Thomistic Juridical Realism: An Introduction Transcript

Kevin Walsh (00:00:00):
Good evening. Let’s open with a prayer. In the name of the Father, and of the Son, and of the Holy Spirit. Lead us Lord in your path and we will enter into your truth. Let our hearts be gladdened that we may fear your name. Let us take joy in your law, meditating on it day and night, that we may be like trees planted near streams of water, that our leaves may not wither and that we may yield fruit in season. Amen. In the name of the Father, and of the Son, and of the Holy Spirit. Well, welcome to this evening’s lecture. I’m Kevin Walsh, the Knights of Columbus Professor of Law and the Catholic tradition, and co-director of the Project on Constitutional Originalism and the Catholic Intellectual Tradition, or CIT. We are pleased to present this lecture with our co-sponsor, the Institute for Human Ecology. IHE is one of the nation’s leading academic institutes committed to increasing scientific understanding of the economic, cultural, and social conditions vital for human flourishing.

The Project CIT that I co-direct with my Catholic law colleague, Professor Joel Alicea, promotes the scholarly exploration of the relationship between American constitutionalism and the Catholic intellectual tradition through programs like this one, Fellowships for law students and young legal professionals, and related events. It’s my privilege to introduce our lecturer this evening. Professor Petar Popovic is Associate Professor of the faculty of Canon Law at the Pontifical University of the Holy Cross, Santa Croce, in Rome, where he teaches philosophy of law and foundations of law in the church. The author of numerous scholarly articles, Professor Popovic is also the author of two already published books on Thomistic Juridical Realism, the Goodness of Rights and the Juridical Domain of the Good, 2021, and Natural Law and Thomistic Juridical Realism: Prospects for a Dialogue with Contemporary Legal Theory, and that was from the Catholic University of America Press, 2022. And that book, by the way, features a very powerful pithy foreword by IHE director, Professor Russell Hittinger.

I was pleased to meet Professor Popovic last year in Rome at an outstanding conference that he co-organized, on behalf of his university and the Angelicum, on The Concept of Ius in Thomas Aquinas. The proceedings of that conference are being published by the Catholic University of America Press in a forthcoming book appropriately titled The Concept of Ius in Thomas Aquinas. This evening’s lecture is drawn from yet another work in progress devoted to introducing Thomistic juridical realism more broadly. Now, I first encountered Professor Popovic through his writings after being exposed to two works of Professor Javier Hervada that had been translated into English. In attempting to learn more about Professor Hervada’s interpretations of Saint Thomas, I soon came to realize that Professor Popovic is one of only a handful of scholars who have written for an English-speaking audience on Professor Hervada’s interpretation of Aquinas. And now, Professor Popovic is a rising scholarly voice promoting Thomistic juridical realism. I am delighted that he is here with us to introduce this school of thought to an American audience. Please join me in welcoming Professor Popovic.

Petar Popovic (00:03:44):
Good evening. I will say my words of gratitude to the colleagues and institutions who have made this lecture possible for the end because I would like to start on another note. Perhaps the best things in life do not start with an apology. It is good if they end with an apology if needed, but if they start with an apology, it is highly likely that what follows is not that good. In my experience, however, some of the best things in legal philosophy tend to start with an apology. Usually, legal philosophers apologize in advance not so much for the possible mistakes of their presentation, but for the fact that they are about to present a position on the nature of law that is somewhat peculiar and idiosyncratic in comparison to the dominant legal mentality. So when, in the opening words of a lecture in legal philosophy, you hear something that amounts to an apology, well, that usually means that something new and possibly interesting is about to be argued.

Two such introductory apologies come to mind since they roughly correspond to the topic of this lecture, namely, to Thomas Aquinas’s legal theory and his view on what law is. In the last days of May of 1988, 2 months before his passing, the French legal philosopher and historian, Michel Villey, delivered what turned out to be his final conference lecture, in which he apologized for defending the view that law is a thing. “Whatever else law is,” he said, “it always falls on the level of concrete things.” In his own words, quote, “As I understand the task assigned to me in this meeting, I’m to defend an apparent absurdity that there is law in things. Our students are taught that law is a collection of rules of conduct sanctioned by state authority, the sum of all laws or decrees, administrative circulars, et cetera, namely, that laws are the product of the human mind. From every point of view, my case is doomed, yet I am ready to plead it.” End quote.

