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A Treatise on Laws and God the Lawgiver

BOOK I

Concerning Law in General; and Concerning Its Nature, Causes and Effects

Following the usual order of this science of law, we shall in this First Book treat only of the general nature of law; offering, however, a preliminary outline of law as it is divided into its various parts, so that some knowledge of them, even though it be a general knowledge, may be obtained. For in spite of the fact that this book is to deal with the matters that are common to all law, devoting as little attention as possible to those points which properly pertain to the individual species of law, nevertheless, it will frequently be necessary for us to make mention of those species, in order that the points which are common [to both aspects of law] may be better understood. Accordingly, it is necessary to furnish some conception of the said individual species.

However, in order to proceed more clearly, we should first dwell to some extent upon the name and the essential nature of law (lex).

CHAPTER I

The Meaning of the Term ‘Law’ (Lex)

1. The definition of lex, according to St. Thomas. St. Thomas (I.–II, qu. 90, art. 1) defines the term ‘law’ (lex) as follows: ‘Law is a certain rule and measure in accordance with which one is induced to act or is restrained

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from acting.’1 This definition would appear to be too broad and general. For law would in that case be applicable not only to men, or rational creatures, but also to other creatures, since everything has its own rule and measure, in accordance with which it operates and is induced to act or is restrained therefrom. Moreover, law [if so defined] would relate not only to moral matters, but also to artificial matters; not only to what is good and upright,2 but also to what is evil; since the arts, too, whether licit or illicit, have their own rules and measures, according to which their operation is promoted or restrained. Finally (and this would seem to be a graver objection), it would follow from the definition above set forth that counsels are to be included under law; for counsel is also a species of rule and measure of virtuous action inclining one towards that which is better, and restraining one from that which is less good; yet, according to the faith, counsels are clearly distinct from precepts, and therefore are not included under law, strictly speaking.3

2. The divisions of lex, according to Plato. With respect to the foregoing, we may note, in the first place, the division which is to be drawn from Plato’s Minos, or On Law [313 B et seq.],4 a dialogue in which he distinguishes between two [suggested] divisions of law: that of art, and that of custom. To these we may add a third group from the Timaeus [24 et seq.] and the Gorgias of this same Plato—the law of order or of natural propensity. Here, distinguishing a fourfold division of law, he gives to one part the name of natural law. We shall make some comments as to this division below (Chapter Three).5

For the present, we refer the expression ‘natural law’ not to that law which dwells in mankind, a division which we shall also discuss later, but rather to that which befits all things, in accordance with the inclination imparted to them by the Author of nature; for such appears to be Plato’s

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explanation of the term, although he admits that the law in question exists among men also, after a nobler fashion.

This third acceptation of law is therefore metaphorical, since things which lack reason are not, strictly speaking, susceptible to law, just as they are not capable of obedience. Accordingly, the efficacy of divine power, and the natural necessity resulting therefrom in this connexion, are metaphorically given the name of law. With this, indeed, the Scriptural phrase accords (Proverbs, Chap. viii [, v. 27]): ‘When with a certain law and compass he enclosed the depths’; as do, further on, the words [ibid., v. 29]: ‘[…] and set a law to the waters, that they should not pass their limits’. This sort of law is also referred to, in the term ‘measure’ in Job (Chap. xxxviii [, v. 5]): ‘Who hath laid the measure[s] thereof, if thou knowest?’ And we find below, the words: ‘Who shut up the sea with doors’ [ibid., v. 8]; ‘And I said: Hitherto thou shalt come’, &c. [ibid., v. 11].

Furthermore, it is in accordance with this acceptation that the term ‘law’ is wont to be applied to natural inclination; either because that inclination is the measure of the action toward which it impels one, or because it rises out of the law of the Creator. For this term ‘law’ is frequently applied both to the rule itself, and to the work or effect thereof, in so far as the latter conforms to the rule; just as the actual product of art is often called ‘art’. It is in this sense that one may interpret the following passages, from the Epistle to the Romans (Chap. ii [, v. 13]): ‘For not only6 the hearers [of the law are just before God,] but the doers of the law shall be justified’; (that is to say, [doers] of the work prescribed by the law;) and from John (Chap. vii [, v. 19]): ‘Did not Moses give you the law, and yet none of you keepeth7 the law’. However, in these passages, the word faciendum (doing or keeping) may also be taken in another sense as equivalent to the word observandum (observing).

3. Paul, too, may be interpreted according to this first acceptation, when, in the Epistle to the Romans (Chap. vii [, v. 23]), he speaks of the

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inclination of the sensitive appetite8 as ‘the law of the members’ and ‘a law of sin’, an inclination which St. Thomas (I.–II, qu. 90, art. 1, ad 1, and qu. 90 [qu. 91], art. 6) has called the lex fomitis9 (law of concupiscence).10 Furthermore, he there declares that this inordinate inclination of the fomes is called law, yet not formally, in the sense of law as a measure, but in a participatory sense, as one is wont to speak of that which is measured by law. Accordingly, St. Thomas holds, not that this inclination of the appetite comes of its very nature under the name of law, but that it does come under that name in so far as it is deprived of the rectitude of [its] original justice, owing to original sin, by operation of the punitive law of God. For in this sense, the inordinate nature of the fomes is not simply natural, but is a penalty of sin; and therefore, it is called ‘law’ in its capacity as an effect of divine law. Augustine (De Diversis Quaestionibus ad Simplicianum, Bk. I, qu. 1 [, no. 13]) seems to have held the same opinion, for he says: ‘This oppressive and weighty burden he calls law (lex), for the reason that it has been decreed and imposed by divine judgment through the law (ius) of punishment.’ Assuredly, this is to say that it was imposed by setting aside the [original] justice which endowed [the inclination] with the contrary quality of rectitude.

4. However, while the foregoing may be true, it would nevertheless seem that the inclination itself of the appetite, in so far as that inclination is purely natural, might be termed ‘law’ in the sense in which the natural inclination of water is so termed. For, in like manner, there would exist in man, in his purely natural state,11 this very law of the fomes, although

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it would not exist as a punishment for sin. Moreover, even to-day, this inclination of the fomes is apparently called law not only because it is an effect thereof, but also because it is (so to speak) a measure and rule of movements pertaining to the senses and has therefore been called by Paul ‘the law of the members’, as having dominion, in particular, over the members of the body. Thus it is that Augustine has said (De Genesi ad Litteram, Bk. V [Bk. IX], chap. x): ‘They have merited the operation in their members of that law which is opposed to the law of the mind.’12 So also is it that this law has been called the law of sin, not only because it is a result of sin, but also because it inclines thereto. In this sense, indeed, the law in question did not exist in Adam before the fall. For even though his sensitive appetite lacked not its natural propensity, it did not operate of itself, nor did it dominate in any way; neither was it a rule or measure of certain movements, but was, on the contrary, entirely subject to the law of the mind. However, for the matter of metaphorical locutions, the foregoing remarks will suffice.

5. The second13 acceptation of the word lex is a stricter one; for art is a work of the reason, and hence the rules that measure art may more properly be designated by the term lex. Accordingly, we are wont to distinguish among the military, and mercantile, and other laws; as St. Thomas has noted (I.–II, qu. 91, art. 6). The rules of correct speech, too, are customarily called the laws of grammar. And the same practice prevails in regard to other arts. Nevertheless, just as the rectitude of any art with respect to rational creatures is a relative rectitude, as St. Thomas remarks (ibid., qu. 56 [, art. 3]), even so the law of an art can be termed a law only in a relative sense.

Therefore, the name ‘law’ is properly applied, in an absolute sense, to that which pertains to moral conduct. And accordingly, we should narrow the description given by St. Thomas, so that it runs as follows: law is a certain measure of moral acts,14 in the sense that such acts are characterized

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by moral rectitude through their conformity to law, and by perversity, if they are out of harmony with law.

6. The true meaning of law. Hence, although unrighteous precepts or rules are frequently designated by the term ‘law’, as the saying in Isaias (Chap. xx [Chap. x, v. 1]) implies: ‘Woe to them that make wicked laws’, and as the words of Aristotle also imply (Nicomachean Ethics, Bk. IV, chap. i [Bk. V, chap. i, 1129 B]): ‘A law which is made at random is evil’15 (take, for example, the one which in popular speech is commonly called ‘the law of the world’, or ‘the law of the duel’, or some similar laws)—although, I repeat, this may be true—nevertheless, strictly and absolutely speaking, only that which is a measure of rectitude, viewed absolutely, and consequently only that which is a right and virtuous rule, can be called law. It is on this account that St. Thomas has said (I.–II, qu. 90, art. 1 [art. 2] and qu. 96, art. 4) that an evil precept is not law but iniquity; and St. Augustine has made the declaration, in the tractate On Free Will (Bk. I, chap. v): ‘That which is not just, does not seem to me to be [true] law (lex).’ Moreover, in his work On the City of God (Bk. XIX, chap. xxi), he lays down the same assertion, with regard to ius. Indeed, Cicero also has said (On Laws, Bk. II [, chap. v, § 11]) that law ought to be established to the end of promoting a just, quiet, and happy life; and that, therefore, those who are authors of unjust laws16 [so-called], have produced anything but [true] laws.

Plato amply confirms this assertion, in the Dialogue already cited.17 The reason supporting the view is also manifest in the light of what we have said above. For law is a measure of rectitude. But an unjust law is not a measure of the rectitude of human conduct. On the contrary, an action which conforms to it is unjust. Therefore, [such an unjust enactment] is

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not law, but partakes of the name of law by analogy (so to speak) in so far as it prescribes a certain mode of action in relation to a given end. We shall discuss this point later at some length.

[7]. The foregoing satisfies the reasons for doubt, with regard to the first two heads.18 For in the sense in which the term is here used, law is the measure, not of all acts whatsoever, but of moral acts, with respect to their absolute goodness and rectitude, by reason of which rectitude, law impels one to perform these actions. It is in this sense that Clement of Alexandria has said (Stromata, Bk. I [, chap. xxvi]): ‘Law is the rule of the just and the unjust.’

The last objection,19 however, postulates a distinction between counsel and law, a matter which is a cause of prolonged dispute with the heretics, although that dispute is not pertinent to the present context. Some persons hold, then, that ‘law’ is to be taken in two senses: in one sense, as a binding precept, and thus distinct from counsels; and in another sense, as any dictate of reason with regard to the righteousness of an act; according to which latter interpretation (so they maintain), the term ‘law’ includes counsels. For St. Thomas says (I.–II, qu. 19, art. 4) that every good act depends, in its goodness, upon the eternal law; and the acts enjoined by counsels are good in the highest degree; hence, such acts are included under the eternal law. However, if one is speaking (as we now are) of law in the strict sense of the term, only that is law which imposes an obligation of some sort; a point that we shall discuss more fully below.

8. Nevertheless, one should take into consideration the fact that sometimes there is laid down a law which relates to the performance of an act, so that it renders the act itself obligatory, as is the case, for instance, with the law of almsgiving; whereas at other times a law is made which deals only with the special quality of the action, or its mode of performance, a law which, although it does not require the performance of the act, does nevertheless require that, if the said act is performed, a particular mode of execution shall be observed. Of this nature, for example, is the law of attentive prayer. This precept, although it does not render obligatory the

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act of praying, nevertheless does impose the obligation to pray with attention if one prays at all. With respect to laws of this second class, then, it is, in a universal sense, true that (as St. Thomas has stated in the passage cited immediately above) every act, to the extent that it is a good act, must be in conformity with the eternal law; that is to say, with the eternal law as it prescribes a due method of performance. This conclusion applies also to the acts performed under counsel. Nevertheless, these acts, viewed as such, are not said to come under ‘acts of counsel’; rather, they are thus classified to the extent that their practice or performance is counselled, not prescribed.20 And, speaking in this sense, we must absolutely deny that counsel is included within the field of law.

The difference between law and counsel. Moreover, counsel is excluded from the description of law given above, either because counsel is not, properly speaking, a rule or measure of the goodness of an action, since [such rules] consist rather in the laws which prescribe a given mode of action; or else because, morally speaking, counsel does not induce to action effectually, that is to say, by imposing a moral necessity of action, whereas, when it is said that law induces to action, the statement must be understood in this sense [namely, as involving moral necessity].

9. The etymology of the term ‘law’. From these considerations, St. Thomas, in the article cited (I.–II, qu. 90, art. 1) drew his conclusion as to the etymology of law. For he held that the term was derived from ligandum (binding), since the true effect of law is to bind, or place under a binding obligation. This view was adopted by Gabriel (on the Sentences of Peter Lombard, Bk. III, dist. xxxvii, art. 1). Clichtove (on Joannes Damascenus’, De Fide Orthodoxa, Bk. IV, chap. xxiii) quoted the same explanation of the etymology of law, from Cassiodorus, and approved it. Moreover, the opinion in question is in agreement with Scripture, which speaks of laws as bands, in a passage from Jeremias (Chap. ii [, v. 20]): ‘Thou hast broken my yoke, thou hast burst my bands.…’

But Isidore (Etymologies, Bk. II, chap. x and Bk. V, chap. iii) believes that law (lex) is so called from legendum (that which is to be read), a

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conclusion which he deduces from the fact that law ought to be written, and therefore is something to be read. However, since we are now dealing with law in a rather broad sense, the word legendum should be extended to include internal reading or reflection, as Alexander of Hales has noted ([Summa Universae Theologiae,] Pt. III, qu. xxvi, memb. 1), in order that this etymology may be suited to every law. For, just as the natural law is said by Paul (Romans, Chap. ii [, v. 15]) to be written in the heart, so it can and should also be read there by the mind; that is, it can and should be meditated and reflected upon, so that one’s conduct may be guided in conformity therewith, according to the passage in the Psalms, cxviii [, v. 105]: ‘Thy word is a lamp to my feet.’ Moreover, in harmony with this same etymology is the Hebrew name for law (Tora), which signifies ‘instruction’.

Finally, others hold that law is so called from eligendum (that which is to be selected), either because it ought to be enacted after an extensive and prudent process of choosing, or else because it points out to each individual the course which he should choose. Thus St. Augustine says, in his Questions on the Old and New Testament ([Pt. II,] qu. 15), if that is, indeed, his work: ‘Law (lex) is derived from lectio (a collection), that is, from electio (a choosing); [for it is made] in order that you may know what course to select from among many.’21

Cicero, indeed, declares (On Laws, Bk. I [, chap. vi, § 19]) that the name is derived from legendum (in the [primary] sense of ‘selecting’). ‘For’ (so Cicero says) ‘we give to the term “law” the force of “selection”, just as the Greeks call law νόμος, that is to say, [drawing the term] from the idea of granting’ to each man that which is his own,22 since law ought to be just. Accordingly, still other authorities derive the word lex from the fact that law legitimately moderates human actions, a derivation cited by Torquemada (on Decretum, Pt. I, dist. I, can. iii).

All these derivations, then, involve some explanation truly pertinent to law. The source from which the word is derived, however, is doubtful, and a matter of slight importance.

