Aquinas at 800, Part 16: Law & Morality

Episode Topic: Law & Morality

Does law reflect mere convention or objective reality? Marking 800 years of Thomas Aquinas, explore how his synthesis of law and morality provides a radical framework for justice. Challenge modern positivism and discover how the architecture of virtue informs the common good, moving society from legal compliance to true spiritual freedom.

Featured Speakers:

• Fr. Petar Popovic, Pontifical University of the Holy Cross
• Monica Marcelli-Chu, Jesuit School of Theology of Santa Clara University
• Cait Lemos '20 MTS, '25 Ph.D., University of Notre Dame

Read this episode's recap over on the University of Notre Dame's open online learning community platform, ThinkND: https://go.nd.edu/461aa5.

This podcast is a part of the ThinkND Series titled Aquinas at 800.

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Transcript

Welcome and Aquinas as Soft Positivist

Speaker 10 0:11

Gotcha. All right.

Speaker 2 0:13

Good morning, everybody. Uh, thank you. Working here? All right, great. Uh, good morning, everybody. Thank you for joining us and, uh, attending this, uh, panel on the relationship between law and morality. My name is Nicholas Ramirez, uh, and I have the great pleasure and honor of introducing our wonderful speakers on this panel. Uh, each speaker will have 20 minutes to present, uh, followed by roughly 10 minutes for Q&A. So our first speaker for today is, uh, Father Petar, uh, Popovic. Father Petar is an associate professor of canon law at the Pontifical University of the Holy Cross in Rome. His most recent book is titled Natural Law and Thomistic Juridical Realism: Prospects for a Dialogue with Contemporary Legal Theory. Father Petar has also published many articles on the topics of natural law and juridical goods. The title of his paper is Was Thomas Aquinas a Soft Positivist? Thomistic Legal Philosophy and the Nature of Law. Please join me in welcoming Father Petar Popovic.

Speaker 3 1:10

Good morning Uh, this lecture explores the legal philosophical question of whether Thomas Aquinas's, uh, account of the nature of law can be categorized as soft or inclusive legal positivism. Uh, the question is intentionally provocative since Aquinas is almost unanimously considered to be, uh, one of the pillars of a natural law theory of law. He was certainly unaware of our contemporary debates on the necessary connections between law and morality, as well as of the discussions between hard positivists and, uh, soft positivists. However, as I will show in the lecture, um, the question from the title corresponds to a real legal philosophical problem. My analysis will proceed in three stages. First, I will identify the core claims of soft positivism. I will then explore the question of whether the chain of arguments on the nature of law made by a notable present-day interpreter of Aquinas, the legal philosopher John Finnis, corresponds at least to some degree to these core claims of soft positivism, uh, regardless of Finnis' otherwise strong commitments to a natural law theory of law. I have to highlight immediately that although I partially criticize, uh, Finnis here, I have great respect for him, and my reference to his work has the scope of upgrading his ideas to render them more compatible to what I believe, uh, is Aquinas' conception of law. Finally, in the third part of the paper, I will, uh, of the lecture, I will turn to Aquinas' original texts and inquire into the conditions under which his legal theory can and indeed does successfully avoid the charge of constituting a version of soft positivism. So first, what is soft positivism? Soft or inclusive legal positivism seems to have originated in a further reflection within the positivist tradition on the so-called separation thesis or the thesis according to which there is no necessary connection between law and morality, the question that was and perhaps still is considered to be a central tenet of legal positivism. However, a recent positivist analysis acknowledged that there are some important reasons for upgrading this thesis since there are indeed some necessary connections between law and morality that even legal positivists are prepared to uphold. For example, legal positivists such as Julie Dickson, Leslie Green, and the late John Gardner and Joseph Raz are all on record as subscribing to the following claims. Necessarily, law and morality both contain norms. Necessarily, law makes moral claims of its subjects. Necessarily, law is the kind of thing that can be judged by moral standards. Necessarily, no legal system can be stable unless it provides some protection for life and property to some of the people to whom it applies. Necessarily, law regulates objects of morality. Necessarily, law is justice apt. Necessarily, law is morally risky Consequently, it was necessary that the positivists further specify the scope of the separation thesis to salvage what they consider to be an important truth underlying its occasionally imprecise formulations. Thus, the so-called social source thesis was devised. According to this thesis, the identification of law can never necessarily depend solely upon the evaluation of the moral merits or moral truths of a certain social norm, but ultimately always upon some humanly posited legal source or on the society's posited rule of recognition of what counts as law. There is another more simple way of affirming this thesis. All law is positive law. In other words, humanly posited law is all that law conceptually is. Law is essentially a human artifact or convention according to legal positivists. So every true legal positivist, without exception, endorses in one way or another some form of this thesis Thus, both soft positivists and hard positivists, being true positivists, adhere to this thesis. The difference between these currents in the positivist tradition concerns the way in which they account for the presence of moral standards in law. For example, imagine the following formulation of an article of the United States of America Const-Constitution. The fictional article goes like this: the evaluative content that pertains to the primary precepts of natural law, as understood in Thomas Aquinas' teaching on ius naturale, is to be considered law in the United States of America. This is a humanly posited norm that explicitly invokes some moral standards. The soft positivists hold that such moral standards, broadly incorporated by legal sources but still in need of passing some moral test, become law upon passing that moral test. So in our fictional constitutional example, any socially relevant moral norm that pertains to Aquinas' teaching on natural law is already fully law according to the soft positivists. The hard positivists require some further formal social factual recognitions that all incorporated moral rules have indeed passed the relevant moral tests, whether through additional legal norms or the practice of legal officials to be fully incorporated in law. So for instance, in our fictional constitutional example, the hard positivists would say that the Thomist natural law becomes law only when the practice of legal officials or another humanly posited legal source specifically declares or determines that a certain social norm really pertains to the Thomist natural law, and that it regulates the relevant conduct in such and such way It may seem that the practical consequences of both soft and hard positivism are more or less the same, or at least that differences between them are imperceptible, since on both accounts, certain moral rules are effectively applied in concrete cases because they satisfy certain moral tests regardless of the justification of their legal status. However, it seems to me that the ontological fabric of law is slightly altered in the soft positivist line of reasoning in comparison to the arguments of hard positivists. According to soft positivists, all law is still positive law, but for them, the legality of at least some instantiations of law can depend also indirectly on their posited moral merits. Said differently, according to soft positivists, the very nature of law necessarily includes the possibility that the existence and content of law be dependent not only on posited social facts, but also on certain moral merits. Hard positivists do not allow for such conceptual necessity. In their view, all law and each single norm must be humanly validated as such by social facts regardless of its moral merits. To conclude this first section of the lecture, a legal theory that is categorized as soft positivism must satisfy the following conditions. First, it must subscribe to the core claim of legal positivism according to which all law is positive law. Second, it must endorse the soft positivist proposal that it is conceptually possible or even desirable, but by no means necessary, that the legal validity of a norm can sometimes depend also on its harmony with some moral standards or tests, provided of course, that such harmony is invoked by positive law Moving on to the second part of the lecture, John Finnis' legal philosophy is broadly considered to be a paradigmatic contemporary version of a natural law theory of law. To establish the relationship of Finnis' legal theory to the standard soft positivist stance, it is necessary to explore the question of whether Finnis' arguments on law's nature correspond to the core thesis of soft positivism. Perhaps it may come as a surprise that Finnis fully supports the all law is positive law thesis. He's on record as saying that, quote, "The whole of community's existing law, however completely just and decent, is posited, somehow humanly posited." End quote. Moreover, he's convinced to have inherited this claim from Aquinas. Quote, "In Aquinas' clarification and adjustment of the Aristotelian and Roman juristic categories and nomenclature, all human law is positive law." End quote. Of course, Finnis is a natural lawyer, and in his view, the evaluative standards that necessarily form part of law's nature are ultimately concerned with substantive moral values, namely the basic human goods and the principles of practical reasonableness. However, the legal status of these substantive moral values can never depend, uh, solely on their merits according to Finnis. Rather, in his view, such natural law values, to be fully juridical, must form part of or be grounded in the social facts of positive law. Given these claims, it should not be a surprise to read Finnis' acknowledgment that, quote, "Natural law theory is fully positivist," end quote, and that whatever else a natural law theory of law is, it is essentially, quote, "a natural law theory of positive law," end quote. But does Finnis also support the soft positivist stance according to which it is conceptually possible or even desirable that the legal validity of a norm can sometimes depend also on its harmony with some posited moral standards, and that such dependence is only possible and by no means necessary? In other words, does he in some way endorse the soft positivist account of the ontology of law? Finnis holds that law, by which he means exclusively positive law, as we saw, conceptually can and certainly should incorporate some moral norms, primarily those, uh, pertaining to a Thomist account of natural law. Furthermore, Finnis certainly argues that deploying the concept of legal validity, as he says, quote, "can be a matter simply of a social fact source and involve no inspection of merits," end quote. So at least some, or perhaps most norms are legally valid only on account of their being entirely grounded in social fact sources and without any reference to their moral merits. But there is certainly nothing in Finnis' texts that would argue against incorporating moral tests for valid law, which would make the legal validity of a relevant moral norm sometimes depend on these posited tests. Furthermore, in at least one of his texts, Finnis explicitly suggests that there is an important difference between saying that the identification of law proceeds never by reference to merits and saying that it proceeds not necessarily by reference to merits. He favors the latter option, according to which the identification of law can indeed proceed by reference to posited moral merits. He thereby advocates the possibility that at least some legal rules sometimes, though not necessarily, become law on account of their posited moral merits. This all means that while rejecting hard positivism, Finnis seems to support all the crucial soft positivist thesis regarding the nature of law Now, is Finnis' interpretation of Aquinas really a faithful reading of Aquinas' original arguments? Is Aquinas a soft positivist when it comes to his understanding on the very nature of law? An affirmative answer to these questions would mean that Aquinas subscribes to both the all law is positive law thesis and the soft positivist account of what law is conceptually speaking.