In that same conference, the American legal philosopher, Ronald Dworkin, started his lecture with an apology too. It seems to have been a very interesting conference. On that occasion, he said, quote, “I have to begin by telling you that my views are not only thought to be eccentric, they are thought to be preposterous.” End quote. He concluded the lecture by expressing his hope, not that the audience will begin to share his views, but that they will not, as he said, “Put him in a cage,” because he supports these ideas. The view that Dworkin defended in that lecture was that in his opinion, there are no gaps in law, or at best, that gaps in law are extremely rare since there is almost always a juridically right answer to a legal question. This view is a consequence of his more general thesis that what the law is depends, in some way, on what the law should be according to some relevant evaluative criteria.

Dworkin noted that a supporter of this view usually categorized as a proponent of a natural law theory of law is automatically expected to apologize for holding it. Quote, “No one wants to be called a natural lawyer. If some theory of law is shown to be a natural law theory, people can be excused if they do not attend to it much further.” End quote. Now, Dworkin did not consider himself a typical proponent of a natural law theory of law, rather, it was others, especially his opponents, the legal positivists, who attached that label to his views. Regardless, he continued to believe that his theory is correct. As he said, quote, “If any theory which makes the content of law sometimes depend on the correct answer to some moral question is a natural law theory, then I am guilty of natural law. But suppose this argument is natural law, what in the world is wrong with it?” End quote.

Yet there are some legal theorists who believe that the ideas such as those advocated by Villey and Dworkin weren’t an apology. To name one example, Brian Leiter, holds that the supporters of such ideas, namely, those who hold that law, is not necessarily a human artifact. Contained only in the sources of positive law that those people have, as he says, “Extravagant metaphysical convictions,” suitable to be a subject for psychological and not philosophical investigation. End quote. By the way, Leiter’s comment is known in legal theory as the 666 argument, given that it appears in a scholarly journal, the Oxford Journal of Legal Studies, on the page corresponding to that number. Thomas Aquinas, a 13th century philosopher and theologian, and as I will argue in this lecture, an outstanding legal philosopher, did not deem it necessary to offer an apology in his historical context for his ideas on the nature of law.

Although some of those ideas roughly correspond to Villey’s and Dworkin’s aforementioned arguments, still, it is highly probable that a contemporary audience will find Aquinas’s proposal on what counts as law somewhat strange and idiosyncratic. His ideas on the essence of law must have been considered, in his time, simultaneously original and a culmination of an entire tradition of thinking about law. But today, they could seem a bit, shall we say, shocking to our ears and minds. We could say that Aquinas, the legal philosopher, was most likely perceived as a Mozart of his time, but would probably be seen as a Philip Glass or an Ornette Coleman of our time. So something shocking for our ears on first hearing of this music, and the aim of this lecture is to hear this music. First of all, what we today call law in English language, and what lawyers, judges, and other legal officials normally refer to as law, namely human-posited legal rules, the rulings of courts, the practice of legal officials, and so forth, does not exactly correspond to what Aquinas would’ve called law.

In fact, it is not entirely clear what would be the corresponding Latin word in Aquinas’s texts for the reality that we today call law. There are two obvious candidates, and both should sound familiar to lawyers and not only to lawyers. So on the one hand, we have the term lex, and on the other hand, we have the concept of ius, I-U-S. However, as the French legal philosopher, Yves Rene Simon, said during his lecture at the University of Chicago in the winter quarter of 1958, quote, “A whole library could be filled with controversies as to whether it is felicitous or not that one and the same word, law, should be used to express the two ideas which are expressed in Latin by ius and lex, in French, by droit and loi, in Italian, by diritto and legge, in Spanish, by derecho and ley.” End quote. Simon concludes this observation by saying that what remains of primary importance are the meanings, and the relations of meanings behind the terms.

So following Simon’s conclusion, the central argument of this lecture is that Aquinas referred to the reality that lawyers and legal officials today call law by using the term ius, which is broader than the term lex. Ius includes a necessary reference to lex, but it also includes some other realities, which I will identify in this lecture. Contrary to the reputation of the term ius, as denoting merely a moralized meaning of law, when he uses the word ius, Aquinas is not only making some moral observation on what the law ideally should be, rather, we could envision him as trying to update and broaden our existing largely positivistic idea of what law is. He’s certainly not inviting us to unlearn all that we know about law, and neither is his idea of law entirely different from today’s prevailing understanding of what counts as law. Indeed, Aquinas’s concept of law certainly includes the phenomena of humanly posited laws and corresponding legal practices, but he incorporates these phenomena into a much broader, more complex notion of law.