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CHAPTER II

What Ius Means and How It Is to Be Compared with Lex

1. This word [i.e. ius] is frequently used in connexion with the subject under discussion and is sometimes taken as a synonym for lex, a fact that is made evident by the Institutes (II. i, § 11) and the Digest (I. iii. 16), although at other times ius is taken in other senses also. Accordingly, it is necessary to explain the word ius, and to compare it with lex.

Various derivations for the term ius. First, however, we should note that three etymologies are wont to be ascribed to the former term.

The first. The first explanation is that ius is so called because it is close (iuxta). As to this explanation Connan (Commentary on the Civil Law, Bk. I [, chap. ii]) may be consulted. For I am passing it over, since it is not convincing to me; because, if we are considering the external form of the respective terms, there is no relation between them, iuxta being written not with an ‘s’ as is ius but with an ‘x’, and if, on the other hand, it is the meaning that claims our attention, iuxta esse does not mean ‘to be equal’, but simply, ‘to be close at hand’. Moreover, though the phrase does at times imply similitude or equality in some function or action, nevertheless, such an implication is made in a sense far removed from that of equity, which ius suggests. Consequently, this first derivation seems to me unlikely and far-fetched.

The second derivation. The second explanation, and one more widely accepted among Latin peoples, is that which derives the name ius from iubere (to command). For iussum is a participle of the verb iubeo; and if we take the second syllable from the participle iussum, ius is left; or, indeed, if one divides these two syllables, a sentence will be constructed in which iussum itself, or [the personification of] authority, will assert that it is ius, saying, ius sum (I am ius).

2. The third derivation. The third etymological explanation derives the term ius from iustitia. For Ulpian has said (in Digest, I. i. 1), in accordance with this explanation: ‘ius, indeed, is so called from iustitia.’ Some persons assail this derivation on the ground that iustitia is derived from ius, rather than conversely; for that is called iustum (just) which is in accordance with

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ius. However, that argument lacks force, since it is one thing to speak of relationship (ordine), or derivation, with respect to causality, and quite another, to speak of such relationship with respect to the act of denomination, or assignment of a name. For in the former sense, it is true that iustitia (justice) is derived from ius; derived, that is, from that which is in reality just and fair with regard to its object and, accordingly, with regard to its final, or formal and extrinsic cause. In this sense, indeed, iustitia is defined by ius, since, according to the Digest (I. i. 10), ‘Ius renders to each one that which is his due’. However, in so far as concerns the denomination and appellation of ius (the point of which Ulpian is speaking), ius could have derived its name from iustitia; just as ‘vision’ (visus) is such because it tends toward an object that is ‘visible’ (visibile), while the object nevertheless receives the appellation ‘visible’ from the very term of ‘vision’. In like manner, then, iustitia is such, because it tends to the establishment of equity, which we say is the just mean (medium iustum) itself; and at the same time, this mean has been enabled rightly to take the title of iustum from iustitia, since such equity is fitted to be established through justice and is therefore called ‘just’ (iusta). And thus the term ius may easily have been derived through the dropping of the last syllable of iustum; even as we said in the case of the word iussum. Isidore (Etymologies, Bk. V, chap. iii) also has spoken to this effect, saying: ‘Ius is so called because it is just.’ Augustine, too (On Psalm cxlv, near the end [§ 15]), remarks: ‘Ius and iniuria (injustice) are opposites; for ius is that which is just.’ Therefore, even as iustum is clearly so called from iustitia, so ius may have derived its name from iustum and iustitia, in so far as relates to the etymology of the term.

3. Consequently, Augustine (On the City of God, Bk. XIX, chap. xxi) likewise deduces the following as a principle of the philosophers: ‘Because they call that ius, which has flowed from the fount of justice (iustitia).’1 For though ius may be, with respect to its object, the cause of iustitia, nevertheless, in the realm of efficient causality it is the effect of iustitia, since it is the latter which creates and sets up its own object, just as the other moral virtues do. Accordingly, if one were to consider this object in its potential aspect, it might be termed iustificabile (justifiable)—so

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to speak—from the word iustitia, even as we were saying with respect to visus and visibile; but the term iustificabile is not in use, it is barbarous, and in its place the word ius (in so far as it denotes the object of justice) seems to have been introduced. And if, on the other hand, the object in question is conceived of in its active character, then it is said to be iustum (just), and may be called ius. For it is in this sense that Augustine’s statement has a proper application—that is, his statement that ius and iniuria are opposites—since iniuria is nothing more nor less than an unjust act. So it is, too, that he has said, in the second passage cited: ‘That which is done by ius (iure),2 is surely done justly (iuste).’3 And thus Bartolus (on the said law of the Digest [I. i. 10]) declared that ius in its active character is execution, and interpreted accordingly the law on which he was commenting. However, the same conception may very well be accepted with regard to ius in its potential aspect, also, that is to say, in its [potential] nature (in habitu); because, as I have said, the question is not one of causal emanation, but simply one of the assignment of a name, just as scibile (that which may be known) derives its name from scientia (knowledge), even in a potential sense (in habitu).

Therefore, this third derivation is in no way unsuitable; and although it is uncertain which of these two conclusions comes nearer the truth, either one will serve for our present purposes.

4. The meaning of the term ius. In accordance, then, with those two derivations of the term, the word ius has two principal meanings. These have been noted by Driedo (De Libertate Christiana, Bk. I, chap. x). For, according to the last-cited derivation, ius has the same meaning as iustum (that which is just), and aequum (that which is equitable), these being the objects of iustitia. Yet one must take into consideration the fact that the word iustitia has [also] two acceptations. In the first place, this word may stand for every virtue, since every virtue in some wise is directed toward and brings about equity. In the second place, it may signify a special virtue which renders to another that which is his due. Accordingly, the word ius conforms, in due proportion, to each of these two meanings [of iustitia].

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For, in the first sense, ius may refer to whatever is fair and in harmony with reason, this being, as it were, the general objective of virtue in the abstract. In the second sense, ius may refer to the equity which is due to each individual as a matter of justice. This latter acceptation is more common, since ius so taken is most particularly wont to be related to justice in the strict sense. Thus, St. Thomas (II.–II, qu. 57, art. 1) has said that such justice constitutes the primary basis and significance of ius. And in consequence, he well concludes (ibid., ad 2) that ius is not lex, but is rather that which is prescribed or measured by lex. This view should, I think, be understood in a relative sense. For the laws which pertain to justice in the special sense [likewise] involve a special form of ius, that referred to in the above-mentioned strict acceptation of the term. Whereas lex understood in the general sense, and in so far as it may have a place in all the virtues, will look to ius in the broad and general acceptation of the latter term; in accordance with Cicero’s statement (On Laws, Bk. II [, chap. v, §§ 11–12]), that in the very name of lex there is inherent the essential force of that which is iustum and of that which promotes ius, inasmuch as true law ought to prescribe what is just and fair, as I also have declared.

5. The true meaning of the word ius. According to the latter and strict acceptation of ius, this name is properly wont to be bestowed upon a certain moral power which every man has, either over his own property or with respect to that which is due to him. For it is thus that the owner of a thing is said to have a right (ius) in that thing, and the labourer is said to have that right to his wages by reason of which he is declared worthy of his hire. Indeed, this acceptation of the term is frequent, not only in law, but also in Scripture; for the law distinguishes in this wise between a right (ius) [already established] in a thing and a right to a thing; as it also distinguishes among rights of servitude or rights of rural or urban estates, rights of use or enjoyment, and similar rights, concerning which one may consult Brisson (De Verborum Significatione, Bk. IX, word ius, at great length). And in Scripture, we read that Abraham said (Genesis, Chap. xxiii [, v. 4]) to the sons of Heth: ‘Give me the right of a burying-place’ (ius sepulchri), that is, the power of burying (facultas sepeliendi); in another chapter (Genesis, Chap. xxxi [, v. 21]) it is said of Jacob that, when he departed from his father-in-law, he carried away with him ‘all

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that belonged to him’ (Omnia quae iuris sui erant); and similar passages are frequent. Again, it would seem that ius is so understood in the Digest in the passage (I. i. 10), where justice is said to be the virtue that renders to every man his own right (ius suum), that is to say, the virtue that renders to every man that which belongs to him. Accordingly, this right to claim (actio), or moral power, which every man possesses with respect to his own property or with respect to a thing which in some way pertains to him, is called ius, and appears to be the true object of justice. Hence, ius is also wont to be given the connotation of relationship, as is stated in another passage of the Digest (I. i. 12); for, in such a context, the word seems to refer to a certain bond or connexion born of relationship itself. In this sense, one person is said to succeed by right (ius) of kinship; another, by right of adoption; yet another, by right of appointment or testament. So it is, also, that the Digest (II. xiv. 34) makes the statement: ‘The right of kinship cannot be repudiated;’ while another passage (ibid., XLVIII. xxiii. 4) declares that the right of kinship is restored to the son. It is consequently inferred that [the term ius] is applied not to the blood-relationship itself, but to the moral claim (actio), or faculty, born of that relationship. The same explanation holds in the case of other passages.

6. Another meaning of the term ius. However, according to the other etymology, which derives ius from iubendum (ordering), the true meaning of ius would seem to be lex. For lex is based upon ordering (iussio), or command. The jurisconsults, indeed, often give the word this signification; as when they say, ‘We are following this or that law (ius)’, or, ‘This is a point on which the law (ius) is certain and firmly established’, or when they make similar statements. Again, [ius] seems to be given this meaning whenever it is distinguished from fact; as when a discrimination is made between ignorance of law (ius), and ignorance of fact, a distinction which is frequent in law (ius), and among the Doctors. There is in the Digest, a title [i.e. XXII. vi], ‘On ignorance of law, and of fact’. Hence it is, that what is in harmony with reason is said to be lawfully done (iure fieri), as if to say, ‘done in conformity with law’ (legi conforme). It is thus, too, that Sallust (in The Conspiracy of Catiline) would seem to have defined ius, saying: ‘Ius is civil equity, either sanctioned by written laws or institutions, or else drawn from custom.’ This description has apparently been given

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primarily with a view to the civil laws only, but if the word ‘civil’ is suppressed, [the definition] will be easily adaptable for the canon laws as well, and the positive divine laws. It does not seem applicable to natural law, however, unless we say that the latter law is written in the minds of men; whereas the term ius is indeed applied to natural law, as is evident from the title of Institutes, I. ii: De Iure Naturali & Gentium & Civili (Concerning natural law, the law of nations and the civil law), a title which we shall discuss later. Finally, the description in question appears to have been given rather with respect to the effect of law (lex) than with respect to the true rational basis thereof. Or, at least, it would seem to be rather a description of the object set up by the law, than a description of the law itself; since law constitutes equity, or is the measure and rule thereof, but is not properly speaking equity itself.

7. Isidore (Etymologies, Bk. V, chap. iii, cited above) adds that ius and lex are comparable as are genus and species; for he holds that ius is the genus while lex is the species. He appears to offer as his reason the argument that ius consists of laws (leges) and customs. Whereas lex denotes a written constitution, as the Decretum (Pt. I, dist. 1, cans. ii, iii, and iv)4 indicates. St. Thomas, too (II.–II, qu. 57, art. 1, ad 2), apparently follows Isidore when he declares that the rational basis of that which is equitable and just, if it is drawn up in written form, is law (lex). These writers, indeed, would seem to have taken their opinion from Augustine (De Diversis Quaestionibus LXXXIII, Qu. xxxi), who says: ‘In the law (lex), ius is that which is embodied in the writing set before the people that they may obey it.’

Cicero (On Laws, Bk. I [, chap. vi] and Bk. II [, chap. v]), on the other hand, believes that only that is true law (lex), which dwells in the reason; while that which appears written externally, he calls law (lex) in the popular sense. Accordingly, he speaks of the divine mind as the supreme law (lex); he then gives the name [of lex] to reason as it exists in the mind of the wise man; whereas he declares that written law is designated as lex in name rather than in fact.

However, it has now come about through usage that the term lex is properly applied both to written and to non-written law, so that ius, in so

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far as it refers to lex, is used interchangeably with that term, and the two words are considered as synonyms.

8. The act of a judge is sometimes equivalent to ius. In consequence, to be sure, the word ius has come to possess certain other connotations which have not been transferred to the term lex. For the act of a judge is thus wont to be designated by the term ius, either because it ought to be performed in accordance with the laws (leges), or because it sometimes seems to establish a law (lex), as it were; so that the judge, when he exercises his office, is said to declare the law (ius dicere). This is the source of the title of Digest, II. iii: ‘If anyone fails to obey him who declares the law.’ Moreover, in the canon law (Sext, Bk. I, tit. II, chap. ii), we find the words: ‘He who pronounces judgment outside the territory [of his jurisdiction] may be disobeyed with impunity.’ This statement may be interpreted as referring both to [judicial] sentences, and to law (lex) in the sense of a statute. And the Digest (I. i. 11) even speaks of a judge as administering law (ius reddere) when he makes an unjust decision, the reference being not to what he [actually] does but to that which he ought in duty to do. Furthermore, the judge is in this sense said to summon a subject to law (in ius vocare), with the meaning, in any case, that he does so for the purpose of testing the law, a point that is brought out in another passage (ibid., II. iv. 1). However, these words could be interpreted as referring to a summons to the place of judgment. For there has also been transferred to the term in question the signification of ‘a locality where judgment is rendered’, as the above-mentioned passage of Digest, I. i. 11, notes. Accordingly, among Roman5 peoples, ‘to go to law’ (ire in ius) is the same as to go before the Praetor or to the seat of the Praetor, as Brisson above cited, notes (De Verborum Significatione, Bk. IX, word ius), basing his comment upon Donatus [on Terence’s Eunuch, Act IV, sc. vii], Victorinus [Comment. on Cicero’s De Inventione, Bk. II, tit. 4] and a number of laws. Furthermore, this is also the interpretation given above by St. Thomas (II.–II, qu. 57, art. 1, ad 1), of the phrase in which one is said ‘to appear before the law’ (comparere in iure). In this passage, he adds still another meaning to the word in question, for he says that even the art itself by which one

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determines what is just, is sometimes called ius. Thus he appears to give a tacit explanation of the above-cited law of the Digest (I. i. 1, § 1), in which Ulpian quotes with approval the definition of Celsus, namely: ‘Ius is the art of the good and the equitable.’ For this definition would seem to be suited, not so much to law (lex) itself, as to jurisprudence (iuris prudentiae), unless ‘art’ is taken in a broad sense, as referring to any method or measure of operation.

9. How ius is to be distinguished from aequum et bonum. Lastly, two points remain to be explained. One consists in the following question: How may ius be distinguished at times from aequum et bonum (the equitable and the good), if ius is precisely the same as that which is just, while the latter is in turn precisely the equitable and the good, or if [ius], being taken as equivalent to lex, is the essential principle of the just and good itself, as we have declared?

