Читать книгу Selections from Three Works - Francisco Suárez - Страница 10
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CONTENTS (from the Carnegie Edition)
A TREATISE ON LAWS AND GOD THE LAWGIVER
Dedication to D. Afonso Furtado à Mendoça, Bishop of Ejea
PREFACE. Setting Forth the Subject and Plan of the Whole Work
Study of laws a division of theology, 11; God the Universal Lawgiver, 13; Civil jurisprudence as the application of moral philosophy to political conduct of the commonwealth, 14; Aims of canon law, 14–15; scope of theology with respect to law, 15–16.
BOOK I: CONCERNING LAW IN GENERAL; AND CONCERNING ITS NATURE, CAUSES, AND EFFECTS
I. The Meaning of the Term ‘Law’ (Lex)
Discussion of St. Thomas’s definition of law, 17; Divisions of law according to Plato, 18; Relation of natural law to natural inclination, 19–20; Lex fomitis, 20; True meaning of law, 22; Difference between law and counsel, 23–24; Etymology of term ‘law’, 24–25.
II. What Ius Means and How It Is to Be Compared with Lex
Etymology of term ius, 26–28; meanings of term ius, 28–33; ius distinguished from the equitable and the good, 33–35; distinction between ius and fas, 35–36.
III. The Extent of the Necessity for Laws, and of Their Variety
Law not necessary in absolute sense, 37–38; Necessary for rational creatures, 38–39; Utility of law, 39; Categories of law, 39; Divine or
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eternal law, 40–41; Natural and positive law, 41–42; Conceptions of natural law, 42; Law in strict sense not attributable to irrational things, 42; Discussion of natural law in strict sense, 43; Human Law, 44; Natural and supernatural aspects of natural law, 45–47; Positive law defined, 47; Division of positive law into divine and human, 47; Necessity of divine positive law, 48–49; Definition of positive human law, 50–51; Necessity for human law, 51–53; Civil and ecclesiastical law, 53–54; Other divisions of law, 54.
IV. What Acts in the Mind of the Lawmaker Are Necessary for the Making of a Law?
Relation of law to the mind, 55; Law based on concrete act, 56; Threefold classification of law with respect to its state or subject, 56; An act of the mind of the subject necessary for existence of law, 57; Acts of intellect and will necessary for lawmaking, 58–60; A will to bind subjects is required, 60–61; Notification of lawmaker’s will to subjects, 61–64.
V. Is Law an Act of the Intellect or of the Will? And What Is the Nature of This Act?
First opinion: law an act of the intellect, 64–65; Authorities and arguments in support of this opinion, 65–70; Second opinion: law an act of lawmaker’s will, 70; Discussion of this opinion, 70–72; Its confirmation in characteristic properties of law, 72–73; In certain characteristic conditions requisite for law, 73–75; Discussion of Bartholomew Medina’s doctrine, 75–76; Incompatible manifestations of will, 76–78; Third opinion: act of intellect and of will necessary for law, 78–80; Conclusions regarding these opinions, 80–82.
VI. Is It Inherent in the Nature of Law That It Should Be Instituted for Some Community?
It is inherent in the nature of law to be instituted for human beings, 83; Whether it is also inherent in its nature to be instituted for a community—conflicting opinions discussed, 83–89; Affirmative opinion preferred, 89; Inductive proof of this affirmative contention, 89–91; Further confirmation drawn from certain properties of law, 91–93; Refutation of arguments in favour of negative opinion, 93–95; Difference between law and precept, 95; Kinds of community, 96–98; Perfect and
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imperfect communities, 98–99; Human laws should be framed for perfect communities, 99–102.
VII. Is It Inherent in the Nature of Law That It Be Enacted for the Sake of the Common Good?
Inherent in nature of law to be enacted for common good, 102–104; Divine laws work for common good, 104–105; Human laws should be enacted for common good, 105; Common good the final end of law, 105–107; Discussion of this theory, 107–108; Necessary that subject-matter of law itself be adapted to common good, 108–111; Privilege, 111; Relation of privilege to law, 112; Taxes relate to common good, 113; Laws to be in absolute form for common good, 113–115; Whether a general law established to harm an individual is unjust, 115–116.
[Chapter VIII omitted from these Selections.]
Suárez’s first assertion: inherent in nature of law to prescribe just things, 116–117; Two interpretations of justice of law, 117; Just things prescribed by divine law, 118–119; Human law prescribing unjust things not binding, 119–120; Formerly indifferent or optional acts may be rendered obligatory by law, 120–122; How a law permitting certain evils may be just, 122; Righteousness inherent in nature of law—the several conditions laid down by Isidore, 123–126; Law devoid of righteousness not binding, 127; Suárez’s second assertion: inherent in nature of law that it be justly established, 128–129; Three phases of justice necessary to enactment of law, 129–133; Suárez’s third assertion: inherent in nature of law that it be practicable, 133; Confirmation of this doctrine, 133–137; Difference between injustice in a law as regards subject-matter and mode, 137.
[Chapters X and XI omitted from these Selections.]
XII. What Definition of Law (Lex) Is Derived from the Conditions of Law Above Set Forth?
Various definitions of law, 138–140; St. Thomas’s definition, 140; Discussion of his definition, 140–142; Suárez’s definition, 142.
[Chapters XIII–XVII omitted from these Selections.]
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XVIII. Are All Men in This Life Subject to Law and Bound by It?
The question as defined by Suárez, 143; Heretical theory that just men are exempt from binding force of law, 143–145; All men subject to law, according to Catholic Faith, 145–146; Wicked Christians bound by law of Gospel, 146; How just Christians are bound by law, 147–149; Refutation of arguments of heretics, 149–150.
[Chapters XIX and XX omitted from these Selections.]
BOOK II: ON THE ETERNAL LAW, THE NATURAL LAW, AND THE IUS GENTIUM
I. Is There Any Eternal Law; and, What Necessity Is There for the Same?
Four arguments denying the existence of eternal law, 152; Its existence proclaimed by various theologians, 153–155; Two phases of law, 155–156; Replies to first and second arguments, 156; Answer of certain writers to third argument regarding promulgation of eternal law, 157–160; Promulgation not required for eternal law, 160–161.
Certain acts regulated by eternal law, 161–162; Whether that law is the rule of immanent acts of God, 162; Whether it is the measure of free acts of God, 163–164; First proposition: eternal law as rule of moral conduct is not imposed on God, 165–168; Second proposition: eternal law applies to things governed but is not applicable to God Himself, 168; Whether irrational and inanimate creatures are subject to eternal law, 168–171; Whether all moral actions are subject to eternal law, 171–172; St. Augustine’s theory regarding the sway of eternal law, 172–173.
Whether eternal law is a free or necessary act of God, 174; Eternal law includes act of divine will, 174–176; Eternal law a free decree of the will of God as regards all the universe, 176–178; Eternal law considered as existing in divine intellect, 178–179; Distinction between eternal law of God and His Ideas, 179; Eternal law distinguished from
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providence, 180–181; Effects of eternal law, 181–183; Whether eternal law is one or manifold, 184; Conclusion of Suárez, 184.
