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Aquinas in the Courtroom : Lawyers Judges and Judicial Conduct

4 Dec 2002
Bernadette Steele LLB. BA (Hons)

The first thing that strikes one about this book is the title, which is the first thing that should strike one I suppose. It is a snappy title promising perhaps insights that are snappier and more accessible than the book can actually deliver to the casual reader. If I were not familiar with Aquinas myself I would have found this book a difficult place to start. It certainly delivers though in its promise to prompt 'new discussion of ethical questions'. It also prompts one to re read Aquinas a laudable achievement in itself.

There is as well an unusual quality to the book, a quality that begins in the title, of a kind of personal vigour and enthusiasm. We sense that the author is convinced of the relevance of St Thomas to the work of lawyers today which is an attitude that relieves and refreshes.

As I sat down to the Summa again after twenty years to see if my own reading elicited such conviction what struck me about it was its beauty. In the first place, it is easier to read than all the scholarly commentaries, including Nemeth's. Thomas is so logical, he just takes a question and puts it through its paces and out pops the answer, albeit with a sub-stratum of arguments, objections, allusions and references. I was reminded again of how satisfying and easy to follow that structure was, the writing beautifully clear and the careful consistent structure and definitions a relief from the complex and confusing shower of information that we call knowledge these days. Look for example at this passage from the First Part of the Summa Theologica where Aquinas speaks of the need for divine revelation to augment the powers of natural reason. "Even as regards those truths which human reason could have discovered, it was necessary that man should be taught by a divine revelation; because the truth about God such as reason could discover, would only be known by a few, and that after a long time, and with the admixture of many errors." (First Part, Q 1. article 1)

This circumstance (the light of reason and the need for revelation) is central to a dilemma many people face each day as Christians operating in a secular world. We accept what God has revealed to us in Christ, we try to live our lives, personal and professional in that spirit but much of the time we are operating in a forum where our colleagues, our clients, our friends, current designers of the legal system in which we work, have only what God has placed in their natures and not it seems, or at least not in the front of their minds, all the benefits of what he has revealed.

So what is it that is written in our nature as human beings that makes that situation for us as lawyers easier? What, according to Nemeth, does Thomistic jurisprudence offer us in dealing with the issues of professional ethics and policy we come across in our lives as lawyers, policy advisers, decision-makers, voters?

Influences on Aquinas

The book begins with some consideration of the influences that shaped Aquinas' jurisprudence. The author refers to Aristotle as a major influence in Aquinas making the close connection between law and reason. For Aquinas, reason is the rule and measure of human activity. This is somewhat in contrast to Augustine, whose writing gives greater primacy to the will. Augustine also provided valuable foundation writing about the lex aeterna "the ineradicable and sublime administration of all things which proceeds from the Divine Providence" and lex naturalis - Aquinas is quoting Augustine when he says "law is written in the hearts of mean, which iniquity itself effects not" 1-11Q94a.b

Isidore of Seville (7th century) is identified as another influence who Aquinas refers to in Q.95. In Isodore we find the idea that all authority comes from God, that king and citizen are both bound by the law and the identified need for laws to be enacted for common purpose not for private gain.

Anselm, Abelard, Grattan, Alexander of Hales, St Bonaventure, St Albert the Great - well it is a scholarly sort of book. However it's a quick enough survey to enable one to read it without falling asleep but sufficiently substantial to give some sense of the subtleties of thought which Aquinas was dealing with when he came to write.

Ch 2 of gives an overview of Aquinas' thinking about the law; that God's eternal law is his own intellect, the divine exemplar, and that by the use of reason man can participate in the eternal law of the divine intellect. Reason, then, is law - it ordains the actor to the ends the intellect perceives.

Aquinas's view of law is contrasted with the positivist view that a law is a law because it is promulgated. For Aquinas law pertains to reason and measures action. A law derives its legitimacy from its relationship to the common interest. Laws for each individual would be futile. Law is an instrument or mechanism to the end of perfection. Much of what Aquinas writes about law applies to the whole hierarchy he describes. Eternal law > Divine Law > Natural Law > Human Law. Each lower form of law derives its legitimacy from the higher one.

Nemeth points out the importance of this hierarchy for us. Human Law derives legitimacy from the rest of the structure, so enacting a statute or applying a law without regard for the moral law or revealed law is not really possible for us and those not in the same position of having some idea of the natural and eternal law will err when they make laws inconsistent with those. Their laws will not be laws.

