marriage, slavery, and natural rights in the political thought of aquinas

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Marriage, Slavery, and Natural Rights in the Political Thought of AquinasAuthor(s): Paul J. CornishReviewed work(s):Source: The Review of Politics, Vol. 60, No. 3 (Summer, 1998), pp. 545-561Published by: Cambridge University Press for the University of Notre Dame du lac on behalf of Review of Politics

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Marriage, Slavery, and

Natural Rights in thePolitical Thought of Aquinas

Paul J. Cornish

Recentscholarshiphas demonstrated that the language of subjectivenatural

rights can be found in a wide variety of medieval juristic and scholastic texts.This is

partof a

generaltrend in the

studyof

politicalideas that stresses the

continuitybetweenmedieval andmodem politicalvalues.However,many leadingscholarsof medievalpoliticalideas maintainthat no languageof subjectivenatural

rights can be found inAquinas's political writings,based as they are on a famous

objective definition of right (jus)as the objectof justice (justitia).Other scholars

argue that Aquinas's notion of subjective rights is peripheral to his political

philosophy.Theessay argues thatAquinas,while commentingon canonlaw texts,

explicitly posits a subjectivenaturalright to marry,based on the naturalequalityand naturallibertyof all human beings. Thiscan be seen by his claim that a slave

may

contractmarriage,even without the consent of the master.Thisis one exampleof an instance in whichAquinasrefersto specific legal issues in order to explicatehis understandingof libertyandright. ForAquinastherearecertainareasof libertyor mastery (dominium)hat are exempt from all human authority,and wherein a

person has rights to decide how to pursue naturalhuman goods.

Introduction

Duringthe last two decades a

growingnumber of scholars

have located the origins of the modernnotion of subjectivenatural

rightsin juristicand scholasticwritingsfrom the latermiddle ages.1Indeed, it is now generally accepted that there is more continuitybetween later medieval politicalideas and modernpoliticalvaluesthan had previously been allowed.2 Prior to this trend, scholarsof

I wish to thank RichardFriedman,Cary

Nederman, and the Editors andreviewers of the ReviewofPolitics or theirsuggestions during the preparationofthe finalversion of thispaper.Any deficiencies areentirely my own.

1. In a recent essay Cary Nederman refers to a "rich array-indeed anembarrassment-of medieval sources which must be considered"("PropertyandProtest:PoliticalTheoryand SubjectiveRightsin Fourteenth-Century England,"ReviewofPolitics58 [1996]: 323-44).

2. A fundamental text in this new approachto thehistoryof political ideas is

Quentin Skinner'sTheFoundationsofModernPoliticalThought, vols. (Cambridge:



546 THE REVIEW OF POLITICS

widely disparateschools,with widely different nterests,all treated

subjective natural rights as an invention of the sixteenth andseventeenth centuries.3Yet even some scholars who do stress the

continuity between medieval and early modern political ideashave been ambivalent about attributinga language of subjectivenaturalrightsto ThomasAquinas.4 ndeed,manyscholars continueto deny thatAquinas could have used a notion of subjectiverights.

A good example of the tendency to deny thatAquinas used a

languageof

subjectivenatural

rightscan be found in the works of

Michel Villey, who was philosophically opposed to subjectivenaturalrights theories. Villeysaw the origins of subjectivenatural

rightsdoctrine nOckham'snominalism.5He arguedrepeatedlythat

Aquinas'snatural aw theoryis based on anobjectiveunderstandingof right which logically precludes the existence a subjectiverights

language.6Thus, aterThomists, iketheSpanishDominicanFrancisco

CambridgeUniversity Press, 1978).Alsosee RichardTuck,NaturalRightsTheories:TheirOriginand DevelopmentCambridge:Cambridge University Press, 1979);BrianTierney, Religion,Law,and the Growthof ConstitutionalThought1150-1650

(Cambridge:CambridgeUniversityPress,1982); nd morerecently,CaryJ.Nedermanand John ChristianLaursen,eds., Difference nd Dissent: Theories f TolerationnMedievalandEarlyModernEuropeLanham,MD: Rowman and Littlefield, 1996).

3. For instance see LeoStrauss,NaturalRightandHistory Chicago:Universityof Chicago Press, 1950); C.B. Macpherson, The Political Theory of PossessiveIndividualismOxford:Oxford University Press, 1962);and more recentlyArlene

Saxonhouse, Womenn theHistoryofPoliticalThought:AncientGreeceoMachiavelli(New York:Praeger,1985)and JackDonnelly, UniversalHumanRightsin Theoryand Practice Ithaca:Comell University Press, 1989).

4. The broaderphilosophical and historicalquestion of whether traditionalnatural law philosophy can be understood to be consistent with a doctrine ofindividual naturalrightsis also a matter of controversy.For a summary of recentworks see RalphMclnemy, "NaturalLaw and Human Rights,"American ournal

of Jurisprudence36 (1991): 1-14. This article contains a useful survey of the

conjunctions between scholarship on the history of political ideas and

contemporarynatural law theories.

5. See Michel Villey,"Legenese du droitsubjetifchez Guillaume d'Occam,"Archivesdephilosophie u droit9 (1964):97-127.

6. Villey's argument is summarized in Ledroitet lesdroitsdel'homme, Paris:Presses Universitairesde France,1983).A more rigid version of this argument is

proposed by contemporaryhuman rights theorist JackDonnelly "Natural Lawand Right in Aquinas PoliticalThought," WesternPoliticalQuarterly 1980):520-535. Donnelly's work appearstoparallel Villey,who was an advocate of objectivenatural right against modem and contemporary doctrines of subjective rights,while assuming the superiority of contemporarysubjectiverights doctrines.



