MURPHY, Mark. Custom, and The Common Good in Aquin As's Account of Political Authority PDF

Consent, Custom, and the Common Good in Aquinas's Account of Political Authority
Author(s): Mark C. Murphy

Source: The Review of Politics, Vol. 59, No. 2 (Spring, 1997), pp. 323-350
Published by: Cambridge University Press for the University of Notre Dame du lac on behalf of
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Consent, Custom, and the

Common Good in Aquinas's
Account of Political Authority
Mark C. Murphy
According to Aquinas's view, while the mandatethat political authoritybe
institutedand exercised is an immediateconsequenceof the naturallaw precept
that the common good be promoted, the question of who possesses political
authorityis settled by customarylaw. Samuel Beer's rival interpretation,one of
the few attemptsto discern Aquinas's view on political authority,is incompatible
with Aquinas'sexplicit remarkson these matters.The presentaccountprovides an
interpretationthat both fits Aquinas's few explicit remarksabout the source and
form of politicalauthorityand explainsthe tersenessof his remarkson that subject.
Although there have been innumerablewritings on Aquinas's

definition of law-"[Law] is nothing other than an ordinance of
reason for the common good, issued by one who has care of the
community, and promulgated"'-there has been very little commentary on what Aquinas means when he says that law must
proceed from one who has care of the community.In the case of
the eternal,natural,and divine laws, it is quite clear who has care
of the community: God, who governs "the entire community of
the universe"2by ordering all creatures to their ends.3 Aquinas
provides little guidance, however, with regard to the question of
who has the authorityto lay down dictates for the human political community; I. T. Eschmann has remarked that "Aquinas
often seems to have irritated,as it were, his later readers by his
laconic statements"in this and similar matters regarding earthly
I owe thanksto AlasdairMaclntyreand Paul Weithmanfor helpful criticism.
I am also grateful to the Editors and the anonymous referees at the Review of
Politics whose careful and extensive commentaryon an earlier draft of this paper
made it much better than it otherwisewould have been.
1. "[Lex]nihil est aliud, quamquaedamrationisordinatioad bonumcommune,
ab eo, qui curamcommunitatishabet, promulgata"(SummaTheologiaeIalae, 90,
4. Hereaftercited as ST.) All translationsfrom Aquinas'stexts are my own.
2. "tota communitasuniversi"(ST IaIIae91, 1).
3. See ST Ia 22, 1.

324
THE REVIEWOF POLITICS
governance.4 The aim of this article is show that for Aquinas

political authorityis best understoodnot in terms of any natural
hierarchy among humans but rather in terms of customary law
that is established by the consent of the community.
Beer on Aquinas's Account of Political Authority

Samuel Beer has recentlyarguedthat for Aquinasthe authority
to legislate resides by nature in certain members of the political
community.5Beer's aim is to exhibit a mode of thinking about
political authoritythat is now quite uncommon,a political theory
to which the American rebels "turnedtheir backs" in 1776,6 and
which is most ably defendedby Aquinas.7Beer holds that the key
to understandingAquinas's account of political authority is the
doctrine of the hierarchyof being which Aquinas advocated. The
cosmos, created and providentially governed by the Perfect Being, exhibits a gradationin levels of being from angels, humans,
nonrational animals, vegetables, to inanimate beings. As for
Aquinas, good is convertible with being-all things are good
insofar as they exist8-the descending order of being is also a
descending order of value. The hierarchy is inclusive in that
those higher in the levels of being and goodness possess all the
perfections of those who hold a lower place in the hierarchy.
Now, each being in the hierarchyis such that it is subordinated
to that which is above it in the hierarchy, and is such that its
proper activity preserves that which is below it in the hierarchy.
All these different orders of beings are directed to the perfection
of the whole of the cosmos; "the whole constitutesan economy"9
in which those fartherup in the "chain of being" rule over that
which is lower.
This kind of inclusive hierarchyof value is also seen within
the human order, for "Different men ...
have reason in different
4. I. T. Eschmann,"St. Thomas Aquinas on the Two Powers," Mediaeval

Studies20 (1958): 201.
5. Samuel H. Beer, "The Rule of the Wise and the Holy: Hierarchyin the
ThomisticSystem,"Political Theory14 (1986): 391.
6. Beer, "Ruleof the Wise and the Holy,"p. 391.
7. Ibid.,p. 393.
8. See ST Ia 5, 1 and5, 3.
9. Beer, "Ruleof the Wise and the Holy," p. 399.

AQUINAS ON POLITICALAUTHORITY
325
degrees with the result that the higher use and command the
lower while the lower serve and defer to the higher."'0The basis
of the ruler's authority within a human political community is
his or her "intellectualpower,"" whereby he or she is naturally
fitted to rule those who have such power to a lesser degree. The
ruler's virtue is "both to know what is good for the ruled and to
understand that good as a harmonious part of the common
good."'2 Hence, Beer writes that
knowledgeof this kind, arisingfrom the ontologicalstatusof the ruler,
cannot be reduced to modern notions of greater intelligence, more
good will, or greaterexpertise.To try to do so would gravely distort
the vision and sadly diminishits grandeur... Exemplifyingthe law of
the cosmos, the higher orderdiffers from the lower orderamong men
not merely becauseits membersare more intelligentor more expertor
more altruistic,but because they embracea higher order of being, a
more comprehensiverange of the stuff of ultimatereality.'3
What is the status of consent in a world in which "those who
excel in intellect are naturallyrulers"?'4Obviously, it must play a

very limited role. Beer, though not doubtingthat the good "consent
voluntarily to the rule of the wise,"'5 considers the possibility
that the ruled consent because they already accept what the
rulers will ask of them; he rejects this interpretation,though, for
it would deny the hierarchical principle to hold that all can
recognize what is necessary for the common good. On Beer's
view, the governedconsent to the "legitimacyof the source of the
dictates,"'6not the dictates themselves. But once more, a difficulty
appears: how are the governed, being less perfect, to recognize
the superiorityof the ruler?Beer's answer is that it is throughthe
charisma of the ruler, manifested in his or her being "clothed in
more precious garments"and possessing "more beautiful abodes,"
that the governed come to recognize the authoritative status of
10.Ibid.,p. 400.
11.Ibid.
12. Ibid.,p. 401.
13. bid.
14. Aquinas,SummaContraGentiles,III, 81, cited in Beer, "Ruleof the Wise
and the Holy," at p. 410.
16. Ibid.,p. 415.

326
the ruler.17It should further be noted that, on Beer's account,

consent plays no causal role in the generationof authority;rather,
consent consists merely of recognition of and deference to the
ruler's natural authority.'8 Though necessary for the ruler's
authorityto be efficacious, consent does not grant a right to rule;
the right to rule is held by certain persons by virtue of their
having a "more comprehensive range of the stuff of ultimate
reality."
Brian Tiemey has argued both that Aquinas's account, even
if interpretedaccuratelyby Beer, is not representativeof medieval
political theory in general, and that Beer's interpretationin terms
of natural hierarchy is a "very one-sided picture of Aquinas's
thought."19Unfortunatelyfor our purposes, the bulk of Tierney's
article is devoted to showing that even if consent is not an
importantelement of Aquinas's political theory, it plays a much
more importantrole in the whole of medieval thought than Beer
accords it. He does raise a few importantconsiderations,though,
against Beer's interpretation.Aquinas's claim that in any political
community all should have some share in governance seems to
fit poorly with Beer's view that for Aquinas political authorityis
naturally vested in but a few members of the community;20and
Beer's emphasis on the ignorance of the governed does not sit
well with Aquinas's insistence that subjects are obligated to
disobey any civil law that is contrary to the law of God.21On
Tierney's view, though, these considerations against Beer's
interpretationare not very weighty:
I do not want to labor these points too much. The work of Aquinas is
like the Bible in this, that one can prove anything out of it by an adroit
selection of texts. The interpretation of Aquinas's political theory
remains controversial; and his thought certainly did contain the
hierarchical doctrines that Beer emphasizes.22
17. ST Iallae 102, 4, cited in Beer, "Ruleof the Wise and the Holy,"at p. 417.
19. BrianTierney,"Hierarchy,Consent,and the 'WesternTradition,"'Political
Theory15 (1987): 646.
20. See ST laIIae 105, 1.
21. See ST IaIIae96, 4.
22. Tierney, "Hierarchy,Consent, and the 'WesternTradition,"'p. 647.