Binding force of eternal law, 186–187; Whether other laws derive binding force from eternal law, 187; Its relation to divine law, 187–190; To human law, 190; Difference between eternal divine law and human law, 191; How eternal law is made known to man, 192; Eternal law binding through medium of divine or human law, 193.
V. Is the Natural Law Natural Right Reason Itself?
Nature of this question, 194; First opinion: natural law consists formally in rational nature itself, 194–195; Arguments in support of this opinion, 195–197; Arguments against this opinion; its rejection, 197–200; Second opinion: law of nature a natural force called natural reason, 200; Confirmation of this opinion, 201–204; Whether natural law consists in an act of judgment or a mental habit, 204–205; Natural law distinguished from conscience, 205.
VI. Is the Natural Law in Truth Preceptive Divine Law?
Doubt: whether natural law is true law, 206–207; Whether God is the legislator of natural law, 207–208; First opinion: natural law a demonstrative law, 208–209; Second opinion: natural law a divine and preceptive law, 209–210; Suárez’s first proposition: natural law indicates what is good or evil and contains prohibitions of evil and command of good, 210–211; Arguments in support of this theory, 211–217; Second proposition: the good or evil involved in the observance or transgression of natural law is not only due to the divine will but presupposes inherent qualities of good or evil in such acts, 217–220; Third proposition: natural law is truly and properly divine law of which God is author, 220–221; Discussion of the bearing of natural law on evil acts, 221–226; Whether the divine will itself prescribes or forbids those things which come under natural law, 226–230; The promulgation of natural law through right reason, 230–232.
VII. What Is the Subject-Matter Dealt with by Natural Law; or, What Are the Precepts of That Law?
Subject-matter of natural law, 232; Difference between natural law and other laws, 232; Whether or not every moral good and every contrary evil fall under natural law, 232; Contrary opinions, 233–234; Reply of
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Suárez: natural law includes all moral precepts characterized by goodness necessary to right conduct, 234–235; Confirmation of this assertion by reasoning, 235–237; Gratian’s statement regarding natural law, 237–239; Suárez’s reply to contrary opinion, 239–240; Whether all virtuous actions fall under natural law, 240–243.
VIII. Is the Natural Law One Unified Whole?
Three questions regarding unity of natural law, 243–244; Two phases of natural law: that of humanity, and that of grace, 244; As regards the individual there are many natural precepts, but all form one unified body of law, 244–245; Classification of these precepts, 245–246; Natural law a unified whole with respect to all men, 246–247; Whether ignorance of natural precepts is invincible, 248–249; Natural law a single law, with respect to all times and every condition of human nature, 249–250.
IX. Is the Natural Law Binding in Conscience?
Effects of natural law, 250; Natural law is binding in conscience, 251–253; Whether every natural obligation carries with it an obligation in conscience, 253–254; Moral obligation not necessarily an obligation in conscience, 255; Whether every obligation in conscience is an effect of natural law, 255–257; Difference between obligations arising under civil law and those arising under divine law, 257–260.
X. Is the Natural Law Binding Not Only with Respect to the Virtuous Act but Also with Respect to the Manner of Its Performance, in Such a Way That This Law Cannot Be Fulfilled, Save by an Act That Is Good in Every Particular?
St. Thomas’s discussion of precepts and virtuous action, 260; Difference between affirmative and negative precepts, 260–261; Difference between fulfilling a precept and refraining from the transgression thereof, 261; Conditions requisite to good moral action distinguished, 262; First proposition: the mode of voluntary action is requisite for the observance of the natural law, 263; various objections and answers thereto, 264–267; Second proposition: to act with knowledge is, in a sense, necessary for the fulfilment of a natural precept, 267–268; Extent and nature of this knowledge, 268–271; Third proposition: natural law imposes obligation as to mode of practising virtue, 271–273; Suárez deals with conflicting opinions and doubt, 273–274.
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XI. Does the Natural Law Impose as an Obligatory Mode of Action That Mode Which Springs from the [Natural] Love of God, or from Charity?
Nature of this question, 274; Natural law and the love of God as the Author of nature, 275–276; In what sense the assertion that the love of God is an obligation of the natural law should be understood, 276–277; The opinion of Gregory of Rimini is rejected, 277–279; Mode of action springing from infused charity not required for the observance of natural law, 279–280; Discussion of certain conflicting opinions and objections, 280–283; Explanation of passages from Scriptures and Augustine, 283–286.
XII. Does the Natural Law Not Only Forbid Certain Acts, but Also Invalidate Contrary Acts?
Permission and punishment do not properly come under natural law, 286; Whether natural law may invalidate an act done in contravention of an obligation imposed by that law, 287; Rules for determining when acts are invalid by natural law, 289–291; Some acts prohibited by natural law may be validated, 291.
XIII. Are the Precepts of the Natural Law Immutable of Themselves and Intrinsically?
How law may be changed, 291–293; No lapse or change possible in natural law, either in its entirety or in individual precepts, so long as rational nature endures, 293; Proofs of this principle, 296; Discussion of certain views of Aristotle and St. Thomas on this principle, 296–299; Suárez on adaptation of natural law to changing subject-matter, 299; Whether natural law can be eradicated from the minds of men, 300–301.
XIV. Does the Natural Law Admit of Change or Dispensation through Any Human Power?
First opinion: change of or dispensation from natural law possible through human agency in some cases according to certain Doctors, 301–302; First argument in behalf of this opinion supported by examples concerning division of common into private property, restraint of natural liberty, changes in natural property rights, and in natural precepts on contracts and testaments, 302–303; Second argument supported by examples concerning dispensation from vows and oaths, from marriages that are merely ratified, from obligation of episcopal residence, from diriment impediments to
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matrimony, &c., 303–305; Second opinion: human law unable to abrogate or dispense from natural law, 305–307; How things pertain to natural law, 307; Its relation to human will, 308; First assertion: no human power can abrogate any natural precept, 309–312; Second assertion: precepts of natural law which depend upon consent of human will for binding force may be subjected to human dispensation, 312–313; Third assertion: subject-matter of natural law may be so changed through human law that the obligation imposed by natural law will be changed, 313; Reply to first opinion—the example regarding division of property is refuted, 314–315; Division of property not contrary to positive natural law, 315–316; The objections of Fortunius Garcia to this doctrine are answered, 316–318; Reply to second example (on restraint of natural liberty): natural law of dominion, as distinguished from preceptive natural law, may be changed by human agency, 318–319; Replies to third and fourth examples, 319; Answer to second argument in support of first opinion (examples of dispensations from natural law), 320; Reply to first example (vows and oaths), 320; To second example (concerning marriage that is merely ratified), 321; To third example (obligation of episcopal residence in diocese), 322–324; To fourth example (diriment impediments to matrimony), 324; To other examples, 324–326.
