Discussion 6

Marriage, Slavery, and Natural Rights in the Political Thought of Aquinas Author(s): Paul J. Cornish Source: The Review of Politics, Vol. 60, No. 3 (Summer, 1998), pp. 545-561 Published by: Cambridge University Press for the University of Notre Dame du lac on behalf of Review of Politics Stable URL: http://www.jstor.org/stable/1407988 Accessed: 15-05-2017 18:13 UTC

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Marriage, Slavery, and Natural Rights in the

Political Thought of Aquinas

Paul J. Cornish

Recent scholarship has demonstrated that the language of subjective natural rights can be found in a wide variety of medieval juristic and scholastic texts. This is part of a general trend in the study of political ideas that stresses the continuity between medieval and modem political values. However, many leading scholars of medieval political ideas maintain that no language of subjective natural rights can be found inAquinas's political writings, based as they are on a famous objective definition of right (jus) as the object of justice (justitia). Other scholars argue that Aquinas's notion of subjective rights is peripheral to his political philosophy. The essay argues thatAquinas, while commenting on canon law texts, explicitly posits a subjective natural right to marry, based on the natural equality and natural liberty of all human beings. This can be seen by his claim that a slave may contract marriage, even without the consent of the master. This is one example of an instance in which Aquinas refers to specific legal issues in order to explicate his understanding of liberty and right. ForAquinas there are certain areas of liberty or mastery (dominium) that are exempt from all human authority, and wherein a person has rights to decide how to pursue natural human goods.

Introduction

During the last two decades a growing number of scholars have located the origins of the modern notion of subjective natural rights in juristic and scholastic writings from the later middle ages.1 Indeed, it is now generally accepted that there is more continuity between later medieval political ideas and modern political values than had previously been allowed.2 Prior to this trend, scholars of

I wish to thank Richard Friedman, Cary Nederman, and the Editors and reviewers of the Review of Politics for their suggestions during the preparation of the final version of this paper. Any deficiencies are entirely my own.

1. In a recent essay Cary Nederman refers to a "rich array-indeed an embarrassment-of medieval sources which must be considered" ("Property and Protest: Political Theory and Subjective Rights in Fourteenth-Century England," Review of Politics 58 [1996]: 323-44).

2. A fundamental text in this new approach to the history of political ideas is Quentin Skinner's The Foundations of Modern Political Thought, 2 vols. (Cambridge:

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546 THE REVIEW OF POLITICS

widely disparate schools, with widely different interests, all treated subjective natural rights as an invention of the sixteenth and seventeenth centuries.3 Yet even some scholars who do stress the

continuity between medieval and early modern political ideas have been ambivalent about attributing a language of subjective natural rights to ThomasAquinas.4 Indeed, many scholars continue to deny that Aquinas could have used a notion of subjective rights.

A good example of the tendency to deny that Aquinas used a language of subjective natural rights can be found in the works of Michel Villey, who was philosophically opposed to subjective natural rights theories. Villey saw the origins of subjective natural rights doctrine in Ockham's nominalism.5 He argued repeatedly that Aquinas's natural law theory is based on an objective understanding of right which logically precludes the existence a subjective rights language.6 Thus, later Thomists, like the Spanish Dominican Francisco

Cambridge University Press, 1978).Also see Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge University Press, 1979); Brian Tierney, Religion, Law, and the Growth of Constitutional Thought 1150-1650 (Cambridge: Cambridge University Press, 1982); and more recently, CaryJ. Nederman and John Christian Laursen, eds., Difference and Dissent: Theories of Toleration in Medieval and Early Modern Europe (Lanham, MD: Rowman and Littlefield, 1996).

3. For instance see Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1950); C.B. Macpherson, The Political Theory of Possessive Individualism (Oxford: Oxford University Press, 1962); and more recently Arlene Saxonhouse, Women in the History of Political Thought: Ancient Greece to Machiavelli (New York: Praeger, 1985) and Jack Donnelly, Universal Human Rights in Theory and Practice (Ithaca: Comell University Press, 1989).

4. The broader philosophical and historical question of whether traditional natural law philosophy can be understood to be consistent with a doctrine of individual natural rights is also a matter of controversy. For a summary of recent works see Ralph Mclnemy, "Natural Law and Human Rights," American Journal of Jurisprudence 36 (1991): 1-14. This article contains a useful survey of the conjunctions between scholarship on the history of political ideas and contemporary natural law theories.

5. See Michel Villey, "Le genese du droit subjetif chez Guillaume d'Occam," Archives de philosophie du droit 9 (1964): 97-127.

6. Villey's argument is summarized in Le droit et les droits de l'homme, (Paris: Presses Universitaires de France, 1983). A more rigid version of this argument is proposed by contemporary human rights theorist Jack Donnelly "Natural Law and Right in Aquinas Political Thought," Western Political Quarterly (1980): 520- 535. Donnelly's work appears to parallel Villey, who was an advocate of objective natural right against modem and contemporary doctrines of subjective rights, while assuming the superiority of contemporary subjective rights doctrines.