327
Tierney concedes too much in his reply to Beer: Aquinas explicitly denies that there exists a hierarchyof being within the human
species of the kind necessary to supportBeer's claim about natural authority. Further,Aquinas rejects Beer's claim that all and
only those who are superior in goodness hold political authority.
We shall treat these in turn.
Beer is certainlyright to say that for Aquinas creationexhibits
a hierarchy of being such that those species further up in the
hierarchyrule over those which are lower: "the less noble creatures
are for the sake of the nobler creatures,"23
and thus "those things
that merely live, like plants, are generally for the sake of animals,
and all animalsare for the sake of humans."24
Beer is also right to
think that Aquinas holds that some humans are superior in
goodness to others, even in the state of innocence,25and thus in
some sense we might say that a hierarchyof goodness exists in
human communitiessuch that those superior in virtue are further
up in the hierarchythan those who are vicious. The accuracy of
these claims is not sufficient, though, to show that for Aquinas
some humans have naturalauthorityover other humans. If Beer
is to rely upon Aquinas's claim that species higher in the hierarchy
of being rule over those lower in the hierarchyof being to show
that some humans naturally have authority over other humans,
it must be shown that the kind of hierarchy displayed within
human communities is in relevant respects the same as the kind
of hierarchy displayed among species. And Aquinas denies that
they are the same. In discussing whether among demons there is
any order of authority, he writes that there is such a natural
order, because they are not equal in nature;26here Aquinas is
referringback to his discussion of the angelic natureearlier in the
Summa, where he showed that all angels are of distinct species.27
Hence, it is the distinction of species-which on Aquinas's view
23. "Creaturaeignobilioressunt propternobiliores"(ST Ia 65, 2).
24. "Ea quae tantum vivunt, ut plantae, sunt communiterpropteranimalia;
omnia autem animaliasunt propterhominum"(ST IIaIIae64, 1).
25. See ST Ia 96, 3. The thrustof Aquinas'sargumentis that since possession
of virtue and knowledge depends on the exercise of free will, there would have
been inequality of virtue and knowledge in the state of innocence, even if that
state precludesthe existence of vice.
26. See STIa 109, 2 ad 3.
27. See ST Ia 50, 4.

328
necessarily carries with it inequality-that places the demons in

But Aquinas says that such an order does
an order of authority.28
not exist with regard to humans:"the demons are not equal with
regard to their natures, and thus there is in them a naturalorder
of authority;this does not happen in humans, who are naturally
equal."29Thus, although some humans are superior to others in
virtue, Aquinas holds that their being of the same species
precludes any human from having naturalauthorityover another.
Aquinas also denies that those who have authorityare always
superior in goodness in his importantdiscussion of political authority in his commentaryon the Sentences of Peter Lombard.In
that commentary Aquinas poses the question whether Christians
are bound to obey the secular authorities. Aquinas answers that
the duty of obedience arises because of authority which "has
constraining force, not merely temporally but also spiritually on
account of conscience."30Now, there are three aspects to consider
in determining whether an authority has the power to bind in
conscience: mode, origin, and use.31The mode of authority-that
of the ordering of superior to inferior-is always good, and
hence all authorities have something in them that is capable of
binding.32Authority can be deficient, though, in terms of origin
and use. The origin of authority may be deficient in that the
person who attains authority is unworthy or in that the manner
in which he or she attains authority is illicit;33and the use of
authority may be deficient in that the authority commands what
is outsidehis or herjurisdictionor in thathe or she commandswhat is
contraryto the purposefor which the authoritywas established.34
28. See ST la 47, 2.
29. "Daemonesnon sunt aequalessecundumnaturam:unde in eis est naturalis
praelatio:quod in hominibusnon contingit,qui naturasunt pares"(ST Ia 109, 2 ad
3).
30. "Virtutemcoactivamhabet, non tantumtemporalitersed etiam spiritualiter
propterconscientiam."See Aquinas,Scriptumsuper Libros SententiarumMagistri
PetriLombardiEpiscopiParisiensis(Commentary
on the Sentencesof PeterLombard),
Book II, Distinction44, Question2, Article 2. Hereaftercited as Commentary.
II 44, 1, 2.
31. See Commentary,
32. I will considerwhy the mode of authorityis always good in the following
section.
33. See Commentary,
II 44, 2, 2.
II 44, 2, 2.
34. See Commentary,

329
When a certain authority exhibits a defect in one of these

aspects, it may cease in some way to have constraining force.
Now, if Beer's interpretationis right, then those who attain to
authority who are unworthy-who are too low in the hierarchy
of being, to put it in Beer's terms-are not deserving of obedience, and hence one would not be obligated to obey laws issued
by them. However, this conclusion is not drawn by Aquinas. With
regardto one who is unworthyof obtainingauthority,he writes:
[he or she] is not precluded from attaining the right of authority, and
because authority with regard to its form is always from God (which
generates the debt of obedience), subjects must obey such authorities,
though unworthy.3
Unlike the other defect in the origin of authority, in which authority is obtained improperly,the unfitness of the ruler does not
release the subject from his obligationto obey. Thus, Beer's interpretationof Aquinas is explicitly rejected by Aquinas himself.
Beer might, of course, respond to these objections that one
ought not rely on Aquinas's early writings, among which the
commentaryon the Sentences is obviously included, in order to
make claims against Beer's interpretationof Aquinas's later and
more matureview. To this response it may be said that nowhere
in the Summa does Aquinas repudiatethis account of the threefold aspect of authority and the ways that defects in one or
another of these aspects affect the authoritative status of the
ruler. Further,much of his discussion of political authorityin the
sentential commentaryshows up in the Summa, where its content
is for the most part identicalto the discussion in the commentary
on the Sentences. Finally, the account of the threefold mode of
authoritydoes appearin Aquinas'scommentaryon Paul's epistle to
the Romans-a commentarywhich belongs to the period in which
Aquinas was at work on the Summa-and that account is substantially the same as that offeredin the commentaryon the Sentences.3
35. "Non impediturquin jus praelationisei acquiratur;et quoniampraelatio
secundum suam formam semper a Deo est (quod debitum obedientiae causat);
ideo talibus praelatis, quamvis indignis, obedire tenentursubditi" (Commentary,
II, 44, 2, 2).
36. See Aquinas's commentaryon Paul's Epistle to the Romans 13:1-7.