XV. Whether God Is Able to Grant Dispensations from the Natural Law, Even by His Absolute Power
Reason for doubt in regard to this question, 326–327; Three classes of natural precepts are first distinguished in connexion with dispensation, 327; First opinion: God is able to grant dispensations with respect to all natural precepts, 328; Opinion rejected, 329; Absurdity of first opinion demonstrated by examples, 330; Second opinion (Scotus’s opinion): precepts of Second Table of Decalogue can be subjected to dispensation but not those of First Table, 330–332; This opinion rejected, 332–334; Not only precepts relating to God are necessary by virtue of natural law but those relating to one’s neighbour as well, 335; Arguments of Scotus are answered, 335–337; Third opinion (that of Major and Durandus): that negative Commandments of Decalogue do not admit of dispensation with exception of Fifth Commandment, 337–338; Assertion of Major that all affirmative Commandments admit of dispensation, 338; Assertion of Durandus that Commandments of First Table do not admit of dispensation but that this is not true of Second Table, 339; Suárez’s objections to Durandus’s proposition, 339; Fourth opinion: that none of Commandments of
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Decalogue admits of dispensation even by absolute power of God, 340; St. Thomas’s argument in support of this opinion, 340–341; Suárez’s approval and exposition of the fourth opinion, 341–342; Examples to prove that change in human dominion brought about by God is not a dispensation, 342–345; Natural precepts the subject-matter of which does not depend on divine power of dominion are immutable and do not admit of dispensation, 345; Status of the Commandments under this doctrine, 345–346; Discussion of St. Bernard’s opinion, 346–348; Whether there are natural precepts, apart from Decalogue, from which dispensations may be granted, by divine power, 348–349; Solution: God does not grant dispensations from natural precepts, but does change the subject-matter or circumstances of such precepts, 349–350; Suárez’s proofs and arguments confirming this solution, 350–353; His additional argument that dispensation from natural precepts is not possible in that they flow as necessary consequences from natural principles, 353–355.
XVI. Does the Natural Law Afford Any Opportunity for Epieikeia (Equity) or Interpretation, Whether Made by God or by Man?
Whether natural law affords opportunity for epieikeia, 355–356; Only God may employ epieikeia with respect to natural law according to certain authorities, 356; Others assert that epieikeia with respect to natural law may be effected through a human being, 356; Another opinion: that natural law is not susceptible of epieikeia, 357–358; Last opinion preferred by Suárez, 358; Distinction between epieikeia and interpretation, 358–359; First assertion: many natural precepts require frequent interpretation and exposition, 360–361; Second assertion: true epieikeia has no place in any natural precept, in so far as it is natural, 361; Confirmation of this doctrine by examples, 361–364; Confirmation by reasoning, 364; Epieikeia has no place in negative precepts of natural law, 365–366; Distinctions between positive and natural law with respect to epieikeia, 366–370; Answer to objection citing apparent exceptions where epieikeia is alleged to apply to natural law, 370–372; Third assertion: natural law, as established through positive law, may admit of epieikeia, 372–373.
XVII. Is the Natural Law Distinguished from the Ius Gentium in That the Latter Pertains to Mankind Only, While the Former Is Shared in Common with Dumb Animals?
Ius gentium an intermediate form between natural and human law, 374; Meanings of word ius explained, 374; Divisions of ius: natural law, ius
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gentium and civil law, 375–376; First opinion: that of jurists who distinguish natural law from ius gentium, in that former relates to brutes, the latter to mankind, 376–377; Authorities who disagree with this opinion, 378; Arguments for and against the first opinion, 378–381; Second opinion: which distinguishes ius gentium from natural law on ground that latter reveals itself without reflection, the reverse being true of ius gentium, 381; Rejection of this opinion by Suárez, 381–382; Third opinion: which distinguishes natural law as binding independently of human authority, this not being true of ius gentium, 382; Suárez’s rejection of this opinion, 383–384; Suárez’s view of relation between ius gentium and natural law, 384.
XVIII. Does the Ius Gentium Command or Forbid a Given Act; or Does It Merely Concede or Permit?
Opinion that ius gentium may be distinguished from natural law as having concessive but not preceptive characteristics, 384; This opinion rejected by Suárez, 385–386; Relation of ius gentium to natural reason and human society, 386; Examples to illustrate this point, 387; Distinction between concessive and preceptive law as applied to ius gentium and natural law not valid, 388; Proof by means of Isidore’s examples of ius gentium, 388–390; Suárez further refutes the distinction, 390; Additional proof from examples of Isidore, 391–393; Suárez’s conclusion, 393.
XIX. Can the Ius Gentium Be Distinguished from Natural Law as Simply as Positive Human Law?
The ius gentium essentially distinct from natural law, 393; In what respect ius gentium and natural law agree, 393–394; In what they differ, 394–395; Ius gentium termed positive and human in absolute sense, 395–398; Difference between ius gentium and civil law set forth by Suárez, 398; Similarity of opinion of Justinian on this point, 399; Isidore’s definition of ius gentium, and examples, 399–400; Twofold form of ius gentium, 401; Examples of first kind (i.e. law of nations), 401–402; All states members of universal society, 402; Second kind of ius gentium (common civil law), 404; examples of this second kind, 405.
XX. Corollaries from the Doctrines Set Forth Above; and in What Way the Ius Gentium Is Both Just and Subject to Change
How the ius gentium is common to all nations although it is not natural law, 405; St. Thomas’s assertion: precepts of ius gentium are
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conclusions drawn from principles of natural law, 406–407; True equity and justice to be observed in ius gentium, 407; An important difference between ius gentium and natural law, 407–408; An objection based on the Digest, 408–410; Ius gentium may be changed by the consent of men, 410; By whom and in what manner it may be changed, 410–412; Difference in this respect between ius gentium and civil law, 412–413.
BOOK III: ON POSITIVE HUMAN LAW AS SUCH, AND AS IT MAY BE VIEWED IN PURE HUMAN NATURE, A PHASE OF LAW WHICH IS ALSO CALLED CIVIL
INTRODUCTION
Relative position of human law, 415; Division of human law into common law and particular law of a single community, 416; Latter subdivided into civil and canon law, 416.
I. Does Man Possess the Power to Make Laws?
Whether men are able to command other men and bind them by human laws, 417; Affirmative conclusion: civil magistracy with temporal power for human government is just and in harmony with human nature, 418; This conclusion based upon the principle that man is a social animal and desires to live in a community, 419–421; And upon a second principle that a power of governing must exist in a community, 421–422; Necessity of some principle whose function is to provide for and seek after common good of community, 422; Second conclusion: supreme human magistracy has power to make laws proper to its sphere, 422–423; Corollary: power to make human laws is vested in supreme magistrate of state, 423; Relation of jurisdiction to the lawmaking power, 424–426; Political subjection is consistent with natural law and reason, and this is not disproved by existence of tyranny, 426; Human principates did not originate with nature but are not contrary to nature or to Scriptures, 427–428.
