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W1761786290 abstract "The Thomist 63 (1999): 217-40 DEPOSITUM GI.ADIUS NON DEBET RESTITUI FURIOSO: PRECEPTS, SYNDERESIS, AND VIRTUES IN SAINT THOMAS AQUINAS ANA MARTA GoNzALEZ University ofNavarra Navarra, Spain CAREFUL READERS of Thomas Aquinas's work soon become aware of his liking for using the same or similar examples to illustrate all kinds of argument. This method actually makes the researcher's task easier, as he can set out from the assumption that the subjects explained using the same examples are in some way connected. Moreover, if we look further into the history of these correlations, we often find that they provide an important key for problems that may arise from the text. This is the case when we seek out all the occasions on which Aquinas uses a particular example to shed light on the controversial subject of the immutability of natural law. The example in question has a long history, going back to the first book of Plato's Republic; Aquinas usually transcribes it as depositum gladius non debet restitui furioso, although some variations also occur. We shall first look at the context in which Plato situates this idea, then go on to examine the occasions on which Aquinas draws on it: in the Summa, when discussing the question as to whether the natural law is the same for everyone; in his Commentary on the Nicomachean Ethics, when he explains in what sense natural law may change, and in what sense it remains the same; and finally, where he examines the virtues of gnome and epieikeia, also in the Summa. 217 218 ANA MARTA GONzALEZ I. PLATO'S TEXT: REPUBLIC 331C-332A The first book of the Republic, the Thrasymachus, deals in a general way with justice. After Cephalus speaks, Socrates responds by asking for an explanation of his definition of justice: An admirable sentiment, Cephalus, said I. But speaking of this very thing, justice, are we to affirm thus without qualification that it is truthtelling and paying back what one has received from anyone, or may these very actions sometimes be just and sometimes unjust? I mean, for example, as everyone I presume would admit, if one took over weapons from a friend who was in his right mind and then the lender should go mad and demand them back, that we ought not to return them in that case and that he who did so return them would not be acting justly-nor yet would he who chose to speak nothing but the truth to one who was in that state.1 This is the example that Aquinas was to appropriate and apply to the issues mentioned above concerning the immutability of natural law and the nature of justice: depositum gladius non debet restitui furioso. It is therefore interesting to analyze this with care, especially Socrates' query, Are we to affirm thus without qualification that it is truth-telling and paying back what one has received from anyone, or may these very actions sometimes be just and sometimes unjust? In this context, it is useful to bear in mind a nuance in the Greek text which the English translation does not always make clear. What Socrates says is not that the actions of returning what is owed and telling the truth may sometimes be just or unjust. What he says is that these actions are sometimes done justly, sometimes unjustly.2 As we can infer from the text, the counterpoint is set up between an excessively casuistical view of justice, as shown by the condition in all cases, and a view of justice as a way of acting, which is reflected in the use of adverbs: things that are done justly 1 Plato, Republic l.33 lcl-12. 2 TOUTO o' mh6, Tliv OlKQIOOUVflV, rr6n:pa T~V aMj0nav aUTO ~aoµi:v ELVOI arr7u7ic; ouTWc; Kai TO arro0106vat av Ttc; Tl rrapa TOU Aclj3i:J, ~Kai aUTcl mum fonv EVlOTE µEV OtKa(wc;, EVloTE of. aOIKwc; 1TOtETv; olov TOlOVOE AEyw· rr~ av 1TOU ElrrOl, d nc; Aclj301 napa (AOU avopOc; awpOVoUVTCJ<; OlTAa, El µavcic; CtnatTOl, OTI oUTE )(p~ Tel TOtaUTa anoo106vat, oUTE O(Katoc; av Elfl 6 CtlTOOlOOIX;, ooo' au npOc; TOV OUTWc; £xovrn navrn tett.wv TaAf18ij Atynv (ibid.). DEPOSITUM GLADIUS 219 and unjustly. This view, as far as everything else goes, is valid not just for justice but in general for every other virtue. For the possession of a virtue means acting in a certain way, rather than materially carrying out certain actions. Plato himself insisted on this on other occasions, as in the l.Aches, when he speaks of valor.3 He uses this to draw attention to the shortcomings of a casuistic definition of the virtues: there are actions that generally show certain virtues, but that might in some cases not do so. Plato thereby diverts attention from the matter to the form of the act. Aristotle was to emphasize this point more clearly by associating the form of acts with the moral disposition of the agent: actions are called just and temperate when not only are they such that the just or temperate man may do them, but also the man who does them does them as just and temperate men do them.4 In the Republic, however, Socrates perseveres