|St. Thomas Aquinas|
In Article 4 of the 93d Question of Aquinas’ “Treatise on Law,” with a class, I read the following passage: “Those things are subject to human government, which can be done by man; but what pertains to the nature of man is not subject to human government; for instance, that he should have a soul, hands, or feet.” What’s this “things not subject to human government” about? Is there anything not subject to human government?
The examples that Aquinas uses are striking. The fact that we have souls, hands, or feet is not subject to government. These attributes or parts of what we are were not the result of human legislation. In other words, what-it-is-to-be-a-human-being is not something that the government designs or causes, but rather finds.
In other words, governments are limited by what-it-is-to-be-a-human-being. They reaffirm it but do not constitute it. The next question that arises is this: Can human legislation claim to rule things which do not belong to its competency? A common saying about the absolute sovereignty of the British Parliament, attributed to A. V. Dicey in the nineteenth century, was that a parliamentary law decreeing all blue-eyed babies to be killed would still be the law. Obviously, the theory that allowed such a statement would elevate politics to a god-like power of deciding by itself what constitutes what a human being is.