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Thomas Aquinas on why the law should not punish imperfect men for practising vices which do not harm others (1274)

The Italian Dominican theologian Saint Thomas Aquinas (1225-1275) argues the because the majority of people are weak and not perfect, human laws should not punish individuals for engaging in vice unless it causes harm to others:

(A) human law is laid down for a multitude, the majority of whom consists of men not perfect in virtue. And therefore not all the vices from which the virtuous abstain are prohibited by human law, but only those graver excesses from which it is possible for the majority of the multitude to abstain, and especially those excesses which are to the hurt of other men, without the prohibition of which human society could not be maintained, as murder, theft, and the like.

R. A law is laid down as a rule or measure of human acts. Now a measure ought to be homogeneous with the thing measured. Hence laws also must be imposed upon men according to their condition. As Isidore says: “A law ought to be possible both according to nature and according to the custom of the country.” Now the power or faculty of action proceeds from interior habit or disposition. The same thing is not possible to him who has no habit of virtue, that is possible to a virtuous man; as the same thing is not possible to a boy and to a grown man; and therefore the same law is not laid down for children as for adults. Many things are allowed to children, that in adults are visited with legal punishment or with blame; and in like manner many things must be allowed to men not perfect in virtue, which would be intolerable in virtuous men. But a human law is laid down for a multitude, the majority of whom consists of men not perfect in virtue. And therefore not all the vices from which the virtuous abstain are prohibited by [290] human law, but only those graver excesses from which it is possible for the majority of the multitude to abstain, and especially those excesses which are to the hurt of other men, without the prohibition of which human society could not be maintained, as murder, theft, and the like.

§ 2. Human law aims at leading men on to virtue, not suddenly, but step by step; and therefore it does not impose upon a multitude of imperfect men the practice of those who are already virtuous, to abstain from all things evil. Otherwise these imperfect persons, unable to bear such precepts, would break out into evils still worse, as is said: “He that violently bloweth his nose, bringeth out blood;” and again we read that if “new wine,” that is, precepts of a perfect life, is “put into old bottles,” that is, into imperfect men, “the bottles break, and the wine runneth out,” that is, the precepts are contemned, and the men out of contempt rush into worse evils.

About this Quotation:

The distinction between “vice” and “crime” goes back centuries in human thinking. Here we have a very early expression the Catholic theologian Thomas Aquinas from the 13th century. One way one might look at the problem is to think of vice as any “self-harming” (or potentially self-harming) activity such as drinking or prostitution, and crime as any “other harming” activity such as robbery or murder. The question then becomes what is the proper role of the state in preventing or policing harmful activity. One answer which both Aquinas and Lysander Spooner 600 years later advocated, was for the state to concern itself only with the latter, and to leave the former to the individual concerned (they would directly feel the consequences of their actions and might take steps to learn from this) or to their God. See Spooner’s 1875 pamphlet Vices are Not Crimes for more on this perspective.

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