Four Causes of Law

Speaker 3 15:23

The central argument of this lecture is that Aquinas referred to the reality that lawyers and legal officials today call law by using the term ius, I-U-S, which is broader than the term lex. Uh, regardless of the resemblance of this proposal to Adrian Vermeule's recent texts on law's ontology, which also claim to draw from classical sources and explore the nature of law by using both terms, lex and ius, it is my opinion that Vermeule's legal theory, uh, is really not comparable to Aquinas' position. However, we do not have time to enter into these details here. For Aquinas, jus necessarily includes a reference to lex, and his concept of law surely includes the phenomena of legal, uh, of humanly posited laws and the corresponding legal practices. But it also includes some other realities and incorporates them into a much broader and more complex notion of law than the sole reference to lex positiva. Perhaps the best way to describe Aquinas' account of the nature of law is to rapidly break it down into four Aristotelian causes. It is imperative to envision Aquinas' idea of law as a unity of diverse phenomena or causes, each revealing an aspect of the essence of law, rather than reducing law to only one such phenomenon or aspect. So here is a brief summary of the material, the formal, and the final cause of Aquinas' account of law understood as jus. The material cause answers the question, out of what does law come to be? Or where do we find law? Or more simply, what is law in? And indeed, in Aquinas' view, law is, is to be found in concrete realities, uh, things, or as he says, res. Whatever else law is, for Aquinas, it always falls on the level of concrete things. A book, a house, a bus ride, a seat in a theater during, uh, the performance of a musical, things which rightfully belong to other persons and which ought to be appropriately given to them. The formal cause is the form or the perspective from which things can be seen as constituting law. For Aquinas, whatever else law is according to its other causes, it is certainly something that is formally defined and structured by the virtue of justice, iustitia, the definition of which Aquinas famously adopts from the Roman jurist Ulpian. Justice is the constant and perpetual will to give to each person his own jus Next Aquinas would certainly insist that whatever else law is we should take into consideration its ontological fabric from the viewpoint of its final cause. This cause denotes the end, the purpose or the good of a certain reality. It is Aquinas' understanding that a special aspect of human good is brought about when each person is effectively given the thing that is her, his or her own use. Justice, he says, is somewhat, quodam modo, the good of another person. This is from the Summa's, uh, Secunda Secundae, question fifty-eight, article twelve and also, uh, question seventy-nine, article one So if justice corresponds to a form of human good, then law as the object of justice is in its very nature something good from the standpoint of its final end. I left the analysis of the efficient cause of law for the end of this presentation, since this cause is particularly relevant for the conclusion of this lecture. Simply put, the efficient cause explains how things are brought within the reach of justice and of its specific form of goodness, how they got there in the first place. When someone claims that he or she has a right, that law works in his or her favor, that justice requires a certain course of action, usually the first thing that a lawyer or a legal official does is to ask that person to provide the title for that claim. For example, a contract or a testament. Some legal titles have the structure of general legal rules, um, whether humanly posited or natural or divine in church law. All these titles bring a thing or reality within the reach of justice and its specific goodness. They are the underlying rational rule or arrangement at the basis of law. As Aquinas says, they are a ratio of use. Aquinas understands law as something certainly broader than merely humanly posited legal rules. Some things are brought within the reach of justice and thereby juridicized or rendered law without being humanly established as objects of justice through validly posited legal norms. They are fixed as obje-objects of justice by human nature. Aquinas refers to these things as natural use, which is different from the so-called positive use. For example, the good of life is a reality, a thing, a res, attributed to a person by the relevant set of the precepts of natural law. A real- a reality that others can, at least potentially, interfere with in its outwardly manifestable aspects. As such, life is the object of justice and a natural use, and thus fully juridical or fully law even prior to and even regardless of any f- of any norm of positive law relative to that good This brings us to the conclusion that Aquinas is not a soft positivist because he neither endorses the central tenet of legal positivism, that all law is positive law, nor does he support a soft positivist account of law's ontology. For Aquinas, not all law is posited, though some parts of law, or perhaps most parts of law, are indeed necessarily posited. The juridical status of at least some parts of law is conceptually dependent solely on their merits according to a set of evaluative considerations and standards pertinent to justice. This means that contrary to the soft positivist position, uh, the nature of law includes the necessity that some parts of law are non-posited, that they are law exclusively on account of their evaluative merits. Thank you for your, for your kind attention.

Speaker 2 22:59

Thank you, Father. Uh, we now have some time for, for questions. Yes.

Speaker 4 23:04

Yes. Thank you very much, Father. That was very, very interesting. Um, I wonder if you could comment on this. Uh, so you focused your analysis of law on Aquinas' treatment of use, uh, as the object of justice, uh, which I, I think makes a lot of sense and, and gets overlooked in, in debates over Aquinas on law. But you, you seem to me not to talk at all about his treatment of law in the Prima Secunda, uh, where he starts with 90 and goes through question, uh, 10, I believe, 108, um, maybe 109. But, uh, and then he goes into the detailed analysis of the different kinds of law, uh, the necessary conditions for law, uh, the way in which the understanding of law, uh, works its way out through, through eternal, natural, uh, human, et cetera, law. Uh, uses the word lex rather than use in this context It seems to me that these texts would, would, would be relevant to an understanding of what Aquinas means by law and, and, and yet you don't comment on them, and I just would like to invite you to do that.

Speaker 3 24:11

Okay. Thank you, Professor Fuller, for your, uh, question. Uh, so I definitely think that lex is important, uh, in our conceptualization of what we today call law, and I did not make much reference, uh, because I had only twenty minutes at my disposal here, and also because I think that, um, our approach to understanding the nature of law has been predominantly organized around, uh, the analysiv- analysis of, uh, the concept of lex in the Prima Secundae. So I wanted to, um, highlight the, the concept of use and the importance of use for understanding law. But also, I did this because I believe that the concept of lex does not get us very far into understanding what Aquinas thought the nature of law is. And I think that the concept of use here is crucial. It makes the, uh, the crucial step towards understanding what we today call law in English or in Italian, diritto, in Spanish, derecho, and so forth. So positive, for example, pos-- use, uh, lex positiva, uh, positive lex is, I believe, uh, not sufficient to understand what law is because we can have deeply unjust positive laws, so it cannot depend only on lex positiva, our understanding of what law is. Does our reference to something like natural law or eternal law, uh, clarify, uh, this, um, nature of law? Well, to some degree, yes, but not entirely, because lex natural- natural law can also, uh, point to some purely inward, um, and also not other-directed realities which do not fall under the scope of what we today call law. So natural law, lex naturalis, is much broader than what jurists are interested in. And the same, uh, goes, uh, with even more significance for eternal law. And also the broadest defini-- Aquinas's broadest definition of lex, so the rational order that moves all things to their due ends, is simply too broad to understand, uh, what lawyers, uh, and legal officials refer to as law. So that's why I think that the concept of use provides a key to understand which parts of positive law are truly law for Aquinas, which, uh, aspects of natural law are juridical, and so forth. So that would be my-

Speaker 4 26:40

Thing, I mean, just to follow up quickly.