NATURAL RIGHTSAND AQUINAS 547

de Vitoria,who used a concept of subjective natural rights, were

reading a nominalist understanding into Aquinas.7BrianTierney,who has argued that subjective rights concepts

can be found in civil and canon law writings from the twelfth

century forward, follows Villey in arguing that the SpanishThomists imported subjective rights doctrines into the Thomist

natural law framework from other sources.8Tierney allows that

Aquinas may have used a language of subjective natural rights,but states that it remains

"peripheraland unelucidated."9Thus,

according to Tierney,Francisco de Vitoria and Bartolome de Las

Casas imported their defence of the natural rights of the Ameri-

can Indians into Thomist philosophy from juristic texts or from

the works of Marsilius of Padua.10

Finally,RichardTuck has attributed a language of subjectivenaturalrights toAquinas in the latter's treatment of propertyand

ownership. Tuck notes that Aquinas's use of the concept of do-

minium utile entails the view that human beings have a naturaldominium o use materialobjects."However, in the same passage,Tuckargues thatAquinas neglected to develop a consistent philo-

7. For a concisesummaryof Villey'sviews in English,see Mclnemy,"Natural

Law and Human Rights,"pp. 1-4.

8. This argument is made in Tiemey's "Marsiliuson Rights,"Journalof the

History of Ideas 52 (1991): 3-17, and "Aristotle and the Indians-Again,"Cristianesimo ellastoria,12 (1991):295-322.Also see his "Villey,Ockham and the

Origin of Individual Rights,"in TheWeightierMattersof the Law:Essayson Law

and Religion,ed. John Witte and Frank S. Alexander (Atlanta, 1988) 1-31, and

"Originsof Natural RightsLanguage:Texts and Contexts 1150-1250,"HistoryofPoliticalThought10 (1989):615-46. This view is supportedby KennethPennigtonin The Prince and theLaw,1200-1600, (Berkeley:University of CaliforniaPress,

1993),pp. 272-73.Tierey gives a detailed account of his views in his recentbook,The Ideaof NaturalRights(Atlanta:Scholar'sPress, 1997),pp. 255-315. Many of

the essays cited in this essay arereprintedin the earlierchaptersof the book.

9. Tiemey,"Originsof Natural Rights Language," pp. 617-18.10. I have tracedwhat I take to be the genuinely Thomist principles behind

theargumentsof VitoriaandLas Casas.See, "SpanishThomism and theAmerican

Indians: Vitoria and Las Casas on the Toleration of Cultural Difference," in

Difference nd Dissent: Theoriesof Tolerancen Medievaland EarlyModernEurope,ed. CaryJ.Nederman and JohnC. Laursen(New York:Rowman and Littlefield,

1996),pp. 99-118.

11. See Tuck,NaturalRightsTheories,pp. 18-20, commenting on Aquinas,SummaTheologiae,ia.-iiae. 66, 1 and ia.-iiae. 94, 5.



THE REVIEW OF POLITICS

sophical defence of natural liberty.12He views Aquinas's interest

in the language of subjectivenaturalrights as being limited to the

contemporaneous debates between the Dominican and Franciscanorders over the Franciscan doctrine of apostolic poverty.13

The present article is focused on a problem in scholastic phi-

losophy as it concerns sacramental marriage. I will argue that

Tierney's thesis about the juristic origins of subjective natural

rights doctrines may be overstated, in that scholastic theologycontains

manyuses

legaltexts and

problemsas

examplesto ex-

plain general principles. In a recent essay Tierneynotes that:

The concern with individual intention, individual consent,individual will that characterized the twelfth-century culture spilledover into many areas of canon law. In marriage law, by the end of the

twelfth century,the simple consent of two individuals, without any other

formalities, could constitute a valid, sacramental marriage.14

In this essay I examine the way in which a problem in the canonlaw of marriagewas treated in the theology of Thomas Aquinas.

Aquinas did use a language of subjectivenaturalrights to explainthe freedom of a person to contractmarriage.This is but one ex-

ample of the way in which the concepts of natural law, libertyand dominium, ound in the Decretum, he Decretales, nd RomanCivil Law,constitute integral parts of Aquinas's political thoughtin the SummaTheologiae.

In the concluding section of the article I address the purposethat the language of subjective naturalrights serves in Aquinas'sgeneralconceptionofpolitical society,based as it is on the objective

12. Tuck, like many contemporary scholars, writes under the mistaken

assumption thatAquinas accepted some version of Aristotle'sview that there are"naturallaves,"p.20.Amorethorough reatmentofAquinas'scommitment o moral

equalitycanbefoundinJeanPorter,TheRecoveryfVirtue: heRelevanceofAquinasorChristianEthics Louisville:Westminster/JohnKnoxPress,1990),pp. 134-41.

13. Ibid.pp. 20-24, also see JanetColeman, "Propertyand Poverty"in The

CambridgeHistory of Medieval Political Thought 350-1450, ed. J. H. Burns

(Cambridge:Cambridge University Press, 1988),pp. 607-48. Coleman gives amuch broaderreview of the relevant texts fromAquinas.