330
In addition to these explicit rejections of Beer's thesis,

Aquinas's discussion of the proper definition of law makes that
interpretationmore implausible. There Aquinas says that to order things to the common good belongs to the people or the
viceregent of the people, and "therefore legislating pertains either to the whole people or to the public person who has care of
the whole people."37Now, on Beer's view, the notion of having
the care of the people must be interpretedin terms of deferenceto
already existing natural authority. But in what sense can the
making of law ever pertainto the people, if Beer is right? Would
not the making of law belong by natureto certainmembersof the
community, the only pressing issue being the epistemic problem
of discovering to which members this power belongs? As the
directingof somethingto an end "belongsto the one to whom the
end belongs,"38it must be that Aquinas holds that the power to
make laws belongs primarily in the political community, not in
certain membersthereof. And, finally, as to Beer's claim that the
populace recognizes the superiorityof the naturalruler by his or
her possession of beautiful dwellings and garments, we may
simply note the absence of anythingin Aquinas's texts that would
support this claim.39
Beer's interpretationof Aquinas on political authority is untenable, but it is clear that he is right to say that there exists
within human communities some order of goodness. What I
want to suggest is that two questionsare kept distinct by Aquinas
that are not distinguishedby Beer: "Whatkinds of persons should
hold authoritywithin a political community?"and "How does a
person come to hold authority within a political community?"
Beer's interpretation seems to provide an accurate reading of
Aquinas's answer to the former question: those who are naturally fitted to be rulers should have the lawmaking authority.
Hence, Aquinas affirms that those who excel in intellect are
37. "Ideo condere legem vel pertinetad totam multitudinem,vel pertinetad
personampublicam,quae totius multitudiniscuramhabet"(ST IaIIae 90, 3).
38. "Estejus, cujus est propriusille finis" (ST Iallae 90, 3).
39. The text that Beer cites in favor of this view-ST laIIae 102, 4-provides
no evidence that Aquinas thought that the ruler's having such possessions is a
sign of naturalauthority.

331
naturallyrulers.But the sense in which those who excel in intellect

are naturally rulers is the same sense in which, for example,
those who excel physically are naturally Olympic champions.
Their physical prowess is such that it makes them particularly
apt to excel in athletic activities, but more than physical prowess
is requiredfor one to be an Olympic champion:"just as Olympic
prizes are not for the finest and strongest, but for contestants,
since it is only these who win,"40it is not the intelligentwho hold
political authority, but those who attain to political authority in
the proper way.
If my reply to Beer rests on an accurate interpretation of
Aquinas, then it follows that the possession of political authority
results from receiving it by a lawful method.If not, both Aquinas's
insistence on the importance of the way that authority is acquired in determiningwhether one is bound by a ruler's dictates
and his claim that those who acquire authority by an "illicit
method" are not deserving of obedience would be mysterious.41
Further, given that Aquinas speaks of political authority as a
right (jus praelationis), and for Aquinas every right is derivative
from some law (either natural or human), it would seem that it
must be some law that provides the basis for a particularruler's
holding political authority. The remainder of this article is devoted to making good this claim.
40. Aristotle,NicomacheanEthics, trans.TerenceIrwin(Indianapolis:Hackett,

1985), 1099a3-5.
41. See Commentary,II 44, 2, 2. A rejoindersimilar in form can be made
against those who hold that for Aquinas the legitimatetitle to authorityrests on
the authority'sissuing properdictates, i.e., those that are directed at the common
good. (Arthur Monahan approachesthis view when he claims, "Aquinas could
affordto be indifferent-seemingin this matter[of how one comes to hold legislative
authority]...Whatdid interesthim was how a ruler exercised his authority,rather
than how he came by it" (Monahan,Consent,Coercion, and Limit: The Medieval
Origins of ParliamentaryDemocracy[Montreal:McGill-Queen'sUniversityPress,
1987], p. 172). If the title to authorityrestedwholly on substantiveconsiderationsthe quality of a king's rule-rather than partly on proceduralconsiderations-the
method by which one comes to hold the right to rule-then no sense could be
made of Aquinas's references in the commentaryon the Sentences to both the
origin and the use of authorityas determiningfactors of whether such authority
has the power to bind in conscience.

332
I
Political Authority, the Common Good,

and the Law of Nations
Consider the following claim that Aquinas makes concerning political authority: it "is of the law of nations, which is a
human law."42What is the law of nations (jus gentium)? Ulpian
had distinguished between the natural law, the law of nations,
and the civil law on the basis of the breadthof their respective
jurisdictions: the natural law is that which nature teaches all
animals; the law of nations is the law which is common to all
nations; the civil law is the law which is particularto a certain
political community.43Although this tripartite division was altered by Isidore in the compilationof his Etymology-natural law
is no longer seen as governing nonrationalanimals-the division
of the humanlaw into the law of nationsand the civil law, and the
justification for that division based on the breadthof jurisdiction,
remained intact.44In treating of human law, Aquinas turns to the
questionof whetheror not the division of human law into the law
of nationsand the civil law as proposedby Isidoreis appropriate.45
Aquinas accepts the division and agrees that the breadth of
jurisdictionof each is as Isidoredescribesit, but he rejectsthe use
of the breadth of jurisdiction as the differentia by which the
genus of human law is divided into the law of nations and the
civil law. Rather, he distinguishes the law of nations and civil
law on the basis of the procedure whereby these precepts are
derived from the first principles of the naturallaw:
to the law of nations pertain those things which are derived from the
natural law as conclusions from principles, such as just purchases and
sales, and other things of this sort, without which humans cannot live a
common life. This belongs to the natural law, because man is by nature
a social animal, as is proven in the first book of the Politics. Those
things, however, which are derived from the natural law by way of
particular determination pertain to the civil law, inasmuch as each
community determines what is suitable to itself.46
42. "Est de jure gentium,quod est jus humanum"(ST IIallae 12, 2).
43. For a perspicuousdiscussion of Ulpian's account see M. B. Crowe, The
ChangingProfile of the NaturalLaw (The Hague:MartinusNijhoff, 1977), p. 45.
44. Ibid.,p. 69.
46. "Ad jus gentium pertinent ea quae derivantur ex lege naturae, sicut
conclusiones ex principiis; ut justae emptiones, venditiones, et alia huiusmodi,

333
The distinction between the law of nations and the civil law,
then, correspondsto the distinctionbetween those precepts which
are derived from the naturallaw by way of logical deductionand
by way of determination,respectively. In logical deduction, one
derives precepts from the natural law in a way "similar to that
method in the sciences by which demonstrativeconclusions are
drawn from first principles";47
Aquinas cites as an example of the
former type of derivationthe conclusion that "one must not kill"
from the principle that "one should do harm to no one." In
determination, one derives precepts from the natural law in a
way "similar to that method in the arts by which general forms
are determined with regard to detail";48Aquinas cites as an
example of determinationthe specification of what punishment
should be given to a convicted evildoer.49Aquinas,then, preserves
the views of Ulpian and Isidore that the law of nations is common to all nations and that the civil law is peculiar to a certain
community by relying on the distinction between precepts that
are derived by way of deduction and those that are derived by
way of determination:as the law of nations "is derived from the
naturallaw by way of a conclusion that is not far removed from
its principles,"50humans easily recognize it as binding, and thus
great uniformityin this kind of law is to be expected;5'although
Aquinas does not provide a similar explanation in the case of
civil law, we can safely say that his account of why nations do
not agree in civil law would refer to the differing conditions that
obtain in different communities.52
sine quibus homines ad invicem convivere non possunt:quod est de lege naturae;
quia homo est naturaliteranimal sociabile, ut probaturin I. Polit.: quae vero
derivantura lege naturae per modum particularisdeterminationis,pertinent ad
jus civile, secundum quod quaelibet civitas aliquid sibi accommode determinat"
(ST IaIIae95, 4).
47. "Similis est ei, quo in scientiis ex principiisconclusionesdemonstrativae
producuntur"(ST IaIIae 95, 2).
48. "Simile est, quod in artibus formae communes determinanturad aliquid
speciale"(ST IaIIae95, 2).
49. For an interesting contemporarydiscussion of determinationsee John
Finnis, Natural Law and Natural Rights (Oxford:Oxford University Press, 1980),
pp. 284-89.
50. "Derivatura lege naturaliper modum conclusionis,quae non est multum
remota a principiis."
51. See ST IaIIae95, 4 ad 1.