Speaker 3 26:42

Yeah.

Speaker 4 26:42

It's, it's interesting because in, in reading the law in this way, you move Aquinas closer to what we call a natural rights theorist, uh, than, than I do, and I, I go pretty far in that direction- Yes, yeah ...and many others.

Speaker 3 26:55

Yeah. Yeah, yeah, that's correct. That's a correct assessment of my, of my reading of Aquinas, yeah. Thank you.

Speaker 4 27:01

Okay.

Speaker 5 27:02

Florian, it's Yale. Um, thank you very much for this. I agree that we need set different use into understanding Aquinas's concept of law. But I also have kind of wanna push against, like, more on the creation law because there's two, there's two things that stood out from some of your discussion. One is you're saying that not all law is posited for Aquinas, but it seems to me that all law is posited by God either directly through the, through the natural law proper or indirectly through the government officials who represent- And when we look at the essence of law, you could just form the definition where it's made by someone who has character to be engaged, so it's God's character and creation. But second, also when we talk about how the formal cause is giving use. Mm-hmm. The other aspect I think of a formal cause, though, is the legislator seems to put it on this-- on the premise comes from the where there is a legislator, be it God or a person representing God in some capacity. And it seems that we might want the formal cause to mean, like, he might be giving the formal cause, he or she might be giving the formal cause. So, so a typical man is going to mean there is a practical knowledge about why they're-- why he's doing this or the reason for action is the common good as a telos. So I'm wondering why we would-- well, how that raises your analysis of all laws posited by God, how that takes us into your thought. That still allows for everything not to be positive because positives wouldn't say, well, there's law that's not posited, created by God, it's still a generous law. But if you generally make, say, a statute saying, like, that starts, that starts with that, which requires you to say it's not law at all. So how does that

Speaker 3 28:38

affect your analysis at all? Right. Well, that's a very complex question. Well, look, I mean, everything is, uh, in some way posited by God, right? Uh, at least he provides the, the arrangement, the setting for, uh, human determination and positing. So of course, you can always say everything in some way is, uh, conducive to, to God's positing. Um, what I wanted to achieve by breaking down, uh, the concept of law into four Aristotelian causes is to, um- To try to present what would be the four causes of use and not only of lex. By, by that I do not mean to substitute use for lex. I think that use is a broader concept that includes lex as the efficient cause of use, of law understood as use. So in that case, your, um, reflection enters into my analysis. I just did not have time to elaborate on it-

Speaker 6 29:33

Right

Speaker 3 29:34

on it here. Thank you.

Speaker 6 29:37

Let's have one more question. Uh, hi, Dan Fothott at, uh, Notre Dame. Wanted to ask a l- I'm trying to understand more your claim that, um, the natural law is juridical even without it being, um, positive law- Mm-hmm as I understand it. And what exactly does juridical mean in that claim? Does it mean that it has some kind of binding relevance in the social and political order such that one could appeal to it, enforce it, something like that, that one does with positive law, except that it's not positive law? Or wh-what, what is the status of it meaning that it's juridical?

Speaker 3 30:17

Right. Um- I believe that, uh Um, f- so for me, l- legal and juridical are, are synonyms. Um, uh Of course, uh, we do not know-- Uh, it would be interesting to know what, uh, what would be Aquinas' answer to the question: How would you translate law and legality into, uh, into Latin, and how would you, yeah, into-- What, what would be the appropriate Latin word? So I believe that the Latin word would be use, and from that word, we derive juridical, juridicity. So when I speak about juridicity, I think of something that is fully legal and, uh, thereby, um, coercive and obligatory as, as law. But this is not just my opinion. There are some, uh, even non-natural law lawyers who, um, conceptualize, uh, natural law, although they do not endorse a natural law theory of law, but they think that if natural-- something like natural law exists, it should be something that is, uh, obligatory like law, uh, even without it, it's being posited. So one, uh, famous example is Jeremy Waldron. He makes this, this move. So this is what I think, uh, when I, uh, say juridical. Juridicity, uh, which would be the noun of, uh, juridical, is a set of conditions under which something can be considered to be law in a jurisprudential or lawyerly sense. So this is-- that's, this would be juridicity. Um, could you remind me the first part of your question? What is-

Speaker 6 31:57

What does it mean to be juridical And-

Speaker 3 32:01

Right

Speaker 6 32:01

would an example be something like the Nuremberg trials where

Speaker 3 32:04

they- Right

Speaker 6 32:05

appealed to something-

Speaker 3 32:05

Yes

Speaker 6 32:06

or-

Speaker 3 32:06

Yes

Speaker 6 32:07

the, the, "We can try you and-

Speaker 3 32:08

Right punish

Speaker 6 32:08

you and so forth-

Speaker 3 32:09

Right

Speaker 6 32:09

even though it's not written down."

Speaker 3 32:11

Yeah. And not only like the Nuremberg trials, but, uh, it would be like saying that the, uh, justices of the Nuremberg, uh, Tribunal, uh, refer to something that is already law. Mm-hmm. That did not become law upon their giving the decision. They did not juridicize this moral content. It's already law, and I think this is Aquinas-- I believe this is Aquinas's position, and we should ex- at least explore this possibility. Thank you.

Habitus and the Common Good

Speaker 2 32:42

Our next speaker is, uh, Monica Marcelli Chiu. She is, she is an assistant professor of theological ethics at the Jesuit School of Theology of Santa Clara University. Her current research focuses on questions of agency in Aquinas, in dialogue with integral ecology and the common good. The title of her presentation is Embodying Habitus in the Body Politic Aquinas and Political Virtue. Please join me in welcoming Professor Monica Marcelli Chiu

