Between Medieval and Modern Times. Political and legal thought of St. Thomas Aquinas and John Locke

Bogdan Szlachta, Ph

We all know that St. Thomas Aquinas was a Christian theologian and a moral philosopher of the thirteenth century; that he was perfectly well aware that his Greek master, Aristotle, was capable of distinguishing morally good and bad actions, that he was also convinced that without revelation we can have only an imperfect and inadequate knowledge of the purpose of human life and of man's supreme good. We know that when he is discussing man's final end he starts with the Aristotelian conception of 'happiness' and ends with the Christian doctrine of the beatific vision of God in heaven and that when he is discussing virtues he completes his treatment of them by talking about the 'theological virtues' of faith, hope and charity. But we know also that Aquinas believed in the harmonious relation between all truths, however attained, and he wished to exhibit and illustrate this harmony.

   First of all Aquinas maintains that in every human act the will is directed towards an end, towards something apprehended as or thought to be good, that is, something which is known or thought to perfect in some way the subject who desires and chooses. And in accordance with his finalistic conception of nature Aquinas goes on to argue that the human will is necessarily set towards the final or ultimate good of man as such, and that it is under the impulse of this dynamic and innate will's orientation that we make our particular choices, which are secondary to the main choice very much like all particular ends are secondary to the ultimate or final end. But it must be remembered that Aquinas presupposes the existence of God who created things with innate tendencies towards the development of their own real potentialities. He presupposes that human nature has been created by a personal God who would have not created it with an unavoidable impulse towards a non-existent good or an unobtainable good and - as a consequence - that all human beings, like all created things, tend towards the actualisation of the potentialities of their natures, even though they may never use terms like 'supreme' or 'final good', but they do so not only instinctively but also by means of intellect and will, natural intellect which alone is capable to see the idea of human good. For Aquinas grace does not annul but perfects human nature: revelation sheds further light, but it does not cancel the truths attainable by purely philosophic reflection.

   However the differences between Aristotle's and Aquinas' conceptions of man's ultimate good may be great, it is clear that both men developed finalistic or teleological theories of ethics, for both of them human acts derive their moral quality from their relation to man's final end. According to Aquinas, every human act has two sides, interior and exterior, 'formal' and 'material'; the absence of any one of them, especially of the right intention which belongs to the interior act, is sufficient to prevent ours calling it good in an unqualified manner. In order that a human act in the full sense should be morally good it must be compatible both 'formally' and 'materially' with the attainment of the final end. What is done, as well as the intention with which the act is performed and the way in which it is performed, must be compatible with attainment of the final end and from this relation the act ultimately derives its moral quality.

   In connection with Aquinas' idea of the law we may say now that the natural reason of all men sees that some acts are necessary to obtain man's good, for example this natural reason sees that it is necessary to take reasonable means to preserve one's life. Law in general, as he says, is a rule or measure of human acts, conceived by reason and promulgated with a view to the common good or an ordinance of reason made for the common good by him who has charge of the community, and promulgated[1], in virtue of which one is led to perform certain actions and restrained from the performance of others by reason as the first principle of human action, which directs action to its appropriate end[2]. Authority of law is from the will if it is regulated by 'reason when it commands'; this does not mean that for Aquinas the law depends on God's or other lawgiver's arbitrary choice, as later for example for Scotists. He speaks of God as an artist who has an idea of the work to be created or done and of the means to its fulfilment. God conceives eternally all creatures according to their different kinds: He conceives their ends and the means to the attainment of these ends. And the divine wisdom, considered as moving all things according to their several ends in subordination to the end of the whole created universe, the communication of the divine perfection, is the eternal law. Hence the eternal law is nothing else than the plan of the divine wisdom considered as directing all the acts and motions' of creatures[3] to the attainment of their ends. Man, as a rational and free being, is capable of acting in ways which are incompatible with this law and it is therefore essential that he should know the eternal law so far as it concerns himself. But although man cannot read off the eternal law in God's mind, he can discern the fundamental tendencies and needs of his nature, and by reflecting on them he can come to a knowledge of the natural moral law. Every man possesses the natural inclinations to the development of his possibilities and the attainment of the good for man. Every man possesses also the light of reason whereby he can reflect on these fundamental inclinations of his nature and promulgate to himself the natural law, which is the totality of the universal precepts or dictates of right reason concerning the good which is to be followed and the evil which is to be shunned. By the light of his own natural reason, therefore, man can arrive at some knowledge of the natural law. And since this law is a participation in or reflection of the eternal law and so far as the reflection concerns human beings and their free acts, man is not left in ignorance of the eternal law which is the ultimate rule of all conduct[4].