334
What Aquinas means by saying that political authorityexists

by the law of nations, then, is that it is such a straightforward
implication of the natural law that political authority be instituted and exercised that such institutions of governance are
features of almost every known human community. For the
natural law dictates not only that each of us pursue his or her
particulargood but also that we promote the common good of
our communities. But the institution and exercise of political
authorityare necessary for the achievementof the common good.
Thus, political authorityis of the law of nations.
Why, precisely, is political authoritynecessaryfor the achievement of the common good, and therefore part of the law of
nations?Aquinas writes that even had there been no Fall,53political authoritywould have come into existence, for
Humans are naturally social animals; thus, in the state of innocence,
they would have lived socially. However, a social life cannot be had by
many unless there is someone in charge who aims at the common
good: for many, as such, aim at many things, whereas one aims at one.54
53. Aquinas's view on political authoritythus contrasts with Augustine's,

who had held that political authority is a product of human sinfulness. The
entrance of sin into the world brought with it as punishmentthe institution of
slavery, and it is difficult not to read Augustine as likening the condition of
slavery to that of being subject to political authority.Although this condition of
servitude is much worse than the freedom that would have existed had the Fall
not occurred, it does have one beneficial result, and that is the fostering of
humility,which is "as salutaryfor the servantsas pride is harmfulto the masters";
Augustineadmonishesthose in such a conditionto "maketheir slavery, in a sense,
free, by serving not with the slyness of fear, but with the fidelity of affection,until
all injustice disappearsand all humanlordshipand power is annihilated"(City of
God, trans.HenryBettenson[New York: PenguinBooks, 1984], bk. XIX, chap. 5).
Although Augustineemphasizesthe punitive aspect of political authority,he also
ascribes to authorityanotherpurpose:the preservationof a kind of earthly peace,
which, though perhapsunstableand uncertain,is the best that can be had in this
life (City of God, XIX. 6). To securethis aim, politicalauthorityattemptsto generate
"a kind of compromise"among citizens concerningtemporalgoods (City of God,
XIX. 17). This purposeof political authoritywould also not have existed had the
Fall not occurred;the conditionsthat make earthlypeace so precariouscame into
being with sin. For a fuller discussionof these issues, see Paul Weithman,"Aquinas
and Augustineon OriginalSin and the Functionof Political Authority,"Journal of
the Historyof Philosophy30 (1992): 353-76.
54. "Homo naturaliterest animal sociale: unde homines in statu innocentiae
socialiter vixissent: socialis autem vita multorumesse non posset, nisi aliquis

335
Insofar as humans are individual beings, each with his or her

own proper good to pursue, they will seek many ends. But to
seek a good which is common to all requires something which
directs all these individuals to that end. Hence, Aquinas writes
that if persons were to live alone, "Each would be a king unto
him- or herself."5 But this condition is not natural to humans;
humans naturallylive socially. Therefore,"It is proper that there
be something, beyond that which directs toward the particular
good of each, that directstowardthe commongood of the many."56
Political authority,then, is needed to direct individualsin pursuit
of a good that is not particularto any of them.
The considerations that have been adduced so far seem to
show merely that the institutionand exercise of political authority are instrumentalmeans to the promotion and preservationof
the common good. Authorityis needed if persons with their own
particulargoods to seek are to be directed to the common good.
But while this instrumentaljustification for political authority is
plain, the role of political authoritywith regard to the common
good is for Aquinas more extensive than these remarkssuggest.
It is compatible with an instrumentalistjustification of political
authoritythat the end that political authoritypromotes be wholly
specifiable independently of the institution and exercise of that
authority.But this is not Aquinas's view. On Aquinas's view, one
cannot specify what the common good of a political communityis
without making reference to political authority. Thus, the need
for political authorityin the achievementof the common good is
far more radical on a Thomistic view than the instrumentalist
justification implies.
In order to see why the common good is dependent in this
more extreme way on the institution and exercise of political
authority,we need to get a clearer idea of what Aquinas takes the
common good of a political community to be. Contemporary
commentators have complained that although Aquinas often
praesideret,qui ad bonum commune intenderet:multi enim per se intenduntad
multa, unus vero ad unum"(ST Ia 96, 4).
55. "Ipsesibi unusquisqueesset rex"(De Regnoad regemCypri[On Kingship],
bk. I, chap. 1).
56. "Oportetigitur, praeterid quod movet ad propriumbonumuniuscuiusque,
esse aliquid, quod movet ad bonum communemultorum"(De Regno, I. 1).

336
invokes the common good in his moral and political theory, he

does little to tell us what that good consists in;57Aquinas's doctrine
of the common good must be gatheredfrom his terse and scattered
remarks on the subject. One of the difficulties involved in
gathering such a doctrine from Aquinas's remarks is that he
refers to so many disparate items as common goods or the
common good: "money, honor, victory, justice, peace, happiness,
the perpetuationof the species, the orderof the universe,the good
convertible with being, and even children" are all labeled by
Aquinas as bonum communeor bona communia.58While Aquinas
undoubtedlydoes employ the term "common good" in a number
of analogousways, the relevantsense of that term for our purposes
concern those goods labelled by Gregory Froelich as goods
"common by way of causation,"by which he means those goods
which "while remainingnumericallyone extend to many effects."59
In this sense of "common good," what is the common good
of the political community? At one point Aquinas remarks that
the common good consists "of justice and peace (justitiae et
pacis),"60 and it seems clear that the sense of common good in
57. "[A] reader of Thomas's political works will find nothing resembling a
Tractatusde bono communi.When the commongood is referredto we are usually
being presentedwith an example of it and are assumedto have alreadya grasp of
its essentialfeatures"(GregoryFroelich,"TheEquivocalStatusof BonumCommune,"
New Scholasticism 63 (1989): 38-57). Froelich also rightly points out the stark
contrast between Aquinas's detailed treatment of the individual good at the
beginning of the Secunda Pars and his near silence on the issue of what the
common good consists in.
58. Ibid.,p. 42.
59. Ibid., p. 48. Froelich contrastsgoods common by way of causationwith
goods common by way of predicationand goods common by way of distribution.
Suppose, for example, that both you and I each have a twenty dollar bill. There is
no actuallyexisting good possessed by both of us; money is a good commonto us
by way of predicationin that each of us possesses a good to which a common
predicate(a predicaterelevantto the object's goodness) is attached.Next suppose
that we have baked a pie that is sitting on the table before us: unless it is divided
between us, neither of us can enjoy it. The pie is a good common by way of
distribution:priorto division, its goodness is enjoyedby neitherof us; it is only by
distribution that its goodness is available to us. A good common by way of
causationis, by contrast,"commonprecisely as it is individual"(ibid., p. 48): it is
numericallyone but good for more than one person. The victory by an army or
athletic team might be an example of a good which extends to many in this way.
60. ST IaIIae96, 3. Aquinasalso refersto justice as partof the commongood
at ST IaIIae 19, 10 and IIaIIae 33, 6; he refers to peace as "the good of the