II. In What Men Does This Power to Make Human Laws Reside Directly, by the Very Nature of Things?
Power to make human laws dwells either in individual men or in whole body of mankind, 429; Opinion that legislative power resides in supreme
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prince by divine conferment is rejected, 430; Opinion of Suárez: since men are born free, this power must reside in the whole body of mankind, 430; Adam possessed domestic, not political power, 431; The non-political multitude contrasted with the political body which needs and possesses the power of government, 432; Suárez rejects the idea of a world state in view of the division of mankind into various states each with its ruler, 433; Introduction of precepts of ius gentium in relations of these states, 434.
III. Has the Power of Making Human Laws Been Given to Men Immediately by God as the Author of Nature?
Reason for doubt on this question, 435; True opinion: power is given immediately by God, 436; This power embraces acts and purposes which transcend human authority, 436–437; How this power is conferred upon men, 437; It manifests itself in duly constituted political bodies, 438–439; It is not immutably vested in such bodies, 439–441.
IV. Corollaries from the Doctrine Set Forth Above
First inference: the power in question is in an absolute sense an effect of natural law, but its specific form is dependent on human choice, 441; Of the three forms of political government Suárez favours monarchy, 442–443; Second inference: civil power, though residing in a prince, flows from people as a community, 443; Civil power is lodged immediately in community, 443; The various titles to monarchical power, 443–445; Relation of royal power to the divine will and to human law, 446–447; Third inference: no civil laws are established universally for the whole world and binding on all men, 447–448; Fourth inference: regarding ways in which the lawmaking power is imparted, 449–450; Ordinary or delegated power, 450; What power is capable of being delegated, 450; Distinction between delegation of power by community and by prince made by Bartolus, 451–452; What power is incapable of being delegated, 452.
[Chapters V–XXXI omitted from these Selections.]
XXXII. Are the Laws Peculiar to Some Kingdom or Domain Binding on the Men of That Domain, When They Are Dwelling outside Its Territorial Limits?
Various phases of residence and domicile, 453; Whether permanent inhabitant of a state dwelling abroad must obey its laws, 453–454; No
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law is binding outside the limits of the territory of a superior by whom it is decreed, 454–455; Prince cannot make laws which are valid outside his jurisdiction, 456–457; Punishment of extraterritorial crimes, 457–459; Status of subject resident abroad, 459; When a law may have effect outside the limits of a state, 459–460; Enclaves are ordinarily outside the jurisdiction of enclosing state, 460.
XXXIII. Are the Laws Peculiar to Some Domain Strictly Binding upon Aliens While They Are Living Within that Domain?
Three elements to be distinguished in every law: binding force with respect to conscience, coercive force, requirement of a definite form for legal acts, 461; Suárez rejects opinion that only those domiciled in a state are bound by its laws, 462; Another opinion: laws bind aliens who have established quasi-domicile but not transients, 462–463; The accepted opinion: while he remains in the state the alien is bound in conscience by its laws, 463; Laws made for general welfare and must therefore have general application, 463–464; Alien is held, by sojourning in state, to manifest submission to its laws, 464; This doctrine applicable to religious persons who are guests in alien provinces, 465; Why aliens in a state are bound by its laws, 466–467; Whether a state may frame laws binding only upon aliens, 467; Whether a law is binding, as to its coercive force, on aliens temporarily in the state, 467; Suárez replies in affirmative, with certain limitations, 469–470; Difference between law and precept—view of Panormitanus rejected, 470–472; Difference explained by Suárez, 472–473; Alien sojourning in a state must observe the forms prescribed by its laws for legal acts, 473–474; Alien’s obligation with respect to taxes, 474–475.
[Bk. III, chap. XXXIV; Bks. IV and V omitted from these Selections.]
BOOK VI: ON THE INTERPRETATION, CESSATION, AND CHANGE OF HUMAN LAWS
[Chapters I–VIII omitted from these Selections.]
IX. Are There Occasions When a Law, as a Whole, Automatically Ceases to Exist, with the Cessation of Its Cause?
Since law is essentially perpetual and enacted for the sake of the community, it can cease to exist only through a change in its object, 477; Contrary and
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negative cessation of law, 479; Validity of law destroyed by change giving it contrary effect, 479–480; Need for evidence of such change with contrary effect before law can lose its force, 480–481; Arguments that law does not lapse when reason for law ceases to exist in a negative sense, 481–482; General opinion that when reason for law disappears, even in a negative sense, the law also ceases, 482; Whether the prince is bound to formally abrogate such law, 483–484; Suárez’s view: proclamation of cessation of law necessary, 485; Subject-matter of human law is essentially either of a righteous or a neutral character, 485–486; Law prescribing an intrinsically virtuous act does not cease to exist on disappearance of merely extrinsic end, 486–488; Law ceases when adequate end of law, both extrinsic and intrinsic, ceases to exist, 488–489; Difference between precept and law in this respect, 489; Law prescribing act of a neutral character ceases upon cessation of extrinsic end, 489; No decree of prince necessary to publish cessation of such law, 491–492; A distinction between a law enacted to avoid ills that follow a given fact and a law enacted for the sake of positive good, 492–494; A further distinction regarding reasons for prohibiting certain acts, 494; When the obligation of fraternal correction lapses, 495–496; Difference between cessation of law in general and in particular, with answers to arguments previously cited on cessation of reason of law in a negative sense, 497–498; Cessation of part of a law, 498–499; Limited cause of cessation produces a limited effect, 499.
[Chapters X–XXVII omitted from these Selections.]
BOOK VII: OF UNWRITTEN LAW WHICH IS CALLED CUSTOM
INTRODUCTION
I. The Definition of Custom, Usage or General Conduct, Forum, and Stylus, and How Each Differs from Written Law
Isidore’s definition of custom, 502; Difficulties regarding this definition, 502; Usus, mos, consuetudo, 503; Definition of usus, 503; Definition of mos, 504; Mos found in free actions only, 504; Distinction between mos and usus, 505; Custom resides in frequency of acts, 505; Two elements of custom: frequency of acts (formal custom), after-effects of repeated acts (habit, consuetudinary law), 506; Definition of custom of law and custom of fact, 507; Various definitions of custom in its relation to law, 507–510; Difference between custom and prescription, 511–513.
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II. Does Custom Always Introduce Unwritten Law, and Is the Definition Given Complete?
A doubt regarding a phrase in Isidore’s definition relating to custom as unwritten law, 513–514; Consuetudinary law is unwritten and commonly introduced in default of law, 514; Custom formally reduced to writing by one in authority to establish law becomes written law, 515; Custom retains its force until abolished by written law, 515–516; Relation of custom to existing written law, 516; Custom in derogation from written law, 517; The element of consent in establishing custom as implied in Isidore’s definition, 518.
