St.

Thomas Aquinas's Definition of Law

IN AN OFT-QUOTED DEFINITION, St. Thomas Aquinas defines law as "nothing other than a
certain dictate of reason (rationis ordinatio) for the common good, made by him who has the
care of the community and promulgated." ST. IaIIae, Q.90, art.4. Perhaps the most significant
emphasis of this definition is that law is based upon reason, and not
upon custom, will, politics, or power. Therefore, St. Thomas is clearly outside the voluntaristic
camp, those who, like the medieval Ockham, sought the essence of law in God's will as
distinguished from His reason. Similarly, he departs from those who suggest a command theory
of law, the most notable of these being perhaps John Austin (17901859) who, seeking to
disassociate the law from precepts of morality, in his The Province of Jurisprudence
Determined (1832) defined law as the command of the sovereign backed by sanctions. St.
Thomas Aquinas's emphasis on the practical reason as a source of substantive values also
distinguishes him from philosophers such as David Hume, who rejected the role of practical
reason in legislation, as he found it only instrumental ("Reason is, and ought only to be the slave
of the passions," Treatise of Human Nature, 2.3.3.4). Similarly, the German jurisprudential
scholar Rudolf von Jhering, who, in his Der Zweck im Recht, saw law as merely a "means to an
end" without substantive component other than the convenience of the society works outside St.
Thomas's frame of reference. Although St. Thomas recognizes the role of customary law, in it
focal meaning, law is more than that which merely what steps out of the practice (bung),
conventions (Sitte), and customs (Gewonhneit) of a society, something that rises from an inner,
silently-working forces, the innere, stillwirkende Krfte, of a people's consciousness. St. Thomas
would therefore not be in agreement with the likes of Frederich Carl von Savigny. The concept
of law envisioned by St. Thomas radically departs from the Critical Legal Studies school which
claims that law is indeterminate, and ultimately that "law is politics" and nothing else. Similarly,
Michel Foucalt's view that all law is nothing but power is rejected by St. Thomas Aquinas in his
definition of law.

It is not that these other theories do not have some truth to them, and perhaps in some fashion
they even adequately explain law, or its abuse, or a certain characteristic of it, in certain times
and places. They may be valuable in ascertaining law in a loose sense, or in a sense which is not
its focal sense, i.e., its sensu lato. For St. Thomas, however, the issue was what the definition of
law was in sensu stricto, in its principal focal meaning. For St. Thomas, the kernel, heart, and
soul of the law is reason, above all other things. Thus, a "law" may be a command of the
sovereign, may be the result of the political process, may be issued by the powerful against the
weak, may be perfectly customary, and yet--if it does not conform to reason--it is not law in the
strict sense. Rather, though it may have indicia of being a "law," it ought, in fact, be considered
tantamount to violence. ST IaIIae, Q. 93, art. 3, ad. 2.