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be founded in one sense on this type of right, or an express promulgation
thereof, for by de¬nition, according to Aquinas, law expresses right in
some form of writing (lex is written or “expressed” ius: ST II“II 57, 3,
ad 3). But law in Aquinas™s account implies something more. It implies,
over and above a plurality of rational animals to whom a single ethical
standard applies equally, or a plurality of similar actions regarding which
it expresses a single truth or norm, a genuine community, a people who are
bound to one another by ties of care and responsibility or reciprocal duty
(ST I“II 90, 2“3; cf. 96, 1; 98, 5; 98, 6, ad 2“3; cf. Stump 1997).
By extension, Aquinas™s “general” legal justice as regulated by natu-
ral law presupposes and witnesses to a human fellowship that transcends
particular political societies and their borders. The bonds of this fellow-
ship are by necessity “thinner” than those within particular polities, but
they are not negligible. Justice is distinguished from other virtues such
as bene¬cence, liberality, and courage in its universality: it must be exer-
cised vis-` -vis everybody, always, at least in wishing all well and refraining
a
from any undue harm to anyone. In this sense justice is akin to the the-
ological virtue of charity, or love of God and neighbor, in that there is
no one on earth to whom it does not somehow apply (cf. ST II“II 25, 1,
ad 2; 58, 12, ad 1). For this reason, justice alone of all properly moral
virtues can be a “general virtue” in a foundational way. Aquinas™s natural
law bespeaks a deeper commonality than one simply in praedicando, or a
commonality of sameness. It also and especially bespeaks a shared ¬nal
end giving rise to a commonality of shared life or social union: a common
good “in causando,” the rational or moral common good.
Natural law also by de¬nition requires, as its source and promulgator,
someone with care for this universal community. It has an inherently reli-
gious dimension in Aquinas™s sense of the term “religion”: it regards or
re¬‚ects, even if unconsciously, a reverence toward God “as the ¬rst prin-
ciple of the creation and government of things” (ST II“II 81, 3; cf. Fortin
1996, 2:160, Hittinger 2003, 3“37). This raises a host of theoretical prob-
lems that I cannot hope to resolve here, ¬rst and foremost how natural
law can be apprehended as law by persons who do not acknowledge one
personal God who created the universe and governs all in his providence.
For now, I will give my best short sketch of a response.
According to Aquinas™s position as I read it, it is true that the full
legal character of natural law cannot be articulated or defended by such
Moral Virtues at the Nexus of Personal and Common Goods
194

persons (cf. Hittinger 2003, 39“62). Nevertheless he posits that they
and indeed all humans do have “by nature” a primordial “inchoate”
awareness of God™s existence that undergirds their desire for a perfect ful-
¬llment or bliss they call “happiness.” This is for Aquinas a sort of natural
(if “general and confused”) experiential prelude to seeking and discov-
ering God™s existence, and to receiving the gifts of grace and glory that
alone allow human creatures knowledge of God™s essence (ST I 2, 1, ad 1;
cf. I“II 94, 2; I 1, 1 and 12, 12). Through the phenomenon of conscience
(conscientia) humans have a vague or implicit knowledge, an intimation
of the divine, transcendent source of a “rule” that is not merely the right
or even the best for them to follow, but for which they are responsible as
to “another” from whence it comes and by whose wisdom and goodness
it is justi¬ed (cf. I 79, 12“13; I“II 19, 5 ).15
For all this, however, Aquinas recognizes that natural law cannot serve
as humans™ sole standard for legal justice. As a “measure” of that justice
that undergirds and comprises every virtue, natural law is indeed founda-
tional and essential, yet it is also insuf¬cient to guide all social and civic
action. Human nature as rational is, according to Aquinas, both broadly
social and speci¬cally political; it is also, on Aquinas™s account, religious (ST
I“II 72, 4; 94, 2). While precepts such as “never kill an innocent human
person” are universal and perennial, they do not suf¬ce to order our
ethical conduct toward others in our societies. Natural law as informing
legal justice is thus too general to serve as a comprehensive architectonic
norm; it constitutes the indispensable foundation, but it cannot direct
the entire building of our ethical and civic lives. Accordingly, Aquinas™s
natural law requires “completion” and speci¬cation or “determination”
by human or political law and by divine law (I“II 91, 3). Aquinas writes
that “the general principles of the natural law cannot be applied to all
men in the same way on account of the great variety of human affairs;
and hence arises the diversity of positive laws,” both civil and ecclesiastical
(I“II 95, 2, ad 3). Politics and its human law remain integral to Aquinas™s
understanding of legal justice as a human or moral virtue.

The End of the Dialectic: Equating Moral with Political Virtue?
The reader might conclude from what has been said that Aquinas™s the-
ory of legal justice, and ultimately his understanding of moral virtue
as a whole, have become one with political virtue much as Aristotle

15 For two assessments of V´ clav Havel™s writings on “politics and conscience,” see the
a
subsection on “Humility” in Chapter 6 and Kraynak (2001b, 37“8).
Aquinas and Aristotelian Legal Justice 195

understood it: the result of a combination of natural and positive right
under the mantra of political legislation (cf. NE V.7). Indeed, as Brian
Shanley has argued (1999, 554“67), Aquinas often describes human
virtue as civic or political, the virtues of human beings living well in this
world, in particular political communities, seeking the common good.
Aquinas indicates in his ST, for instance, that he reads Aristotle™s Ethics
(and the classical philosophers™ ethical writings generally) as an account
of the virtues oriented toward excellence in civic life, under the direc-
tion of law and the umbrella of legal justice (ST II“II 161, 1, ad 5). From
similar passages throughout Aquinas™s works, Shanley concludes that
“[Aquinas™s] entire discussion of acquired [as distinct from “infused” or
grace-given] moral virtue is, then, a discussion of political virtue” (1999,
2:560).16
The only problem with this well-documented conclusion is that it can
convey that Aquinas in the ST has forgotten the problem with diverse
political regimes and regime-relative legal justice, a dif¬culty Aquinas fore-
grounded in his Commentary but from which Shanley™s article entirely
abstracts. For Aristotle, civic virtue is by de¬nition relative to regimes
that rarely if ever seek the full common good of all. But Aquinas has not
forgotten this. In a critical question on law, Aquinas asks “whether an
effect of law is to make people good.” He introduces his response with a
studied quotation from Aristotle™s NE II.1: “The intention of every law-
giver is to make good citizens” (ST I“II 92, 1, s.c., my emphasis; cf. I“II 63,
4), and goes on to indicate that every law is made with a view to some spe-
ci¬c regime and may well distort individual goodness and virtue; further,
although he does not say so in so many words, that the only legislator who
can absolutely be relied upon to “intend” the goal of the common good
or not distort the human virtue of law-abiding citizens is God himself.
Aquinas quotes from Augustine to the effect that any part of a commu-
nity that does not harmonize with the whole is unseemly (ad 3) and
then paradoxically indicates a few questions later that the limitations of
positive political legislation will often require the truly just person to be
unseemly (I“II 96, 4; cf. MacIntyre 1988b), for the sake of the common
good as well as for his or her own virtue.
Thomistic legal justice, based on natural law and under the guidance
of conscience, prudence, and equity, allows for and can even require dis-
sent and dissidence for the sake of the common good in a way Aristotle™s

16 Fortin makes a similar observation, opining (1996, 169) that on Aquinas™s account “man™s
perfection as an individual turns out to be identical with his perfection as a citizen.”
Moral Virtues at the Nexus of Personal and Common Goods
196

law-abiding justice itself could not. It is in this broad sense, ultimately
grounded in natural law and the universal human fellowship under God,
that Aquinas™s human virtue seeks the political common good (cf. Fortin
1996, 2:160“1; Kempshall 1999, 123“7). Legal justice as a moral virtue is a
“political virtue” only if this latter term is understood, as it is by Aquinas,
to prioritize the requirements of the moral common good before the
regime™s partial justice. In this we see another signi¬cant Thomistic mod-
i¬cation of classical Aristotelian usage.


Defending the Moral Priority of Legal Justice
Susan Collins (2004), among others, rightly suggests that in Aristotle™s
NE, magnanimity as the peak of individual perfection and legal justice as
its social counterpart, each in its own way comprising ethical virtue entire,
are not clearly ranked one over another. In his ST, by contrast, Aquinas
states the preeminence “simply” or “strictly speaking” (simpliciter) of jus-
tice and especially legal justice twice: at ST I“II 66, 4, where his overar-
ching investigation is into equality and inequality among the virtues, and
again at II“II 58, 12, at the end of his inquiry into justice™s status as a car-
dinal or principal human virtue.17 The basic line of argument is identical
in these two passages. Justice™s excellence is rooted in its close connec-
tion to reason, and thus to the human good, which is fundamentally to
live according to reason (cf. I“II 47, 10, ad 3). Justice perfects the desire
that by nature accompanies reason or intellect, the rational appetite or
will that seeks happiness or ¬‚ourishing. As reason seeks knowledge of all
things and of the ultimate cause of all things, so too the will desires good-
ness in general. The will is thus particularly excellent in allowing and moti-
vating persons to relate to and care about others besides themselves.18
The will is also, according to Aquinas, the principle of all free or prop-
erly human action (cf. ST I 82“3; I“II 6ff.). Justice perfects the will™s nat-
ural orientation toward rational good through inclining a person readily
and spontaneously to wish and to act rightly toward others, in accord
with what is their due, both “in general” and “in particular.”19 Justice is

