A Reflection on law for the Feast of St. Thomas Aquinas.
As we celebrate Thomas Aquinas today, I think it is safe to say that only a small minority of Americans have read anything he wrote. To be fair, his writing is dense and dry. Some of it is only available in Latin. But I would also be willing to bet that a much larger portion of our population has come across one of his claims: laws which contradict the natural and eternal law are unjust and should not be followed. Martin Luther King, Jr. cites Aquinas in his “Letter from Birmingham Jail” (see image below) to explain why segregation laws are unjust and should not be followed. In 1963 this was a profound, counter-cultural and necessary message. (Every time I teach it, I do find a little bit of joy from seeing the ideas of a fellow Dominican used as one step towards making the world a better place.)
Given the events since the murder of George Floyd, the current fears of war with Russia, and the push to get people further into space, one could be forgiven for thinking that it’s still 1963. MLK’s writing certainly remains profound for us today. However, I think our time needs to be reminded of the basics which MLK took for granted. We need to read a little more deeply and remember the rest of what Aquinas wrote about the law (something MLK clearly did while getting his doctorate in systematic theology). Unjust laws are the footnote — they are not the main focus of legal theory. In a world where the claim that “an unjust law is no law at all” is thrown around right and left, the modern revolutionary is the one who respects authority.
To be clear, I am not arguing that all laws are just or that we should be blindly subservient to the government. Nor am I saying we shouldn’t protest. It can be a powerful way to create needed change. Civil disobedience will always be necessary as systems will always be flawed as long as humans run them. My claim is merely that we have talked about the exception so much that we have forgotten the norm.
What is the norm?
Consider this: Before I graduated from college in Indiana, I got three speeding tickets, each costing about $150. One was for going 78 mph in a 65 zone, another for going 68 in a 60 (my cruise control was set at 63) and the last was for going 58 in a 55. Students laugh when I share this. Most of them don’t even know what the speed limit on 290 is. They certainly cannot imagine a world where going 10 miles over the speed limit on the highway matters. To be fair, Chicago does have norms for “safe” driving — they just don’t match the written laws. Can you imagine Chicago without any traffic norms at all? I wouldn’t leave the priory!
Or look at our use of alcohol. Each year in Moral Theology we discuss whether alcohol can contribute to our happiness; and students have some excellent reflections on the formation of friendships, the dangers of alcoholism, the horrors of drinking and driving, the goodness of simple pleasures in moderation, etc. Then we push it further: “Can it be good for a teenager to drink alcohol?” Invariably students bring up concerns about healthy neurological development. Rarely does anyone say, “No, it’s better for me to follow the law than to drink with my friends.”
Aquinas, on the other hand, insists we have a moral obligation to learn from and obey laws. Always. As MLK correctly explains, he does not argue that we don’t have a moral obligation to follow bad laws — he argues that unjust laws are not laws at all. This is a bizarre claim at first. He isn’t saying that they don’t actually exist or that no one passed them. He is saying that an unjust law fails to meet the necessary criteria for something to count as a law. Might does not make right. A law is “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.”1 Laws are supposed to teach us how to be part of a harmonious society. They help us to be good. For example, school-zone speed limits count as laws because they structure our driving practices around the goal of protecting children. They are made by a legitimate authority and are very clearly posted for drivers to see. Following such a law is simply a good thing to do — individually and communally we benefit from the harmony such a law creates.
If a law isn’t actually directed to achieving a reasonable good (a major topic in its own right, which I have to set aside here), it’s an abuse of power and not a law. A law limiting families to one child is oppression, not law. However, a lot of laws have good reasons of which people aren’t aware or with which they disagree. We are not all experts. It’s important to hold government leaders accountable for creating good laws, but that’s also a lot of work. Sometimes I do just need to trust that a law has a good reason even if I don’t understand it.
None of this tells us how to respond to unjust laws. Should we follow them? Aquinas’s answer is, unsurprisingly, nuanced.2 If the law is directly contrary to clear natural goods or divine goods, then do not follow it; they will not lead you to any form of goodness. Breaking these is the right choice. MLK explains why masterfully: “All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority.” Following such a law clearly adds to the destruction of human dignity individually and communally.
About those COVID-19 protocols …
But laws can fail to be real laws in other ways. A secret law isn’t a real law — if it isn’t promulgated, one can’t learn anything from it. A law could aim at a good goal but fail to accomplish it because the law is based on false assumptions or insufficient evidence. A government can overstep its authority. Do we have any obligation to follow a misguided law? According to Aquinas, yes, these “unjust laws” often do bind our consciences. Why? Because disregard for authority damages society and that should never be taken lightly. Something is still gained from following them even if it isn’t ideal. I think the American drinking age fits here. I disagree with 21 as the drinking age and think it should be lowered. But I don’t regret following it when I was in high school and college, and I encourage students to do so, too. There is much to be said for learning how to listen to authority even when authority is somewhat wrong.
If Aquinas is right on this point, we have a lot to ponder when it comes to COVID protocols. One might generously call them a rough draft of what an ideal pandemic response would be. Revisions keep coming and everyone wants to supply their own peer-edit. Whether these protocols actually accomplish the goal or not, they are a real attempt to care for the common good of society; conscience demands that we prioritize this. The problem is that the right means to the end isn’t crystal clear. Aside from the novelty of this virus itself, there are tons of unintended consequences to every choice and many social goods that seem to fight against each other (i.e. physical health, mental health, economic health). Like many people, I have gone down rabbit holes reading about the efficacy of various safety measures. But I’m not an expert and I’m not in charge, so I have stopped researching. Sometimes we all just need to trust others and do what we were asked to do.
Other times you do need to push back. I think I would really struggle to strictly enforce masks if I were a kindergarten teacher. Some protocols do seem to have gone too far, and I understand the argument that those measures are too harmful to children for us to follow them. However, I do not see any similar argument for teenagers and adults. Even if it turns out that wearing a mask while I taught for the last year and a half did little to stop the spread of COVID (which I can’t totally rule out), I am sure Aquinas would tell me I did the right thing by complying. Being part of a harmonious whole and prioritizing public health is a good thing even if we did it badly. It significantly outweighs some facial discomfort.
Laws can be wrong. My understanding of Aquinas could be wrong. Aquinas himself could be wrong. All of this is possible, and we’d be a bit foolish to think otherwise. We’d also be foolish to mistake the exception for the norm and critique laws more than we follow them. If we want to live well, find joy in society and one day enter into eternal joy with God, it’s time to remember the goodness of obedience. If it turns out everyone in charge was wrong, I hope we all have the humility to pray as Christ did: “Forgive them, Father, for they know not what they do.”
Fifty years ago today, 39-year-old Dr. Martin Luther King, Jr. was shot dead by hate. Civil-rights concerns remain front and center in 2018, as trial lawyer and Fenwick alumnus Tony Romanucci reflects.