III. Of the Varieties of Custom, and Whether It Includes Forum and Stylus
Two kinds of custom: that concerning persons, and that concerning human acts, 519; An explanation of this division which Suárez rejects, 519–522; His own explanation requires consideration of the two kinds of custom in relation to their purpose, 522–524; Another division: custom founded on human acts classified as universal, public or private, 524; Universal custom includes ius gentium, 524; Is to be excluded from this discussion, 524–525; Ecclesiastical traditions included under universal custom, 525; Private custom cannot institute law and is also excluded, 526–527; Public custom only is capable of introducing law, 527; Kinds of public custom, 528–529.
IV. Of a Third Division of Custom: That Which Is in Accordance with Law; That Which Is outside Law; and That Which Is Contrary to Law: and of Certain Points of Ecclesiastical Traditions
This threefold division of custom may be applied to three kinds of law: natural, positive, and human, 529; Custom and natural law, 530; Custom contrary to law of nature has no legal effect, 531–532; Parts of ius gentium may be abrogated by custom, 532–533; Ius gentium cannot be abolished as a whole, 533; The possibility of creating customs or laws derogating from the ius gentium, 533; Triple division of custom applied to positive divine law, 534–535; Unwritten traditions of Church classed as custom in accord with divine law, 535; Distinction between tradition and custom, 535; Custom may emanate from unwritten divine law, 536; Ecclesiastical customs, 537–538; Custom contrary to divine law, 538; Custom of observing human law is merely custom of fact and does not introduce consuetudinary law, 540; Such a custom may confirm or interpret law, 541; Whether it may extend law, 542.
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V. Of the Various Divisions of Custom on the Basis of Subject-Matter
Custom distinguished as canonical or civil, 543; Objection to this division and Suárez’s reply, 543–544; Division of custom into: style, general conduct, rite and forum, 544; Meaning of term ‘style’, 544; Style of fact and of law, 545; Effects of style, 546; Laws of style and their nature, 547; Rite defined, 547–548; Rite of fact and of law, 548; Meaning of term ‘forum’, 548–549; Difference between forum and style, 549; Forum as both custom and law, 550–551; Division of custom into positive and negative, 551–553.
VI. What Is a Good and Reasonable Custom and What Is an Evil and Unreasonable One
Good and bad customs, 553; Bad custom is one of fact, not of law, 553; Custom may be good or bad either absolutely or objectively, 554–555; Different kinds of bad custom and their legal effects, 555–556; Opinions of Navarrus and others as to what constitutes reasonable and unreasonable custom, 556–558; Suárez rejects these opinions, 558–563; His conclusion that the division of custom into good and bad differs from its division into reasonable and unreasonable, 563–564; Various methods and factors for judging the reasonableness or unreasonableness of custom, 564–566; Rule suggested to determine reasonableness of custom, 566–567.
VII. What Sort of Custom Is or Is Not Condemned in Law
Custom condemned by law ought to be declared unreasonable or specifically prohibited, 568; How law may annul custom, 568; clause ‘notwithstanding any custom whatever’ in law revokes custom already existing, 569; Simple abrogation of custom not equivalent to condemnation, 569; Some contradictory opinions, 571; Law prohibiting custom contrary to it applies to both past and future customs, 572–573; But such a law does not necessarily condemn future custom, 573; Custom condemned by law in express terms and in various ways, 574–578.
VIII. Concerning Another Division of Custom into That Which Is Valid by Prescription and That Which Is Not
The question whether customs may be validated by prescription, 578–579; Prescriptive custom—opinion of authorities and definition, 579–581; Prescription validates both custom of fact and of law, 581; Contrary opinion refuted, 582; Similarity of custom and prescription in the broad meaning of the terms, 582; Difference between them in regard to duration of time
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necessary to their validity, 583–585; Definite time required for prescriptive custom, 585; Contrary argument discussed and rejected, 586; ‘a long time’ in law connotes a period of at least ten years, 587–589; How length of prescriptive period may be determined, 589–591; At least ten years required for prescriptive custom, 591; Prescriptive period must be continuous, 592; What constitutes an interruption of a custom, 593; Division of custom into customs that are and those that are not validated by prescription, 593–594; Legal custom may exist independently of prescription and of a definite determination of a certain period of time, 594; Meaning of custom in absolute sense, 595–597.
IX. Concerning the Causes of Custom and in Particular Who Can Introduce It
The nature of custom with respect to its form and content, 597–598; Proximate cause of custom, 598; Perfect community necessary for establishment of custom, 599; Arguments based on private custom do not constitute a valid objection to this principle, 599–601; Only community possessing capacity for legislative authority over itself may introduce legal custom, 601–602; Several objections to this doctrine are answered, 602–606; Observance by greater part of community necessary for establishment of custom by the people, 606–607; Minority custom enacted into law by the prince is not consuetudinary law, 607; Custom of majority in community held to be that of whole community, 608–609; What persons constitute ‘majority’, 609.
X. By What Acts Custom Is Introduced
Custom introduced by repetition of acts, 609–610; Answers to certain objections relating to omissions of actions, matters of prescription and individual action, 610–612; The problem of what frequency of actions is necessary for establishment of custom, 612–614; Actions introducing custom must be public, 614.
XI. Whether Judicial Cognizance of the Frequency of Actions Is Requisite for the Introduction of a Custom
The arguments for affirmative opinion regarding this question are set forth, 615; Suárez rejects this opinion, declaring that no judicial act of recognition is necessary for establishment of custom, 616–617; He meets the several arguments previously set forth in behalf of the opposing opinion, 617–621; Effect of opinion of Doctors regarding custom, 621;
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Effect of judicial decisions on custom, 622–623; Their effect on the establishment of legal ‘style’—various opinions discussed, 623–625; To establish a custom judicial acts must conform to the same requirements of frequency and time as is the case with other acts, 625–627; Two kinds of style considered, 627.
XII. Whether Only Voluntary Acts Avail for the Introduction of Custom
Acts establishing custom must be voluntary, 628; Acts done in ignorance or error cannot establish custom, 629–630; A passage in the Digest which seemingly infers that custom may be established by error, 630–631; Suárez reinterprets this passage to conform with his doctrine that custom derived from error never establishes law, 631–635; Ignorance and error in regard to introduction of custom explained, 635; Custom not established by acts done under compulsion or fear, 637; Effect of fear on volition, 637; Acts done from fear are performed without intention of establishing custom, 638.
XIII. Whether the Consent of the Prince Is Necessary for the Introduction of a Custom, and What Must Be the Nature of This Consent
Various classes of communities distinguished in respect to power of establishing law and custom, 639–640; If the prince is the legislator, his consent is essential for the establishment of custom, 640–641; Extent of the power held by the prince, 641–642; Two ways in which the prince may consent to custom, 642–643; First inference: personal consent of prince not required in case of law established through prescriptive custom, 643–646; Second inference: if custom does not prevail in virtue of prescription, personal consent of prince is necessary, 646–647; Kind of consent necessary, 647; tacit consent sufficient, 648.
XIV. What Sort of Custom Has the Effect of Establishing Unwritten Law?
Four effects of custom: establishment, interpretation, confirmation, and abrogation of law, 648; Legitimate custom may establish unwritten law where no written or traditional law exists, 649–650; Such custom may contain all the elements requisite for true law, 650–651; Authority requisite for validity of a custom, 651–652; Will (i.e. intention) requisite for the establishment of custom, 652; Importance of this element, 652–653;
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Character of will required to establish custom, 653–654; Evidence of this will, 654.
