Lex Iniusta non Est Lex:
Origen of Alexandria, Thomas Aquinas, and the Limits of Positivistic Law
I must confess: I have no specific expertise in legal theory. I did have a PhD minor in the related field, Theological Hermeneutics.
The interpretation of law parallels the interpretation of Scripture. Judges must instantiate how a law works in a circumstance different from its production for a society; Biblical commentators and preachers must do the same for the church through the Scriptures.
Hans Georg Gadamer noted the similarity between the two in his massive, Truth and Method. Gadamer distinguishes between the jurist and the legal historian:
“The jurist understands the meaning of the law from the present case and for the sake of this present case. By contrast, the legal historian has no case from which to start, but he seeks to determine the meaning of the law by constructing the whole range of its applications. It is only in all its applications that the law becomes concrete. Thus the legal historian cannot be content to take the original application of the law as determining its original meaning. As a historian he will, rather, have to take account of the historical change that the law has undergone. In understanding, he will have to mediate between the original application and the present application of the law.” (Truth and Method, p. 322).
One can draw a similar distinction between Scriptural exegesis and preaching.
Scriptural studies have forgotten the historical relationship between Law and Scripture given in classical legal/political/theological theorists. Such is an implication of constructing law solely within the context of a social contract. It’s another case of liberal amnesia. Scholars define Scripture by the new category, “religious text;” law is “secular.” The professional managerial class, the mainstream media, and the academy police this border.
We must order both the law to the temporal commonn good and the eternal Good even as we must order the interpretation of Scripture to the eternal Good. If a law does not participate in this temporal common good, it is no law.
I. Thomas Aquinas incorporated both in his Summa Theologiae.
Sigh. Isn’t it beautiful?! But the 10th commandment makes it illegal to covet.
I admittedly wince when I see Thomas’s “Treatise on the Law” abstracted from its place within the “from God, through God, to God” structure of the Summa Theologiae (ST). Aquinas quite rightly has the treatment of law precede grace in the ST, as the temporal order opens to the Eternal Good and must be ordered to it. Law allows the human being to participation in the common good that is ordered to the Eternal Good.
Thomas wrote the ST for “beginners” — to teach them how to speak well of God and everything related to God. It’s not a “systematic theology” — no such genre existed when Thomas wrote. ST is a large itinerary, a journey in which one may become a skilled speaker about God from within the Christian tradition, even as this tradition interacts with Islam (Ibn-Sina) and Judaism (Maimonides).
Aquinas develops his account of law through Scriptural reasoning. The phrase “scriptural reasoning” is important because Scripture and reason do not represent two different “things.” Reason works within and upon Scripture as well as frames Aquinas’ discussion. Scripture works within and upon Aquinas’s account as well as frames Aquinas’ discussion. He thus states, “The salvation of man could not be achieved otherwise than through Christ, according to Acts 4:12: "There is no other name . . . given to men, whereby we must be saved." Consequently the law that brings all to salvation could not be given until after the coming of Christ. But before His coming it was necessary to give to the people, of whom Christ was to be born, a law containing certain rudiments of righteousness unto salvation, in order to prepare them to receive Him” (II-I.q. 95.a5.replyobj2).
Aquinas describes three levels of law. His Trinitarian understanding of the “Eternal Law” requires both the natural law and human law: “The natural law directs man by way of certain general precepts, common to both the perfect and the imperfect: wherefore it is one and the same for all. But the Divine law directs man also in certain particular matters, to which the perfect and imperfect do not stand in the same relation. Hence the necessity for the Divine law to be twofold.” Both natural law and human law participate in the same Eternal Law — that which exists “to prepare them [humans] to receive Him” [Christ]. Both natural law and human law have a validity in and of themselves, accessible to reason. But the “end/telos of the Law is Christ” — both natural law and human law serve as that which prepares the person to confess the “Name” in whom salvation comes, Jesus Christ. The temporal natural and human law is raised and perfected in their true end, Jesus Christ.
The “eternal law” names the law in God as creation participates in God. The “natural law” is found within the eternal law, but instantiated in human beings: “this is the first precept of law, that “good is to be done and pursued, and evil is to be avoided.” All other precepts of the natural law are based upon this. . . . Since, however, good has the nature of an end, and evil, the nature of a contrary, hence it is that all those things to which man has a natural inclination, are naturally apprehended by reason as being good, and consequently as objects of pursuit, and their contraries as evil, and objects of avoidance.” One could call natural law the jurist’s Hippocratic Oath: “First do no harm.”