337
which justice and peace are constituentsof that good must be by

way of causation.6 If we conceive of the common good of the
political community as consisting, at least in part, of justice and
peace, we are able to provide an explanationfor the radical sense
in which the institution and exercise of political authority is
necessary for the achievementof the common good: the institution
of political authorityis itself a constituentof the common good as
regards peace; and a particular kind of exercise of political
authority-that of legislating-is needed to make determinate
the content of the common good as regardsjustice.
Aquinas is quite explicit that the requirements of justice
depend at least in part on human specification:he refers to "the
determinationof those things that are just accordingto human or
divine institution,"and makes it clear that it is contraryto justice
to act against certain humanly determinednorms of justice.62In
order to understandwhy it would be the case that exercise of
legislative authority within a political community would be
required to specify the content of justice, it will be helpful to
consider by comparison how for Aquinas the exercise of the
virtue of prudence is related to the individual's proper good. On
Aquinas's account, the end of the moral virtues is the human
good, and as the human good is in accordance with reason, the
end of the moral virtues pre-exists in reason; the manner in
which these ends pre-exist in reason is throughthe naturalhabit
of synderesis, which grasps the first principles of practical
reasoning.63 Hence, prudence, an intellectual virtue, does not
determine the end of the moral virtues, but only determines the
means for attainingthat end. Jean Porterhas recently pointed out
the ambiguity present in the claim that prudence determines
only the means toward the human end.64On one reading of this
multitude"at ST Ia 103, 2, obj. 1 (not denied),and calls the peace of the state good
in itself (and presumablya commongood) at ST IIaIIae123, 5, ad 3.
61. We may also note that Aquinas mentions no other goods besides justice
and peace that are commonto personsby way of causationand are such that they
pertain particularlyto the political community.
62. "Determinatioeorum quae sunt iusta secundum institutionemhumanum
vel divinam"(ST IaIIae 104, 3, ad 1).
63. ST IIaIIae47, 6; see also ST Ia 79, 12 andQuaestionesDisputataede Veritate,
Question 16, Article 1.
64. JeanPorter,TheRecoveryof Virtue:TheRelevanceof Aquinasfor Christian
Ethics (Louisville, KY: Westminster/ John Knox Press, 1990), pp. 156-62.

338
claim, the end for which prudenceseeks means is already "fairly

determinate...prior to the working of prudence itself."65 On
another,however, the end is not determinatein that way; the role
of prudence would not be merely to figure out what sort of
causal chain could produce an independently specifiable end,
but would also determine what in concrete circumstanceswould
count as achieving the end sought. Porterclaims that for Aquinas,
the latter reading must be the more accurate.
The goal of actingvirtuouslyis not the sort of goal that lends itself to
means/end analysis, because this goal cannot be specified independently of some specificationof the kind of actionor actionsthat would
bring it about.Certainly,the individualwho wants to act virtuouslyin
a given situation will presumablyhave a formal idea of what the
virtues means and will thereforehave a general idea of what virtue
would require in this particularsituation. But formal notions of the
virtuesrelevantto a given situationwill not necessarilybe sufficientto
determinewhat sort of action, concretely, will embody the virtue or
virtues in question.66
Surely Porter is right to say that prudence is not merely instrumental reasoning about a predetermined end. She prefers to
contrasta "means-end"reading of Aquinas's account of prudence
with an account in which prudence "determines the course of
action" which counts as instantiatingthe virtues. I will contrast
these by using the terms "instrumentalmeans" and "constitutive
means" respectively, but this terminological difference of course
does not affect my endorsementof Porter's claim.
The role of prudence as determining constitutive means for
the attainmentof the individual's good can help us to see why
the exercise of political authority determines constitutive means
for the attainmentof the common good. For Aquinas, prudence
extends to the governing of many, and the end with which this
kind of prudenceis concerned is the common good;67it is called
regnal prudence, denominatedby the form of government which
is unqualifiedly best.68 Regnal prudence is exercised, then, by
those that govern political communities.As we have seen, justice
65.Ibid., p. 157.
66. Ibid.,p. 159.
67. STIIallae47, 10.

68. STIIaIIae50, 1, ad2.

AUTHORITY
AQUINASONPOLITICAL
339
is one aspect of the common good. As prudence determines not

only instrumentalbut also constitutive means of the individual
good, then, it would seem that the exercise of regnal prudence
would not be concernedmerely with coming up with instrumental
means to achieve justice, but also to some extent with determining what is just.
For Aquinas, the virtue of justice is what directs humans in
their relations with others, in contrastto the other moral virtues,
which perfect humans primarilyin relation to themselves.69What
is right, then, as regards justice is what preserves the proper
relation between different persons, and this proper relation
consists in a kind of equality.70Now, the right or the just consists
in a kind of equality; but there exists both natural and positive
right.71A relationpreservesequalityby way of naturalright if the
equality holds "by the very nature of the thing, as for example
when one gives a certain amount so that he or she may receive
just as much."72On the other hand, a relation preserves equality
by way of positive right if the equality holds, not by nature, but
"by way of agreement,or common acceptance,such as when one
considers him- or herself content to receive a certain amount."73
Positive right comes into being either by private agreement, as
when two individuals make a contract, or by public agreement,
"such as when the whole people consent to a thing's being
treated as if it were equal to and commensuratewith another, or
when such is ordainedby the prince, who has care of the people
and who acts in its stead."74Not every kind of proportioncan be
made by agreement into an object of positive right, though; a
proportion can be just by way of positive right only if such a
determinationis in accordancewith naturaljustice.75The naturally
69. ST IlIaIIae57, 1.
70. ST IIaIIae57, 1.
72. "Ex ipsa naturarei; puta cum aliquis tantumdat, ut tantumdemrecipiat"
(ST IIalIae57, 2).
73. "Ex condicto, sive ex communiplacito; quandoscilicet aliquis reputatse
contentum,si tantumaccipiat"(ST IIaIIae57, 2).
74. "Puta cum totus populus consentit, quod aliquid habeatur quasi
adaequatum,et commensuratumalteri; vel cum hoc ordinat Princeps, qui curam
populi habet, et ejus personamgerit"(ST IIaIIae57, 2).
75. ST IIaIIae57, 2, ad 2.

340
just alone would, however, be insufficient for ordering the

relationships within a human community, and thus recourse to
positive right is needed; if the common good of justice is to be
achieved, that which is an instantiationof a just relation between
individualswill have to be determined.Aquinas is most clear on
the need for determinationof principlesof justice in his discussion
of the judicial preceptsof the Old Law. There was need for such
precepts, writes Aquinas, because
It belongs to the divine law to order humans to one another and to
God. Both of these, however, pertain in general to the dictates of the
natural law, to which the moral precepts are to be referred;yet both of
these have to be determined by the divine and human law, because
naturally known principles are general in both speculative and practical matters. Therefore, just as the determination of the general precepts
of divine worship is done by the ceremonial precepts, so also the
determination of the general precepts of justice to be observed among
humans is determined by the judicial precepts.76
Hence, the exercise of regnal prudence, issuing in human laws,

does not aim merely to secure means to an independentlyspecifiable end, but also to give content to that end. Because the
common good is in part constituted by the securing of justice,
and what just relationsconsist in must be determinedby political
authority, the legislative exercise of political authority is not
merely an instrumentalmeans to the common good, but determines the constitutive means thereof.77
76. "Ad legem divinam pertinetut ordinet homines ad invicem et ad Deum.
Utrumqueautem horum in communi quidem pertinet ad dictamen legis naturae,
ad quod referunturmoralia praecepta;sed oportet quod determineturutrumque
per legem divinam vel humanum,quia principianaturaliternota sunt communia
tam in speculativis quam in activis. Sicut igitur determinatiocommunis praecepti
de cultu divino fit per praecepta caeremonialia, sic et determinatio communis
praecepti de iustitia observanda inter homines, determinatur per praecepta
iudicialia"(ST IaIIae99, 4).
77. The importanceof political authorityin determiningthe constitutionof
justice explains why Aquinas held that even though some persons are more
worthy to govern than others, the unworthinessof some rulersdoes not ipso facto
preclude their possessing legitimate authority. For there must be some
determinationof rules of justice if the commongood of justice is to be achieved;so
long as the ruler's prudenceis sufficient for issuing at least minimallyacceptable
determinationsof justice, his or her rulershipwill be effective for the promotionof