Speaker 8 33:11

Thank you. Um, so in treating how... Sorry, can-- Sorry, my, I'm getting over a cold, so I hope my voice carries enough. Um, in treating how the law is ordained to the common good, Aquinas affirms that every part is ordained to the whole, and since one man is a part of the perfect community, the law must properly regard the arrangement of things toward common happiness. He further affirms that particular ends are included in common good, and that the common good is also understood as common end, where in particular things are referred to a final cause. To move toward the particular in light of common good is then also to move toward the universal, since, as he writes, "The common good of the whole universe is God, and God moves all things to good." As Jordan Olver describes, the common good that we love is one whose proper subject is a whole of order, wherein our desire for the good includes our desire for the good together with those others who belong to this order. I am treating political virtue in this fundamental sense, namely as a common sense of the good of the part as ordained to the whole, together with those others who belong to this order This requires first grasping the embodied nature of habitus as referring not only to the individual body but to the common body, or to the one as inclining toward the whole with the sense of those others. To this end, I consider how Aquinas begins with an Aristotelian understanding of habitus, focusing especially on the heart individually construed, and then how a scriptural reinterpretation of the heart recenters the logic of habitus from any body to Christ's body. From here, I turn to the narratival arc of fear as present in the Summa Theologiae commentary on Matthew and commentary on Romans, which demonstrates a gradual transformation of affectivity in the disciples so that they will follow Christ toward the end of justice. I argue that the transformation of the heart dismantles the logic of slavery through the spiritual sense, with consequences for how the disciples are to embody justice, thus showing the political dimensions of the transformation of the heart that occurs through fear. More particularly, in the movement from servile to holy fear, Aquinas uses the Pauline language of conversion from slavery to freedom. This analogical use of slavery, I argue, moves the spiritual sense of freedom toward the literal work of seeking justice in the body politic, particularly as the logic of freedom reveals the nonsense of slavery in the legal sense. I'm not claiming that Aquinas himself makes this argument. He suggests a utility argument to some being made slaves elsewhere, but that the judgment these texts move the reader to make bend in this direction. This receives, I think, a confirmation in the question on Christ's judiciary power in the Tertia Pars, where Aquinas affirms that all these things, namely all the ways in which the human person's action continues in its effects even after death, are submitted to the verdict of the divine judgment. As he writes, "Wherefore, there must be a final judgment at the last day, in which everything concerning every man in every respect shall be perfectly and publicly judged." This final judgment of everything concerning every man in every respect completes the logic of habitus as it inclines toward the body politic, not only with those others who belong to this body in the current circumstances of a person's life, but also as these circumstances continue to affect those that follow. Through memory, children, continued effects of particular actions, and even the state of the body he mentions left buried or unburied, and the temporal concerns when left behind upon death. In sum, the dismantling of the logic of spiritual slavery posits an affective bond that shows the concrete work which the disciples are called to do in seeking justice in imitation of Christ. So looking briefly at Aristotelian physiology and habitus. Aquinas follows Aristotle in positing the nature of habit as a quality, even as health is a habit that disposes the body toward well or ill. In this way, the virtues are to moral matter as health is to the body. As health is a suitable disposition of the body, so virtue is a suitable disposition of the soul. As health is conceived as a medium that falls between the haver and what is had, so virtue mediates between a power and its act For Aristotle, the habit of health not only supplies the logical basis for conceiving the habit of virtue, but there is also a literal connection between health and virtue, with the heart playing a particularly vital role. For Aquinas, the habit of health supplies the logical, the logical basis for conceiving the habit of virtue. But the scriptural basis of the heart turns this logic toward an analogical reasoning that centers on imitation of Christ. I will only allude to this imitation of Christ here and turn to it explicitly in the second section. So for Aristotle, and I'm summarizing using, uh, Theodore Tracy's Physiological Theory and Doctrine of the Mean study. For Aristotle, the heart is the central organ of the animal body, that through which the soul primarily activates the entire organism. On the nutritive level, the heat of the heart counterbalances the cold of the brain so that the organism functions in good health and is able to adapt to changing conditions in the environment. The functional regularity of heart and brain produces a proportionate blend in the blood, maintaining the middle or mean state in the organism. The notion of proportionality or the mean state, which regulates between heat and cold on the nutritive level, prefigures the notion of the mean in the exercise of virtue, which regulates between pleasure and pain. This is not to exclude the intention directed toward an object carried by the passion, but rather to highlight the physiological basis of the analogical use of the mean in virtue. Because of its role in regulating heat and cold, the heart is also the center of sense perception, and it is sense perception that drives the formation of images and phantasms that guide action. Equilibrium in the sense organ facilitates a proportionate response to external stimu-stimuli, whereby the organism receives the form of the object recorded in memory accurately, and thereby exercises a kind of judgment on the object. Disproportion between heat and cold, or imbalance of function between heart and brain, obstructs sense impressions and results in a distorted perception of objects. When the heart responds to stimuli with sensations of pleasure or pain, it shifts the balance of hot and cold and initiates the movement either of pursuit or of avoidance for the entire organism. So certain passions are ascribed to certain physiological movements. To be angry or to fear is for the heart to be changed in this way or that. Aquinas' treatment of the passions follows Aristotle in this interconnectivity between corporeal movements and the quality of the passion And yet the heart that from which both good intentions and sin arise simultaneously follows a different logic On the one hand, the literal place of the heart and its central role in governing the entire organism remains in Aquinas, as seen even in the commentary on Second Corinthians. As he writes, "The sign of an expanded heart is an open mouth because it adheres immediately to the heart. Hence, the things we express by the mouth are express signs of the thoughts of the heart." We see this also in the treatment of the effects of fear in the Summa Theologiae. As he write, "In fear, heat abandons the heart with a downward movement. Hence, in those who are afraid, the heart especially trembles, as also those members which are connected with the breast where the heart resides. Hence, those who fear tremble especially in their speech on account of the tracheal artery being near the heart." By the end, however, of this treatment of the effects of fear, the final word goes to Isaiah, "Strengthen ye the feeble hands and confirm the trembling knees knees." And the first word in the next article goes to Paul, "With fear and trembling work out your salvation." While trembling may very well be explained for Aquinas by downward movement of heat, and he will even recommend a soothing bath for sorrow, it is evident that the heart of the matter lies elsewhere. So turning to a narratival arc of fear. In the Summa Theologiae, Aquinas describes that filial fear is the first of the gifts of the Spirit, because it removes the first obstacle to being moved by the Spirit, which is resistance to being moved by God. Fear as the first of the gifts is also the beginning of wisdom as the first of its effects. As he writes, "For since the regulation of human conduct by the divine law belongs to wisdom, in order to make a beginning, man must first of all fear God and submit himself to Him, for the result will be that in all things he will be ruled by God." Fear then marks the beginning of the person's conformity to divine wisdom. As the person begins with imperfect charity, so the person begins with initial fear Aquinas writes with pre-initial fear, one is moved to perform good actions, not only through love of justice but also through fear of punishment Though the same act, fear of punishment, ceases in the man who has perfect charity, which casts out fear. In the commentary on Romans chapter eight, treating how the spirit makes us children of God, Aquinas further describes holy fear, and this corresponds to the perfect in charity. This fear, he writes, has its eye entirely on spiritual things because it fears nothing except separation from God. This reflects the perfection of charity, wherein the person aims chiefly at union with and enjoyment of God. This belongs to the perfect, who desire to be dissolved and to be with Christ. Thus, in the path through fear, Aquinas describes a gradual transformation of the person who initially fears punishment from God, so namely the loss of goods that are loved, either proportionately in relation to love of God and neighbor and in view of the ultimate end, or disproportionately and hence sinfully. Gradually, the person is led to a more perfect love of God, which casts out fear of punishment and grants increasing freedom as well as growth and justice. Hence, Aquinas affirms, love makes freedom. Conversely, remaining in fear of punishment without growing in love of God leads to the state of servility, where one is moved out of fear without love of God. Hence, fear makes slavery. Before taking up the analogy of slavery and freedom, I want to turn to the commentary on Matthew, where Aquinas applies another analogy, this time of sheep, in order to treat the same question of growth according to fear. Whereas in the Summa Theologiae, Aquinas follows Aristotle in using the example of sheep as a contrast to highlight the voluntary nature of human action. In Aquinas's treatment of the gift of fear in the commentary on Matthew ten, the sheep becomes an exemplar to be imitated in its quality of following. This points to a scriptural and pastoral approach that takes precedence over Aristotelian science. The quality of docility or being moved and led, which rendered sheep a useful contrast to the voluntary nature of human action, becomes here an affective and memorial prompt to imitation of Christ. Commenting on Christ's instruction to the disciples, I send you as sheep among wolves, whom he is sending out on mission, Aquinas provides a path of gradual perfection and affectivity, where the dynamic between the passion and gift of fear parallels the dynamic between self-love and charity, so that the pedagogical end is a union of affection with Christ that inclines toward justice. Sheep which are compared to other senseless beasts are now an exemplar for moral action used to effectively prompt the reader to a grasp of the relationship between Christ and his disciples. The quality of following attributed to sheep is likened to understanding the teaching and example of Christ. The quality of being senseless attributed to wolves, horses, and mules is likened to power gained through worldly violence, honor, and wealth. Having a seat of honor, which honor is from the world, leads to worldly sinful love whereby the person places their own honor before love of God. This, in turn, dulls the understanding that comes from Christ. So this person is described as a wolf by affection, namely one who lacks understanding owing to a lack of receptivity toward Christ, the one whom the disciple is to follow like a sheep, receiving understanding by allowing the memory to be impressed by the image of God's Son, to use the seal and wax analogy. The sheep analogy reveals an actual analogical correspondence in nature despite a firm separation in terms of the nature of voluntary action In other words, one can be like a sheep according to the very quality that distinguishes human from non-rational animals and like Christ in an analogous manner. In the slavery analogy, however, one cannot be like a slave in the spiritual sense according to the very quality that renders one not free and also be like Christ in an analogous manner. Slavery and freedom contradict in the very quality that would be required for the analogous understanding. Therefore, there is no analogy but a contradiction in terms. The question then is what this means for the pursuit of justice in the body politic, namely as one who belongs to the common good and inclines toward this good together with those others who belong to this order Christopher Franks points to attention in Aquinas's rejection of natural slavery on the one hand and willingness to grant the usefulness of one person being subjected to another as one who is ruled to another who is helped on the other. Aquinas's clarifications of Aristotle following Franks occurs not by abandoning the concrete particulars of the order of the world in favor of abstraction but rather, quote, "By setting what he adopts from Aristotle within the drama of the Christian life." In so doing, Aquinas affirms that any subordination in the household is itself subordinate to the true ordering of all human beings to their end in God. While this allows Aquinas to limit the authority of the master, particularly through joining the capacity for self-direction to ordering to God, it does not seemingly dismantle the ordering of slave to master The commentary on Matthew at least suggests, I think, something more, which is reflected in Aquinas' treatment of Christ's judiciary power in the general judgment. First, to return to the commentary on Matthew ten, the disciples are called to imitation of Christ, even in the face of danger and persecution. They are to bear witness to God's power in their conduct, rather than turning to human power or violence. This is even the reason Aquinas states that God sent poor men, namely those without worldly means, to defeat worldly power. As Aquinas' commentary proceeds, it is clear that if the disciples are going to proclaim Christ, who was poor, they too need to be willing to accept the price of their own lives. And this is so they will not put their own good before that of the ones to whom they are sent. The memorial and affective prompts to imitation of Christ, carried by the analogy of be like sheep, thus teaches poverty in spirit for the purpose of justice. As Aquinas writes, "But you should have great consolation even in suffering, because it is for my sake, namely whom you love. Blessed are they who suffer persecution for justice sake." Out of their poverty, the disciples are to rely on God's power and not worldly power in imitation of Christ, and sof-- and suffer persecution for the sake of justice. It is clear that the disciples who will experience fear and trembling, or the downward movement of heat that causes knees to shake and lips to quiver, are to turn their trembling hearts to the one they imitate rather than seek power over others. So finally, to turn to Christ's judiciary power. If every part is ordained to the whole, and to move toward the particular in light of the common good is also to move toward the universal, since the common good of the whole universe is God and God moves all things to good, then the justice that springs from poverty of spirit becomes a privileged place for seeing how God moves all things to good through human ministers. Here especially is where one inclines toward the good or desires the good in common with those others who belong to this order. But I would add especially those others who belong to this order and are not yet free in this order, whether in the spiritual or legal sense. All these sinners or saints are the end of justice as the fruit of poverty of spirit While Aquinas affirms the utility of some being slaves in light of the way the world is now, as Franks puts it, the way the world is now is not what governs divine judgment in the end. As he writes, "Judgment cannot be passed perfectly upon any changeable subject before its consummation. Just as judgment cannot be given perfectly regarding the quality of any action before its completion in itself and in its results, because many actions appear to be profitable, which in their effects prove to be hurtful." The final judgment thus considers not only the action, but the effects of action, and not only on individuals, but each and every thing pertaining to every man in every way, and it does so perfectly and publicly. In this way, it is the body, whole and entire, and the various, various relations within the entire body that is judged as to whether each order to the whole was so ordered as to say it was together with the others. From this end, the logic that separates spiritual slavery from freedom also calls for freedom in the body politic as that toward which the whole is ordained and each within. Thank you.

