Document Type

Working Paper

Publication Date

11-9-2012

SSRN Discipline

Legal Scholarship Network; PSN Subject Matter eJournals; Political Theory eJournals; Social Insurance Research Network; Law School Research Papers - Legal Studies; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Political Science Network

Abstract

Thomas Aquinas's Treatise on Law hereinafter "Treatise" is enjoying a resurgence of interest among legal scholars It is excerpted in leading legal philosophy texts assigned in jurisprudence courses and cited in law journal articles and legal monographs on a wide range of subjects Although the Treatise consists of nineteen chapters "questions" the average student of legal philosophy is likely to have been exposed only to portions of the first eight and little if any of the last elevenThe Treatise is not a short work and most of the editorial decisions are both practically necessary and pedagogically understandable Nevertheless omitting the "rest" of the Treatise has had some unfortunate consequences The omitted questions include the bulk of Thomas's account of the relationship of theological revelation to human law a subject of increasing importance in contemporary debates about religion and politics The omissions also tend to reinforce the impression that Thomas's natural law system can be hived off from his religious and cultural context To be sure Thomas does make the familiar natural law claim that there are moral truths that all human beings must know merely by virtue of being human However the deeper one goes into the Treatise the clearer it becomes that Thomas's treatment of natural law is part of a complex and theologicallyinformed understanding of nature reason revelation and the unfolding story of God's action in the worldThis article expounds and analyzes the role of Scripture in Thomas's account of legislation and judging arguing that Thomas leaves only modest room for the Bible to influence human law directly After explaining some key theological presuppositions that underpin Thomas's account of law generally the article shows how Thomas divides the laws found in Scripture into several overlapping categories only one of which the "moral law" found in the Old Testament has any direct continuing relevance for the Thomistic jurist Even here Scripture serves mostly to confirm the moral truths that human beings at least the "wise" ones already knowNevertheless it would be an overstatement to conclude that the Bible is completely irrelevant to the Thomistic jurist The Scriptures bear witness to the grace of Christ which in Thomas's account is critical to the jurist's proper exercise of his or her vocation Moreover the Thomistic jurist's understanding of law is shaped by Scripture's account of nature the human person and ethics While these theological starting points may not always make much difference in legal details they do lead Thomas and presumably his followers to a vision of law that is famously at odds with many modern accounts

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