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NATURAL RIGHTS AND AQUINAS 547

de Vitoria, who used a concept of subjective natural rights, were reading a nominalist understanding into Aquinas.7

Brian Tierney, who has argued that subjective rights concepts can be found in civil and canon law writings from the twelfth century forward, follows Villey in arguing that the Spanish Thomists imported subjective rights doctrines into the Thomist natural law framework from other sources.8 Tierney allows that Aquinas may have used a language of subjective natural rights, but states that it remains "peripheral and unelucidated."9 Thus, according to Tierney, Francisco de Vitoria and Bartolome de Las Casas imported their defence of the natural rights of the Ameri- can Indians into Thomist philosophy from juristic texts or from the works of Marsilius of Padua.10

Finally, Richard Tuck has attributed a language of subjective natural rights to Aquinas in the latter's treatment of property and ownership. Tuck notes that Aquinas's use of the concept of do- minium utile entails the view that human beings have a natural dominium to use material objects." However, in the same passage, Tuck argues that Aquinas neglected to develop a consistent philo-

7. For a concise summary of Villey's views in English, see Mclnemy, "Natural Law and Human Rights," pp. 1-4.

8. This argument is made in Tiemey's "Marsilius on Rights," Journal of the History of Ideas 52 (1991): 3-17, and "Aristotle and the Indians-Again," Cristianesimo nella storia, 12 (1991): 295-322. Also see his "Villey, Ockham and the Origin of Individual Rights," in The Weightier Matters of the Law: Essays on Law and Religion, ed. John Witte and Frank S. Alexander (Atlanta, 1988) 1-31, and "Origins of Natural Rights Language: Texts and Contexts 1150-1250," History of Political Thought 10 (1989): 615-46. This view is supported by Kenneth Pennigton in The Prince and the Law, 1200-1600, (Berkeley: University of California Press, 1993), pp. 272-73. Tierey gives a detailed account of his views in his recent book, The Idea of Natural Rights (Atlanta: Scholar's Press, 1997), pp. 255-315. Many of the essays cited in this essay are reprinted in the earlier chapters of the book.

9. Tiemey, "Origins of Natural Rights Language," pp. 617-18. 10. I have traced what I take to be the genuinely Thomist principles behind

the arguments of Vitoria and Las Casas. See, "Spanish Thomism and theAmerican Indians: Vitoria and Las Casas on the Toleration of Cultural Difference," in Difference and Dissent: Theories of Tolerance in Medieval and Early Modern Europe, ed. Cary J. Nederman and John C. Laursen (New York: Rowman and Littlefield, 1996), pp. 99-118.

11. See Tuck, Natural Rights Theories, pp. 18-20, commenting on Aquinas, Summa Theologiae, iia.-iiae. 66, 1 and ia.-iiae. 94, 5.

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THE REVIEW OF POLITICS

sophical defence of natural liberty.12 He views Aquinas's interest in the language of subjective natural rights as being limited to the contemporaneous debates between the Dominican and Franciscan orders over the Franciscan doctrine of apostolic poverty.13

The present article is focused on a problem in scholastic phi- losophy as it concerns sacramental marriage. I will argue that Tierney's thesis about the juristic origins of subjective natural rights doctrines may be overstated, in that scholastic theology contains many uses legal texts and problems as examples to ex- plain general principles. In a recent essay Tierney notes that:

The concern with individual intention, individual consent, individual will that characterized the twelfth-century culture spilled over into many areas of canon law. In marriage law, by the end of the twelfth century, the simple consent of two individuals, without any other formalities, could constitute a valid, sacramental marriage.14

In this essay I examine the way in which a problem in the canon law of marriage was treated in the theology of Thomas Aquinas. Aquinas did use a language of subjective natural rights to explain the freedom of a person to contract marriage. This is but one ex- ample of the way in which the concepts of natural law, liberty and dominium, found in the Decretum, the Decretales, and Roman Civil Law, constitute integral parts of Aquinas's political thought in the Summa Theologiae.

In the concluding section of the article I address the purpose that the language of subjective natural rights serves in Aquinas's general conception of political society, based as it is on the objective

12. Tuck, like many contemporary scholars, writes under the mistaken assumption thatAquinas accepted some version of Aristotle's view that there are "natural slaves," p. 20.Amore thorough treatment ofAquinas's commitment to moral equality can be found in Jean Porter, The Recovery of Virtue: The Relevance of Aquinas for Christian Ethics (Louisville: Westminster/John Knox Press, 1990), pp. 134-41.

13. Ibid. pp. 20-24, also see Janet Coleman, "Property and Poverty" in The Cambridge History of Medieval Political Thought 350-1450, ed. J. H. Burns (Cambridge: Cambridge University Press, 1988), pp. 607-48. Coleman gives a much broader review of the relevant texts from Aquinas.

14. B. Tiemey, "Origins of Natural Rights Language," p. 627. An excellent concise treatment of the areas of human liberty as understood in the Later Middle Ages can be found in Antony Black, Political Thought in Europe 1250-1450 (Cambridge: Cambridge University Press, 1992), pp. 28-33.