14. B. Tiemey, "Originsof Natural Rights Language,"p. 627. An excellentconcise treatmentof theareas of human libertyas understood in the LaterMiddle

Ages can be found in Antony Black, Political Thoughtin Europe1250-1450

(Cambridge:Cambridge University Press, 1992),pp. 28-33.

548



NATURAL RIGHTS AND AQUINAS

concept of natural justice.15When I argue that Aquinas uses a

language of subjective naturalrights, I am asserting thatAquinasunderstood there to be certain areas of human liberty that are

exempt from all human authority wherein a person has rights to

decide how, or whether, to pursue genuine human goods. So that

for Aquinas the value of individual human life cannot be judged

strictly in terms of the good of the political community, but

individual rights and libertyareunderstood to be instrumentalto

the flourishing of human nature. Withthis understood, thereneed

be no logicalor moralinconsistency n usingalanguageof subjectivenaturalrights within an objectiveframework of naturaljustice.

Aquinas on the Limits of Human Authority

Aquinas's understanding of natural liberty and subjectivenaturalrights, like most of his political thought, is not to be found

in a single treatise.Rather,one mines Aquinas's understandingofhuman libertyfromdisparateveins of his theological writings and

commentaries. For the purpose of this essay it is necessary to con-

sider a proposition found in various questions of his Summa

Theologiae. he proposition is stated most clearly in an article that

asks "whether subjects are bound to obey their superiors in all

things" (iia-iiae.104,5).16Here,in thebody of his response,Aquinas

argues

that while man must

obey

God in all

things,

all human

authority is limited:17

15. This concern is suggested by Nederman's approach in "Propertyand

Protest,"pp. 326-29. Foranother treatmentof philosophicaldefenses formodern

political values in the context of an objectiverights doctrine see Stephen Lahey,

"Wyclif on Rights," Journalof the Historyof Ideas(1997):1-20. For Aquinas'streatment of objective natural right, see SummaTheologiae,ia.-iiae. 57. In this

question, Aquinas argues that the primary definition of right (jus)is thatright isthe

objectof

justice (justitia).It should also be noted that BrianTierneyexamines William of Ockham's

subjective rights language in a similar malner in TheIdeaof NaturalRights,pp.170-94.

16. iia.-iiae. 104,5.All translationfrom the SummaTheologiaere taken fromSt. ThomasAquinas, SummaTheologica,n 5 Volumes,translatedby the FathersoftheEnglishDominicanProvince(NewYork,1948reprint). naddition,translationsof his IVSent.,dist. 27,arebased upon the text found in Volume5 of the translationof the SummaTheologiae,upplementunl,2. 1-4.

17. A.S. McGrade has suggested that this and other passages demonstrate

that "Thomas'accountof the objectiveorder of justice yields a rathershort list of

549



550 THE REVIEWOF POLITICS

there are two reasons for which a subject may not be bound to obey

his superior in all things. First, on account of a command from a higherpower. ... Secondly, a subject is not bound to obey his superior if thelatter command him to do something wherein he is not subject to him.For Seneca says (De Beneficiis ii): "It is wrong to suppose that slaveryfalls upon the whole man: for the better part of him is excepted. His

body is subjected to the master, but his soul is his own." Consequentlyin matters touching the internal movement of the will man is not boundto obey his fellow-man, but God alone. Nevertheless man is bound to

obey his fellow-man in things that have to be done externally by means

of the body: and yet, since by nature allmen

are equal, he is not boundto obey another man in matters touching the nature of the body, forinstance in those relating to the sustenance of the body or the begettingof children. Wherefore slaves (servi)arenot bound to obey their masters,nor children their parents, in the question of contracting marriage or of

remaining in the state of virginity or the like.'8

Aquinas here distinguishes three classes of human acts

wherein human beings are not bound to obey their superiors. The

first class of acts involves any action that is governed by the com-mand of a higher power (especially God). The second class

involves the internal movements of the will, from which follows

the freedom of conscience. These first two classes of acts identi-

fied by Aquinas are important, but must be left aside for the

purpose of this essay. A detailed explication of the third class of

human acts is a necessary step to understand the right of a slave

to marry without the consent of his master.

universal human rights." See McGrade, "Rights, Natural Rights, and the

Philosophy of Law," n TheCambridgeHistoryofLaterMedievalPhilosophy,d. N.

Kretzmann,A. Kenny and J.Pinborg (Cambridge:CambridgeUniversity Press,

1982),pp. 739-40.18. "Duobuspotest contingere quod subditus suo superiorinon teneatur in

omnibus obedire. Uno modo propter praeceptummajorispotestatis.... Alio nontenetur inferiore suo superiori obedire, si ei aliquid praecipiat in quo ei non

subdatur.Dicit enim Seneca, Errat, i quis existimat servitutem in totumhominemdescendere; pars enim melior excepta est: corpora obnoxia sunt et adscriptadominis, mens quidem est sui juris. Et ideo in his quae pertinent ad interioremmotum voluntatis, homo non tenetur homini obedire,sed solum Deo.

"Teneturautem homo homini obedire in his quae exteris per corpus sunt

agenda;in quibussecundumea quaead naturamcorporispertinent,homo hominiobedire non tenetur,se solum Deo, quia omnes homines natura sunt pares, putain his quae pertinent ad corporis sustentationem et prolis generationem. Undenon tenetur nec servi dominis, nec filii parentibus obedire de matrimonio

contrahende vel virginitate servanda aut aliquo alio hujus modi."




