Natural law, positive law, and material necessity

To recapitulate, in Article 7 of Question 66 of the Summa human need (nécessitas) prioritizes the natural law of common ownership over the positive law of appropriation. Thomas writes:

Things which are of human right cannot derogate from natural right or Divine right. Wherefore the division and appropriation of things which are based on human law, do not preclude the fact that man’s needs have to be remedied by means of these very things. Hence whatever certain people have in superabundance is due, by natural law, to the purpose of succoring the poor.

Article 7 can be read as a more practical harmonization of the two “rights” presented theoretically in Article 2. In Article 7, human need is connected to natural law, while “the division and appropriation of things” remains firmly a matter of human law. Aquinas implements the priority of need over procurement in two ways in Article 7: (1) the oft-cited casus necessitatis extremae exception permits a person in dire need, and for whom there is no other remedy, “to succor his own need by means of another’s property, by taking it either openly or secretly”; and

(2) need dictates that superabundance {res quas aliqui superabundant^ habent) be used to help the poor.

Two points emerge from Article 7. First, the need of people who do not have enough property triggers a demand on those who have too much.74 Secondly, once natural law is triggered in that way, the superabundance of those who have too much becomes a debitum, as a matter of natural law, to those in need. These are disjunctive propositions. The obligation to share superabundance with the needy arises independently of the casus necessitatis extremae exception.

This superabundance principle appears in Aquinas’ treatment of tithing as well. In Question 87, Article 1, of Secunda Secundae, Aquinas asks whether Christians are required to tithe. He identifies three kinds of Old Testament tithes: (1) the tithe set apart for the needs and uses of the Levites, which corresponds to provision for the clergy in the New Testament era; (2) the tithe reserved for the offering of sacrifices, which “has no place in the New Law”; and (3) the part of the tithe set apart to provide food for the stranger, the fatherless, and the widow. The third kind of tithe, far from being superseded, “is increased in the New Law.” Christ commanded, according to Aquinas, that Christians “give to the poor not merely the tenth part, but all our surplus [omnia supèrflua].”™

The principle of giving supèrflua to the poor is not only a heightened commandment; it is also a dictate of natural law. Aquinas’ ultimate answer in Article

1 is that tithing is required of Christians, partly as a “judicial precept”76 (i.e., the amount of the tithe) and partly as a dictate of natural law (i.e., the obligation to pay tithes).

As an obligation imposed by natural law, tithing is a duty. Aquinas introduces his lengthy answer in Article 1 with a quote from Augustine: “‘It is a duty to pay tithes, and whoever refuses to pay them takes what belongs to another.’” Aquinas writes later in Question 87 of the ius of ministers to receive tithes, and calls the duty to pay tithes debitum.77 In other words, the tithe belongs to ministers of the New Testament.

The tithe is not alone in being due to its recipients. In his answer in Article 1, Aquinas explains that the people’s obligation to provide for “those who minister the divine worship” is a dictate of natural reason just as “it is the people’s duty to provide a livelihood for their rulers and soldiers and so forth.”78 The same point is made in Aquinas’ commentary on Paul’s Letter to the Romans, where Thomas states, in part, that “taxes are owed to rulers as a wage for their labors.”79

In Question 66, supèrflua is due to the help of the poor as a matter of natural law.80 In giving his answer in Article 7, Aquinas cites Ambrose and his words “embodied in the Decretals”: “‘It is the hungry man’s bread that you withhold, the naked man’s cloak that you store away, the money that you bury in the earth is the price of the poor man’s ransom and freedom.’” In the case of extreme need, “that which [the one in need] takes for the support of his life become his own property by reason of that need.”81

Need transforms private property into common property {in necessitate sunt omnia communia) ,82 To put the matter in terms of the reading of Articles 1 and

2 outlined above, need neutralizes the reasons underlying the positive law of

Thomas Aquinas 91 appropriation, thus allowing the natural law of common possession to operate as the principle of property'. Porter writes:

Hence, the institution of property is in tension, at least, with the ideal of equality implied by the virtue of justice. Aquinas’s delineation of the limitations of property rights does not do away with this tension, but it does at least give practical force to the view that natural equality is more fundamental than the inequalities introduced by human society.83

Within the purview of positive law, when need is not at issue, taxation is a kind of robbery. In that context, Article 8 of Question 66 can only speak of robbery without sin as a taking of another’s property with lawful or just violence and coercion. However, in cases of extreme need or when supèrflua is present, the language of »«jand debitum drives the discourse. Proportion in taxation has two components: proportion to the needs of the commonweal and proportion to the individual’s capacity to pay. In other words, the “burden of taxation must not be higher than necessity required” and should not lead to impoverishment but, rather, “preserve a necessary subsistence.”84

The natural law of common goods surrounds and constrains the positive law of private ownership. Necessity allows the substrate of natural law to come to the surface and overpower positive law, as it were.85 Thomas, as Alejandra Mancilla puts it, “shares with his contemporaries the view that the right of necessity is the revival of the original, pre-institutional right of common use of the earth’s resources.”86 Necessity is the place where the line is drawn between private and common property—not just the necessity of the needy one, but also necessity as a function of what the possessor can use. That is, necessity serves as a limit to how much the possessor should have. “Ownership is limited by the necessities of human need,” MacIntyre concludes with respect to Thomas’ teaching.87

R. W. Dyson cautions that although Aquinas championed property ownership, his account of private property differs from modern doctrines in that human laws “do not confer an unlimited right of acquisition and use.”88 Dyson formulates Aquinas’ distinction between ownership and use, alien to modern conceptions, in this way: “We are entitled to as much property as we need to enable us to meet our earthly needs comfortably. But what we have in excess of these needs we owe as a matter of moral duty to the poor.”89

In summary, there is a duty, concretized in the relationship of natural and positive law, to dispose of supèrflua. To strip that concept of its deontological connotations, one individual’s positive-law supèrflua is converted (or, more precisely, reverts) by operation of natural law into something that belongs to others. Giving it back to them is equality and, thus, justice.90

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