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NATURAL RIGHTS AND AQUINAS

concept of natural justice.15 When I argue that Aquinas uses a language of subjective natural rights, I am asserting that Aquinas understood there to be certain areas of human liberty that are exempt from all human authority wherein a person has rights to decide how, or whether, to pursue genuine human goods. So that for Aquinas the value of individual human life cannot be judged strictly in terms of the good of the political community, but individual rights and liberty are understood to be instrumental to the flourishing of human nature. With this understood, there need be no logical or moral inconsistency in using a language of subjective natural rights within an objective framework of natural justice.

Aquinas on the Limits of Human Authority

Aquinas's understanding of natural liberty and subjective natural rights, like most of his political thought, is not to be found in a single treatise. Rather, one mines Aquinas's understanding of human liberty from disparate veins of his theological writings and commentaries. For the purpose of this essay it is necessary to con- sider a proposition found in various questions of his Summa Theologiae. The proposition is stated most clearly in an article that asks "whether subjects are bound to obey their superiors in all things" (iia-iiae. 104, 5).16 Here, in the body of his response, Aquinas argues that while man must obey God in all things, all human authority is limited:17

15. This concern is suggested by Nederman's approach in "Property and Protest," pp. 326-29. For another treatment of philosophical defenses for modern political values in the context of an objective rights doctrine see Stephen Lahey, "Wyclif on Rights," Journal of the History of Ideas (1997): 1-20. For Aquinas's treatment of objective natural right, see Summa Theologiae, iia.-iiae. 57. In this question, Aquinas argues that the primary definition of right (jus) is that right is the object of justice (justitia).

It should also be noted that Brian Tierney examines William of Ockham's subjective rights language in a similar malner in The Idea of Natural Rights, pp. 170-94.

16. iia.-iiae. 104, 5. All translation from the Summa Theologiae are taken from St. Thomas Aquinas, Summa Theologica, in 5 Volumes, translated by the Fathers of the English Dominican Province (New York, 1948 reprint). In addition, translations of his IV Sent., dist. 27, are based upon the text found in Volume 5 of the translation of the Summa Theologiae, Supplementunl, 52. 1-4.

17. A.S. McGrade has suggested that this and other passages demonstrate that "Thomas' account of the objective order of justice yields a rather short list of

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550 THE REVIEW OF POLITICS

there are two reasons for which a subject may not be bound to obey his superior in all things. First, on account of a command from a higher power. ... Secondly, a subject is not bound to obey his superior if the latter command him to do something wherein he is not subject to him. For Seneca says (De Beneficiis iii): "It is wrong to suppose that slavery falls upon the whole man: for the better part of him is excepted. His body is subjected to the master, but his soul is his own." Consequently in matters touching the internal movement of the will man is not bound to obey his fellow-man, but God alone. Nevertheless man is bound to obey his fellow-man in things that have to be done externally by means of the body: and yet, since by nature all men are equal, he is not bound to obey another man in matters touching the nature of the body, for instance in those relating to the sustenance of the body or the begetting of children. Wherefore slaves (servi) are not bound to obey their masters, nor children their parents, in the question of contracting marriage or of remaining in the state of virginity or the like.'8

Aquinas here distinguishes three classes of human acts wherein human beings are not bound to obey their superiors. The first class of acts involves any action that is governed by the com- mand of a higher power (especially God). The second class involves the internal movements of the will, from which follows the freedom of conscience. These first two classes of acts identi-

fied by Aquinas are important, but must be left aside for the purpose of this essay. A detailed explication of the third class of human acts is a necessary step to understand the right of a slave to marry without the consent of his master.

universal human rights." See McGrade, "Rights, Natural Rights, and the Philosophy of Law," in The Cambridge History of Later Medieval Philosophy, ed. N. Kretzmann, A. Kenny and J. Pinborg (Cambridge: Cambridge University Press, 1982), pp. 739-40.

18. "Duobus potest contingere quod subditus suo superiori non teneatur in omnibus obedire. Uno modo propter praeceptum majoris potestatis.... Alio non tenetur inferiore suo superiori obedire, si ei aliquid praecipiat in quo ei non subdatur. Dicit enim Seneca, Errat, si quis existimat servitutem in totum hominem descendere; pars enim melior excepta est: corpora obnoxia sunt et adscripta dominis, mens quidem est sui juris. Et ideo in his quae pertinent ad interiorem motum voluntatis, homo non tenetur homini obedire, sed solum Deo.

"Tenetur autem homo homini obedire in his quae exteris per corpus sunt agenda; in quibus secundum ea quae ad naturam corporis pertinent, homo homini obedire non tenetur, se solum Deo, quia omnes homines natura sunt pares, puta in his quae pertinent ad corporis sustentationem et prolis generationem. Unde non tenetur nec servi dominis, nec filii parentibus obedire de matrimonio contrahende vel virginitate servanda aut aliquo alio hujus modi."