Perhaps the best way to understand Aquinas’s argument on the jurisprudential nature of law is to locate him on a map containing also other comparable legal theories. The most frequent criterion for organizing that map is to understand where each author stands with regard to the famous question of the separability between law and morality. If we implement this criterion, we get the following results. On the one side of the divide, we usually find the various proponents of legal positivism who normally insist on the separability between law and morality. While on the other side of the divide, we typically encounter natural lawyers, such as John Finnis, and yes, Aquinas, together with a broad variety of non-positivists, such as Dworkin, and for example, the German legal philosopher Robert Alexy, who instead advocate the existence of the necessary connections between law and morality. So this is the standard map presented in law schools and in textbooks of general jurisprudence. However, the lines tend to get a bit blurry when we focus only on this criterion.

So for example, many legal positivists have grown to accept that there are multiple necessary connections between law and morality. Most positivists will concede that, generally speaking, law inevitably gives effect to some moral values, or that it necessarily pursues certain moral aims, whatever those values and aims may be. On the other hand, some natural lawyers seem to concede that there are no necessary connections between law and morality, at least from some relevant point of view. For example, John Finnis notes that deeply immoral positive laws may indeed exist and be enforced as valid law, and that this fact alone does not necessarily mean that the existence of such laws is morally good. So to circumvent these blurry distinctions, instead of focusing on the separability of law and morality, I propose another criterion, which is I believe more capable of establishing a clear partition on the map of various legal theories, and it’ll also help us to arrive at the core of Aquinas’s account of what law is.

In a recently published Cambridge Companion to legal Positivism, Leslie Green, himself a legal positivist, suggests that there is one essential thesis on which there seems to be no disagreement in the positivist tradition, quote, “Any theory of law that a positivist should be willing to call positivist endorses a version of the following claim, all law is positive law.” End quote. In other words, according to this central thesis of legal positivism, there are no elements of juridicity beyond humanly posited valid norms, or beyond the social-factual conditions of identifying or recognizing valid positive law. So when the map of various approaches to understanding the nature of law is reorganized around the question of whether all law really is only positive law, the results are rather surprising. Besides legal positivists, it seems that most natural lawyers, for example, Finnis, and non-positivists, such as Alexy, can be seen to support this positivist thesis.

They too believe that all law in the jurisprudential or lawyerly sense of that term is humanly posited law, regardless of the other anti-positivist emphases of their respective theories. For instance, Finnis, on record, is saying that, quote, “The whole of community’s law, existing law, however completely just and decent, is posited, somehow humanly posited.” End quote. He claims to be, and he is, a natural lawyer, but for him, natural law is something exclusively moral. It is not law in the jurisprudential sense of that term if it is not validly posited. On the other side of the divide, on that same reorganized map, we find authors who argue that there are certain elements of real law beyond the domain of humanly posited law.

For example, Ronald Dworkin stands on that other side of the divide, and we will find Thomas Aquinas standing there too. Aquinas would certainly disagree with Dworkin on a number of issues, such as the list of substantive moral values that necessarily enter into the reach of law, but they both pertain to a small group of authors who are opposed to the central positivist argument that all law is humanly posited. It is a historical paradox, and I would add wake-up call to natural lawyers that Dworkin, of all legal theorists, remains among the last defenders of the argument that non-posited law exists.

It seems to me that this is the best argument available for challenging the core position of legal positivism, and it is regretful that the argument is virtually abandoned by most natural lawyers, and that Dworkin is expected to apologize for advocating it on behalf of the natural lawyers. So this is the first important aspect of Aquinas’s legal theory. There are certain non-posited or meta-positive elements of real law, in a jurisprudential sense of that term, elements that are irreducible to the social facts or artifacts of humanly posited laws or to the practices of legal officials. Now, since holding such a position is considered to be outrageous in today’s legal philosophy, you better have a good explanation for advocating these views, besides offering or not offering an apology for them. What is Aquinas’s explanation? How does he justify the claim that only some law is humanly posited while the other parts of law are somehow brought into existence and fixed independently of humanly posited social facts?

This brings us to a second point that is crucial for understanding Aquinas’s idea of law, namely, to his answer to the question of where we should start in elucidating law, in understanding law. It is standard practice today to start an inquiry into the ontology of law by selecting the most appropriate entry point that secures the best strategy for understanding what law is. Among the many candidates for this starting point, two proposals seem to stand out as particularly suitable to capture the quality that is most compelling about law, or the feature that is most characteristic of law, the first thing that comes to our minds when we think about law. The first candidate is nominated by the legal positivists. In their view, what strikes us most about law is precisely its social facticity, the fact that law is simply out there existing in its posited sources and authoritatively applied in society, even coercively, if necessary, independently of our evaluations of it.