The third class of human acts includes those things pertain-ing to preservation (or conservation) of the "natureof the body,"and those things pertaining to procreation and the preservation(or conservation) of the species. Aquinas argues that no one canbe bound to obey another in these things because "by nature all

men areequal,"and he applies this principle to a man in the stateof slavery. Slaves and children are not bound to obey their mas-

ters, or parents, in "the question of marriage or of remaining in

the state ofvirginity

or the like."19In his systematic treatment of natural law,Aquinas had writ-

ten that natural law prescribes human acts expressing natural

inclinations to natural human goods. There he posits three typesof natural inclinations towards human goods: (1) the inclinationto preservation shared by all beings; (2) the inclination to repro-duce which human beings share with other animals; and (3) the

specifically human inclinations to live in a society and to know

the truth about God.20The third class of human acts identifiedabove would appear to correspond closely to the first and second

types of natural inclinations.Aquinas understood these first two

types of inclinationsto be partof integralhuman naturein the state

of innocence,21 ut the servile subordinationof one humanbeing toanotherwas excluded from the state of innocence in his exegesis.22

This said, it is essential to recognize that Aquinas treats sla-

very as an institutionof positive law,in particularthejus gentium.23Jusgentiumrefers to those institutions of law which are common

19. "Unde non tenetur nec servi dominis, nec filii parentibus obedire dematrimonio contrahendo vel virginitateservanda aut aliquo alio hujus modi."

20. SummaTheologiae,a-iiae. 94,2. Thereadingof thispassage in thepresentessay differs considerably from the remarksof JohnFinnis in his seminal workNaturalLawand NaturalRight(Oxford:Oxford University Press, 1980). In his

commentary on Aquinas's writings, Finnis refers to this passage on natural

inclinations as "irrelevantschematization," and argues that Aquinas commitsthe infamous "naturalisticfallacy" (pp. 94-95)! My reading is nearer to that of

JeanPorter,TheRecovery f Virtue,pp. 144-45.21. Ibid. a. 97 and 98.22. Ibid.92, 1, ad2 and 96, 4. See also IISent.44,1,3.23. SummaTheologiae,ia-iiae. 57,3. In thiscontextAquinasemploys the term

jus gentium o referto certainpreceptsof human orpositive law thatareunderstoodto exist in any human community. This differs from the later understanding ofthe jus gentiumas the "law of nations" or "international aw,"which refers to a

body of legal rules regulating conduct among states,nations or governments.

551



552 THE REVIEWOFPOLITICS

among all peoples. When Aquinas asserted that slavery is of the

jus gentiumhe was following Roman and canon law sources ontwo important points. First, slavery was of the positive law, the

jus gentium,and not thejus naturalis.Secondly, slavery is contraryto the natural law because human beings arenaturally at liberty.24

In his attempt to distinguish between thejus gentiumand the

jus naturalis,Aquinas was forced to confront Aristotle's teachingconcerning the existence of "natural slaves. 25While Aquinas

denies that slavery could be called natural in the absolute senseof the term, he places it in the same general category as the

ownership of private property.Such institutions were said to benaturalin the sense thatthey produceconsequences that are usefulfor society, given human beings in the state of original sin.26

However, careful consideration of these texts demonstrates that

Aquinas is readingthe Philosopherthroughthe lens of the Roman,Patristic,and canon law discussions of slavery.27

Thismay be seen in two ways. First,Aquinas,citingthe Romanjurist Ulpian and canon law, explicitly argued that slavery is of

positive law, the jus gentium,and contraryto nature. So slavery isa matter of human custom and convention, not nature. Secondly,Aquinas appropriatesSeneca's Stoic view that the mind (mens)ofthe slave is his own right (suijuris). He then proceeds from this

24. Themeaning

of these claims in Roman law is a matter ofscholarlycontroversy.One key text is from the RomanjuristUlpian.It is found atInstitutes,

1,5,1, Digests1,4,1;and in the Canon Law at Decretum,1,1,7, "quaees res a juregentium originem sumpsit, uptote cum jurenaturali omnes liberinascerenturnecesset notamanumissio,cumservitusessetincognita."Also seeInstitutes,1,2,2,where

slavery is called contraryto natural law (jurinaturalicontrariae).n the Decretum,Gratianrelied heavily on the Etymologies f St. Isidore of Seville for his variousstatements concerning natural law. Isidore was a favorite auctor or Aquinas inhis "Treatise f Law"(SummaTheologiae,a-iiae. 90-97), and is quoted as holdingthis opinion by Aquinas in the passage in which Aquinas distinguishes between

jus gentiumand jus naturalis iia-iia. 57,3ad2).25. Politics 1254a15.

26. SummaTheologiae,ia-iiae. 57, 3, ad2.

27.It is truethatAquinasallows that therewould have been naturaldisparitiesamonghumanbeings,even beforeoriginalsin, so thathis understandingof natural

equality is circumscribed.Nevertheless, he does point out that the presence ofnaturaldisparitiesbefore original sin must be understood in light of the provisothat "those outclassed in any of these respects had nothing defective or sinfulabout either soul or body."See SummaTheologiaea. 96, 3 and 109,2,ad3. It is

worth noting that Aristotle is not mentioned as an authorityin these articles.



NATURAL RIGHTS AND AQUINAS 553

Stoicview to arguethat the slave (servus)need not obey the master

(dominus) in matters pertaining to self-preservation andprocreation.Thispower,orright,to act without themaster's consentcould hardlybe grantedto a class of people who arenaturalslaves.