For Aquinas, therefore, it is the human reason which is the proximate or immediate promulgator of the natural law. This law is not without a relation to something above itself; for it it is, as we have seen, the reflection or participation in the eternal law. But inasmuch as it is immediately promulgated by the human reason we can speak of a certain autonomy of the practical reason. This does not mean that man can alter the natural law which is founded in his nature. But it means that the human being does not receive the law simply by imposition from above: he recognises or can recognise its inherent rationality and binding force, and he promulgates it to himself[5]. In his conception of natural law as the expression of the man's dignity and power, Aquinas makes man alone among created beings as participating intellectually and actively in the rational order of the universe. Man is called to do so because of his rational nature. It is the light of natural reason which enables us to discern good from evil. St. Thomas's notion of the light of reason is of great importance. Man is conceived to hold the unique position of being at the same time a subject of God and His co-operator. But man participates in two worlds. The order of the precepts of the natural law corresponds to the order of his natural inclination, includes the qualities which he has in common with all created beings as well as those which are distinctive for his own rational nature. He has in common with all created things the desire for self-preservation. Hence the first group of the precepts of the natural law comprises all that makes for the preservation of human life. But man has also in common with animated beings further inclination to more specific ends. Hence it is right to say that 'what nature has taught all animals' pertains to the natural law - such as sexual relationships, the rearing of offspring and the like. But, finally, there is in man a certain inclination to know the truth about God and to live in society. So, all those actions pertain to the natural law to which man has a natural inclination: and among such it is proper to man to seek to act according to reason, which gives first principles of rightness for everybody and is equally known by every one or the same for all as a norm of right conduct and is equally well known by everyone.[6]

The order of the precepts of the natural law follows the order of natural inclinations; and - as a consequence - these precepts as well as these inclinations or tendencies are directing man towards his ultimate good, giving him knowledge of which is necessary for the right ordering of his life and also the conviction that he should live in society with other men. Aquinas thought of man as tending naturally and inevitably towards his perfection, towards the actualisation of his potentialities as man, towards his final end or good. And he thought of the man's reason as discerning the necessary acts to the attainment of this end and as ordering them while forbidding their contraries. In this sense obligation or norm is imposed by the practical reason, binding the free will to perform the necessary acts to attain of the final end or man's good and to abstain from acts which are incompatible with its attainment.

   But, at the same time, for Aquinas one may act and one has iura only on the foundation of the natural law and in the area which presents its objective norms. In his doctrine we have no modern natural rights theory although we have the natural law theory. Something can be said to be according to the ius naturale in two ways, said Aquinas when he spoke about the man's natural life. One, if nature inclines us to it: such as not to harm another human being. The other, if nature does not prescribe the opposite: so that we can say a man is naked under the ius naturale, since he received no clothes from nature but invented them himself. In this way "the common possession of all things, and the equal liberty of all is said to be according to the ius naturale: for distinctions between possessions and slavery were not the products of nature, but were made by human reason for the advantage of human life'.[7] In a state of nature men have no rights, because the ius naturale is neutral in the areas of personal servitude and private property. In spite of all modern natural rights theory there is no prima facie rights to men; men do not have a prima facie natural right to absolute liberty any more than they have a prima facie natural right to dominate other men.[8]

