on the superiority of the new law with aquinas

8/13/2019 On the Superiority of the New Law With Aquinas

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Theology Today60 (2003): 170-85

ONTHESUPERIORITYOFTHENEWLAW

Stumbling through some Difficulties withThomas AquinasPAUL MARTENS

SincetheHolocaust, many Christians have soughttodistance themselves from anysortof systematicoreven accidental anti-Semitism.Onevery clear expressionofsuchadistancing occurred with

the promulgationofNostra Aetate(Declarationon theRelationshipoftheChurch tonon-Christian Religions)by theRoman Catholic Church nearthe conclusion of theVatican CouncilII in 1965. In this document,theCouncil states that"It istrue that the churchis the newpeopleofGod,yetthe Jews shouldnot bespokenofas rejectedoraccursedas ifthis followsfrom holy scripture."1While thisis aspecifically Catholic document, thereis almost universal agreement on this score among Christians of alldenominational backgroundsandIthink thisis agood thing, too. Nonetheless, there are better or worse (or should one say safer or moreperilous?) theological pathsfortraversing the transition from JudaismtoChristianity, fromthe OldTestamentto the NewTestament, from the oldlawto the new law.

Whydo weneedtorevisit this painful anddifficult question? Havewenot moved beyond this issue already? To answerthesecond question:yesandno. And to thefirst:Aslongas wecontinue seeking toretrievetheresourcesof ourrich Christian heritage, this difficult issue must remainmarkedon ourtheologicalmap, as Iwill attempt to illustrate througharecent appeal to Aquinas's description of the new law in theSummaTheologiae.

2The recurring nature of this theological issue is thevery

impetusforthis cautionary inquiry.


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In recent years,theCatholic moral theologian Servais Pinckaers,OPhassought to recapture the foundational uniqueness of the new law fortheology andethics.Adifficulty arises, however, in Pinckaers's heavyindebtednesstoThomas Aquinas's "TreatiseonLaw,"notbecause Aquinas is necessarily wrong aboutthe new law, butbecause Pinckaerstooeasily passes over the difficulties with appropriating one aspect of Aquinasuncritically:hisconstrualofthenew law as thetelosoftheold lawwithinthe "TreatiseonLaw."3

This essay first presents a brief accountof theoccasion that reignitedreflection on this issue. Next, itsketches aparenthetical examinationofAquinas's equivocal social policy concerningtheJewsfor thepurposeoffocusing theproblem withhis theological position. Third andmostimportant, it illustrates that, because of its teleological orientation, histheological understandingof the old lawleads to potentially perniciouspractical consequences for Jews that even Aquinas himself probablywould not have sanctioned.Inconclusion, then,Iencourage a returnto thenewlaw in atempered vein,a return that acknowledges Aquinas's idiosyncratic difficulties withthe oldlaw,yetseekstoproceed humblyin thespiritofVaticanIFsNostra Aetate.

EXCITEMENT ABOUT THE NEW LAW . . . AND A CAUTION

Following VaticanIFsstrong affirmation that people see and recognizethedemands of the divine law through conscience,4 some Catholic moraltheologians began articulating naturallaw asinternal (intuitiveorinspiredknowledgeofgoodandevil).Tothis end, Aquinas, throughhistreatmentofthe new law, hasbecome afruitful resource forexplicatinghow thegospelcan beunderstoodasboth divinelaw andinfused natural law. Withthe bestof intentions, Servais Pinckaers pointsto therecovery ofAquinas's treatiseon the new law as a way oflinkingtheHoly Spirit, Christ,and natural law.

5

For Pinckaers,theSermononthe Mountis notonly the heartofthenewlaw,butalso the summit andconvergenceof themoral teachingof theScriptures.6Two pivotal stepsaretaken here. First, Pinckaers appropriatesAquinas's understanding that theold law ismorally goodto theextent thatit reflects naturallaw.Second,heassumes that external observationsoftheold law are extraneousandanachronistic, while the new lawisfound intheheart where virtue flourishes.Inconstruing therelationship thisway, wecanseethat, following Vatican II, Pinckaershasvalidated naturallawandprivileged an internalized versionofdivine law,while also managingtoavoidanopenly critical stance towardthe old law.


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Pinckaers suggests a rather seamless link between natural law and thenew law without any need for, or perhaps even despite, the old law. But,is the transition really so seamless? Pinckaers passes over the issue soquickly and superficially that one might imagine that the old law does notdeserve mention (apart from a brief comment on the Decalogue). Aquinasdoes not make this easy transition. The old law posed serious problems forunderstanding both natural law and the new law, and his sophisticateddissection of the old law took up substantially more ink (eight questions,seventy-eight pages) than his synthesis of the new law (three questions,sixteen pages).