Aquinas held that all human beings are equal as it concerns

their natural inclination to pursue the basic goods of preserva-tion and procreation.He thus describes an areaof natural libertyor mastery (dominium),which cannotbe abdicated, usurped, noralienated.This area of natural liberty encompasses the rights of

self-preservation and the preservation of the species. Some mas-

tery is retained even in the condition of slavery28

Aquinas on a Slave's Right to Marry

Having established that Aquinas understood all human au-

thority to be limited, we may turntoAquinas's Commentaryn the

SentencesofPeterLombardn order to show that he posited subjec-tive natural rights to contractmarriage,to choose whom one will

marry,or to remain a virgin. Aquinas died before he was able towrite the treatise on the sacrament of marriage which logicallybelonged in the Tertiaparsof the SummaTheologiae.29here is the

28. See Aquinas,SummaTheologiae,a.96, "de dominio quod homini in statuinnocentiae

competebat,"and ia. 97-98.

Tierneypointsout that

Henryof Ghent

avoided the medieval and early modern tendency to speak of one's mastery(dominium)over oneself, which is repeatedly found in Aquinas (for example,SummaTheologiae,. 96;iia-iiae. 64, 5, ad2;iia-iiae. 66, 1and 2;iia-iiae. 104,5),and

preferred the term proprietas.See Tierney,"Natural Rights in the Thirteenth

Century,"p. 65, fn. 46. The point may have been to avoid referringto the "self-

mastery" of a "slave,"as SaintJohn Dun Scotus does in Ordinatio V,d. 36, q.1,a.2. Themultiplicityof historicaluses of thelatintermdominium(usually translated

"lordship" or "ownership") is the cause of much confusion about medieval

political thought.29. For an outstandingsummaryofAquinasviews on marriagesee Fr.Sabino

Alonso Moran, OP., "Introduccional Tratadodel Matrimonio,"SummaTeologica,Tomo XV(Madrid,1956),pp.154-71. Fr.Moran(pp. 154-55)shows thatAquinas'sunderstanding of marriage derives from his consideration of three definitions:one taken from Justinian's Institutes (1,9), another from Peter Lombard's IVSententia d. 27), and another from Hugh of St. Victor's De Sacramentis(1.II,p.11,4).Aquinas used these definitions to analyze threeintegralelements of marriage:(1) the efficient cause, the consent of the contractingparties (Hugh of St. Victor);(2) the essence, the union of the two parties (Peter Lombard); 3) the effect, the

common life in domestic society (Aquinas, Suppl.44, 1-3, in IV Sent.,d.27).



THEREVIEWOFPOLITICS

Supplementumo Tertiapars,which was composed by some con-

temporary of Saint Thomas, and is largely based on Aquinas'swritings on theSentences.30iven this,Iwill examine the sentential

writings on the present question in comparison with, and in lightof, the passages from the SummaTheologiaexamined above.

Tobegin, Aquinas discusses slavery as one kind of impedi-ment to the sacrament of marriage.31 Slavery would be an

impediment to marriageif the condition were unknown to one of

the consenting parties, but not if it were known by both. Basinghis view on canon law,32Aquinas holds that if a woman marriesaman in the condition of slavery without being told of the man's

condition, the marriagewould be invalid. He goes on to explainthat slavery is an impediment to the act of marriage (coition for

the purpose of reproduction),since the body of the slave is boundto his master as well as to his wife. Since in marriage there is an

equal obligation on the part of both parties to provide their bod-

ies to fulfill the marriagedebt,slavery may impede this obligation.Nevertheless, as long as both parties were aware of the other's

condition, the marriage of a slave would be valid, as would the

marriage of an impotent man or a sterile woman.

Now, to the question of whether a slave may marry withoutthe consent of his master.33n this passage Aquinas discusses therelation of the precepts of natural law to those of positive law as

they regard slavery:

On the contrary,In ChristJesus .. there s neither lavenorfree(Gal.3,

28): Therefore both freemen and slaves enjoy the same liberty to marryin the faith of Christ Jesus.

Further, slavery is of the positive law; whereas marriage is of thenatural and Divine law. Since then the positive law is not prejudicial tothe natural or the Divine law, it would seem that a slave may marrywithout his master's consent.

I answer that, as stated above (A. 1, ad 3), the positive law arises out

of the natural law, and consequently slavery, which is of positive law,

30. I.T.Eschmann, OP., followed Grabmann in believing that Reginald of

Pipemo, Aquinas's secretary,was the author.See "ACatalogue of St. Thomas'sWorks" n E.Gilson, TheChristianPhilosophyf Saint ThomasAquinas New York:Random House, 1956),p. 388.

31.SeeIn IVSent.d.36,1,1,basedon this samecanon,"Deconiugioservorum,"

chap. 2;reproducedin SummaTheologiae, uppl.52,1,adl.32. DecretalesGregorii X,4,9,2, "De coniugio servorum."

33.Aquinas, nIVSent.36,1, 2;Suppl. 2, 2;basedon DecretalisGregoriiX,4,9,1.

554



NATURAL RIGHTSAND AQUINAS 555

cannot be prejudicious to those things which areof the natural law. Now

just as nature seeks the preservation of the individual, so does it seekthe preservation of the species by means of procreation;wherefore even

as a slave is not so subject to his master as not to be at liberty to eat,

sleep, and do such things as pertain to the needs of his body, and without

which nature cannot be preserved, so he is not subject to him to the

extent of being unable to marry freely, even without his master's

knowledge or consent.34

Aquinas resolves our question with the help of the natural law.