The second candidate is proposed by some supporters of the natural law theory of law, perhaps most notably, again, by John Finnis. According to Finnis, the feature that best explains the nature of law is not its descriptive or social factual existence, instead, the nature of law reveals itself from an evaluative viewpoint. Law provides us with reasons for action. For Finnis, law advances some significant, and in a way, intrusive moral claims on our agency and choices, and to understand these claims, we need to go directly to the human needs, to which law is the most satisfactory kind of response, needs that are ultimately grounded, and as he says, “Some basic human goods.” So what is Aquinas’s candidate for the characteristic that strikes us most when we think about law? Well, it certainly cannot be law’s positivity or social facticity, because that feature may be used as a vehicle for deeply immoral constraints on our human behavior and choices.

Does a mere reference to the natural law correct this deficiency? Perhaps this may come as a surprise, but Aquinas’s answer, in my opinion, would be in the negative, simply because the field of natural law is too broad. It corresponds to the entirety of the moral order and includes also the duties to oneself, which do not have any relational relevance, as well as the duties that can be fulfilled exclusively at the level of our purely internal or inward subjective dispositions. Whatever law is in the jurisprudential sense of that term, it is not something that is coextensive either with its positivity or with the entirety of the moral domain. To cut the long story short, Aquinas says that we should start with justice, whatever else law is, it is something that is defined and structured by the virtue of justice, iustitia. This is why he maintains that the juridical phenomenon, or what we today refer to as law, in a jurisprudential sense, is identical to the object of justice which he calls ius.

In other words, we should start here with this phenomenon. Things are attributed everywhere at any given moment, even in this beautiful Caldwell auditorium, with us all in it. A vast number of things and realities present here are somehow attributed to someone in particular and not everything belongs to everyone, contrary to the arrangement in Thomas Hobbes’s State of Nature, including our psychocorporeal existence and integrity, which may also be said to belong to somebody, that is, to each of us, and in a way that should be respected by other persons. But the sole fact that things are attributed to determinable title holders does not yet complete the picture of what we should do or not do as acting persons in law.

What completes this picture is the following evaluative consideration. Another person, for example, me, must be in a position to at least potentially interfere with ways in which a thing or reality, a wallet, a phone, a life, belongs to somebody else, for example, to you. Only then does a unique kind of obligation arise, “I have to give this thing to its title holder,” namely, to you, or respect all the other relevant ways according to which that thing belongs to you. What we have just described is the basic structure of justice. Aquinas famously adopted the definition of justice from the Roman jurist, Ulpian, justice is the constant and perpetual will to render or to give to each person his or her own ius.

So whenever questions of justice become relevant, the juridical phenomenon, ius, tentatively translated into English as law, appears as the object of justice. Said differently, justice, juridicizes or renders law everything that stands within its reach as its direct object. Another, very European, not to say French, way of putting this would be, justice infuses everything with juridicity or with the idea of legality. Justice is also at the core of Aquinas’s explanation of the existence of non-posited or meta-positive elements of law. Some things are brought within the reach of justice without being humanly established, or posited, as objects of justice through valid legal norms.

Aquinas refers to these things as natural ius, ius naturale, which is different from the so-called positive ius, ius positivum, that originates in private or public expressions of human will. For example, the good of life is a reality attributed to a person that others can, at least, potentially, interfere with. As such, life is the object of justice and a natural ius, and thus fully juridical or fully law, even prior to or even regardless of any norm of positive law relative to that good. It should be clear by now that if we want to explore Aquinas’s notion of law, it is imperative that we first understand how he describes justice. The idea of justice immediately evokes something that is, at the same time, legally relevant and connected to a broader domain of morality.

Even some of the most prominent legal positivists, Herbert Hart, acknowledges that the idea of justice, as he says, quote, “Seems to unite both fields, morality and law. It is both a moral virtue, specially appropriate to law and the most legal of moral virtues.” Aquinas would surely agree with that assessment, but at the same time, he highlights that law is well-defined section of morality, made specific and distinguishable from the rest of the moral domain by the three essential properties of juridicity. We are already familiar with the first property, namely, the obligatoriness, or the duty, of respecting the attribution of things, that is characteristic of the distinction between what is mine and what is not mine because it is yours, because it is another person’s sum. The second property of justice is outwardness. Aquinas firmly holds that justice is, quote, “Not about the entire matter of moral virtue, but only about external actions and things.” End quote. This is from the Summa Secunda Secundae, question 58, article 8.