17 ST II“II 117, 6; 123, 12; 141, 8; and 161, 5 also refer to justice™s moral preeminence.
18 The conclusion of this chapter is not the place to try to resolve the vexed question of
whether Aquinas was right to attribute to Aristotle™s teaching on the human soul in the NE
and especially in the De Anima an implicit faculty of the will, under the name “appetitive
intellect,” or “rational” or “intellectual appetite” (ST I 80, 1“2; cf. NE I.13). What is clear,
it seems to me, is that an explicit teaching on the will and justice as perfecting it is not a
part of Aristotle™s dialectic of justice in NE V, and that Aquinas knows this.
19 See Kent (1995) for a broader medieval intellectual history on ascribing virtues to the
will.
Aquinas and Aristotelian Legal Justice 197

thus a human virtue that is especially perfective of the person as a ratio-
nal as well as a social and civic animal (cf. Pol. I.2). To the Socratic and
Thrasymachean query as to whose good justice really is, Aquinas responds
in effect “yours; but even more so mine; and ultimately, in legal justice that
seeks the common good, ours.” He argues that justice is a better good
for the person practicing and possessing it than for the persons who are
the immediate bene¬ciaries of just deeds or policies. They bene¬t from
the justice of others only insofar as they are not harmed through being
deprived of a good that is already rightfully theirs. The lover and doer of
justice, by contrast, stands to gain something much more valuable: a great
perfection of his or her own soul, or at least an opportunity to strengthen
and exercise this perfection if it is already possessed. Other moral virtues
such as liberality and even magnanimity add to the goodness of justice
in one™s character and so are “relatively” better or greater; but without
the rational and volitional foundation of justice they are not true virtues
(cf. ST I“II 66, 4, ad 1 and ad 3; II“II 58, 12, ad 1“2). So Aquinas™s legal
justice is more interior, more foundational, and more universal in scope
than the other virtues precisely because it is perfective of the will as the
core of moral personality and because it has a universal aim in the moral
common good: justice, on Aquinas™s account, is so akin to reason as to
be almost synonymous with truth (cf. ST I 21, 2).
How does this “Thomistic difference” play out on the ground? Here
it is helpful to consider one of the examples Collins gives showing the
impasse between magnanimity and legal justice: that of the general who
must choose between prolonging noble action in war for the good of
his own virtue and “ignominious surrender” for the sake of the com-
mon good. Collins indicates that prudence or political wisdom must on
Aristotle™s account determine which end is to be preferred in this spe-
ci¬c instance (Collins 2004, 57“8). Aquinas would agree that prudence
must be fully operative to mark out the correct choice of conduct, but
only as regarding the choice of means, not moral ends. The question
for practical wisdom would have to be rephrased: Is this an instance in
which a magnanimous man should exercise his magnanimity, or should
he rather humbly restrain his impulse to greatness for the sake of fol-
lowing reason and justice, and so ultimately for true human virtue as
well (cf. ST II“II 161, 1“4)?20 One can imagine cases where a noble yet


20 Smith (1999, 2001) would, I think, interpret Aristotle™s text in a manner close if not
identical to Aquinas™s as I have presented it. My own interpretation of Aristotle appears
something of a mean between Collins™s and Smith™s, as comprising a less lofty elevation
of the common good than Smith suggests but also a less complex and counterintuitive
Moral Virtues at the Nexus of Personal and Common Goods
198

desperate battle would conduce more to the common good than igno-
ble surrender would, yet also cases where to continue the ¬ght would be
a sign of megalomania rather than true megalopsychia on the part of the
commander. True human virtue cannot operate contrary to justice; it can
never rightly de¬ne itself against the moral or “human common good”
(cf. ST II“II 59, 1, ad 1). While some argue that Aquinas has to “strain”
greatly (Tessitore 1996, 129n10) to pair humility and magnanimity as
twin virtues in the service of prudence “ hence in a sense founded also
on justice “ the example we have considered here seems rather to show
Aquinas™s ethical argument ¬‚owing more easily (and politically persua-
sively) than many theorists might expect.
In the ST, Aquinas writes: “If we speak of legal justice, it is evident that
it stands foremost among all the moral virtues, for as much as the com-
mon good transcends the individual good of one person. In this sense
the Philosopher declares (NE V.1) that ˜the most excellent of the virtues
would seem to be justice, and more glorious than either the evening or the
morning star™” (II“II 58, 12, emphasis added). This passage captures per-
fectly, and in a manner its author surely grasped, the contrast between
Aristotle™s more phenomenal and tentative defense of the greatness of
legal justice and Aquinas™s more psychological and con¬dent articula-
tion.21 By incorporating natural law, its broader common good, and the
will explicitly into his dialectic, indeed into the very de¬nition of justice,
Aquinas is able simultaneously to situate justice more deeply in the interi-
ority of a person and to extend its scope more broadly toward a universal
good. Aquinas can thus defend more boldly than did Aristotle the per-
fective, nonalienating status of care for the common good even outside
the best regime (cf. Collins 2004, 47, 56“7), alike for good persons, good
citizens, and outstanding statesmen.22


view of virtue as an end in itself than the one Collins often presents. For example, on my
reading of the NE but not on Collins™s (2004, 50, 57), Aristotle would not consider giving
away others™ goods ever to constitute an act of liberality or generosity properly speaking, so
there is no intrinsic tension between liberality™s action and the requirements of justice.
21 Thus while I generally concur with Gallagher(1994) on the bene¬ts for ethics of
Aquinas™s theory of the will, I think he overstates the extent to which Aquinas™s con-
sequent developments do not alter the spirit of Aristotle™s Ethics. On the role of the will
in Aquinas™s ethics and politics, cf. also MacIntyre (1988a) and Shanley (1999).
22 Although I cannot develop this point here, Aquinas™s con¬dent moral prioritizing of
justice is aided by his theologically framed, “top-down” account of the virtues in the
ST: he has treated wisdom and prudence before coming to justice, and justice before
magnanimity; Aristotle™s NE account is rather in the reverse, “bottom-up” order: from
magnanimity to justice, practical wisdom, and philosophic wisdom.
Aquinas and Aristotelian Legal Justice 199

Aquinas™s theory of legal justice thus indicates a route to overcome
individualism without overlooking the individual; to direct our care to a
wider, even universal human welfare without neglecting the claims of our
particular polities; and to a deeper and more open-minded re¬‚ection on
the place of transcendence, religion, and divine law in justice™s dialectic,
in both our contemporary theory and practice. Political theorists who
cannot simply adopt Aquinas™s overarching theological and metaphys-
ical perspectives may still begin, as Aristotle himself would encourage,
by inquiring whether some of Aquinas™s observations and conclusions
nonetheless accord well with their own moral and political experiences
and understandings, and follow the argument from there wherever it
leads. As a theory of personal virtue, indeed of our ¬rst moral virtue,
Thomistic legal justice offers a welcome counterbalance to the current
social-scienti¬c tendency to consider justice only as the ¬rst virtue of our
political institutions.
part iv


POLITICS, HUMAN LAW, AND
TRANSPOLITICAL VIRTUE
8

Aquinas™s Two Pedagogies
Human Law and the Good of Moral Virtue




In Part III, I argued that in elaborating his own accounts of two crit-
ical Aristotelian moral virtues, magnanimity and legal justice, Aquinas
places an increased and more explicit emphasis on the “common” aspect
of ethical virtue, with a view to personal internal disposition as well as
external conduct. He thus effectively situates moral virtue at the nexus
point between personal and common goods and presents moral virtue
itself as a common or sharable good, further moderating the classical
emphasis on self-suf¬ciency and superiority. With regard to legal justice,
Aquinas lays greater stress than did Aristotle on the common good as
the end “informing” this virtue, as he does also in his explication of
magnanimity. Moreover, I argued that Aquinas™s theory of natural law
provides a higher measure, simultaneously divine and human, whereby
legal or general justice can be considered both properly legal and univer-
sally virtuous, responding to a critical problem in Aristotle™s ethics and
politics.
For all its universality, Aquinas™s theory of legal justice nonetheless
holds an important place for politics ordinarily understood, and for par-
ticipation and practices guided in some respects by civil law and issuing in
new ordinances deemed useful for the community. If law and virtue are so
closely intertwined in Aquinas™s politics of the common good, we might
then wonder whether he is not uncomfortably close in theory to the “clear
and present danger” posed in practice by the Vice and Virtue Ministry

Originally published as “Aquinas™s Two Pedagogies: A Reconsideration of the Relation
Between Law and Moral Virtue,” American Journal of Political Science 45(3), July 1991: 519“31.
Reprinted by permission of the American Journal of Political Science and Blackwell Publishing
Ltd.

203
Politics, Human Law, and Transpolitical Virtue
204

mentioned in Chapter 1. If political philosophy is a practical science and
must take its initial bearings from human activity, experiences, and com-
monsense appraisals of practice, how can a twenty-¬rst-century reader
reasonably posit with Aquinas that it is a good thing to involve human
government in (as we typically term it) “legislating” and “enforcing” eth-
ical virtues? If Aquinas was so concerned to open up the transpolitical
horizon of the human social inclination and the closely related religious
inclination, both digni¬ed companions of human rationality in Aquinas™s
anthropology and ethics, then why stoop to involve all-too-human law and
this-worldly politics in the promotion of the virtues?
Part IV takes up these questions, focusing on two types of virtue that in
some sense transcend politics as ordinarily understood: ethical or moral
virtue, on the one hand, and religious or theological virtue, on the other.
This chapter focuses principally on ethical virtue, and inquires more
closely into the roles human or political law properly plays in moral edu-
cation according to Aquinas. I also focus upon the perfection of human
nature as such “ on “human” or “acquired” moral virtue rather than
divinely “infused” moral virtues and the “theological” virtues (see ST I“II
63, 3“4). I focus primarily on the former, on Aquinas™s view of the proper
perfection of human nature as such.1 This limited context of inquiry
has two advantages. First, the arguments I examine are principally those
that, on Aquinas™s own terms, do not per se presuppose the possession
of supernatural grace and the acceptance of Christian revelation. Hence
they are open to the rational scrutiny of believers and nonbelievers alike.
Second, a clearer understanding of this aspect of the connection Aquinas
posits between ethics and politics should serve as necessary groundwork
for engaging his controversial teaching on the relation between religion
(particularly the infused moral virtues and the theological virtues of faith,
hope, and charity) and politics.2


