SOURCE: "Albertus Magnus on Natural Law," in Journal of the History of Ideas, Vol. XXVIII, No. 4, October-December, 1967, pp. 479-502.

[In the following essay, Cunningham maintains that Albert's writings in his De bono constitute a significant development in the Medieval conception of natural law.]

In the history of the concept of natural law and its development in the Middle Ages, a privileged authority is commanded by the writings of St. Thomas Aquinas. By comparison, only scant attention has been paid to speculations in the area of law and morals carried out by Thomas' teacher, Albert the Great (1206-1280), and still less to the extent of Thomas' dependency upon the latter. The full import of Albert's contributions, however, is appreciable when measured against the background of moral theorizing in the XI-IIth century. For one thing, his own independent writings as well as two commentaries clearly establish him as the first Christian thinker in the Latin West to confront boldly and enthusiastically the theory of natural virtue contained in Aristotle's Nicomachean Ethics. Secondly, prior to Albertus Magnus there is a conspicuous paucity of systematic moral treatises; and, with the exception of brief studies made by the canon lawyers of the time and by one theologian, William of Auxerre, scarcely any interest had been shown in the concept of natural law and its relationship to the moral life in general. The inclusion, therefore, within one of Albert's early moral treatises of a section on natural law stands out as a turning point in the history of the problem.

Two places in Albert's writings give a concentrated treatment of natural law. The earliest and most important of these belongs to a relatively youthful work, entitled De bono, composed during the period 1240-1244. The work is incomplete. What we have is the first part of an ambitiously conceived synthesis dealing with the natural moral virtues prior to a proposed but missing examination of supernaturally endowed perfections. The composition stands in noticeable contrast to the moral sections of his later Scripta super Sententias and his commentaries on the Ethics of Aristotle, where the order is not laid down by Albert himself but by the authors on whose works he is commenting. The extant text of the De bono, on the other hand, written in a format inspired by the medieval academic disputation and freely assembled according to principles of Albert's own formulation and choice, may be treated as an independently organized synthesis of Albert's own moral theories. Put more simply, it is our best source for an understanding of his moral philosophy in its organic outlines. The number of times in later works he refers his readers back to the De bono adds up to an obvious corroboration of the work's value as a lasting and faithful expression of the author's thought. As to its over-all structure, the De bono opens with a metaphysical disquisition upon the nature of goodness in general, then moves on to an examination of the natural and psychological causes of virtue before defining the notion of virtue in general. Each of the four long tractates which follow is a detailed analysis of one of the four cardinal virtues and its parts. At the beginning of the last tractate, devoted to justice, Albert has inserted two quaestiones divided into a total of seven articles which constitute a full-fledged treatise on natural law.

The second source of Albertinian natural-law theory is found in Book V, Chapter 9 of a hitherto unedited commentary on the Nicomachean Ethics composed around 1248-52. The material in question comprises eight dubia or problems, each of which is handled separately in article form in the manner once again of the medieval disputed question. Although this section does include a number of minor precisions not present in the earlier work, there does not appear to be any major development in doctrine. Even at a glance these eight brief articles quite obviously lack the scope and detail which characterize his earlier investigation. The De bono, therefore, contains the most thorough and definitive treatment of law in the entire collection of Albert's works and the one to which he does not hesitate to refer in later writings.

Pre-Albertinian Theorists

What relevancy does natural law have within the moral order? More specifically, what relationship did the medieval thinkers envisage between law and virtue? The question, to be sure, was seldom posed so explicitly; but even implicitly the problem manifested itself as a tension coloring the attitudes and conceptions of moralists in the late XIIth and early XIIIth century. The De bono, containing a metaphysics of morals, a theory of the virtues and an analysis of ius and lex, presents itself as an ideal witness to one man's thoughts on this question. Even more significantly, when studied against the background of earlier and contemporary compositions in the Middle Ages, Albert's treatise on law as well as its position within the De bono reveals a radical departure from the general tenor of moral speculation at this time in which the spirit of legalism was prevalent. Two conditions make such a comparative viewing possible even within the short compass of this [essay]: the late emergence of systematized moral writings; and the relative scarcity of expositions on law by philosophers and theologians. A representative view of the most commonly conceived connection between law and virtue can be had by consulting three major treatises, two of them written in Albert's own lifetime, in which this relationship is made evident: Alan of Lille's De virtutibus et vitiis et de donis Spiritus Sancti; William of Auxerre's Summa aurea; and Part Three of the Summa fratris Alexandri, the moral section of which is generally believed to have been written by the Franciscan John of Rupella.

Alan of Lille's work, composed around 1160, has been appraised as "greatly contributing to a more technical elaboration of the treatise on virtues" in the Middle Ages. It is of special interest in the historical evolution of the definition(s) of virtue because Alan is confronted by a seeming conflict between the theocentric-Augustinian conception of virtue of Peter the Lombard and the philosophical definitions proposed by Peter Abelard and his school. In addition to this, he is faced with more than one definition by the classical philosophers, for he reports that according to Aristotle virtues belong to the genus of "quality," while Cicero in the De inventione speaks of them as species of natural right (species naturalis iuris). By natural right, Alan continues, is meant everything in a thing bestowed upon it by nature. Virtue, then, falls into the genus of quality, and at the same time it is a species of natural right conferred upon the soul at creation. It would seem, then, that the coincidence of the terms "genus" and "species" fulfills the strict logical requirements of a definition. Yet Alan goes on to say that what is really conferred upon us at creation is not the full-fledged virtue, but merely a disposing quality. The virtues at the moment of their inception are "potencies." To become full-blown perfections, these qualitative potencies must be developed through our acts or "use." Essentially this implanted seminal potency is a quality, but since its subsequent growth and completion depends upon our use or performance, it is only accidental to it that it becomes a virtue: "accidentale est enim ei esse virtutem, sed substantiale est esse qualitatem."