This means that the purely inward subjective dispositions of persons, even if they are prescribed by something, like the natural law, remain irrelevant for the legal world insofar as they’re not somehow manifested outwardly in the external reality. This is common knowledge among lawyers. Human law is not meant to order and judge our purely internal dispositions, this falls within the scope of other virtues and moral standards. The third property of justice is its other-directedness, justice is oriented towards another person. As Aquinas says, “It is proper to justice and to its object, ius, to direct man in his relations with others.” We are used to thinking about law as something that puts the acting person, usually, the self, ourselves, at the center of the legal world. But for Aquinas, law is something that essentially belongs to another person, something other-directed, radically altruistic, to the point where we could say that it is hard for him to understand law except by putting the other person to whom something is owed, as a matter of justice, at the center of the juridical world.

There is an ongoing debate on whether Aquinas was familiar with the concept of the so-called subjective rights, the rights of the self, or my rights. And the most articulate conclusion to that debate seems to be, of course, he was aware of the subjectivist meaning of ius. He occasionally refers to rights as something that belongs to an individual subject, but he ultimately leaves any reference to the concept of subjective rights out of the definition of what law, or ius, is. Law is other-directed in its very essence. We should start with this consideration in our reasoning about law, at least this is Aquinas’s suggestion. Which brings us to our next topic, how does Aquinas define ius? He seems to include two elements in that definition. First, he says that ius is the object of the virtue of justice. We are already familiar with this. And second, he claims that ius is always identifiable with concrete things, realities, or res, in Latin. Ius is the ipsa res justa, the just thing itself. If you remember, Villey felt the need to apologize for subscribing to this thesis.

Law is not only a superstructure of rational rules, be they natural or positive, or a superstructure of subjective faculties that are hovering above the realities that they refer to. Whatever else law is, for Aquinas, it always falls on the level of concrete things which belong to other persons, and which ought to be appropriately given to them. For example, a book that is the object of the contract of purchase is a ius, a law, the wooden chessboard with chess pieces that my grandfather left me in his testament, the metro ride or the concert that I paid the ticket for, driving on the appropriate side of the road as prescribed by the relevant positive state laws, exercising the possibility to appeal to a higher judicial instance, immunity from state coercion in matters of faith, and so forth.

These things, realities, or res, are so important to legal reasoning that they must form part of the ontological fabric of law. As an agent in the legal world, each one of us is primarily interested in these concrete things and only secondarily in our faculties to demand them, if they’re not respected by others. This is Aquinas’s realism, his juridical realism, an echo of his broader metaphysical realism. Identifying law always proceeds by starting from the things themselves and by subsequently following the relationships of justice, in which these things are involved, so that we can attain the complete juridical perspective of what things belong to which title holders, by whom should they be given, or respected in what ways and according to which precise measure. The medieval lawyers formulated this thing-centered view of law in the dictum res clamat domino, a thing calls out for its rightful title holder.

What else can be seen to enter into the definition of law besides its justice and its thingness? Perhaps the best way to describe Aquinas’s account of the nature of law is to break it down into four Aristotelian causes. Nothing to worry about, this is meant to simplify things, hopefully, not to complicate them further. It is best to envision Aquinas’s idea of law as a unity of diverse phenomena, each revealing an aspect of the essence of law rather than reducing law to only one such phenomenon or aspect. So we have already settled the material cause, namely, the ontological fabric of law, which is the concrete reality, thing, or res, that is the object of justice, a book, a metro ride, and so forth. And we have also described the formal cause, the perspective from which things can be seen as constituting law, the perspective of justice.

We still have to tackle the question of the efficient cause and the final cause. The efficient cause, simply put, explains how things are brought within the reach of justice, how they got there in the first place. When someone claims that he or she has a right, that law works in his or her favor, that justice requires a certain course of action. Usually, the first thing that a lawyer or a legal official does is to ask that person to provide the title for that claim, for example, a contract or a testament. Some legal titles have the structure of general legal rules, whether humanly posited or natural, or in church law, divine. All these titles bring a thing or reality within the reach of justice, they are the underlying rational order or arrangement at the basis of law. As Aquinas says, they are a ratio, a ratio of ius.