1 Aquinas™s distinction among these two kinds of moral virtue does not imply a sharp
separation between the acquired and infused virtues in the life of a person in grace. On
the contrary, he argues that the habituation that is a direct cause of the “acquired” virtues
also “disposes to infused virtue, and preserves and fosters it where it already exists” (ST
I“II 92, 1, ad 1). Grace, which is the “principle and root” of the infused virtues (I“II 110,
4, ad 2 and 3), presupposes, heals, and perfects the natural human “faculties” of reason
and will, which are the principles of the acquired virtues. Acquired and infused moral
virtues go by the same names and perfect the same subject, yet do so in different respects
and for distinct ends (again, see especially I“II 63).
2 For some recent discussions of Aquinas on this issue, in particular regarding the use
of public coercion to enforce faith commitments, see Andrew (1988, 7“9, 30“1), Fin-
nis (1998a, 292“3, 320“7), George (1993, 28“35), and Goerner and Thompson (1996,
644“8).
Aquinas™s Two Pedagogies 205

Aquinas™s basic de¬nition of law comprises four elements: it must be a
rule or norm grounded in reason, intended to foster the common good,
made by a legitimate authority (either the “whole people” or their “vice-
regent”), and duly promulgated (ST I“II 90, 1“4). His view of the proper
use of human or civil legislation is quite different than those of contem-
porary theorists who reject any attempt at legislating with a view to moral
virtue™s inculcation, and in this chapter I explicate and defend Aquinas™s
twofold response to such theories.3 The ¬rst we might term his “negative”
case: namely, that law is necessary to restrain and reform the “bad man,”
to open up for him the possibility of cultivating virtues and to diminish
his corrupting in¬‚uence on others. The second is Aquinas™s “positive”
reply: that well-framed law assists the basically good person in acquiring
the social virtues he or she already wishes to possess.4 Recent scholarship
has emphasized Aquinas™s negative narrative.5 After recapping brie¬‚y
this better-known half of Aquinas™s argument, with reference especially
to Robert P. George™s clear and helpful analysis in Making Men Moral
(1993), I will seek to recover, explicate, and assess Aquinas™s neglected
positive case.

8.1 Aquinas™s Negative Narrative, or How Law Can Curb Moral Vice
The reader of ST I“II, questions 95“7, could easily conclude that its author
envisions but a single appropriate role for civil or human law in moral
3 For contemporary liberal arguments against positing (“thick” or substantive) goods and
virtues as appropriate political and legislative ends, see Ackerman (1980), Dworkin (1977,
1985), Rawls (1971, 1993), and Richards (1982, 1986). For critical engagements of these
and other versions of liberal “neutrality” arguments, see Galston (1991), George (1993),
Macedo (1990), and Wolfe (1994). See also MacIntyre (1990a) on how Aquinas™s writings
on right and law theoretically challenge the separation of the right from the good and
the absolute prioritization of the right, and MacIntyre (1984) and Taylor (1994) on the
effects of social and civic “practices” and their role in the shaping of character.
4 In this chapter, we focus on well-framed, basically just laws and their impact on moral
formation. Aquinas at times speaks of “legal laws,” those human or civil laws in accord with
natural law and the fundamental criteria of social justice (e.g., ST I“II 96, 4). This usage
underscores his understanding that genuine law implies fundamental justice. Aquinas
also notes that citizens need to re¬‚ect on the practices enjoined by human law, evaluating
them according to the criteria of natural law, the legitimate scope of legislative authority,
the common good, and equity. He certainly does not expect, however, that all persons
will so re¬‚ect. In what we might term a more “realist” vein, Aquinas writes that “human
laws often bring loss of character and injury.” Law that “in¬‚icts unjust hurt on its subjects”
does not oblige in conscience, “provided [that one] avoid giving scandal or in¬‚icting a
more grievous hurt”(see ST I“II 96, 4, emphasis added; by “scandal” Aquinas means, e.g.,
undermining the authority of a decent regime or other legitimate laws). Cf. also on this
subject MacIntyre™s very helpful discussion (1988a, 179ff).
5 See especially George (1993), discussed at length later, and Finnis (1998a, 221“56; cf.
Finnis 1980, 262“4).
Politics, Human Law, and Transpolitical Virtue
206

education: that of checking the bad person™s inclinations to vice, or at
least his or her facility for acting on those inclinations. Human law, so to
speak, teaches only in reform schools.
True enough, Aquinas reiterates in the opening article of his discussion
of human law that law™s utility is bound up with its role in conducing to
goodness or virtue. The upshot of his argument there, however, is that for
decent or basically good-natured youths, education to virtue both begins
and ends at home: “parental training suf¬ces, which is by admonitions.”
Presumably, for well-disposed older individuals in need of moral guidance
or correction, the example and advice of good friends will ful¬ll the
same formative function. Aquinas™s response continues: “But since some
are found to be depraved, and prone to vice, and not easily amenable
to words, it was necessary for such to be restrained from evil by force
and fear in order that, at least, they might desist from evil doing, and
leave others in peace, and that they themselves, by being habituated in
this way, might be brought to do willingly what hitherto they did from
fear, and thus become virtuous. Now this kind of training, which compels
through fear of punishment, is the discipline of laws. Therefore, in order
that man might have peace and virtue, it was necessary for laws to be
framed . . .” (ST I“II 95, 1). Aquinas™s conclusion seems clear. Human
law has only one moral pedagogy at its disposal: that of checking and
restraining the vicious from performing evil deeds, “chie¬‚y those which
are to the hurt of others, without the prohibition of which human society
could not be maintained” (ST I“II 96, 2). Civil law thus contributes far
more directly and ef¬caciously to the achievement of political peace than
to the inculcation of moral virtue.6
In the ¬rst chapter of Making Men Moral (MMM), Robert George pro-
vides a helpful explication of the case for law as a necessary tool for
curbing moral vice and limiting its social impact. Aquinas™s treatment of
human law™s moral pedagogy in the ST clearly owes much to Book X,
chapter 9 of the NE, and it is on this seminal text that George™s interpre-
tation focuses. As George notes later in his discussion, he reads Aquinas
as concurring with Aristotle™s basic position, at least insofar as Aquinas™s
arguments are properly philosophic rather than theological (MMM 28“9;
cf. Comm. NE X, 14).


6 See Fuller (1990, 126“7), for an argument that Thomas Hobbes is in fundamental agree-
ment with Thomas Aquinas that peace constitutes “the ¬rst requirement of civil soci-
ety,” and hence the ¬rst objective of rule of law. Cf. Leviathan, chapters 14, 15, and
26.
Aquinas™s Two Pedagogies 207

The question on which George™s account focuses is not so much the
broader one, “Why is legislative involvement appropriate in the realm of
moral virtue?,” as it is the narrower query, “Why, according to Aristotle,
can™t most people refrain from vice and become morally virtuous with-
out the relevant laws on the books?” On George™s reading, only an elite
few, those blessed by nature with characters almost magnetically drawn to
the acquisition of virtue, can become virtuous in the absence of proper
laws. The vast majority of human beings are not so fortunate. Their weak
reason and will are constantly, powerfully obscured and swayed by unruly
passions. Ill-guided lust for pleasure renders them strong candidates for
acquiring the most debasing vices. Even sound parental advice and dis-
cipline are not likely to save them from such a fate. Only good laws can
come to the rescue of these poor souls (MMM 22“4).
Why? According to George, Aristotle™s account offers several related
reasons, some explicitly expressed and others implied. First of all, appre-
hended and convicted lawbreakers are likely to suffer far more serious
punishments than those guilty of disobedience to parental injunctions.
Fear of painful consequences provides powerful, passion-driven motives
for checking vicious inclinations. Over time, the person so restrained may
well be “tamed” and perhaps even educated to some degree of virtue.
Repeated efforts to avoid evil actions begin to habituate the agent in at
least the most elementary forms of good deeds. This person begins to taste
the pleasures of acting well. His or her reason is gradually unfettered and
becomes free to assess actions and ends with greater impartiality. “Even
the average person may then learn to appreciate the good a little, and,
in choosing for the sake of the good, become morally better” (MMM 26;
cf. 23 and ST I“II 92, 2, ad 4; 96, 2).7
In the second place, parental or friendly advice is easily resented
because of its ad hominem character, as comments along the lines of “he™s
just jealous that I™m having such a good time” and “she™s out to repress my
personality” indicate. Law, on the other hand, as a general, societywide


7 George later notes that the Christian Aquinas “certainly seems more optimistic [than the
philosopher Aristotle] . . . about the universality of what he calls ˜man™s natural aptitude
for virtue™” (MMM 28; cf. ST I“II 63, 1; 94, 3; 95, 1). One could round out George™s
point by observing that Aquinas also seems less optimistic than the Philosopher about
the ability of even those humans with the best natures and upbringing to achieve the
perfection of (acquired) ethical virtue. In a world created ex nihilo and marked by the fall
and redemption, grace™s healing and sustaining action on nature is not only available to
all but required by all. On this count, see especially ST I“II 109, 2 and SCG III.148, 155;
cf. also MMM 40.
Politics, Human Law, and Transpolitical Virtue
208

rule of conduct, is an easier moral medicine to swallow (MMM 26, citing
NE X.9, 1180a).8 Finally, George notes that the societal norm of civil law
is uniquely well equipped to ensure the sort of “moral ecology” that sup-
ports rather than frustrates sound upbringing and character formation.
“People, notably including children, are formed not only in households,
but in neighborhoods, and wider communities. Parents can prohibit a
certain act, but their likelihood of success in enforcing the prohibition,
and transmitting to their children a genuine grasp of the wrongness of
the prohibited act, will be lessened to the extent that others more or less
freely perform the act. . . . If . . . public authorities fail to combat certain
vices, the impact of widespread immorality on the community™s moral
environment is likely to make the task of parents who rightly forbid their
own children from, say, indulging in pornography, extremely dif¬cult”
(MMM 27; cf. 44“7).9