XV. How Long Must Custom Endure in Order to Suffice for the Establishment of Law?
Concerning time required for the establishment of a custom, 655; In the case of prescriptive custom ten years required for it to introduce law, 656; Whether a longer period is required if the prince against whom such prescription runs is absent, 657–660; Length of time necessary in the case of custom not validated by prescription, 660; Difficulty of fixing a definite period for such custom, 661; Effect of judicial decisions and prudent opinion, 662–663; Intention of those observing custom an important factor in this connexion, 663–665; Various criteria for determining whether custom is observed for the purpose of introducing consuetudinary law, 665–666.
XVI. Concerning the Causes and Effects of Unwritten Law Introduced through Custom
Written and consuetudinary law similar except in form and promulgation, 667–668; Binding effect of custom, 668; Custom may establish penal law, 668–669; Custom may invalidate act contrary thereto, 669–670; Comparison of binding effects of law and of custom, 670–673; The binding effect of each, according to Suárez, is fundamentally the same, 673–674; Whether clerics are bound by custom, 674–677; Whether the obligation of custom may be extended from one case to another similar one, 677–679.
XVII. Can Custom Interpret Law?
Only custom in accordance with a law may interpret that law, 679; How it may interpret law as a sign or witness thereof, 679–680; As one of the causes for the introduction and settling of such interpretation, 680; Interpretation by prescriptive custom and concordant judicial decisions, 681; Force of custom in interpretation of human law, 681–682; Of divine and natural law, 682; Of custom, 683.
XVIII. Can Custom Abrogate Human Law?
Doubts concerning power of custom to abrogate civil law, 683–684; Human law (canonical and civil) may be abrogated by custom, 684; Source of the power to abrogate civil laws by custom, 685; Power of repudiation of law by custom lies in those under obedience to that
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law, 685; Will of both people and prince required for establishment of such custom, 686–687; Universal custom necessary to abrogate general law for the whole Church, 687; Privative custom (one arising from repeated omission of an act) sufficient to effect such abrogation, 688–689; Consent of prince to abrogation, 689; Nature of the reason in support of custom abrogating law, 689; Prescriptive period for custom abrogating law: ten years in case of civil law, 691; Forty years in the case of canon law, 692–694; Not essential that prince be aware of prescriptive custom abrogating law, 694–695; Non-prescriptive custom and the abrogation of law, 695–697; Time required for abrogation of law through custom of which prince has no knowledge, 698; Judgment of prudent man the criterion, 698; Reply to argument based on passage in Decretals, 699–701; Suárez meets difficulties raised at the beginning of the chapter: as to whether a municipal statute can abrogate a general law, 701–702; Whether a custom can prevail in opposition to will of prince, 702; Whether a reasonable custom contrary to law may be established by morally good actions, 703–704; How a custom arising out of actions legally forbidden may derogate from law, 704–705.
XIX. Does the Abrogation of a Law through Custom Admit of Any Exception or Extension?
Whether custom may abrogate penal laws imposing penalty by fact of transgression, 706–707; Whether custom may derogate from the penalty attached to a law, leaving that law still binding in conscience, 707–710; The effect of unreasonable custom with respect to such penalties, 711–714; Whether custom may relax the direct obligation of law without affecting the penalty attached thereto, 714–717; Suárez rejects the theory that laws invalidating certain acts cannot be abrogated by custom, 717–720; How a disqualified person may become legally qualified through custom, 720–721; Revocation of a custom by law does not prevent derogation from that law by a subsequent custom, 722; Effect of law forbidding future customs contrary to it, 722–727; How custom reprobated by law can prevail against such law, 727–729; Whether a law of the Church relating to the Sacraments can be abrogated by prescriptive custom, 729–731; Suárez finds no exceptions to the general rule that custom may abrogate law, 731; A custom abrogating law is not to be extended, 731; So held by Panormitanus, Jason, Innocent, and Rochus, 731; Whether custom may not only derogate from law but introduce new contrary law, 732; Suárez holds that both of these results may be brought about at the same time by the same custom, 733–734.
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XX. In What Ways Custom May Be Changed
Modes of changing custom, 734–735; Revocation of custom, 735; May take place by passage of subsequent law in opposition thereto, 736–738; Requirements of such a law if it possesses no revoking clause, 738; General custom revoked by general law, 738–740; Universal law framed for whole Church revokes particular customs of dioceses, &c., only if it has clause to that effect, 740; To what customs this rule applies, 741–745; Whether a particular law enacted for a locality by a ruler of universal authority derogates from a particular custom in opposition thereto, 745–747; Clause added to general law to abrogate custom, 747; To abrogate immemorial custom, 747–749; When an ancient custom is abrogated by a subsequent one, 749–750; Determination of the validity of such subsequent custom, 750–752.
A DEFENCE OF THE CATHOLIC AND APOSTOLIC FAITH
—In Refutation of the Errors of the Anglican Sect with a Reply to the Apologie for the Oath of Allegiance and to the Admonitory Preface of His Most Serene Majesty James, King of England
Dedication
[Of this treatise, only the following Chapters are included in these Selections: Book III, chaps. V and xxiii; Book VI, chap. IV.]
BOOK III: CONCERNING THE SUPREMACY AND POWER OF THE POPE OVER TEMPORAL KINGS
V. Do Christian Kings Possess Supreme Power in Civil, or Temporal Affairs; and [If So] by What Right?
Nature of the question regarding supreme temporal power explained, 761; Two forms of subjection, direct and indirect, 762–763; Whether the temporal power of Christian kings is supreme, 763; The opinion that the Pope is supreme in both temporal and spiritual domains, 764–766; Suárez’s assertion that Christian kings possess supreme civil power within
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their own order, 766; Denial of the Emperor’s temporal supremacy over the Church, 766–767; The doctrine that the Pope does not wield supreme temporal jurisdiction, 768; This doctrine supported by authority of Popes, 768–770; By reason, 770–771; It is proved that the Pope has never acquired such jurisdiction through election or other human title, 771; Further proof in connexion with canon and divine law, 772–776; Whether the Pope can be a temporal as well as a spiritual ruler, 776–777; Suárez rejects the argument that the Pope possesses supreme temporal jurisdiction, though he exercises it only indirectly, 777–780.