In order that this qualitative potency expand to the dimensions of virtue, two conditions must coincide in the use: attendance to obligation or duty (debitum officium) and to end (debitus finis). If our actions are not commensurate with both of these, then we cannot be said to possess virtue. The end which Alan has in mind is God. What is more relevant to our problem, however, is his notion of officium. "Since officium," he writes, "is the act of any person conforming to the customs and laws of the country (secundum mores et instituta patrine), the officium of the Christian religion is the act of any person in conformity with the customs and laws of the Church. Moreover, the customs and laws of the Church are that a man's actions be directed to God and performed in a spirit of charity." It is immediately evident, of course, that Alan of Lille's conception of virtue, though starting with a philosophical definition, ends up in a decidedly theological perspective. What is more significant, however, is the relationship he draws between virtue and law. Our innate and potential proclivities towards perfection are not virtues in themselves; they become that only if we act in conformity with the laws of the Church. We have here a legalistic conception of morality in which conformity to law precedes the birth of virtue as its indispensable cause.

About sixty years later we find a similar priority of law to virtue attested to by William of Auxerre in his Summa aurea (1220-1225): "since natural law (ius naturale) is the origin and principle of all the virtues and their acts, it behooves us to treat first of natural law." Now it is true that, unlike Alan of Lille, William in the present text speaks of natural law and not the positive written law of the Church, but the difference is not really very great when we consider what William understands by natural law, and the historical influences at work in the shaping of his thought. When the decretists of the XIIth and XIIIth centuries came to treat of natural law, they did so with the traditional vocabulary and techniques proper to a study of positive or prescribed law. This very practice of clothing their theories of natural law in the vocabulary proper to civil and canon law was bound to produce misconceptions of the former. One of the dominant figures in this tradition of natural-law theory is the canonist Rufinus, in whose Summa decretorum (1157-1159) there is an attempt to codify in a broad manner the content of natural law into "commands," "prohibitions," and the remoter "demonstrations" deducible therefrom. Now William of Auxerre, as we have seen, proposes to add a treatise on natural law prior to his treatment of the virtues. Part and parcel of his doctrine is the Rufinian division of natural law into precepts, prohibitions, and demonstrations. These divisions are treated by William in terms of obligation: precepts and prohibitions oblige us absolutely, whereas the force of obligation in "demonstrations" depends upon circumstances. The obligational force of natural law is divisible as well into another range of categories: primary, secondary, and even tertiary necessity. To put it briefly, the main feature in terms of which William interprets natural law is the binding force of obligation and necessity. These precepts of natural law, he tells us, "are primarily and principally given to habilitate us towards the acquisition of political (i.e., cardinal) virtues." Moral wisdom per se rests upon the precepts of natural law which are inscribed in the heart of man. It must have seemed perfectly logical and consistent, then, to William that his theory of law should preface his disquisition upon the virtues. Hence, his conception of law as prior to and the source of virtue, reveals itself as the major architectonic principle of order in this moral section on the virtues.

This apparent spirit of legalism is even more pronounced in another part of his Summa. Well after the treatises on natural law and the virtues, William embarks upon a new section which is to be primarily moral:

After theological questions we move on to moral questions in which we learn about external acts and particular cases. I say this for the most part, because among the following questions there are some as well which are theological. Now we divide these moral questions in two: that is, into precepts and sacraments or into questions concerning precepts and questions concerning the sacraments.

It was not uncommon for theologians at this time to formulate the major division in their theology in terms of "faith and morals" (fides et mores). This division reappears in the text above, for the implication reads all too clearly that the earlier questions of the Summa aurea, even those including William's theories on natural law and the cardinal virtues, belong not so much to moral science as to the theology of faith. Only now are we really embarking upon the elaboration of moral science (mores), an investigation, moreover, which reduces itself in large part to an examination of laws and particular cases.

Whereas both Alan of Lille and William of Auxerre accord a priority of law to virtue in their moral treatises, no real proof has yet been offered to justify this order of speculation. In John of Rupella there is an explicit defense given for this mode of procedure. In addition to the many scattered and unedited treatises attributed to him, it is now generally agreed that John is author of a moral section contained in Book III of the Summa fratris Alexandri. It was being written about the same time at which St. Albert was engaged in work on the De bono, that is around 1241-1245. For this reason the work supplies us with an immediate background of information concerning contemporary views on law, and in particular certain trends of thought in the Franciscan school.

In his treatise John of Rupella explicitly asks about the order obtaining between law and virtue: "Iuxta hoc secundo quaeritur de ordine praeceptorum et virtutum, quod horum est prius." In his own resolution to the question there is an unequivocal statement and defense of the NATURAL priority of law to virtue: "lex sive praecepta legis naturaliter sunt priora virtutibus." As proof he observes that God, the summum bonum, moves in two ways: as the beginning (principium) and end (finis) of creation. When God is viewed as the origin of creatures and their goodness, we find in the creatures a corresponding debitum, an obligation to conform to their principle. Law is to be placed in this context, that is, at the point where creatures issue from their maker. It is law which dictates the debitum bonum to these creatures and holds them to the good. Virtue is situated in the second context. It consists in the aptitude to pursue obediently the good already dictated to us. The essence of virtue, then, is obligation and obedience; it is submission to law. In point of fact this article provides the justification for the order of John's moral treatise: a disquisition on law precedes his treatment of the virtues.

This emphasis upon the centrality of law within the moral order is no less apparent in the Prologue to John's unedited Summa de praeceptis. In the passage in question, John proposes to cast the main principles of his moral doctrine into the framework of the four Aristotelian causes, and it is the particular designation given to the material cause which is so revealing. "The material cause of morals," he writes, "are the laws of God." It is these laws which constitute the moral order (esse morum).