341
Aquinas also holds that the institution of political authority

is a constituent of the common good, that is, of peace. Why
would one think that the existence of political authority is a
component of peace, rather than, say, merely an instrument of
peace? Peace within a human community, for Aquinas, is more
than the absence of war, though it certainly is a necessary condition of peace that such disturbance not be present. In order to
understandwhat Aquinas takes peace within a human community to be, we shall first examine what Aquinas takes peace to be
between one person and another. Concord between the two is
necessary for peace-concord exists between two persons when
they are such that "the wills of distinct hearts unite in consent to
the same thing"78-butsuch unity is not sufficient for peace. One
can be at peace with another only when his or her appetites are
not tending to diverse objects, so that they are not at war with
each other. This sort of failure of peace can occur in two ways:
in one way, with regard to diverse appetitive powers, as the sensitive
appetite often tends to the contrary of that to which the rational
appetite tends...in another way, insofar as one and the same appetitive power tends to different objects of appetite, which it cannot acquire
at one time, with the result that there is necessarily strife in the movements of the appetite.79
For peace to exist between two persons, then, each person's

appetites must be ordered so that they do not tend to diverse
things, and the two persons must be in concord. This inclusion of
the ordering of the passions, it should be noted, excludes from
peace any relationship in which the agreement between the two
persons is coerced, for
the commongood. (If the ruler's prudenceis radicallydeficient, however, it is not
his or her unworthinessas such that releases the subject from being bound by their
pronouncements,but his or her poor use of the legislative power.)
78. "Diversorumcordium voluntates simul in unum consensum conveniunt"
(ST IIaIIae29, 1).
79. "Uno quidem modo secundum diversas potentias appetitivas: sicut
appetitus sensitivus plerumquetendit in contrariumrationalis appetitus . . . alio
modo, inquantumuna et eadem vis appetitivain diversa appetibiliatendit, quae
simul assequi non potest; unde necesse est, esse repugnantiammotuumappetitus"
(ST IIaIIae29, 1).

342
if one person be in concord with another, not of his or her own volition,
but is coerced, as it were, by fear of some imminent evil, such concord
is not truly peace, because the order of the concordant persons is not
preserved, but rather is disturbed by something fearsome.80
All things desire peace, for "from the very fact that a person
desires something, it follows that that person desires to obtain
that which he or she desires, and, it follows, to remove those
things that prevent his or her obtaining it."8' As having appetites
which tend to diverse and incompatible objects precludes one
from having all that one desires, one must of necessity desire
peace. As the disorder of the appetites is a hindrance to peace,
Aquinas follows Augustine in calling peace "the tranquility of
order (tranquillitatem ordinis)."82
It is important to note the role that orderliness plays in
Aquinas's account of peace. For one's appetites to be in agreement
is for them to be well-ordered. As Augustine, whose discussion of
peace Aquinas closely follows, writes:
The peace of the body, we conclude,is a temperingof the component
parts in duly orderedproportion;the peace of the irrationalsoul is a
duly orderedrepose of the appetites;the peace of the rationalsoul is
the duly orderedlife and health of a living creature;peace between
mortal man and God is an ordered obedience, in faith, in subjection to
an everlasting law; peace between men is an ordered agreementof

mind with mind;the peace of a home is the orderedagreementamong
those who live together about giving and obeying orders; the peace of
the Heavenly City is a perfectly ordered and perfectly harmonious
fellowship in God; the peace of the whole universe is the tranquility of
order-and order is the arrangement of things equal and unequal in a
patternwhich assigns to each its properposition.83
The peace of a human community, then, includes both concord

absence of war-as well as the
with other communities-the
80. "Si enim homo concordatcum alio non spontaneavoluntate, sed quasi
coactus timore alicujusmali sibi imminentis,talis concordianon est vere pax: quia
non servatur ordo utriusque concordantis, sed perturbaturab aliquo timorem
inferente"(ST IIaIIae29, 1, ad 1).
81. "Ex hoc ipso quod homo aliquid appetit,consequensest, ipsum appetere
ejus quod appetit assecutionem, et per consequens remotionem eorum, quae
assecutionemimpedirepossunt"(ST IIaIIae29, 2).
83. CityofGod, XIX. 13.

343
proper ordering within that community. And, if Aquinas does

follow Augustine here, this ordering will consist in an "arrangement of things equal and unequal in a pattern which assigns to
each its proper position." If Aquinas takes the institution of
political authority, then, to aim at such an orderly arrangement,
then it must be the case that political authority is not only a
means to but also a constituentof the common good.
Aquinas makes clear in his commentaryon the Sentences that
political authority is characterized by an order among humans,
and that this orderingis what shows that all authorityis to some
extent from God: as in all authoritythere is found an order of the
superior to the inferior, all order is good, and all good things
come from God, all authoritymust be from God.84This is not to
say that in all relationshipsof authoritythere is found the proper
ordering; "in certain relationshipsof authoritythere seems to be
tremendous disorder, such that the foolish is placed over the
wise, the child over the elder, and the sinner over the just, as
often happens."85It is to say that insofar as political authority
exists, there exists some order among humans, and this order is,
considered in itself, good absolutely. Hence, political authority,
being a kind of orderingof the human community,is a constituent of peace.
Political Authority and Customary Law

The tight relationship between political authority and the
achievement of the common goods of justice and peace provides
a basis for Aquinas's claim that the institutionof political authority is of the law of nations. To see why Aquinas held that the
natural law mandates the existence of political authority does
not yet provide an answer, though, to the problem posed at the
beginning of this article: who in the political community has the
authorityto lay down dictates for that community?For the law of
nations alone does not suffice to determine a particularkind of
84. Commentary,
II 44, 1, 2.
85. "In quibusdampraelationibusvidetur magna inordinatioesse, ut quod
stultus sapienti, puer seni, peccator justo praeponatur,ut plerumque contingit"
II 44, 1, 2, obj. 5).
(Commentary,