Of course, it is certainly possible that the conclusion Pinckaers reachesconcerning the new law is theologically sound, in and ofitself.Encouraging renewal of a Thomistic understanding of natural law through atransition from the old law to the new law in a quick and unqualifiedmanner is problematic, given that Aquinas's explication of the old lawseems to challenge the spirit and letter ofNostra Aetate. DisregardingAquinas as a resource for the discussion is by no means my intention.However, since Pinckaers himself claims that "the Summacan be compared to a cathedral"each part, self-contained as it may seem, is closelyrelated to the whole so that it cannot be understood or interpreted correctlyunless we are aware of where it fits in the overall plan7any easy appealto a particular part of Aquinas's 'Treatise on Law," without recognizing

either the complexity of the problem as Aquinas described it or thepotentially pernicious possibilities opened by his conclusions, wouldbe,atthe very least, irresponsible. Therefore, apart from the constructive possibilities Pinckaers draws from him, Aquinas's own problematics serve asan invaluable guide to the many difficulties in attempting to understand therelationship between the old law and the new law properly.

Lest one imagine that this is a purely theoretical issue, even cursoryattention to Jewish life under Christian domination in the thirteenthcentury bracingly reminds us that there are very real consequences to the

question at hand.8At present, there is an unresolved dispute surroundingAquinas's social policy concerning Jews, and it appears that, if a resolution can be provided in this arena, his attempt to define a social policy mayserve as the appropriate lens for interpreting his theological statementsconcerning the old law. To this end, we will look briefly at Aquinas'sexplicit social policy concerning Jews.

A VANTAGE POINT?: AQUINAS'S SOCIAL POLICY CONCERNING JEWS

From its inception, Christianity contrasted itself with Judaism. Althoughthe initial disagreement began as an intra-Jewish dialogue, it soon becamepolemical Centuries later when Christian empires emerged as political


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powers, the possibility for a violent solution to the disagreement presenteditself.Against this temptation, Augustine formulated a rather sophisticatedtheological case for the preservation of the "Jewish witness" that workedits way into the heart of the Christian tradition through the policy of PopeGregory the Great.9 In truth, Augustine's stance on Jews has its owndifficulties, but, for our purposes here, I will only briefly outline the centralthemes of the doctrine of "Jewish witness."10 On the one hand, theblindness and disbelief of Jews fulfill biblical predictions of their repudiation by God; yet their survival confirms the truth of Christianity. Why?Simply because it testifies to their punishment for rejecting and crucifyingJesus. Therefore, Jews are enslaved within Christendom, preserving thebooks of the Old Testament. In doing so, they not only offer proof thatChristians have not simply fabricated the prophecies foretelling Jesus,

they also guard the Christian books, serving as librarians and servants whocarry them but remaining utterly senseless to the continuation of salvationhistory, the christological interpretation of the Old Testament.11

"In thethirteenth century . . . theChristian world wasshockedtodiscoverthattheir Jewish neighborsdidnotpractice thereligion describedin the OldTestament.

99

On the more positive side, Jews are to be admired as they persevere intheir continuing observance of Jewish law, despite oppression by Gentilerulers. Further, Jewish survival refers both to protecting them from harmand supporting their religious practice. Finally, continuing to refute Judaism contributes directly to the vindication of Christianity, as the conversion of Jews will come in due course.12These themes ground theologically

the doctrine of the preservation of Jews, sustaining Augustine's teaching

9In promulgating theSicut ludaeis("As forJews'*)policy, Gregory intervened on at least sixoccasions to prevent violence against the Jews. His explicit policy stated: "We forbid thatthese said Hebrews be oppressed or afflicted in unreasonable fashion; but just as they arepermitted by Roman law to live, so may they maintain their observances as they have learntthem without any hindrance, as justice would dictate" (cited in Jeremy Cohen,Living

Letters of the Law: Ideas of the Jew in Medieval Christianity [Berkeley: University ofCalifornia Press, 1999], 75).10For this very simplified account, I essentially reiterate Jeremy Cohen's exposition in

Living Letters of the Law, 35-7. The scholarship on Augustine's relationship to Jews is

extensive, and Cohen provides an excellent introduction to the sources and complexities ofAugustine's position as well as the secondary literature. For another introductory assessment of Augustine's policy of Jewish witness see Michael Signer "Jews and Judaism " in


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that a Jewish presence outweighs the disadvantages of their living asinfidels among believers.