This brief survey of three major treatises, written before the middle of the XIIIth century, shows that medieval thinkers generally conceived of virtue primarily in terms of law. In the case of William of Auxerre and John of Rupella, an alleged priority of law to virtue reveals itself as the architectonic principle determining the very structure and arrangement of material in their treatises. It might be rash to insist that all the moralists at this time shared this juristic conception of ethics; but taking into account the slow emergence of the systematic moral treatise and noting that in the history of this evolution these three works are major contributions, it seems evident that the general tenor of speculation was indeed legalistic. A quick glance at the outline of Albert the Great's De bono and the place in which law is discussed would be enough to indicate a departure from this traditional emphasis on law. The work opens with a metaphysics of the good in which no mention is made of law. A disquisition upon the causes of virtue, preceding the detailed analyses of the virtues themselves, grounds the origin of virtue not in law but in the human act seen in all of its dynamic complexity. The section on law is found towards the end of the extant text of the De bono in the last tractate. It is placed here, Albert remarks several times, because the notions of ius and lex serve as determinations in the definition of justice, and he has in mind statements made by Cicero and St. Augustine. His affirmations, however, read as mere statements from authority. Behind them is Albert's whole philosophy of law dictating such a move.

Natural Right: Innate or Acquired?

Before launching directly into this part of the De bono, the modern reader, lest he misconstrue the spirit of Albert's moral philosophy, should be forewarned about the use of the term "right" (ius). When Albert, or any of the medieval moralists for that matter, speaks of "natural right" (ius naturae, ius naturale) or "right of reason" (ius rationis), this must not be translated into the modern sense of "subjective right." In the XIIIth century, "right" means that which is objectively right. "Right of reason" does not mean personal right to which my opinions or individuality entitle me, but that which is objectively and universally right for rational nature. Prior to the De bono, the terms "right" and "law" are used interchangeably. Both in doctrine and procedure Albert distinguishes between these notions: Question One of the treatise deals with right; Question Two with law. The first article in Question One opens with a definition taken from Cicero's De inventione: "The law of nature is that which is not born of opinion, but implanted in us by a kind of innate instinct." A number of other definitions and descriptions of natural right alluded to by Albert in these articles, notably those of Isidore of Seville, Gratian, St. Augustine, and William of Auxerre, show that he was conversant with the statements of the most important authorities, both classical and medieval, in this area. Taking his start from the opinions and statements already worked out by earlier and contemporary thinkers, Albert moves on from there to present his own distinctive doctrine of natural law in the traditional terms already familiar to his readers.

Natural right, he points out, is a habitus concreated with, and innately impressed upon, the human rational soul. No one, unless he be wanting in reason, would ever seriously question that it is a habitus, that is to say, a unified ensemble of the first and most ultimate principles of human morals directing us in our human actions. Its content or nature is variously described by Albert in several places as embracing universal principles directing us in our actions (universalia iuris illa dirigentia nos in opere; universalia morum), first principles of right (prima principia iuris), first seeds (prima semina), or seeds of moral goodness (seminaria boni pertinentis ad vitam). The seminal character of these principles, it will be clear later, has a special significance in relation to written law. The more universal and indeterminate these principles are, the more truly they pertain to natural right. As examples he cites from St. Matthew (7, 12) the Golden Rule, "do unto others as you would have them do unto you," as well as the Ten Commandments set down in Exodus (20, 117). These universal principles, writes Albert, are all included within natural right, and inscribed in man by the very fact that he has reason.

It is precisely this relationship to reason which seems to interest Albert in Article One, and which he continues to develop in the following articles as well. He points out that in the theoretical or speculative intellect, prior to the operation of understanding or science, there is a twofold potency. There is first of all a potency with respect to knowledge of the instruments, and these in turn serve as the principles of our completed science or understanding. To illustrate this he cites the case of the child who does not yet know how to write. First of all, the child is in potency to a knowledge of the instruments involved: pen, ink, parchment. Subsequent to his knowledge of these, he is still in potency to a mastery of writing itself. This analogy serves to illustrate a corresponding situation in the moral order. In our practical intellect which directs us in our operations, there is implanted a "habit" which is a knowledge of right (scientia iuris, scientia boni). The innate wisdom, however, is only a "first potency," because it is still open to a more precise and determinate formulation of the universal principles indeterminately contained therein. In order that these principles be made explicit, we still require a knowledge of the terms in which the universal principles are formulated. Thus the knowledge that stealing and adultery are wrong is embedded in our natures as part of natural right, but that this knowledge be had as completed acts of understanding, i.e., "thou shalt not steal," "thou shalt not commit adultery," there must be added an acquired knowledge of the terms "stealing" and "adultery." Hence, Albert concludes, the knowledge of these principles is implanted absolutely by nature (per naturam simpliciter), but it is also gained in a qualified manner (per accidens) through an acquired knowledge of the terms involved. The human intellect, in itself a potency, is devoid of knowledge (tabula rasa) not with respect to this absolutely implanted habit, but only with respect to the acquired knowledge of terms.

Among pre-Albertinian thinkers there seems to have been complete unanimity in the belief in the innate character of natural right. When Albert insists that natural right is implanted in us "absolutely," he aligns himself with a tradition stretching back through the Middle Ages into classical antiquity. It was Cicero himself who had laid down this line of thought when he spoke of a "certain innate instinct" (quaedam in natura innata vis); and St. Paul (Romans 2, 14-15)— quoted by Albert in the opening lines of his solution— speaks of a law inscribed in the hearts of men. Hence it became commonplace among the canonists and theologians alike to identify the insertion of this universal law with "nature," or, in the case of man, to equate the insertion and knowledge of these principles with "natural reason" (ratio naturalis). William of Auxerre in particular was at pains to emphasize the radical innatism of natural law. Taking his start from the writings of St. Augustine, William had argued that the human soul, created in the image of God, has a vision of the divine essence, and along with that a knowledge of the supreme goodness, true justice, in short a knowledge of the principles of natural right—all this without the benefit of any sense experience!