8.2 Beyond Reform School: Law™s Positive Pedagogy
According to Aquinas
Building on this exposition, I turn now to elaborate the second, more
neglected aspect of Aquinas™s view of the ways human law appropriately
seeks to promote “acquired” moral virtue. Recent scholarship, in partic-
ular MMM, does a clear and thorough job of explicating the negative
case Aquinas mounts for law™s role in inculcating virtue. As we have seen,
George™s account focuses on law™s salutary in¬‚uence on the vicious, on
those persons powerfully and habitually tempted to stray from virtue™s
rough and narrow path. Yet this, I will argue, is not the whole story.
Aquinas™s view of law™s moral pedagogy has a more positive side to it as
well: namely, law presented as a guide for the already good-willed.
This perspective on the relation of law to human virtue is but quietly,
subtly present in the questions opening the treatment of law in the ST. In
his discussion of “the power of human law,” for instance, Aquinas inquires
whether “all are subject to the law” (ST I“II 96, 5) and concludes that

8 George™s interpretation of Aristotle™s terse sentence (“While people hate any men who
oppose, however rightly, their impulses, the law is not invidious when it enjoins what is
right”) concurs with Aquinas™s: “[P]eople willing to oppose the inclinations of others are
hated by their opponent, even when the opposition is just; they are considered to act from
a malicious zeal. But the law commanding good deeds is not irksome, i.e., burdensome
or odious, because it is proposed in a general way. Therefore the conclusion stands that
law is necessary to make men virtuous” (Comm. NE X, 14, n. 2154).
9 For some of Aquinas™s comments on the deleterious effects of “vicious customs and cor-
rupt habits,” see ST I“II 94, 6 and 96, 4.
Aquinas™s Two Pedagogies 209

the “virtuous and righteous” are not subject “as the coerced is subject to
the coercer.”10 He also notes, but without elaboration, that these well-
disposed people are nevertheless subject to human law insofar as it is
“a rule of human acts,” “as the regulated is subject to the regulator.”
Law™s regulative or directive role as a guide for the good-willed takes on
greater import later, in the context of the questions on divine law that
tend to be ignored by political theorists.11 This oversight is especially
unfortunate given that the questions on the Old Law (ST I“II 98“105)
contain Aquinas™s only detailed case study of a particular polity, that of
ancient Israel, and its law.12 In this section I examine Aquinas™s positive
legal pedagogy in greater detail, with a view to completing our grasp of
the role he assigns to human law in “making men moral.”
In question 98, article 6 of the Prima secundae [ST I“II], Aquinas
inquires “[w]hether the Old Law was suitably given at the time of Moses.”
At ¬rst sight, this question seems utterly unrelated to our enterprise. Yet
in the context of his reply, Aquinas makes some general remarks about
law and those subject to its jurisdiction that will prove most helpful for
our purposes. Aquinas expresses the opinion that “every law is imposed on


10 In the body of this article, Aquinas sets forth his rationale as follows: “[b]ecause coercion
and violence are contrary to the will: but the will of the good is in harmony with the
law, whereas the will of the wicked is discordant from it.” And in the reply to the ¬rst
“objection” he elaborates: “in this way, ˜the law is not made for the just men™ (cf. 1
Tim.1:9), because ˜they are a law to themselves,™ since they ˜show the work of the law
written in their hearts,™ as the Apostle [Paul] says (Rom. 2:14“15). Consequently the law
does not enforce itself upon them as it does on the wicked.” In other words, one needs
to see beyond the “law as coercion” paradigm in order to understand law fully.
11 Notable exceptions are Finnis (1998a) and Kries (1990). Here it is important to note
that, unlike the New Law of the Christian dispensation, which is principally a matter
of divine grace and does not form or guide a particular human political community
(see ST I“II 91, 4“5; I“II 106“8), the Mosaic Law is intended to govern the people
of Israel (I“II 98, 4). The Decalogue and other “moral precepts” reveal basic ethical
principles accessible to human reason through natural law (I“II 100, 1; cf. 94, 2). The
“judicial precepts” determine speci¬c modes in which justice is to be carried out among
the Israelites themselves and by them toward foreigners.While in very different times
and circumstances the letter of the judicial precepts will not generally be appropriate,
Aquinas suggests that students of politics still stand to learn from their spirit in the context
of considering what makes for just and equitable human legislation (I“II 104, 1“3). In
devoting an entire quaestio (and one with unusually lengthy articles) to investigating “the
reason for the judicial precepts,” Aquinas invites his readers to engage in the dialectical
practices proper to political philosophy (I“II 105, emphasis added).
12 Cf. Horowitz (1953, 4“7), for an account of the “Interpenetration of Law with Morality”
and the “Reciprocal Effects Between Law and Ethics” in Jewish law. Recent work by David
Novak has elaborated these and related themes: see inter alia his Jewish Social Ethics (1992)
and Covenantal Rights: A Study in Jewish Political Theory (2000).
Politics, Human Law, and Transpolitical Virtue
210

two kinds of men. . . . [I]t is imposed on some men who are hard-hearted
and proud, whom the law restrains and tames; and it is imposed on good
men, who, through being instructed by the law, are helped to ful¬ll what
they desire to do” (emphasis added). Aquinas restates this basic perspec-
tive on law™s function a few questions later, in the course of considering
why the Old Law should have included so many ceremonial precepts: “As
stated above (I“II 96, 1), every law is given to a people. Now a people
contains two kinds of men: some, prone to evil, who have to be coerced
by the precepts of the law, as stated above (I“II 95, 1); some, inclined to
good, either from nature or from custom, or rather from grace; and the
like have to be taught and improved by means of law” (I“II 101, 3).13
Earlier, in his overview of human law™s speci¬c utility, Aquinas
employed an almost identical phrase to describe the possible sources
of a strong inclination to virtue. In those so fortunate as to possess this
healthy bent of character, it might be caused “by their good natural dis-
position, or by custom, or rather by the gift of God” (ST I“II 95, 1). Yet in
that important article, Aquinas™s conclusion seemed to be that the well
disposed have no real need of law™s aid in their “training” for mature
human virtue. For those so “inclined to good,” “parental training suf-
¬ces, which is by admonitions” (ibid.). The good need good laws only
to compel the bad to leave them alone; to prevent disruptions of social
peace, which render focus on character formation quite dif¬cult; and to
guard a sound moral ecology that tends to favor the cultivation of the
virtues (cf. MMM 44“5). But in this later passage Aquinas seems to equiv-
ocate. Suddenly, the well disposed do need to be instructed by law, albeit
in a distinct manner from those struggling with powerful pulls toward
vice. Every good law should take into account the needs of both gen-
eral “kinds of men”; the good lawgiver must formulate and promulgate


13 See also Plato, Laws: “The laws, it is likely, come into being partly for the sake of the
worthy human beings, in order to teach them the way in which they might mingle with
one another and dwell in friendship, and partly for the sake of those who have shunned
education, who employ a certain tough nature and have been in no way softened so as
to avoid proceeding to everything bad” (IX.880de). And in the context of explaining
the value of af¬xing “prologues” or “preludes” to his laws, Plato writes: “Sometimes the
law will persuade, and sometimes “ when dispositions are recalcitrant “ it will persuade
by punishing, with violence and justice. . . . [T]here is no great plenty or abundance of
persons who are eager in spirit to become as good as possible in the shortest possible
time; indeed, the many show that Hesiod is wise when he says that the road to vice is
smooth to travel and without sweat. . . . ” (IV.718). While Aquinas had no access to this
text, as to most of Plato™s dialogues, the Platonic in¬‚uence on Aquinas through Cicero,
Augustine, et al. is here again apparent.
Aquinas™s Two Pedagogies 211

precepts “expedient” to both (cf. I“II 101, 3). The bad man™s perspective
will not suf¬ce.14
Can these apparently opposing conclusions be reconciled, or are
Aquinas™s thoughts on the matter simply muddled and contradictory?
What kind of help does Aquinas believe the well inclined need to ful¬ll
their good intentions? And how might human or civil law in particular
provide such assistance? In the context of his discussion of the value of
the Old Law, Aquinas supplies a set of examples and explanations that
provide the basis for grasping the positive pedagogy he predicates of every
good law.
Aquinas ¬rst highlights law as a remedy for the moral ignorance that
even the good may suffer. Law comes to the assistance of those who hon-
estly want to act well, to do the right thing, but do not know what is
required of them in this or that aspect of their moral lives. “With regard
to good men, the [Old] Law was given to them as a help, which was
most needed by the people, at the time when the natural law began to
be obscured on account of the exuberance of sin” (ST I“II 98, 6). To
whose “exuberant sinning” is Aquinas referring? He is most certainly
not pointing to “the good,” who, though sinners (cf. I“II 109, 2), are
surely not characterized by lives bubbling over with willful wrongdoing.
Aquinas thus indicates that the moral evil and confusion of one™s society,
of one™s forebears and contemporaries, can infect and blind even those
with fundamentally good hearts and wills (cf. I“II 94, 6). While the latter,
in adopting at least some of the evils characteristic of their times, may
perhaps plead invincible ignorance, still their lives will not attain the rich
human ful¬llment they might otherwise have achieved. In such circum-
stances, clear, authoritative law may be the voice of foundational reason,
a spur to moral re¬‚ection and advancement. Imagine youths growing up
in a community where recreational use of narcotics is the norm. With all
the good will in the world, they may not see any problem with this prac-
tice. But laws on the books, which criminalize the practice and further
mandate educational explanation of the harm it entails for persons and
societies, may be the needed pedagogue to help them “ful¬ll [the good]
they desire to do.”
In the second relevant article (ST I“II 101, 3), Aquinas focuses on law™s
contribution to the habituation necessary for ethical virtue™s acquisition.

