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A Treatise on Laws and God the Lawgiver

PREFACE

Setting Forth the Subject and Plan of the Whole Work

It need not surprise anyone that it should occur to a professional theologian to take up the discussion of laws. For the eminence of theology, derived as it is from its most eminent subject-matter, precludes all reason for wonder. Surely, if the question is rightly examined, it will be evident that a treatise on laws is so included within the range of theology, that the theologian cannot exhaust his subject unless he tarries for a time in the study of laws. For just as theologians should contemplate God on many other grounds, so also should they contemplate Him on this ground: that He is the last end toward Whom rational creatures tend and in Whom their sole felicity consists. It follows, then, that the sacred science has this last end in view, and that it also sets forth the way to attain that end; since God is not only the end, and (as it were) the goal, towards which all intellectual creatures tend, but also the cause of that goal’s attainment. For He directs His creatures, and, having shown the way, leads them to Himself. Moreover, He checks them with admonitions, that they may not stray from the path of righteousness, and when they do stray from it, by His ineffable providence He recalls them and shepherds them back, enlightening them by His teaching, admonishing them with His counsels, impelling them by His laws and, above all, succouring them with the aid of His grace; so that Isaias most justly exclaims [Isaias, Chap. xxxiii, v. 22]: ‘the Lord is our lawgiver, the Lord is our king: he will save us’.1

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Since, then, the way of this salvation lies in free actions and in moral rectitude—which rectitude in turn depends to a great extent upon law as the rule of human actions2—it follows thence that the study of laws becomes a large division of theology; and when the sacred science treats of law, that science surely regards no other object than God Himself as Lawgiver.

All this is very well (someone may argue), if the theologian, keeping within the bounds of divine laws, does not invade the domain of human laws, which both the moral philosophers, and the professors of canon and civil law, may very justly claim as their own province. For if the theologian treats of laws only in so far as they are derived from God as Lawgiver, then surely he will be discharging an alien function, if he turns aside to discuss other legislators. Moreover, since theology is a supernatural science, it should be forbidden to descend to those matters which have their source in nature and in no way rise above her. If this be not true, then the natural philosopher may also study divine laws, in addition to natural laws; and the professors of Roman, or even of Pontifical law, may usurp for themselves the lessons of the divine laws; a supposition which is clearly opposed to an harmonious division of the sciences.

These considerations, however, are not of great moment and may be disposed of almost by a single word, if one reflects that, even as all paternity comes from God, so, too, does [the power of] every legislator, and that the authority of all laws must ultimately be ascribed to Him. For truly, if a law be divine, it flows directly from Him; if, on the other hand, it be human, that law is surely ordained by man, acting as God’s minister and vicar, in accordance with the testimony of the Apostle in his Epistle to the Romans [Chap. xiii].3 Hence, it is not without cause that, from this

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standpoint, at least, a discussion of all laws should fall within the scope of the faculty of theology. For, in view of the fact that it pertains to theology to look upon God as Lawgiver, and since God is the Universal Lawgiver, either through the mediation of a deputy, or by the immediate action of His own virtue (to use the terminology of the philosophers), this same sacred science must of necessity deal with all laws.

Moreover, it is a theological function to take thought for the consciences of men in this life, and rectitude of conscience rests upon the observance of laws, just as perversion of conscience rests upon their violation; for any law whatsoever is a rule which leads to eternal salvation if it is obeyed as it should be, and to the loss of that salvation if it is violated. Hence, the study of law as binding upon the conscience will also pertain to the province of the theologian.

Finally, the Catholic faith teaches not only how far we must obey God when He commands in the supernatural order; it teaches also what nature forbids, commands, or permits; furthermore, it clearly reveals to us the extent to which we must submit to the higher powers (in the words of Paul) and, indeed, the extent to which we must observe both ecclesiastical and secular laws. From these foundations of the faith, then, it is for the theologian to deduce what should be held, with respect to this or that system of laws.

One may understand, in this connexion, how theology fulfils the function in question without any imperfection or confusion; that is to say, it treats of law by the light of a higher inspiration. For, in the first place, the moral philosophers discuss many points relating to law. Thus, Plato wrote twelve books on the subject, compressed approximately into three, by Cicero.4 Aristotle, indeed, while he did not leave any work dealing strictly with laws, did write a great deal on that subject, here and there, throughout his works on morals;5 as did Seneca, Plutarch and others.6