It seems quite clear, however, that Albert finds these previous accounts inadequate. Though adhering to a basic innatism of the "habit" of first principles, he nevertheless has attempted to supplement that theory with his own doctrine of the necessity for an acquired knowledge of the terms. That the inspiration behind this innovation is evidently Aristotelian can be seen in the startling relationship he draws between the Ciceronian "innate instinct" and the power of agent intellect. The "vis innata" or "vis naturae," Albert insists, is nothing else than the light of our own agent intellect which makes known to us the terms of the principles, and subsequently a completed understanding of, and assent to, the innate moral principles themselves. In this way, the native power of the human intellect appears to be an active and indispensable contributor to the knowledge of those principles. This, as will be clear in greater detail, strictly limits natural right to the human species. At this point, then, Albert seems to have reached a position midway between the traditional doctrine of radical innatism and the philosophy of St. Thomas Aquinas, for whom natural law is not essentially an innate "habit" but rather a product of reason (aliquid per rationem constitutum) consisting in judgments.

Synderesis

The subject in which the principles of natural right are imbedded, according to Albert, is practical reason. More specifically, they inhere in an active power of reason called by some "naturale iudicatorium," by the Greeks "synderesis." Armed with these principles, practical reason is directed and assisted in its practical judgments concerning what is to be done or what is to be avoided. Since very little is said about synderesis in the De bono, we may safely assume that Albert is still relying upon his treatment of this in an earlier work. In the De homine he has told us that synderesis is a special power (vis) of the soul in which are inscribed the universal principles of natural right. He exploits a certain parallel first suggested by William of Auxerre between the speculative or theoretical reason on the one hand, and practical reason on the other. Just as in the theoretical intellect there are certain innately implanted first principles aiding man in the area of speculative truth, so too in the practical order of human moral acts there are certain universal directive principles through which the practical intellect is aided in its discrimination between moral good and evil, principles moreover which are not acquired by man, but which are simply the content of natural law inscribed upon the human mind. The subject or substratum of these is synderesis.

Albert the Great is certainly not the first of the medieval thinkers to speculate on the role of synderesis in the moral life. In his lengthy investigation into the theories of synderesis in the Middle Ages, Lottin has shown that prior to Philip the Chancellor (died about 1237) this notion and the problems related thereto appear a number of times in the writings of both the canonists and the theologians. Indeed, nearly seventy years before Albert had tackled these questions, that is around 1175, one of the decretists, Simon of Bisiniano, had already anticipated the Albertinian position by equating natural right with synderesis. These earlier thinkers, however, were mainly preoccupied with two problems: the indestructibility of synderesis, and its infallibility as a guardian of the moral order prompting man to goodness. Theologians and canonists alike looked to it as a stable and permanent element in man, an abiding source of rectitude in human nature which survived in spite of his sinful defections. There was not always the same unanimity, however, when it came to the question of the infallibility of this principle. Reason can and does err in its moral judgments, and so to some this meant that synderesis as well was not altogether immune to error. For our purposes it is not necessary to enter into this maze of questions. Suffice it to say that from the middle of the XIIth century, the occurrence of the term synderesis sparked a number of questions, but almost invariably these questions were concerned only with the properties, notably its inextinguishable and infallible character. What was almost totally neglected was an appreciation of synderesis within the general framework of the human psychology, and so an understanding of it in its very nature. Other than a more or less general agreement that it pertained to man's reason, and William of Auxerre's more specific equation between it and the Augustinian notion of "superior reason," the basic question "What is synderesis?" remained largely unanswered. Moreover, the questions devoted to an analysis of its properties had not yet grouped themselves into a full-fledged technical treatise. The merit for this impressive undertaking falls to Philip the Chancellor, in the light of whose theory the full significance of Albert's position becomes apparent.

The first question posed by Philip the Chancellor is a new and original attempt to arrive at some understanding of synderesis in its very nature, prior to a discussion of its properties. Is it a "power of the soul," he asks, or a connatural habit inhering in the soul from birth? A number of authorities and arguments have been assembled in defense of either position. These two seemingly disparate lines of thought, however, are not really in conflict: Philip answers by way of compromise that synderesis is an "habitual power." An habitual power, he tells us, is one which is more readily and easily disposed to its act because it is not impeded in the performance of its operation, unlike reason, for instance, which can experience difficulty in judgments. Synderesis is a motive power which moves man's power of free choice by dictating to it the good and restraining it from evil. In this exercise it moves not towards this or that particular good, but rather inclines us to the element of common goodness found therein. Its movement belongs simultaneously to the cognitive order, and to the affective or appetitive order, but primarily to the latter. In the same place Philip even goes so far as to assert that synderesis is identical in subject with the natural will. Yet even though it stands mainly on the side of will, he seems anxious to draw several qualifications which will avoid too complete an identity between these powers. The objects of both synderesis and our natural will are rationally determined moral goods. Natural will inclines towards these purely and simply as a mere power, but not as an "habitual power" free from impediments. Moreover, whereas synderesis inclines solely towards rational moral goods, the scope of the will's appetition is less determinate because it embraces goods both of the rational and the nonrational order. In other words, the much wider latitude of the will's inclination makes it relatively indeterminate in its movement towards moral goodness. Synderesis appears to be a superadded habituation or power coalescing with the will to insure in man a permanent and indefectible inclination in the direction of moral goodness.

Although William of Auxerre and some of the decretists had made synderesis the subject of natural right, Philip seems to ignore this line of reasoning altogether. As an affective or voluntaristic power, synderesis operates not so much on the side of reason, but rather as an efficient cause insuring the will's movement towards moral goodness. We might simply add that subsequent to Philip's doctrine there is a noticeable tendency among the Franciscan writers to perpetuate this voluntaristic interpretation of synderesis. It is especially evident in the writings of St. Bonaventure, who speaks of synderesis as a "certain kind of natural weight" (naturale quoddam pondus) residing in the will and infallibly steering it towards moral goodness.

