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Abstract

This Article compares the legal thought of James Wilson, a leading jurisprudential figure during the American Founding, and Thomas Aquinas, perhaps the most well-known medieval philosopher, on crime and punishment. It argues their theories are closer than the historical gulf between them suggests would be the case. Both limit the definition of crime to morally culpable acts involving public harm. Each considers redressing the public disorder crime causes as the primary justification for punishment. While Wilson defers to the English common law to emphasize protecting certain natural rights and to prevent crime, Aquinas points to his understanding of natural law to focus on restoring the individual and social facets of the common good. Aquinas’s theological lens also adds a third type of harm to crime, namely what the perpetrator causes to himself. The comparison also underscores the relevance of first principles about human nature, morality, political society, authority, and law to the scope of criminal law and punishment. Both agree that how a political order chooses to punish should reflect fundamental principles rather than the mere will of the majority or power dynamics within society. Wilson’s precommitment to natural rights as the cardinal organizing principle of legal systems—in contrast to Aquinas’s emphasis on the natural law and the common good—matters greatly in the details of their views, including the role of positive law. Finally, Wilson’s perspective on crime and punishment is further evidence that the Founders were not exclusively positivist in their political and legal philosophy, which might inform questions of constitutional interpretation and meaning relating to crime and punishment to the extent Wilson’s ideas are considered relevant in contemporary original meaning debates.

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