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St. Thomas Aquinas on Angels, Demons, and Evil ‘Law’

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Ius et Iustitium is happy to present this guest post by Anna Lukina. Anna Lukina is a graduate of the University of Oxford (BA, BCL) and Harvard Law School (LLM). She is a lecturer at Free University Moscow and an incoming PhD student at the University of Cambridge. Her doctoral project will be entitled “Towards a Jurisprudence of Evil Law.” This is the first in a brief series on law and angelology. Pat Smith’s reply can be found here. Pater Edmund Waldstein is writing a response as well, which will be forthcoming soon.

Law, with its ability to change one’s moral obligations and authorize coercion, has the capacity not only to deter, but also to produce evil. This ‘immorality that law makes possible’ (to quote Leslie Green[1]) remains a subject of great interest. In this piece, I aim to explore how this problem was unpacked in the work of St Thomas Aquinas and what insights can it bring to the contemporary jurisprudence. In short, St Aquinas’s teaching on demons shows how the legal form can aid evil regimes despite this use of law taking away from its nature.

This adds much needed nuance to the following exchange between Nigel Simmonds and Matthew Kramer, exemplary of modern legal thought. Simmonds has argued that, since governing by law means that the state needs to restrict its actions, an evil regime would prefer to govern extralegally[2]. As a result, the rule of law[3], he claimed, would be better construed as being, as expressed in Lon Fuller’s formulation, ‘the inner morality of law[4]’, or having a necessary normative quality. Kramer challenges his view, retorting that notwithstanding the limitations it places on the state, governing by law is nevertheless serviceable to evil regimes as it guarantees better compliance of the citizenry with the state’s directives[5]. This renders law akin to, as per Joseph Raz’s analogy, a knife[6], an instrument that can be used for good and evil.

Even though both authors build on relatively contemporary examples – Kramer on the 20th century dictatorships that heavily relied on state machinery such as the Nazi Germany and the Soviet Union under Stalin and Simmonds – on rudimentary quasi-states such as the Taliban or Daesh, the discussion of the relationship between evil and law can be traced back to classical legal thought. In Summa Theologica, St Aquinas approaches this problem when talking about ‘The City of Evil [emphasis mine]’ (to borrow from St Augustine), or the society of demons.

To understand the demons, one should first understand the angels. Angels are each of distinct species and possess different capacities for knowledge and love. This makes it necessary for them to be hierarchically ordered, so ‘higher’ angels can guide ‘lower’ angels to know and love God[7] (which resembles Raz’s ‘society of angels’ thought experiment centuries later, which demonstrates that even perfectly moral communities need law’s coordinative capacities despite not needing sanctions[8]). As a result, angels form a ‘divine government [emphasis mine]’ (as per St. Aquinas) or ‘The City [emphasis mine] of God’ (as per St. Augustine) that St. Aquinas sees as similar to an order within an army or a state[9].

Demons, or fallen angels, retain some aspects of angelic nature even after they have sinned. Their intellect remains and so does their need to have superiors and inferiors among themselves[10], even if they no longer possess love and friendship central to angelic hierarchy. This resembles Immanuel Kant’s famous remark that ‘the problem of the formation of the state, hard as it may sound, is not insoluble, even for a race of devils, granted
that they have intelligence’, as demons would have to obey the law for self-preservation reasons[11]. Despite hating each other, they band together for pursuit of their individual goals – of ‘attain[ing] their ultimate beatitude of their own natural powers[12]’ – that still necessitate subjection to one common authority (that of Satan). The City of Evil is thus not built on chaos (otherwise it would not be a City), but operates according to its own rules.

Our nature resembles one of angels and demons in one important respect. In ST I Q96 A4, St. Aquinas describes a community of men in the state of innocence, or before the Fall of Man. Even though, unlike among angels or demons, there is no natural hierarchy among men[13], some of these men will ‘surpass [others] in knowledge and virtue’ and thus have to guide them in pursuit of the common good – their proper collective ends. Thus, to St. Aquinas, the main purpose of human law – even after the Fall – is to coordinate, or be a work of reason, coercion remaining merely incidental and necessitated by imperfect circumstances[14]. While he does not address this question upfront, I cannot see why a similar argument (with an important caveat that will be explained below) could not be made about a human community oriented towards evil, such as a band of robbers or a totalitarian state – like demons, they would need some kind of hierarchy and rules to succeed. In other words, we, whether pursuing good or evil, are by our nature in need of coordination and cannot achieve our aims in the state of complete chaos.