Now in contrast to this current of voluntarism stemming from Philip the Chancellor, Albertus Magnus clearly situates synderesis on the side of reason, and along with it the principles of natural right. Statements in both the De homine and the De bono are in agreement on this point, and further corroboration may be found in a fragment attributed to Albert entitled De sinderesi. These informing principles of natural right serve as formal determinations directing and assisting the practical intellect of man in its operations. As the immediate subject of these principles, synderesis is no less a dynamic principle than it was for Philip the Chancellor, but its force is now exercised not as an efficient cause propelling the will to goodness, but rather in the line of formal causality and in the cognitive order as well. More than any other thinker before him, then, Albert has attempted to delineate the close union between right and reason. Article Two of the first question is a logical continuation of that theme: it examines the nature and scope of natural right conceived as an integral element in rational nature. It is this close relationship to reason that results in a conception of natural right which sets Albert apart from the prevailing notions of natural law in the XIIth and early XIIIth centuries.

Albert versus the Canonists

The second article concerns itself with the number of ways in which we may speak of natural right. It opens with a verbatim quotation from the work of one of the decretists composed shortly after 1215, Johannes Teutonicus' Glossa ordinaria on the Decretum of Gratian, in which there are recorded five different meanings of the term "natura." Now the first two definitions speak simply of "nature," while the last three speak as well of "natural right." In point of fact all five definitions are interpretations of natural right which have already appeared in the works of other authors. According to Johannes Teutonicus, nature may first of all be taken to mean the innate procreative power by which things produce their like. This seems to extend to inanimate as well as animate nature. Secondly, nature may refer to the impulse or instinct of sensuality in animal nature terminating in the activities of desiring, procreation, and the rearing of the young. In this second sense, Albert comments, natural right would be that to which we are inclined by the natural concupiscence of our senses. Thirdly, nature signifies the natural instinct of reason (instinctus naturae ex ratione proveniens) which gives rise to the right known as equity. According to this natural right, all things are said to be common in time of dire necessity. In its fourth usage, natural right is seen to be an ensemble of natural precepts: e.g., "thou shalt not steal," "thou shalt not commit adultery." Fifthly, natural right is equated with divine right (ius divinum).

Now it is evident that the catalogue of Johannes Teutonicus reads as a kind of hierarchy in which we begin with nature in its broadest sense as a principle of generation common to animate as well as inanimate being. From this most common signification of nature, there is a progressive ascent to the higher grades of nature and right: to animal nature, rational nature and equity, precepts known to reason, and finally divine right. The hierarchy itself is probably Johannes' most influential contribution in this one area of natural-law theory because its impact will be clearly discernible in later theologians beginning with William of Auxerre. But the five definitions themselves do not originate with his Glossa. All of them have already appeared in canonical summae prior to Johannes in which it had been common practice to record any number of definitions. Four of them, for instance, appear after 1188 in the Summa of Huguccio. The Summa Lipsiensis (ca. 1186) records a total of six definitions without indicating any preference. Three definitions may be found in Sicard of Cremona (ca, 1180), four in the Summa Monacensis (1175-1178); five in the Summa of Stephen of Tournai (ca. 1160). This survey does not pretend to be complete, but it gives a picture of the tendency among the decretists to pile up a number of definitions without a corresponding increase of precision in their understanding of natural right. On the contrary, in the minds of many there prevailed a conception of natural right so wide as to encompass all of animal nature, and even inanimate nature.

At least two classical authorities known to the canonists could be said to have encouraged this kind of latitude in their thinking. The Digesta (known also as the Pandectae) of Justinian, compiled in 593 A.D., records a fragment of the Roman jurisconsult Ulpian (d. 228) in which natural right is extended to all animal nature in contrast to the "right of peoples" (ius gentium) which is restricted to mankind. The definition of natural law from this fragment became classical in the history of jurisprudence: "Ius naturale est quod natura omnia animalia docuit. " Either this sentence or a formulation of the same doctrine closely approximating it appears in nearly every one of the major summae of canon law in the XIIth and XIIIth centuries. The same holds true for the expressions used to describe some of the actions determined by natural law: "the union of male and female," "procreation," and "training of the young" (educatio). This is not to say that in all cases Ulpian's definition was to prove entirely acceptable without any sort of qualification. Gratian in his Decretum (ca. 1140) chose to ignore it; Rufinus some fifteen years later explicitly limits natural right to the human species. Henceforth, a number of decretists, though continuing to report a series of definitions, will relegate the broad notion of Ulpian to a minor position, concentrating their exegeses instead upon those definitions which relate natural law to human reason, moral precepts and prohibitions, and to God. This is true of many, we say, but by no means of all. The anonymous author of the Summa Monacensis, for instance, sees no reason not to extend natural right to the whole order of creation, since the sun in its revolutions is ruled by the law of nature. In view of these ambiguities, the language in the passage from the Glossa ordinaria quoted by Albert may have been chosen with greater deliberation than might appear at first sight, since the first two definitions speak simply of "nature" while the last three specify "natural right." Albert, nevertheless, in the paragraph of commentary that follows, treats all of them as interpretations of natural right. The second authority occasioning widespread confusion in the classical and medieval conceptions of natural law is once again the Ciceronian formula which attributes natural right to a "certain innate instinct" (quaedam in natura innata vis). A number of theologians and canonists, pointing to Boethius or Aristotle as their authority, commonly equated the innata vis in question with natura conceived as a generative or procreative principle. Albert himself mentions that this is one opinion.