Those things which pertain to the precepts of natural law cannotbe impeded by precepts of the positive law, since the positive law

must arise from the natural law. The state of slavery is of the posi-tive law, and is said to be contraryto human nature. As such, the

state of slavery cannot supersede a person's choice to marry,to

marry a particularperson of the opposite sex, or to refrain from

marrying and live as a virgin.35The importance of defending this

area of personal liberty against all intrusions of positive law is

difficult to overstate. It would seem to deny any and all sexual

rights of the master over the slave!36

34. See In IV Sent.36, 1,2, which is directly reproduced in Suppl.52,2. The

passage from Galatians is also quoted by the canonist in DecretalesGregorii X,

4,9,1."Sedcontra:1. Gal. 3,28:"In ChristoJesu non est servus neque liber,"

Ergo matrimonium contrahendumin fide ChristoJesu eadem est liberis etservis.2. Praeterea,servitus est de jure positivo (a.1, ad3):sed matrimonium

de jure naturali et divino, videtur quod servus absque domini consensu

matrimonium contraherepossit.

Respondeo,dicendum, quodjuspositivum ut dictumest, progreditura

jurenaturali.Etideo servitusquaeest dejurepositivo,non potest praejudicarehis quae sunt de jure naturali. Sicut autem appetitus naturae est adconservationem ndividui,itaest ad consevationemspeciei per generationem.Unde, sicut servus non subditur domino

quinlibere

possitcomedere et

dormire, et alia hujusmodi facere quae ad necessitatem corporuspertinent,sine quibus natura conservari non potest; ita non subditur ei quantum adhoc quod possit libere matrimonium contrahere,eitam domino nescienteaut contradicente."35. These choices are suggested by the above passage from iia-iiae. 104,5.36. Note that Aquinas implicitly forbids the master from forcing women

held as slaves to reproducein order to increase the master's laborforce. In fact,

Aquinas's discussions of slavery seems to renderthe existence of slavery,as it is

commonly understood, impossible.Scholarsoften make this point by noting that

Aquinas had in mind feudal serfdom, or some otherlesser form of servitude. Yet



556 THE REVIEWOFPOLITICS

This raises a serious problem for those who understand

Aquinas'snatural aw frameworkmerely o havebeen anattempttobaptizeAristotle ntoChristian hilosophy.37nthe sameques-tion Aquinasexplainsmorespecificallyhow the institutionof

slaveryarises romnatural eason, ndreliesentirelyuponPatristicand Romanauthors.First,Aquinasraises and commentsuponthecommonPatristic pinion hatslavery s contraryonatureasit was treatedby St.GregoryheGreat.3He argues hatthisstate-ment s trueas it concerns hefirst ntention fnature,hatallmen

maybegood,but,notasitconcernshesecond ntention f nature.

But from the fact that a person sins, nature has an inclination that

he should be punished for his sin, and thus slavery was brought in as

punishment for sin.39

So,givena condition n which mendo notalwaysactrightly,t is

according o nature or those who have sinned to be punished.

Second,Aquinasurns othe

DigestsfJustinian,

hichprovidesthe firstauthorial pinion nhis treatment fmarriage,40ndwhich

Aquinaswould also have been aware of Christiancaptiveswho hadbeen enslaved

byIslamic ordsduringthe crusadesand wars ofconquestoverChristianpopulations.37. Forexample, see Paul Sigmund's treatmentof Aquinas's view of slavery

(p. 222)in his essay on "LawandPolitics," n TheCambridge ompanionoAquinas,ed. Norman Kretzmanand EleonoreStump (Cambridge:CambridgeUniversityPress, 1993), pp. 217-31. Sigmund views Aquinas as attempting to reconcile

Aristotle and Patristic sources. He completely ignoresAquinas's uses of the civiland canon law sources, of St. Paul and of Cicero in his writings on slavery.38. In IV Sent.36, 1, ad 2 and 3;also see Suppl.52,1,ad 2 and 3. The passage

quoted is: RegulaPastoralis, 1,6.Here Gregoryfollows SaintAugustine's famousstatement in De civitateDei (XIX,15), "contranaturam est hominem homini velledominari."Aquinas may have chosen to rely on Gregorybecause Gregoryhadwritten after the compilation ofJustinian'sCode.On thepoliticalworks of GregorytheGreatsee R.A.Markus,"TheLatinfathers,"nTheCambridge istoryofMedievalPoliticalThought, d. J.H.Burns(Cambridge,1988),pp.116-22.

39. "sed exquo aliquis peccat,

natura etiam inclinat ut expeccato poenamreportet;et sic servitus in poenam peccati introductaest."

