The other Aquinas and the Bush administration

Rob beat me to Tamanaha over at Balkanization, but now I have even more say, though I'll try to keep it brief.  As far as the relevant context goes, Aquinas is not the ally against the Bush administration that Tamanaha makes him out to be.  Aquinas does think that the prince/legislator (the English Dominicans' translation of the Summa theologiae that Tamanaha relies on, the standard translation, renders the Latin word "princeps" and the like as "sovereign," but this is a seriously misleading mistranslation, a function, I'm afraid, of the time at which the learned translators were at work), should follow the law, even though no one can legally coerce him to do so.  But does the screening of Justice Department applicants entail a disregard of, or a call to disobey, the law?  As such, no.  Tamanaha's recent work has worried about the pouring of ideological agendas into the skins of the rule of law, but the question about the Justice employees who get appointed is simply whether in their work they are following the laws set down.  The screening may raise people's worries that they'll be incapable of following the law that has been laid down, but that's another matter.      

One should add, of course, that Aquinas's point in q. 96 art. 5, from which Tamanaha quotes, is not that the princeps cannot change the law or act beside the letter of it.  At the end of the reply to obj. 3 of 96.5, Aquinas writes "Again the princeps is above the law, in so far as, when it is expedient, he can change the law, and dispense in it according to time and place."  In the next question, 96.6, Aquinas further spells out the conditions under which someone who is under the law can act beside the letter of that law.  The permission, shaped and limited by the law's necessary commitment to the common good, is impressive, especially from the perspective of the flat-footed textualism or originalism that some conservatives and others insist is the remedy for our cultural woes.

Tamanaha writes that "the ultimate guarantor of the rule of law is the power to threaten and exert violence."  Aquinas does not agree.  On Aquinas's account, the reasonableness of the law is a necessary condition of its being binding, and its reasonableness comes from, among other sources, its being in the interest of the common good.  This alignment with and contribution to the common good, this "reasonableness," is, of course, no part of the account of Hobbes, whom Tamanaha identifies as Aquinas's ally.  For Aquinas, what we might call "the rule of law" occurs focally in the the prince's or his subjects' free conformity to the reasonable dictate of the prince, that is, the person charged with the common good of the community.  When force -- even lawful force -- has to enter, in some sense the rule of law has broken down or failed.

In sum, or so it seems to me:  Vague worries about the arrival of ideology that threatens "the rule of law" are a distraction from the clean questions put by Aquinas:  Are the officials operating within their grant of authority under the laws set down, that is, the reasonable ordinances put in place for the common good?  The reason why we shouldn't talk about "sovereigns" in this context is that, when that portentous word is used, there's inevitably an (at least) implicit claim that one can be above the directive force of the law.  On Aquinas's account, if the law be reasonable, that is, if it be a genuine law, no one is above its directive force, even if no one is in position lawfully to impose it through coercion.