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The third class of human acts includes those things pertain- ing to preservation (or conservation) of the "nature of the body," and those things pertaining to procreation and the preservation (or conservation) of the species. Aquinas argues that no one can be bound to obey another in these things because "by nature all men are equal," and he applies this principle to a man in the state of slavery. Slaves and children are not bound to obey their mas- ters, or parents, in "the question of marriage or of remaining in the state of virginity or the like."19

In his systematic treatment of natural law, Aquinas had writ- ten that natural law prescribes human acts expressing natural inclinations to natural human goods. There he posits three types of natural inclinations towards human goods: (1) the inclination to preservation shared by all beings; (2) the inclination to repro- duce which human beings share with other animals; and (3) the specifically human inclinations to live in a society and to know the truth about God.20 The third class of human acts identified

above would appear to correspond closely to the first and second types of natural inclinations. Aquinas understood these first two types of inclinations to be part of integral human nature in the state of innocence,21 but the servile subordination of one human being to another was excluded from the state of innocence in his exegesis.22

This said, it is essential to recognize that Aquinas treats sla- very as an institution of positive law, in particular thejus gentium.23 Jus gentium refers to those institutions of law which are common

19. "Unde non tenetur nec servi dominis, nec filii parentibus obedire de matrimonio contrahendo vel virginitate servanda aut aliquo alio hujus modi."

20. Summa Theologiae, ia-iiae. 94,2. The reading of this passage in the present essay differs considerably from the remarks of John Finnis in his seminal work Natural Law and Natural Right (Oxford: Oxford University Press, 1980). In his commentary on Aquinas's writings, Finnis refers to this passage on natural inclinations as "irrelevant schematization," and argues that Aquinas commits the infamous "naturalistic fallacy" (pp. 94-95)! My reading is nearer to that of Jean Porter, The Recovery of Virtue, pp. 144-45.

21. Ibid. ia. 97 and 98.

22. Ibid. 92, 1, ad2 and 96, 4. See also II Sent. 44,1,3. 23. Summa Theologiae, iia-iiae. 57, 3. In this context Aquinas employs the term

jus gentium to refer to certain precepts of human or positive law that are understood to exist in any human community. This differs from the later understanding of the jus gentium as the "law of nations" or "international law," which refers to a body of legal rules regulating conduct among states, nations or governments.

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552 THE REVIEW OF POLITICS

among all peoples. When Aquinas asserted that slavery is of the jus gentium he was following Roman and canon law sources on two important points. First, slavery was of the positive law, the jus gentium, and not the jus naturalis. Secondly, slavery is contrary to the natural law because human beings are naturally at liberty.24

In his attempt to distinguish between the jus gentium and the jus naturalis, Aquinas was forced to confront Aristotle's teaching concerning the existence of "natural slaves. 25 While Aquinas denies that slavery could be called natural in the absolute sense of the term, he places it in the same general category as the ownership of private property. Such institutions were said to be natural in the sense that they produce consequences that are useful for society, given human beings in the state of original sin.26 However, careful consideration of these texts demonstrates that Aquinas is reading the Philosopher through the lens of the Roman, Patristic, and canon law discussions of slavery.27

This may be seen in two ways. First,Aquinas, citing the Roman jurist Ulpian and canon law, explicitly argued that slavery is of positive law, the jus gentium, and contrary to nature. So slavery is a matter of human custom and convention, not nature. Secondly, Aquinas appropriates Seneca's Stoic view that the mind (mens) of the slave is his own right (sui juris). He then proceeds from this

24. The meaning of these claims in Roman law is a matter of scholarly controversy. One key text is from the Roman jurist Ulpian. It is found at Institutes, 1,5,1, Digests 1,4,1; and in the Canon Law at Decretum, 1,1,7, "quae es res a jure gentium originem sumpsit, uptote cum jure naturali omnes liberi nascerentur nec esset nota manumissio, cum servitus esset incognita." Also see Institutes, 1,2,2, where slavery is called contrary to natural law (juri naturali contrariae). In the Decretum, Gratian relied heavily on the Etymologies of St. Isidore of Seville for his various statements concerning natural law. Isidore was a favorite auctor for Aquinas in his "Treatise of Law" (Summa Theologiae, ia-iiae. 90-97), and is quoted as holding this opinion by Aquinas in the passage in which Aquinas distinguishes between jus gentium and jus naturalis (iia-iia. 57,3ad2).

25. Politics 1254a15.

26. Summa Theologiae, iia-iiae. 57, 3, ad2. 27. It is true thatAquinas allows that there would have been natural disparities

among human beings, even before original sin, so that his understanding of natural equality is circumscribed. Nevertheless, he does point out that the presence of natural disparities before original sin must be understood in light of the proviso that "those outclassed in any of these respects had nothing defective or sinful about either soul or body." See Summa Theologiae ia. 96, 3 and 109,2,ad3. It is worth noting that Aristotle is not mentioned as an authority in these articles.

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NATURAL RIGHTS AND AQUINAS 553

Stoic view to argue that the slave (servus) need not obey the master (dominus) in matters pertaining to self-preservation and procreation. This power, or right, to act without the master's consent could hardly be granted to a class of people who are natural slaves.