Although some form ofthispolicy was passed down from generation to

generation until the thirteenth century, its theological underpinnings werecontinually eroding. Unfortunately, a near-crisis situation emerged in thethirteenth century, because it was only then that the Christian world wasshocked to discover that their Jewish neighbors did not practice thereligion described in the Old Testament. Thus began a lengthy dispute onthe Talmudand by extension, the policy of preserving the Jewish witnesswhich really began in earnest with the Paris Disputation of 1240Heading the challenge to Jewish legitimacy were the newly developingmendicant movements, the most notable figures being the FranciscanNicholas Donin and the Dominicans Raymond de Peafort, his protgRaymond Marti, and Pablo Christiani.13Three years after the Talmud waspublicly burned in Paris in1242,Aquinas moved into the volatile Parisianatmosphere as a young Dominican student of Albert the Great. In the faceof rising anti-Jewish sentiments and outbreaks, Aquinas was eventuallyforced to address the social treatment of Jews directly.

Aquinas's position on treatment ofJewscan be found in essentially twoplaces: (1) thesecunda secundaeoftheSumma Theologiae(q. 10, a. 7-1and (2) a letter to Marguerite, the Duchess of Brabant, called "On theGovernment ofJews"{De RegimineIudaeorum),written late in his life.In the most comprehensive treatment in English on the relationship between Aquinas and the Jews, John Hood claims that the medieval theological understanding of Jews was ambiguous enoughtojustify relativelyoppressive as well as relatively tolerant social policies.15He suggests thatAquinas had a conservativemeaning not militantly aggressiveattitudetoward the Jews. Not only was his position "pedestrian, even banal," butHood claims that Aquinas's teaching was innovative in the direction oftolerance rather than persecution. Jeremy Cohen takes the other side of thedispute concerning Aquinas's social policy, arguing that Aquinas was part

of a misguided theological movement that saw twelfth-century tolerationof Jews give way to fourteenth-century persecution.

On one hand, it does appear that Hood's argument is sound. In theSumma Theologiae, Aquinas allows for open disputation with Jews, wita few considerations.

16He opens the door for daily communication with

13For a much fuller analysis of the role of the mendicant movements in the rising tide ofanti-Jewish sentiment, see Jeremy Cohen, The Friars and the Jews (Ithaca: CornelUniversity Press, 1982). For an impassioned account of the emerging awareness of theTalmud, see James Carroll, Constantine's Sword:The Church and the Jews: A Histor(Boston: Houghton Mifflin, 2001), 306-8.14Thomas Aquinas 'On the Government of Jews " in Aquinas: Selected Political Writin


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Jews,especially if there is urgent necessity for doing so.17

Aquinas alsostrongly denounces baptizing Jewish children against the will of theirparents.

18Perhaps most important, though, Aquinas, reiterating Augus

tine'sSicut Iudaeisview, maintains that Jews should be allowed to observe

their rites, which "of old, foreshadowed the truth of the faith which wehold." The good that follows is that "our very enemies bear witness to ourfaith, and that our faith is represented in a figure, so to speak."

19The case

for Aquinas's toleration is also affirmed by his call for relative tolerationin "On the Government of Jews."

20

"Aquinas's construalof Jews as 'enemies'betraysasignificant theologicalshift fromAugustine's understandingof Jews assimplyblindwitnesses."

On the other hand, his construal of Jews as "enemies" betrays asignificant theological shift from Augustine's understanding of Jews assimply blind witnesses.Acloser lookatAquinas's policy reveals that thereare movements afoot that militate against broadly construing it as tolerant.Perhaps the most problematic movement is his division of unbelievers intoheathen, heretics, and Jews.

21The heathen are most corrupt in mattersof

faith, and they are followed sequentially by Jews and heretics. Concerningrelation tofaith, however, heretics are in the worst position, because theyresist the faith after accepting it. Jews, too, are held to be more culpablethan heathen, because they accept thefigureof faith in the old law.

22Their

unbelief willfully rejects Christ and corrupts the old law by false interpretations.

23This notion of proportional culpability protected Jews from

outright charges of heresy and therefore from the treatment accorded toheretics. Conversely, this position held all Jews responsible for rejecting

17Ibid., a. 9.18Ibid., a. 12.19Ibid., a. 11.For this reason, Jews were to be allowed more latitude than other unbelievers.20"On the Government ofJews,"85-7. Here, Aquinas's toleration is rooted in his appeal tocustom, and for this reason he suggests that "it would seem more correct to forego what ispermitted by the law." Ibid., 85. See also H. Liebeschutz's construal of Aquinas's supportfor toleration on natural law grounds in "Judaism and Jewry in the Social Doctrine ofThomas Aquinas,"The Journal of Jewish Studies13 (1962): 74-6.21