Nevertheless, this distinction between ius, on the one hand, and that which is equitable and good, on the other, is clearly evident from the many references cited by Luis Vives (in the Scholion on Augustine, On the City of God, Bk. II, chap. xvii). Accordingly, Quintilian (Institutes of Oratory, Book IV [, chap. iii, § 11]), has said: ‘the nature of the judge should […] be ascertained: that is, whether he is more inclined6 to [a strict interpretation of] the law (ius), or to an exercise of equity.’ Again (Bk. VI [, chap. v, § 5]), he asks: ‘Should the plea be based on law (ius), or on equity?’ Cicero, too (in Brutus [Chap. xxxix, no. 145]) has written: ‘Crassus spoke at great length, in opposition to the written law, in support of the good and equitable.’

Aristotle accordingly propounds this [very] doubt in the Ethics (Bk. V, chap. x [, § 8]); and, in this same chapter x [, § 3], he replies in effect that equity is the rectification of that which is [legally] just (iustum).

In order that this statement may be understood, one should distinguish respectively between the words ‘just’ (iustum) and ‘equitable’ (aequum), ‘justice’ (iustitia), and ‘equity’ (aequitas).

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For the just is twofold; first, what is naturally just, this being equivalent to what is right according to natural reason, [a phase of the just] that is never defective, provided that the reason itself does not err; secondly, what is legally just, that is to say, what is constituted by human law, [a phase] that is often defective in specific cases, though just in a general sense. Neither is a given law (lex) unjust for this reason, since it must necessarily be enacted in general terms. Rather (so Aristotle says), the fault arises neither from the law nor from the lawgiver, but from the subject-matter itself.

Moreover, in accordance with this twofold division of iustum, a twofold form of iustitia may in due proportion be distinguished.

In similar fashion, the term aequitas is customarily interpreted as having a twofold sense. In one sense, it stands for natural equity, which is identical with natural justice, and to which the term aequum corresponds, in so far as the latter is equivalent to that which is naturally just. It is with this meaning, indeed, that the civil laws frequently mention natural equity. For example, the Digest (XXXVIII. xvi. 1, § 4) declares: ‘Grandsons7 succeed to the position of sons, by natural equity’; and again (ibid., XLVIII. xvii. 1): ‘The very nature of equity suffers no one to be condemned unheard.’8 To this kind of equity, ‘the equitable’, in the general sense of the term, corresponds. Thus it is that the Digest (XII. vi. 14) says: ‘This is naturally equitable: that no person be enriched to the hurt of another.’9 Moreover, equity so interpreted, is not an emendation of [legal] justice (ius), but rather the source or rule thereof, as the Digest (L. xvii. 91 [90]) indicates in the statement: ‘In all matters, but especially in law (ius), equity must be considered.’

10. Aequitas may be taken in another sense, however, as being a prudent moderation of the written law (lex scripta), transcending the exact literal interpretation of the latter; and, in this sense, aequitas is spoken of in the Digest (XXXIX. iii. 2, § 5) as being opposed to ius in its strict meaning.

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So, also, Terentius Clemens has said: ‘Between ius and aequitas, there is this distinction: ius is that which exacts that all things be strict and inflexible; whereas aequitas to a great extent abates the rigour of ius.’ Furthermore, in view of this interpretation of ‘equity’, the terms ‘equitable’ (aequum) and ‘good’ (bonum) are applied—by antonomasia so to speak—to that which does indeed of itself possess these qualities, even though it may appear to be at variance with the letter of the law (lex). Aristotle, too, understood ‘equity’ in this sense, when he spoke of it as the emendation of that which is just, that is to say, legal, and gave to the virtue from which it springs the name of epieikeia (equitable interpretation).10 St. Thomas also (II.–II, qu. 120) enters into a discussion of this virtue. For to this [form of equity] does it pertain to act, in particular cases, in opposition to the words of human law (lex), when the observance of that law would be contrary to natural equity. Under such circumstances, indeed, the judge is said to act, not according to law (iure)—not at least, according to the letter of the law as it stands—but in accordance with what is equitable and good; and this, in turn, is to observe the law (ius) itself, with respect to its intention, while the contrary mode of action would be to violate the law. Such is the view expressed in the Code of Justinian (Code, I. xiv. 5): ‘There is no doubt but that he attacks the law (lex) who, while accepting its words, labours against its spirit.’ And therefore, it is possible that jurisprudence has been called the art of the good and the equitable because, in the interpretation of the laws, the good and the equitable should always be regarded; even if it be needful at times to temper the rigour of the words, in order not to depart from what is naturally equitable and good. For a further discussion of this matter, see Covarruvias (on Sext, De Regulis Iuris, rule possessor Pt. II, § 6, no. 3).

11. Concerning the distinction between ius and fas. Another point should be made clear, namely, the question of what fas is and how it may be

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compared with ius and lex. For Isidore (Etymologies, Bk. V; chap. ii) says: ‘Fas is divine law; ius is human law.’ The same distinction is brought out in the Decretum (Pt. I, dist. I, can. i), where it is expounded with the aid of this example: ‘[The right] to pass through another’s field is fas; it is not ius.’ But it would seem that all this should be interpreted in accordance with the passage immediately following; for, in that passage, ius is understood strictly in the sense of ‘written law’ (lex), and fas, in the sense of ‘equity’ and as a just exception—so to speak—[from the letter of the law]. Thus, in the example above-mentioned, passing through another’s field is spoken of as not being ius, for the reason that it is in general prohibited rather [than permitted] by human law (lex); and nevertheless, if this act of transit is performed for reasonable cause and without consequent damage, it is fas, that is to say, it is permissible. Moreover, this is the explanation contained in the Gloss with respect to the passage in question; as it is also the explanation given by Henry of Ghent (Quodlibeta, IX, qu. 2 [qu. 26]).

St. Thomas (II.–II, qu. 57, art. 1, ad ult.), however, offers a different explanation of the words above quoted. For he maintains that the term ius, in accordance with a certain exclusive signification, befits the laws (legibus) which are ordained for men in their mutual relationships rather than those laws which govern men in their relation to God; because we cannot render our account to God on a basis of equality, and therefore (according to St. Thomas) fas rather than ius is the term for law (lex) in so far as the latter has regard to [man’s relationship with] God.

But, whatever the fact may be with respect to this exclusive significance of the word ius—a significance that is not alien to Latin usage—fas is called divine law by Isidore, not because it regulates the rendering of [man’s] debt to God, but because it is based upon natural equity and consequently upon natural reason, which is divine law.

However, leaving aside the metaphorical connotations and the distinctions which are not pertinent to our present purpose, we shall deal here, in a general sense, with ius in its second and proper connotation; and accordingly, the term will become synonymous with lex, in so far as we shall now be speaking of lex, too, in its general aspect.

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CHAPTER III

The Extent of the Necessity for Laws, and of Their Variety

1. Having treated of the terms ius and lex, we must first demonstrate, before we inquire into the nature of lex, that it actually exists.

This demonstration will best be effected by explaining the necessity for lex; since, in these matters which relate to the moulding of moral conduct (mores), nothing superfluous should be allowed, nor may anything necessary be lacking. Necessity, however, is usually divided into two kinds. One is the absolute necessity in accordance with which a given thing is said to be necessary of itself and for itself, in an absolute sense. Thus, there is attributed to God a necessity for His existence in accordance with His actual existence; and it is of this necessity that we are now speaking. The second kind is a relative necessity, having respect to some particular end or effect. This kind is subdivided into two phases: one phase is that of simple necessity; the other, that of necessity for the attainment of the better state, this latter phase being, in stricter parlance, utility.

2. Law, in an absolute sense, was not necessary. Accordingly, two points seem, generally speaking, to be certain. The first point is this: absolute necessity does not pertain to law as such. The proof of this assertion is as follows: such necessity is an attribute proper to God, Who alone is a Being existent per se and necessary in an absolute sense; whereas every law is either a created thing or at least one which presupposes the existence of some creature on whose account it is established; for God cannot be subjected to law; and therefore, inasmuch as a created thing is not absolutely necessary, law in like manner lacks the attribute of absolute necessity. In addition, I shall state that, if one is speaking of law in the strict sense of the term (as we are now doing), it can [be considered to] exist only in view of some rational creature; for law is imposed only upon a nature that is free, and has for its subject-matter free acts alone, a point which we shall note below; accordingly, law cannot be more necessary than a rational or intellectual creature; and rational creatures are not characterized by an absolute necessity for their existence; therefore, neither is law itself characterized by this sort of necessity.

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The sole doubt that could occur in this connexion would be one relating to the eternal law, which we shall for the present assume to exist. For that law is God Himself; therefore, it is as immutable and eternal as He, and consequently, as necessary. However, I shall reply briefly that what constitutes eternal law is indeed absolutely necessary, as the argument proves, but that it does not possess this attribute in its character as law, since it embraces a connotation of freedom, a point that I shall demonstrate below.1

3. If the creation of a rational creature is assumed to have taken place, law has become useful, and absolutely necessary in the necessity of its purpose. Secondly, I make the following assertion: if the creation of rational creatures is assumed to have taken place, law, both absolutely and with a view to attaining the better state, has become necessary in the necessity of its purpose. This truth is (so to speak), in connexion with the subject under discussion, a self-evident principle.

Moreover, in so far as concerns the first part [of the assertion]—the part relating to absolute necessity—one may adduce the argument that an intellectual creature, by virtue of the very fact that he is a created being, has a superior to whose providence and control he is subject; while, for the very reason that he is intellectual, he is capable of being subjected to moral government, which is effected through command (imperium); and therefore, it is connatural to such a creature, and necessary to him, that he be made subject to some superior who will govern him through command, that is, through law.

Furthermore, this creature, because of the very fact that he has been made out of nothing, may be bent to good or to evil. This I assume, for the present, on the basis of the common opinion of the Fathers. Consequently, not only is he capable of being subjected to law, whereby he may be directed towards the good and held back from the evil, but furthermore, some such law is absolutely necessary for him, that he may live as becomes his nature. Or, we may argue also from the converse. For he who is subject to no law cannot sin; but a rational creature does possess the power to sin; and therefore, he is of necessity subject to law.

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Nor is it pertinent to argue that the said creature may, through grace or glory, become impeccable. For, in the first place, we are speaking here of natural necessity, asserting that from this standpoint, if one assumes the creation of rational nature, law is necessary. Moreover, the gift [of grace] through which such a nature becomes impeccable does not involve a removal of that nature’s subjection to law, in so far as concerns the acts which it is free to exercise, but on the contrary causes it to obey the law without fail.

The second part of our assertion—that which relates to utility—is clearly proved on the basis of the first part. For necessity pertaining to an end must include utility; and furthermore, these words (Psalms, xviii [, v. 8]) have been written with regard to laws: ‘The law of the Lord is unspotted, converting souls’, &c., as has also this passage from Proverbs (Chap. vi [, v. 23]): ‘The commandment is a lamp, and the law a light.’ And there are similar passages which we shall examine later, and which point out a great utility in law.

4. However, since this utility or necessity is not one and the same in the case of all laws, it will be worth while, for the purpose of presenting the attribute in question with clearness and accuracy, to distinguish among the various kinds of laws, and to explain the particular necessity or utility characteristic of each kind. For thus we shall clearly perceive, not only that law in general does exist, but also the number of particular species of which that whole is composed. This latter point must also be ascertained in order that we may fully define the question involved in the entire subject-matter of this treatise, namely, the question of whether or not law exists. For we have already pointed out that the said subject-matter embraces every species of law. Moreover, this procedure will be opportune for our understanding of the terms to be used throughout the entire treatise.

5. The division of law into its various categories. In the first place, then, we may assume that law is divided into four different categories, a division which was laid down by Plato, in the Timaeus [24 et seq.] and in the Phaedrus, as follows: divine law; celestial law; natural law, and human law. The second of these terms is rejected by the theologians, because it is either superfluous or else involves erroneous doctrine. For by ‘celestial

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law’ Plato meant fate, and a certain necessity of action proceeding from the ordered movement and influence of the heavenly bodies; and therefore, if he understood that celestial law was of such a nature that it was not subject to divine providence, or that it imposed a necessity upon all things, even upon men, with respect to operations proper to the soul, [his interpretation] involves a false and heretical conception, opposed to the divine government and to the freedom of the will. If, on the other hand, he referred in the expression ‘celestial law’, merely to Aristotle’s statement that this lower world is so conjoined with the heavenly spheres that it is governed thence, that is to say, governed through natural influences and vicissitudes dependent always upon God, affecting bodies, not souls—if this was what Plato had in mind—it was not necessary to set up this separate category of law; because, to the extent that it may be called law, it is comprised under the head of the natural law, as we shall prove. This second term therefore being omitted, the other three are in use even among the theologians, though in a slightly different sense from that understood by Plato.

6. The conception of ‘divine law’, in Plato; and the [two] ways in which the term is used. Thus divine law, according to Plato, is a rational principle existing in the mind of God, and governing the universe. This law is also recognized by the theologians, who, however, call it the eternal law. For the term ‘divine law’ may be used in two senses: in one sense, as dwelling within God Himself; in the other, as being decreed directly by God Himself, though existing outside of His Being. Plato gave to the term the first connotation, while the theologians, agreeing with Augustine, and for the purpose of distinguishing that form of law from the other, which God promulgates outside of His own Being, call the former ‘the eternal law’; and we, too, shall call it by this name. With respect to this thing which is called eternal law, it as certainly exists in God, as does His providence over the universe; for the term refers simply to the essential principle of this providence, a principle dwelling in God, or to some element of that providence.2 As to the question of whence it derives the name and nature

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of ‘eternal law’, however, that is a point which we shall explain in the first part of the next Book.

From the foregoing, one may easily understand what necessity and utility characterize the law in question, since it is identical with the law of divine providence. For just as it would be impossible for the universe to continue in existence apart from divine providence, so would it be impossible apart from this divine and eternal law; and furthermore, all utility and benefit flowing forth to this universe from divine providence should also be ascribed to this same divine law.

St. Thomas (I.–II, qu. 91, art. 1, ad 3) observes, however, that the utility of the said law consists, not in the fact that it is itself ordained to the end, but rather in the fact that it directs all other things to their own ends, by appropriate means. For the law itself cannot be ordained to an end, since it is God Himself, Who is the ultimate end of all things.

A first division of law: into temporal and eternal. Finally, from this first divine or eternal form of law, one may infer a first division of law into the eternal and the temporal. For we assume that there is nothing eternal outside of God; yet, it is evident that there are many laws in existence outside of Him; and therefore, there must be established, in addition to the eternal law, other and temporal laws, which consequently differ [from the former] as the created differs from the increate, since whatever is eternal is increate, and what is temporal is created. Thus it becomes evident that there is established a divine law, that is, one which exists in God Himself. The manner, however, in which divine law is established by promulgation directly from Him, will be made clear in the discussion that follows.3 In fine, there is a law that exists in God Himself; for all the foregoing arguments point to such a conclusion.