The natural law is derived from external and divine law and from it is derived the legitimacy of human law. Aquinas recognises the need for human law. Those already disposed to virtue have less need of regulation, but those whose disposition is evil are not led to virtue unless they are compelled (1-11 Q.95 art lad.1). So human law is needed to remove evils and to lead people to virtue.

Good laws stand the test of time and are rooted in tradition and their power is derived from a higher power, say Nemeth and Aquinas. Why is human law thus derivative? The argument goes like this - law is an exercise of human reason, reason is the rule and measure of law, human reason participates in divine reason so human law is derived from eternal and natural law

"Now in all human affairs a thing is said to be just from being right, according to the rule of reason. But the first rule of reason is the law of nature, as is clear from what has been stated. Consequently, every human law has just so much of the nature of law as it is derived from the law of nature".

It follows that for Aquinas human laws which are inconsistent with eternal law are not really laws.

"In so far as it deviates from reason it is called an unjust law and has the nature not of law but of violence" or "any enactment contrary to the divine law has not the nature of law" - both in Q93a.3.

Human law cannot aim to do all things Aquinas tell us - it cannot eradicate every act of vice or sin. Men are bound to err. Overzealous laws produce only social resistance and tumult. For these reasons, Aquinas says:

"It does not lay upon the magnitude of imperfect men the burdens of those who are already virtuous, viz, that they should abstain from all evil. Otherwise these imperfect ones, being unable to bear such percept, would break at into yet greater evils".

Human law is intended however to prod us to a life of virtue, to lead us there gradually. Where all this gets us is the idea that there are right answers to moral questions about the law and that lawmakers can discover and be guided by them. Nemeth is concerned to set this understanding against positivist philosophy of law - it's a law because it is promulgated.

Chapter 3 on Virtue and Law is central to Nemeth's book and the insights here are helpful in merging our personal and our professional endeavours.

Reason Aquinas tells us, defines and distinguishes the human actor from other species. Reason, correctly applied deliberates and guides activities consistent with our preservation. "There is in every man a natural inclination to act according to reason and this is to act according to virtue" Q94a3C. Virtue empowers man to seek happiness, since it disposes us to perfection. It also enhances the common good.

Virtue is a form of habit. Aquinas describes habits as "formative" - the activity creates the habit. Perpetration of virtuous or vicious acts creates virtue or vice. Reflecting on this we can see that the human agent is not separate from his personal activities. Prudence, so essential to good decision-making is a habit. Prudence is about making right choices based on experience, impacts and individual and communal effects . The big idea is simply that virtues are habits of the human agent. How can I have them in my professional life and not in my personal life, or in big things and not in small?

The chapter on prudence is extremely pertinent to legal practice because decision making is the fruit of prudence. It indicates knowledge of the moral law and application of it. For Aquinas it is the principal of all the virtues because discernment belongs essentially to reason.

Human law by encouraging virtue orders individuals to the common good, even though not every act of virtue is required by law. Human Law, says Aquinas should concentrate on those activities which provide security and tranquillity. Human laws are not a remedy for all human error and an attempt to make them so is unrealistic and likely to be tyrannical.

"Now human law is framed for the multitude of human beings, the majority of whom are not perfect in virtue. Therefore Human laws do not forbid all vices from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are injurious to others, without the prohibition of which human society could not be maintained. Thus human law prohibits murder, theft and the like". Q.96 A.2c

Nemeth turns quickly from these general principles to discuss the common good in judicial process. He draws a compelling picture of the effect of the doctrine of precedent on the actions of judges who lose sight of the common good. Judicial rulings leap quickly into the world at large. " When abortion is legalised for the individual Roe it is not long before the roes multiply, and even shorter still before a negative culture of death becomes an easier pill to swallow. Euthanasia evolves into a mainstream practice so too partial-birth abortion practice, suicide and other activities historically shown to undermine the collective enterprise". It is sobering to think we might find ourselves in such a position of influence.

Law,Justice and Judgement

In a chapter on "law justice and judgement" Nemeth draws out a basic insight of Aquinas - that right judgement is an act of reason, not of will - in making a decision I do not what I want to do, but what reason dictates. He puts it colourfully "Law and its corresponding judgements live in the land of the intellect, not the land of desire".

On judges and the judicial process, Nemeth identifies a number of useful propositions in Aquinas' work. Building on what has already been said about virtue, justice and prudence, Nemeth sums up Aquinas' position as - "the just man or woman will be the just judge". Aquinas refers to the "craft" of judgement, but that is not sufficient. He says "those who stand guilty of grievous sins should not judge those who are guilty of the same or lesser sins".