Summatheologiae2-2, q. 10, a. 6.22Beryl Smalley helpfully points out Aquinas's separation oftheliteral andfiguraisenses ofScripture but it is important to note that he holds Jews or at least educated Jews (rather


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the fulfillment, in Christ, of their own figure of faith, and therefore theycould be designated "enemies" of Christ. With this ascription of willfurejection, Aquinas's Jews are significantly differentiated from Augustine'blind Jewish witnesses. James Carroll, following Cohen, rightly points outhat Aquinas turned Jews' "invincible ignorance" into deliberate defi

24

ance.The equivocal status of Jews becomes more apparent when Aquina

describes them as "subject to the Church," even in temporal matters.25Ithe doctrine ofSicut Iudaeishad been maintained, it was at a cost: Thchurch could rule Jews in a way that it could not rule other unbelieversAquinas asserts that Jews can be dispossessed of their belongings by thchurch. Even if this policy were justified as the church's stand agains

usury,26

Aquinas extends it to other matters, including releasing the slaveof Jews upon their confession of Christianity.27

Finally, the "banal" nature of his social policy toward Jews is seriouslycalled into question by his statements on whether Jews can be compelleto convert to Christianity. Of course, he asserts that Jews and heathen cancome to faith only of their own will. Yet he also suggests that preventingthem from hindering faith in Christby their blasphemies, evil persuasions, or open persecutions of Christiansmay be necessary and icertainly justified. He states: "It is for this reason that Christ's faithfu

often wage war with unbelievers, not indeed for the purpose of forcingthem to believe . . . but in order to prevent them from hindering the faithof Christ."28

With this qualified final step toward legitimating open violence againsunbelievers, Aquinas clearly holds an ambiguous position towards thtreatment of Jews.29 Depending on where one places the emphasis, hiposition may be construed as either relatively tolerant or sharply intolerant. H. Liebeschiitz's perceptive observation that it is not easy to find unity that provides definite character to Aquinas's observations on Jews i

well warranted.30

From this, it is apparent that Hood's claim that Aquinas's position is "pedestrian, even banal" is overly sympathetic, for evenHood admits that his radical position on usury, by itself, represented direct threat to the security of European Jews.31

Carroll,ConstantinesSword, 305-6.25

Summatheologiae2-2, q. 10, a. 10.26In 'On the Government ofJews,"the central question is usury (by Jews and others) anthe limits and conditions under which rulers may "recover" usury's unlawful gains.27

Summatheologiae2-2, q. 10, a. 10.28Ibid., a. 8.29Heretics receive a similarly harsh condemnation because, as former believers, they shoulbe submitted "even to bodily compulsion that they may fulfill what they have promised an


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Returning to Augustine, we see that the driving force behind his arguments for the preservation of the Jewish people was theological; hisposition on treatment of Jews made sense as an extension of his deeptheological commitment to their salvific and pedagogical usefulness and

relevance. Aquinas's ambiguous position on treatment of Jews reveals apotential incoherence at a deeper level: His commitment to the teaching ofthe church's policy ofSicut ludaeis forced him to demand toleration forJews,yet his own theological position, as developed in the treatise on theold law, undermines his occasional reiteration of toleration.

32His policy

on Jews, then, provides little positive guidance in interpreting his treatment on the old law. Therefore, the appeal to Aquinas's social policy failsto provide any unified position to serve as a hermeneutic lens for histheological claims, and we are left with his treatment of the old law on its

own terms.

BREAKING DOWN THE OLD LAW WITH AQUINAS

In Aquinas's "Treatise on Law," the fate of Jews is tied up with the oldlaw.

33 It demands inordinate explanation and qualification. It is sand

wiched between eternal law and its attendant inferior lawsnatural andhumanand the new law. Both bookends of the treatise are ideal in theirown way: eternal law, because it is a direct expression of divine wisdom,

34

and the new law, because no state of the present life can be more perfectthan that of the new law.

35But positing ideals that are distinctly separate

from the old law need not necessarily lead to theological rejection andsubjugation ofJews.Therefore, it is necessary to understand the particularly Thomistic movement toward and then away from the old law thatleaves its moral injunctions superceded, its ceremonial laws dead anddeadly,and its judicial laws teleologically completed in Christ.

