NORMATIVE JURISPRUDENCE, AQUINAS, AND THE COMMON GOOD
By Peter E. Quint
Chapter 1 (Revitalizing Natural Law) in Robin West’s remarkable Normative Jurisprudence gives rise to the following thoughts on Aquinas and the common good and on the implications that Aquinas’s discussion, more generally, may have for the search for the common good that Robin West proposes as a central jurisprudential undertaking.
Each of the following four sections, therefore, comments on aspects of Robin West’s call, in Normative Jurisprudence, for a jurisprudence that undertakes a search for the common good.
1. Aquinas and the Common Good.
There may be an ambiguity in Aquinas’s conception of the “common good”, and it seems worthwhile to focus on this issue and to try to untangle it to the extent possible. From time to time, Aquinas may have in mind two different conceptions of the common good –- generally not inconsistent with each other, but different nonetheless. One conception may be a religious common good, and the other a worldly common good, which comprises the more mundane goals of human life and human law.
In Q90 (II) Aquinas says, ”Now the first principle in practical matters, which are the object of the practical reason, is the last end: and the last end of human life is bliss or happiness” (citing Q2 (VII); Q3 (I)). Later in the same section (Reply Objection III), Aquinas states that “the last end…is the common good.” Thus the common good seems to be identified with happiness.
A problem may arise because Aquinas seems to endorse two different ideas of happiness. One idea is discussed in Q91 (IV) in which Aquinas notes –- in the course of explaining the necessity of Divine Law (scripture) — that “man is ordained to an end of eternal happiness, which is inproportionate to man’s natural faculty” -– certainly a reference to a religious form of happiness. Moreover, Q5 (V), cited at this point in Q91 (IV), refers to a clearly religious form of “perfect Happiness”.
Yet, Q5 (V) also refers to “[i]mperfect happiness that can be had in this life,” and it is certainly clear that in much of the “Treatise on Law” (Questions 90-97) Aquinas is talking about a secular common good. For example, in discussing whether human law may be interpreted broadly, or whether it must be interpreted according to the letter (Q96 (VI)), Aquinas gives the example of defenders of a besieged city who are being chased by an enemy outside the walls. Under these circumstances, may officials open the city gates to save the defenders, when there is a rule of human law stating that the gates must be kept closed? In answering this question Aquinas –- in this instance, as in many others — combines rigor of theory with a very sensible result. Under these circumstances, Aquinas states, “the gates ought to be opened, contrary to the letter of the law, in order to maintain the common weal, which the lawgiver had in view.” Assuming that the “common weal” is equivalent to the “common good” — indeed, Aquinas actually uses the phrase “common good” at an earlier point in the section — this answer certainly sets forth a secular conception of the common good, and it seems likely that it is this secular view of the common good that predominates in Aquinas’s discussion of human law.
Moreover, it is likely that the secular common good largely overlaps with a possible religious common good –- because following human law toward the secular common good generally constitutes an important step toward religious ends. Yet the religious form of happiness requires more than the secular form, and those requirements are covered largely by what Aquinas calls the Divine Law (scripture) because of human inability (in Aquinas’s view) to achieve religious happiness without specific divine assistance.
In Normative Jurisprudence, Robin West is clearly focusing on a secular view of the common good, which is indeed the view that most contemporary readers and thinkers on the subject might well adopt. Yet, to the extent that Aquinas is important for this enterprise, it may be worthwhile to distinguish the secular common good from a possible religious common good, because the religious common good might ultimately require certain abnegations and limitations on aspects of human flourishing that might be broadly inconsistent with our views of the secular common good which, in West’s view, we should be seeking to analyze and achieve.
These speculations also raise another question that eventually may have to be confronted in the search to be undertaken by jurisprudence for the common good: if religion is to be considered an aspect of the common good (as a reading of Finnis, for example, might suggest), and if religion requires an asceticism that may curtail certain other aspects of human flourishing (and therefore other aspects of the common good), how are these tensions or contradictions to be resolved?
2. Aquinas as Democrat and Egalitarian
a. Aquinas as Democrat