Aquinas generally used ius and lex, right and law, as interchangeable terms, pointing that legalism should follow the grain of reality and that continuity between implanted right and enacted law should be kept. Whereas the medieval jurists generally spoke of ius naturale and the theologians of lex naturalis he was inclined to reverse the usage, preferring lex in his judicial treatise and jus in his theological treatise on the cardinal virtue of justice. Lex was not ius precisely, but in some manner was its rational expression, because ius signified an objective quality.[9] . If legislation was a part of the practical wisdom of governing the community, one man could rightfully control another only by showing a reason for his power: even omnipotence cannot break the order of truth, but the true and rational legislator ought to have prudentia regnativa, a species of prudence, the intellectual and moral virtue of which he act was to command.[10] Legislator's recta ratio is no so closely linked with ius naturale in Aquinas' doctrine as some contemporary commentators suppose and therefore there is no contrast between ius naturale and lex naturalis.[11]


For St. Thomas lex means much more than positive statement and very much more indeed than written law; he often speaks of ius positivum instead of lex positiva, of lex naturalis instead of ius naturale, and - as Brown has supposed - he uses ius and lex metonymously in respect of all of the following kinds of ius-lex: divine, natural, positive, and human.[12] He does indeed draw a distinction between these terms, but in both of them he presents the same rational substance. Valid are only those iura and leges which are rational but not as man's rationality but as rationality of God and His order. On the other hand, only these iura are valid which have legal foundation. It is a very important thesis because substance of the personal right is connected not with personal power or dominium but with rational action which directs man to his ultimate end. We have already seen, however, that for Aquinas, the Christian theologian, man has a supernatural final end or supreme good that the attainment of which transcends his natural power and directs his natural rights through his natural inclinations as well as through the norms of the natural law.

   The identification of the man's good with 'happiness' or with self-perfection may easily give the impression that Aquinas' ideal was purely individualistic and even egoistic in an unpleasant sense. Yet he has regarded life in society as being prescribed by the natural law. That is to say, he recognised in the human being a natural tendency to live in society with his fellows, not only in a smaller group of the immediate family circle but also in those larger groups which are called in their developed form states or political communities. Social life is thus founded on human nature itself, and both families and states are natural communities. Reason, reflecting on man's fundamental inclinations, says that these societies ought to be formed, inasmuch as they are necessary for the development of man's potentialities. It is natural for man to be a social and a political animal, living in community; and this is more true of him than of any other animal, a fact which is shown by his natural necessities[13], bodily as well as spiritual needs. Society is therefore not a purely artificial construction but a natural institution as a result of man being what he is. And as founded on human nature it is willed by God who created man. This does not mean, of course, that the historical divisions into nations and states are dictated by God but that there should be a civil or political society or societies willed by God, as is shown by the fact that He created man who cannot attain his full stature without society.[14]

Furthermore, every society requires direction and government. For Aquinas it is a mistake to think, not only with St Augustine but also with Locke, that government exists simply in order to keep peace and punish evildoers. According to him, government would be required even if there were no evildoers and even if no one was inclined to disturbe the peace. St Augustine was inclined to say that the state was a result of the man's Fall and as though political authority existed primarily because fallen human beings needed to coercive power to restrain their evil tendencies and to punish crime. Locke said about anti-rational passions which incline men to break the law of nature. But these were not at all Aquinas' points of view. Man is by nature a social animal. Hence in the state of innocence (if there had been no Fall) men would have lived in society. But a common social life of many individuals could not exist unless there were someone in control to attend to the common good.[15] Government, like society, is natural and willed by God. It exists primarily to care of common good, for the good life of the community three things are required. First, that the community should be established in the unity of peace. Secondly, that the community, united in the bond of peace, should be directed to good action... Thirdly, that through the ruler's diligence there should be a sufficient supply of the necessities for a good life.[16] The government therefore exists to preserve internal peace and to take care for the defence of the community, to promote the moral well-being of the citizens, so far as this can be done by legislation supported by sanctions, and to ensure citizens a sufficient supply of material necessities. In Aquinas' doctrine there is no place for a contract which constitutes society or government.

