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58 Ala. L. Rev. 575 (2006-2007)
Thomas Aquinas and the Metaphysics of Law

handle is hein.journals/bamalr58 and id is 585 raw text is: THOMAS AQUINAS AND THE METAPHYSICS OF LAW William S. Brewbaker III* ABSTRACT Despite modemity's longstanding aversion to metaphysics, legal schol- ars are increasingly questioning whether law can be understood in isolation from wider questions about the nature of reality. This Article examines per- haps the most famous of metaphysical legal texts-Thomas Aquinas's still widely read Treatise on Law-with a view toward tracing the influence of Thomas's metaphysical presuppositions. This Article shows that Thomas's account of human law cannot be fully understood apart from his metaphysics. Attention to Thomas's hierarchical view of reality exposes tensions between Thomas's top-down account of law and his sophisticated bottom-up observations. For example, Thomas grounds human law's authority in its foundation in the higher natural and eternal laws. At the same time, he is well aware that many if not most legal questions involve determination of particulars-the resolution of ques- tions that might reasonably be answered in more than one way. Thomas's metaphysics sometimes works against his inclination to give place to human freedom in the creation of law. Thomas's metaphysical approach also raises important questions for contemporary legal theory. His insistence on addressing the question of law's ontological status, for example, challenges the reductionism of much contemporary jurisprudence and provides a vocabulary for accounting for the wide variety of analytical approaches legal philosophers employ. INTRODUCTION .......................................................................................... 576 I. THOMAS AQUINAS'S METAPHYSICAL CONCEPTION OF NATURE .......... 580 I. LAW 'S ESSENCE .................................................................................... 584 A . D efining Law .................................................................................. 584 B. Metaphysical Influences in the Treatise ......................................... 588 1I. HUMAN LAW 'S ONTOLOGY ................................................................. 592 * Professor of Law, University of Alabama. I am grateful to Alfred Brophy, Alan Durham, David VanDrunen, Timothy Hoff, Mark Murphy, John Nagle, and Michael Pardo for helpful comments on previous drafts of this Article. I am also grateful to Dean Ken Randall and the University of Alabama Law School Foundation for generous research support, to Chris Sanders for research assistance, to Caro- line Barge for secretarial assistance, and to Ben Lucy for his friendship and encouragement. The errors that remain are mine.

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