XXIII. The Pope May Use Coercive Power against Kings, Even to the Point of Deposing Them from Their Thrones, If There Be a Valid Cause
Coercive power of Pope chief point of controversy with King of England, 780; Necessity for the Pope to have coercive power over wicked kings, 781; This doctrine supported by Scriptures, 782–784; Its application to contentions of King of England, 784; The power of the Church to bind includes coercive power, 784–785; Means of coercion, 785; Use of excommunication as a coercive power, 785–788; Power resides in Pope to chastise kings with temporal punishments, 788–789; Confirmation of this conclusion from Scriptures and ecclesiastical authorities, 789–792; Further confirmation from papal practice and conciliar approval, 792–795; The truth of the conclusion is demonstrated by reasoning, 795–797; Power to punish by means of temporal penalties is necessary to the Church, 797; Such power is even more necessary for the correction of kings than for the correction of other Christians, 798–799; For the protection of Christian subjects the Pope may deliver them from dominion not only of heathen but of Christian kings, 800–801; Other grounds on which the Pope may intervene in temporal matters, 801.
BOOK VI: CONCERNING THE OATH OF ALLEGIANCE EXACTED BY THE KING OF ENGLAND
IV. Does the Third Part of the Oath [Exacted by King James] Contain Any Requirement in Excess of Civil Obedience and Contrary to Catholic Doctrine?
Third part of oath exacted by King James, 803; Two kinds of tyrants distinguished, 804; Lawful prince who rules tyrannically cannot be slain on private authority, 804; Contrary proposition condemned as
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heretical, 805; Grounds in defence of this contrary proposition analysed and rejected, 807–808; Permissible to slay unjust prince in defence of one’s life, 809; And in defence of the state if such a prince is attempting to destroy it, 809–810; Permissible to slay tyrant whose title is tyrannical, 810–812; Various limitations upon this doctrine, 812–814; The opposing opinion is refuted, 814–815; In connexion with the doctrine of tyrannicide certain important distinctions are pointed out between the two kinds of tyrants, 815–817; A king who has been lawfully deposed because of his tyranny may be slain by a private individual, 818; Deposing of heretical kings, 819–821; Power to depose king lies in the state itself and in the Pope, 821; A Christian kingdom is dependent on the Pope in deposing its tyrannical king, 821–822; Legal punishment of the king after he has been lawfully deposed, 822–825; Suárez demonstrates the errors involved in third part of the oath exacted by King James, 825–827; Proof that the oath exacts more than civil obedience, 827; That it involves erroneous doctrine, 828.
A WORK ON THE THREE THEOLOGICAL VIRTUES: FAITH, HOPE, AND CHARITY
—Divided into Three Treatises to Correspond with the Number of the Virtues Themselves
Dedication
Balthasar Alvarus of the College of Coimbra to the Readers on behalf of the Author
[Of this Treatise On Faith, Hope, and Charity, only the following Disputations are included in these Selections: Disputation XVIII of On Faith and Disputation XIII of On Charity.]
DISPUTATION XVIII: ON THE MEANS WHICH MAY BE USED FOR THE CONVERSION AND COERCION OF UNBELIEVERS WHO ARE NOT APOSTATES
[INTRODUCTION]
In approaching this subject certain fundamental facts and principles are briefly mentioned, 837.
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I. Has the Church the Power and Right of Preaching the Gospel to All Unbelievers Everywhere?
Power and right of preaching distinguished, 838; First proposition: Church has lawful power to preach Catholic faith everywhere, 839; This power resides in all believers, 840; Second proposition: the Church has a right and a special authority to preach the faith, 840–841; Reason for this authority, 841; Third proposition: The Church has the right to protect its preachers and punish those who hinder preaching, 842; Power of preaching rests in pastors, who delegate it to selected preachers, 843; This refers to public preaching, 844; Supremacy of the Pope in this connexion, 845; His duty of defending the right of preaching, 846; He may entrust this duty to Christian kings, and for this purpose may distribute among them the realms of unbelievers, 847–848; Suárez disapproves of advance military aggression to insure that preaching may be carried on in peace and security, 848–849; Only after peaceful attempts to preach are resisted may force be used, 849–850.
II. Is It Permissible for the Church and Christian Princes to Force These Unbelievers to Give Ear to the Faith?
The first or affirmative opinion on this question supported by four arguments, 850–851; Negative opinion, 851–853; An intermediate opinion is approved, 853; Christian princes may force their own infidel subjects to hear the faith, 853–855; Limitations on this proposition by Báñez, 855–856; Not permissible to coerce unbelieving non-subjects to hear the faith, 856; Answers to the four arguments relating to first opinion, 857–858; The use of coercion if a pagan ruler, or his people, or both are unwilling to permit preaching of the Gospel, 858–859.
III. After a Sufficient Presentation of the Gospel, Is It Allowable to Use Force to Compel Belief on the Part of Those Infidels Who Have Been Sufficiently Instructed?
The first or affirmative opinion on this question, with several arguments, 859–861; A second opinion (supported by arguments) that the Church and Christian princes may compel acceptance of faith by those temporally subject to them, 861–863; The true opinion that unbelievers who are not apostates, whether subjects or not, may not be coerced to embrace the faith, 863; Proofs that the Church has no lawful power over such unbelievers, 864–866; Church may not exercise compulsion even upon pagans temporally subject to it in order that they shall embrace the
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faith, 866; Indirect coercion to compel acceptance of faith not intrinsically evil, 867–868; Reason in support of this proposition, 868; Conditions under which indirect coercion may be used, 868–869; To whom direct coercion to faith may be applied, 869–870; Answer to arguments in support of first opinion, 870–871; Answers to arguments in favour of second opinion, 871.
IV. May Unbelievers Be Forced to Abandon Those of Their Errors and False Rites Which Are Contrary Not Only to Faith but Also to Reason?
Two kinds of unbelief are distinguished, 872; Whether unbelievers may be forced to abandon errors which are contrary to natural understanding, 872; The first opinion (accompanied by arguments) that compulsion may be used even against non-subjects, 873–874; The second and true opinion that unbelievers who are not subjects cannot be forced to change errors and rites, 874; Rejection of arguments supporting first opinion, 875–876; Infidels subject to a Christian prince may be forced to profess worship of God and to cease from errors, 877; Proofs of this doctrine and corollaries drawn therefrom, 877–880; Whether rites of unbelievers should be tolerated in Christian kingdoms, 880; Such rites, if not opposed to natural reason, are to be tolerated, 881; Why and to what extent Jews are permitted to celebrate their rites in Christian states, 882–883.
V. May the Unbelievers in Question Be Deprived of All Superior Power Which They Hold over Christians, That Is to Say, over the Faithful?
The power referred to in this question may be of four kinds, 883–884; Suárez rejects an affirmative answer to the question, 884; First proposition that unbelieving princes may not be deprived of their jurisdiction over Christian subjects simply on ground of unbelief, 884–885; Proof on the basis of invalidity of opposing arguments, 885–887; Second proposition that the Church may indirectly deprive non-Christian princes of their power over believers, 887–888; Freeing of Christians from power of non-Christian prince by change of their domicile, 888; Or by depriving unbelieving prince of sovereignty—a method to be employed with caution, 889; Conditions justifying the use of this method, 889–890; The nature of this indirect power over non-Christian princes, 890; Third proposition concerning the dominion of infidel masters over Christian slaves, 891–893; Fourth proposition that infidel officials under Christian
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king may be deprived of jurisdiction over Christians, 893–894; Fifth proposition that Christians may not be slaves of unbelievers who are subjects of Christian states, 894–896; Sixth proposition that the Church can prohibit Christians from acting as servants of unbelievers, 896; Status of baptized son of unbeliever, 896.
