commandment of God, which is outside the range of the power of those laws; and so in such cases the human law must not be obeyed."" 6 The reliance on divine law rather than unaided natural law for the verdict "unjust-II" seems to indicate that only a Christian's conscience could render that verdict, but I think that a secular version of "unjust-II" is and ought to be available for any conscience confronted with a law that is blatantly and grossly-i.e., intolerably-unjust. The verdict "just" is not hard to understand, especially given Aquinas' three explicit criteria for it, evidently intended to be separately necessary and jointly sufficient. (Notice that criterion [1]-"when they are directed toward the common good"-is identical with condition (B), and that condition (A) seems implicit in criteria [2] and [3].) It is also easy to see the answer to my third question in this case: just laws do obligate a person in the court of conscience. In a sense the answer to my second question is easy as well: the grounds for the decision are spelled out in the three conditions. But there is a subsidiary empirical question that is not easy to answer: How can a person be sure that the three criteria have been met? Naturally there can be no

46. Q. 96, a. 4, ad 2.

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NORMAN KRETZMANN standard, universally applicable answer to that question, but the guiding principle in the court of conscience must be "just unless proven unjust." The likelihood of subjective error is one pragmatic consideration supporting that principle, but not the only one, as we'll see. Obviously, the most interesting and difficult cases are those for which the verdict "unjust-I" is appropriate. Since the three criteria for the justness of a law are separately necessary, the failure of any one of them is sufficient to render a law unjust-I; but the disjunction of 1.1, 1.2, or 1.3 is only a superficial complication. And it is easy to think of laws of each of those three varieties which would be assessed as unjust by any disinterested person. The difficulty in answering my second question regarding cases of this sort is only the unavoidable empirical difficulty we already noticed in connection with handing down the verdict "just." 7 It is Aquinas' answer to my third question that is interestingly difficult, and apparently worrisome. His answer comes in two parts. First, "such laws do not obligate a person in the court of conscience"-i.e., if an individual has decided on appropriate grounds that a law of the state is unjust-I, he or she is not morally obliged to obey that law-i.e., he or she has a moral right not to obey that law-and is not morally obliged not to obey that law (as in the case of a law that is unjust-II). If I am right in my reading of this first part, it strikes me as eminently sensible. It is the second part that looks worrisome, claiming that one might after all be obliged by such a law in the court of conscience "for the sake of avoiding a scandal or disruption, for which a person should even give up his right." Of course the suggestion that we should not exercise a moral right we have often turns out to be wise and not worrisome; but it is seldom a suggestion to be taken lightly. And when the reason provided for our giving up our moral right is the avoidance of scandal or disruption, we should of course suspect that we are being offered a counsel of moral cowardice. On the plausible hypothesis that Aquinas is not suggesting moral cowardice as a morally allowable and sometimes obligatory alternative to civil disobedience, what are we to make of this part of his answer? 8

47. In ST IlalIae q. 147, a. 4, Aquinas offers practical advice relevant to the quandary of the individual faced with difficulties formally similar to these. 48. As John Boler pointed out to me, Aquinas' detailed discussion of scandal should be taken into account here (ST Ilallae q. 43). Scandal as Aquinas conceives of it has two components. It is something said or done with less than perfect moral justification (dictum vel factum minus rectum), and it provides an occasion for someone's

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The first thing to notice is that this alternative, whatever it turns out to be, is mentioned only in connection with laws that are unjust-I. Laws that are unjust-II must not be obeyed, whether or not scandal and disruption ensue. A law that sanctions the abuse of children, for example, must be disobeyed. So part of what makes the alternative of giving up one's right appropriate in the case of laws that are unjust-I is, presumably, that the stakes are lower in that case. The good to which those unjust laws are contrary is human only, not also divine. A second bit of help is available further on in this same article, where Aquinas in replying to an objection says that a person is not obliged to obey a law that inflicts unjust oppression on those subject to it "if ' he can resist it without [causing] a scandal or a greaterharm."49 Aquinas confronting a law that is unjust-I would clearly not countenance the bravado of the sixteenth-century maxim "Fiat iustitia, et ruant coeli. ' ' I' He takes the cautious approach of weighing the potential harm of resisting an unjust law against the potential harm the law is likely to cause if left unchallenged. In another context he offers an illuminating example from the history of the conflict between Church and State: "At that time, the Church in its infancy did not yet have the power of restraining earthly sovereigns, and so it permitted the faithful to obey [the emperor] Julian the Apostate in matters that were not contrary to the faith in order to avoid a greater danger to the faith." 5 ' But in every case of comparing particular potential harms to provide a basis for deciding whether or not to engage in civil disobedienceeven a case as dramatically clear as Aquinas' example-there would or should remain the worry that moral cowardice would be a covert make-weight on the side of doing nothing. I think there is good evidence, however, that for all cases of this sort Aquinas had a single sort of scandal or disruption in mind, one the consideration of which should take precedence over all others. I also think that he fosters a responsible moral decision-procedure in