Aquinas held that all human beings are equal as it concerns their natural inclination to pursue the basic goods of preserva- tion and procreation. He thus describes an area of natural liberty or mastery (dominium), which cannot be abdicated, usurped, nor alienated. This area of natural liberty encompasses the rights of self-preservation and the preservation of the species. Some mas- tery is retained even in the condition of slavery28

Aquinas on a Slave's Right to Marry

Having established that Aquinas understood all human au- thority to be limited, we may turn to Aquinas's Commentary on the Sentences of Peter Lombard in order to show that he posited subjec- tive natural rights to contract marriage, to choose whom one will marry, or to remain a virgin. Aquinas died before he was able to write the treatise on the sacrament of marriage which logically belonged in the Tertia pars of the Summa Theologiae.29 There is the

28. See Aquinas, Summa Theologiae, ia. 96, "de dominio quod homini in statu innocentiae competebat," and ia. 97-98. Tierney points out that Henry of Ghent avoided the medieval and early modern tendency to speak of one's mastery (dominium) over oneself, which is repeatedly found in Aquinas (for example, Summa Theologiae, i. 96; iia-iiae. 64, 5, ad2; iia-iiae. 66, 1 and 2; iia-iiae. 104,5), and preferred the term proprietas. See Tierney, "Natural Rights in the Thirteenth Century," p. 65, fn. 46. The point may have been to avoid referring to the "self- mastery" of a "slave," as Saint John Dun Scotus does in Ordinatio IV, d. 36, q.1, a.2. The multiplicity of historical uses of the latin term dominium (usually translated "lordship" or "ownership") is the cause of much confusion about medieval political thought.

29. For an outstanding summary of Aquinas views on marriage see Fr. Sabino Alonso Moran, OP., "Introduccion al Tratado del Matrimonio," Summa Teologica, Tomo XV (Madrid, 1956), pp.154-71. Fr. Moran (pp. 154-55) shows thatAquinas's understanding of marriage derives from his consideration of three definitions: one taken from Justinian's Institutes (1,9), another from Peter Lombard's IV Sententia (d. 27), and another from Hugh of St. Victor's De Sacramentis (1.II,p. 11, 4). Aquinas used these definitions to analyze three integral elements of marriage: (1) the efficient cause, the consent of the contracting parties (Hugh of St. Victor); (2) the essence, the union of the two parties (Peter Lombard); (3) the effect, the common life in domestic society (Aquinas, Suppl. 44, 1-3, in IV Sent., d.27).

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Supplementum to Tertia pars, which was composed by some con- temporary of Saint Thomas, and is largely based on Aquinas's writings on the Sentences.30 Given this, I will examine the sentential writings on the present question in comparison with, and in light of, the passages from the Summa Theologiae examined above.

To begin, Aquinas discusses slavery as one kind of impedi- ment to the sacrament of marriage.31 Slavery would be an impediment to marriage if the condition were unknown to one of the consenting parties, but not if it were known by both. Basing his view on canon law,32 Aquinas holds that if a woman marries a man in the condition of slavery without being told of the man's condition, the marriage would be invalid. He goes on to explain that slavery is an impediment to the act of marriage (coition for the purpose of reproduction), since the body of the slave is bound to his master as well as to his wife. Since in marriage there is an equal obligation on the part of both parties to provide their bod- ies to fulfill the marriage debt, slavery may impede this obligation. Nevertheless, as long as both parties were aware of the other's condition, the marriage of a slave would be valid, as would the marriage of an impotent man or a sterile woman.

Now, to the question of whether a slave may marry without the consent of his master.33 In this passage Aquinas discusses the relation of the precepts of natural law to those of positive law as they regard slavery:

On the contrary, In Christ Jesus ... there is neither slave norfree (Gal. 3, 28): Therefore both freemen and slaves enjoy the same liberty to marry in the faith of Christ Jesus.

Further, slavery is of the positive law; whereas marriage is of the natural and Divine law. Since then the positive law is not prejudicial to the natural or the Divine law, it would seem that a slave may marry without his master's consent.

I answer that, as stated above (A. 1, ad 3), the positive law arises out of the natural law, and consequently slavery, which is of positive law,

30. I.T. Eschmann, OP., followed Grabmann in believing that Reginald of Pipemo, Aquinas's secretary, was the author. See "A Catalogue of St. Thomas's Works" in E. Gilson, The Christian Philosophy of Saint Thomas Aquinas (New York: Random House, 1956), p. 388.

31. See In IV Sent. d.36,1,1, based on this same canon, "De coniugio servorum," chap. 2; reproduced in Summa Theologiae, Suppl. 52,1,adl.

32. Decretales Gregorii IX, 4,9,2, "De coniugio servorum." 33. Aquinas, In IV Sent. 36,1, 2; Suppl. 52, 2; based on Decretalis Gregorii IX, 4,9,1.