Up to this point we have dealt mainly with those interpretations of natural right found in the writings of canon lawyers. History dictates this selection since it was primarily the decretists, not the theologians, who showed an interest in the problem of natural law. William of Auxerre appears to have been the first of the theologians to break with this long tradition of silent indifference. Not only does he reiterate the classical definition of Ulpian, but in his own doctrine of natural law William incorporates as well that broadest of all conceptions found in the Summa Monacensis. The result is another hierarchy of natural laws, much like that of Johannes Teutonicus, corresponding to three levels of community in nature: ius naturale speciale is natural right taken in its strictest sense, and this is found only in those beings possessing reason; ius naturale universalius pertains to the whole realm of animal nature; finally, ius naturale universalissimum is nothing else than the law and harmony of all creation, inanimate as well as animate. The first two Dominican masters to hold chairs in Theology at Paris, Roland of Cremona (1229-1230) and Hugh of St. Cher (1230-1235), betray a noticeable dependence upon William's Summa for their doctrine of natural law. They literally repeat William's doctrine and vocabulary, and even the same authorities cited by William (i.e., Plato's Timaeus, and St. Augustine). These dates bring us up almost to the eve of the composition of St. Albert's De bono.

Albert's verbatim quotation from the Glossa ordinaria, his many allusions to Gratian throughout the treatise, and his obvious familiarity with the Summa aurea, offer ample evidence that he was conversant with the history of the problem of natural law. A statement in Article Two, written apropos of the passage from the Glossa ordinaria, sheds some light on his attitude towards these previous treatments:

If perchance it should be said that this distinction is without art or reason, as is the custom among the decretists to posit distinctions, the question then remains in what sense nature is to be taken when we speak of natural right.

It is quite apparent that Albert is critical of these earlier attempts to define natural law. The distinctions posed by the decretists, and in particular the fivefold distinction of Johannes Teutonicus, lack "art and reason" because they fall short of a synthesis which shows skill and thought. In short, the decretists have not arrived at an understanding of natural right. This is something which Albert reserves to the theologian. Albert then substitutes definitions of nature taken from Boethius.

Albert's own doctrine, succinctly stated in the second sentence of his resolution, marks a departure from this "custom of the decretists to posit distinctions." Without a proliferation of definitions he states simply: "Est enim ius naturale nihil aliud quam ius rationis sive debitum, secundum quod natura est ratio. " Natural right is nothing else than what is objectively right for rational nature. In calling it the debitum of reason Albert is using a term, borrowed from the jurists, which normally signifies legalistic obligation. In the present context, however, debitum has a more ultimate and metajuridical connotation: it signifies that which is proportionate to, and commensurate with, the nature of man. This becomes apparent from his analysis of the meaning of "nature."

The acceptance of nature as reason (natura ut ratio) may be viewed in three ways: where ratio is taken primarily as nature, or primarily as reason, or equally as nature and reason. If taken primarily as nature, then natural right is seen to operate as the principle of those actions pertaining to the welfare and preservation both of the individual (e.g., the acquisition of food, clothing, home and bed, and the enjoyment and protection of health) and the species (e.g., marriage, progeny, and the enjoyment and protection of both). But Albert is anxious to stipulate that even though the emphasis at this level of natural right is upon the natural impulse of nature, this by no means excludes reason, and even more precisely "right reason." Only a nature which is rational is the subject of natural right. Although training and nutrition and procreation are common to animal nature in general, they do not fall within the compass of natural right unless in some way they participate in reason and are morally virtuous acts. In the second level of natural right, the emphasis rests upon the rational element in man's nature, and to this pertain religion, justice, and the moral excellence of man (honestas) both in himself and in relation to others. Yet these forms of moral excellence involve not simply an element of pure reason, but other facets in man's nature as well. To natural right considered in this way belong the precepts of the Decalogue, according as they are taken generally and as indeterminate principles, and, in short, any kind of absolute goodness (honestum). In a third sense, where natural reason is considered as equally reason and nature, natural right encompasses all that which right reason determines to man's benefit and use. Albert adds here that we are speaking of natural right as of seeds of goodness, not of an ensemble of particular cases and specific decrees.

Albert is concerned with showing how widely the influence of the right of reason extends itself to every level of human activity. But natural right in all cases is a right of reason. At least six times throughout the treatise on law he explicitly takes exception to the broader conceptions of natural law which stretch it beyond the range of reason. "We do not agree with that distinction posed by some," he writes, "namely that natural right may be spoken of in many ways, and that in one way it is common to us and the beasts." The fact that in the course of this treatise he insists repeatedly upon this precision gives us some idea of the importance he attaches to this conviction. His words are an unequivocal repudiation of a tradition we have witnessed dating back to Roman times. What he proposes in its stead is a humanism wherein natural right appears as an integral element proper to man's practical reason. Natural right is "human right." While it is true that some of the canonists, notably Rufinus, had partly anticipated the Albertinian reservation, Albert, through intimately linking the principles of natural right to human reason, has given a philosophical justification for his assertions.

In Article Three, Albert moves on to consider the very content of natural right. He begins with two quotations. In his classical definition of natural right in the De inventione, Cicero included as well an enumeration of its contents: religion (religio), duty (pietas), gratitude (gratia), revenge (vindicatio), reverence, (observantia), truth (veritas). Gratian, reporting on the words of Isidore of Seville, offers a longer classification, and in this passage the influence of Ulpian is still discernible:

the union of man and woman, the succession of children, the education of boys, the common possession of all things and the same freedom for all; the acquisition of those things which are harvested from sky, earth and sea; likewise the restitution of a deposited item or entrusted money; the repelling of violence with force.