7. A second division of law: into natural and positive. Accordingly, from the other two classes of law laid down by Plato, a second division of law may be deduced, consisting in a subdivision of created law into natural and positive. This division is recognized by all the theologians, too, and repeatedly by the Fathers, whether under the name of lex, or under that of ius—positive and natural.

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Take, for example, the Etymologies (Bk. II [, chap. x] and Bk. III [Bk. V, chaps. ii et seq.]) of Isidore. The point is also brought out in the Decretum (Pt. I, dists. I et seq.). It may be inferred, too, from Augustine (On the Gospel of John, Treatise VI [, chap. i, no. 25]). Paul (Romans, Chap. ii [, v. 14]) indicates the same division, as the ordinary Gloss on the passage notes, when he says: ‘The Gentiles who have not the law, do by nature those things that are of the law.’4 The said division is also to be found in the civil law, in both the Institutes (I. ii) and the Digest (I. i [. 3]). Cicero, too, in his work On Laws (Bk. I [, chap. vi, §§ 18–19]), specifically demonstrates that natural law was established prior to all human law. He discusses this point quite fully (ibid., Bk. II), also. Reference may also be had, in this connexion, to the Nicomachean Ethics of Aristotle (Bk. V, chap. vii), where he in like manner divides law into natural and conventional.

In what senses the term ‘natural law’ is employed by the different writers. However, with respect to ‘natural law’, it should be noted that this term is variously understood by the philosophers, the jurisconsults and the theologians. For Plato, in the works above cited, apparently understands ‘natural law’ as referring to every natural inclination implanted in things by their Creator, whereby they severally tend towards the acts and ends proper to them. For just as he has said that the divine law is the eternal rational principle dwelling in God, whereby all things are governed, even so has he given the name of natural law to the participation in this rational principle that has been instilled into all creatures in order that they may tend toward their appointed ends. St. Thomas (I.–II, qu. 91, art. 2) has even said that all things ruled by divine providence partake in some fashion of the eternal law, to the degree that they derive from its efficacy, propensities toward their proper acts and ends. But the jurisconsults, while they hold that the natural law is common to other living beings as well as to men, apparently exclude inanimate things from participation in this law, a fact which is evidenced by the Institutes (I. ii, § 1) and by the Digest (I. i. 1).

8. ‘Law’, in its strict meaning, is not to be attributed to insensate things. However, as I stated in the First Chapter, ‘law’ is to be attributed to

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insensate things, not in its strict sense, but metaphorically. Accordingly, of natural law in that first and most general acceptation, we need say nothing more at present than what we have already remarked in Chapter One, and what we shall remark below,5 in connexion with the eternal law. Not even brute animals are capable of [participating in] law in a strict sense, since they have the use neither of reason nor of liberty; so that it is only by a like metaphor that natural law may be ascribed to them. For, even though they differ from insensate things in this respect, namely, that they are guided not merely by the force of nature, but also by knowledge and natural instinct, an instinct which is for them a form of law; and although the second interpretation of the jurisconsults can therefore be sustained, after a fashion; nevertheless, absolutely speaking, that interpretation is metaphorical and to a great extent dependent upon analogy. Accordingly, we shall pass over it also, for the present; for later (in Bk. II, chap. viii [chap. xvii]), in our exposition of ius gentium,6 we shall attempt to explore the true meaning of the [divisions of law] above mentioned.

9. What constitutes natural law, strictly speaking. Natural law, then, in the proper sense of the term—the natural law which pertains to moral doctrine and to theology—is that form of law which dwells within the human mind, in order that the righteous may be distinguished from the evil, in accordance with the passage in the Psalms (iv[, vv. 6, 7]): ‘Who sheweth us good things? The light of Thy countenance, O Lord, is signed upon us.’ Such is the explanation of St. Thomas in the passage (I.–II, qu. 91, art. 2) wherein he concludes that the natural law is, ‘a participation in the eternal law on the part of the rational creature.’

Moreover, in another passage (on the Sentences, Bk. IV, dist. xxxiii, art. 1), St. Thomas says: ‘Because man [alone] among living beings is cognizant of the essential nature of his end and of the comparative relationship between the work and the end, the natural power of comprehension implanted in

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him, which is directed toward befitting action, is therefore spoken of as the lex naturalis, or ius naturale (natural law), while in the case of the other animals, it is called naturalis aestimatio (instinct). This is plainly Cicero’s opinion, also (On Laws, Bk. II [, chap. iv, no. 8]). For, after writing the words above quoted, on the eternal law, he adds: ‘Wherefore that law which the gods have given to the human race has been justly praised; since it is the reason and mind of a wise being, suited to commanding and to restraining.’

So it is, then, that the law in question is called natural, not only in so far as the natural is distinguished from the supernatural, but also in that [what is natural] is distinguished from what is a matter of free choice.7 This is the case, not because the execution of that law is natural, or the result of necessity, as is the execution of the natural inclination of the brutes or of inanimate objects; but because the law in question is (so to speak) a kind of characteristic of nature, and because God Himself has annexed that law to nature. Moreover, in this respect the natural law is also divine, being decreed, as it were, directly by God Himself. Such was the opinion of St. Thomas, as expressed in the above-mentioned passage (Qu. 91 and qu. 94, art. 6), where he cites the words of St. Augustine (Confessions, Bk. II, chap. iv), spoken to God, ‘Thy law is written in the hearts of men’, words which had reference to natural law; wherefore Augustine has said, in another work (On the Sermon of Our Lord on the Mount, Bk. II, chap. ix), that there is no soul, ‘in whose conscience God does not speak. For who save God writes the natural law in the hearts of men?’ Isidore (Etymologies, Bk. V, chap. ii) more explicitly calls this law divine. And finally, it is evident from the foregoing how necessary and useful the said law is; since on it rests the capacity of discriminating between the righteous and the evil8 in the rational nature. All this, however, requires a lengthy explanation; but let us reserve that explanation for the following Book, lest we invert the proper order and cause complete confusion.

10. A certain subdivision of natural law remains for discussion. But first, we must say a word concerning Plato’s fourth division of law, called by him the human, and relating to the law designated by Aristotle [Nicomachean

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Ethics, Bk. V, chap. vii] as ‘conventional law’, which he describes thus: ‘It is that form of law which is a matter of indifference, originally, but of great moment, once it has been established [as a law].’9 This comment is to be understood as referring to the subject-matter of the said law, since the latter relates to actions which apart from that law would not be a matter of obligation, but which are rendered obligatory by it. Finally, to this same division belong those laws which Cicero (On Laws, Bk. II [, chap. v, no. 11]) distinguishes from eternal and natural law, calling them popular. We, however, divide created or temporal law into natural and positive, after the manner of the theologians; since the term ‘positive’ covers a wider field than does ‘human’. For it is to be noted that the philosophers have not recognized man’s supernatural end but have dealt only with a certain felicity in this life, or rather, with a certain state conducive to passing it in peace and in justice, and have considered the subject of laws, from the standpoint of this temporal end; so that they have merely distinguished natural law from human law, which we may call ‘civil’, and to which we shall presently devote some words.10 However, since it is a doctrine of the faith that men are ordained to the supernatural end of the future life by fitting means which are to be sought after in this life, sacred theology rightly infers that this natural law is necessary for a reason vastly different [from the reason recognized by the philosophers], and that men need more laws of a positive nature than were discerned by those same philosophers.

11. In what ways human nature may be considered, with respect to the laws which it needs. With respect to the natural law, then, it is the teaching of theology that man may be considered from the standpoints of a twofold nature and dual light of reason. The first standpoint deals with pure nature, or the substance of the rational soul, and consequently with the light of reason that is connatural to man. The second deals with the nature of grace infused into man from above, and with the divine and supernatural light of faith which rules and guides him in this life. Moreover, in accordance with these two principles, [theology] distinguishes two aspects of natural

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law. The one is absolutely natural, [even] with respect to man. The other, although it is supernatural in its relation to man (since the whole order of grace is supernatural in that respect), may nevertheless be called natural in relation to grace. For grace also has an essence and a nature of its own, to which the infused light is connatural, and to which it is connatural not only to direct men toward righteous, good, and fitting behaviour in supernatural matters, but also to dispel darkness and errors relating to the purely natural law itself and to enjoin on the basis of a higher reason the observance of that same natural law. Two aspects of natural law, then, may be distinguished: the one purely natural; the other, supernatural in an absolute sense, but natural in a relative sense, as compared with grace. Wherefore, since the natural law even in its purely natural form is divine, its source being God, far more truly is the natural law of the divine order, a divine law. For the former [phase of natural law] is from God through the medium of nature, whence it flows as a property of nature; whereas the latter phase is [directly] from God, Who by His own action infuses grace and actual supernatural enlightenment, and Himself guides men to fulfil the commands of that law through aid supplied by a stimulating and assisting grace.

12. Finally, both phases of this law may be termed connatural to humanity, in so far as that which is concreate with nature and has always persisted in nature may in a certain sense be called natural. For in this sense, the law of connatural grace, also, has always existed among men; since the light of faith has never been lacking in mankind as a whole, nor in the whole Church, nor have men ever been without a supernatural divine law, in the absence of which they could not have striven toward eternal beatitude. Wherefore, when the conditions of men are, as is customary, distinguished through laws—that is to say, distinguished as being [respectively] the conditions under natural law, under written law, and under grace—then, in the case of the first state, one should understand by natural law, both the law of nature alone, and that which is connatural to grace, or the law of faith. For the world could never have been entirely without this law, in accordance with the ordinary course of providence, since it has always been possible for the doers of the law to be justified by divine aid; as may be inferred from the Epistle of Paul to the Romans (Chaps. ii and iii). So,

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also, the necessity and the utility of natural law, as explained in this latter sense, become evident; that is to say, it is necessary and useful because grace and faith have always been necessary, and the law in question is con-natural to them. [Natural law served] this purpose, too, namely: that man might have a law through the observance of which he could, by divine aid, obtain remission of sins and eternal life.

13. What is positive law? With respect to the third division of law, the positive, it should be noted that the term ‘positive’ is applied to that law which is not inherent in nature nor in grace, but has been laid down in addition to them by an extrinsic principle endowed with power, wherefore it is called ‘positive’, having been added, as it were, to the natural law, not flowing therefrom of necessity. Thus, by some persons, it has been called ‘the posited law’ (ius positum), a point that is brought out in Connan’s Commentary on the Civil Law (Bk. I, chap. viii). Again, a remark made by Aristotle (Ethics, Bk. I, chap. ix [Bk. X, chap. ix, §12]) is suitable to the positive law thus interpreted. He says: ‘law […] is a rule, emanating from a certain wisdom and intelligence, that has compulsory force.’ For though Aristotle was referring only to human law, nevertheless, his words are in themselves comparatively general; and so also the term ‘positive law’ has a wider application than has ‘human law’.

14. A division of positive law into divine and human. Thus the theologians deduce a third division, that of positive law into divine and human. That positive law is called divine which has been established directly by God Himself, and added to the whole body of natural law. Of human positive law, we shall speak presently. Apart from these two phases, however, there can be no other positive law relating to mankind, since there are no other legislators. For the angels have not such power over men, since it is not a part of their nature, nor has it been granted by God to them, inasmuch as11 their possession of that power has not, to our knowledge, been revealed to anyone, so that, consequently, we cannot divine [its existence].12 Accordingly, the term ‘divine law’ is here used to refer, not to

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the law which exists within God, but to that which emanates in a special manner from Him; for it denotes, not law that has been conceived, but law that has been made known, and in this among other respects it differs from the divine law as the latter was described by Plato.

Again, this [positive] law differs from the natural, interpreted in all its perfection as above set forth, in the fact that the natural law is not specifically added by God to nature itself, or to grace; whereas this [positive] law is specifically established and added thereto. Thus the natural law is not conferred, in itself and primarily, as a specific gift of law; rather it is conceived of as being that gift attached either to nature itself, or to faith and grace. For he who gives the form, gives also those things that are consequent upon the form. This [positive] law, on the other hand, is essentially and primarily bestowed, as a gift added to nature and to grace. Whence there has followed the custom of calling this branch simply ‘the law’ (lex), as is evident from the entire Epistle to the Romans, and from other passages of Scripture of which we shall speak presently. And therefore, the expression ‘divine law’, as such, is usually understood as referring to this [part of positive law]; and we, too, shall use the term in that sense, for the most part.

15. From the foregoing, it is also easy to discern the necessity of that divine law.

With respect to this point, it should be noted (lest one chance to be deceived by a verbal ambiguity) that St. Thomas (qu. 1, art. 4 [I.–II, qu. 91, art. 4]) adduces four reasons on account of which the divine law is necessary; reasons which, when attentively considered, will be found to contain proof only with respect to the divine law—whether natural or supernatural—in so far as it is connatural with grace, but not with respect to the positive supernatural law [i.e. positive divine law],13 according to the sense in which we are now speaking.

The first of the four reasons is this: that such divine law may direct man to a supernatural end. The second, that it may aid man in natural matters

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also, lest he err therein. The third, that it may furthermore be able to govern and order his interior acts. The fourth, that it may forbid all evil; for it is impossible that human law should do so. There is a passage in Psalms, xviii [, v. 8], too, which St. Thomas applies to these four properties: ‘The law of the Lord is unspotted, converting souls: the testimony of the Lord is faithful, giving wisdom to little ones.’ For this last phrase contains the first reason, since it is through wisdom that man is ordered to his supernatural end. The last reason, indeed, is comprehended in the third or penultimate property; for the law in question depends upon God’s truth; it cannot be subject to error; more than that, it is able to correct and repress the errors of nature. Again, the third reason enters into the second property; for the divine law is justly said to convert the soul, in that it directs interior acts.14 Lastly, this law is called unspotted, because it permits no evil.

All of these reasons furnish proof chiefly with respect to the divine law as it is connatural to grace. This is especially true of the first and second reasons, a point which I have also touched upon above. For the third and the fourth have application even to the purely natural law, since that law also prescribes internal acts that are good, and forbids those which are evil, while it does not actually permit of any act that is wrong. The divine positive law, as we are now speaking of it, is on the contrary concerned ordinarily with external acts.15 This fact is evident in the case of the Old Law, and also in that of the New, in so far as the latter deals with the Sacraments and the Ecclesiastical hierarchy. Furthermore, God does not forbid all evils through positive law; rather does this prohibition pertain to the divine natural law of both orders, as has been explained above.16

16. The divine [positive] law is necessary not in an absolute sense but on the basis of a presupposition. From the foregoing, we conclude that the divine positive law was necessary, not in an absolute sense, relatively to

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[man’s] supernatural end but on the presupposition of the institution of the Synagogue or of the Church. Relatively to such institution, the said law may be considered as an absolute necessity; although, with respect to the end itself, it serves rather for the better state and the greater instruction of mankind, either that men may be restrained in their excessive blindness and depraved morals, or for the sake of [their] greater perfection and enlightenment, that perfect virtue and holiness may be attained [by them]. The rational basis of the foregoing statements is as follows: even though some supernatural law, as well as some supernatural knowledge, may have been necessary, that law which was connatural to grace itself would have been able to suffice; therefore, the need to add another and positive law sprang from the particular institution of the mystical spiritual body, so to speak. The existence of this institution being granted, the reasons adduced by St. Thomas may very well be applied, in due proportion, to this positive divine law.

