I have discussed elsewhere how St. Isidore of Seville’s Etymologies were hugely influential for later writers like Gratian and St. Thomas Aquinas. (The Etymologies were generally influential throughout the Middle Ages.) It is helpful, however, to see St. Isidore’s jurisprudence in action, especially when applied to a current problem. One of the preferred jurisprudential moves of liberalism is to reduce the order of the state to written law—written norms—and exclude from that order any unwritten law. St. Isidore (and, later, St. Thomas) demonstrate that such a move has no warrant in the classical legal tradition and, therefore, should be rejected outright. Indeed, the saints show clearly that the order of the state is far greater than whatever may be reduced to written law at any time.
In his treatment of law, St. Isidore observes that “ius legibus et moribus constat”—“jurisprudence consists of law and customs” (Etym. 5.3.1). Laws are written and customs may be called unwritten laws, proved by long usage (Etym. 5.3.2). Later we learn that a law—lex—is a rule for the people, allowing or forbidding something, to control human audacity (Etym. 5.10; 5.19–20). The equation of law—lex—and custom—mos—in the sense that custom is lex non scripta has startling consequences. In the simplest terms, St. Isidore acknowledges that customs are also rules for the people, allowing or forbidding something, to control human audacity. But they are non scripta: therefore, for St. Isidore, a certain conclusion is inescapable. There are unwritten rules for the people intended to ensure the tranquility and safety of the state (cf. Etym. 5.19–20). The order of the state, therefore, cannot be wholly described by the written laws.
For St. Isidore, moreover, written law may not contradict the custom of the state (Etym. 5.21). In other words, the written law is a component of the order of the state and it must fit harmoniously in that order. St. Thomas Aquinas also assigns a significant role to custom in this context: he says in a memorable phrase that custom has the force of law, abolishes law, and interprets law—“habet vim legis, et legem abolet, et est legum interpretatrix” (ST IaIIae q.97 a.3 co.). Written laws that are noxious to the order of the state as a whole, including the unwritten laws of custom, may well be moderated or, in extreme cases, abolished by custom.
St. Isidore’s view immediately causes a change in perspective. Laws exist within a community as part of the jurisprudence of that community. But written laws are not the entirety of the jurisprudence of the community. Custom—lex non scripta—also establishes rules for the people. Aquinas observes that written laws are preferable for a variety of reasons to judges simply deciding each case as it comes up (ST IaIIae q.96 a.1 ad 2). But this does not fundamentally change the fact that the written laws do not encompass the entire order of the state.
One need not take St. Isidore’s word for all this, of course: Aquinas’s jurisprudence readily accounts for an order outside the written law. For one thing, written laws are framed for common cases (ST IaIIae q.96 a.6 ad 3): it follows, therefore, that there will be uncommon cases. Indeed, Aquinas’s theory of the emergency is based on the reality that there will be cases that the lawgiver has not foreseen (ST IaIIae q.96 a.6 co.). In such cases, the citizen must act in accordance with the order of the commonwealth—that is, the common good—rather than allowing strict adherence to the written law to cause harm to the commonwealth.
More than that, Aquinas cautions against changing laws which are based on custom. For him, “Habet autem ipsa legis mutatio, quantum in se est, detrimentum quoddam communis salutis”—“But, to a certain extent, the mere change of law is of itself prejudicial to the common good” (ST IaIIae q.97 a.2 co.). The reason for this is that after a while, a written law becomes part of the custom of the commonwealth (ibid.). And “leges habent maximam virtutem ex consuetudine”—“laws derive very great force from custom” (ST IaIIae q.97 a.2 ad 1). There are of course considerations that support a change in laws. Aquinas gives two examples: when an equivalent benefit is conferred on the common good and when the law itself is unjust or otherwise harmful.
One may say therefore that the written law fits into the order of the state and derives its force from the extent to which it becomes part of the unwritten law. To change written laws that have become part of the unwritten order of the commonwealth is to deprive those laws of their force. This is, of course, in addition to Aquinas’s recognition that custom—lex non scripta—has the force of law, abolishes law, and interprets law—“habet vim legis, et legem abolet, et est legum interpretatrix” (ST IaIIae q.97 a.3 co.). In other words, we can say that custom has the force of law, abolishes law, interprets law, and gives law its strength. One could even say the written law therefore obtains a certain measure of its validity as law—and only, really, provisionally—on the basis of the broader order of the commonwealth.