with the suggestion that the definition of justice should be modified, because he understands that the idea of justice must include all the acts of this virtue. Thus, according to Socrates, this is not the definition of justice-to tell the truth and return what one has received,5 as on occasions acting justly means that one should not give back what one has received. But Polemarchus, his conversation partner at this point, opposes this. Calling on Simonides' authority, Polemarchus insists that the just action is to return to everyone what one owes. Without passing judgementon Simonides' words, Socrates can do no more than repeat his difficulty concerning the way of interpreting these words: I must admit, said I, that it is not easy to disbelieve Simonides. For he is a wise and inspired man. But just what he may mean by this you, Polemarchus, doubtless know, but I do not. Obviously he does not mean what we were just speaking of, this return of a deposit to anyone whomsoever even if he asks it back when not in his right mind. And yet what the man deposited is due to him in a sense, is it not?6 3 Plato, Laches 190e2ff. 4 Aristotle, Nicomachean Ethics 2.4.l 105b6-9. 5 Plato, Republic l.331dl-2. 6 Ibid. 33le8-16. 220 ANA MARTA GONzALEZ The difficulty outlined by Socrates finds no satisfactory solution in the dialogue. In other places, Plato sets out the problem in a slightly different way: conflating the virtues and the arts almost entirely,7 he understands that both have a single proper end,8 which requires in practice the intervention of a royal art that can direct the use of both in concrete cases.9 This royal art consists of knowing how to use, which partly recalls Aristotle's concept of prudence. It seems clear that this knowing how to use is what Socrates felt the lack of in Simonides' definition of justice, if it was supposed to apply to all possible cases. Aristotle resolved this problem in his own way: when he introduces the distinction between natural or imperfect virtue (which can be defined as the simple tendency to good works) and moral or perfect virtue, he points out that the latter cannot exist without prudence.10 To return to the main point, in the light of the above, what interests us here is to examine Aquinas's use of the example quoted by Socrates to see how far the philosophical issues latent in this example afford us a deeper understanding ofthe frequently contested Thomist doctrine of natural law.11 II. PRECEPTS AND PRACTICAL WISDOM One of the places in which this example appears is in STh I-II, q. 94, a. 4, illustrating the sense in which natural law can be said to vary. What this article asks is whether the natural law is the same for all. To answer this question, Aquinas begins by establishing one basic thesis as his starting point: to the natural law belong all those things to which man has a natural inclination, 7 Ibid. 332dl-2. 8 Plato, Cratylus 386e8-387b9. 9 Plato, Euthydemus 278e4-282a9; 288e-292e. See Volker Hildebrandt, Virtutis non est virtus: ein scholastischer Lehrsatz zur naturgemiissen Bestimmung vernunftigen Handelns in seiner Vorgeschichte (Frankfurt am Main: Lang, 1989). 10 Aristotle, Nicomachean Ethics 6.13.1144b31. 11 See Robert A. Gahl, From the Virtue of a Fragile Good to a Narrative Account of Natural Law, International Philosophical Quarterly 37 (1997): 457-72. DEPOSIIUM GIADIUS 221 among which there figures as proper to man the fact that he inclines towards acting according to reason.12 As Aquinas himself states, reason proceeds by setting out from common principles and reaching proper, more specific conclusions , though this takes place in one way for speculative reason, and in another for practical reason. After comparing the way these two types of reason proceed, he concludes that, in contrast to what happens on the speculative level, where the conclusions enjoy the same universality as the premises, on the practical level the conclusions (secondary precepts)13 do not always have the same validity in all circumstances. In fact, Aquinas says, if we are talking about the particular conclusions ofpractical reason, truth or rectitude is not the same in all, nor is it equally known in those in which it is the same.14 To illustrate this point, he brings in the example of the depositum: Thus it is right and true for all to act according to reason. And from this principle it follows as a proper conclusion that goods entrusted to another should be restored to their owner. Now this is true for the majority of cases, but it may happen in a particular case that it would be injurious, and therefore unreasonable, to restore goods held in trust; for instance if they are claimed for the purpose of fighting against one's country.15 According to Aquinas, then, the secondary precepts of natural law may fail or miscarry ut in paucioribus not only as far as knowledge of them is concerned (as in the case of people whose inadequate disposition means that they never manage to understand that some precept is good)16 but also as far as their reliability is concerned, in the same way that generable and corruptible 12 STh 1-11, q. 94, a. 4. 