344
THEREVIEWOFPOLITICS
government for a community nor to specify how persons within

a community come to have political authority. If the abstract
dictate that political authorityought to be institutedis to be made
a concrete guide for action in particular circumstances, there
must be some way under the law of nations for political authority to be determinedfor a particularcommunity.Presumably,the
specification of this dictate will include what form the government ought to take, the limits of the authorityof rulers, and the
method by which persons come to hold that office. One way that
the natural law and the conclusions thereof can be determined
for a communityis by the ruler that has care of that community.
But this method of determinationis, of course, no help to us here,
for we are concerned with how one comes to have care of the
community in the first place. Aquinas mentions another way,
though, that the precepts of the naturallaw can be specified, and
I shall suggest that it is this method of determinationthat specifies
the law of nationsconcerningpoliticalauthority.It is my contention
that for Aquinas it is to rules of custom that one appeals to
determine who is the legitimate lawmaking authority within a
political community. I will proceed by first discussing Aquinas's
account of customary law, paying particular attention to the
notion of "consent"that this account relies upon; I will then turn
to the task of arguing that such an account provides a way to
understand why Aquinas was for the most part silent on the
subject of the licit origins of particularforms of political authority.
Aquinas holds that rules of custom can become law,86arguing for this claim by showing that rules of custom meet all of the
criteria earlier given in his definition of law: they are ordinances
of reason for the common good, made by one who has care of the
community, and promulgated.How does a rule of custom meet
these criteria?
All law proceeds from the reason and will of the legislator. .however,
just as human reason and will with regard to things to be done are
manifested by words, so also are they manifested by deeds, for it seems
that each person chooses as good that which he or she carries into
operation. But it is clear that by means of words human law can be
changed and expounded, insofar as they manifest the interior move-
86. See ST IaIlae97, 3.

345
ment and conceptsof humanreason.Hence it is also the case that by

the many repeatedacts which make a customlaw can be changedand
expounded, and something can be made which obtains the force of
law, that is, insofaras by repeatedexternalacts the interiormovement
of the will and the conceptsof reasonare most effectivelydeclared."7
Aquinas here is arguing that a distinctive pattern of behavior in
certain matters may be a sign that those engaging in that behavior take it to be reasonable. Suppose that one observes that within
a particular community it is a regular pattern of behavior that
those who gather food set a certain amount of that food aside for
consumption by those members of the community that are quite
elderly, or quite young, or otherwise unable to provide for themselves. Such behavior may be a sign that those persons accept as a
rule of behavior: "Set aside a certain portion of gathered food for
the assistance of those who cannot gather for themselves." This
rule, on Aquinas's view, might have the status of law. For it may
be taken to be an ordinance of reason, whose status as a rule is
manifested by the pattern of behavior of those that act on that
rule. Although Aquinas nowhere in this article says that the
binding force of a rule of custom is dependent on its being for the
common good, I take it that we can reasonably infer that this and
other rules of custom must be for the common good to be law;
further, he makes clear that custom must be in accordance with
natural and divine law to be binding:
The naturallaw and divine law proceedfrom the divine will... Hence,
they cannotbe changedby a customproceedingfrom the humanwill,
but can be changedonly by divine authority.Thus it is the case that no
custom can obtain the force of law that is contraryto the divine or
natural law.8
87. "Omnis lex proficiscitura ratione,et voluntatelegislatoris.. .sicut autem
ratio et voluntas humana manifestantur verbo in rebus agendis, ita etiam
manifestanturfacto: hoc enim unusquisqueeligere videtur ut bonum, quod opere
implet. Manifestum est autem, quod verbo humano potest mutari lex, et etiam
exponi, inquantummanifestatinterioremmotum, et conceptumrationis humanae:
unde etiam et per actus maxime multiplicatos, qui consuetudinem efficiunt,
mutaripotest lex, et exponi, et etiam aliquid causari,quod legis virtutemobtineat;
inquantumscilicet per exteriores actus multiplicatosinteriorvoluntatis motus, et
rationis conceptus efficacissime declaratur"(ST IaIIae 97, 3).
88. "Lex naturalis,et divina procedit a voluntate divina...unde non potest
mutari per consuetudinem procedentem a voluntate hominis, sed solum per

346
THEREVIEWOFPOLITICS
For Aquinas, rules of custom can attain the force of law, and
they attain this force by satisfying the definition of law as presented in Q. 90. How, though, do rules of custom satisfy the
criterion that law be made by one who has care of the community? Aquinas's third objection against the possibility of custom's
having the force of law is posed in terms of this criterionof law:
To propose laws pertains to public persons who are concerned to
govern the community;thus, privatepersons cannot make law. But a
custom grows strongerby the acts of privatepersons;therefore,custom cannotobtainthe force of law.s9
Aquinas replies to this objection by arguing that since the public
authority only has the power to make laws insofar as he or she
representsthe people, the people itself may make law through its
own consent:
for if the people are free, and thus are able to make law for themselves,
then the consentof the whole people to an observancewhich is manifested by a custom means more than the authorityof the prince, who
does not have the abilityto legislateexcept as actingin the stead of the
people. Thus, althoughindividualpersonscannot make law, nevertheless the whole people can.90
Aquinas holds, then, that it is through the consent of the people,
in which the power to make law originally rests, that we may say
that a rule of custom proceeds from a suitable authority and can
therefore be denominated "law."
It may not be clear, though, what Aquinas means when he

says that the whole people consent to a certain rule of custom. 1
suggest that the sense of consent that Aquinas employs is quite

auctoritatem
divinammutariposset;et inde est quodnullaconsuetudovim legis
obtinerepotestcontralegemdivinam,vel legemnaturalem"
(STIaIIae97, 3 ad 1).
89. "Ferreleges pertinetad publica personas,ad quas pertinetregere
undeprivataepersonaelegemfacerenon possunt:sed consuetudo
communitatem:
invalescitper actusprivatarum
ero consuetudonon potestobtinere
personarum;
vimlegis"(STIalIae97, 3, obj.3).
90. "Si enim sit liberamultitudo,quae possit sibi legem facere,plus est
ad aliquidobservandum,
consensustotiusmultitudinis
manifestat,
quodconsuetudo
quamauctoritasprincipis,qui non habetpotestatemcondendilegem legem,nisi
unde licit singulaepersonaenon possint
inquantum
geritpersonammultitudinis;
conderelegem,tamentotuspopulusconderelegempotest"(ST IaIlae97, 3, ad 3).

347
similar to the notion of the "internalaspect of rules" developed

by H.L.A. Hart in The Concept of Law.9'Hart develops the notion
of the internalpoint of view in contrastwith a mere habit:
When a habit is general in a social group, this generality is merely a fact
about the observable behaviour of most of the group. In order that
there should be such a habit no members of the group need in any way
think of the general behaviour, or even know that the behaviour in
question is general; still less need they strive to teach or intend to
maintain it...By contrast, if a social rule is to exist some at least must
look upon the behaviour in question as a general standard to be
followed by the group as a whole.92
This "internal aspect" of rules by which rules are viewed as

standardsfor behavior is not to be confused with a mere feeling
of compulsion that one follow the rules, a sort of self-imposed
psychological sanction, even though such feelings may very well
be present. Neither is it to be confused with a mere feeling of
approvaltoward the rule or those that follow the rule. Rather,
what is necessary is that there should be a critical reflective attitude
toward certain patterns of behaviour as a common standard, and that
this should display itself in criticism (including self-criticism), demands for conformity, and in acknowledgments that such criticism
and demands are justified, all of which find their characteristic expression in the normative terminology of 'ought', 'must', and 'should',
'right', and 'wrong.'93
If one takes the internal point of view with respect to a certain

rule, or accepts those rules, then an appealto the rule is considered
"a good reason"for conformingwith what the rule requires.94
91. H. L. A. Hart, The Conceptof Law (Oxford:ClarendonPress, 1961). It is
importantto keep in mind that while the issue of morally rightful authorityis
what is at issue in Aquinas's discussion of political authority,it is not at all on
Hart's agenda in The Concept of Law. I employ Hart's conceptionof the internal
aspect of rules as providingmerely one piece of an accountof political authority:
it would not be nearly enough to establish who has rightful authority within
Aquinas's view without an appeal to the common good, the law of nations, and
the community'soriginal capacity to make law.
92. Ibid.,p. 55.
93. Ibid.,p. 56.
94. Ibid.,p. 54.