The said law is wont to be further subdivided into the Old and the New Laws, a division which we shall explain more fully in Books Nine and Ten.17

17. It remains to discuss positive human law, which is so named because of the proximate source from which it flows.

For this law is called human, not because it was imposed by men, nor because it exists in them as in those persons who are to be governed by it; since these facts, although they do apply to the law in question, are not characteristics peculiar to it, but are shared in common with all [the divisions of] law of which we treat, whether divine or natural. Thus, according to such a derivation, human law would be distinguished rather from angelic law, that is, from the law imposed on the angels, with which we are not dealing. Again, the said law is not called human from its subject-matter; that is to say, it is not so called on the ground that it is established with regard to human, and not to divine affairs. For although this derivation may perhaps be suitable with reference to the law which the philosophers have called ‘human’, nevertheless, it does not actually

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represent their meaning nor is it adequate, since human law covers a wider field, as we shall see.

What is human law; and why is it so called? This law, then, is called human for the reason that it was devised and established proximately by men. But I say ‘proximately’, because the original derivation of every human law is in a certain sense traced back to the eternal law, according to the Scriptural passage (Proverbs, Chap. viii [, v. 16]): ‘By me princes rule, and the mighty decree justice’; and furthermore, as to the binding force18 [of such law], that flows from the power given by God, since, ‘There is no power but from God’ (Romans, Chap. xiii [, v. 1]). However, that law itself which is called human is an act of man, and accordingly, it is proximately established by him; for which reason it is given this epithet of ‘human’. Thus Plutarch (Comment. [Ad Principem Ineruditum]) said that learning was a requisite in the prince. For, ‘justice is the end of law; law is the work of the prince; and the prince is the image of God governing the universe.’ Augustine, too (On the True Religion, Chap. xxxi), says: ‘The founder of temporal laws, if he is a good and wise man, consults the eternal law in order to discern […] in accordance with its immutable rules, what temporal commands and prohibitions should be laid down.’ Elsewhere (On the Gospel of John, Treatise VI [, chap. i, no. 25]), Augustine says that God has apportioned human laws to mankind through its rulers.

Human law is therefore the work of man, derived proximately from his power and wisdom, and ordained for its subjects as a rule and measure of their actions.

18. What is the necessity for human law? From the preceding statements, the necessity, or the utility, of this human law is also readily to be seen. For as St. Thomas ([I.–II,] qu. 91, art. 3) has noted, its necessity springs from the fact that the natural, or the divine law, is of a general nature, and includes only certain self-evident principles of conduct, extending, at most, to those points which follow necessarily and by a process of obvious inference from the said principles; whereas, in addition to such points, many others are necessarily involved in the case of a human commonwealth in

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order that it may be preserved and rightly governed, so that it was necessary for human reason to determine more particularly certain points relating to those matters which cannot be defined through the natural reason alone, a determination that is effected by means of human law; and therefore, such law was most necessary. Accordingly, Plato (Laws, Bk. IX, not far from the end [875]) says: ‘It is necessary for men to lay down laws in order that they may live accordingly; for if they lived without laws, they would in nowise differ from the most savage beasts.’ Similarly, Aristotle (Politics, Bk. I, chap. ii [chap. i, no. 12, 1253 A]) has declared: ‘Even as man, when perfected, is the best of all animals, so, when separated from law and justice, he is the worst of all.’19

19. Moreover, relying upon both authors, it is possible to explain more fully the necessity involved. For that necessity is founded on the fact that man is a social animal, requiring by his very nature a civil life and intercourse with other men; therefore, it is necessary that he should live rightly, not only as a private person, but also as a part of a community; and this is a matter which depends to a large extent upon the laws of the individual community. It is furthermore necessary that each person should take counsel not only for himself, but also for others, preserving peace and justice, a condition that could not be brought about in the absence of appropriate laws. Again, it is necessary that those points which relate to the common good of men, or of the state, should be accorded particular care and observance; yet, men as individuals have difficulty in ascertaining what is expedient for the common good, and moreover, rarely strive for that good as a primary object; so that, in consequence, there was a necessity for human laws that would have regard for the common good by pointing out what should be done for its sake and by compelling the performance of such acts. Accordingly, Aristotle ([Ethics,] Bk. X, chap. ix [, no. 14]) says: ‘Public regulations and provisions must clearly be established by law, and the good ones are established by laws zealous20 of good.’ Wherefore Cyril (Against Julian, Bk. III, not far from the beginning [Migne, Patrologia Graeca, loc. cit., no. 81]) remarks: ‘Nor is there

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any doubt but that laws direct one toward what is good and compel one to recede from baser things; and consequently, no person in his senses will contradict the laws or the lawmakers.’ Positive laws, then, were both useful and necessary. Accordingly, in former times, when inanimate laws had not been established, the princes were (so to speak) animate laws, by whose will the peoples were ruled; as St. Augustine records (On the City of God, Bk. IV, chap. vi), citing Justin Martyr.

20. The last division of law: into civil and ecclesiastical. What is the civil law? And lastly, this positive law is divided into civil and ecclesiastical; a division which was not recognized by the philosophers, since they knew nothing of the supernatural end, or of the special power [relating thereto]. For this reason, the human law, in their writings, is the same as the civil law, which Augustine is accustomed to call the temporal; for it is that law which is devoted to the political government of the state, the guarding of temporal rights, and the preservation of the commonwealth in peace and justice. Accordingly, civil laws are concerned with these temporal or bodily goods.

Again, what are the ecclesiastical laws? In addition to such laws, however, the Christian religion recognizes certain ecclesiastical or canon laws which are contained in the sacred canons and in the pontifical decrees. Some persons call these not human but divine, for the reason that they are derived from a special power, especially conferred by God, and relate chiefly to a supernatural end, to divine worship and to the salvation of souls. Nevertheless, in point of fact, they are human laws; as has been well taught by Giovanni d’Andrea, whom Panormitanus (on Decretals, Bk. II, tit. VII, chap. i, no. 7) cites and follows, and as one may clearly infer from the Decretals (Bk. IV, tit. XIV, chap. viii). The reason for this is that the said laws are proximately established by the human will, although they differ from civil laws with regard to the power that is their immediate source, and with regard to their end and to their subject-matter, as we shall see below. However, the reason or necessity for such laws was, in due proportion, the same. For (so we assume) God founded a special congregation of the faithful, which should be one body, and which we now call the Church; and He did not make specific provision, through the law which He Himself had established, for everything that might be fitting in the spiritual direction of the Church, but simply laid down certain essential

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bases for this spiritual commonwealth. The other matters, however, He left to be provided for, through His ministers and ecclesiastical pastors, partly with the purpose that all points might be ordered agreeably and in a manner adapted to mankind, and partly because it was not possible to determine every point specifically in such a way that it would be immutable. Therefore, this process of determining took place through canonical laws, so that such laws were as necessary in the spiritual commonwealth of the Church as civil laws, in the temporal commonwealth.

21. From the foregoing divisions, then, the variety, necessity, and manifold constitution of law become sufficiently evident.

To these divisions, there are frequently added others, which are either doubtful or of [only] apparent importance, and over which, therefore, we need not for the present linger, since they will be better touched upon in their proper places. Of such sort is the division of law into instructive (ostendens) and mandatory (praecipiens), of which we shall speak in a subsequent Book, and one which may perhaps be an unnecessary classification. Again, there is another general division of law, into affirmative and negative, the former prescribing what should be done, the latter opposing or prohibiting what should be avoided. These two forms of law are manifested in all those which we have enumerated; for they differ only in the subject-matter of what is prescribed, which is to do or not to do, so that there is consequently a certain difference in their modes of binding. Of this difference, we shall treat more properly in Chapter Thirteen.21 Next, one may add the divisions of human law into penal and non-penal, and into the merely prohibitory, and that which annuls; terms which are familiar enough. Concerning the actual concepts involved, however, special discussions will be undertaken in the later pages of the work. Finally, it may seem that the ius gentium has been omitted from the number of the divisions mentioned; but in Chapter Eight of the next Book,22 we shall explain how that body of law is included within the forms above-mentioned.

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CHAPTER IV

What Acts in the Mind of the Lawmaker Are Necessary for the Making of a Law?

1. The points with which we have so far dealt relate only to the determination of the question of whether or not law exists. Moreover, we have demonstrated the necessity as well as the existence, not of one law only, but of various kinds or species of laws. We have explained the names of these species, and their rational bases, in order that our discussion of the subject may be clear and expeditious.

We should examine next the question, ‘What is law?’ Of this question, we shall treat in an abstract and general manner, postponing for the appropriate places, the difficulties arising in the case of particular laws. Moreover, we shall speak always from a human standpoint and in accordance with our own [human] mode of conception; yet we shall have to apply certain expressions to the divine law, or mind, excluding imperfections.

In this Chapter, then, and in the Chapter that follows, we shall discuss the genus under which law is comprehended; and later we shall inquire into the specific differences within that genus.

2. Law pertains to the intellectual nature. Thus we assume, first, that law is a thing which pertains to the intellectual nature as such, and accordingly, to the mind thereof; both intellect and will being included under the term ‘mind’, for it is with that understanding that I am now speaking. The truth of this assumption is sufficiently evident in itself, since law implies a moral relation to the performance of a given action, and since no aspect of nature save the intellectual is capable of such a relation. Moreover, properly speaking, only those who have the use of intellect and reason are governed by law, or are capable of being so governed; and therefore, it is still far more necessary that there be a mind in one who is to govern by means of laws. Law, then, is a thing that pertains to the mind. Furthermore, if it is said, by an extension of terms, that God conceives a given law for natural or irrational things, that is the case only in so far as things lacking intellect are in need of a superior governing mind, in order that the work of nature may be a work of intelligence; and thus from every standpoint, law must be related to mind. Such has been the concept of law entertained by all

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the wise, even by the philosophers, as is evident from the passages cited in our preceding Chapters from the works of Plato, Aristotle, and Cicero.

3. Law is based, not upon a habit, but upon an act. Secondly, I assume that law—properly speaking, and especially in so far as it exists in the lawgiver—is based upon a concrete act, and not upon a habit or power. This is clearly true, because that which is called law has the virtue of proximately moving its subjects and imposing an obligation upon them; but this virtue does not exist in potency or habit, save basically and remotely; therefore, it must exist in some act. Moreover, commanding, ordering and similar functions imply an act; and such functions are discharged through law, either formally, or (as it were) through a moral activity; hence, law consists in an act.

However, in order that we may explain what this act is, it will first be necessary to enumerate all the acts which may concur to make laws, and to describe the sequence or order of these acts. For they may be either interior, and elicited by the intellect or the will; or exterior, and prescribed; and all of them are necessary for the ultimate effectiveness of the law.1

4. Concerning the subject [or state] with respect to which the law may exist. For the clarification of this point, I shall note, thirdly, that law may be considered from a threefold standpoint, with respect to its state or subject. First, it may be considered as it is in the lawmaker himself; in which sense, as we were saying above,2 law is conceived in the mind of God from eternity. Secondly, law may be considered as it exists in the subjects on whom the law is imposed; from which standpoint, it is customarily said that the law of nature has been instilled into the minds of men. Thirdly, it may be considered as it is in some different symbolic manifestation (signum), or some other external materialization (materia exterior); for example, in writing or even in a spoken word that declares the will of a superior.

As to law when considered with respect to the two latter states, no difficulty can arise. For law, taken in the third sense, consists formally in some external act, by means of which the lawgiver makes known his thought;

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such an act as speech is among men, or writing. Thus Aristotle (Ethics, Bk. X, chap. ix [, no. 12]) has said that, ‘law […] is a rule, emanating from a certain wisdom and intelligence’. Gabriel, too (on the Sentences, Bk. III, dist. xxxvii), defines law as a sign making sufficiently manifest the will or the thought of the prince. I have said, indeed, that this sign is an activity or act, including the term of duration of the said act, when the latter is permanent and embodies perfectly the character of a sign. For written law is accordingly called law, not only when it is at the time put into writing, but in so far as the term of that writing is permanent and indicates always the thought of the prince. Similarly, if a law is handed down merely by [the spoken] word, and even though the audible word passes away, then, in so far as this word endures in human memory, the law is said to be sufficiently enduring. For it is thus that unwritten law is sometimes preserved through tradition. In like manner, custom, too, may at times attain the force of law, as we shall see below.3

No other difficulty arises with regard to this category of law, except in connexion with the promulgation of law, a point of which we shall treat later.4

5. Law in the subject resides solely in an act of the mind. Furthermore, with respect to law as it may exist in its human subject, such law unquestionably consists in an act of the mind, and of itself requires only a judgment by the intellect and not an act of the will, since an act of the will is necessary to the observance or execution of the law but not to its existence. For law precedes the will of the subject and is binding upon that will; whereas an act of the intellect is necessary in order that the law itself may thereby be brought before and into direct contact with the will; and consequently, a judgment by the reason is required. It is in this sense, indeed, that the natural law is commonly spoken of as the natural judgment of the human reason; in so far, that is, as the said law exists in man as in one who is subject to it. Joannes Damascenus, too, speaks in this same manner, saying (De Fide Orthodoxa, Bk. IV, chap. iii [chap. xxii]): ‘The law of God, as it

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draws near to us, enkindling our minds, attracts them to itself and arouses our consciences, which are themselves said to be the law of our minds.’ The same is true, in due proportion, with respect to positive laws. For after they have been enacted, they are applied to each individual through a judgment of the reason, to the extent that what was not necessary per se is judged necessary by virtue of the law, so that this act of judgment is now the law (so to speak) as it exists in the subject himself.

In this connexion, to be sure, there has occurred a question as to whether in the case of these positive laws, there is sometimes required on the part of the subjects an act of the will that accepts the law. However, this point should be discussed in relation to human laws, to which it is pertinent. For the present, let us consider it a certainty that such an act is not a requisite for the essential principle of the law as such, and possibly not for any law, unless it be on account of some defect of power in the lawmaker. Accordingly, with regard to this aspect of law, nothing further of a general nature need be said. For the special difficulty which may arise from it, in connexion with natural law, will be better dealt with, in the following Book.

6. Acts of the intellect and of the will are necessary for the making of law. There remains, then, the matter of the law as it exists in the lawmaker himself. With respect to this phase of the question, it is certain, to begin with, that both the intellect and the will intervene in the making of law. But it is necessary to explain what acts are involved in connexion with that process.

In the first place, law, in so far as it is externally imposed upon the subjects, is a species of means for securing their welfare and peace or happiness. And therefore, one may assume first of all that the will of the lawmaker includes the purpose of promoting the common welfare, or the good government of the subjects. From this purpose there follows forthwith in the intellect a consideration of this or that [possible] law, as to which of them is just, or suitable for the commonwealth. These two acts are seen to occur successively and with ratiocination, in men; but in God, without imperfection, as a simple act in the order of reason.