The modeling of law in a society on the basis of natural and positive titles of ius takes the following form. First, there are some things that are owed as a matter of justice and which thus become law in virtue of natural titles, the so-called basic human goods or the objects of the primary precepts of the natural law, such as life and health, marital procreative union, the knowledge of the truth about God, friendship as the quality of bonds in a society, and so forth. To the extent that these basic human goods stand within the range of the properties of justice, so in their outward, other-directed aspects that may be owed by others as a matter of justice, they constitute the so-called natural ius, or natural rights, or natural law in the jurisprudential sense of the term law. However, the non-posited elements of law, or the natural rights, natural ius, fully established at the level of natural law, as important as they may be, provide us only with a part of the totality of goods that need to be secured by law in a society.

The arch positivist, the, we could say, father of legal positivism, Hans Kelsen, famously claimed that for natural lawyers, all law is natural law, and that positive law is only a redundant duplicate of what is already available at the level of natural law. Well, Kelsen was wrong. Unfortunately, we do not have time to explore this topic, but suffice it to say that Aquinas maintains that we need positive law. There’s a human need for positive law to determine all that is left under determined at the level of natural rights for arranging all the necessary details of complex issues of coordination in societies. However, if some valid humanly-posited legal norms are deeply unjust, Aquinas would say that regardless of their positivity, the phenomenon of law has not appeared with those norms. Such norms are merely law-appearing or law-aspiring entities, but not yet law, precisely because of the deficiencies relative to their being unjust.

So all this should cover at least part of what is essential for understanding the efficient cause of law. What about the final cause? This cause denotes the end, the purpose, or the good of a certain reality. Is it possible to think about law as something that is in its very nature good, or is speaking about law in terms of its goodness another thing to apologize for? It is Aquinas’s understanding that a special aspect of human good is brought about when each person is effectively given the thing that is his or her own ius. “Justice,” he says, “is somewhat the good of another person.” This is from the Summa Secunda Secundae, question 58, article 12. He returns to this argument in the same section of the Summa, question 79, article 1.

So if justice corresponds to a form of human good, then law, as the object of justice, is in its very nature something good from the standpoint of its final end. Thus, the most fundamental legal philosophical question, “What is law?” can never be detached from considerations of the human good, and the link between the ontology of law and the ontology of good is established already at the highest conceptual level of analysis. Hence, in Aquinas’s account of the ontology of law, he proposes not only a natural law theory of law, but also a theory and practice of virtue jurisprudence. Today, we reduced law to a part of only one of its four causes, the efficient cause. Law is only something connected to posited legal rules, or to social factual legal practices that attribute things to certain title holders. The list of what we lost from Aquinas’s concept of law is quite compelling. So we lost the realism or the reference to law’s thingness. We lost a reference to justice that is not purely formal. We lost a reference to non-positive titles of law, and a deeper understanding of law’s goodness.

However, I believe that Aquinas can show us how to find a sense of what is lost and gather these fragments of law in a whole without unlearning what we already know about law. At the end of this lecture, please allow me a moment to express my deepest gratitude for the invitation to present this lecture to the Institute for Human Ecology and its executive director, Professor Russell Hittinger, and to the Project on Constitutional Originalism and the Catholic Intellectual Tradition and its co-directors, professors, Joel Alicea and Kevin Walsh. I’m grateful not only for the generous invitation to be here, but also for the wonderful atmosphere of scholarly friendship. Thank you also to everyone at the Catholic University of America who helped organize this event, and to all of you present here, and to those who are following this lecture online, for your kind attention and patience. Thank you.

Kevin Walsh (00:45:41):
Thank you, Professor Popovic. And we will have time to have a little bit of discussion to continue the learning and the unlearning that was begun with this lecture. And so why don’t we have a seat and go from here. Well, I thought that we might begin this part where you said twice, I believe, that St. Thomas is not inviting us to unlearn, and at the end, you talked about reintegrating the fragments. And I wonder, though, what are some contact points in the training and in the practice of civil lawyers in grasping the nature of ius as the object of justice? We don’t have a required course in jurisprudence in a lot of American law schools.

We have courses in contracts towards criminal law, property, constitutional law, and it seems that each of those, and this came through in different parts of your lecture, provides some contact points for opening up into this integrated understanding, and I’m wondering if you might help us identify some of those. So rather than unlearning or redesigning the entire curriculum, we might instead find in some of these pedestrian civil law courses openings to thinking about the reality of law as ius.