These are the only two major authorities mentioned by Albert. But the problem of ascertaining the content of natural law had been complicated for the medieval theologians by another division proposed shortly after Gratian's. Around 1149, Roland Bandinelli (later to become Pope Alexander III) spoke of all law as being comprised of precepts, prohibitions, permissions, and counsels. Ten years later, the decretist Rufinus was to echo much the same doctrine, but this time with specific reference to natural law:

Natural law is comprised of three things: namely, commands, prohibitions, demonstrations. For it commands that which is beneficial, such as "thou shalt love the Lord thy God." It forbids that which harms, such as "thou shalt not kill." It demonstrates that which is fitting, such as "all things should be had in common," "let there be the same freedom for all," and things of this sort.

Henceforth, nearly all the decretists, and William of Auxerre as well, adopt this division of natural law into commands, prohibitions, and demonstrations.

This kind of analysis, however, was to produce a curious effect. The reduction of natural law to a number of categories, the subsequent endeavor to multiply examples and to fit them into these categories, and the catalogue of functions envisaged by Gratian and others—all these divisions, we say, read as so many attempts to codify natural law in much the same way as these authors were teaching and studying a codified canon and civil law. From this custom of borrowing terms and techniques proper to a study of written positive law, there developed a tendency to speak of natural law as if it were the same as written law.

Albert's approach marks a departure from this tradition of juridified natural law. In the last article he simply defined natural right as that which is the objective right of rational nature. In the present article he neither divides natural right into a number of categories, nor does he attempt any enumeration of percepts. He simply points out that a diversification of natural right is effected through its objects:

Following our earlier statements, we say that natural right resides only in the ultimate principles of human right and, as has been shown, it is those principles. For just as the speculative intellect does not have one principle by which it knows all knowables, so the practical intellect does not have one principle by which it knows all practicable objects. Rather, just as the principles of the speculative intellect are diversified through diverse objects, so too the principles of the practical intellect are diversified through diverse actions, and the conditions of those acting, and place and time.

There is no one principle guiding the practical intellect just as there is no single principle assisting the speculative intellect in its understanding. When Albert speaks of natural right as a "habitus" he simultaneously conceives of a nature with its own unity and economy. Nevertheless, that "habit" in its very unity embraces a potential diversity of ultimate universal principles and is those principles. The principles themselves do not accrue to the intellect as so many clearly formulated directives and prohibitions. On the contrary, their very multiplicity is effected by a diversity in the objects of the practical intellect and by a diversity of circumstances and condition. Albert seems to have been the first to realize that the custom of classifying natural law not only destroys its unity by substituting for it a kind of mysterious "a priori" multiplicity but leaves unanswered as well the ultimate questions about the extent and causes of that very diversity.

In this same article, Albert proposes to distinguish three ways in which principles and acts fall within the compass of natural justice or right: essentially, suppositively, and particularly. Essentially belonging to and constituting natural right are those most universal and ultimate principles of which mention has been made in Article One: e.g., the Golden Rule, the Decalogue. Mention of these, however, is not intended to exhaust the content of natural right. Rather, by reason of their obvious goodness and relative indeterminacy they exemplify the kind of principle Albert has in mind when attempting to explain the nature of natural universal right. In the second way, "suppositively," there are natural acts determined by these first principles and presupposing them (supposita communia illorum principiorum). Such are the perfections and acts listed by Cicero and Isidore of Seville (and Gratian) in their divisions of natural right. They owe their origin to natural reason, but they are obviously of a more determinate or concrete nature than the first ultimate principles. Finally, those things pertain to natural right "particularly" which have been established by popular ordinance, the deliberations of the ruling body, and the pronouncements of the wise men. The suppositive and particular determinations, especially the latter, do not derive in their totality from natural reason, but entail as well a consideration of the concrete conditions and circumstances in which man finds himself.

Let there be no misunderstanding of Albert's purpose in presenting this threefold division. It is neither a division of natural right into three compartments, nor a hierarchy in the manner of those of Johannes Teutonicus and William of Auxerre. Rather, it is an attempt to view in its totality the scope and influx of natural right as seen through a series of progressive diversifications and specifications. Essentially, natural right is the most ultimate and universal principles of goodness and right. The other two manifestations of natural law are not absolute and essential, but rather participations. That is to say, they are prolongations or continuations of these ultimate principles into the less universal positive rights and specific operations of man. In these last two levels, right extends into the area of human, positive, and written laws, where a number of features other than natural reason intervene: e.g., the will of man, the consent and approval of peoples, covenants; diversifications through circumstances of time, place, events and affairs, and persons, etc. Especially at the third level we are dealing with "particular cases" which are reducible to natural right not simply and absolutely, but only "per accidents," as Albert says, precisely because of the addition of these other features. Opinion, not simply reason, is now at work in the formulation of written and positive right, since we now cope with things which in their very nature are variable and probable. This is not to say that, at this level, right rests upon doubt (arising from a confrontation of contradictories) and ambiguity (arising from confrontation of equal possibilities), but rather upon that which seems highly likely and right in the counsels of wise men because little or no reason militates against it. Moreover, even though these determinations of written and positive right do not derive in their entirety from reason, they nevertheless look to the rule of reason and bear its imprint. They are certainly not determinations contrary to reason. All right ultimately stems from nature and participates in natural right; if not, then it is not right, but injustice (iniuria).

Natural right is the metajuridical basis of all subsequent human rights and laws. Albert's constant emphasis upon the seminal character of these first principles now becomes clearer. The principles of natural right, he tells us, are "first seeds" which are inherently present in the public laws and decrees of the rulers and wise men as well as in the human and written laws which derive therefrom. They are intimately present as principles and directives assisting the work of prudential reason amidst a real network of conditions and circumstances. Even acts or rights which are seemingly antithetical, e.g., common possession and private possession of goods, can stem from one and the same natural law because different objects and conditions effect a difference in the principles. The habitus of natural right is one in its inclination towards goodness, but as refracted through different states and conditions this one force can pluralize itself in different manifestations.