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It would seem, however, that these philosophers recorded only the principles of jurisprudence. For their treatment was almost entirely limited to those human laws which help to keep a commonwealth or state in justice and in peace; and, at most, they touched somewhat upon natural law in so far as it can be made known by human reason and serves as guide for the moral rectitude of acquired virtues. The [Roman] emperors, too, adopted very nearly the same principle in establishing their laws; as did the other framers of civil laws; for, using philosophy as a foundation, they deduced therefrom civil laws which were in accord with reason. Wherefore, Cicero (On Laws, Bk. I [, chap. xxii, § 58]) makes a particular effort to confirm the statement that jurisprudence should be derived from the very springs of philosophy. Ulpian agrees with this (Digest, I. i. 1, § 1), when he says: ‘We strive […] for a true and not a simulated philosophy’. It follows thence that civil jurisprudence is nothing other than an application, or extension, of moral philosophy to the rule and government of the political conduct of the commonwealth; and therefore, in order that [this jurisprudence] may partake somewhat of the essence of true science, it must be joined or subordinated to philosophy. All this treatment of the laws, then, fails to transcend their natural end; nor does it even touch upon that end in all its phases, but only upon such phases as are necessary to preserve the external peace and justice of the commonwealth.

The canon laws, however, relate to the supernatural order, both because they are derived from the power given to Peter for the feeding of Christ’s flock [St. John, Chap. xxi, vv. 15, 16], and also because they trace their origin to the principles of divine law, and imitate that law in so far as is possible and expedient. Wherefore, Innocent III said (Decretals, Bk. V, tit. I, chap. xxiv) that the canonical sanctions were derived from the authorities of the Old and New Testaments. In the canon laws themselves, however, we may distinguish two separate ends. The one consists in the establishment in the whole ecclesiastical state of a due political order, the preservation in that state of peace and justice, and the regulation by right reason of all that relates to the external forum of the Church. The other end consists in the right and prudent ordering of all things relating to divine worship, the salvation of souls and the purity of faith and moral conduct. Hence the interpreters of canon law, by the very nature of their labours and of their

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own purpose, study and interpret the sacred canons from the standpoint of a superior end and aspect.

But theology embraces all these functions on a loftier plane. For it takes into consideration the natural law itself in so far as the latter is subordinated to the supernatural order, and derives greater firmness therefrom; whereas it considers the civil laws only by way of determining, according to a higher order of rules, their goodness and rectitude, or by way of declaring, in accordance with the principles of the faith, the obligations of conscience which are derived from the said civil laws. Furthermore, theology recognizes and claims as proper to itself, the sacred canons and the pontifical decrees in so far as they are binding upon the conscience and point the way to eternal salvation. Accordingly, with respect to all of these systems of law, theology conducts a divinely illuminated inquiry into the primary origins and the final ends; that is, it asks in what way the said systems derive their origin from God Himself, in the sense that the power to establish them exists primarily in God, flowing forth to men from Him either by a natural or by a supernatural course, and ever influencing and co-operating with them. Finally, theology clearly reveals the way in which all laws are standards of human action relatively to the conscience, and thus reveals also the extent to which they conduce to merit or demerit for eternal life.

Nor, indeed, are we the first among the theologians to undertake this treatment of laws. For we have as predecessors, writers of the gravest authority, in every age. In the first place, St. Thomas, in his Summa (I.–II, from qu. 90 to qu. 109) follows this mode of procedure when laying down a doctrine of laws; and he has been imitated by the commentators on these passages; especially, by Soto (De Iustitia et Iure, the first two Books) and by St. Antoninus (Summa Theologica, Pt. I, titles xi–xviii). Alexander of Hales ([Summa Universae Theologiae,] Pt. III, qq. xxvi–lx) and Vincent of Beauvais (Speculum Morale, Bk. I, pt. ii, first nine disputations7) have observed the same method. Gerson, too (De Vita Spirituali, Pt. III, lects. ii et seq.; De Potestate Ecclesiastica, Pt. I, especially consideratio 13), dealt with

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certain points relating to individual laws. [Peter Lombard,] the Master of the Sentences, also touched lightly (Sentences, Bk. III, dists. xxxvii, to end) upon the subject of divine laws; and he was imitated therein by others who undertook simply the task of commentators. Moreover, special works on certain laws have been published by other theologians, such as William of Paris8 in his Summa (Pt. I, bk. ii [Pt. V, chap. i]), which book he entitled De Legibus, although it treats almost entirely of the precepts of the Old Law. Castro also wrote on penal laws; and Driedo, in his work De Libertate Christiana, treated learnedly of every kind of law; not to mention other writers in these fields.

It is, then, the common consensus of the theologians that [the study of] law has regard to the consideration of the sacred science, in so far as concerns both the essential nature of law in general, and its division under all the various species.

Therefore, the foregoing makes clear the subject-matter of this treatise and the principle on the basis of which we shall treat of that subject-matter. With this end in view, then, we shall not find it difficult to set forth a summary of all the points to be treated, a plan of discussion, and the method to be followed. For we shall speak first of law in general, then we shall pass to each of its species, and in connexion with each of these, we shall treat only of those points which are adapted to our purpose; in order that, in so far as we find it possible, we shall neither omit anything that pertains to the purpose of theology, nor appear to go beyond the bounds of the sacred science.