Petar Popovic (00:47:29):
Okay. Well, the first thing that comes to my mind in response to your question is that, even though we lost a lot of aspects of Aquinas’s account of law, what remains is still correct. The only thing is that if it is isolated from the other aspects of law, it risks being, somehow, as Aquinas says, perverted, for example, in unjust laws, unjust legal practices, and so forth. So the positive law does not offer us sufficient security against using this order of law to good purposes, it can be used to deploy deeply immoral and unjust purposes. So I believe that to most lawyers, it is somewhat intuitive to wonder whether law is somehow incorporated in a broader framework. So for example, I mentioned the term virtue jurisprudence. Today, this is a current in legal philosophy that is explored by non-Thomists, or by people who are trying to think beyond legal positivism, although they might have themselves a legal positivist starting point. Another thing that comes to my mind is that natural lawyers usually, somehow, attempt to situate morality in law.

I think that we are tempted as lawyers to think of real law as something beyond positive law, not just some moral constraints on our behavior, but is there some real law beyond positive law? So I believe that in the history of each legal tradition, and in the United States of America, there are examples of thinking of law beyond positive law. And at the level of international law, we have the famous Nuremberg trials, where natural law was… or the concept of justice was invoked in the rulings of a court.

Kevin Walsh (00:49:41):
Let me ask then as a follow-up, I’m trying to formulate, in charitable way, the criticism, but perhaps it’s better just to be blunt, that where an interlocutor might say, “Well, Professor Popovic, you just misunderstand what we do in law schools. Actually, we are, if I’m going to use your term, yes, we are focused on the efficient cause, we’re focused on the titles, and we’re very good with chasing down titles of different things. But those other things that you’re talking about, that’s not what we do in law school, that might be justice school, but that’s a different enterprise. And so it’s not as if we misunderstand, but in fact, we’re fine with this more narrow approach because it helps us be efficient in our part of the division of labor for training lawyers and people to administer them in the government.”

And I suppose, one answer you might say is, “Well, you can’t break it up that way,” or, “Here is what would go wrong if you did,” or, “Here’s how these other aspects, here’s how you’re already talking about material cause and formal cause and final cause.” How would you respond to that argument that says, “Well, you don’t understand actually just how, well, focused our remit is.” That’s what people come here for, is efficient cause in your words.

Petar Popovic (00:51:26):
Right. So the more humble authors, proponents, and theorists in legal philosophy admit that there are plural concepts of law. So legal positivism would be one concept of law, so a set of conditions under which some reality may be called law. So legal positivism is only one of the possible conceptions of law. What I think Aquinas proposes today, and what I try to identify in the lecture is another concept of law, another way of looking at law, certainly not the only one… Ronald Dworkin, a non-positivist, proposes yet another conception of what law, what juridicity is, what is the set of conditions under which we call something law. So I think this, shall we say, openness to plural concepts of law is a possible entry point for dialogue with people who have other different concepts of law than Thomas Aquinas. If someone is completely closed, sealed off from other possibilities, well, there is not much that you can do, and you can try constantly. Yeah.

Kevin Walsh (00:52:42):
Well, I will not ask another blunt question that thinks [inaudible 00:52:48] view of misunderstanding what we do here, but why don’t we do this? Without apology for not following up, we can now open to questions from those of you present, if you like.

Speaker 3 (00:53:13):
Thank you, father. I wanted to ask you about the notion of apportionment or attribution, that a thing is attributed to a title holder, because it seems central to this idea of juridical realism. Gratian talks about how, according to natural law… I think he’s following Augustine, but he says, “According to natural law, all things are held in common, but it’s according to law of emperors and rulers that personal property rights exist.” So my question for you is, would this align with Thomas’s view? And maybe this is just an example of how Thomas would say, “We do need positive law. It’s not the only law, but we do need it. There’s a complementarity. God ordains that there is positive law, there are rulers on earth who might establish the particularities we need in these things,” or is Thomas’s view just different from that view articulated by Gratian?

Petar Popovic (00:54:13):
Could you please repeat Gratian’s quotation so I can hear it again, please?

Speaker 3 (00:54:18):
I’m only paraphrasing, but he says, according to-

Petar Popovic (00:54:20):
[inaudible 00:54:20] Augustine saying?

Speaker 3 (00:54:21):
Yes. “According to natural law, all things are held in common, it’s by the laws of emperors and rulers that we have personal property.”

Petar Popovic (00:54:34):
Okay. So I think here, Gratian is probably, and Augustine too, is making a much more specific argument regarding the universal destination of goods and private property. So this is only one aspect. But Aquinas, when he introduces the concept of justice, this already introduces a distinction between what is mine and what is yours, as he says in the Summa, the difference between mine and yours, and the obligation to give to another what is his due, which presupposes a prior attribution through the titles of either positive or natural law, or in the Catholic Church, divine law. So I would say that it’s a much more specific argument that is the content of your quotation… Certainly, I don’t think that he tells it about all the things that fall under natural law, that everything belongs to everyone, this would be Thomas Hobbes in the State of Nature. So that’s another thing. I doubt that Gratian and Thomas Hobbes share the same ideas. So yeah, thank you. Thank you for the question.