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Moreover, the leader of the commonwealth is ultimately responsible for ordering the state to the common good (e.g., De regno 1.2.10; 1.3.17–18). For Aquinas, “a law is nothing else but a dictate of practical reason emanating from the ruler who governs a perfect community”—“nihil est aliud lex quam quoddam dictamen practicae rationis in principe qui gubernat aliquam communitatem perfectam” (ST IaIIae q.91 a.1 co.). Here one might recall St. Isidore, who observed that “if law is based on reason, then law will be everything that is consistent with reason – provided that it agrees with religion, accords with orderly conduct, and is conducive to well-being”—“Porro si ratione lex constat, lex erit omne iam quod ratione constiterit, dumtaxat quod religioni congruat, quod disciplinae conveniat, quod saluti proficiat” (Etym. 5.3.4). Nevertheless, for Aquinas, law is the dictate of practical reason of the ruler, ordering the commonwealth to virtue and happiness.
However, just as Aquinas recognizes that the order of the commonwealth is more than written law, so too does he recognize that the role of the leader is more than promulgating written laws. For one thing, Aquinas notes that bringing peace, restraining violence, preserving justice, and handing down laws and precepts are each part of the praiseworthy office of a king. “Quanto igitur magis laudandus est ab hominibus et praemiandus a Deo, qui totam provinciam facit pace gaudere, violentias cohibet, iustitiam servat, et disponit quid sit agendum ab hominibus suis legibus et praeceptis?”—“How much the more, then, is he to be praised by men and rewarded by God who makes a whole province rejoice in peace, who restrains violence, preserves justice and arranges by his laws and precepts what is to be done by men?” (De regno 1.10.71).
And, as is often the case, Aquinas’s doctrine of the emergency is hugely illuminating. (Indeed, it is impossible to deny the fundamental insight of the interwar period that the handling of the emergency is hugely illuminating for any given theory of jurisprudence.) Every written law handed down by the ruler of the commonwealth is ordered to the common good (ST IaIIae q.96 a.6 co.). In a particular case, however, the strict application of the law may be obnoxious (ST IaIIae q.96 a.6 ad 1). Ordinarily the leader has the power of dispensation from his laws (ST IaIIae q.97 a.4 co.). But in some cases, it may not be possible to apply to the leader for a dispensation; in those cases, those cases of true emergency, it is possible to act beside the letter of the law for the common good of the state, which the ruler intended when he promulgated the law.
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All of this stands for the proposition that the leader of the commonwealth’s responsibility to the common good is more than simply promulgating good written laws, though he is certainly responsible for doing that. Indeed, for Aquinas, written laws are “nothing else but a dictate of practical reason emanating from the ruler who governs a perfect community” (ST IaIIae q.91 a.1 co.). But the leader of the state may not stop with that. For one thing, in the order of the state, there will undoubtedly be cases that were not foreseen when the laws were promulgated. The map is not the terrain, as one says. For another thing, if laws are based on reason, the order of law will necessarily expand well beyond the written law, but the commonwealth must still be ordered to the common good.
To reduce the order of the state to written law, therefore, is to exclude a significant component of the order of the state. Indeed, it is to exclude, for Aquinas, one of the primary sources of the strength of law, to say nothing of the source of law itself. One may speculate—more or less profitably—on why one might wish to reduce the order of the state to written laws. Certainly reducing the order of the state to written laws diminishes, necessarily and inevitably, the role of any person in the state. Whatever hierarchy there may be in the state is merely a function of written law. Order, the arrangement of like and unlike (Augustine, De civitate Dei 19.13), therefore becomes a function of written law. Peace becomes, then, merely a matter of having written laws that declare peace.
It is no wonder then that liberal jurisprudence places such an emphasis on written laws, on norms. The exclusion from political life of all manner of things—religion and economics being first and foremost among them—is achieved in the easiest possible way if one posits written laws as the order of the state. One simply excludes them from the written laws. Indeed, fundamentally, liberalism and the reduction of order to written law are inseparable. As soon as one acknowledges an order of the commonwealth that embraces the lex non scripta, one leaves liberalism.
Pat Smith