From Natural Law to the OldLaw:Moral Precepts

Aquinas's first statement about the old law is that it "was good"pasttense. He explains that it was good because it accorded with reason

36and

much better for all of us had not been." Broadie, "Medieval Jewry through the Eyes ofAquinas," in Aquinas and the Problems of his Time, ed. G. Verbeke and D. Verhelst(Leuven: Leuven University Press, 1976), 68.32

This conclusion is cautioned by Marcel Dubois, who argues that, even if some ofAquinas's statements against Jews seem severe or pejorative, they should not be seen assigns of an anti-Judaism of principle. He is right that Aquinas had no explicit policy of

anti-Judaism, yet this article clarifies that the principles governing his account of salvationhistory can result in a coherent theology logically leading to anti-Judaism in practice. SeeDubois "Thomas Aquinas on the Place of the Jews in the Divine Plan " Immanuel 24/25


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because God gave it.37

Nevertheless, he is also quick to affirm that the old

law is imperfectly good: It offers no assistance in doing what it com

mands38

and it was actually given to the Jews by angels.39

Further,

Aquinas makes it absolutely clear that the Jews did not merit being chosen

for the old law in any way, for it was freely given by the grace of God, whois no respecter of persons.

40Why, then, was the old law givenand why

to this particular people?

''After the proclamation of the gospel, the ceremonial law is

not only dead in its usefulness for ordering people to God

but also deadly to its practitioners, because it actually

separates them from God."

Aquinas argues that God instilled natural law in us from the begin

ning.41

Somehow, habitual sin "darkened" our access to natural law,

requiring God to remedy human ignorance through revealed law. The first

version of this revealed law, the "old law," was entirely bound up with

natural law and was useful and good as it illuminated it. It was, however,

only a precursor to the real solution to the human problem, as thefollowing passage makes clear:

The Old Law showed forth the precepts of the natural law, and added certainprecepts of its own. Accordingly, as to those precepts of the natural lawcontained in the Old Law, all were bound to observe the Old Law; notbecause they belonged to the Old Law, but because they belonged to thenatural law. But as to those precepts that were added by the Old Law, theywere not binding on any save the Jewish people alone. The reason of this isbecause the Old Law . . . was given to the Jewish people, that it might receivea prerogative of holiness, in reverence for Christ Who was to be born of that

people. Now whatever laws are enacted for the special sanctification ofcertain ones, are binding on them alone.

42

This passage essentially paves the way for dividing the old law into moral

precepts, which reflect natural law, and ceremonial and judicial laws,

which do not. We will return to the latter shortly, but a few comments on

the firstthe moral preceptsare in order. First, linking the old law to

natural law reduces its value to a temporally limited pedagogy. Second,

placing natural law above the old law creates a multitude of interpretive

problems regarding literal observance of the moral precepts of the old law.


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Third, parts oftheold law that do not conform to natural law are irrelevantfor everyone but Jews. Of course, these observations, in and of themselves, do not constitute anti-Judaism, and these ideas may be necessary,

in some form or another, for any Christian interpretation of the OldTestament.

43

A further move that paves the way for the superiority of the new lawarises in summarizing the moral precepts of the old law in the Decalogue.The Decalogue is not merely the center ofthemoral content oftheold law,it isthe moral content of the old law; all moral precepts are reducible toit.

44The byproduct of this reduction, however, is a concomitant reduction

of the Old Testament's moral complexity and subtlety to a static list ofmoral precepts lending itself to easy caricaturization as pertaining only to

"the hand," but not the mind.45

Nevertheless, in spite of Aquinas's lukewarm embrace of the moral precepts articulated in the old law, they faremuch better than the ceremonial and judicial precepts.

Beyond Natural Law:Ceremonialand Judicial Precepts

Aquinas further divides those precepts of the old law that cannot bereduced to the Decalogue into ceremonial and judicial. These two share aparticularityboth apply only to Jewsyet they differ in their function.

The ceremonial precepts extend and qualify the injunction to "worshipGod." ForAquinas,they direct humans in relation to God.46Because Jewsknew that divine truth was not manifest in itself, the old law containsobservances that foreshadow Christfiguratively.

47As we will see, thetelos

of the ceremonial precepts becomes fundamentally important in the unfolding logic of the treatise.

The old law was good and well ordered. One of the requirements ofbeing well ordered is that all things are ordained to their due end.

48The

goals of the ceremonial precepts were: first, to order worship for that

particular time and second, to foreshadow Christ. The first goal demandsliteral observance, while the second demands spiritual observance. Aquinas was concerned primarily with the second goal. Ultimately, the meaning oftheceremonial precepts is found in thefiguraisense. Smalley rightlyhighlights the fact that, although the ceremonial precepts may haveab-

43Pertinent to the relationship between the old law and natural law is their pedagogicalfunction. Aquinas clearly reiterates the Augustinian theme that the law is the occasion ofdeath, while the moral precepts, like natural law, prescribe what is good without furnishinggrace for its fulfillment. Ibid., q. 99, a. 2. In this respect, the old law is closer than the newlaw to natural law.44Ibid q 100 a 3


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stract literal causes, the real causes are only figurai.49 Therefore, theultimate fate oftheceremonial precepts is tied directly to thefiguraicauseor Christ. Since the ceremonial and the judicial precepts share at least thismuch, an introduction tothejudicial precepts is expedient before drawingout the implications of Aquinas's definition of the ceremonial law.

