Thomas Aquinas on the criminal law

Now, as the governor makes weekly news by signing bills from the recent legislative session, we have a slate of new laws and punishments we shall be living under.

Unfortunately, the new stuff is often reactionary tinkering. By that, I mean two things:

making crimes of every human vice; and

punishing small crimes as if they were big ones.

This blog has posted numerous examples of such efforts:

While not all these bills make it into the books, we clearly have an itch to make society perfect, to make everyone be nice. And if we have to make not-being-nice a felony, well–by heaven–we will.

We often hear the charge that Christians try to impose their morality on everyone else. But the Christian tradition is one of restraint; in punishing only serious evils that harm others.

St. Thomas Aquinas, in his Treatise on Law in the Summa Theologica, answers the question of whether human law should repress all vices. He taught that demanding too much of people did not make them better, and would likely make them worse:

“[L]aw should be ‘possible both according to nature, and according to the customs of the country.’ Now possibility or faculty of action is due to an interior habit or disposition: since the same thing is not possible to one who has not a virtuous habit, as is possible to one who has. Thus the same is not possible to a child as to a full-grown man: for which reason the law for children is not the same as for adults, since many things are permitted to children, which in an adult are punished by law or at any rate are open to blame. In like manner many things are permissible to men not perfect in virtue, which would be intolerable in a virtuous man.

Reply to Objection 1: Audacity seems to refer to the assailing of others. Consequently it belongs to those sins chiefly whereby one’s neighbor is injured: and these sins are forbidden by human law, as stated.

Reply to Objection 2: The purpose of human law is to lead men to virtue, not suddenly, but gradually. Wherefore it does not lay upon the multitude 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 precepts, would break out into yet greater evils: thus it is written (Pr. 30:33): “He that violently bloweth his nose, bringeth out blood”; and (Mt. 9:17) that if “new wine,” i.e. precepts of a perfect life, “is put into old bottles,” i.e. into imperfect men, “the bottles break, and the wine runneth out,” i.e. the precepts are despised, and those men, from contempt, break into evils worse still.

Reply to Objection 3: The natural law is a participation in us of the eternal law: while human law falls short of the eternal law. Now Augustine says (De Lib. Arb. i, 5): “The law which is framed for the government of states, allows and leaves unpunished many things that are punished by Divine providence. Nor, if this law does not attempt to do everything, is this a reason why it should be blamed for what it does.” Wherefore, too, human law does not prohibit everything that is forbidden by the natural law.

Now human law is framed for a number of human beings, the majority of whom are not perfect in virtue. Wherefore 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 to the hurt of others, without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft and such like.”

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