   Since the function of the state as well as the function of its legislator or legislators is to promote the common good which has no individualistic substance, the criterion of goodness and badness in legislation is its relation, discerned by reason, to common good and not to the interests of  individuals or groups. It does not imply that every precept and prohibition of the natural law should be embodied in legislation, as will be thought for example by English Puritans. But the state is not entitled to pass legislation which runs counter to the natural law in any case. Every human law has the nature of law in so far as it is derived from the law of nature. If in any case it is incompatible with the natural law, it will not be law, but a perversion of law.[17] And, therefore, Aquinas may say also that the will of the prince has the power of law only when is rational and directed towards the well-being of the whole community as a perfect whole[18], while in any other sense the will of the prince becomes an evil rather than law.[19]

From this view of the relation of human positive law to the natural law it naturally follows that just laws are binding, while unjust laws are not binding in conscience. A law is unjust, says Aquinas, if it imposes burdens on the citizens, not for the common good, but to satisfy the cupidity or the ambition of the legislator; if in enacting the law the legislator goes beyond the powers committed to him; or if burdens are imposed in an unfair and disproportionate manner. Laws of this kind are acts of violence rather than laws... they do not bind in conscience unless observance of them is required in order to avoid scandal or public disturbance. Laws can also be unjust by contravening the divine positive law, namely the precepts of the Decalogue, and laws of this sort ought not to be obeyed.[20] The sovereignty of the ruler or legislator does not cancel the notion of legal obligation. Positive law does not exhaust the whole range of legal experience. There may be laws other than the commands of the sovereign, laws with a different structure yet nevertheless binding and formally perfect. The natural law and the laws of the international community (ius gentium) are devoid of sanctions but both are properly called laws and are binding even on the sovereign. Like Albericus Gentilis, one of the founders of modern international law, Aquinas may say that the 'absolute' prince is a prince who is above positive law but under natural law and under the law of nations.[21]


Between Aquinas and Locke we may see not only Richard Hooker's Thomistic in essence doctrine, which for English thinker will be crucial, but also a quite opposite political and legal direction among Christian philosophers of the later  Middle Ages. The famous members of the Franciscan order, not Dominican as Aquinas, Duns Scotus and William of Ockham, connected the law of nature or God with legal rights. For Scotus ius naturale was not simply neutral with regard to dominium, as was in Aquinas, but it positively ruled it out, since common use was the optimum strategy for men in a state of innocence. For him, common use was the common dominium. It was not the case that the human race collectively had the kind of right over the world, rather that each human being was simply able to take what he needed, and had no right to exclude other one from what was necessary for him.[22]


Scotus took dominium to be necessarily private, something which not only could be exchanged, but which could also be defended against the claims of the needy, and quite possible by violence. Man could have property, which was not purely a feature of a social life. In Ockham's case, one may see identification of the right of use and the right of ownership[23] and, as a consequence, identification individual or subjective powers with rights, rights of God or humankind as well as rights of individual person. In this conception there is no impersonal common good and public norms as may seem to have objective validity. There are public norms which are conventional constructions of these various subjects and which regulate only external relations between citizens. Hence political thought and action is totally concerned with the conflict, balancing and delegating various but always subjective powers-rights.[24]

Scotists' nominalism meant a crisis in Scholastic method, a quarrel about "universals" and an anticipation of the modern theory of rights-powers. The vindication of the will's primacy over the intellect led to the denial that ethical values can have any other foundation but the will of God that imposes them. The notion of God as an unlimited and arbitrary power implied the reduction of all moral laws to inscrutable manifestations of divine omnipotence. The basis of the "natural system of ethics" was discarded. Natural law ceases to be a bridge between God and man. It affords no indication of the existence of an eternal and immutable order. It no longer constitutes the measure of man's dignity and of his capacity for participation in that order, a standard of good and evil available to all rational creatures, because for nominalists an action was not good thanks to its suitability to the essential nature of man but thanks to God's arbitral will. Validity of the norms was founded not on the standards of God's reason as well as man's reason but only on God's absolute will. Law was not reason but will, pure will without any foundation in reality, without foundation in the essential nature of things.