Speaker 2 52:11

Thank you, professor. We, uh, now have some time for questions

Speaker 10 53:15

Sense of political purchase. I, I don't know if, I don't know if you wanna be a little more specific as to the crit- criticism you want me to respond to. Uh-

Speaker 9 53:22

I don't have in mind anything particular. Okay. I'm just trying, like, as far as like situating the, the arguments in the, uh-

Speaker 8 53:29

Okay, so fair enough. Yeah, I think, um, so part of it I'm kind of doing a fundamental reading of the common good, and so this is just kind of how do we kind of take these fundamental questions of agency and kind of order them towards... I think often, because I kind of look at virtues and gifts often, and l- all of this stuff is kind of done individually often. And so it's kind of thinking, how do we transfer when we talk about habitus and virtue and gift, just kind of in an individual to a more corporate sense. And so this is... So that's where I'm coming from. So it's kind of from the foundations of theology, just to give that context. Um, and I think more broadly, what I'm interested in is kind of... I haven't pursued it. I've kind of not done more than a cursory look, but it's kind of how do we think about, um, the question of slavery, and so how did this, like because the, the scholastic debates that followed. And I think so, I think a lot of the analogies that are kind of in Matthew 10, that you see this, um, in a lot of those debates as well. And so I haven't done... I have to go through and do this kind of systematic work, but that's what I'm interested in seeing, is how do we kind of see what Aquinas is doing in the scriptural commentaries to kind of support, um, those debates that kind of happen afterwards, um, especially in the Salamanca school. So that's, that's where I'm coming from. Um, yeah, I don't know if that answers your question, but-

Speaker 9 54:32

Yeah. Thank you. Yeah. I thought it was

Speaker 10 54:38

Okay. Yeah, thanks.

Speaker 5 54:46

Yeah, I, I, I have a question. So what is it that Thomas talks- Okay. So about 50 years before planning to start in Salisbury, it was probably the first thing for the nearest medieval period in E interest body Wondering how we situate that

Speaker 8 55:12

Yeah, that's a good question. I've kind of been reading this, I'm kind of doing this from, yeah, from that fundamental sense. I don't, um, yeah, I'd have to do some comparative work. I don't, yeah, I don't have anything offhand to kind of

Speaker 2 55:30

All right. Well, Professor, thank you very much again

Can Law Cultivate Virtue?

Speaker 2 55:38

And our final speaker is Catherine Lemos. Catherine is a doctoral candidate in moral theology at the University of Notre Dame. She concentrates on the historical retrieval of Aquinas's theories of law and moral virtue as they can address current issues in political philosophy and Christian ethics. Her presentation is titled Can We Believe Law Cultivates Virtue? Please join me in welcoming Catherine Lemos.