It should be noted that this passage is preceded by a strained attempt todraw aparallelbetween theincidenceof female births and theexistence of slavery,which is misogynist in effectif not in intent. Thisimpressionis partiallyalleviated

byAquinas's argumentthat women aremade accordingto theimage and likenessof God (SummaTheologiaea. 93,4,ad.1),and his insistence thatwife and husbandstand on a equal basis as it concerns theirobligation to perform the marital act

(for example, Suppl.52, 3, ad.2).40. See In IV Sent.27, 1, ad 1., quoting Ulpian's opinion from the Digests

(1,1,1),that "jusnaturale est quod natura omnia animalia docuit."




simply statesthatslaveryis not of thenatural aw.41Further,Aquinas

quotesCicero'scontentionthatpositivelaw springsfromthenaturallaw.42 rom this he deduces thatthe preceptsof natural aw requireonly thatpunishment be inflictedupon the guilty,but the preceptsof positive law make determinate the actual punishment to beinflicted in a given circumstance.Thus, forAquinas, the conditionof slavery is fundamentally a penal institution of the jus gentiumwhich makes determinate the indeterminatenatural law preceptthat the sinful should be

punished.43Aquinas understood, as did Seneca, that slavery entails suf-

fering for the human being who is held in that condition. InPrima

parshe makes the suffering experienced by a person under ser-vile subjection an important reason to exclude the condition of

slavery from those kinds of human subordinationthatcould havebeen present in the state of innocence.44

Finally,we must turn to a passage from a subsequent article,45

in which Aquinas explicitly uses the termjus to referto the libertyof an individual person, thus using a language of subjectivenatu-ralrights.HereAquinas considerswhether a husband may subjecthimself to a master without the consent of his wife. Aquinas of-fers this response:

Everyone can give another thatwhich is his own. Now the husbandis his own master since he is free. Therefore he can surrender his rightto another.46

Human natureentails dominium,he power of any human subjectto order his own acts in pursuit of some good. One may choose tobecome a slave for the good of the preservation of one's own life

41. Digests,1,1,4,"Manumissionis."See note 26 above.42. De inventiones, i, 53.43. In IV Sent.36, 1, ad. 1;Suppl.52,1,ad 1.

44. SummaTheologiae,a.96,4 &97,2. Tobe moreprecise,Aquinasfirstarguesthat any person would find it painful to be a slave who is used as an instrumentof another's good, because by naturehuman beings each value theirown good(ia.96,4);then he subsequentlyarguesthat thetype of sufferingthatis experiencedby a creaturewhen it is driven from a naturaldisposition would not have been

present in human nature in the state of innocence (ia. 97, 2).45. In IV Sent., 36,3; Suppl. 52, 3; "Utrum servitus matrimonio possit

supervenire (Whetherslavery can supervene to marriage)."46. "Sed contra, quilibet potest dare alteri quod suum est. sed vir est sui

juris, cum sit liber.ergo potest jus suum dare alieri."

557



THE REVIEW OF POLITICS

and the life of his family under conditions of necessity. Here, the

termjus is clearly used to referto one's naturalliberty,the subjec-tive power to act, ergopotest us suum darealieri.Similarly,in the

passage above, quoted from the SummaTheologiae, quinas makesuse of Latinphrase, sui juris, to refer to those aspects of natural

libertywhich are retainedby men even in the condition of slavery.Thus, the infamous dispute over whether a person may con-

sent to the condition of slavery,which is so much a partof Locke's

political discourse, had this early contribution.47Aquinas answers

that one may consent to a condition of servitude, but not to the

arbitrarypower of anotherhuman being, since all human author-

ity is limited. One ought not to assume from this that Aquinasplaced little importance on the good of natural liberty. Later inthe same article he makes it clear that only a foolish person, or a

person in a state of grave necessity would chose to surrenderhim-self into slavery.ForAquinas says that such a person would losethe "inestimable

goodof

liberty."48It should also be noted that Aquinas did not intend to arguethat a man may unilaterally dissolve his marital and paternalduties by becoming a slave. On the contrary, Aquinas made itclearthatthe laws regulatingthe institution of slavery should takeaccount of a slave's familial responsibilities. Following the letterof the canon law, he even argued that a master should be com-

pelled not to sell a slave if it would increasethe marriageburden.49

Thecentralityof sacramentalmarriageand family life inAquinas'sunderstanding of human society cannot be doubted.

Conclusions

This should suffice as an overview of the legal problemfoundin Aquinas. Aquinas conceived of human beings as being equal

47.Again, one should note thatAquinas holds thata wife may notsurrenderherself into slavery without the consent of her husband. However, this was notbecause women had no natural liberty,for Aquinas insists that women do have

equalityof self-mastery in thosethingswhichpertainto thepreservationof nature

(In IV Sent.36,3,ad.2;Suppl.52,3, ad.2). Yet,once married,Aquinas argued thatthe wife was in a position of subjection to her husband in the order of domestic

society, and that the husband was the head of household management.48. "Inaestimabile ibertatis bonum amittens," In IV Sent.36,3,ad. 1; Suppl.

52,3, ad. 1.

49. In IV Sent.36, 2ad4, Suppl.52, 2ad4.

558



NATURAL RIGHTSAND AQUINAS

as it regardstheirnature,and aspossessing naturallibertyin terms

of self-mastery, or natural dominium.This refers to the power ofthe human individual to make choices about her or his own good,

particularlyas it concerns the preservation of individual personsand the human species. In the context of particulardecisions, like

the decision whether or not to contractmarriage,Aquinas used a

language of subjective natural rights. However, he did not hold

what might be called a natural rights theory of politics, which

identifies the

protection

of natural

rights

as the sole or

primarypurpose of civil government.Indeed, the contemporaryfocus on the logical distinction be-

tween objective and subjective senses of the Latin termjus tends

to distract attention from the relationshipbetween the concept of

individual natural rights and the common good of a political so-

ciety.Thekey distinctionmay actuallybe between politicaltheories

that explain the purpose of political society solely, or primarily, n

terms of the protectionof individual naturalrights, and those thatare based on a "thicker"conception of the common good. This

distinction raises a question about what the purpose and meaningof Aquinas's language of subjective natural rights serves in his

general conception of political society.