Unlike the ceremonial precepts, the judicial precepts were given inorder to direct relationships among people in Jewish society, not to directpeople to God.50Like the ceremonial precepts, however, they were givento a specific people for a specific time. Further, Aquinas divided the

judicial law into literal and figurai senses, as he did the ceremonial. AgainAquinas argues that the telosof judicial law is fundamentally important:

In this waythejudicial precepts oftheold law arefigurative.For they werenot instituted for the purpose ofbeingfigurative,but in order that they mightregulate the state ofthatpeople accordingto justiceandequity.Neverthelessthey did foreshadow something consequently . . . the entire state of thatpeople, who were directed by these precepts, wasfigurative.... The Jewishpeople were chosen by God that Christ mightbeborn ofthem.Consequentlytheentirestateofthat people had to be propheticandfigurative....Thus,toothe wars and deeds of this people are expounded in a mystical sense.51

Althoughthejudicial laws, themselves, were not figurai, performing themyielded a society whose entire purpose was to point to Christ. But whathappens to the ceremonial and judicial precepts when Christ arrives?

Moreover, what happens to the Jewish people? The answers to thesequestions reveal the problem with Aquinas's theological explanation of theold law, for it appears to preclude any purpose for the continuation ofGod's covenant with the people addressed by the old law.

The Heart oftheMatter:TheAdvent oftheNew Law and the Cessatioof the Old

According to Aquinas, both the ceremonial and the judicial law have anend. Turning first to the ceremonial precepts, Paul's letter to the Galatians

significantly shapes Aquinas's conception of the transition from the oldlaw to the new.52 Using circumcision as the archetypal example of the

49Smalley,Studies in MedievalThought, 172. It is also important to note that, in their liteobservance, the ceremonial laws had no power of justification. Summatheologiae 1-2, q103,a. 2.50Judicial precepts are distinct from natural law; they are extrapolations and additions thatcan be derived from natural law, and their binding force, therefore, is not found in reasonbut in virtue of their institution by God.Summa theologiae1-2, q. 99, a.5.Strictly speaking

judicial precepts apply not only in the context of a Jewish state, but also to interpersonal

relations in a less formal Jewish society. Ibid., q. 104, a. 1.51Ibid., a. 2.52It cannot be stressed enough that Aquinas is essentially mediating a battle of scriptural


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ceremonial law, Aquinas quotes Paul: "If you are circumcised, Christ shallprofit you nothing" (Gal 5.2). He concludes that "nothing save mortal sinhinders us from receiving Christ's fruit. Therefore, since Christ's Passionit is a mortal sin to be circumcised, or to observe the other legal ceremo

nies."53He later elaborates a tripartite view of salvific history that allowsthe apostles to escape from this conclusion.54He is absolutely clear that,after the proclamation ofthegospel, ceremonial law is not only dead in itsusefulness for ordering people to God but also deadly to its practitioners,because it actually separates them from God.

Mortal sin can be committed willfully only with full knowledge andsufficient reflection, so one might assume that Aquinas's condemnation ofceremonial precepts refers to their observance by Christians. This assumption, however, is cast into doubt by earlier assertions that Jews, or at least

Jewish intellectuals, are fully cognizant of the figure to which theirceremonial precepts point. For this reason, Cohen concludes that Aquinasis in fact claiming that those educated Jews who continued to observe theirceremonial law for its own sake did sin mortally.55 As we have seenbefore, in the ambiguity of Aquinas's thought about heretics and Jews,here, too, it is difficult to determine whether Aquinas intends this designation of "mortal sin" definitively to apply to Jews. One thing, however,is clear: Aquinas cannot coherently justify theologically a social policythat preserves a celebrating Jewish religious community self-consciously

bound together by acts that he considers, from a Christian perspective,mortal sins.

The problem, for Aquinas, is that the ceremonial precepts find theirfulfillment in Christ and, therefore, are voided by his Passion. Continuedpractice implies that Christ has not yet come. Construing the ceremonialprecepts in this teleological way, therefore, undercuts the usefulness of acontinuing Jewish witness affirmed in Augustine's theology. Why? Because protecting the Jews in their willful, self-conscious, and continualattempts at holiness through ceremonial observances that signify the fact

that Christ has not yet come undermines the purpose of protecting Jews assenseless and immobile witnesses or milestones pointing forward toChrist. Yet, the conservative aspects of Aquinas's policyat least as far asthey are theologically rootedrest on the residual Augustinian notion thatJews blindly bear witness to Christian faith. This juxtaposition is uncomfortable indeed.