Speaker 11 56:08

Hear me all right? A little bit closer? Is that good? Okay. Thank you. Okay. Do the laws of our society, which Aquinas referred to as, uh, human laws, foster virtuous habits in us? If so, how do they accomplish this? These are the questions that this presentation will take up. My research as a whole is motivated by a longstanding interest in Aquinas' theory of law and a desire not only to examine one slice of it, that is, his discussion of human law, but also to consider how we can still embrace Aquinas' understanding of human law at a time where our debates about law's proper roles and our ways of describing law's impact were not as much a part of Aquinas' world. In exploring the link between legislation and ethical formation, the issue of laws that are felt to explicitly legislate morality and center on cultural debates that stoke polarization will not take center stage. Rather, my interest here is in discerning how legislation in our society pertaining to human acts in general, even more mundane practices of daily life, imparts some measure of moral formation to us. Additionally, this paper will limit its analysis to a growth in moral virtue and leave the question of growth in infused virtue to the side. The topic of human law's ability to cultivate virtue is a perennial one, yet returning to it is an important task for the following reasons. Reflecting on the state of virtue ethics in the twenty-first century, one Thomist scholar, Thomas Osborne, has stated that perhaps the greatest difficulty for Thomas' account of the virtues is not the theoretical challenges of contemporary science or philosophy, but the difficulty of thinking about virtuous action in light of our current practices and institutions. My arguments here attempt to answer this challenge to some extent by articulating how virtuous habits are encouraged by the institution of our laws. Additionally, the position that human law cultivates virtue, a pillar of Thomistic legal thought, gives rise to an issue that, in my view, needs to be treated more explicitly. Aquinas affirms in the Treatise on Law that it is an effective virtue to make men good, that is, to develop virtues in them. Yet earlier in the, uh, in the Treatise on Virtues, he also affirms that virtue acquisition depends not only on proper formation coming from without but also on what the individual growing in virtue does. That is, the acquisition of virtue always requires the agent's reflection, which entails internalizing paradigms of virtuous action and coming to see virtuous acts as part of a good life as a whole. Now, in recent Thomistic scholarship on human law and virtue, no one has claimed that human-made laws are simply, uh, simply implant virtuous habits in us. Rather, we find laws described more as a launchpad for virtue. Scott Rauniger speaks of law as foundational for virtue and offering excellent training in and support for virtuous action. An earlier Thomist, Clifford Kosal, notes that by accustoming people to do the right thing, it is the hope that law will lead them to virtue. Since it is recognized that growth in moral virtue requires personal reflection and not only proper formation coming from- Sources outside the individual I would urge that when we say that human law cultivates virtue when we affirm Aquinas' thesis here we need to be clear that what we are saying is that our laws can prime us for virtue, but does not do so by implanting the habits in us. Rather, what I plan to defend in this paper is the view that human laws can poise us quite well for virtue, but do so through the development of dispositions to virtue, which are less stable inclinations to good acts than are habits. I believe the clarification of the kind of inclination law can foster in us is a point that ought to be articulated more explicitly into mystic scholarship, since doing so acknowledges the gap between the affirmation that law can make us good and the idea that becoming good that is virtuous does not happen without our own intentional efforts. Additional reasons for revisiting this persistent question emerge within the wider field of American Christian ethics as well. Not long ago, the Christian ethicist Kathleen Caveny accused, quote, "Much of contemporary political theology of speaking inaccurately about our laws in three particular ways." For our purposes, it is necessary only to single out one of these misconceptions she identifies, namely that, quote, "Law's main purpose is to coerce persons to act against their will rather than help coordinate their actions to help them achieve their objectives." End quote. This suggests a contemporary mindset, at least among theologians, that conceives of law's purpose as exercising restraint and prevention rather than edifying those who observe it. Furthermore, Christian theologians today are eager to understand more precisely the ways in which stru-- uh, structures shape moral development a-and agency. And within this general interest, we could certainly include the question of how virtues are cultivated by institutions. My project here could be considered a granular analysis of the formative powers of one such structure, that is, our laws. Finally, understanding the law's capacity to train us in virtue is important because it can offer a note of hope to those seeking to articulate models for Christian political engagement. I believe that an argument for law's positive pedagogy indicates there are means of cultivating character present already in our society. Even outside of theology, there is notable renewed interest in accounting for law's influence among an interdisciplinary set of scholars with a specific interest in understanding law's impact on character formation, ethical education, and the communication of values. Additionally, a growing number of American political theorists have argued that democratic societies like ours need skills that arguably equate with the civic virtues of piety, prudence, honor, and that public institutions should contribute to the cultivation of these virtues in some way. Um, it stands to reason that these authors would endorse to some extent the view that law as a mechanism for shaping citizens should contribute to such growth. What I will argue, as mentioned, uh, is that human law poises us quite well to develop virtues, but given the nature of growth and virtue, can properly develop dispositions to virtue in us. Law as a formative structure that exists outside of ourselves leaves us to undertake our own reflection in order to make connections between our acts and our lives as a whole, which is a step crucial for cementing habits. This is thus an argument for a positive pedagogy of the law, which still recognizes the point that virtuous acquisition depends heavily on what the agent herself thinks and does. It should be mentioned that illuminating accounts of law's positive pedagogy have already been offered from scum- scholars such as the political theorist Mary Keyes and Kathleen Caveney already mentioned Keyes, for example, offers an account of positive law's pedagogical force that takes its starting points from Aquinas' description of the influence of law, uh, of the old law which Keyes says can illustrate, quote, "The positive pedagogy Aquinas predicates of every good law." End quote. She proceeds to name law's ability to remedy ignorance, establish habituation, and teach us how to relate well socially to one another. Agreeing with much in Keyes' position, my own account seeks to distinguish itself by a distinctive starting point, namely by starting with an enumeration of the components of growth and virtue and considering how our laws touch on each aspect of growth, so to speak. In my own argument, I aim to show not only that laws foster virtue in several ways, as Keyes illustrates, but that they address growth and virtue in a comprehensive way. Two disclaimers before beginning to take up the project just described. My work here focuses on law's cultivation of virtue and leaves to side the concerning and widespread problems of unjust laws that not only disadvantage those whom they govern but also foster dispositions to vice. Though identifying such laws, elaborating upon their corrosive influence, and proposing means to combat them is not my project, such an exploration would be quite valuable. Additionally, this project does not claim that each and every law of our society offers a statement about a kind of action, um, that an individual can perform. Laws regulating different industries, infrastructure, et cetera, are not, upon first impression, statements about acts that one individual performs in relation to another individual, even as they may ultimately influence actions undertaken by individuals. Though this consideration has been put forward as a way to complicate a project like mine, that is, one defending a perfectionist vision of law, it can still be argued that we main- we remain subject to many laws that do target our individual conduct, and for this reason, we can still think about law's impact on individuals' actions and character. So what is it about the features of law, uh, of human law that make it able to cultivate virtue? Uh, going forward, it mentioned at the-- should have mentioned at the beginning, but when I say law, I am specifically thinking of human law here. Um, in asking how law is a fitting tool for cultivating virtue, we need definitions of law and virtue in an account of growth in the latter. As is well known, Aquinas defines law in the Prima Secundae as nothing else than an ordinance of reason for the common good made by him who has care of the community and promulgated. Law is not meant to pursue the welfare of individuals as individuals in the way that parents pursue the good of their own children. And to this end, Aquinas will say that human laws ought not to rule out every last socially disruptive behavior, but only those that would, if left unchecked, cause society to unravel. As for virtue, we know Aquinas defines it as a habit of the rational creature's capacities for action, sense appetites, the will, which is the rational appetite, and the inticle- intellect, and that such habits enable the rational creature to desire and think in a manner conducive to its flourishing. To show how law touches on each aspect of growth and virtue, we need to enumerate the latter. William Madison, in his recent book, Growing in Virtue, writes that properly human habits are caused by repeated acts that are properly human. That is, when the agent grasps the end with reason and intends it with the will The person who has inclinations towards acting in certain ways but lacks the rational apprehension of and desire for the end of the act is said to have a disposition towards that kind of behavior, but not to possess a habit for it. This indicates that the repetition of any sort of act does not suffice to achieve a habit. What a habit requires is that we intellectually grasp not only the object of the habit, sometimes referred to as a proximate end, um, that is, the characteristic kind of action associated with it, but also the habit's end, that is, the point or value of the habit. We also need to desire the object and end of the habit with our wills. Jean Porter emphasizes the importance of offering children paradigms of virtue that is typical or noteworthy instances of action which exemplify a given object of a virtue. This point can be extended to anyone learning to grow in a particular virtue, that we need examples of acts that we can imitate as part of the learning process. Thus, we can also identify repetition of acts of virtue as a key component of growth. Finally, if a person possesses a habit rather than a disposition, he will understand the end of the habit in relation to further ends the habit serves and even more distant ends. In other words, as Porter writes, a person will grasp a point or the value of the paradigms of behavior, seeing these kinds of behavior not only as admirable and worthy of imitation, but also contributing something to the further end of a good life overall. Hence, growth and virtue can be identified with four key components, a rational grasp of the object of the habit, a desire for the object, the repetition of acts that seek the object, and the ability to see the relation between the object of the acts and the further ends related to it. To this end, we should ask four questions. Do our laws help us intellectually grasp the object of a virtuous habit? Can laws help us desire it? Can law encourage the repetition of acts whereby we understand the object with the intellect and desire it with the will? And finally, can law help us grasp the object or proximate end of the habit in relation to further ends that the habit serves? First, does law give us a rational grasp of the object of the habit? And if so, how does it do this? To answer these questions, we can attend to what Porter writes about the relationship between moral rules and virtues. In a section of her work, Justice as a Virtue, devoted to dismantling the false dichotomy between ideals of virtue and moral laws or rules, she writes, quote, "Moral rules are correlated with generic kinds of action and constitute the object of the relevant acts in such a way that we cannot grasp the rules without some concrete comprehension of the kinds of acts in question. Similarly, a habit which is a reference-- which is, uh, a disposition oriented towards activity is defined by reference to the kind of action that it characteristically generates, which Aquinas identifies as its object." Let us apply this insight to human law. Recall that law is an ordinance of reason, a rational judgment about what actions are necessary for or harmful to the common good. Rules about actions, such as our laws, as Porter have noted-- has noted, make statements, prohibitions, commands, permissions regarding certain kinds of action, and these kinds of action constitute the various-- the objects of various acts and habits. A specifically legal prohibition of a kind of action can put up a barrier against performing an act that has that kind of action as its object. This prohibition also acts as a deterrent against developing a habit which has that kind of action as its object. We can say further that the prohibition generates an object of a prohibited act, which can serve as the object of a vice. For example, the prohibition of murder, which Aquinas endorses, prevents us from performing acts of unjustified killing. Being prevented from acting in this way would further save us from developing the vices opposed to commutative justice and charity, since murder is a violation of justice and of charity. Furthermore, such a prohibition can suggest a kind of action, an object that is contrary to the prohibited act, which can serve as the object of a virtue. Thus, good laws can help us attain a rational grasp of the objects of different virtuous habits by identifying those objects for us, or at least identifying paradigmatic instances of acts that seek those objects. To the second question, can law encourage a desire that is a rational appetite for the object of an act and subsequently a habit? On the one hand, Aquinas knew, and we know from our own experiences, that by repeating a behavior over and over again, we can shape our attitudes, including our desires, regarding the action in question. Thus, insofar as law mandates or discourages certain external behaviors, it can begin to shape our interior attitudes towards certain kinds of action. What is more, laws incite emotions and telegraph moral judgments about the value of different kinds of acts, which can affect whether we think the object of the act is good and thus ought to be pursued. Aquinas is aware that laws of all kinds provoke emotional reactions. Human law can provoke fear of punishment, and if it lays excessive burdens on our shoulders, can incite contempt and frustration, leading to acts of rebellion. The passions of fear, anger, and hatred, Aquinas would say, are responses to particular evils. Um, and yet, through intentional reflection on these emotions and the varying circumstances in which law prompts them, we can discern what good or bad objects, considered more generically, we were responding to in those instances. At this point, we can begin to formulate concepts that can serve as the objects of our rational appetite, that is, the will. This reflection is no means guaranteed by the law. Rather, it is a process we have to undertake for ourselves. Still, law's impact on our emotions can offer the data, so to speak, for such reflection. Let us also briefly consider findings from contemporary scholarship on law's impact on attitudes as distinct from behaviors. Scholars working at the intersection of law and psychology have found that knowing that a kind of action is illegal has been shown to have some influence on shaping the moral cognitions of the citizens under that law. That is, individuals' assessment of acts as moral or immoral. Law is also shown to have some influence On a group's moral assessment of acts when it is considered to express a group's wider moral code. Finally, these scholars also hold that law can change the social meaning or reputation of a behavior, such as taking time off from work to care for children, or wearing a seatbelt, or smoking. To be fair, the fact that law has been shown to influence whether we judge an act to be good or bad does not amount to giving us a desire to perform a certain kind of act. Yet I would argue that this impact provides a starting point for the development of such a desire. Our third question, whether law can encourage us to perform properly human acts repeatedly. I would argue here that law does at least invite the repetition of acts insofar as we can't help but run into it, so to speak, on a daily basis, whether we are on the road, interacting with colleagues, or shopping at the store. Human law cannot compel us to act with certain thoughts or intentions, yet it does present us with opportunities over and over again to perform acts that seek the objects of the virtues, and this is a step towards possessing a virtuous habit. Uh, Mary Keyes observes this point when she highlights the ability of laws to, quote, "Expand the scope and variety of the agent's activities conducing to the act-- the virtues in question, and to provide more or less frequent reminders of their importance." Our fourth and final question is, does law help us grasp not only the object of an act and a habit, but also the further ends of the habit, that is, those ends in relation to other ends? One can recognize that law offers this instruction in this regard, too. Note again what Porter writes about the necessity of human-made law, even in a sinless society. She states, quote, "In short, without access to a legal framework, men and women within a sinless but large-scale community would at best function at the level of good children. They would be conspicuously deficient with respect to the proper perfection of social life. They would lack the critical foundation of all genuinely virtuous activity, namely, a rational understanding of the relevant aims and the overall point of one's actions, and correspondingly, an intelligent appreciation and enjoyment of these as genuinely good." End quote. Further elaboration on Porter's remark can clarify the connection between law's orientation to the common good and individual virtue, which can help answer our fourth and final question. As mentioned before, we can plausibly conceive of the law as offering us a portrait of the many facets of the common good, from our road safety to education to taxes and everything in between. We know that law is not directed just to my benefit or to yours, but to the good of the commons. Yet even as law is meant to achieve the common good, we rarely think of ourselves as explicitly pursuing the common good. It is more likely that when we act, we have in mind what we are doing, that is, the immediate end or goal of our action, and maybe one further goal. Regarding these last two points, Thomist scholar Jay Budziszewski asks, quote, "Does St. Thomas think that whenever anyone acts, he does so with the motive of advancing the common good, or at least not undermining it? No, but motive is not the same thing as purpose. Just insofar as he is a member of the community, the citizen's acts are properly regarded from the view of the community's shared purpose, the flourishing of their partnership in a good life, because his own good and the good of the community are intertwined. This is what he rationally seeks, even as it is not what he actually seeks." End quote. Hence, we are likely not explicitly at least thinking about our act's contribution to the common good, even as our act could make such a contribution. I want to suggest that the presence of the law as something that governs our actions but seeks an end beyond ourselves invites us to recognize and also name explicitly how our interactions with others do in fact serve the further purpose of the common good. We are already in the habit of articulating the further ends of our action to some extent. When we consider what we are doing as an act of law observance, we, we have the chance to make the connection between the objects and the ends of our actions and the common good, which is law's end. Insofar as we do this, we take on that far-ranging perspective crucial for virtuous-- for an actual virtuous habit that begins to glimpse the unity of our actions in a single end.