While this is, on its face, closer to Kramer’s position in the Simmonds-Kramer debate, it does not, mean that St. Aquinas would embrace it in its entirety. Famously, in ST I-II Q90 A4 he defines law as ‘an ordinance of reason for the common good [emphasis mine], made by him who has care of the community, and promulgated.’ This suggests that while he would consider an angelic society as needing law, the society of demons, oriented not to the common good, but toward destructive purposes, would only have quasi-legal rules. More so, St. Aquinas is talking not only about unjust ‘laws’, but all ‘laws’ with an unjust purpose (as per ST I-II Q96 A4, laws can be unjust ‘in respect of the end, as when an authority imposes on his subjects burdensome laws, conducive, not to the common good, but rather to his own cupidity or vainglory’), rendering even neutral or benign ‘laws’ in an evil regime merely law-like, but not legal in their fullest sense. Thus, in his treatment of evil law he goes even further than Gustav Radbruch, whose famous formula assessed legal validity of individual statutes rather than law-making capacity of whole legal systems[15]. Consequently, unlike Kramer, St. Aquinas retains a very strong normative vision of the law’s nature.

Therefore, St. Aquinas’s writings signify a third position in the Simmonds-Kramer debate: the one that accepts that law might be serviceable to evil regimes, but that such use is improper and takes something away from the law’s nature. It retains the distinctive position of natural lawyers with regards to what the law is yet is pragmatic in recognizing potential abuses of the legal form. The latter is not at odds St. Aquinas’s reflections on the nature of things, but is rooted in his metaphysics. To St. Aquinas, evil is a privation, or non-existence, of good, rather than something existing distinctly from the good. Therefore, even the worst things necessarily retain some of their goodness[16], or, to quote Serge-Thomas Bonino:

The idea of a chaos or an absolute anarchy is as contradictory as the notion of an absolute evil. Just as evil is a parasite of the good, anarchy is a parasite of order. If anarchy were to triumph, it would immediately self-destruct.[17]

Evil ‘law’, for St. Aquinas, is thus not something totally distinct from law proper, but law with ‘missing parts’, and therefore is still capable of maintaining order. Thus, it is possible for this ‘law’ to be both defective as ‘an ordinance of reason for the common good’ and effective as a coordination mechanism in evil regimes. This understanding can enrich our appraisal of evil regimes past and present and, in a way, reconcile the best we can gain from normative and descriptive analyses of law.

For more on this topic, see my draft paper: Lukina, Anna, Angels, Demons, Us: Raz and Aquinas on Law’s Necessity (October 3, 2020). Available at SSRN: https://ssrn.com/abstract=3704242 or http://dx.doi.org/10.2139/ssrn.3704242. I thank Professor Adrian Vermeule for inspiring this paper. I am indebted to the Thomistic Institute’s resources (including their Aquinas 101 Study Group: Creation, Governance, and the Angels) and Br. Nicholas Hartman, O.P. All mistakes, of course, remain my own.

  1. Leslie Green, ‘Positivism and the Inseparability of Law and Morals’ 83 New York University Law Review 1035, 1035. https://www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-83-4-Green.pdf ↑
  2. Nigel Simmonds, Central Issues in Jurisprudence: Justice, Law and Rights (Sweet & Maxwell 1986) 230–232. ↑
  3. While I do not have sufficient space to discuss the relationship between the rule of law and the concept of law, I take, following Fuller, some minimum rule of law requirement as being necessary for the existence of a legal system. Lon L Fuller, The Morality of Law (Rev ed, Yale University Press 1969) 33. ↑
  4. ibid. ↑
  5. Matthew H Kramer, ‘On the Moral Status of the Rule of Law’ (2004) 63 Cambridge Law Journal 65, 69. ↑
  6. Joseph Raz, ‘The Rule of Law and Its Virtue’, The Authority of Law: Essays on Law and Morality (Clarendon Press; OUP 1979) 225. http://fs2.american.edu/dfagel/www/Philosophers/Raz/Rule%20of%20Law%20and%20its%20Virtue_%20%20Joseph%20Raz.pdf ↑
  7. Thomas Aquinas, Summa Theologica (Dominicans. English Province tr, 1st complete American ed., Benziger Bros 1947) I Q55 A3, Q108 A1, A4 <https://aquinas101.thomisticinstitute.org/st-index>. ↑
  8. Joseph Raz, Practical Reason and Norms (OUP 1999) 159–160. ↑
  9. Aquinas, ST I Q108 A6. ↑
  10. ibid., ST I Q109 A2 ad.2. ↑
  11. Immanuel Kant, Perpetual Peace: A Philosophical Essay (Mary Campbell Smith tr, GAllen & Unwin Ltd; Macmillan Co 1917) 153–154 <https://www.gutenberg.org/files/50922/50922-h/50922-h.htm>. ↑
  12. Aquinas, ST I Q63 A8 ad. 2. ↑
  13. ibid., ST I Q109 A2 ad.3. ↑
  14. As pointed out by John Goyette, ‘On the Transcendence of the Political Common Good: Aquinas versus the New Natural Law Theory’ (2013) 13 The National Catholic Bioethics Quarterly 133, 142. ↑
  15. Gustav Radbruch, ‘Statutory Lawlessness and Supra-Statutory Law (1946)’ (2006) 26 Oxford Journal of Legal Studies 1, 7. ↑
  16. Aquinas, ST I Q48 A3-4. ↑
  17. Bonino, Angels and Demons (Catholic University of America Press 2016) 280. ↑