How many acts are proximately necessary in the intellect and the will for the making of law? However, the said acts intervene only remotely in the making of law, and therefore it would seem clear that the essence of the law is not found in them.

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It appears, then, that after these acts are performed, there is direct intervention, on the part of the intellect, by an act of judgment through which the lawmaker decides and decrees that a given provision is advisable for the commonwealth, and that it is expedient that this provision should be observed by all. This fact is manifest since, without such an act of judgment, the law could not be prudently and rationally enacted; and it is part of the character of law that it shall be just and, consequently, prudent. For prudence5 commands, as St. Thomas (II.–II, qu. 47, art. 8) teaches, citing Aristotle (Ethics, Bk. VI, chaps. x et seq. [chaps. v et seq.]). Wherefore, just as in the case of each private person there is required a prudence that serves for the right direction of individual acts, whether with respect to himself or with respect to another private person, so, in the case of a prince, there is required a prudence that is political; that is to say, one that is constructive in relation to the building of laws, in accordance with the passage in Proverbs (Chap. viii [, v. 15]) where Wisdom says: ‘By me kings reign, and lawgivers decree just things.’ The teaching of St. Thomas (II.–II, qu. 50, art. 1), together with that of Aristotle (Politics, Bk. III, chap. iii [chap. vii]), on this point, is also excellent.

7. Secondly, it is certain that there is required, in addition to this act of judgment, an act on the part of the will, by which the prince agrees, chooses, and wills that his subjects shall be obedient to that which his intellect has judged expedient. On this point all the Doctors, too, are in agreement, at least with regard to positive laws; a fact which we shall demonstrate in the next Chapter. Moreover, the reason in support of the point is, briefly, this: law does not merely enlighten, but also provides motive force and impels; and, in intellectual processes, the primary faculty for moving to action is the will.

Some one, to be sure, may ask: ‘And what is this act of will?’ There is, indeed, cause for doubt since simple or inefficacious willing6 is insufficient. For God possesses such a will with regard even to those things which He counsels but does not prescribe; and among men, although a superior

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might in this sense desire that something should be done by a subject, and might inform the latter of this desire, that would not suffice to constitute a command. On the other hand, an efficacious will would not seem to be necessary; for God does not possess this sort of will with respect to all things prescribed by Him. If He did, all these precepts would be executed, since His efficacious will would infallibly be fulfilled.

8. What efficacy of act is requisite in willing, in order to set up a law. The reply [to the doubt above set forth] is that there is a necessity for some act of an efficacious will, a will which in God is that of His good pleasure,7 as is proved by the argument first set forth; but it is not necessary that this willing should relate to the observance or execution of a law, since execution is a thing which follows later, as is also proved by the last argument adduced. Accordingly, it is inherently necessary that [the said act of will] should relate to an obligation imposed on the subjects; in other words, that it should be a will to bind the subjects; for without such a will, [the act] cannot be binding upon them. And this will to bind suffices, in so far as willing is concerned.

The truth of the first assertion is evident, because the obligation is a moral effect, and voluntary on the part of the prince; also, because the acts of agents do not transcend their own intentions; and furthermore because, in accordance with the same reasoning, there can be no vow without the will to bind oneself; wherein [a vow] is like a law, a fact which we have mentioned in another work (Vol. II, De Religione, Treatise VI, bk. 1, chap. ii).8 The second assertion is also clearly true, since we assume that there exists in the lawmaker, the power to bind; and therefore, if he furthermore possesses the will to bind, nothing else can be required, in so far as relates to the will. It may be objected that the will to command is necessary, and that this will suffices even in the absence of the will to bind. I reply that these are not two separate forms of willing, but one and the same form described in different terms, a point which I shall explain below.

9. The will in question may be described in yet another way, as being the will to bring about a given action because that action is necessary to

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the preservation of equity or the mean in a particular matter of virtue. For the will of a superior has this moral efficacy, namely, that it can lay a binding obligation upon his subjects, and make that a requisite matter for virtue, which was not in itself essential; as, for example, when it makes fasting on a certain day necessary for the mean of temperance. For though this fast is not always necessary to the observance of the law, nevertheless, when it shall be necessary, [the imposition of such a restriction] does not exceed the power of the lawmaker.

This, then, is the correct explanation of the object with which the efficacious will of the legislator is concerned. For, even though that object may be moral rather than physical, the efficacious will may be exercised with respect to it; and not only the human will, but also the divine, as I have elsewhere expressly said9 and as I shall later repeat in the treatise on grace.10

In this connexion, indeed, there was a special difficulty in regard to the natural law; but this point will be treated to better advantage in the following Book.

10. The act of the intellect which some persons call intimation is not a requisite for the making of law. The sole remaining question is whether or not, subsequently to the acts of the intellect and of the will already mentioned, some other act on the part of the legislator himself is a requisite for the making of law. For many persons believe that an additional act of the intellect is indeed necessary, one to which they give the name of intimation, explanation or notification of the will of the superior with respect to the inferior; because this act, such persons say, involves the real essence of command and may be expressed in the phrase, ‘Do this’, so that, as I shall point out below, they find the real essence of law in the said act. The basis of their opinion, moreover, is their belief that in every moral operation the act in question is necessary, after the election [by the will] in respect to execution. Aristotle, too, touched upon this view, in declaring (Ethics, Bk. VI [, chap. v]) that to command was the most perfect act of prudence. St. Thomas did likewise (I.–II, qu. 17, art. 1) when he taught that the act of commanding is an act of the intellect.

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11. I hold, indeed, speaking generally of command over the personal acts and powers of the person himself who exercises the command, that there is no necessity for an act of the intellect directed immediately toward the executory power, subsequently to the choice, or act of willing, by which one definitely and effectively wills to perform some external act, with all the special accompanying conditions required for action in view of the circumstances and the executive power. I go further, and hold that such an act [of the intellect] is not even possible. For the executory power is not aware of the force of the command; and solely the placing of the object before the will, not the application of the power to the act, pertains to the intellect. To the will pertains the subsequent application of the other powers in actual use. This is the more common opinion, one which I derive from St. Thomas (I.–II, qu. 17) and from the authors to whom I shall refer in the following Chapter. I have touched upon the same matter more frequently, and at sufficient length, elsewhere (Tract. De Praedestinatione, Bk. I, chaps. xvi and xvii and De Religione, Tr. IV, bk. 1, chap. i and Tr. VI, bk. 1, chap. xii).11

12. This doctrine having been laid down with respect to each person’s command over himself, it is still needful to state that, with respect to the command of one person over another, the only necessary requisite, following the act of will on the part of the lawmaker which I have explained above,12 is that the lawmaker should manifest, indicate or intimate this decree and judgment of his, to the subjects to whom the law itself relates. For this is essential, since if he did not do so, the will of the prince could not be binding upon his subject, inasmuch as it would not be made known to that subject, a point which we shall discuss more fully when we treat of promulgation.13 It is clear, moreover, that this [act on the part of the lawgiver] suffices, since the will of the prince is of itself efficacious. For that will is derived from a sufficient authority and is, so we assume, accompanied by an absolute and binding decree; consequently, if the said will is adequately revealed to the subject, it effects that which is willed;

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hence, it establishes an obligation; the law is accordingly consummated; and therefore, nothing further is necessary. This argument will stand out more clearly in the light of the statements to be made in the following Chapter.

13. It is clear, however, that such instruction as to [the lawgiver’s] intention14 consists of some utterance, the term ‘utterance’ being understood to include any indication or manifestation whatsoever, given to another person, of an internal act. That utterance, indeed, properly considered with special reference to its relation to a creature, is effected by means of an act which passes on and is finally received in some way into the person to whom the utterance is addressed; a fact which is manifestly true in the case of human interrelations, and which I believe to be true, among the angels, also, in a sense appropriate to them. For if the one who speaks, causes no impression on the one to whom he speaks, the former will not be making his thought manifest to the latter.

Moreover, the same is true with respect to God in relation to His creatures. For God gave no intimation to Adam of His will concerning abstention from eating of the tree of life, save through some revelation made to Adam himself; and if God makes manifest in the Word, to one of the blessed, that which He wishes to be done, the very vision of the Word in the blessed has the force of an utterance and intimation from God, concerning the precept in question.

The utterance directed by the creature to God, however, involves another principle, of which I have spoken elsewhere ([De Religione, ubi] de Oratione, loc. cit.),15 but which is not pertinent here, since the creature cannot give commands to God.

14. In addition to the acts enumerated, an act of the intellect for communicating with the subject is required. Thus, from the foregoing, I conclude that, subsequently to the above-mentioned16 act of the will, there is required of the lawmaker only an act of the intellect which will be needed in order to communicate a given matter or decree to the subject.

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And, in consequence, there may be a necessity for a new act of the will to produce some sign which will make manifest the previous act of the will. Just as we are required to have an understanding of the words which we are about to utter, and a will to move our tongues, so also in due proportion it is required that the prince shall conceive, through his intellect, a way to effect an intimation of the law, and that he shall, through his will, choose to execute this intimation. The foregoing statement may in due proportion be applied with respect to God; for it is thus that He executes this intimation, even as He executes His other effects.

Finally, one may also infer that there takes place within the legislator, and subsequently to the aforesaid act of the will, a new act of the intellect, by which the legislator perceives his own will; just as we understand that there is in God, subsequently to His act of willing, that knowledge which is called the knowledge of vision.17 Thus it also results that the lawgiver, after having knowledge of his law, exercises judgment as to its subject-matter in yet another manner than that which he formerly employed; for at first, he judged18 it only as being suitable matter for his command, whereas afterwards he judged it as being necessary to moral rectitude, by virtue of his decree. All of which is so manifest that it requires no new proof. We shall speak in the following Chapter, however, of the way in which these elements concur to make law and, accordingly, of the act on which law is founded.

CHAPTER V

Is Law an Act of the Intellect or of the Will? And What Is the Nature of This Act?

1. The first opinion: law is held to be an act of the intellect. In the light of the assumptions which I have made in the previous Chapter, the question will turn almost entirely upon a manner of speaking. Nevertheless, it

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should be briefly discussed, because of the variety of opinions on this subject.

According to the first opinion, then, law is an act of the intellect. This is the view held by St. Thomas (I.–II, qu. 90, art. 1); and Vincent de Beauvais (Speculum Morale, Bk. V, pt. II, dist. 1), often speaks thus in his discussion of the matter. The same opinion is adopted by the Thomists, Cajetan, Conrad Koellin, and others (thereon and on I.–II, qu. 17; qu. 58, art. 4; qu. 60, art. 1). Mention should also be made of Soto (De Iustitia et Iure, Bk. I, qu. i, art. 1), Torquemada (on Decretum, Pt. I, dist. III, can. iii), Alexander of Hales ([Summa,] Pt. III, qu. xxvi, ad primum), Richard Middleton (on the Sentences, Bk. III, dist. xxxiii, art. 2, qu. 6, ad 3), Antoninus ([Summa,] Pt. II, tit. IV, chap. x [Pt. I, tit. xi, chap. ii]), William of Paris (Tr. De Legibus), and Corduba (Bk. II, Quaestionarium Theologicum, qu. 10). Moreover, the opinion in question is wont to be proved, first, by the argument that the Scriptures, as well as the Fathers, philosophers and jurisconsults, assign law to the reason, or to wisdom. For example, in Proverbs (Chap. viii [, v. 15]), Wisdom declares: ‘By me […] lawgivers decree just things.’ So, also, Clement of Alexandria (Stromata, Bk. I [, chap. xxv], not far from the end), declares that law is good opinion and that good opinion is that which is true. Moreover, he adds: ‘Consequently, certain persons have said law is right reason, which prescribes those things that should be done, and prohibits those that should not be done.’ Again, Basil (On Isaias, Chap. viii, in vv. 19–22) says: ‘Law is a teacher and instructress’ (doctrix & magistra).1 Joannes Damascenus (De Fide Orthodoxa, Bk. IV, chap. xxiii [chap. xxii]) has also attributed to law the function of teaching.

2. Furthermore, Plato (Dialogue, Minos, or On Law, at the beginning [314 C D]) calls law, ‘the upright opinion of the state’, that is to say, the true opinion. And later, he asserts that law is ‘the operation of truth’. Aristotle (De Sophisticis Elenchis, Bk. I, chap. xii, at the end) has likewise said that law is ‘the opinion of the multitude’. Again, in the Letter to Alexander, preceding the Rhetoric to Alexander,2 he defines law as the ‘utterance of a command, with the common consent of the state, etc.’ And in a closely

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following passage (Rhetoric, Chap. i), he says: ‘Law is the common consent of the state, a consent which prescribes in writing the way in which each act is to be performed.’ In this passage, Aristotle also embodies law as bidding and precept; although frequently, in other passages, he nevertheless attributes the function of commanding to reason and to prudence (Ethics, Bk. VI, chaps. ix et seq.; Politics, Bk. I, chap. iii [Bk. III, chap. xi]).

Thus he has said (Ethics, Bk. X, chap. ix) that law is ‘a rule, emanating from a certain wisdom and intelligence’. We have also cited above many of the words of Cicero, in which he indicates that law is in the reason: that first, indeed, it is in the Mind of God; and that, through participation in this [Mind, by the human reason], the said reason contains the natural law and prudence, from which source the laws of states should be derived. This point is fully dealt with, in the Laws (Bks. I and II, shortly after the beginning [Bk. I, chap. vii and Bk. II, chap. iv]) where, among other remarks, Cicero lays down the conclusion that, ‘Law is right reason in commanding and forbidding’. And in fine, it is in like vein that Papinian (in Digest, I. iii. 1) calls law ‘a common precept’, declaring it to be ‘the decree of prudent men’. Marcianus, too (ibid., 2), says, quoting Chrysippus: ‘Law is the queen, princess and leader of human and divine affairs.’ These, indeed, are the functions of reason, to which the rule and direction of actions pertain.

3. The first opinion is confirmed by reasoning. Various arguments are advanced for the confirmation of this first opinion.

The first argument is as follows: it is the function of law to regulate, wherefore it is customary to define law as a ‘regulation by the reason’; yet regulation pertains not to the will, but to the intellect, since it involves a certain ratiocination, so that those things which lack reason cannot regulate; therefore, law is an act of the intellect.

Secondly, it is the function of law to enlighten and instruct in accordance with the words [of the Psalms, cxviii, v. 105], ‘Thy word is a lamp to my feet, […]’ and of this passage, also [ibid., xviii, v. 8]: ‘The law of the Lord is unspotted, converting souls: [the testimony of the Lord is faithful,] giving wisdom to little ones’; and the act of enlightenment pertains to the intellect.