14 Compare Justice Holmes™s (1897) famous nonnormative defense of the “bad man™s”
vantage point (viewing law merely as a prediction of the court™s coercive action) and
H. L. A. Hart™s equally positivist critique of that line of legal theorizing (1994).
Politics, Human Law, and Transpolitical Virtue
212

In this educative capacity, laws expand the scope and variety of the agent™s
activities conducing to the virtues in question and provide more or less fre-
quent reminders of their importance. Aquinas alludes to both the words
of law and the meaningful practices it mandates as stimuli for re¬‚ection
and deepening moral awareness. For those who want to live justly toward
their neighbors and their communities, the myriad ways in which law
both directs their actions and reminds them of the connection of those
actions to the common good help them “to ful¬ll what they [already]
desire to do.” Think, for instance, of laws reminding homeowners of their
duty to clear the sidewalks bordering their property in order to protect
their pedestrian neighbors™ welfare, laws requiring employers to care for
employees™ health and safety, laws establishing a national service corps,
tax laws, laws requiring participation on citizen juries and education in
the practice of judgment for those selected, laws mandating safe driving
practices and prelicensing education, laws establishing and facilitating
the common observance of public holidays, and so on. If well made and
fairly enforced, these legal enactments can assist citizens who wish to live
justly, peaceably, and virtuously with others.
Beneath both of these positive pedagogical functions lies a third,
broader and deeper reason why Aquinas thinks the virtuously inclined
require law™s assistance to reach their goal. The well intentioned and
lovers of virtue need law™s in¬‚uence and instruction to ¬‚ourish primarily
and precisely because, once again, they are by nature social and political
creatures (cf. Politics 1.2 and ST I“II 72, 4). In order for their virtue to
be full human virtue, it must be “proportionate to the common good”
of their societies (cf. I“II 92, 1, ad 3). Properly human excellence, sug-
gests Aquinas, always comprises a concern, implicit or explicit, for social
and civic ¬‚ourishing. Hence, as we saw in Chapter 7, Aquinas argues that
justice, especially “legal” or “general” justice by which an individual loves
and acts with a view to common goods, is the highest of the moral virtues
(I“II 66, 4; cf. I“II 61, 5; II“II 58, 5“7).
Law broadly understood, as a general societal norm, plays a key role
as a common guide or rule of action in the political sphere.15 Aquinas
frequently stresses that law in its proper sense is made only for a “people”
(cf. ST I“II 101, 3) or a “community” (I“II 96, 1). “Human law should
be framed for the community rather than for the individual,” Aquinas
writes, because “[w]hatever is for an end should be proportionate to that

15 Cf. Manent (1998, 31“2 and especially 78“82), for a provocative treatment of this aspect
of law™s formative role.
Aquinas™s Two Pedagogies 213

end. Now the end of law is the common good, because, as Isidore says
(Etymologies V.21), ˜law should be framed, not for any private bene¬t,
but for the common bene¬t of the citizens.™ Hence human laws should
be proportionate to the common good” (ibid.).16 Of course, many laws
refer primarily to one sector of the economy or to one group among a
polity™s people (e.g., elected of¬cials, corporations, not-for-pro¬t associa-
tions and their contributors, agriculture, the military, airlines, individuals
whose income places them in a particular tax bracket). But to be fully
just, these ordinances must be made with a view to the overarching wel-
fare of the entire political community and re¬‚ect a reasonably equitable
allocation of bene¬ts and burdens (I“II 96, 4). Likewise, any exception
made to the law must conduce in some respect to the public welfare,
lest it constitute an act of arbitrary privileging of one part of civil soci-
ety over another (I“II 96, 6; cf. II“II 120, on epikeia [epiekeia or equity]).
Aquinas thus maintains that it is the essence of genuine law to be “always
something directed to the common good” (I“II 90, 2).
Aquinas™s response here merits quoting in its entirety, with a view to
explicating his later claim that even basically good people need law™s help.

As stated above (ST I“II 90, 1), the law belongs to that which is a principle of
human acts, because it is their rule and measure. Now as reason is a principle
of human acts, so in reason itself there is something which is the principle in
respect of all the rest: wherefore to this principle chie¬‚y and mainly law must
be referred. Now the ¬rst 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, as stated above (I“II 2, 7; 3, 1). Consequently, law must regard
principally the relationship to happiness. Moreover, since every part is ordained
to the whole, as imperfect to perfect; and since one man is a part of the perfect
[i.e., complete or self-suf¬cient with regard to its proper ends] community, it is
necessary that law properly regard the relation [ordinem] to universal happiness.
Wherefore the Philosopher, in [his] de¬nition of legal matters, mentions both
happiness and political community. He says in the ¬fth book of the Ethics (NE V.1)
that “we call those legal matters just, which are adapted to produce and preserve
happiness and its parts for the political community,” since the city [civitas] is
a perfect community, as he says in the ¬rst book of the Politics. (I“II 90, 2; cf.
ad 1“2)

In other words, the person considering how to live well and ¬‚ourish
is not an isolated individual in search of highly abstract answers, but is

16 For recent analyses of the common good in the thought of Aristotle, Aquinas, and their
students both medieval and contemporary, see Finnis (1980, 134“60; 1998a, 219“54),
Kempshall (1999), Keys (1995), MacIntyre (1990a; 1999, 63“146), Rourke (1996), and
Smith (1999).
Politics, Human Law, and Transpolitical Virtue
214

rather a member of various societies, especially of a family and a civic
community.17 In the latter capacity, he or she must often look to civil
or human law for concrete answers regarding how to act, so as to foster
the common good under ordinary circumstances (cf. On Kingship II.3,
n. 106).
According to Aquinas, natural justice or right requires political “deter-
mination” and “completion” (ST I“II 91, 3 and II“II 57, 2). In this task
customary and written laws have an important role to play, uniting to
form a common way of life that helps de¬ne the moral particularity of
those who share in it. As Aquinas writes, “The general principles of the
natural law cannot be applied to all people in the same way, on account
of the great variety of human affairs, and hence arises the diversity of
positive laws among various peoples” (I“II 95, 2, ad 3). Human law, when
it completes natural law or determines social justice, “add[s] many things
to good morals” (I“II 100, 1, obj. 2; cf. inter alia I“II 97, 1“3). Moreover,
the shared form of life fostered by well-framed law helps to strengthen
affection for one™s neighbors and society, reinforcing the sense of respon-
sibility for one™s own and engaging the passions as well as reason. Thus
civil law may also powerfully facilitate moral habituation for the already
well disposed.
Why then, in ST I“II 95, 1 does Aquinas leave his readers with the
distinct impression that human law teaches only in reform schools? Why
open his discussion of the political community™s law with the implication
that, since parental and friendly admonition suf¬ces for the moral educa-
tion of those inclined to virtue, law has no role whatsoever to play in this
nobler aspect of character formation? Let me suggest three responses,
which together might comprise Aquinas™s reply.
First and most obviously, the well disposed do not normally require
the coercive, punitive, fear-inspiring features of law™s moral pedagogy.
Although coercion is not of the very essence of law, according to Aquinas,
in a postlapsarian world force is clearly connected with aspects of law™s
legitimacy, credibility, and functioning (ST I“II 90, 3, ad 2“3).18 Signs


17 See ST II“II 47, 10, ad 2, also quoted in Section 5.3.
18 Note that in the First Part of the ST, Aquinas opines that had the human race persevered
in a “state of innocence” or sinlessness, there would still have been some sort of authority,
nondomineering and nonexploitative, among human beings (ST I 96, 4; cf. 96, 3). Not
surprisingly, he argues to this conclusion from the premises of, ¬rst, the social character
of human nature (“homo naturaliter est animal sociale, unde homines in statu innocentiae
socialiter vixissent”) and the need for someone to care directly for the social common good;
and second, the ethical requirement that humans who excel in “knowledge (scientia) and
Aquinas™s Two Pedagogies 215

proclaiming that “It™s the Law” to wear seatbelts, to conduct oneself in
certain ways in public, not to litter, or whatever, commonly end with
warnings such as “penalties include . . . ” or “violators will be prosecuted.”
In acting quickly to limit this most obvious, negative legal pedagogy to
some of the people, some of the time, Aquinas re¬‚ects his cautiously
optimistic view of human nature and frees us from a world in which threats
are considered essential to motivate any unsel¬sh deed (see Goerner and
Thompson 1996 for a similar argument).
In the second place, the parental upbringing and friendly advice that
these individuals do require will normally include, in decent polities
at least, a healthy respect for sound laws together with the institutions
and persons involved in their formulation, administration, and enforce-
ment, as well as an introduction, in the form of teaching, storytelling,
observances and practices, music, and celebration, to the civic customs
and public traditions that are integral parts of their country™s way of
life. Responsible parents in reasonably just polities seek to help their
children develop into good citizens, prepared to ful¬ll their social and
political duties and eager to make positive contributions to the com-
mon good. In other words, complete moral education, even or especially
when imparted primarily by parents and friends, both presupposes and
includes the laws (in some instances their letter, but even more so their
spirit).19
Finally, Aquinas clearly sees, thanks to Aristotle among others, that the
moral education that the legislators should intend will be best achieved
by pedagogues not only well versed in the laws but also intimately familiar
with the individual pupil.20 Useful generalities aside, law is intended not
merely for two generic types of human beings, but for myriad persons
evincing a tremendous variety of characteristics, capacities, strengths and
weaknesses, potential, and needs. When it is heeded, parental or private,
ad hominem instruction is the type of formation most conducive to law™s
general moral ends: human virtue and the common good. As Robert
George astutely notes, such education is best suited to compensate for
the two pedagogical disadvantages that, paradoxically, are also reasons


justice” use these gifts for the bene¬t of others and for the common good. Simon develops
a similar argument in the ¬rst chapter of his Philosophy of Democratic Government (1951).
19 Augustine advances a similar argument in City of God (XIX.16).
20 Cf. ST I 103, 6: “Now the highest degree of goodness in any practical order, design, or
knowledge (and such is the design of government) consists in knowing the individuals
acted upon; as the best physician is not the one who can only give his attention to general
principles, but who can consider the least details; and so on in other things.”
Politics, Human Law, and Transpolitical Virtue
216

for law™s great social utility: its generic formulation and its impersonal
nature (MMM 26“8; cf. ST I“II 95, 1 with 96, 1; NE X.9).