13 See R. A. Armstrong, Primary and Secondary Precepts in Thomistic Natural Law Teaching (Den Haag: Martinus Nijhoff, 1966). 14 STh 1-11, q. 94, a. 4. IS Ibid. 16 Et hoc propter hoc quod aliqui habent depravatam rationem ex pasione, seu ex mala consuetudine, seu ex mala habitudine naturae; sicut apud Germanos olim latrocinium non reputabatur iniquum, cum tamen si expresse contra legem naturae, ut refert Iulius Caesar, in libro de hello Gallico (STh 1-11, q. 94, a. 4). 222 ANA MARTA GONzALEZ natures are sometimes defective because of some impediment.17 (The reference to the mutability of generable and corruptible natures therefore constitutes a key for interpreting correctly the variable character of natural law. We shall return to this subject below.) Nonetheless, this lack of reliability should not be attributed so much to the precept considered in itself as to the precept seen through its application to action. This variation has taken place in its turn only because, in the action which that precept was designed to regulate, a circumstance has been introduced that notably modifies the object of the action itself, to the extent that this action can no longer be regarded in the first instance or exclusively as yet another case of the same precept, at least as long as the perturbing circumstances are present. While circumstances of this kind remain, the action has to be governed by a different precept which practical reason must determine.18 The fact that the secondary precepts of natural law are open to erroneous application demonstrates that this law cannot be reduced to a code of regulations, as this would be of less practical use. If natural law is to govern action effectively, it must provide us with certain knowledge as to what precept should be used in any particular case. If not, then how can we determine which precept to use? We must return here to the classic answer that prudence , seen as a very special way of knowing how to use that does not exist without moral virtue, was for Aristotle the practical criterion governing action: only prudence equips us to discern in each case which precept (or habit) it is appropriate to use.19 For Aquinas too, prudence is at once an intellectual and a moral virtue: an intellectual one because it is a way of knowing, and a moral one because it does not exist without the correctness 17 sicut etiam naturae generabiles et corruptibiles deficiunt ut in paucioribus, propter impedimenta (ibid.). 18 These are not circumstances that belong to the sources of the morality of a given action, aside from its object and its end, but rather circumstances that, by modifying the object of the act, place it under a different moral species. 19 Although I do not share all his criticisms and analyses, see D. M. Nelson, The Priority ofPrudence: Virtue and Natural Law in Thomas Aquinas and the Implications for modern Ethics (University Park, Pa.: The Pennsylvania University Press, 1992). DEPOSITVM GLADIUS 223 of appetite that is the product of moral virtue.20 Like Aristotle, Aquinas maintains that prudence is an acquired virtue,21 and he frames Aristotle's problem concerning moral learning in a similar way: if moral virtue cannot exist without prudence, and prudence cannot exist without moral virtue, and if all these virtues are acquired, then how can someone act righteously? In this context, it seems timely to underscore the fact that when we call prudence an acquired virtue, this does not rule out the previous existence of an imperfect form of prudence, that is, a more or less steady natural inclination to direct one's own conduct in accordance with reason. According to Aristotle, this inclination exists. It is an inclination that does not consist simply of acting in accordance with a morally neutral reason,22 as, for him, acting according to reason is the same as acting according to the virtues, to which we have a natural aptitude. However, speaking of an inclination within the reason (the reason being for Aristotle a potency for opposites)23 presupposes the existence of something that robs reason of its original indeterminateness. Aristotle himself did not discuss this, but Aquinas alludes to the problem when he mentions the existence of a natural habit of the reason known as synderesis,24 which he refers to elsewhere, significantly, as the nursery of virtues. Of course, the idea of a natural habit implies more when it comes to finding a basis for ethics. What interests us here, however , is that in the operational order Aquinas attributes to synderesis the function of prescribing intellectually the ends of the virtues of practical reason, thus clarifying a point that Aristotle left implicit.25 Thanks to synderesis, then, practical reason knows 20 This was to be modified in Duns Scotus's writing, as Professor Fernando Inciarte (Munster) has shown me. 21 See P. Hall, Narrative and the Natural Law: An Interpretation of Thomistic Ethics (Notre Dame: University of Notre Dame Press, 1994), 94. 