“Human law” names the determination of natural law within a particular society and situation, the determinatio that comes through the law’s emanation from and specific participation in the natural law": “Some things are therefore derived from the general principles of the natural law, by way of conclusions; e.g. that "one must not kill" may be derived as a conclusion from the principle that "one should do harm to no man": while some are derived therefrom by way of determination; e.g. the law of nature has it that the evil-doer should be punished; but that he be punished in this or that way, is a determination of the law of nature.”
Aquinas refuses to isolate law from an ontology in which all things come from, are through, and end in God. God is the highest Good in whom we find Justice — without which law refuses its legitimacy.
II. For Aquinas, as for Augustine, an unjust law is no law at all.
“As Augustine says (De Lib. Arb. i, 5) ‘that which is not just seems to be no law at all’: wherefore the force of a law depends on the extent of its justice. Now in human affairs a thing is said to be just, from being right, according to the rule of reason. But the first rule of reason is the law of nature, as is clear from what has been stated above (Q91, A2, ad 2). Consequently every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law.”
George Lindbeck, of blessed memory, told me that one could read Aquinas as the summation of patristic theology. This includes the famous dictum, “an unjust law is no law at all.” The modern era tends to read the ST as the “work of Thomas Aquinas.” And it is. . . . kind of. But Thomas is not looking to “take a position” within a marketplace of ideas. Thomas compiles and reasons within philosphy, Scripture, and the Christian tradition. That means, of course, that Thomas is an Augustinian.
Thoroughly. Completely.
No other saying marks off a classical account of law from its modernist reduction. The modernist reduction of the law to the realm of immanence alone cannot make such a claim. We have forgotten the great destructive negation that characterizes the liberal understanding of law. As the fraying three-stranded rope of the professional managerial class, the mainstream media, and the academy police the line between Scripture and law, they likewise ensure that jurists sever the law from common good ordered to the Eternal Law, or the eternal Good.
Violence ensues. Law can only manifest the desire of the majority as expressed in the social contract. The will of the people as determined by the ruling junta provides the only justification for the law. One can not object to a law as unjust. One can only mobilize politically through protests to express a different will.
No protester has asked Congress to change immigration law because it is unjust; they just mobilize to contest the legal enforcement and policies that their “will” is more representative of the “people.” Riots replace the reasonable deliberations of the legislature to discern the common good that immigration law needs to uphold.
If a law does not participate in the eternal Law as manifested in the natural law, it is not law per se. “Since then the eternal law is the plan of government in the Chief Governor, all the plans of government in the inferior governors must be derived from the eternal law. But these plans of inferior governors are all other laws besides the eternal law. Therefore all laws, in so far as they partake of right reason, are derived from the eternal law. Hence Augustine says (De Lib. Arb. i, 6) that "in temporal law there is nothing just and lawful, but what man has drawn from the eternal law" (II-I, Q93.Art3.Resp., emphasis mine).
In actuality, temporal law arises from the human will ordered to Justice, itself participating in the Good by reason. Law does not collapse into itself for its own legitimacy. Its legitimacy comes in its suspension from the common good as ordered to the eternal Good. We may reasonably judge law whether it is ordered to the common good. Any legal system that loses its transcendent legitimacy in the common good ordered to Justice in the Good will ultimately fragment into various haereseis, schools of thought. Law will become politicized in the worst sense of the word, the “property” of the strongest will to power.
Aquinas’s account of law requires that the jurist looks at the law’s consequences. Law works teleologically. We must assess a law in the justice of its teleological consequences.
Sorry, Justice Barrett. Originalist Constitutional logic is just as positivistic as its “living Constitution” alternative.
Thomas’s account of a Constitution requires that the Constitution itself lives. It lives only by participation in the non-competitive common good that works to the flourishing of a good society as it participates in the eternal Good. Aquinas takes Augustine’s insights and structures them into a coherent framework to speak well of God and all things in relationship to God.
III. One finds a precedent to Augustine/Thomas’s account in Origen’s Against Celsus.
My PhD studies began with a Greek text of Origen that no one at the time had yet translated into English. My first major paper was on Origen’s use of textual variants in his Homilies on Jeremiah. According to Antony Grafton, the paper apparently started a minor research program in the area. My evangelical seminary training had dismissed Origen as most Protestants do. At Notre Dame I discovered what a wonderful and seminal writer he was.
I discovered on X that a new publisher, Lux Patrum, was publishing inexpensive translations of patristic and medieval texts with English translations facing the text in an original language. Lo and behold, the press had just released Origen’s Contra Celsum.
I had worked a few years back in Contra Celsum. Others have argued, and convinced me, that Celsus had access to an early Jewish “anti-Matthew” polemical text against Jesus that reaches back to the early second, if not the first, century. With new research on Josephus’ “testimonium Flaviam,” references in two first century Greek philosophical texts, David Dusenbury’s use of a first century Syrian text, we quite possibly have five first-century non-Christian references to Jesus and his crucifixion — and that doesn’t include the material from Pompeii.