Q&A, Case Studies, and Closing

Speaker 11 1:16:15

In conclusion, we have examined one way in which human-made law can properly be recognized as a teacher of moral virtue. It contributes to the development of each component of growth and virtue in some way. Given this way that law addresses growth and virtue comprehensively, I believe it is plausible to think it can foster dispositions to virtue in us. That is, inclinations to act that nevertheless lack the stability of a habit. From our observations of society around us, it is obvious that compliance with our laws, even with laws widely regarded as just, do not guarantee virtuous habits. Rather, engagement with the law has the capacity to foster key components of virtue, and I have spoken of law as providing starting points for virtuous desire and offering opportunities to repeat acts of virtue. Yet to have our powers be moved and inclined, not by dispositions but by habits, we do need to reflect upon the inclinations that law engenders in us. This reflection can take the form of trying to grasp not only the larger picture of the common good within which our actions have a place, but also the relation of our law-abiding and acts to a good life as a whole. Thank you.

Speaker 2 1:17:28

Thank you, Catherine. We now have

Speaker 6 1:17:28

time

Speaker 2 1:17:28

for questions.

Speaker 6 1:17:30

Yeah.

Speaker 2 1:17:30

Yeah.

Speaker 6 1:17:30

Oh, thank you, Kate. Fascinating and promising stuff. I want to know if you have a, um, position on the question of whether law can, um, properly promote virtue in people when their actions are just about their own character as individuals, and not necessarily connected to the common good.

Speaker 5 1:17:49

Mm-hmm.

Speaker 6 1:17:50

So one argument might be, well, government, uh, laws can promote virtue, but that's because of people's virtues have all sorts of effects on the common good, right? Mm-hmm. But one might go further and say, well, it's okay to promote virtue even further just for making people better. Mm-hmm. Like take for example, um, like the, the regulation of pornography.

Speaker 5 1:18:10

Mm-hmm.

Speaker 6 1:18:10

Like one legislator might say, well, pornography does terrible damage to marriages and families, and that has social costs and, uh, terrible effects on the social fabric and so forth. But another legislature might, legislator might go even stronger and say, "Well, that's all true, but I think it's sufficient just to say we should, you know, regulate pornography to make people better."

Speaker 10 1:18:32

Mm-hmm.

Speaker 6 1:18:33

To stop them from being vi- vicious, right? Mm-hmm. That practicing this vice just because their souls are important.

Speaker 10 1:18:38

Mm-hmm.

Speaker 6 1:18:39

Now, w- would that be a permissible, um, use of government power, or must there be some link with the common good?

Speaker 11 1:18:48

I think for Aquinas, there would have to be a link for the common good, but I think the way that he would probably treat that issue, it wouldn't be very difficult to find- Yeah what that link is, and it could have kind of... You could sort of trace out, like these are sort of the immediate, you know, valuable ends of it, and these are the longer term valuable ends of it. So, um, yeah, I think for it truly to be law, it does have to have that sort of securing of what he says the final end of law should be, at least in the prima secundae. But I don't think for certainly an issue like that, it would be maybe too difficult to kind of find that one, if that helps, Warren.

Speaker 5 1:19:25

No, I think this is really good. I want to go back to-

Speaker 11 1:19:33

Mm-hmm

Speaker 5 1:19:34

Right. Um, and it sounds like on your account

Speaker 4 1:19:47

Mhm

Speaker 5 1:19:58

So I'm wondering, and I guess this follows up on another question, um, how- Like if you could, I think

Speaker 11 1:20:26

So just to clarify, are you asking for a, a concrete example or-

Speaker 5 1:20:30

Well, yeah, I mean, I, I, I suppose so. Mm-hmm. I guess, like, yeah. Mm-hmm. I'm thinking, I'm thinking through it. It seems like it's You're actually-

Speaker 11 1:20:42

Hmm. Um, so one, uh, after this more sort of theoretical treatment of Aquinas, um, I am looking at a particular case study. Um, the law that I'm looking at is the Family Medical Leave Act passed a while ago. But, um, and using particularly Kathleen Caveney's work where she mentioned that and actually seeing that law pop up in a few other places from scholars who I refer to as studying sort of law's impact. But they are not, you know, working with Thomas or this particular theory of law. They're-- Some of the ones that I'm looking at are, um, I'm drawing those ideas of law sort of telegraphing moral emotions and how it's changing the social meaning of behavior. And, um, there are some people who have kind of done interviews, uh, with individuals who've exercised this right, and they have found that law, um... And they, they do report like, you know, knowing that this law is, is there and it's available for them to use kind of clarifies like the moral dimensions of their situation for a little bit, gives them a vindication in pursuing, you know, oh, I need, you know, this arrangement for my work life and this arrangement for my family life, which I see as them kind of recognizing like what justice would look like in their lives and what charity would look like, and sometimes piety if it's care for, you know, another member. So-- And certainly the way that, um, these interviews with people go, like you, you see laws just sort of like, you know, pushing the ball out a little bit, so to speak. Just sharp-- But particularly going to that first point I said about does law help us, um, give us kind of paradigms of certain kinds of action that can be the object for virtues, um, and acts and whatnot. I think we, we see it in a few particular cases. It's certainly offering those paradigms that people are kind of grasping and absorbing and understanding. That's the, that's the first part of your question. Is there another part?