348
Hart's account of rule-acceptance is remarkably similar to

Aquinas's use of consent in his discussion of custom. For both
Aquinas and Hart, a statementthat describes a regular patternof
behavior is not itself the social rule; rather,the patternof behavior can be evidence for its being the case that the members of a
certain social group consents to or has accepted a rule. It is
crucial that if such a rule exists persons will appeal to it in
justifying or condemning their own or others' behavior. One
must accept that rule as providing a reason for action and a
justification for criticism of noncompliance.
For Aquinas,then, that a rule of custom gains the force of law
is dependenton the consent of the community,and this notion of
consent can be explicated in terms of rule-acceptance. How,
though, can this account of custom be applied to the problem of
determining who has care of the community? Recall that the
precept that political authoritybe institutedis part of the law of
nations, but that such a preceptis not sufficienteither to determine
the specific form that such authority will take within a given
community or to determine what person or persons will hold
positions of authority.If political authorityis to exist in a particular
community, there must be some way to make determinate this
provision of the law of nations. If Aquinas's account of custom is
correct, then there is no obstacle to holding that it is rules of
custom that determine for a community what form government
is to take within that communityand how persons come to hold
positions of authority. It is the consent of the community to
certain rules of custom that makes specific the precept of the law
of nations mandatingthe existence of a political authority.95
95. Finnisrejects appealto customto explain the statusof a personor persons
as authoritativewithin a political community: "Consent, transmission, contract,
custom-none of these is needed to constitute the state of affairs which
(presumptively)justifies someone in claiming and others in acknowledging his
authority to settle co-ordination problems for a whole community by creating
authoritativerules or issuing authoritativeorders and determinations.Rather, the
requiredstate of facts is this: that in the circumstancesthe say-so of this person or
body or configurationof persons probablywill be, by and large, complied with
and acted upon, to the exclusion of any rival say-so and notwithstandingany
differing preferencesof individualsabout what should be stipulatedand done in
the relevant fields of co-ordinationproblems"(Finnis, Natural Law and Natural
Rights,pp. 248-49). While a full responseto Finnis on Aquinas'sbehalf cannotbe

349
If such consent to a rule is present,how will it manifest itself?

Note that the sort of rule that we are concernedwith here is not a
typical rule that straightforwardly specifies how one ought to
behave in certain circumstances.The rule of custom with which
we are concerned is what Hart calls a "power-conferring"rule
ratherthan a duty-imposingrule.96The rule, that is, picks out the
person or persons who have the authorityto make law, who have
the right to do so.9?The acceptanceof such rules by a community,
though, is made manifest by the behavior of citizens just as the
acceptance of duty-imposing rules is. For, if the community has
accepted certain power-conferring rules, it will be the case that
citizens within such communitieswill for the most part treat only
dictates that are issued by the person or persons picked out by
the rule as law, and if they are pressed for an explanationof why
they treat a certain dictate as law, they may reply by formulating
something resembling the relevant rule.
I have argued that there is reason to believe that for Aquinas
the source of political authority is human law, made by the
community through its consent to power-conferring rules of
custom. We may conclude by noting that this interpretationof
Aquinas's view explains why he would have been so laconic on
the issue of who has care of the community.If a custom account
of political authorityis indeed Aquinas's view, then the absence
of a detailed discussion of how one comes to have care of the
community is unsurprising. In recognizing that the particular
way that a ruler comes to hold political authorityis not deducible
from the natural law, Aquinas must have seen that there would
be a variety of acceptable forms of governmentand ways that a
undertakenhere, it seems to me that Finnis neglects his own reliance on a "focal
meaning"method of analysis, fruitfully employed in his discussions of law and
friendship,when discussing authority.The centralcase of political authorityis not
that of a power imposed from without,as in the case of militaryconquest,but one
with which the community freely cooperates. I think that while Aquinas might
agree with Finnis that one ought to adhere to the rules laid down by an unjust
conquerorthat has the capacityto solve coordinationproblemsby fiat, this would
not be a case of political authorityin the focal sense: Aquinaswould say, I believe,
that such conquerorsare to be obeyed only to avoid scandal or "a more grievous
hurt"(ST IaIIae96, 4).
96. Hart,Conceptof Law,p. 78.
97. Ibid.,p. 57.

350
ruler might legitimately come to hold power; further, since the

authority to make law rests originally in the community as a
whole, it would be up to each political communityto decide the
appropriatemethod for attaining to political authority. Although
he held that some form of monarchy is absolutely speaking the
best form of government,98he strongly emphasized the fact that
differing conditions within distinct political communitiesprecluded
the possibility that one form of governmentwould function best
for each." So too there may be a variety of acceptableways for
persons in a certain political community to come to hold positions within its government; the variety of conditions holding
within political communities prevents Aquinas from laying down
a single method to which all persons obtaining authority must
adhere. Thus there were good reasons for Aquinas's maintaining
silence on the subject of who has political authority within any
given community, even if that silence provokes irritationin his
later readers.
98. See ST la 103, 5; see also De Regno,I. 1.

99. See ST Iallae 103, 1 andDe Regno,I. 2-5.


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Consent, Custom, and the Common Good in Aquinas's Account of Political Authority

Author(s): Mark C. Murphy

Stable URL: http://www.jstor.org/stable/1408092 .

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Consent, Custom, and the

Although there have been innumerablewritings on Aquinas's

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THE REVIEWOF POLITICS

governance.4 The aim of this article is show that for Aquinas

Beer on Aquinas's Account of Political Authority

have reason in different

4. I. T. Eschmann,"St. Thomas Aquinas on the Two Powers," Mediaeval

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excel in intellect are naturallyrulers"?'4Obviously, it must play a

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THE REVIEWOF POLITICS

the ruler.17It should further be noted that, on Beer's account,

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THE REVIEWOF POLITICS

necessarily carries with it inequality-that places the demons in

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When a certain authority exhibits a defect in one of these

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THE REVIEWOF POLITICS

In addition to these explicit rejections of Beer's thesis,

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naturallyrulers.But the sense in which those who excel in intellect

40. Aristotle,NicomacheanEthics, trans.TerenceIrwin(Indianapolis:Hackett,

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THE REVIEWOF POLITICS

Political Authority, the Common Good,

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THE REVIEWOF POLITICS

What Aquinas means by saying that political authorityexists

53. Aquinas's view on political authoritythus contrasts with Augustine's,

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Insofar as humans are individual beings, each with his or her

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THE REVIEWOF POLITICS

invokes the common good in his moral and political theory, he

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which justice and peace are constituentsof that good must be by

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THE REVIEWOF POLITICS

claim, the end for which prudenceseeks means is already "fairly

67. STIIallae47, 10.

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is one aspect of the common good. As prudence determines not

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THE REVIEWOF POLITICS

just alone would, however, be insufficient for ordering the

Hence, the exercise of regnal prudence, issuing in human laws,

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Aquinas also holds that the institution of political authority

For peace to exist between two persons, then, each person's

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THE REVIEWOF POLITICS

an everlasting law; peace between men is an ordered agreementof

patternwhich assigns to each its properposition.83

The peace of a human community, then, includes both concord

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