VI. Whether Every Other Form of Communication between Christians and Unbelievers Is or May Be Prohibited
Three kinds of communication between Christians and unbelievers, 897; Communication in the works of unbelief forbidden by natural law, 897; Rules on this point, 898; Communication of unbelievers with believers in works of the Christian religion is at times prohibited, 899; Whether it is permissible to debate with unbelievers on sacred matters, 900; Communication in secular affairs is not inherently evil or forbidden, 900–901; May be forbidden by ecclesiastical law, 901; Various restrictions on relations with Jews, 902–906; Whether these restrictions are applicable also to Mohammedans and other pagans, 906–907.
DISPUTATION XIII: ON WAR
On Charity: To the Gentle Reader
[INTRODUCTION]
I. Is War Intrinsically Evil?
Two erroneous beliefs, 911; First conclusion that war is not intrinsically evil or forbidden to Christians, 911–914; Second conclusion that defensive war is permitted and sometimes prescribed, 914; Third conclusion that even aggressive war may at times be right and necessary, 914–915; Definitions of defensive and aggressive war, 915; Fourth conclusion concerning necessary conditions for waging war justly, 916.
II. Who Has the Legitimate Power of Declaring War?
First conclusion that a sovereign prince or state has power to declare war, 917–918; Second conclusion that an inferior prince or imperfect state requires authorization from superior to declare war, 918; Suárez discusses certain limitations and exceptions to this conclusion, 918–920; Supreme jurisdiction a characteristic of perfect state, 920; But Christian kings are amenable to the indirect power of the Pope, 920–921; Third conclusion
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that war declared without legitimate authority is contrary to charity and justice, 921; Consequences of waging a just war in defiance of papal prohibition, 922.
III. Is It Permissible Even for Clerics to Declare War and to Engage Therein?
The question expounded, 922; First conclusion that Prelates of Church, if temporal sovereigns, may licitly declare war, 923; Second conclusion that clerics are forbidden to engage in war, not by divine but by ecclesiastical law, 924; Dispensation from this prohibition may be granted, 924; Third conclusion regarding the binding effect of the said prohibition under pain of mortal sin, 925; Nature of the sin if the war is just, 925–926; Whether clerics engaged in war incur irregularity, 926–929; The granting of dispensation in case of irregularity, 929.
IV. What Is a Just Cause of War, on the Basis of Natural Reason?
An old error concerning military might and war is condemned, 929; First conclusion that no war is just without a legitimate and necessary cause, 929; Suárez discusses the nature of causes sufficient to justify war, 930–932; Second conclusion that war is justified against one who inflicts injury and refuses to give satisfaction, 932; Such war may be necessary for the sake of order in the world, 932; The sovereign thus waging war is both plaintiff and judge, 933; The position of the sovereign not analogous to that of a private individual, 934–935; Third conclusion that he who begins war without just cause sins against charity and justice, 935; Instances in which even a war with just cause may result in such losses as to violate charity, 935–937; Whether the sovereign must be morally certain of victory before embarking on a just war, 937–938.
V. Can Christian Princes Have Any Just Ground for War beyond That Which Natural Reason Dictates?
Suárez denies that war is justified by refusal to accept the true religion, 938; Or on the grounds of idolatry and sins against nature, 938–940; Or on the theory that world dominion is possessed by the Emperor or Pope, 940; Or on the ground that unbelievers are barbarians and should be conquered for humanitarian reasons, 941–942; No just grounds for war lying outside the bounds of natural law are reserved to Christian princes, 942; Only an injury received or defence of the innocent justifies war, 942–943; Extension of this doctrine, within due limits, to unbelievers, 943.
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VI. What Certitude as to the Just Cause of War Is Required in Order That War May Be Just?
This question refers to theoretical rather than practical certitude, 944; First conclusion that the sovereign ruler must examine the cause of war and its justice and act accordingly, 944; When the justice of the cause is in doubt, possession is an important factor, 945; Procedure when neither side is in possession, 946; Resort to arbitration, 947; To the judgment of learned advisers, 947; Second conclusion that when consulted regarding war generals are bound to inquire into the truth, 948–949; Third conclusion that unless they consider the war clearly unjust, common soldiers are not bound to investigate its causes, 949; How soldiers should proceed in case of doubt, 949–950; Whether mercenaries are bound to inquire into justice of war before enlisting, 950–951; Arguments that they are not so bound, 951–953; Suárez concludes that only when they have positive doubts as to the justice of the war are mercenaries bound to investigate before enlisting, 953.
VII. What Is the Proper Mode of Conducting War?
Various aspects of this question, 954–955; Soldiers should not seize or despoil civilian property, 955; Loyalty and duties of soldiers, 955; Their relations with one another, 956; Before beginning hostilities the prince must notify the opposing state of the just cause of war and request reparation, 956–957; Whether reparation offered after war has begun must be accepted, 957–958; Extent of damages which may be assessed against the conquered state, 958; Rules on capture of property, 959; Punishment of guilty individuals among the enemy, 959; Status of enemy property, 960; Of neutral property in enemy territory, 960–962; Innocent persons among the enemy, 962; Treatment of such persons in war, 963; Whether prisoners of war may be enslaved, 963–965; Immunity of ecclesiastical persons and property in war, 965; Innocent may be slain only when necessary for victory, 965–966; Persons to whom this doctrine applies, 966; The opposing argument based on scriptural passages is met, 966–968; Urgent necessity in the prosecution of the war may permit the incidental killing of innocent persons, 968; Various arguments against this doctrine are answered, 968–971; Measures permissible to insure peace, 971–972; Whether restitution for losses inflicted is obligatory where both sides voluntarily wage war without just cause, 972–973; Stratagems in war, 973; Whether it is permissible to break
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faith plighted with an enemy, 974; Whether fighting is permissible on feast days, 974; Whether Christian princes may request aid of infidel sovereigns, 975.
VIII. Is Sedition Intrinsically Evil?
Sedition defined, 975; Sedition, not against prince, but involving two factions of the state is evil on part of aggressor, 975; War of a state against tyrannical prince is not intrinsically evil if conditions necessary for just war are present, 976–977; War of state against a prince who is not a tyrant is intrinsically evil, 977.
IX. Is a Private War, That Is to Say, a Duel, Intrinsically Evil?
Private contests divided into duels and single combat, 977–978; Most duels are without just cause and are therefore condemned, 978; Duels not characterized by conditions of a just war are considered evil, 979–981; Whether it is permissible for a person unjustly condemned to fight a duel with his accuser, 981–986; A private armed contest waged by public authority is not intrinsically wicked if it has the characteristics of a just war, 986–987; Suárez approves the reduction of war to an armed contest among a few combatants, 987–988; Opposing arguments are answered, 988–989.