Speaker 5 1:22:31

No,

Speaker 11 1:22:31

that's basically exactly what Okay. Okay. Very good. Yes. Yeah.

Speaker 5 1:22:36

Mm-hmm. So, um, it's no surprise that laws change. Mm-hmm. And, um, we've seen this, you know... I, I live close to D.C. So like laws, you know, every election there's always like, "Well, let's change this, let's do this. Let's change this law and bill and everything." And you just see with the election, you know, Roe, the, you know, overturned kicked back to the states. Now people want to change it back and all this changing. So, um- Is it that every law cultivates virtue, or is it that only good laws cult-- like legitimate laws, like, cultivate virtue? Happy to talk through that.

Speaker 11 1:23:10

What would you say? Yeah, I, uh, I think I'd wanna take the, the second approach, the second position, um, and not be able to, you know, not try and say something about every particular law. I noted towards the beginning, um, uh, David Van Dreunen has an article about this sort of, I think he calls it, like, the protectionist versus perfectionist sort of argument about, like, what's properly the purpose of law, and then he sort of goes a third way about it. And one of the things that he says is, like, this is a-- this is not really a h- uh, clarifying distinction between laws because we just see, again, l- some laws don't clearly target individual action. And so it's kind of hard to say, you know, oh, it's, you know, offering this paradigm of this particular kind of action. So, um, even as maybe kind of downstream of it, it does have something about what I would do or what you would do or whatnot. So, uh, I think I'd wanna make the more, yeah, the, the more limited claim at this point. Um, yeah.

Speaker 9 1:24:08

Thank you, Kate. Very interesting. Um, so here's a, a, a question on practical implications. Mm-hmm. Um, so it strikes me that people who win major elections are, are, are not mostly good at winning major elections.

Speaker 5 1:24:21

Mm-hmm.

Speaker 9 1:24:21

The people who acquire political power, especially a lot of political power, are, are not mostly interested in the acquisition of power, specifically political power. And so the, the cynical question is, um, suppose we want a set of institutions, including laws, uh- Mm-hmm legal frameworks that, uh, uh, help citizens- Mm-hmm cultivate virtue.

Speaker 5 1:24:42

Mm-hmm.

Speaker 9 1:24:42

Um, is this a good thing to do, all things considered, and over the long term? So what happens when we have- Mm-hmm uh, one leader or one Congress that's really good at the cultivation- Mm-hmm of virtue and, and, uh, crafting legislation that helps with that, um, and then another, uh, set of legislators come to- Mm-hmm or another, you know, major leader, et cetera. Mm-hmm. Um, is that, is that a good thing to have?

Speaker 11 1:25:06

Uh, I think it would call for prudent voting so we know who actually, um, in some way are kind of reflection on what we want our society to look like is carried through a little bit. Um, I don't think it's a, a, you know, law's educative function is something I'd ever think we ought to give up, but what it actually will be able to accomplish will be quite limited as people have... Uh, finally descending into the case studies, there's a lot of, um, disclaimers that you have to note of, you know, um, at least in the case of the Family Medical Leave Act, like employers concealing from employees actually, you know, what their rights are, and then people not knowing how to interpret the law or find it or read it or whatnot. And so, um, it's, it-- Even, even through all of that, you do see, as these particular interviews show, that the law does actually clarify the, the thinking and kind of the moral perception of, uh, of people who are able to exercise it. But there's a lot of kind of hindrances along the way and things that sort of make us curtail what we can actually say law can do. So I don't wanna give up on it, but, like, when you look at it practically, you just have to be more modest about what it can do.

Speaker 2 1:26:24

Yeah. I do have one question- Sure which I'll exercise my-

Speaker 11 1:26:27

Mm-hmm

Speaker 2 1:26:27

my share of power for. Um, yeah, so, um, usually these conversations tend to kind of drift in the direction of speaking about, um, uh, prohibitive laws, uh, in ways that prevent the inculcation of vice. Mm-hmm. Um, and you certainly touched on that in your paper, and, um- Mm-hmm and obviously that that's an important role. Um, but for, for Aquinas, though, you know, there's- Mm-hmm so there's a couple different ways that one can, um, not have virtue. Um, so one of it is- Mm-hmm through, through the, uh, the building up of vice. Um, but one can also lose virtue through not repeating- Mm-hmm uh, virtuous acts. Mm-hmm. So over, you know, a long period of time, you know, someone doesn't practice virtue, they'll end up losing that habit. So in that sense, what would be the, the role of law in kind of positive prescriptions of, uh, virtuous action? Mm-hmm. Uh, so that way, not only does one kind of build up a vice, but actually continues the, the repetitive process of good action so as not to lose virtues that might already be there.

Speaker 11 1:27:30

Mm-hmm. Um, so I think law can help with the third point of repetition insofar as we just have so many laws and they're so prevalent, and it's hard to find a sort of circumstance in life where there isn't some, you know, uh- some kind of legal norm shaping what we might- we, we might not like that idea. We might think, "Oh my God," you know, it, it might feel as constraining. But what I tried to emphasize towards the beginning was, um, you know, okay, we're, we're in a workplace or we're in a home, we're in transportation. Don't we realize that there are kind of laws shaping the, uh, every one of these spheres as we move around, even as we're not consciously thinking about them. And, um, there's one author I was reading who sort of, uh, he, he proposes almost like a matrix situation. He's like, "Imagine if you take a pill and all of a sudden you walk through your life and you're finally seeing legal code all the, all the where, you know, everywhere that you're going." Like, um, that, that is the case that there's likely legal code wherever we are going. Um, but, uh, we're-- even as we're not reading it on the screens and in the air around us. But I think because it's there, because we see other people kind of maybe acting a certain way, we realize, oh, this situation is actually normed in this, you know, way by these particular laws. Um, law can help with the, en-encourage the repetition, um, because, because of its prevalence. Does that help?

Speaker 2 1:29:00

Yeah.

Speaker 11 1:29:01

Okay.

Speaker 2 1:29:01

Thank you.

Speaker 11 1:29:02

Yeah.

Speaker 2 1:29:03

All right. Thank- do one more, and then we're...

Speaker 7 1:29:08

Okay. Uh, I wanted-- in the beginning, you didn't want to talk about it, if you search through our slide pictures, something like that. But then here my question is, I think that- Your presentation mostly focused on human law- Mm-hmm and we discussed across the, uh, session today is that how did the law is helping the common good and looking at common good is God. So my question is whether we get, uh, put bigger preach human law here, will, will it lead to people that we have beatification, which is, uh, putting a common good with God. Uh, in the context, for example, with the FMLA- Mm-hmm how the way I think this law is going to put lead people into the, uh, putting

Speaker 11 1:29:47

a common good, which is God. Mm-hmm. So right, the, the common good that I'm thinking of here is the common good of our, our political society together that we're, you know, we're, um, kind of the different roles that we have, the different positions that we're taking on, that they're properly ordered to one another. I haven't extended my thinking on this so much to be, you know, how does law actually help us attain, you know, beatitude all the way far out there. I'm more thinking of the, um, not the, the very final end, but the end that comes, uh, shortly before that, sort of intermediate end of just a common natural life together, which can redound to that, but is not, uh, not the final end that, uh, we believe that we're destined for. So, um, it gets us to practicing cardinal virtues, performing acts of cardinal virtues, and maybe through the practice of those, um, practicing infused virtues. But, um, the common good that, that I'm thinking of here is, is the one that falls short of finally beatitude. But we are practicing cardinal virtues through this, if that helps. Okay. Thank you.

Speaker 2 1:30:55

All right. Thank you again, and thank you to our panel for their great talks.