Jesus’ teaching and crucifixion and even resurrection quickly exceeded his commercial area around the Sea of Galilee and Jerusalem. I hope to have time and resources to develop this someday into a narrative account.
But I digress.
I picked up my new volume by Origen and began reading.
Origen begins Book I.1: “The first point which Celsus brings forward, in his desire to throw discredit upon Christianity, is, that the Christians entered into secret associations with each other contrary to the law, saying that ‘of associations some are public, and that these are in accordance with the laws; others, again, secret and maintained in violation of the laws.” Robert Wilken in his Christians as the Romans Saw Them noted that the Romans called the church a burial society — an association. The Canadian scholar, John Kloppenberg has written a major volume on this Roman “voluntary society”: Christ’s Associations: Connecting and Belonging in the Ancient City (2019).
Origen rebuts Celsus’ accusation. He does not quibble with either Celsus’ citation of Roman Law or with the identification of Christianity as a “secret association.” Origen grants the truthfulness of the claim. Despite its varied textual complexities, Hippolytus of Rome’s On the Apostolic Tradition depicts the care and process that an unbeliever would have to go throw before one even witnessed, let alone participated in, the Eucharist in the second century. The church maintained elements of its life as a “secret association.”
Origen, however, refutes Celsus’ argument with his own legal argument:
“if a man were placed among Scythians, whose laws are unholy, and having no opportunity to escape, were compelled to live among them, such an one would with good reason, for the sake of the law of truth, which the Scythian would regard as wickedness, enter into association contrary to their laws, with those like-minded with himself; so, if truth is to decide, the laws of heathens which relate to images, and an atheistical polytheism, are ‘Scythian’ laws, or more impious even than these, if there be any such. It is not irrational, then, to form associations in opposition to existing laws, if done for the sake of the truth.”
Origen rejects a postivistic, social-contract understanding of law that Celsus seemingly endorses. Origen uses different language than Thomas’ employment of Augustine, but he shares a similar deep logic with both. What Origen calls “the law of truth” stands as a transcendental reality that nullifies positive law — what we could call the “eternal Law.”
Origen argues on the basis of a case law that Christian’s rightly reject the Roman law because it is unjust. Christians are right “to form associations in opposition to existing laws, if done for the sake of the truth.” An unjust law is no law at all. Law as mere social contract has no legitimacy.
Origen does not carefully develop a whole legal theory. As with so much of Origen’s work, he articulates a legal distinction that becomes worked out and normative for a systematic legal theory in later thinkers. He upholds the principle “Lex Iniusta non Est Lex” already in the early third century, when the churches were legally forced to gather in “illegal secret societies” — banned by the emperors for fear that such societies would foment rebellion against the imperial rule.
Nowhere does Origen incite Christians to rebel against the law. They can’t rebel against the law that makes their gatherings illegal because it is no law. The “no-law law” against their gathering exists “on the books,” but not in truth.
And truth stands as a higher ontological reality than what is written.
IV. Conclusion
Thomas Aquinas develops a legal theory that he finds in Augustine. It already appears in Origen. Christians rationally distinguish between a law that finds its end in the common good that participates in the Eternal Good and a “law” that does not participate in the common good or Justice a law that is no law. Christians make this claim by reason.
So much hangs on this understanding of law. I think it is the center of common good postliberalism — and shows how deeply the contemporary name calling of “the Right” prohibits understanding the position.
I would assert that legal positivists, not Common Good postliberalis, belong to the “the Right.” Legal positivist are the radical authoritarians who seek to overthrow law by asserting their own law in violence with no justification except their will. Without a transcendent Truth in which law participates, all law becomes merely the manifestation of the will in the war of all against all.
Common Good postliberals have a much more nuanced understanding of law, based upon reason, but found deeply embedded within the tradition of the church. We have much to do to correct the ad hominem arguments and misconceptions that the fraying three-stranded rope of the liberal elite have placed upon the position.
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Thank you for reading, re-stacking, and liking this post. Thomas’ distinction between the eternal Law, natural law, and human law remains fundamental to understand the difference between the common good tradition and the liberal tradition. One cannot build a civilization on the liberal tradition because one finds it anchored in the constantly changing human will. It is parasitical on the Good and instable in its manifestations. Rebuilding North Atlantic civilizations requires a commitment to the retrieval of the common good ordered to the Eternal Good. While not exclusive to the Catholic Church, such a reasonable conviction belongs within her.
You can help by recommending this substack, re-stacking the post, and liking the post. My next posts plan to develop the importance of legal reasoning within the gospels and their reception.