22 As could be understood from the explanation by A. Gomez Lobo in The ergon Inference, Phronesis 34 (1989): 170-84. 23 Aristotle, Metaphysics 9.2.5. 24 See STh 1-11, q. 49, a. 4, ad 3; De Verit., q. 16, a. 2, ad 4. 25 The idea that Aquinas's moral thinking attempts in part to address the problems Aristotle had left open, making explicit matters that in Aristotle were only implicit, is the main thesis of the book by M. Rhonheimer, Praktische Vernunft und die Vernilnftigkeit der 224 ANA MARTA GONzALEZ two important things when the time comes to act: that it must act in accord with the ends of the virtues, and that it must avoid acts that are contrary to such ends. This knowledge of the principles is what makes practical learning possible later, in that it enables people to acquire moral virtues and prudence.26 Moreover, this knowledge of the principles is what the prudent man has managed to incorporate naturally into his actions. In Aquinas's thinking, it is synderesis that makes it possible to refer to natural law as something greater than a collection of codifiable precepts. Of course, every law, especially the natural law, is something that belongs to reason27 and not just a habit. For this reason, it consists properly speaking of a series of precepts ordered towards the human good.28 However, these precepts are promulgated by practical reason to regulate our concrete action in accordance with certain principles that we know through a natural habit. It is this natural habit which so to speak feeds the practical reason, guiding it in all cases. The fact that synderesis is a habit means, among other things, that the judicial formulation of its contents, in the form of a code of precepts, will never be exhaustive. At most, it will be able to indicate the normal route by which the virtues are acquired, and the actions that never accompany virtue. All this means that the precepts alone, without synderesis, do not constitute a definitive criterion. There are times when a general precept must not be applied, as in the case of the borrowed sword. To recognize such cases, it is not enough to have a selection of precepts: what is needed is the practical wisdom proper to the prudent man, who can judge concrete actions in the light of the principles. The formulation of the precepts is always a later task, which, as has occasionally been noted, Aquinas does not credit with particular importance. That is why he does not seem concerned to enumerate them. All this shows us that if we want to understand Praxis: Handlungstheorie beiThomas von Aquin in ihrer Entstehungausdem Problemkontext der aristotelischen Ethik (Berlin: Akademie Verlag, 1994). 26 See D. Westberg, Right Practical Reason: Aristotle, Action and Prudence in Aquinas (Oxford: Clarendon Press, 1994). 27 See ITh I-II, q. 90, a. 1; q. 91, a. 1; q. 94, a. 1. 28 See ITh I-II, q. 94, a. 1. M. Rhonheimer emphasizes this: see Naturals Grund/age der Moral, 67-76. DEPOSITVM GLADIUS 225 the way that Aquinas sees the natural law, we must emphasize the connection of precepts through a form of wisdom responsible for directing action. Ill. MUTABILITY AND lMMUTABILITY OF NATURAL LAW To shed further light on the connection of the precepts through wisdom, we can look at another passage referring to Plato's example, this time from the Commentary on the Nicomachean Ethics. This is the commentary on the text by Aristotle in which the latter asserts that with us there is something that is just even by nature, yet all of it is changeable.29 Aquinas, like Aristotle before him, understands that it is important to dispute this point, as the thinkers who reject the existence of something that is by nature just use this as support for their arguments, maintaining that everything that is whatever it is by nature is immutable, whereas what is just varies on occasions, as in the case of the borrowed sword. In fact, nothing would seem to be more just than returning what has been borrowed to its owner, and yet you do not have to return a borrowed sword to a madman, or money for arms to your country's enemy.30 To answer this objection, Aquinas begins by distinguishing two types of nature: the divine nature, which is immutable throughout , and human nature, which dwells among corruptible things and which thus lies halfway between the two spheres: For us men who live among corruptible things, there is certainly something natural, yet everything in us is mutable, either per se, like having feet, or per accidens, like having a tunic, and similarly, even though everything that is just 29 Aristotle, Nicomachean Ethics 5.7.1134b30. According to Jaffa this is one of the most mysterious passages in the Nicomachean Ethics. See H. V. Jaffa, Thomism and Aristotelianism:A Study ofthe Commentary by Thomas Aquinas on the Nicomachean Ethics (Chicago: University of Chicago Press, 1952), 179. 30 Nihil enim videtur esse magis iustum quam quod deponenti depositum reddatur et tamen non est reddendum depositum furioso reposcenti gladium vel proditori patriae reposcenti pecunias ad arma (V Ethic., lect. 12 [1134b24], 147-53). 226 ANA MARTA GONzALEZ for us is in some sense mutable, it is also true that some of these things are just by nature.31 It is important to distinguish between what is mutable per se and what is mutable per accidens, because Aquinas's answer goes along the lines of asserting the mutability peraccidens of what is just by nature. In fact, one of the features of what is natural or secundum naturam proper to corruptible natures is that it occurs ut in pluribus but may not be borne out ut in paucioribus. According to Aquinas, the secondary precepts of natural law are secundum naturam in this sense, like generable, corruptible natures, in such a way that they are mutable per accidens: It is manifest that also in other things that are natural for us the same determination is true as in the case of naturally just things; since those things that are natural for us are certainly the same most of the time, but occasionally fail. For example, it is natural for the right side to be stronger than the left, even though there are some people whose left hand is as strong as the right and who become ambidextrous. Similarly, even those things which are naturally just, like returning a deposit, should be observed most of the time, but on occasions change.32 The above text hints at the possibility of a change in human nature, something that Aquinas states more clearly elsewhere. What I would like to do here is consider a text from the Secunda Secundae referring to the mutability of human nature, which then goes on to use the example of the borrowed sword: 31 Apud nos homines, qui inter res corruptibiles sumus, est aliquid quidem secundum naturam, et tamen quicquid est in nobis est mutabile vel per se vel per accidens; nihilominus tamen est in nobis aliquid naturale, sicut habere pedes, et aliquid non naturale, sicut habere tunicam, et sic etiam, licet omnia quae sunt apud nosiusta aliqualiter moveantur, nihilominus tamen quaedam eorum sunt naturaliter iusta (V Ethic., lect. 12 [1134b27], 160-68). 32 Manifestum esse quod etiam in aliis naturalibus quae sunt apud nos eadem determinatio congruit sicut etin naturaliter iustis; ea enim quae sunt naturalia apud nos, sunt quidem eodem modo ut in pluribus, sed ut in paucioribus deficiunt, sicut naturale est quod pars dexterasit vigorosior quamsinistra et hoc in pluribus habet veritatem, et tamen contingit ut in paucioribus aliquos fieri ambidextros qui sinistram manum habent ita valentem ut dexteram; ita etiam et ea quae sunt naturaliter iusta, utputa depositum esse reddendum, ut in pluribus est observandum, sed ut in paucioribus mutatur (V Ethic., lect. 12 [1134b33], 185-96). DEPOSITVM GLADIUS 227 That which is natural to one whose nature is unchangeable must needs be such always and everywhere. But man's nature is changeable, wherefore that which is natural to man may sometimes fail. Thus the restitution of a deposit to the depositor is in accordance with natural equality, and if human nature were always right, this would always to be observed; but since it happens that man's will is unrighteous, there are cases in which a deposit should not be restored, lest a man of unrighteous will make evil use of the thing deposited: as when a madman or an enemy of the common weal demands the return of his weapons.33 What is natural for man is modified as his nature undergoes modification. What is permanent is the relationship between nature, which is the origin, and what is natural, which is what is originated. It is interesting to note that in the above text the reference to a possible perversion of the human will appears as a cause of human nature's lack of rectitude and, in the last instance, of the fact that a precept which is naturally right ceases to be so when it is put into practice. On such an occasion, Aquinas maintains that the perversion of the human will is not only responsible for the defective knowledge of a precept of natural law, as is the case in the text of the Prima Secundae referred to above, but even for the fact that this precept is not always correct (a shortcoming that is always relative to the application of this precept in a given situation). The term perversion of the will is a way of referring to sin, as when someone sins the will becomes sick, not so much because it wants something that is positively bad as because it wants something good, but the manner of its wanting is bad. This is why Aquinas says that sin occurs praeterintentionem:34 what the agent wants when he sins is not something bad, but a given good, though in such a way that per accidens the will is perverted and is diverted away from the good apportioned to it. In any case, by stating that sin has a cause per accidens, and that the variable correctness of the precepts of natural law ultimately depends on this cause peraccidens, Aquinas excludes an essential mutation of natural law, for the same reason as he rules out an essential mutation of nature. 