A judge according to St Thomas, must be a public official , not a private person. It follows from the understanding that the law is not able to eradicate all wrongs (since this is a matter for salvation) that moral judgement be left to ecclesiastical powers.(Q.60 a.b p.132 note 28) and need not be made by the human judge at all.. This of course is true for matters of individual conscience, but we are also required to make moral judgements about what is externally acceptable or not each day in our lives, personal and professional.

Judgement says Aquinas, "should be according to the written law" which makes him a strict constructionist in terms of statutory interpretation., Nemeth concludes. He contrasts this to the development flowing from what he calls "judicial activists" in the USA who he sees as "inventing" rights. While I'm sure there are legitimate arguments against judicial activism, I don't think the case here is complete enough for Aquinas to be enlisted entirely for the conservative side.

As Nemeth notes, Aquinas also allows that no written law can contravene natural rights. Since a law which does so is a "corruption of laws and judgement should not be entered according to it". So for Aquinas law is to be interpreted strictly as it is written, providing that it is not unjust. In other words, we would expect a judge to be some sort of Judicial activist if the law he or she were called upon to apply were an unjust one, ie if it contravened natural law or the divine law, or was outside power.

Judgement says Aquinas is to be "based on information acquired by the judge, not from his knowledge as a private individual, but from what he knows as a public person" Q.67 A2. This is an ideal consistent with the rules of evidence we apply today. The difference is that when Aquinas addresses this question he is considering the conscience of the judge - the whole person, not just the function, dealing with how a person could pass judgement contrary to what he considers privately to be true.


Moving from judges and judicial process, Nemeth considers what Aquinas has to offer lawyers and advocates. I found some of Nemeth's thinking in this chapter hard to take. Though much in it is refreshing and thought provoking one is pulled up short on finding oneself to be in such general agreement with someone who things "postpartum blues" as he calls it is in the same category of unfortunate developments in criminal defense as "astrological imbalances". However, on the whole, he does offer a good exposition and summary of the principles, such as the following -

  • vigour of representation is not a licence to act without moral parameters, quoting Aquinas Q.71 a.3. "It is unlawful to co-operate in an evil deed, by counselling, helping or in any way consenting, because to counsel, to assist an action, is, in a way, to do it."
  • an advocate who is misled is not at fault "if however, he defends an unjust cause unknowingly, thinking it just, he is to be excused according to the measure in which ignorance is excusable Q.71 art3.
  • but continued advocacy in a fraudulent cause is inexcusable, although "he ought not to throw up his brief in such a way as to help the other side or so as to reveal the secrets of his client to the other party. But he can and must give up the case, or induce his client to give away, or make some compromise".
  • "it is unlawful to offer a falsehood" but lack of co-operation in a confession, lawful non-delivery of incriminating evidence, caution in defence testimony are prudent and praiseworthy.
  • a lawyer need not always be defending the sub of the poor, as no man is sufficient to bestow a work of mercy on all those who need it, but a contribution is required balanced with occupational capacity, economic reality, familial demands.

This chapter ends with a warning against lawyers expecting to be able to solve all individual injustices by legal action or by change to the law - no judge but God judges by virtue of his own power - all truth is known to God Q.67 art2.

A "last clear chance"?

One of the tasks Nemeth takes on in the book is to contrast what he calls Aquinas's "legal ideology" with the Code of Judicial Conduct and ethical concerns of the American Bar Association. He calls St Thomas jurisprudence "our last clear chance for a crumbling and malfunctioning legal machine."

I was less interested in this faintly warlike view of the committed Christian versus the decaying system than in the possibilities for how Aquinas's work might help us operate at the individual level. Still the issues are there even if we don't see them in quite the "us and them" stand Nemeth takes. He does at another point put it better:

"Thomistic jurisprudence ...encourages us to discern our natures, reflect on our inclinations and dispositions, identify appropriate goods and valuate how civilisations flourish or fail in light of both individual and communal activity."

The Victorian Bar Practice Rules "General Principles of Professional Conduct" outline expectations for judicial conduct - a barrister must act honestly, fairly, with competence and diligence and should accept instructions only when able to do that promptly and should avoid conduct which is dishonest or otherwise discreditable, prejudicial to the administration of justice or likely to diminish public confidence in administration of justice or in the profession. I looked at these because Nemeth's commentary seemed so despairing of the US equivalents. My view would be that we are expected to add to these bare bones personal qualities which contribute positively to the common good - although it is true the documents don't say that. Effectively however, our system relies on it. People coming before the courts swear that their evidence is true - this in itself affirms daily the order which comes from God. Each day when the witness swears to tell the whole truth - whether on the Bible or not - he or she is instructed by reason, nature and the imprint of the eternal law in the natural law, to paraphrase Nemeth.