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cannot be prejudicious to those things which are of the natural law. Now just as nature seeks the preservation of the individual, so does it seek the preservation of the species by means of procreation; wherefore even as a slave is not so subject to his master as not to be at liberty to eat, sleep, and do such things as pertain to the needs of his body, and without which nature cannot be preserved, so he is not subject to him to the extent of being unable to marry freely, even without his master's knowledge or consent.34

Aquinas resolves our question with the help of the natural law. Those things which pertain to the precepts of natural law cannot be impeded by precepts of the positive law, since the positive law must arise from the natural law. The state of slavery is of the posi- tive law, and is said to be contrary to human nature. As such, the state of slavery cannot supersede a person's choice to marry, to marry a particular person of the opposite sex, or to refrain from marrying and live as a virgin.35 The importance of defending this area of personal liberty against all intrusions of positive law is difficult to overstate. It would seem to deny any and all sexual rights of the master over the slave!36

34. See In IV Sent. 36, 1,2, which is directly reproduced in Suppl. 52,2. The passage from Galatians is also quoted by the canonist in Decretales Gregorii IX, 4,9,1.

"Sed contra: 1. Gal. 3,28: "In Christo Jesu non est servus neque liber," Ergo matrimonium contrahendum in fide Christo Jesu eadem est liberis et servis.

2. Praeterea, servitus est de jure positivo (a.1, ad3):sed matrimonium de jure naturali et divino, videtur quod servus absque domini consensu matrimonium contrahere possit.

Respondeo, dicendum, quod jus positivum ut dictum est, progreditur a jure naturali. Et ideo servitus quae est de jure positivo, non potest praejudicare his quae sunt de jure naturali. Sicut autem appetitus naturae est ad conservationem individui, ita est ad consevationem speciei per generationem. Unde, sicut servus non subditur domino quin libere possit comedere et dormire, et alia hujusmodi facere quae ad necessitatem corporus pertinent, sine quibus natura conservari non potest; ita non subditur ei quantum ad hoc quod possit libere matrimonium contrahere, eitam domino nesciente aut contradicente."

35. These choices are suggested by the above passage from iia-iiae. 104,5. 36. Note that Aquinas implicitly forbids the master from forcing women

held as slaves to reproduce in order to increase the master's labor force. In fact, Aquinas's discussions of slavery seems to render the existence of slavery, as it is commonly understood, impossible. Scholars often make this point by noting that Aquinas had in mind feudal serfdom, or some other lesser form of servitude. Yet

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This raises a serious problem for those who understand Aquinas's natural law framework merely to have been an attempt to baptize Aristotle into Christian philosophy.37 In the same ques- tion Aquinas explains more specifically how the institution of slavery arises from natural reason, and relies entirely upon Patristic and Roman authors. First, Aquinas raises and comments upon the common Patristic opinion that slavery is contrary to nature as it was treated by St. Gregory the Great.3 He argues that this state- ment is true as it concerns the first intention of nature, that all men

may be good, but, not as it concerns the second intention of nature.

But from the fact that a person sins, nature has an inclination that he should be punished for his sin, and thus slavery was brought in as punishment for sin.39

So, given a condition in which men do not always act rightly, it is according to nature for those who have sinned to be punished.

Second,Aquinas turns to the Digests of Justinian, which provides the first authorial opinion in his treatment of marriage,40 and which

Aquinas would also have been aware of Christian captives who had been enslaved by Islamic lords during the crusades and wars of conquest over Christian populations.

37. For example, see Paul Sigmund's treatment of Aquinas's view of slavery (p. 222) in his essay on "Law and Politics," in The Cambridge Companion to Aquinas, ed. Norman Kretzman and Eleonore Stump (Cambridge: Cambridge University Press, 1993), pp. 217-31. Sigmund views Aquinas as attempting to reconcile Aristotle and Patristic sources. He completely ignores Aquinas's uses of the civil and canon law sources, of St. Paul and of Cicero in his writings on slavery.

38. In IV Sent. 36, 1, ad 2 and 3; also see Suppl. 52,1, ad 2 and 3. The passage quoted is: Regula Pastoralis, 11,6. Here Gregory follows Saint Augustine's famous statement in De civitate Dei (XIX, 15), "contra naturam est hominem homini velle dominari." Aquinas may have chosen to rely on Gregory because Gregory had written after the compilation of Justinian's Code. On the political works of Gregory the Great see R.A. Markus, "The Latin fathers," in The Cambridge History of Medieval Political Thought, ed. J.H. Burns (Cambridge, 1988), pp.116-22.

39. "sed ex quo aliquis peccat, natura etiam inclinat ut ex peccato poenam reportet; et sic servitus in poenam peccati introducta est."

It should be noted that this passage is preceded by a strained attempt to draw a parallel between the incidence of female births and the existence of slavery, which is misogynist in effect if not in intent. This impression is partially alleviated byAquinas's argument that women are made according to the image and likeness of God (Summa Theologiae ia. 93,4,ad.1), and his insistence that wife and husband stand on a equal basis as it concerns their obligation to perform the marital act (for example, Suppl. 52, 3, ad.2).

40. See In IV Sent. 27, 1, ad 1., quoting Ulpian's opinion from the Digests (1,1,1), that "jus naturale est quod natura omnia animalia docuit."