spiritual downfall (praebens occasionem ruinae). If the avoidance of scandal in this technical sense were the only reason Aquinas gave for giving up one's moral right, my discussion of this issue in the remainder of the paper would be simpler and would draw heavily on IIaIIae g. 43, a. 7, "Should temporal [goods] be given up for the sake of [avoiding] scandal?" But the fact that Aquinas here speaks of the avoidance of "scandal or disruption" calls for a broader treatment. 49. Q. 96, a. 4, ad 3. 50. The Oxford Dictionary of Quotations attributes the maxim to the Emperor Ferdinand I (1503-1564) in the form "Fiat iustitia, etpereatmundus," and to William Watson (1559?-1603) in the more familiar form in which I quote it here. 51. ST IIalIae q. 12, a. 2, ad 1.

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cases of this sort by prescribing a remedy for the unavoidable and most important sort of harm caused by civil disobedience. For a person engaging in disobeying a law for the purpose of proclaiming his or her conscientious objection to it is thereby indicating that the law ought to be changed-repealed or amended. But, as Aquinas observes in reply to the question "Should human law be changed whenever something better comes along?", 5 2 "The mere change of law, considered just in itself, involves a kind of harm to the common good; for custom contributes a great deal to the observance of laws, so that things that are done contrary to custom are seen as serious even if they are slight in themselves. For that reason, whenever a law is changed, the binding power of law is weakened to the extent to which custom is violated. And so human law ought never to be changed unless the common good is compensated in some way to the extent to which it was weakened in that respect."5 3 On the basis of his recognition of the fragility of the fabric of law Aquinas may be seen as advocating conscientious conscientious objection. Of course every rebel with a cause could heartily agree that the harm inflicted on the common good as a consequence of his or her morally motivated unlawful act must and will be compensated foreventually: once the revolution has succeeded, or apartheid has been abolished, or the university has provided enough parking spaces for the faculty. If Aquinas had insisted on immediate compensation, his policy would have a tendency to stifle dissent. I think he would see the conscientious objector's deficit as having a time-limit on it, however, and would insist on prompt compensation, at the earliest possible opportunity.5 4 He seems to have understood that moral people do occasionally need to operate under a long-term debt to the common good, to have been, like thoughtful people in any age, concerned about the

52. Q. 97, a. 2. 53. Cf. Aristotle, Politics II 5, 1268b23-1269a28. 54. ST IIaIIae q. 62 has to do with restitution, and although it is concerned primarily with restitution by one individual to another, I think it can be applied, cautiously,

to cases of the sort at issue here. Q. 63, a. 8, asks whether a person "is bound to
make restitution immediately or can legitimately defer it." The heart of Aquinas's position is that "everyone is bound to make restitution immediately or to request a postponement from the person who can grant him the use of the thing" that does not rightfully belong to him. And in his rejoinder to the objection that "sometimes

a person cannot make restitution immediately" (obj. 2) Aquinas says, "When someone cannot make restitution immediately, that inability itself excuses him from making instant restitution (just as a person who is entirely unable to make restitution is entirely excused from it). He is, however, obliged to request forgiveness or postponement, either in his own right or through someone else, from the person to whom he owes it."

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concomitant threat to the fabric of law, and consequently to have tried to provide a rational formula of compensation acceptable in the court of conscience."
55. For comments and criticisms I'm indebted to the members of my Aquinas seminar at Cornell in the spring term of 1986, to philosophical audiences at several institutions, to Barbara Ensign Kretzmann, to John Bennett, to John Boler, and especially to Eleonore Stump. But the largest debt of gratitude by far I owe to David Lyons, who wrote three extremely helpful sets of comments on various drafts and who was, as always, unfailingly generous in his advice and counsel.

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