The role of consuetudo (custom) in St. Thomas Aquinas's philosophy of law.
详细信息
- 作者：Grundman ; Stephen Paul.
- 学历：Doctor
- 年：2005
- 导师：Lewis, V. Bradley
- 毕业院校：The Catholic University of America
- 专业：Philosophy.;Law.;Education, Educational Psychology.
- ISBN：0542058766
- CBH：3169855
- Country：USA
- 语种：English
- FileSize：48032929
- Pages：450
文摘
This dissertation examines Aquinas's teaching on the nature of consuetudo and its relationship to human law; as such, it explicates the relationship of law and morality, especially the 'enforcement of morals' question. Aquinas argues that human law should lead men to virtue, but gradually. Proposing a concept of law constituted by rational orderedness for the common good (not by coercive force), he identifies the lawgiver's chief intention as the common good, and secondly the order of justice and virtue. Like Aristotle, he simultaneously holds that consuetudo has the force of law, abolishes law, and interprets law. Modern scholars of Thomas (e.g., John Finnis, Mark C. Murphy, Mary M. Keys, Edward A. Goemer and Walter J. Thompson), however, disagree among themselves about the import of consuetudo. An introductory chapter outlines this disagreement, and briefly proposes a solution; it also marks the historical and intellectual context in which Thomas developed his teaching. Chapters 2 and 3 explore Thomas's teaching on human law and consuetudo, respectively, while chapters 4, 5 and 6 consider the disparate positions held by modern thomistic scholars, examining them in relation to the research just concluded.;In particular, chapter 2 states Aquinas's reasons for affirming that: (1) law is essentially a rational order for the common good; (2) the lawgiver aims at virtue, and; (3) human law is limited to considerations of justice. Using Busa's Index Thomisticus, chapter 3 determines the nature of consuetudo, considering Thomas's teaching on whether it obtains force of law, and whether law should attempt to repress all vices or require all virtues. Custom's rationality and authority (chapters 4 and 5) are then considered.;The final chapter considers custom's utility, contending that there are narrow limits to the usefulness of law as a coercive shaper of habitual understandings and moral character. Custom emerges as a mode of regulating human behavior far superior to statutory law. Aquinas here suggests various institutional means for advancing the common good without relying unduly (and therefore detrimentally) on the use of coercive force, e.g., advice, commandments ( mandata; distinguished from precepts), public festivals and religion.