8.3 Universality and Particularity, Law and Liberty
In his crisp and concise review of Alasdair MacIntyre™s Whose Justice? Which
Rationality? (1988a), Robert George takes the author to task for an exces-
sive or misplaced “moral particularism.” This term he takes to connote a
historicist or tradition-bound account of practical rationality and justice,
one that without signi¬cant revision cannot immunize itself against at
least the “weaker forms of relativism” (George 1989, 602). Since Whose
Justice? is the ¬rst major work in which MacIntyre declares his allegiance
to “a speci¬cally Thomistic Aristotelianism” (cf. MacIntyre 1990b, 351),
George also challenges the compatibility of “MacIntyre™s strong moral
particularism” with the “apparently universalist understandings of justice
and practical rationality” of the “Thomistic account” (594). In the course
of his sympathetic critique, George makes the following observation:
“Authentic Thomism is not inconsistent with recognition of the impor-
tant respects in which traditions supply resources to practical re¬‚ection.
Thomistic practical philosophy need not, and in fact historically does
not, leave out of account the manifold ways in which context affects
the rational application of practical principles. MacIntyre could embrace
authentic Thomism merely by weakening his particularism to leave room
for some autonomous (tradition-transcending, universal-truth-attaining)
practical thinking” (601).
Leaving aside for now the accuracy of George™s assessment of MacIn-
tyre, in this section I elaborate an important sense in which, on my read-
ing, Aquinas™s ethical and political vision is more morally particularistic
than George™s analysis in MMM indicates. George™s account of morality as
articulated here appears sparser, more austere and abstractly rule-based
(one is inclined to say, more Kantian) than Aquinas™s; his analysis revolves
around “the legal enforcement of true [and universal] moral obligations”
(MMM, preface, viii, emphasis added; cf. MMM 8“18). These features of
George™s presentation may in large part be a function of the antiperfec-
tionist liberalism with which he is chie¬‚y concerned in this volume. A
prime concern of such liberal theorists is, of course, to limit the coercive
use of law (its “negative pedagogy”) so as to safeguard maximum indi-
vidual autonomy in the private sphere. While challenging some of these
liberals™ key premises, George yet seeks to allay some of their fears by
stressing the ways in which his natural law theory incorporates pluralism
Aquinas™s Two Pedagogies 217

and an appreciation of modern liberty. George does mention legitimate
political-legislative encouragement of genuine goods, including moral
goods, as entailed in his perfectionist theory, and this is further elabo-
rated in subsequent work.21 Yet in the one place in this work where he
elaborates a little on such positive action, at the very end of MMM, he
immediately cautions against too much such involvement (MMM 225“6;
cf. 41). While this reticence ¬ts the book™s overall focus on limited coer-
cion against “grosser forms of vice” as justi¬ed by universal moral norms,
the reader of MMM is apt to walk away with a truncated appreciation of
Aquinas™s theory of law™s moral pedagogy.
Aquinas, whose natural law teaching has certainly been accused of
over-abstraction,22 presents justice, law, and politics in a manner closer
to the classical vision. The basic principles of natural justice, or the pre-
cepts of natural law, form the essential foundation for moral and political
legitimacy; yet, as we have seen, the human good, including justice, still
stands in need of completion and speci¬cation. Aquinas envisions an
important aspect of this ¬lling out of the moral life for social beings as
resting with the “city or kingdom,” with the regime and its laws. The com-
plete moral life, as its etymological roots imply (from the Latin mores, plu-
ral of mos and moris, meaning “customs,” “manners or ways,” “character”),
requires a thicker or more particularized context than natural right or
even natural law alone can provide. Human reason itself indicates that
natural law should be “determined” with the help of custom and conven-
tion. Hence, well-framed human laws, both written and customary, “add
many things to good morals, to those that belong to the law of nature,
as is evidenced by the fact that the natural law is the same in all men
while these moral institutions are various for various people” (ST I“II
100, 1, obj. 2).23 The common practices that ensue facilitate the moral

21 One piece in which George does so is “Natural Law and International Order” (1999,
228“45). In the course of considering the wisdom, justice, and scope of a possible world
government, George reviews relevant aspects of Aquinas™s theory such as the need for
“determination” by positive law of natural law™s general precepts and the legitimacy of
what we would now term “cultural diversity.” My argument here considers these and
related concepts more speci¬cally in the context of law™s proper contribution to moral
education.
22 See, for example, Harry Jaffa™s assessment of Aquinas™s natural law in the ¬nal chapter
of his Thomism and Aristotelianism (1952, 167“88), aspects of which are discussed in Chap-
ter 4. Consider also Nietzsche™s remark that Aquinas™s thought is situated “six thousand
feet beyond men and time” and Hegel™s claim that medieval thought recognized “a
heavenly truth alone, a Beyond” (quoted in Maurer1979, 31“2).
23 I use this quote from Aquinas, despite the fact that it is in an objection, because it is
his clearest and most complete statement of this sort of which I am aware. He does not
Politics, Human Law, and Transpolitical Virtue
218

education and growth of the citizens by engaging the affections as well
as the intellect and encouraging habituation in positive practices. Nat-
ural law is, as I have argued, the indispensable beginning and point of
reference, the new foundation for Aquinas™s moral and political teaching,
but not its last word or its prime focus.24 The foundations normally lie
unnoticed while supporting the structure, and that structure does need
to be elaborated. One advantage Aquinas draws from Aristotle™s political
science is an appreciation for legitimate political particularity, even while
he opines that the Philosopher moved too quickly to a focus on those
particularities when there were still faults in the foundations.
In his assessment of the merits and limitations of Aquinas™s theory,
George focuses on the political implications of free will™s role in pro-
ducing acts of genuine virtue. George argues that all “moral goods” are
among those basic human goods that he terms “re¬‚exive” (MMM 43).
By this he means that their value depends necessarily on their being
freely chosen.25 Legislative attempts to mandate acts or attitudes instan-
tiating these goods actually threaten to denature and strip them of any
real worth. This is one key reason why, after George has demonstrated the
legitimacy of legislative involvement in the task of making men moral, his


disprove this claim in the body of his article; rather, he explains how, in his view, it should
be interpreted. Moreover, Aquinas makes this same point in his own name, in full or in
part, in several other passages, for example ST I“II 94, 5; 99, 3, ad 2; and 99, 4, ad 3.
24 Note the more extensive treatment of virtue than of law in the moral part (ST I“II and
II“II) of the ST, which Goerner (1979), among others, is right to stress. Nonetheless,
as should be clear from the argument of previous chapters, especially Chapters 3“5, I
disagree with the arguments advanced by Goerner and others that Aquinas is a fully or
strictly Aristotelian natural right theorist, and that Aquinas™s political theory is founded
on virtue rather than on natural law (cf. also Guerra 2002). For Aquinas synderesis and
properly natural law are rather at the foundation of the human capacity and the incli-
nation to cultivate the virtues, prudence included. Consider also the argument of Kries
(1990, 101): “The natural law, the most famous and most discussed of all of Thomas™s
political ideas, may indeed be a grand theory, but Thomas understands that the careful
political thinker seeks a more detailed, concrete description of the best regime.”
25 See MMM 14: “In the chapters that follow, I shall frequently distinguish ˜substantive™
and ˜re¬‚exive™ human goods. ˜Life,™ ˜knowledge,™ ˜play,™ and ˜aesthetic experience™ are
substantive goods: Although they can be instantiated through the choices by which one
acts for them, each is shared in us prior to and apart from our choices and the practical
understandings presupposed by our choices as a gift of nature and part of a cultural
patrimony. ˜Sociability,™ ˜practical reasonableness,™ and ˜religion,™ are re¬‚exive goods:
they can be instantiated only in and through the choices by which one acts for them.
Choice enters into their very de¬nition; they cannot be realized or participated in except
by choosing to realize or participate in them.” In his list of these “basic human goods,”
George follows Finnis™s enumeration in Natural Law and Natural Rights (1980, 86“90);
cf. MMM 13 with n16.
Aquinas™s Two Pedagogies 219

focus shifts to what government and law cannot or should not demand or
forbid: “Once we have brought into focus the diversity of human goods,
it becomes clear that legislators concerned to uphold morality cannot
prohibit all that much. At most, they can legitimately proscribe only the
fairly small number of acts and practices that are incompatible with any
morally good life” (MMM 40). “Laws can forbid the grosser forms of vice,
but certainly cannot prescribe the ¬ner points of virtue” (MMM 47).
Aquinas, of course, also emphasizes the voluntary character of truly
human or moral actions (ST I“II 6). Moreover, he suggests that even
when a person is possessed of a full-¬‚edged moral virtue or vice, it is
ultimately his or her free choice whether or not to “use” this habit in any
given instance (cf. I“II 50, 5; 53, 3; 54, 3). With Aquinas™s foundational
emphasis on the will and free will, the stress he lays on the possibility
of meaningful free choice in each action distinguishes his ethics from
Aristotle™s, while his appreciation of nature™s role and the force of habit
distinguishes his account from Kant™s.26 Aquinas in this regard seems
to strike a salutary mean. Finally, as George observes, Aquinas stresses
the importance of prudent legislative reserve with regard to forbidding
acts of vice or mandating those proper to virtue (cf. inter alia I“II 96,
2“3). Nonetheless, Aquinas judges that true moral freedom depends
upon proper habituation for its actualization, and that legislation broadly
conceived has a key role to play in moral education. Habituation from
vice to virtue converts passion from an enemy or a two-faced friend into a
genuine and very helpful ally in the rational creature™s efforts to live well.
It can also provide the needed experiential base for the self-correction
of erroneous practical reason. What were once experienced as arbitrary
restrictions or onerous burdens may thus be transformed into freely cho-
sen acts that the agent recognizes as choice-worthy and performs with
increasing ease, grace, and pleasure. Aquinas would entirely agree with
George that civil law is in many ways a “blunt instrument” for eradication
of vice and inculcation of virtue (cf. MMM 47; ST I“II 91, 4). Yet Aquinas
gives more attention to the positive (albeit limited) ways in which law can
facilitate people™s habituation to moral virtue, a key component of the
human common good.