Thirdly, law is a rule, as we said at the beginning, in accordance with a

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passage of Basil (on Isaias, Chap. i, in v. 9)3 where he calls it ‘a rule of the just and the unjust’. This view is also supported by the Digest (I. iii. 2). Thus it is that the laws of the Church are called canons—that is to say, rules—as Isidore (Etymologies, Bk. II [, chap. x]) remarks. But the will is not a rule; rather should it be regulated by the reason itself. Therefore, law dwells in the reason.

4. Fourthly, we have the argument that no act of the will can be designated as law. For [such an act would fall into one of two classes.]

First, it might be the will of a prince or of a superior that a particular act shall be performed by the subject; which is not the case, since such a will is neither necessary nor sufficient; for God imposed upon Abraham a true precept concerning the sacrifice of Abraham’s son, yet God did not will that this sacrifice should be executed; and conversely, however much a superior may will and desire that a given act be performed by a subject, he imposes no obligation if he issues no precept. Thus the theologians say that we are not bound to conform to the divine will, even the efficacious divine will, unless there is added to it a precept concerning the execution of the will in question. Therefore, law does not consist in such an act of the will.

Secondly, [the act] might consist in the will to bind the subject; a will which is also insufficient, unless it is made known. Indeed, some persons add that a will of this sort in the prince is not necessary to his establishment of the law, for if the prince wills to command, by the very act of commanding, he makes law, even though he reflects not at all upon the binding obligation involved. Bartholomew Medina goes further and says (on I.–II, qu. 90, art. 1) that, even though [the prince] may be [definitely] unwilling to impose the obligation, nevertheless, if he wills to command, he does impose it, and makes law. Just as one who makes a vow without willing to bind himself, nevertheless vows truly (says Medina) and becomes bound; and just as he who makes a deceitful promise under oath, without intent to lay himself under a binding obligation, is bound by the sanctity of the oath, to fulfil the promise; even so, he who wills to

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command, imposes a binding obligation, by the efficacy of the command, even though he be unwilling to do so.

Accordingly, no other act of the will than the will to command, is necessary to law; and the will to command does not constitute law, unless it is followed by the command itself, which pertains to the intellect; therefore, law dwells in the intellect.

5. In what act of the intellect does law dwell? However, there exists among those persons who have advanced this opinion, a controversy as to what act of the intellect contains the essential principle of law; that is to say, a controversy as to whether this act is the judgment of the reason which precedes the willing, or the command which is said to follow after. For certain of these authorities declare that the act in question is the judgment of the reason. William of Paris held this view; and he was followed by Conrad Koellin (on I.–II, qu. 91, art. 1). St. Thomas, also (I.–II, qu. 91, art. 2 [art. 1]), clearly says that law is a dictate [of practical reason] in the prince. Moreover, if we take into consideration the testimony cited, especially that of the philosophers, it would appear to have reference to this judgment of the reason. Again, the properties which consist in enlightening, and in serving as a rule and a measure, are appropriate to such a judgment of the reason, and not to the command in question, for the latter is said to be of a quality that merely impels and does not make manifest any truth.

Nevertheless, in opposition to this opinion, we have the fact that this judgment does not possess any efficacious force for binding, or for moving in a moral sense; yet such a force is essential in law. Moreover, in so far as concerns the judgment involved, a precept would seem to be in nowise different from a counsel; since even one who gives counsel passes similar judgment in regard to the action whose performance he counsels. Accordingly, if God should make manifest to us nothing more than this judgment, He would be giving us not a law, but a counsel, in connexion with those acts, to be sure, the contraries of which are not intrinsically wicked.

6. Some say that law is the act of the intellect which is called ‘command’ (imperium).4 Other authors therefore, assert that law resides in the act of the intellect subsequent to willing, an act to which they give the name

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of ‘command’ (imperium). However, this act, if it is not in the form of a locution, is certainly a fiction, as we have remarked above.5 And if it is in that form, then it will have the nature of a sign, so that it will be not so much law, as the sign of law; or, at the most, it will be called law, even as written law or that promulgated orally is so called. But this external or written law has the force of law only in that it stands for something else, something in which there dwells the virtue of law; therefore, it necessarily presupposes the existence of another thing which is law in its essence;6 and this is the very object of our inquiries. Nor may it even be said that the internal locution, as we conceive it in the mind of the prince, constitutes law; for this locution, too, has force and efficacy only in that it is a sign, so that it necessarily presupposes the existence of that which is law in its essence.7

7. Furthermore, with respect to God, there is a special reason on account of which it would seem that the said act [of the intellect] is not to be attributed to Him as necessary for the establishment of law. For either this act is in the form of an externally active impulse, as some persons hold it to be, distinct even in God from His proper judgment and cognition; or else it is in the form of a mental locution; yet neither of these alternative assertions is acceptable; therefore, …

The minor premiss can be proved, in so far as concerns its first part, by demonstrating that no such act exists, since its existence is vainly posited, and the act is inconceivable; but we have treated of this point, elsewhere (De Religione, Pt. I, tr. II, bk. 1, chap. x).8 Here, however, we shall provide a brief demonstration, as follows: on the part of God, such an impulse cannot be necessary for the establishment of law; for God, in establishing law, does not impel one physically toward the act prescribed by the law, but merely imposes an obligation which is of a moral nature and cannot be thus physically brought about, a fact which would seem to be self-evident.

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The other part of the minor premiss, indeed, the part relating to a locution, is easily demonstrated. For a locution on the part of God, externally actualized, can be nothing more nor less than an infusion of enlightenment or of intelligible forms, or the production of some sign making manifest Himself or His will; but all this, God does through His will, nor is any impulse or act of the intellect subsequent to the act of the will, more necessary for this effect than for other effects.

In nowise, then, may law, as it exists in God, be assigned to an act consequent upon [an act of] will. The same is therefore true with respect to any lawmaker whatsoever; since all lawmakers participate in the basic characteristics of law, which dwell in God by His essence, so that in due proportion [all] imitate those characteristics.

8. The second opinion: law is held to be an act of the will. There is, then, a second general opinion, according to which law is an act of the lawmaker’s will. In support of this opinion, one may cite all those who assign command to the will, as do Henry of Ghent (Quodlibeta, IX, qu. 6), Gabriel (on the Sentences, Bk. II, dist. xxxvii, qu. 1, art. 1, not. 3), Major (on the Sentences, Bk. III, dist. xxxiii, qu. 7), Occam (on the Sentences, Bk. III, qu. xxii [qu. xii], art. 4), Almain (Moralia, Tract. III, chap. ii), and Angest (on the Moralia, Tract. I, pt. III, corol. iii).9 Bonaventure also supports this view, when he says (on the Sentences, Bk. III, dist. xvii, art. 1, qu. 1, ad penult.): ‘The will is that within which resides the rule and command of what is in the person who wills.’10 Joannes Medina (Codex de Oratione, Qu. 2) expresses himself in like manner. The opinion in question is furthermore attributed to Durandus and to Gregory of Rimini (on the Sentences, Bk. I, dist. xlvii) in so far as they assert that the divine will is a rule to which we are all bound to conform. Scotus,11 too, is cited in behalf of this opinion, in that he says, in certain passages (on the Sentences,

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Bk. II, dist. vi, qu. 1 and dist. xxxviii, qu. 1, ad ult. and quodlib. 17), that the ordering of another to the performance of any action is a function that pertains to the will. And in yet another passage (ibid., Bk. III, dist. xxxvi, qu. 1, art. 2), he assigns the function of command to the will. This same view is defended at length by Castro (De Potestate Legis Poenalis, Bk. II, chap. i).

9. Moreover, [this second opinion] can be upheld by argument. First, it may be argued that Scripture and the civil laws (iura) give the name of law (lex) to the will of God, and to the will of the prince. ‘He hath made his ways known to Moses: his wills to the children of Israel’ (Psalms, xxxii [cii, v. 7]), that is to say, He hath made known His precepts. Again, we have the words: ‘Teach me to do thy will’ (ibid., cxlii [, v. 10]). In the second book of Machabees (Chap. i [, v. 3]), we read: ‘And [may he] give you all a heart to worship him, and to do his will […]’, that is, to obey His law. Thus Christ our Lord has said, in the Lord’s Prayer: ‘Thy will be done’, which was to say, Thy law be obeyed. Again, in the prayer in the garden He said: ‘Not my will, but thine be done’, that is, thy command be done. For so it had been written of Him, according to the Psalms (xxix [xxxix, vv. 8, 9]): ‘In the head of the book it is written of me that I should do thy will.’

The customary reply [to the argument based on these passages], an answer drawn from the Master of the Sentences [Peter Lombard] (in the Sentences, Bk. I, dist. xlvii) and from St. Thomas (Summa, Pt. I, qu. 19, art. 9 [art. 11]), is that the passages in question refer to the will as expressed by some sign,12 which is will not strictly but metaphorically speaking.

10. However, even though the will when expressed by a sign may be so called [only] in a metaphorical sense, it must be indicative of some true will. For, why should it be called will metaphorically, unless because it has a relation to true will? And it has no such relation save as a sign, wherefore it is called ‘the will, as expressed in a sign’. Hence, the will which it has indicated is that which is fulfilled in the strict sense, and which has been designated in the passages above-cited by the term ‘law’. Accordingly, in

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the civil law (ius) also (Digest, I. iii. 19), law (lex) is said to have its own will; for written or external law undoubtedly indicates the will of the prince, and this is declared to be the will of the law itself; therefore, will of that sort is law existing in the prince himself.

Thus we read (Digest, I. iv. 1 and Institutes, I. ii, § 6) that, ‘What the prince has decreed, has the force of law’, words which certainly indicate an act of the will.

One may also cite the philosophers who say that law ‘is the decree and resolution of the state’, as Plato puts it in the Dialogue already cited (Minos [314 B]); or that it is the consent of the state, in the words of Aristotle (Rhetoric to Alexander, Chaps. i and ii). For a decree indicates an intention of the will and—a clearer example—consent is an act of the will.

Anselm, also, in his De Voluntate Dei, has attributed [the function of giving] precepts to the divine will; and again, in the De Conceptu Virginali et Originali Peccato (Chap. iv), he has assigned to the will the function of commanding.

11. The second opinion is confirmed on the basis of the characteristic properties of law. Secondly, the opinion in question may be proved primarily on the basis of the characteristic properties of law. For all those properties which were attributed to an act of the intellect, are more appropriate to the will, and there are certain properties which are appropriate to the will and cannot be attributed to the intellect; therefore, …

The major premiss is clearly true, because, in the first place, there is assigned to law the attribute of being a rule and a measure; and this characteristic is particularly appropriate to the divine will, as may be inferred from various statements made by St. Thomas (I.–II, qu. 4, art. 4; qu. 19, art. 9; II.–II, qu. 26, last art.; and, more expressly, II.–II, qu. 105, art. 1). He says that the divine will is the first rule by which human actions should be measured; but that the wills of human superiors constitute a secondary rule, imparted by the first. The reason supporting this view is the fact that we ought to do or will that which God wills that we should, as Anselm declares in the work, De Voluntate Dei.

12. Another characteristic property of law is that it enlightens and directs the subject. In connexion with this property, indeed, we should note that it may be attributed to law, in so far as the latter dwells within

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the subject himself; in which sense there is no doubt but that law is an act of the reason and, formally speaking, enlightening reason, as we have remarked in the preceding Chapter. Consequently, in reading the various authorities, one should take care lest he be led astray through ambiguity. For these authorities, inasmuch as they define law in terms of reason, are often speaking of it as it exists in the subject himself, in which sense the natural law is said to be right reason, imparted by nature; and thus it is that law enlightens, since it reveals the will of the lawmaker. Therefore, it would seem that there dwells within the lawmaker himself that will which objectively (so to speak), or even effectively, enlightens the subject; in accordance with the words of Anselm (De Voluntate Dei [Chap. iv]): ‘The will of God is the master of the human will.’

13. The third characteristic property which we were to discuss, is that law orders. But this property is one which most properly pertains to the will; as Scotus (in the passage cited above) rightly declares, and as I have demonstrated in my Treatise on Predestination.13 Moreover, the point can be well confirmed by the statement of St. Thomas (Summa, Pt. I, qu. 107, art. 1) that one angel through his will orders his concept [to be made known] to another angel, and in this way speaks to him; hence, the function of ordering pertains to the will. This explanation applies to the matter in hand. For such ordering by law takes the form either of a relation of the means to the end, or of a locution which indicates the will of the prince. And in either form, the ordering is most properly attributed to the will. For it is the will that orders the means to correspond to the end, since it is the will itself which strives towards the end, chooses the means for the sake of the end, and so decrees that these means be put into execution; and it is also the will that gives the command for the locution, while in God, or in an immaterial inferior being, the ordering of the locution is likewise accomplished through the will. Therefore, ordering by law, in so far as this property exists in the superior who orders or employs the locution, is always a matter pertaining to the will.

14. Hence, there is yet another way in which to meet the customary objection that a superior issues no command if he does not make his will

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known, even though he may wish that a given act be performed by the subject. For it is replied that this intimation may be external and that such an intimation is not pertinent to the discussion, since it does not reside within the lawmaker but is simply a transient act, affecting either the subject or some other external matter, in accordance with the statements made in the preceding Chapter;14 whereas intimation as it exists in the lawmaker would seem to consist pre-eminently in a will to intimate externally, which in its turn is an intimate part or else a consequence of the will to bind, so that, for this reason also, law pertains principally to the will.

15. Some characteristic conditions requisite for law, which are appropriate only to an act of the will. It remains for us to prove the second part of the first antecedent: namely, that some characteristic conditions requisite for law are to be found in an act of the will and not, strictly speaking, in an act of the intellect.

The first condition. The first of these conditions consists in the moving and bringing of the subject to the performance of an action, omission being always included under the term, ‘action’. For the principle that moves and brings one to the performance of an action is the will, since the intellect is a motive force with regard more to the special mode of action (specificationem), and is therefore said to direct rather than to move.

The second condition. The second condition is the possession of a binding force; and this condition, properly speaking, dwells in the will, not in the intellect. For the intellect is able merely to point out a necessity existing in the object itself, and if such a necessity does not exist therein, the intellect cannot impart it [to the object]; whereas the will endows [the object] with a necessity which did not formerly characterize it; and, in the matter of justice, for example, it causes a thing to be of a given importance; and again, in connexion with other virtues, it creates a necessity for acting here and now, which would not exist under other circumstances and per se.

The third. The third condition consists in the fact that lawmaking is an act of jurisdiction and of superior power, a matter upon which I shall

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comment below.15 Consequently, it is (so to speak) the use of a form of dominion; and use is an act of the will, particularly the use of dominion, which is a free act.

The fourth. The fourth condition consists in the fact that law is an act of legal justice. For the prince, when he makes law, should have regard above all for the common good, which is a matter pertaining to legal justice. And such justice is a virtue of the will, although it may require the direction of prudence, a requirement which is common to all the virtues of the will. From this it follows simply that prudence is in the highest degree necessary to lawmaking, as is rightly demonstrated by the grounds supporting the first opinion; but it does not follow that this must be a formal act of prudence; even as just distribution and right choice depend upon prudence, while nevertheless they constitute formally an act of the will operating through the medium of distributive justice or of some other moral virtue.