   It is as if the notion of sovereignty was applied here to the divine law-giver himself. The notion of sovereignty of God as legibus solutus became the pivot of Calvin's ethics and theology and later the foundation of the modern conception of sovereignty as well as the new conception of natural law which was the product of the Age of Reason. But this influence was enough paradoxical because the revival of natural law which took place on the turn of sixteenth and seventeenth century was essentially a rejection of the nominalist or voluntarist theory of law. Thus Grotius' famous proposition, that natural law would retain its validity even if God did not exist, which appears as a turning point in the history of Western thought, it was the answer to the challenge not of rational-realistic ethics of Aquinas, but of voluntarist and nominalistic one. It meant the assertion that command is not the essence of law and that natural law is independent of the God's will. This meaning goes in the same direction as a convenient summary of Catholic conception which was given at the beginning of the seventeenth century by Spanish Jesuit Francisco Suárez, who had also taken the view that natural law does not depend on the will "of any superior", especially the will of absolute monarch as wanted to apologise the creators of the doctrine of "divine rights of kings".

  The modern theory of natural law is not, properly speaking, a theory of law at all. It is a theory of rights. A momentous change has taken place under the cover of the same verbal expressions. The ius naturale of the modern political philosopher is no longer the lex naturalis of the medieval moralist nor the ius naturale of the Roman lawyer. These different conceptions have in common only the name. This significant fact pointed out Hobbes: though they speak of this subject use to confound ius and lex, right and law: yet they ought to be distinguished; because right consisteth in liberty to do, or to forbear: whereas law determineth, and bindeth to one of them: so that law and right differ as much, as obligation and liberty.[25] From this distinction he had argued that civil war is caused by each individual claiming the right to judge the law in accordance with their subjective standard of conscience or 'private judgement'.[26]

The different meanings of the word ius were for a long time familiar to the lawyers who had been brought up in the study of the Roman law. They had carefully distinguished between "objective" and "subjective right", between the norma agendi (the rule of action) and the facultas agendi (the right to act) which can both be indicated by the same name of ius. But they had never overlooked the fact, which Hobbes seems either to ignore or to implicitly deny, that the two meanings of ius are not antithetical, but correlative. In the language of the law-schools and as we have seen of St Thomas, ius could be used in an "objective" as well as in a "subjective" sense: but the latter always presupposes the former. There is a facultas agendi inasmuch as there is a norma agendi. There is a "right" inasmuch as there is a law.

   But for the great majority of modern natural law writers Hobbes' anarchical conception of natural right as opposed to natural law was crucial.[27] Even Locke in the Two Treatises argued that in a system of popular sovereignty members would withdraw their consent and revolt whenever a law conflicted with their private interest, claiming that it contravened the public good. Although he said that the freedom of an Englishman consists in his liberty to dispose of his actions and possessions according to the laws of England, his emphasis was shifting more and more from the objective to the subjective meaning of ius. For him individual human freedom was connected not with the ultimate end or good of man, nor with the norms of the natural law which are obligated for all men, but with the right of individual who has the power quite similar to that which nominalists and voluntarists had given to God alone. In his doctrine individuals, very like to Byzantine prince, were the living embodiments of the law (lex animata) and their will and law became correlative notions. In his natural right theories one may see once again the old idea of Roman and glossators texts of a supreme and ultimate human power from which all laws proceed. Idea which undermines all possibility of serious natural law thinking, because natural law is not properly law if sovereignty is the essential condition of legal experience, because it is not possible to conceive a law of nature if command is the essence of law.[28]

If a rule may be laid down as a command we cannot distinguish in law with Aquinas the 'compelling' and the 'directing' aspects of law (vis coactiva - vis directiva). Hence, while for Aquinas the 'directing' aspect of law was crucial, because it was the element of justice, for Locke both aspects are identified. He said not only that political power is a right of making laws[29], but also that the state of nature, the pre-political state, has a law of nature to govern it, which obliges every one, supposing the law of nature as a set of norm or norms, has no political character if only political power is a right of making this norm or these norms. Locke said at the same time that reason, which is that law (of nature), reaches all mankind who will but consult it, that, being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions.[30]


In this context we must ask a question about the primary rights as a capacity of the individual who realises his personal ability or power over law as a set of norms which rules individuals' actions. And a second question: what is substantial relationships between norm of the law of nature and such individual ability or power? Locke writes, on the one hand, that all men may be restrained from invading others' rights, and from doing hurt to one another[31], because rights of every man create a property in his own person[32]. And, on the other hand, that the law of nature willeth the peace and preservation of all mankind[33]. In these words he creates a very important doctrine for all liberal tradition and modern natural law thinkers on the priority rights before law. Now, law as the set of norms, is identified with human reason, has no objective context and is only a guarantee of the individual rights and as such it does not determinate the individual ability or power; it occupies a second position whilst the first is taken up by personal rights or property.