Law

Question Two of the tractate on justice is devoted to a discussion of law (lex). The term, Albert admits, is an analogous one signifying four main laws: the law of nature, the law of Moses, the law of grace, and the law of sin. Of the three definitions of law in general, reported in Article One, the one imputed to Cicero, though not authentically Ciceronian, is favored by Albert in his magisterial resolution: "law is written right (ius scriptum) ordering the good (honestum) and prohibiting the contrary." Not above stretching a point, Albert argues that this is still a valid definition of natural law because the term "written" in this case may be taken in a much wider sense to mean "written by the finger of God and inserted in the heart of man." He then proceeds to tie the definition in with Aristotelian theory. In the Nicomachean Ethics, notes Albert, Aristotle had stated that it is the aim of every lawmaker to promote virtue in the citizens; and so political science includes laws as to what people shall do, and from what things they shall refrain. The end of law is the same as that of political wisdom: it is the human good (humanum bonum). The pseudo-Ciceronian definition seems to coincide with this philosophy, since it gives as the end of law the acquisition of moral excellence (honestum) and the prohibition of evil. Honestum has been the term used throughout the De bono to designate the mode of goodness proper to virtue. The end of law, then, as envisaged by Albert is primarily the growth of virtue in people. Prohibitions against evil are only incidentally (per accidens) the end of law, and they are made only when there are impediments or obstacles to goodness. This emphasis upon the positive end of law opposes a tradition dating back to Rufinus and even earlier to St. Augustine, wherein prohibitions were made to be an essential ingredient of natural law.

One of the most significant passages in these two articles is one containing an explicit defense of Albert's distinction between ius and lex:

To the second objection it must be said that law pertains more to obligation arising from the command of rational nature; and right pertains rather to the deliberations about practicable objects through rational nature; and thus the difference between natural law and natural right is clear. Hence, natural right adopts the good and prohibits the contrary through the manner of one judging. Natural law, however, effects these two through the manner of obligation and rule or precept. And thus the difference is clear.

In two sentences Albert has given us his doctrine of natural law in a nutshell. "Law" derives from the Latin word "to bind" (ligare). Its goal is moral excellence which it effects by means of obligation, command and precept. "Right," on the other hand, moves us to moral goodness through the work of judgment (per modum iudicantis). Its influence is felt in the deliberations of right reason concerning what man is to do (cogitationes operabilium). The notion of "right," then, is ontologically prior: it is the universal knowledge possessed by man of what is good, fitting, and proportionate to his rational nature. But this same habitus of first principles carries with it the force or instinct of a nature inclining man to goodness. Thus Albert speaks of natural law as an "inclining nature" (inclinans natura). That inclinational or instinctual movement is the obligation attached to natural law.

Natural law for St. Albert is scarcely something static; nor is it a defined code of precepts, prohibitions, and legislation covering a host of particular cases. Rather it is a dynamic operative habit of the practical intellect inclining man to human natural goodness through his understanding and judgments. In an age where natural law was commonly treated in terms of dictates, prohibitions, restriction, and obligation, and where as a result it came to be conceived as if it too were positive law, Albert has effected a noticeable change. The division of his treatise into a question on ius followed by another on lex both reflects and clarifies this move. The quitessence of natural law for Albert is not obligation and prohibition, but the innate wisdom of practical reason. Obligation, not in the sense of a formal static restriction, but rather in the sense of an inclination towards goodness, naturally and necessarily follows upon this. Ius and lex, therefore, though distinguishable, are not really two different things, but two facets of the one reality: the debitum rationis. The result is a flexible and analogical notion of law wherein a priority belongs to natural law because it is the metajuridical basis of all subsequent human rights, laws, and obligations. In this way Albert reverses the traditional procedure of viewing natural law through the medium of positive law.

Conclusion

We are now in a position to view synoptically the place of law within the over-all framework of Albert's moral thought and, knowing this, to appreciate as well the differences in theory, spirit, and order which distinguish his science of ethics as found in the De bono from earlier and contemporary medieval speculations. Let there be no misunderstanding of the importance which Albert assigns to natural law. For him it is an infallible objective knowledge of "the right and the good," formally innate, but still open to clarification and specification through our own experience and acts of cognition. At one point he writes that "natural right is the light of morals (lumen morum) impressed on us according to the nature of reason." Not only has he made it the basis of all subsequent written positive laws, but its influence as a habit of directive principles is felt as well in the deliberations of practical reason in the area of particular cases and individual acts. As intimately present to the mind of man, it necessarily extends to every aspect and corner of the virtuous life. More proximately, the principles of natural right, without usurping the role of prudence, immediately guide the work of prudential reason in ascertaining the quality of goodness in all our moral acts and their objects. Now there is a world of difference between this viewpoint and the outright legalism of the moralists reviewed earlier. For Alan of Lille and John of Rupella the principal cause and source of virtue was conformity to prescribed law. The same is true of William of Auxerre who made natural law—conceived in terms of positive law—the "origin and principle" of virtue. The result in all three cases is a juridified ethic wherein law and obligation figure as pivotal notions. Consistent with this is the internal order of their treatises: law precedes the disquisition upon the virtues. For Albert the Great, on the other hand, there is a great deal more to the life of natural virtue than mere conformity to law. At least two major factors could be said to have contributed to his thinking in this regard: the influence of Aristotle's moral science known to him through fragments of the Nicomachean Ethics, as well as Albert's own distinctive and highly original conception of the nature and role of natural law. For Albert, the direct and immediate cause of natural virtue is not law, but the right human act seen in all of its dynamic complexity. That complexity of the human operation analyzed into its four Aristotelian causes precedes his detailed disquisition upon the virtues themselves. Natural law is treated toward the end of the extant text of the De bono within the context of general justice because it is an integral element in man's nature contributing to his general rectitude or debitum generate. It is, in short, not an exterior norm to which man must conform, but an interior perfection of reason guiding and inclining man to the just life from within.