16. One may adduce as a final argument the fact that it is possible, in the light of the remarks I made when setting forth the first opinion, to understand how difficult it is to designate the act of the intellect that constitutes law; whereas it is easy to make such a designation in the case of the will. For the will of a superior to bind a subject to a given act, or—what is equivalent—to set a given matter within the sphere of obligatory virtue, is well denoted by the term ‘law’. This is true, both because of all the facts that we pointed out in connexion with the characteristic properties of law; and also because nothing antecedent to this will can have the force of law (a matter on which we have also touched), since it cannot induce necessity, while all that is subsequent [to the said will] is rather the sign of law that has already been conceived and established in the mind of the prince, since even the mental locution itself is only a mental sign.

To these fundamental statements, Bartholomew Medina could have made no answer other than a denial that a will to bind on the part of the prince is necessary for lawmaking, and for binding through law.

17. The doctrine of B. Medina concerning the will to bind, is assailed. This answer, however, is apparently a denial of what the other authors of the two opinions consider as a certainty; unless perhaps, there is some ambiguity in the wording. For it is a certainty that, in the case of these moral

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effects which depend upon the will, the agents do not act without intention or in excess thereof; but binding by means of law is a moral effect and one which depends upon the free will of the lawmaker; therefore, in order that this binding effect may be accomplished, intention and will on the part of the legislator are necessary, for otherwise, the said effect would take place without intention, an inacceptable conclusion.

The truth of the minor premiss is self-evident, and the same author (B. Medina) accordingly admits that law requires the concurrence of the will; while the major premiss is commonly accepted by the theologians, and, what is more, by the jurists. It is in this sense that they make the statement (Decretals, Bk. III, tit. V, chap. xxxviii) that the acts of agents do not operate in excess of their intentions.

This conclusion, moreover, is made manifest by a process of induction, since it is for this reason that excommunication imposed without intent to bind is not binding, and absolution given without intent to absolve does not take effect, the same being true with respect to the other Sacraments; and in like manner, a vow or a marriage or a similar act, engaged in without intent, is not valid. The reason for this invalidity is the fact that all the virtue of such actions flows from or through the medium of the will. And again, it is the will that confers being as though it were the form. For an external act performed without intent is not, from that standpoint, a true moral act, but rather one that is feigned.

18. To will to command, and to will not to bind, are incompatible intentions, repugnant [to reason], unless ignorance is involved. Similarly, in the case of vows, the intent to vow, and the intent not to bind [oneself], are incompatible. Wherefore, with respect to the example of the vow, it is in my opinion certain that the said vow is not binding if it was made without intent to bind; a point which I have brought out elsewhere (De Religione, Tr. VI, chap. iii).16 However, just as in the case of vows, a situation is frequently conceived of, in which some one vows with the intention of vowing and has at the same time the intention not to bind himself, even so B. Medina conceives of a similar situation in the case of a legislator who has the will to command and not to bind. Under

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those circumstances, says Medina, the legislator nevertheless does bind. However, unless ignorance is involved, such intentions are incompatible and involve a [mutual] contradiction, when the first intention is to vow, or to command, in very truth and not fictitiously. For willing to command is nothing more nor less than willing to bind, or at least, willing to indicate a will to bind; and the same is true in due proportion with respect to vows. If, on the other hand, the intention is not of the sort described, but is simply an intention to command or to vow outwardly, then doubtless the result is nil, and no true law is decreed, nor is any true vow made. For it is certain that a fictitious promise that does not bind can be made; but this sort of promise can occur in no other [than a fictitious] way. In due proportion, the same holds true of precepts; and therefore, if it were known to a subject that his superior had not the intention of binding, although he might give utterance to words of command, that subject would certainly not be bound; a point on which [the authorities] agree, with respect to the case of excommunication above mentioned. Again, and conversely, we have the words of St. Thomas, who says (II.–II, qu. 104, art. 2) that the will of a superior, in whatsoever fashion it may become known to his subject, is a kind of precept; a statement which cannot be understood save with reference to this will to bind.

19. In the case of an oath there may exist, together with an intent to take the oath, the intent not to bind oneself. In the case of oaths, however, the principle is not altogether the same. For it is possible that one may have the intention of taking an oath, that is, of calling God to witness, and may nevertheless intend not to bind himself; so that if, under such circumstances, an obligation does arise (and this is a debatable point), it results not from the personal will, but from the natural precept whereby every individual is bound to render true that statement which he has called upon God to witness. This fact I have elsewhere (De Religione, Tract. V, bk. II, chap. vii)17 discussed at length.

On the other hand, the obligation imposed by the law cannot arise save from the will of the lawmaker; and therefore, an act of that will is necessary. Thus Gabriel has rightly said (on the Sentences, Bk. III, dist. xxxvii)

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that, howsoever well the will of a superior may be made known, no obligation results unless he wills that his inferior shall be bound by that will. But my assertion18 contained this reservation: ‘unless … there is some ambiguity in the wording.’ For it may not be necessary that the lawmaker should conceive directly and expressly of the obligation of the subject and should be directed toward it by his will, since it may suffice if he intends, for example, to command that a given thing shall be of a given degree of importance, or that a particular act shall be part of the necessary subject-matter of temperance, or if he vaguely intends to command in so far as he is able. But these [modes of willing] involve only slight differences; since every one of them includes the intention to impose a binding obligation, and since [actually] intending not to bind is wholly repugnant to them all, unless the agent is absolutely ignorant of what he wills. And in that case, this ignorance itself would prevent the existence of an entirely true will to bind, or—consequently—of a true law; a point which I made in connexion with the similar matter of vows. In so far as concerns the necessity for such willing, then, this second opinion is undoubtedly the true one.

20. The third opinion: affirming that law is composed of both acts. The arguments which we have advanced in favour of [each of] these opinions, thus seem to indicate that the act of the intellect and that of the will are both necessary for law; so that a third opinion may be held, according to which law is composed and compacted of the acts of both faculties. For in these moral matters, one need not seek a perfect and simple unity; on the contrary, that which is morally a unity, may be composed of many elements that are physically distinct and that are of mutual aid. So it is, then, that for law there are two requisites: impulse and direction, or (so to speak), goodness and truth; that is to say, right judgment concerning the things that should be done and an efficacious will impelling to the performance of those things; and therefore, law may consist of both an act of the will and an act of the intellect.

This opinion, indeed, is usually attributed to Gregory of Rimini (on the Sentences, Bk. I, dist. xlviii [Bk. II, dist. xxxv,] only qu.). Nevertheless, he does not there discuss this matter, nor does he make any other statement

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than that he who acts out of harmony with God’s will and good pleasure, acts in opposition to the eternal law. In this connexion, Gregory cites Augustine’s assertion (Against Faustus, Bk. XXII, chap. xxvii) that the eternal law is the reason or the will of God, an assertion in which Augustine lays down no definite decision [regarding the two faculties]. Gabriel (ibid., Bk. III, dist. xxxvii, only qu., at beginning), more definitely upholds the opinion in question, when, after saying with regard to the external law (that is, with regard to law as it exists in the subject) that it is ‘a true sign making known to the rational creature that right reason which dictates that he is bound, etc.’, he declares that [the said law] ‘is the dictum of him who dictates or binds, etc., for the purpose of indicating that the right reason of the one who commands, together with his will, is the basis of the binding obligation incumbent upon the inferior; that is to say, the force by which the inferior is bound’.19 But the law is the true basis of the obligation; and therefore, Gabriel holds that in the prince himself the law is the reason of the prince combined with his will, and furthermore declares that this will is a will to bind the subject, as he has stated above.

Wherefore, just as free will is wont to be defined as a faculty of the will and of the reason, so law, which is customarily called the free will of the prince, may not improperly be considered an act of each of the two faculties.

21. It may also be added that, although the term law (lex) in its complete and adequate sense embraces both acts, nevertheless, from another standpoint, the act of the will and that of the intellect may each be spoken of as law, under diverse aspects. The words of Augustine in the passage above-cited (Against Faustus) are not out of harmony with this manner of speaking, and the passage is interpreted accordingly. For if one has in mind the moving force in law, so that law is said to be the power in the prince which moves and makes action obligatory, then, in that sense, it is an act of the will. If, on the other hand, we are referring to and considering that force in law which directs us toward what is good and necessary, then law pertains to the intellect. Moreover, it appears to consist in an

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active judgment and—in so far as it exists within the prince—to follow upon, not to precede the will. To be sure, it appears to do so, not after the fashion of an impelling act that is not a judgment (a view which has been sufficiently disproved), but after the fashion of an active judgment in which the prince, having issued his decree, decides that a given act absolutely must be performed by the subjects, to whom the said decree should therefore be made known. For I have in the preceding Chapter expounded the fact that, in the mind of the prince, this judgment follows upon the willing; so that, in this sense, it may be said that the law is written in his mind, which is the source of every external law. The similar judgment which takes place within the subject will be (so to speak) a law derived from that law which exists within the prince.

22. A definite judgment is laid down with regard to the whole controversy. The opinions above set forth are credible, and the one last stated seems sufficiently acceptable, as well as reasonable. However, in order to pass some judgment on the question as a whole, we shall set aside the natural law, and therefore the eternal law, also, [for separate consideration,] since they involve a special difficulty with regard to this very point, namely: whether and in what way they have the true and proper nature of law; a matter of which we shall treat in the following Book.

The present controversy, then, simply concerns law as it is constituted through the will of some superior. With respect to this form of law, it is certain either, that it consists of an act of the reason and an act of the will or, at least, that it assuredly does not exist apart from both of them; in such wise that, if it consists of one of the two only, it is nevertheless intrinsically dependent upon the other. For this fact is proved by all the arguments adduced in support of the first two opinions.

23. From this, indeed, we draw a second inference, namely, that it is not possible to give efficacious proof with regard to the manner of speaking adopted for either of those opinions. For the evidence adduced in support of the first opinion proves merely that law is not made without the guidance of prudence. Therefore, when the philosophers cited in that connexion attribute law to the reason, they refer, not to an act of the intellect resulting in the prince from the will whereby he chooses to bind his subjects, but to a judgment which precedes, directs, and (as it were) regulates that will. For

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the assertion made by them is simply that the will of the prince does not suffice to make law, unless it be a just and upright will; so that it must have its source in an upright and prudent judgment. As to this judgment, it is clearly not law, if it is considered in itself and as prior to the [act of] will. Accordingly, these philosophers call law right reason, having regard to its root; just as Cicero, On Laws (Bk. II, chap. iv), has said that virtue is the right reason of life.20 However, the arguments advanced in defence of this opinion, have been answered in the process of confirming the second opinion. But the evidence adduced in support of the latter merely proves, strictly speaking, that the binding obligation imposed by law is derived from the will of the legislator. For this suffices in order that it may be said that he who observes God’s law is doing God’s will, or acting in accordance with that will; and it suffices also to allow of the converse assertions. However, the arguments set forth in behalf of this opinion are, to my mind, more convincing if we assume that law is that act of the prince which of itself and by its own force creates an obligation and binds the subject. It may, indeed, be objected that the term ‘law’ (lex) refers, not to a binding act, but to the sign of such an act, or to the act of the intellect from which the said sign is proximately derived.

24.21 The assertion that law is an act of the will, is better understood and upheld. Wherefore, and thirdly, I add that, with regard to the essence of the matter, a more intelligible and more easily defensible assertion is this: law in its mental aspect (so to speak), as it exists in the lawmaker himself, is the act of a just and upright will, the act whereby a superior wills to bind an inferior to the performance of a particular deed. I find a proof of this assertion in the arguments advanced in support of the second opinion. For though such an act of the will cannot take effect in the subject unless it be sufficiently propounded to him, nevertheless this act of propounding is an application of the cause that creates obligation, rather than the true cause and basis of obligation.

25. With respect to the application of the term, ‘law’ (lex) signifies primarily the external rule, and the sign [thereof], of the person commanding. Lastly,

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however, I assert, with respect to the application of the term ‘law’ (lex), that it seems to have been used primarily to denote the external rule of the person commanding, and the sign making manifest his will. For it was in this sense that Aristotle (Ethics, Bk. X [, chap. ix, § 12]) declared law to be a rule emanating from a certain wisdom [etc.]; and that he elsewhere (Rhetoric to Alexander) speaks of it as the common wish of the people, set down in writing. Isidore, too, assumes this to be the case, when he says that lex is derived from legendum (that which is to be read, &c.), and should be in written form.

According to this acceptation of the term, then, one may well defend the view that law, as it exists within the prince, is that act of the intellect whereby he proximately dictates the external law, or that act which is by its very nature suitable for the dictation and manifestation of this [external law].

For, just as the external law is in a sense a proximate rule for the will of the subjects, even so, in due proportion, the law which is written (as it were) in the intellect of the prince, is a rule for this same will of the subject, one from which the rule of external law is proximately derived when it is set forth to the subject. However, it is derived, as the saying goes, in the form of another intimation or impelling force; yet this intimation is nothing more nor less than the external locution that is directed and (so to speak) dictated by the intellect of the prince, through that judgment which his will has already approved, or in so far as that locution is derived from the said [intellectual] act as already defined and decreed through the volitional act of the same prince; a point which is made sufficiently clear by what we have said above.

CHAPTER VI

Is It Inherent in the Nature of Law That It Should Be Instituted for Some Community?

1. Having discussed the question of the general class in which law is to be placed, we should inquire into the distinguishing marks by virtue of which it acquires the [particular] nature of law. What these distinguishing marks are, we shall ascertain while explaining certain characteristic conditions

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which are necessary to the true nature of law. And at the same time, we shall explain the causes of law, since the true and intrinsic conditions characterizing law can have no better source than those causes; neither can the said distinguishing marks be understood or explained, without reference to the subject-matter, object and end of law.

It is inherent in the nature of law that it should be instituted for certain beings. In the first place, then, as to the essential nature of law, it is clear that law is instituted for a certain being or certain beings; for, in the words of Paul (Romans, Chap. iii [, v. 19]): ‘Now we know, that what things soever the law speaketh, it speaketh to them that are in the law.’ Thus, law essentially implies a certain habitual relation (habitudo) to those upon whom it is imposed; and consequently, in order to explain the essential nature of law, it is necessary to make clear the terms of this relationship.

Human beings alone are capable of [subjection to] these laws. We assume, moreover, that law should be instituted for human beings, since inferior creatures are not capable of [subjection to] true law (which is the topic under consideration), as has often been remarked; for they are not capable of moral acts. And the angels, although they are capable of [subjection to] the divine law, are nevertheless not included within the range of our present discussion, as I said in the Preface. However, the statements which we shall make with respect to natural and divine law may easily be applied, in due proportion, to the angels.

Law as we are treating of it must, then, be imposed upon human beings; and accordingly, every law may in this sense be called human, as I have remarked above,1 even though, to avoid ambiguity, it is not so called.

2. