What About Those Ignorant German Tribesmen?

What do I mean by the proper reading of the notorious passage of St. Thomas Aquinas which seems to say that the German tribesmen didn't know that theft was wrong?  Here is what he actually says:  "Thus formerly, latrocinium, although it is expressly contrary to the natural law, was not considered wrong among the Germans."  Although the Dominican Fathers translation renders latrocinium as "theft," actually the term latrocinium does not refer to theft.  St. Thomas carefully distinguishes furtum, theft, which is unjustly taking another's property by stealth, from rapina, robbery, which is unjustly taking another's property by coercion or violence.[6]  It turns out that latrocinium is neither theft in general, nor robbery in general, nor even a particular kind of theft, but a particular kind of robbery.  The term is best translated "banditry" or "piracy."  A latro, in Roman law, was an armed bandit or raider.

If we turn to St. Thomas’s source, the sixth book of Julius Caesar's Commentaries on the Gallic Wars, we find right away that the Germans were very much aware of the wrong of both furtum and latrocinium.  In fact, Julius remarks that the Germans considered such crimes as theft and banditry so detestable that on those occasions when they burned victims to propitiate their gods, they preferred to burn the perpetrators of such crimes:  As he put it, “they consider that the oblation of such as have been taken in furto, or in latrocinio, or any other offence, is more acceptable to the immortal gods.”[7]

But if the Germans did know the wrong of latrocinium, then what can St. Thomas be thinking?  We don’t have to look far for the answer.  When he claims Julian authority for the statement that latrocinium "was not considered wrong among the Germans," what he doubtless has in mind is a somewhat later passage in the Commentaries, where Julius explains that the Germans approved not of banditry as such, but only of a particular kind of banditry, raiding against other tribes.  Here is what Julius says:  “Latrocinia which are committed beyond the boundaries of each state bear no infamy, and they [the Germans] avow that these are committed for the purpose of disciplining their youth and of preventing sloth.  And when any of their chiefs has said in an assembly ‘that he will be their leader, let those who are willing to follow, give in their names;’ they who approve of both the enterprise and the man arise and promise their assistance and are applauded by the people; such of them as have not followed him are accounted in the number of deserters and traitors, and confidence in all matters is afterward refused them.”[8]

The manner in which the judgment of these barbarians was "led astray," then, was not that they were ignorant of the wrong of theft, or the wrong or robbery, or even of the wrong of banditry, but that they refused to draw one of the detailed corollaries of these precepts.  They knew the wrong of plundering their neighbors, but they failed to acknowledge the members of other tribes as neighbors.  Consequently they classified raiding them not as banditry, but as something like justified war.  It is as though they said, “I know people who commit banditry deserve to be burned, but come on, raiding doesn’t count as banditry.”  We do much the same thing.  “I know theft is wrong, but come on, inflating the currency to finance expenditures the government can’t pay for doesn’t count as theft.”

Notes

6.  I-II, Q. 66, Arts. 3-4, 8.

7.  Julius Caesar, The War in Gaul, Book 6, Chapter 16, W.A. MacDevitt, trans., "De Bellico Gallico" and Other Commentaries of Caius Julius Caesar, available on the internet at http://classics.mit.edu/Caesar/gallic.html (public domain).  For furto and latrocinio, MacDevitt has "theft" and "robbery."  Though Julius does not mention other, more routine Germanic penalties for theft, such as compensation, these double the proof that they knew theft was wrong.

8.  Ibid., Book 6, Chapter 23.

Link to Part 5 of 14

Nearly everyone is asking what the decision to call sodomitical unions marriages will mean for adults.  Is polygamy next?   Group marriage?  Persecution of those who disagree?  Certainly, all that and more.

But why are so few asking what the decision will mean for children?  Aren’t children the point?

Ask yourself what it will mean that now the law declares marriage to be about the sexual self-esteem of grown-ups rather than the well-being of children, who need moms and dads.

Gay militants have been working on the assumption that the reason they suffer is that people disapprove of their behavior.  If only the law would endorse their desires, they would feel better.

Now the law endorses their desires.  The pity of it is that they won’t feel better.  When the elation of victory wears off, they will feel like they did before.

And so they will have to make even more extreme demands for approval.  It has already begun.  An article at Politico.com would have us believe that so-called gay marriages aren’t just equivalent to straight ones – they’re better, just because there is no difference of sex.

Society’s rejection of nature is not self-limiting; it has no point of moderation.  It can end only by self-destruction or change of heart.

Some weeks ago I absent-mindedly scheduled this student question and answer for today, without reflecting on the case schedule of the Supreme Court.  The timing has been fortuitous.

Question:

 Does natural law theory include an account of when one may disobey unjust human laws?  If so, when would it be permissible?

Reply:

Before I begin, let me emphasize that we’re talking about peaceful disobedience – not rioting.  The last time I was asked about civil disobedience in the classroom, my questioner was looking for a way to justify the rioting in Baltimore.  Classical natural law theory will never give you that, because it tries to bear witness not only to the evil of unjust law, but also to the necessity of rightly ordered peace.

Within the natural law tradition, the classical account of civil disobedience is due to Thomas Aquinas.  He holds that true laws -- just laws in accord with the natural law -- generate a conscientious duty to obey simply because they are laws -- ordinances of reason for the common good, made by public authority and promulgated to everyone.  However an unjust law is no law at all.  It does not have the nature of law, but of violence.

Before going further we need to distinguish between two different ways in which a human enactment can be unjust.  In the less serious case the enactment is contrary only to the temporal but not the supernatural common good.  This may happen in three different ways:

There is a defect in its end or purpose.  The enactment might not even be aimed at the common good.  For instance, lawmakers may have enacted a particular regulation just to give unjust advantages to their cronies.

There is a defect in its author.  The enactment might not be made with proper authority.  For instance, the courts might usurp the role of the legislature, the executive might defy the constitution, or the legislature might usurp the rightful duties of parents.

There is a defect in its form.  The enactment might violate the formal principle of justice, which is that each person should be given what he deserves.  For instance, the government might punish the innocent rather than the guilty, or it might systematically award civil service positions or entrance to public universities to the least rather than the best qualified people.

Suppose an enactment is contrary to the temporal common good, but does not demand of us any intrinsically evil deeds.  Remember that an unjust law is not a true law – it does not have the properties that make it suitable in itself to direct the acts of rational beings.  Now it would be absurd to say that we must obey a phony law because it is a law.  However, in some cases such an enactment may be obeyed not because it is a law, but simply to avoid harm to others.  For example, I might obey it to avoid causing disorder or confusion, or to avoid misleading persons of weak understanding who might be misled by my example.  Martin Luther King suggested an interesting amendment:  Rather than obeying an unjust enactment when disobeying would cause a confusing example, he suggested trying to find a way to disobey which would not cause a confusing example.

In the more serious case the law is unjust because it is contrary to the integrity of our relationship with God, who is our ultimate final good.  This happens when it does command intrinsically evil deeds.  For example, it may command murder, theft, dishonor to parents, or the profanation of holy institutions such as marriage, or express disobedience to divine command, acts which are by their very nature incapable of being directed to our ultimate final good.  In all such cases we must disobey.  Nothing whatsoever could justify obedience.

For more about this topic in the Commentary on Thomas Aquinas’s Treatise on Law, turn in that book to Question 96, Article 4.  For still more in the free online Companion to the Commentary, turn in that book to “Conscientious Disobedience to Unjust Laws.”

The fool says in his heart, "There is no God."  They are corrupt, they do abominable deeds, there is none that does good.  The Lord looks down from heaven upon the children of men, to see if there are any that act wisely, that seek after God.  They have all gone astray, they are all alike corrupt; there is none that does good, no, not one.

If the Lord of hosts had not left us a few survivors, we should have been like Sodom, and become like Gomorrah.  Hear the word of the Lord, you rulers of Sodom!  Give ear to the teaching of our God, you people of Gomorrah!  When you spread forth your hands, I will hide my eyes from you; even though you make many prayers, I will not listen; your hands are full of blood.

Wash yourselves; make yourselves clean; remove the evil of your doings from before my eyes; cease to do evil, learn to do good; seek justice, correct oppression; defend the fatherless, plead for the widow.

-- Psalm 14:1-3; Isaiah 1:9-10, 15-17