Speaker 4 (00:55:52):
Yeah, a simple question by someone who’s an outsider to the door. Why would a Thomist take legal positivism seriously at all? The very notion that law is not anchored to a moral barometer outside of itself, a first glance, to someone, an amateur like me, seems like a monstrosity. So why give it any time the day at all?

Petar Popovic (00:56:18):
As I tried to say in the lecture, it is Aquinas’s argument that we need positive law. Because the basic human goods or the natural rights, however important they are, and however, at the foundations of each legal system, they must be, they’re simply not enough to cover all the specificities and details of coordination in a society. So Thomas says, “We need positive law to cover these issues.” So he speaks necesse est, it is necessary, that we have positive law. There is a human need for having something like positive law to determine further what is of course already outlined at the level of natural law.

Speaker 4 (00:57:03):
Just to follow up with that. So I understand that if natural law is too skeletal itself, then it needs to be supplemented and fleshed with positive law, I understand that. But I’m talking about the legal theory of positivism, would someone like Thomas say, ab initio, the very notion that law is purely positive is a monstrosity?

Petar Popovic (00:57:33):
Okay. Well, Aquinas certainly did not call it a monstrosity, but he said that if we remain only at the level of positive laws, we can achieve some, as he says, perversions of law, and the perversions that we saw throughout history, for example, Nazi laws. So legal positivism does not really provide us with the tools of repairing this damage. So if the laws are immoral, we should change them, until we change them, they are law, the positivists say so. So yeah, I’m currently researching and I intend to write an article on whether Aquinas was a soft positivist, so a much lighter version of positive law. The answer is of course, no, but it is interesting to me that many contemporary natural lawyers like, John Finnis, for example, share with legal positivists the argument that law in a political community must be posited in order to be really law.

Although morality must be present somehow in law, but in order to become law, it has to be posited. So this is something also interesting. I think Aquinas goes beyond this, I think that he would claim that there are non-posited elements of juridicity. So he’s definitely not sharing this positivist thesis. Thank you for your question.

Kevin Walsh (00:59:08):
I believe we have time for one more question, right in front here.

Speaker 5 (00:59:17):
I was wondering if you could say something more about the merely apparent law, the unjust law that only appears to be law. From Aquinas’s perspective, what are you supposed to do with these laws? I imagine he doesn’t have a sort of Thoreau’s civil disobedience attitude about these laws, but what do you do in a state with unjust laws?

Petar Popovic (00:59:50):
So this is a very broad argument actually. I’m currently writing, as Kevin said, in the introduction of book on Thomistic theoretical realism, and the biggest chapter is dedicated to this question. So there is no way I can answer everything in a couple of minutes here. What I can say is that, it is my opinion, reading Aquinas’s texts, that Aquinas holds that unjust laws are not only not ius, so they’re not definitely not a ratio of a ius. I believe that he says that they’re not even lex. They’re not lex. There is something lex-aspiring, lex-appearing, but are not lex because they lack justice. There might be other non-juridical reasons for action in obeying those laws, for example, to escape giving a scandalous example, or a corrupting example, or to circumvent civil disorder, but only in those matters that don’t fall under the natural law.

Okay. So what do we do? Well, of course, civil disobedience. But the real question is how do we continue to live in a political community with people who think differently from us, who think that these laws are not unjust, and these laws are valid and are applied in a society? So what do we do here? Shall we establish a parallel legal system, for example, legal system only for Catholics? Would that be an answer? And if so, would that mean diminish another set of reasons for action, which come from a friendship, civic friendship, or as the Catholic Church says, political love?

Yeah. It’s a very complex question. And the problem is complex in itself because there can exist… So we can’t have predominantly just legal system with some unjust legal norms, or we can have a totally corrupt and unjust legal system like totalitarian regimes and Nazi Germany? So yeah. Right. Questions become more extreme, the more unjust a regime is, and I think that this requires us to assume more extreme forms of friendship, and also more extreme and courageous behavior of civil disobedience in the case of deeply unjust legal systems. So I think that’s all I can say at the moment on the issue. Thank you for your question.

Kevin Walsh (01:02:45):
Well, please join me in expressing the gratitude that is Professor Popovic’s due for being with us and sharing the thought of Aquinas with us this evening.

Petar Popovic (01:02:57):
Thank you. Thank you.

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