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simply states that slavery is not of the natural law.41 Further, Aquinas quotes Cicero's contention that positive law springs from the natural law.42 From this he deduces that the precepts of natural law require only that punishment be inflicted upon the guilty, but the precepts of positive law make determinate the actual punishment to be inflicted in a given circumstance. Thus, for Aquinas, the condition of slavery is fundamentally a penal institution of the jus gentium which makes determinate the indeterminate natural law precept that the sinful should be punished.43

Aquinas understood, as did Seneca, that slavery entails suf- fering for the human being who is held in that condition. In Prima pars he makes the suffering experienced by a person under ser- vile subjection an important reason to exclude the condition of slavery from those kinds of human subordination that could have been present in the state of innocence.44

Finally, we must turn to a passage from a subsequent article,45 in which Aquinas explicitly uses the term jus to refer to the liberty of an individual person, thus using a language of subjective natu- ral rights. Here Aquinas considers whether a husband may subject himself to a master without the consent of his wife. Aquinas of- fers this response:

Everyone can give another that which is his own. Now the husband is his own master since he is free. Therefore he can surrender his right to another.46

Human nature entails dominium, the power of any human subject to order his own acts in pursuit of some good. One may choose to become a slave for the good of the preservation of one's own life

41. Digests, 1,1,4, "Manumissionis." See note 26 above. 42. De inventiones, ii, 53.

43. In IV Sent. 36, 1, ad. 1; Suppl. 52,1, ad 1. 44. Summa Theologiae, ia. 96,4 & 97,2. To be more precise,Aquinas first argues

that any person would find it painful to be a slave who is used as an instrument of another's good, because by nature human beings each value their own good (ia. 96, 4); then he subsequently argues that the type of suffering that is experienced by a creature when it is driven from a natural disposition would not have been present in human nature in the state of innocence (ia. 97, 2).

45. In IV Sent., 36,3; Suppl. 52, 3; "Utrum servitus matrimonio possit supervenire (Whether slavery can supervene to marriage)."

46. "Sed contra, quilibet potest dare alteri quod suum est. sed vir est sui juris, cum sit liber. ergo potest jus suum dare alieri."

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and the life of his family under conditions of necessity. Here, the term jus is clearly used to refer to one's natural liberty, the subjec- tive power to act, ergo potest jus suum dare alieri. Similarly, in the passage above, quoted from the Summa Theologiae, Aquinas makes use of Latin phrase, sui juris, to refer to those aspects of natural liberty which are retained by men even in the condition of slavery.

Thus, the infamous dispute over whether a person may con- sent to the condition of slavery, which is so much a part of Locke's political discourse, had this early contribution.47 Aquinas answers that one may consent to a condition of servitude, but not to the arbitrary power of another human being, since all human author- ity is limited. One ought not to assume from this that Aquinas placed little importance on the good of natural liberty. Later in the same article he makes it clear that only a foolish person, or a person in a state of grave necessity would chose to surrender him- self into slavery. For Aquinas says that such a person would lose the "inestimable good of liberty."48

It should also be noted that Aquinas did not intend to argue that a man may unilaterally dissolve his marital and paternal duties by becoming a slave. On the contrary, Aquinas made it clear that the laws regulating the institution of slavery should take account of a slave's familial responsibilities. Following the letter of the canon law, he even argued that a master should be com- pelled not to sell a slave if it would increase the marriage burden.49 The centrality of sacramental marriage and family life inAquinas's understanding of human society cannot be doubted.

Conclusions

This should suffice as an overview of the legal problem found in Aquinas. Aquinas conceived of human beings as being equal

47. Again, one should note that Aquinas holds that a wife may not surrender herself into slavery without the consent of her husband. However, this was not because women had no natural liberty, for Aquinas insists that women do have equality of self-mastery in those things which pertain to the preservation of nature (In IV Sent. 36,3,ad.2; Suppl. 52,3, ad.2). Yet, once married, Aquinas argued that the wife was in a position of subjection to her husband in the order of domestic society, and that the husband was the head of household management.

48. "Inaestimabile libertatis bonum amittens," In IV Sent. 36,3,ad. 1; Suppl. 52,3, ad. 1.

49. In IV Sent. 36, 2ad4, Suppl. 52, 2ad4.

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as it regards their nature, and as possessing natural liberty in terms of self-mastery, or natural dominium. This refers to the power of the human individual to make choices about her or his own good, particularly as it concerns the preservation of individual persons and the human species. In the context of particular decisions, like the decision whether or not to contract marriage, Aquinas used a language of subjective natural rights. However, he did not hold what might be called a natural rights theory of politics, which identifies the protection of natural rights as the sole or primary purpose of civil government.

Indeed, the contemporary focus on the logical distinction be- tween objective and subjective senses of the Latin term jus tends to distract attention from the relationship between the concept of individual natural rights and the common good of a political so- ciety. The key distinction may actually be between political theories that explain the purpose of political society solely, or primarily, in terms of the protection of individual natural rights, and those that are based on a "thicker" conception of the common good. This distinction raises a question about what the purpose and meaning of Aquinas's language of subjective natural rights serves in his general conception of political society.