The more offensive possibilities allowed by his policy, on the otherhand, could be justified by the need to protect Christians from an attack ontheir faith through the continued practice of ceremonies (heathen, hereti-

Summa theologiae 1-2 q 103 a 4


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cal, and Jewish) that directly challenge the significance of Christ's Pas

sion. This dilemma cannot easily be resolved, especially when coupled

with Aquinas's open acquiescence to violence as a means of opposing

those who hinder Christianity. Unfortunately for the Jews, Aquinas's

analysis of the judicial precepts in light of the new law only exacerbates

the threat to the practical existence of the Sicut Iudaeis policy.

Turning, then, to the judicial precepts, we find many formal similarities

between the ceremonial and judicial precepts in the old law. An important

particularity of the judicial precepts, however, lies in their intent to order

the prophetic society into which Christ was to be born. Borrowing from

Hebrews 7:12, Aquinas argues that, since the priesthood was transferred

from Aaron to Christ, a transference of the law is also necessary.56

The

conclusion Aquinas draws is that the judicial precepts are no longer in

force: The coming of Christ has annulled them.

"ForAquinas, . . . the continued existence of Jewish

structures for mediating justice and directing relations

among neighborsin short, Jewish societiessignifies that

Christ has not come."

It might seem that the indictment of judicial precepts is less severe than

that leveled against the ceremonial, for Aquinas claims only that the

judicial precepts are dead (no longer binding), not deadly. For example, a

medieval king's judicial law may coincidentally correspond with certain

aspects of the judicial precepts of the old law without committing mortal

sin, so long as it is not imposed as though it were derived from the old law

(no doubt because of the old law's partial participation in the natural

law).57 This distinction, however, proves superficial as Aquinas's indict

ment progressively moves from simply rejecting the compulsion of judi

cial precepts to the more severe position of disassembling the foundation

for the collective identity of the Jewish people.

The following passage reveals Aquinas's systematic progression from

annulment of the old law to the inevitable disassembly of any form of

Jewish society that remains bound to these judicial precepts:

Consequently, when the state of that people changed with the coming ofChrist,thejudicial precepts lost their binding force.... Since, however, these

judicial precepts are instituted, not for the purpose of beingfigures,but for theperformance of certain deeds, the observance thereof is not prejudicial to the

h f f i h B h i i f b i h h h b d


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Thomas Aquinas 183

bythe Law, isprejudicialto thetruthoffaith:becauseit would followthat theformerstateofthe peoplestill lasts, and thatChrist has notyetcome.... Butafter the coming of Christ, there had to be a change in the state of that people,so that in Christ there was no distinction between the Gentile and the Jew, as

there had been before. For this reason the judicial precepts needed to bechanged also.58

The problem, for Aquinas, is simply that the continued existence of Jewish

structures for mediating justice and directing relations among neigh

borsin short, Jewish societiessignifies that Christ has not come.

Therefore, it logically follows, for Aquinas, that it is providential and

necessary that the specific national identity known as Israel must disappear

following the coming of Christ. Further, in employing the imagery of

Galatians 3:28 for a political endthere shall be no distinction between

Jew and GentileAquinas lays the theological groundwork for the permanent dissolution of Jewish communities (in the full sense of the term)

that seek to remain faithful to the old law.59

In short, there shall be no

social differentiation between Jewish and Gentile peoples; or, there shall

be no distinct Jewish society organized according to the old law.

Of course, suggesting that this is finally what Aquinas pragmatically

would recommend almost certainly overreads the texts, for he stops short

of elaborating the implications of this foundation. Nonetheless, taking

Aquinas's theological groundwork to its logical conclusion yields the

possibility that Christian society must supercede and incorporate all Jewsinto a single, unified Christian society.

60Although Aquinas acknowledges

that no one comesio faith against their will, the teleology of the judicial

precepts seems to provide the necessary groundwork for demanding

Jewish conformity to all aspects of Christian society (apart from a narrow

definition of faith), including those that might violate the judicial precepts

of the old law. If this conclusion is correct and cannot be overridden by

other theological claims, then it, too, actively militates against protecting

Jews as witnesses to Christian faith or even protecting Jewish communi

ties for any reason.