   Locke calls property or dominium this right of every man in the state of nature to dispose of himself and his possessions as he thinks fit; for him every man has a property in his own person; by which he means that a man has a natural right, limited only by God's purposes and by the obligation to respect the same right of others, to do as one pleases. He may not destroy himself, because he is God's creature. His property in himself is not independent of God's will but is not connected with God's reason as in Aquinas' doctrine. There is no eternal law which norms are supplanted to all created being in a form of natural inclinations, with which all rational natural law norms are compatible. Rather there is only one inclination, which directs individual not to his supernatural and ultimate end but reduces him to the natural or material reality and is a foundation of his rights but not law. As a consequence, God alone guarantees not the essence of law as a set of norms, but essence of rights as a personal ability/power. The state of nature is not a state of war not because every individual has a natural inclination to live in a political community, if this state is quite different from the state of civil society. It is not a state of war, because reason governs in it, pure reason, free from every passion and every pre-rational, even biological, inclination, which knows natural rights of every individual. The substance of it is very simple, since reason or the law of nature knows only one norm: you may not invade others' rights; if there are no rights the law of reason will be quite empty.

   But here Locke has an important problem: in the state of nature men had the law of nature to guide them, but they, from time to time, must have differed about the law or about its application to particular cases. They must therefore have felt a need for an established, settled known law, received and allowed by common consent to be the standard of right and wrong, and also for a known and indifferent judge, with authority to determinate all differences according to the established law, and lastly for a power to back and support the sentence when right, and to give it due execution.[34] By putting themselves under government, men do not give up all their rights, but only those which must be surrendered for the common good, which is only the preservation of freedom or property or a set of personal, passive rights. They give up only two active rights or powers: to interpret the norm of the law of nature and to punish. Government, which is like society not a natural institution, has no absolute authority, but only as much as it needs for the common good which is defined now as a sum of individual interests and in no sense as a good of a whole community. The law of nature, this only one norm, stands - says Locke - an eternal rule to all men, legislators as well as others.[35]

The Two Treatises is the most radical answer that has been given yet to the main moral-jurisprudential question for the seventieth century of who has and who has not the 'right' to political power. For Locke each individual does have and should have the political power in the juridical form of personal rights. Therefore, first, prior to and independent of the establishment of institutionalised forms of government people are able to govern themselves; and, second, the power of institutionalised forms of government is derived from the original powers of the individual members of the political society. But, third, and the most important, which in some sense connects Locke with Aquinas but makes him quite different from the majority of modern natural freedom theorists, individuals have not only the right to defend themselves and their possessions from attack, even to kill the attacker if necessary, not only this right of defence, but also political power, having it individually and not as a corporate body. By arguing in the Two Tracts that the state of nature has a natural law enforced by the passive system Locke showed that natural freedom is not Hobbesian 'absent of restraint' (or 'negative liberty') but - like in Aquinas doctrine - the juridical form of freedom as action within the bounds of and subject to law[36]. It follows from the constitutive role of natural law or reason that individuals who transgress it, in civil or natural society, by using 'Force without Right' or manifesting a 'declared design' to do so, place themselves outside moral human society, and thereby in a 'state of war'[37].


Locke's innovation here - one may say[38] - is to argue that the fundamental natural law is not self-preservation but the 'preservation of mankind', but we must remember about the foundations of his natural law which are quite different from Aquinas as a consequence his individualistic and no communitarian premises as well as his appeal to natural rights and no to natural inclinations on which are grounded norms of the natural law and only secondary to this law. If we do not remember about Locke's individualistic premises we may not understand his radical breaking with the Aristotelian-Thomistic tradition and make such error as Tully who has written that natural property rights are (in Locke's doctrine) use-rights within a larger framework of rights and duties to preserve the community (mankind) and regulated by everyone through the accusatory system[39]. We are not able to see that for the classic of early liberalism reason, which is the natural law, teaches all mankind who will but consult it, that... no one ought to harm another in his life, health, liberty, or possessions, namely in his personal and subjective rights, but only if his own self-preservation is secured. We are also not able to see the anti-naturalistic consequences of Locke's contractual conceptions of society and state as well as his identifications of right or ius with power or dominium, "objective" and "subjective right" and the norma agendi and the facultas agendi, which are crucial for the modern political philosophy, especially liberal one.