Aquinas held that human beings are social and political animals. Further, he explained the need for political authority in terms of the disparities among human beings. Human beings live together in social groups; since each human individual values his own good, it is necessary that there be an authority to coordinate the pursuit of individual goods while promoting the common good of society.50 This coordination takes the form of human positive law, derived from the principles of natural law.51 This law is framed so as to apply to the whole community, and is morally binding in conscience. In the context of fallen human nature, the human law

50. The key passages are Summa Theologiae ia. 96,4, II Sent. 44,1,3. Also see De regimine principium 1,1; Summa Theologiae ia. 81, 3 ad2, ia.-iiae. 95-95, ia.-iae. 105, 1; iia.-iiae. 57, 3 & 4. For a useful application of this Thomist view of political society to contemporary American government see Robert George, Making Men Moral: Civil Liberties and Public Morality (Oxford: Oxford University Press, 1993). Also see Cary Nederman's writings on "communal functionalism," especially "Freedom, Community and Function: Communitarian Lessons of Medieval Political Theory," American Political Science Review 86 (1992): 977-86.

51. Summa Theologiae ia.-iiae. 95,2.

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seeks to persuade the good to be virtuous, and coerces the evil to maintain civil peace.52 All liberty and power in human society is limited by the law, even the ruling authority is said to be bound by civil law.53

Aquinas's discussion of the natural right to contract sacra- mental marriage takes place in the context of commentaries on a problem of canon law, and reflects the medieval notion that a civil commonwealth is a sacral community.54 This is not the only place in which Aquinas discusses natural dominium in the context of a problem of canon law. Another passage of extreme importance is his discussion of the baptism of the children of unbelievers.55 There Aquinas defends the right of Jewish parents to refuse to allow their children to be baptized based on the natural right of paren- tal authority.

This passage is of such great importance because it became a central part of Francisco de Vitoria's defense of the right of Ameri- can Indians to dominium rerum.56 Yet scholars like Villey and Tierney continue to argue that sixteenth century Thomists, like Vitoria, imported their natural rights language into the Thomist framework from extraneous sources.57 Their view is based on the

fact that Aquinas considered the primary meaning of the term jus to be that which is right, or the just thing. The writings surveyed in this essay show that he also used this term to refer to the rights of each person under natural law, held on the basis of natural equality and natural dominium. This can only be understood if one pays careful attention to the meaning of the Roman and juris- tic sources of Aquinas's synthesis, instead of treating him as Aristotle's Dominican protege.

52. Ibid., 95,1-4. 53. Ibid., ia.-iiae. 96,5. 54. I.e. The commonwealth serves supernatural as well as natural purposes.

It should be remembered, however, thatAquinas held that obedience to all existing civil authorities was a moral duty, even if the authority is exercised by an unbeliever. See Summa Theologiae iia.-iiae. 10, 10.

55. Summa Theologiae iia.-iiae. 10,12. 56. See Vitoria, Political Writings, ed, A. Pagden and trans. J. Lawrance,

(Cambridge: Cambridge University Press, 1991); De Indis, preface, p. 233; and Lectio reportata in Summa Theologiae iia-iiae. 10,8, pp. 341-51.

57. See B. Tiemey, "Marsilius on Rights," p. 5; and "Aristotle and the Indians- Again," p. 300.

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Still, Aquinas's subjective natural rights language differs from modern subjective natural rights "theory," in that the question of individual rights is never a matter of abstract lists of rights, the protection of which is said to constitute the sole or primary pur- pose of civil government. Indeed, it is precisely these formulae that reduce much of contemporary political discourse about rights to shrill demands that one or another conflicting absolute moral claim be honored.58 In Aquinas's natural law framework the sub- jective natural rights attributed to individuals are specific instances of natural dominium, as it is used by individuals to direct their lives toward natural and supernatural ends.

The rights a person might exercise cannot be understood, and would not have moral relevance, if they were not claimed in the context of a particular society at a particular time. Thus, liberty and individual rights should be understood to be goods instrumental to the development of individual human virtue and social justice; with the understanding that neither human virtue nor justice could come into existence without the prior existence of a human society. Abstract lists that attempt to codify human rights may serve important legal and political functions in various historical contexts, but such lists will always be a source of confusion in political theory.

58. Kenneth Pennington touches on a similar problem in his concluding chapter of The Prince and the Law, in which he traces the development of the notion of the "untrammeled sovereignty" of the prince in the sixteenth century (pp. 269- 90). Contemporary "rights-talk" depends upon the notion of "untrammeled individual autonomy." It misunderstands human liberty because of its reliance on non-cognitive ethics, reducing liberty as it does to an unlimited freedom to act as one pleases, i.e. what John Locke called "license" (Second Treatise, sec. 6). Aquinas' intellectual determinism, and Locke's invocation of "Reason," could serve to remind us that genuine human liberty requires obedience to a reasoned judgment of the conscience, not an undetermined will to power.

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