While in terms of policy we need to advocate for the principles of Natural Law to be recognised in the positive laws of our society there are other demands inherent in Natural Law philosophy. First that we are professionals yes but also complete human beings - we will be better lawyers or decision-makers if we have habits of virtue. Second, and related to this, we have the opportunity every day of looking for truth, of working towards just outcomes.

Expecting too much of positive laws

In his analysis of positivist attitudes to law, Nemeth touches on a topic which has bothered me quite a bit. He points at that the public demands "action" from legislative bodies and measures their effectivness by the depth and breadth of their lawmaking. That may be an overstatement - governments are also measured by where they spend the taxpayers money and how well they manage it, but that is the executive arm of governement. Many political and ideological and even petty issues are fought out in the legislature, as no doubt they should be but primarily legislatures make laws. Whatever goes on in the USA we in Australia are not overly romantic about the role of our legislatures.

However, we do probably see an exaggerated expectation of the effectiveness of legislation. There is no doubt that we legislate much more now than we did, say, 20 years ago. The following diversion into statistics show that the rate of legislation in Victoria is steadily increasing. I believe it is even greater at the Commonwealth level. Apparently now each year the Commonwealth Parliament passes 8 to 9 times the number of pages of legislation which it did in the 1950's. In Victoria the story is like this.

The Victorian statutes were consolidated into one set in 1928 and again in 1958. A consolidation gathers together all the statute laws on the books at that time. After a consolidation, the statutes passed by Parliament are published in annual volumes (as well as individually of course). In 1958, the sum total of laws on the Victorian statute books occupied 55 cm on the library shelf, in 8 volumes. So from 1959 on, the body of statues including all the 1958 volumes plus the subsequent annual volumes which can amend or replace statutes from previous years.

In the 10 years to 1968, total shelf space for the statutes space is 64 centimetres; for the ten years to 1978 it is 64cm, for the ten years to 1988 it is 84cm and since then, to end 1998, Victoria has passed 192 cm worth of statutes.

There has been no consolidation of statutes since 1958. This means that the statutes of say the last 20 years (assuming a consolidation is appropriate every 30 years) probably include a factor which is the repealing and replacing, gathering together and clarifying of statutes which have been on the books for a long time. The 1958 consolidation occupied 55 cm on the shelf. If we allow say 70cm for a nominal consolidation in the 1990s we still have a sum total of 120cm worth of statutes in the 10 years to 1998.

Amount of space on the library shelf is a crude measure of course. Also, measuring the volumes according to changes of government would offer some obvious explanations for flurries of legislation. Some of the statutes will be new areas of regulation (eg Introduction Agents Act 1997) and some will be replacement of existing laws (eg the Fair Trading Act 1999). Whichever category applies, the effect is to change the laws, which means there is more work for the community to do in adjusting to new law, planning around it in some areas and paying lawyers to advise them about it.

The proliferation also indicates a disproportionate reliance on legislation, perhaps at the expense of "judge made" law, perhaps because governments try too hard to make us virtuous in the current mould, they attempt to advocate the community and to enshrine particular policies.

Nemeth sees this proliferation and changeableness of statute law as a result of positivist attitudes. If enactment makes all that is needed for a law then we can cast it aside and start again when the law no longer fits. He speaks of a "windswept positivism".

The place of Law

While positivism and Thomism are poles apart as they deal with law, the one relying entirely on human agency and the other looking to ultimate ends, that does not mean Aquinas has no use for promulgated law. He sees positive, human law as "indispensable for mankind", but says it must be based on immutables, not on what is currently acceptable.

Murder is not wrong because it is against the law, it is against the law because it is wrong. However, travelling over 50kph in a suburban Melbourne street is wrong because it is against the law. It is a Just law though, Positive law depends for its legitimacy on compatibility with the natural law, which reflects the eternal law.

While as I have said I can't quite agree with Nemeth that Thomistic jurisprudence is the "last clear chance "for a corrupt and crumbling legal system, he does put well the case for the goods which can be found there:

  • It respects human life
  • It recognises communal and familial structure
  • It puts God at the apex of our understanding of law
  • It helps us see the relation of the personal spiritual life and the professional life for lawyers

Aquinas in the Courtroom : Lawyers Judges and Judicial Conduct
by Charles P Nemeth