Aquinasheld thathumanbeingsaresocial andpoliticalanimals.

Further,he explained the need for political authority in terms ofthe disparities among human beings. Human beings live together

in social groups; since each human individual values his owngood, it is necessary that there be an authority to coordinate the

pursuit of individual goods while promoting the common goodof society.50This coordination takes the form of human positivelaw,derived from the principlesofnatural aw.51 hislaw is framedso as to apply to the whole community,and is morally binding inconscience. In the context of fallen human nature, the human law

50. The key passages are SummaTheologiaea. 96,4,IISent.44,1,3.Also see De

regimineprincipium ,1;SummaTheologiaea. 81, 3 ad2, ia.-iiae. 95-95, ia.-iae. 105,1; iia.-iiae. 57, 3 & 4. For a useful application of this Thomist view of politicalsociety to contemporaryAmerican government see RobertGeorge, MakingMenMoral:Civil Liberties nd PublicMorality Oxford:Oxford University Press, 1993).Also see Cary Nederman's writings on "communal functionalism,"especially"Freedom, Community and Function: Communitarian Lessons of MedievalPolitical Theory,"AmericanPoliticalScienceReview86 (1992):977-86.

51. SummaTheologiaea.-iiae. 95,2.

559



THE REVIEWOFPOLITICS

seeks to persuade the good to be virtuous, and coerces the evil to

maintain civil peace.52All liberty and power in human society islimited by the law, even the ruling authority is said to be bound

by civil law.53

Aquinas's discussion of the natural right to contract sacra-

mental marriagetakes place in the context of commentaries on a

problem of canon law, and reflects the medieval notion that a civilcommonwealth is a sacralcommunity.54 his is not the only place

in which Aquinas discusses natural dominiumn the context of aproblem of canon law. Another passage of extreme importance ishis discussion of thebaptismof the children of unbelievers.55There

Aquinas defends the right of Jewish parents to refuse to allowtheir children to be baptized based on the natural right of paren-tal authority.

This passage is of such great importancebecause it became a

centralpartof Franciscode Vitoria'sdefense of the rightof Ameri-

can Indians to dominiumrerum.56Yet scholars like Villey andTierney continue to argue that sixteenth century Thomists, like

Vitoria, imported their natural rights language into the Thomistframework from extraneous sources.57Their view is based on thefact thatAquinas considered the primary meaning of the termjusto be that which is right, or the just thing. The writings surveyedin this essay show that he also used this term to refer to the rightsof each person under natural law, held on the basis of natural

equality and natural dominium.This can only be understood ifone pays careful attention to the meaning of the Roman and juris-tic sources of Aquinas's synthesis, instead of treating him asAristotle's Dominican protege.

52. Ibid.,95,1-4.53. Ibid., a.-iiae. 96,5.

54. I.e.The commonwealth serves supernaturalas well as naturalpurposes.Itshould be remembered,however,thatAquinasheld that obedience to all existingcivil authorities was a moral duty, even if the authority is exercised by anunbeliever. See SummaTheologiaeia.-iiae. 10, 10.

55. SummaTheologiaeia.-iiae. 10,12.56. See Vitoria, Political Writings,ed, A. Pagden and trans. J. Lawrance,

(Cambridge: Cambridge University Press, 1991); De Indis, preface, p. 233; andLectioreportatan SummaTheologiaeia-iiae.10,8,pp. 341-51.

57. SeeB.Tiemey,"Marsiliuson Rights,"p. 5;and "Aristotleand theIndians-

Again," p. 300.

560




Still,Aquinas's subjectivenaturalrights language differsfrom

modern subjective naturalrights "theory," n that the question ofindividual rights is never a matter of abstract lists of rights, the

protection of which is said to constitute the sole or primary pur-pose of civil government. Indeed, it is precisely these formulaethat reduce much of contemporarypoliticaldiscourse aboutrightsto shrill demands that one or another conflicting absolute moralclaim be honored.58 nAquinas's natural law framework the sub-

jectivenatural

rightsattributed o individuals are

specificinstances

of natural dominium,as it is used by individuals to direct theirlives toward natural and supernaturalends.

The rights a person might exercise cannotbe understood, andwould not have moral relevance, if they were not claimed in thecontext of a particular society at a particular time. Thus, libertyand individual rights should be understood to be goodsinstrumental to the development of individual human virtue and

social justice; with the understanding that neither human virtuenor justice could come into existence without the prior existenceof a human society. Abstract lists that attempt to codify human

rightsmay serve important legal and political functions in varioushistorical contexts, but such lists will always be a source ofconfusion in political theory.

58. Kenneth Pennington touches on a similar problem in his concludingchapterof ThePrinceand theLaw, n which he tracesthedevelopment of thenotionof the "untrammeledsovereignty"of theprincein the sixteenthcentury(pp.269-

90). Contemporary "rights-talk" depends upon the notion of "untrammeledindividual autonomy."It misunderstandshuman liberty because of its relianceon non-cognitive ethics, reducing liberty as it does to an unlimited freedom toact as one pleases, i.e. what John Locke called "license"(SecondTreatise,ec. 6).Aquinas' intellectual determinism, and Locke's invocation of "Reason,"couldserve to remind us thatgenuine human liberty requiresobedience to a reasoned

judgment of the conscience,not an undetermined will to power.

561

marriage, slavery, and natural rights in the political thought of aquinas

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