26 Aquinas does account for situations where ignorance, tremendous psychological pres-
sure, or physical force lessens or even in rare instances renders that freedom virtually nil
in a given action; in his terminology, this last instance would not be a properly human,
that is, a free and rational, act but rather “an act of a human being” that does not ¬‚ow
from what distinguishes us from other, subhuman animals. See ST I“II 6, 2“8.
Politics, Human Law, and Transpolitical Virtue
220

An example from our own political culture should help illustrate such
positive legal pedagogy. According to George, one instance or man-
ifestation of the “re¬‚exive good” of “practical reasonableness” is the
proper bestowal of gratitude. Law and political authority therefore can-
not demand or enforce gratitude without destroying it in the process.
The gratitude shown by students to their teachers, for example, would
surely be false and farcical if manifested under threat of failure “ to say
nothing of trial and imprisonment “ for its omission. So much, the reader
of MMM might too hastily conclude, for the legitimacy of authoritative
attempts to inculcate this moral virtue. “The reasons for not bringing
coercion to bear with respect to such practices . . . place signi¬cant ranges
of morality beyond the reach of legislation as a matter of principle” (MMM 44,
emphasis added).
Aquinas, however, with his emphasis on social custom and habitua-
tion,27 might reply that there are appropriate broadly legal or political
means of encouraging gratitude short of threatening a ¬ne or waving
a pistol. In deliberating about such positive pedagogical approaches,
Aquinas would stress that civic re¬‚ection not abstract entirely from par-
ticularities such as governmental form, history, and culture in a particular
polity. Were he alive today, for instance, he might mention with approval
such “legal holidays” as Thanksgiving Day in the United States, which
turns citizens™ minds and hearts toward this virtue on an annual basis
and encourages its development. Thanksgiving Day is an excellent exam-
ple of something that originated in human nature (the good quality of
gratitude, as an integral part of a fully human existence); grew into a
customary part (a celebration) of a people™s way of life, inspired by an
especially signi¬cant manifestation of this virtue (the original Pilgrims™
feast with their Native American guests); and was later sanctioned by
George Washington™s proclamations at Congress™s request and ¬nally by
Abraham Lincoln™s executive order (cf. ST I“II 91, 3 and 95, 2, s.c., both
quoting from Cicero). The of¬cial proclamation of days of Thanksgiv-
ing on the national level was not without important effect. Over time,
a primarily New England Puritan celebration gradually became recog-
nized as an American holiday, marked, for example, in Catholic families
and churches, and even meriting a place in the liturgical calendar of
the Catholic Church in the United States. Note too, with reference to

27 For recent discussions of Aquinas™s political thought highlighting the central place it
accords custom and/or common law, see Goerner and Thompson (1996, 637“9), and
especially Murphy (1997).
Aquinas™s Two Pedagogies 221

the general argument made previously, that the family is de¬nitely the
prime locus of this element of moral and civic education. Historian David
Hackett Fischer observes that “[Thanksgiving] is the most private of our
public festivals, a day for each family to keep its special customs.” How-
ever, this parental formation both presupposes and is reinforced by the
larger spiritual, social, and civic signi¬cance of the holiday in question.28
Together with other holidays (Veterans Day, Memorial Day, Mothers
Day, and Fathers Day, to name but a few), and buttressed by institutional-
ized manifestations of gratitude to and respect for those who have made
outstanding contributions, in a wide variety of ways, to the common good
(e.g., the Medal of Freedom and other civilian awards or military deco-
rations), Thanksgiving Day teaches that to bestow gratitude where grat-
itude is due forms an integral part of a well-ordered social and civic
existence.29 Washington™s 1795 proclamation encouraged Americans to
express “affectionate gratitude . . . to Almighty God” for positive national
and international developments, and further to “beseech the kind Author
of these blessings . . . to render this country more and more a safe and pro-
pitious asylum for the unfortunate of other countries; to extend among
us true and useful knowledge; to diffuse and establish habits of sobriety, order,
morality, and piety; and, ¬nally, to impart all the blessings we possess, or ask

28 Fischer™s “Multicultural Fowl,” an insightful op-ed piece in the New York Times (Thanks-
giving Day, November 28, 1991), underscores these points: “By 1909, Catholic priests
were celebrating a November Pan American Thanksgiving Mass in Washington. . . . Roast
turkey had become traditional by the 18th century, but many households added ethnic
and regional embellishments. . . . In the same way, we honor the spiritual meaning of the
day. Harriet Beecher Stowe™s 19th century Thanksgiving reached its climax when her
grandfather spoke eloquently of ˜the mercies of God in his dealings with their family.™
Diana Applebaum, a historian, describes a 20th century Thanksgiving held in Toledo by a
Lebanese-American family, one of whose members became the actor Danny Thomas. The
dinner “ stuffed lamb with pignolia nuts, chicken with honey “ was very different from
Harriet Beecher Stowe™s. But when each child was asked to recite a prayer, the spirit was
remarkably the same. . . . As a national institution, it gains unity from our differences. . . . ”
See also Fischer™s more detailed remarks on the origins of Thanksgiving (1989, 165):
“In earlier years, days of Thanksgiving were appointed ad hoc for special occasions by
civil authorities. The ¬rst Thanksgiving in the Bay Colony happened on 22 February
1630/31, after provision ships arrived just in time to prevent starvation. . . . Special days
of Thanksgiving continued, but by the late 1670s this event had become an autumn
ritual, in which a fast was followed by a family dinner and another fast. The main event
was a sermon which reminded New Englanders of their founding purposes. Sabbath rules were
enforced. . . . Gradually Thanksgiving also became a domestic festival when families gath-
ered together and renewed the covenant which was so important to their culture” (my
emphasis).
29 See Josef Pieper™s Leisure, the Basis of Culture (1998, especially 50“4), for an engaging and
profound analysis of the socio-moral signi¬cance of festivals.
Politics, Human Law, and Transpolitical Virtue
222

for ourselves to the whole family of mankind.”30 Lincoln™s 1863 execu-
tive order, marking the beginning of a ¬xed annual day of Thanksgiving,
proclaims:

It has seemed ¬t to me and proper that [God™s mercies on the war-torn nation]
should be solemnly, reverently and gratefully acknowledged, as with one heart
and voice, by the whole American people. I do, therefore, invite my fellow-
citizens . . . to set apart and observe the last Thursday of November next as a
day of thanksgiving and prayer to our bene¬cent Father. . . . And I recommend to
them that, while offering up the ascriptions justly due to Him for such singular
deliverances and blessings, they do also with humble penitence for our national
perverseness and disobedience commend to their tender care all those who have
become widows, orphans, mourners, or sufferers in the lamentable civil strife
in which we are unavoidably engaged, and fervently implore the interposition
of the Almighty hand to heal the wounds of the nation, and to restore it . . . to
the full enjoyment of peace, tranquillity and union. In testimony whereof I have
hereunto set my hand and caused the seal of the United States to be af¬xed.31

Note Lincoln™s choice of words: while businesses and schools may be
required by law to close on this day, individual citizens are “invited” and
“recommended” to observe the spirit of the holiday in their families,
associations, and local communities. In recent decades, Ronald Reagan
employed exhortatory phrases such as “let us . . .” and “I call upon the
citizens of this great nation to. . . .”32 George Bush “urge[d],” while Bill
Clinton “encourage[d] all the people of the United States to assemble in
their homes, places of worship, or community centers to share the spirit
of goodwill and prayer; to express heartfelt gratitude for the blessings
of life; and to reach out in friendship to our brothers and sisters in the
larger family of mankind.”33
The national holiday of Thanksgiving Day thus offers an annual oppor-
tunity for instruction and re¬‚ection for the wayward, but not for them
alone or even principally. It also affords the well-intentioned members
of the American polity both “instruction” and “help” to appreciate and
perform the good they already freely wish to do. The spontaneous,
utterly uncoerced affection that many Americans feel towards this hol-
iday, together with its duration over time and through social change,
indicates the genuine formative reach of such legally institutionalized
social and civic practices.

30 Quoted in Boller (1963, 63, emphasis added).
31 New York Times, October 4, 1863, front page.
32 Washington Post, November 26, 1987, and November 24, 1988.
33 Washington Post, November 26, 1992, and November 23, 1995.
Aquinas™s Two Pedagogies 223


8.4 Thomistic Legal Pedagogy and Liberal-Democratic Polities
In his commentary on the Mosaic Law™s inclusion of “ceremonial pre-
cepts,” the substantial body of legislation directly relating to divine wor-
ship, Aquinas contrasts the Old Law™s chief purpose, namely, to facilitate
the right relationship of human beings to God, with that of human or civil
legislation generally. “[H]uman law, however, is instituted principally in
order to direct human beings in relation to one another. Hence human
laws have not concerned themselves with the institution of anything relat-
ing to divine worship except as affecting the common good of mankind
[ad bonum commune hominum]; and for this reason they have devised many
institutions relating to divine matters, according as it seemed expedient
for the formation of human morals” (ST I“II 99, 3). This sort of provi-
sion, of which Thanksgiving Day is arguably a modern liberal-democratic
example, falls under Aquinas™s broad classi¬cation of “things ordained
to the ful¬llment of the precepts” (praecepta, i.e., those rules absolutely
essential to the order of justice), “not as absolute duty, but as some-
thing better to be done. These may be called commandments (mandata),
because they are expressed by way of inducement and persuasion.” Such
legal measures conduce to “the better maintaining of the order of virtue”
(I“II 99, 5).
According to Aquinas, law properly seeks to express and uphold jus-
tice and right (see ST II“II 57, 1). But neither just institutions nor right
relations among citizens are freestanding structures. To be strong and
secure, they must be buttressed by the personal virtue of justice, that sta-
ble quality or “habit whereby a man renders to each one his due by a
constant and perpetual will” (II“II 58, 1). Moreover, not even this virtue
can stand alone; it in turn depends upon the cultivation of the other
moral virtues, including religion, piety, friendliness, gratitude, and lib-
erality (II“II 80; cf. I“II 65, 1). These latter are among those virtues
Aquinas terms “potential” or “quasi-potential parts” of justice: They have
important features in common with justice as a virtue and tend to rein-
force the dispositions characteristic of a just person. Yet unlike justice,
these human virtues are not (or need not be) among equals, and they
do not deal with strict right or absolute due. Hence, human law can and
should encourage these good qualities with a view to safeguarding jus-
tice and enriching the common welfare, and normally not under pain
of sanction. The actions speci¬ed by this type of ordinance do not con-
stitute an “absolute duty, but [are rather] something better to be done”
(I“II 99, 5).
Politics, Human Law, and Transpolitical Virtue
224