A RETURN TO THE NEW LAW IN A NEW VEIN: CONCLUDING COMMENTS

The permanent dissolution of Jewish society and the annulment of Jewish

ceremonies appear to be reinforced by Aquinas's division of salvation

history, of which he openly declares that "no other state will succeed this

state of the New Law."61

A case could probably be made that the tradi

tional Sicut Iudaeis policywhich depended upon the assumption that

Jews always blindly prefigured the New Testamentcould no longer


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Theology Today

apply to the thirteenth-century Jews because they acted and believed in amanner that was sufficiently different from the Jews oftheOld Testament.Nevertheless, Aquinas does not argue this case, and his final claim forsupremacy of the Christian state seems to move beyond benignity towardJews to contradict Paul's letter to the Romans. Though Aquinas citesAugustine frequently, it is interesting to note what he also omits. In apolemical treatise entitled "In Answer to the Jews," Augustine sets asurprisingly different tone. He states:

Let us proclaim [the divine testimonies] with great love for the Jews. Let usnot proudly glory against the broken branches; let us rather reflect by whosegrace it is, and by much mercy, and on what root, we have been engrafted.Then, not savoring of pride, but with a deep sense ofhumility,not insultingwith presumption, but rejoicing with trembling, let us say: "Come ye and let

us walk in the light of the Lord."62

In interpreting the ceremonial and judicial precepts teleologically, Aquinas's "Treatise on Law" seems to have lost the Pauline and Augustinianpossibility that the engrafted wild olive branches can be broken from thetree as easily as the original branches.63In short, for Aquinas, the root isdead and no longer provides any nourishment for the engrafted branch.

Does Augustine have any doubt as to the supremacy of the new law?No, and he presents his own set of problems for the Jews. Yet, as thepassage above illustrates, he affirms that there must be room for both aproper respect for God's chosen people and the possibility that theystillare God's chosen people in some way.64Aquinas, on the other hand, hasno room for respecting Jews as a socially distinct people; there is virtuallynothing positive in the designation "Jewish." One might expect him atleast to praise them for their moral precepts, but even in this sphere hedeems their observance imperfect and superceded by the instinctive graspof the natural law (complete with divine assistance) presented in the newlaw. At best, Aquinas is equivocally tolerant ofJews,and, even ifheis, histheological reflection on the old law might easily lend itself to agendas that

oppose the preservation of the Jewish witness.65Whether later attacks onJews are self-consciously indebted to Aquinas or not is an importantquestion, yet even if they are not, it appears thatAquinascontributes, in hisown way, to apraeparatio antisemitica(anti-Semitic preparation) of sorts

Augustine, "In Answer to the Jews," inTreatises on MarriageandOtherSubjects,vol. 2inThe Fathersof the Church: A NewTranslation(New York: Fathers oftheChurch, 1955385-414, 414.63

Aquinas's New Testament commentaries may reveal a different interpretation of this

passage, yet it appears this is the final position he falls into in the "Treatise on Law."4CompareNostra Aetateno. 4: "the apostle Paul maintains that the Jews remain very dear

to God for the sake of the patriarchs since God does not take back the gifts he bestowed


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Thomas Aquinas 185

Aquinas does not forthrightly claim that Jews are rejected or accursed,yet he appears to contradictNostra Aetatein his treatment of them, bothas a celebrating religious body and as a judicially organized community.One cannot overlook the fact that this body of thought is systematicallyintegrated into his treatise on the old law, thereby providing a collection ofconclusions to ground the theological and conceptual introduction to thenew law. Therefore, in response to Pinckaers's earlier enthusiastic assertions,it appears that moral theologians who are concerned with drawingupon Aquinas's understanding of the new law should be duly cautionedthat it is at least partially organized and defined to respond polemically andoppositionally to the old law as tenuous and temporary.66Again, this is notto say that Aquinas's reflections on the new law cannot be a very fruitfulresource for theology, and I applaud Pinckaers's recent attempts to use

them so. However, great care must be taken in appropriating directly fromthe "Treatise on Law." It is impossible to overlook the deeply imbeddedtheological categories and assumptions that threaten to undermine Paul,Augustine, the claims of the Roman Catholic Church'sNostra Aetateand the continuing existence of Jews.

ABSTRACT

In recent years, Servais Pinckaers has renewed interest in the importance ofthe new law for theology and ethics. He is deeply indebted to Aquinas'sconstrual of the new law, yet a close look at Aquinas's position reveals thatconstruing the new law as the telos of the old law can result in difficultconsequences for Christians who believe, with Vatican II, that Jews shouldnot be spoken of as rejected or accursed. Pinckaers avoids the most challenging aspects of Aquinas's position, but he also ignores its potentiallyproblematic nature. This cautionary inquiry illustrates why tremendous caremust be taken in theologically engaging Aquinas 's articulation of the new lawin light of its assumptions concerning the old law and medieval Jews.


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