[1] St Thomas Aquinas, Summa Theologiae 1a 2ae, 90.4, ed. T. Gilby (London, 1966).

[2] Ibid., 90.1.

[3] Ibid., 93.1.

[4] The natural law is nothing else but a participation of the eternal law in a rational creature (Ibid., 91.2).

[5] It is clear - says Aquinas - that the whole community of the universe is governed by the divine reason, by eternal law; all things are subject to divine Providence and are measured and regulated by this kind of rational law; all participate to some degree in it, in so far as they derive from it certain inclinations to those actions and aims which are proper to them. But, of all others, rational creatures are subject to divine Providence in a very special way; being themselves made participators in Providence itself, in that they control their own actions and the actions of others. So they have a certain share in the divine reason itself, deriving therefrom a natural inclination to such actions and endes as are fitting. This participation in the eternal law by rational creatures is called the natural law; natural law which is nothing else than the impression of the divine light in us and participation of the eternal law in rational creatures (S.T. 1a 2ae, 91.1 and 2).

[6] Ibid., 94.2. Like ancient Roman lawyer Ulpian, Aquinas pointed out that man has something in common with all created beings, with plants and animals for example; like all medieval Christian lawyers, he pointed out also that the man has something in common with supernatural Being (God) or beings like angels but not only with Him or them. As to the relation between negative borders of freedom of human legislation Aquinas said as follows, that 'the validity of law depends upon its justice. But in human affairs a thing is said to be just when it accords aright with the rule of reason: and , as we have already seen, the first rule of reason is natural law. Thus all humanly enacted laws are in accord with reason to the extent that they derive from the natural law. And if a human law is at variance in any particular with the natural law, it is no longer legal, but rather a corruption of law' (Ibid., 95.2).

[7] Ibid., 94.5.

[8] See R. Tuck, Natural Rights Theories. Their origin and development (Cambridge 1979), p. 20.

[9] See, first of all, S.T. 1a 2ae, 105.2 ad. 3 and 2a 2ae, 57.1 ad 1 and 2.

[10] See Th. Gilby O.P., Principality and Polity. Aquinas and the Rise of State Theory in the West (London 1958), pp. 125-8.

[11] See V.J. Bourke, 'Is Rhomas Aquinas a Natural Law Ethicist?', The Monist 58(1974), pp. 62-3.

[12] O.J. Brown, Natural Rectitude and Divine Law in Aquinas. An Approach to an Integral Interpretation of the Thomistic Doctrine of Law (Toronto, 1981), Appendix I: 'Ius' and 'Lex' in Aquinas, p. 174.

[13] St Thomas Aquinas, De Regimine Principium, 1,1.

[14] See F.C. Copleston, Aquinas (Harmondsworth, 1955), pp. 227-229.

[15] S.T. 1a 2ae, 96.4.

[16] De Regimine Principium, 1.15.

[17] S.T. 1a 2ae, 95.2.

[18] Ibid., 90.2, concl.

[19] Ibid., 90. ad 3um.

[20] Ibid., 96.4.

[21] Albericus Gentilis, Regales Disputationes Tres, 1605 (Disp. I, De Potestate Regia Absoluta, p. 17). For further informations see: A.P. d'Entrèves, Natural Law. An Introduction to Legal Philosophy (4th impression, London, 1957), pp. 67-68.

[22] R. Tuck, Natural Rights Theories, pp. 21-2.