33 STh II-II, q. 57, a. 2, ad 1. 34 See J.M. Boyle, Praeter Intentionem in Aquinas, The Thomist 42 (1978): 649-65. 228 ANA MARTA GONzALEZ In fact, in Aquinas's view nature is always a teleological principle which, of itself (per se) always strives for a good, although it sometimes, per accidens, gives rise to a defect.35 The same goes for the movements and properties we call natural, as we can see from his commentary on the text in the Ethics in which Aristotle speaks of the right hand and the left hand. According to Aristotle, the right hand is stronger by nature, and this, which is secundum naturam, is true for the majority (ut in pluribus). If in other cases this is not true, then the reasons are accidental (per accidens), be it for natural reasons or through habit (i.e., because someone exercises the other hand). It is clear that in this last sense (by habit) we could also talk of a change in the natural law (as long as this is a secondary precept): exercising the other hand gives rise to a contrary disposition which seems to be natural. However, this type of change does not so much affect the correctness of the precepts as the knowledge and practical application of them. What we are interested in here is the other kind of variation: variation in the correctness of a precept or, rather, variation relative to the correctness of its application in a given case. In this sense, there is evidence that Aquinas admits a certain variation analogous to that which is registered in the natural/physical order-a variation through accidental causes which, as we have read in the text from the Secunda Secundae, Aquinas also attributes to the perversion of the human will. Nevertheless, it is important to point out that the ailing will in this case is not that of the agent (e.g., the person who ought to act in accord with the precept of giving back borrowed items), but rather that of the sword's owner (who was to be given it back), in view of which the agent decides not to apply a precept which is correct in principle. Presuming that the sword's owner will use it badly, the agent decides not to return it. To the extent that the bad use of something is the product of an ailing will, and an ailing will is nothing other than a will that has become used to sin, we must assert that sin has introduced an accidental factor to the world which the prudent man must not ignore when 35 See A. Quevedo, Ens per accidens: contingencia y determinaci6n en Arist6teles (Parnplona: EUNSA, 1989). DEPOSIIVM GIADIUS 229 exerc1smg his power of judgment. This is a factor which, for example, makes it inappropriate in some cases to apply the positive precept recommending the return of property. Thus, When the thing to be restored appears to be grievously injurious to the person to whom it is to be restored, or to some other, it should not be restored to him there and then, because restitution is directed to the good of the person to whom is made, since all possessions come under the head of the useful.36 By saying this, Aquinas is not inviting us to reason exclusively with regard to whatever consequences might follow: he adds an essential reason. For him, external goods are ordered by their very nature to the good of the body; at the same time, external goods are ordered by their very principle to humanity in general (if private property belongs to natural law, this is only because, in principle, private property is a better way of safeguarding the common good). This means that external goods are also ordered by their very nature to usefulness or the common good. It is vitally important to have this ordering of goods in mind if we are to understand why in some cases it is justifiable not to return a borrowed item. A careful reading of the versions Aquinas offers of a possible variation in the rightness of the precept of restitution will show us that all cases are justified with reference to a definite practical damage to the common good (almost always illustrated by the idea of an attack against the patria). Plato before him had considered the possibility that the man who is given the sword back might use it against himself.37 These are not contradictory motives, as both the man who uses an external good to attack his own physical integrity and the man who uses it against the common good are contradicting the natural use of goods which is presupposed in the exercise of justice.38 According 36 STh I-II, q. 62, a.5, ad 1. 37 He who has to return gold to a lender does not give back what he owes if there is some disadvantage incurred by retutning or receiving (Plato, Republic 1.332al1-b2). 38 The idea of the natural use of goods does not entail any kind of fixity. It is not an attempt to lim" @default.
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W1761786290 title "Depositum Gladius non Debet Restitui Furioso: Precepts, Synderesis, and Virtues in Saint Thomas Aquinas" @default.
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