Aquinas™s case study of the Mosaic regime and its Law (or, more accu-
rately, the Mosaic Law and its regime) provides some examples of such
legislation. As we have already noted, Aquinas understands the Old Law™s
judicial precepts to aim especially at establishing and safeguarding just
relations among humans. Aquinas™s treatment of this legislation high-
lights provisions that encouraged generosity and friendliness among the
citizens, and so far as possible toward foreigners as well. Thus the law
stipulated that produce should be set aside for the poor, that stray live-
stock be secured and returned to their owners, and that insolvent debtors
be forgiven after several years of unsuccessfully attempting to pay (ST
I“II 105, 2; cf. 99, 5). The law even permitted stopping at one™s neigh-
bor™s vineyard to enjoy a complimentary snack. While it might seem that
this sort of legislation would encourage resentment and a free-rider atti-
tude contrary to the “order of peace and justice,” Aquinas maintains
the contrary. Peace and justice require brotherly love and genuine well-
wishing, and these in turn entail a willingness to share, to make at least
small sacri¬ces for one™s neighbor™s bene¬t. “Now a man does not give
easily to others if he will not suffer another man to take some little
thing from him without any great injury to him. And so the Law laid
down that it should be lawful for a man, on entering his neighbor™s
vineyard, to eat of the fruit there; but not to carry any away, lest this
should lead to the in¬‚iction of a grievous harm, and cause a distur-
bance of the peace. For among a well-behaved people, the taking of a
little does not disturb the peace; in fact, it rather strengthens friend-
ship and accustoms men to give things to one another” (I“II 105, 2,
ad 1).34
That considerable tension exists between this vision of property and
that fostered by modern liberalism is probably obvious to the reader.
Nonetheless, in the interest of promoting respect for rights and pro-
tecting private property, liberal democratic legislators and executives
continue to encourage generosity and public-spiritedness. Donations to
nonpro¬t organizations are granted tax exemptions; free associations of
citizens working for some aspect of the public welfare or for some under-
privileged sector of society are awarded public funds to assist them in their
virtuous activity. And, as we have seen, the modern statesman George
Washington concurs with the scholastic Aquinas that justice requires but-
tressing and enriching by “habits of sobriety, order, morality, and piety,”

34 For probing treatments of these and related themes in contemporary political and legal
context, see Glendon (1987, 1991).
Aquinas™s Two Pedagogies 225

together with a spirit of thanksgiving and a lively concern for the whole
human “family.”
Aquinas expects that human law™s form and possibilities will be relative
in some respects to the speci¬c regime or constitution in place in a given
political society (ST I“II 95, 4; cf. 63, 4), as well as sensitive to the cus-
toms and condition of the people, of the civil society that the legislation
is intended to govern (I“II 95, 3; cf. 97, 2“3). That liberal democracy™s
attempts to encourage moral virtue should be mainly by way of permission
and facilitation would then make perfect sense to Aquinas: again, within
the universalizing dynamic of his ethical-political foundations, Aquinas
makes an important place for political particularity as unavoidable in
this world and in many ways bene¬cial. Yet Aquinas would caution those
liberal democrats who would remove concern for virtue entirely from leg-
islative and executive agendas to think carefully about both the require-
ments of justice and the actual impact on citizens of patterns of conduct
set by legislative guidelines, to think more carefully not just about private
rights but also about the limits of a rights-based approach to political
order and the requirements of any genuine common good. Moral neu-
trality is impossible in the realm of human action, and human law, for
all of its foibles, is unavoidably one “rule or measure” of those human
acts. Even in our pluralistic, multicultural milieu, most citizens can agree
that qualities like generosity and gratitude characterize good individuals
and healthy societies alike. And as Aquinas™s twofold pedagogy shows,
with regard to cultivating these personal moral virtues and realizing their
social and civic impact, we all stand to bene¬t from the assistance of
well-framed law.
9

Theological Virtue and Thomistic Political Theory




He that knows the highest cause in any particular genus, and by its means
is able to judge and set in order all the things that belong to that genus,
is said to be wise in that genus, for instance, in medicine or architecture,
according to I Cor. 3:10, “As a wise architect, I have laid a foundation.” On
the other hand, he who knows the cause that is simply the highest, which is
God, is said to be wise simply, because he is able to judge and set in order
all things according to divine rules.
Aquinas, ST, II“II 45, 1; cf. SCG I.1.1



If Aquinas™s case for a moderate yet ennobling legal pedagogy of ethical
virtue is judged persuasive, we may nonetheless be troubled by the case
Aquinas appears to mount in the ST for the political enforcement of the
religious, supernatural, or speci¬cally Christian virtues of faith, hope, and
charity. These three theological virtues are linked in Aquinas™s schema to
a number of infused moral virtues, which unlike their natural counter-
parts are not acquired by dint of moral training and habituation, but are
rather gratuitous gifts from God allowing a person to orient all of his or
her actions and attitudes toward friendship and union with God, towards
membership in God™s household and good citizenship in the heavenly
City (cf. ST I“II 63, 4). In particular, when Aquinas argues that public
and “obstinate” heretics are properly punished by political authorities
(II“II 11, 3; cf. II“II 10, 8), and that laws generally should seek to “foster
religion” (I“II 95, 3), he appears to overextend the initially plausible case
he has made for law™s link with virtue for the sake of both personal and
common goods. He does so, moreover, in a way that seems to justify our
contemporary suspicion, surveyed in Chapter 1, that virtue and common
226
Theological Virtue and Thomistic Political Theory 227

good theories in the political and legal spheres must ultimately be reli-
gious theories paving the way to severe theological-political problems.
This ¬nal chapter thus brings the book™s argument back around to its
beginning, to this tension within central contemporary experiences and
concerns: on the one hand, a renewed appreciation of religion™s role in
fostering responsibility, sociality, and solidarity for the common good in
social and civic affairs; and on the other, deep unease, suspicion, and
even fear of faith-based visions of virtue and the common good and their
implications. This problem highlights the key practical issues at stake for
us as we reexamine Aquinas™s arguments regarding the political promo-
tion and legal enforcement of theological and infused moral virtues. I
argue in this chapter that even with regard to the political repression
of heresy, Aquinas™s reasons are more properly moral than religious in a
revealed or supernatural sense. One wishes that Aquinas had factored the
distinction and even the potential tension his own theory implies between
infused moral virtue and human civic virtue into his syllogisms regarding
the political relevance of religious offenses (cf. ST I“II 63, 4). In a positive
vein, however, Aquinas™s theory of acquired and infused moral virtues also
allows for a high degree of convergence and cooperation between citi-
zens respectively motivated by religious and secular reasons to work for
social justice and the common good. In this important regard, Aquinas™s
theory provides an excellent framework for constructively considering
the “Charitable Choice and Faith-Based Initiative” controversy current in
the United States and similar policy questions in other liberal-democratic
polities.
The undeniable excesses of Aquinas™s position on the political repres-
sion of heresy spring, I will argue, in good measure from insuf¬ciently
checked indignation against those who would use their intellectual and
social preeminence to assault common goods, precisely as participated
in by the poorest, least educated, and most vulnerable members of the
community. Disdain for heretics™ and apostates™ (real or perceived) intel-
lectual pride and anger at its deleterious social impact undergird on a
foundational level some uncharacteristically immoderate articulations by
Aquinas.1 While Aquinas™s expectation of humility on the part of others is

1 It is true that Aquinas™s thought on virtue, law, and politics is in many ways moderate
and moderating, as well as challenging, elevating, and ennobling. But Goerner and
Thompson(1996), among others, seem to me to be correct in maintaining that the honest
scholar of Aquinas™s political theory needs to face the harsh nature of certain of Aquinas™s
teachings, including especially the punishment of breached faith commitments by prop-
erly political authority.
Politics, Human Law, and Transpolitical Virtue
228

both eminently reasonable and socially responsible, some calmer, more
thorough re¬‚ection on the political implications of his own account
of humility might have cautioned our great-souled author against allot-
ting properly religious jurisdiction and discipline to this-worldly political
authorities.


9.1 The Problematic Political Promotion of Theological Virtue
In Chapter 3 I noted the intrinsic value of willing service in Aquinas™s
thought and consequently the unpatronizing nature of his case that phi-
losophy should act as a handmaiden to theology, or more broadly that
natural reason should serve faith as the natural inclination of the will to
love assists the supernatural love of charity (see Section 3.3). Here, how-
ever, we must consider an apparent and most problematic analogue on
the plane of practical reason: Aquinas™s position that political authority
should assist ecclesiastical authority in exacting severe penalties from pub-
lic, persistent heretics, even to the point of executing them on account
of their in¬delity in matters of faith. This “ the most extreme aspect of
Aquinas™s position “ seems to derive from his re¬‚ection on then-current
ecclesial-political practice and on Isidore of Seville™s general maxim that
laws should in appropriate ways be “founded on reason . . . [and] foster
religion” (Isidore, Etym. ii.10; cited and glossed by Aquinas in ST I“II 95,
3, emphasis added). Religion, like humility (cf. Chapter 6), is a natural
ethical virtue in Aquinas™s schema, as well as a revealed or supernatural
virtue under the Christian dispensation; yet how can support for religion
“founded on reason,” and hence apropos to human legislation, extend
to penalizing breaches of revealed, supernatural faith?
So, as Aristotle (Pol. II.1) begins his critique of the best regimes of oth-
ers with the most radical, that of the “happy city” of Socrates elaborated
in Plato™s Republic, our investigation of the relation of theological and

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