[23] The right of use (ius utendi) Ockham defined as a licit power of using an external object, the unwarranted denial of which can be prosecuted in a court of law; as to the right of ownership: a principal power of laying claim to a thing in court and of using it in any way not prohibited by natural law; both in: Opus Nonaginta Dierum, ed. by R.F. Bennett and J.G. Sikes, ch. 2 (Manchester, 1940), pp. 304 and 310.

[24] See A.S. McGrade, 'Ockham and the Birth of Individual Rights', in: Authority and Power. Studies in Medieval Law and Government presented to Walter Ullmann on his Seventieth Birthday, ed. by B. Tierney and P. Linehan (Cambridge, 1980), pp. 149-51. See also M. Villey, 'La Genèse du droit subjectif chez Guillaume d'Occam', Archives de Philosophie du Droit, IX(1964), pp. 97-127, and B. Szlachta, Nowo¿ytny prze³om w pojmowaniu prawa naturalnego, in: Kszta³towanie postawy obywatelskiej, ed. by P. Lenartowicz (Cracow, 1997), pp. 35-80.

[25] Leviathan, I.14.

[26] Ibid., II.29.

[27] See positions by A.P. d'Entrèves, Natural Law, pp. 59-60 (for majority of these writers 'natural law was the necessary presupposition of natural right', p. 60) and the opposite view by L. Strauss, The Political Philosophy of Hobbes (New York 1936), p. 156.

[28] A.P. d'Entrèves, Natural Law, p. 66.

[29] Two Treatises of Civil Government, II.i.3.

[30] Ibid., II.ii.6.

[31] Ibid.

[32] Ibid., II.v.27.

[33] Ibid., II.ii.7.

[34] Ibid., II.ix.124.

[35] Ibid., II.xi.134. On the second hand, for Locke the same law of nature that does by this means give us property, does also bound that property too. 'God has given us all things richly' (I Tim. vi.17), is the voice of reason confirmed by inspiration. But how far has he given it us? To enjoy. As much as any one can make use of to any advantage of life before it spoils; so much he may by his labour fix a property in. Whatever is beyond this, is more than his share, and belong to others (Ibid., II.v.31).

[36] Ibid., II.iv.22; See J. Tully, 'Locke on Liberty', in: Conceptions of Liberty in Political Philosophy, ed. Z. Pelczynski and J. Gray (London, 1984) and 'The Origins of Political Individualism', Proceedings of the Annual Congress of Canadian Learned Societies (Winnipeg, 1986), passim.

[37] Ibid., for example II.iii.16 and 19.

[38] See, for example, J. Tully, 'Locke', in: The Cambridge History of Political Thought 1450-1700, ed. by J.H. Burns with the assistance of M. Goldie (Cambridge, 1991), p. 627.

[39] Ibid., p. 628.

Bogdan Szlachta - Dziekan Wydziału Studiów Międzynarodowych i Politycznych Uniwersytetu Jagiellońskiego, członek Ośrodka Myśli Politycznej; opublikował "Szkice o konserwatyzmie" (2008), "Monarchia prawa?" (2008), "Konstytucjonalizm czy absolutyzm" (2005), "Monarchia prawa" (2001), "Polscy konserwatyści wobec ustroju politycznego do 1939 roku" (2000), "Z dziejów polskiego konserwatyzmu" (2000), "Konserwatyzm" (1998), "Ład – Kościół – Naród" (1996). Redaktor wyborów pism w serii Biblioteka Klasyki Polskiej Myśli Politycznej - "Obiektywna podstawa prawa" (2001), Stanisław Koźmian "Bezkarność" (2000), Kazimierz W. Kumaniecki "W poszukiwaniu suwerena" (2006), Jan Koźmian "Dwa bałwochwalstwa" (2007), Hieronim Kajsiewicz "O duchu rewolucyjnym" (2008), oraz dzieła Stanisława Tarnowskiego "Pisarze polityczni XVI wieku" (2000). Współautor wydanych przez OMP prac zbiorowych "Patriotyzm i zdrada" (2008), "Wolność i jej granice" (2007), "Drogi do nowoczesności" (2006), "Patriotyzm Polaków" (2006), "Antykomunizm po komunizmie" (2000), "Narody i historia" (2000) i "Państwo jako wyzwanie" (2000).

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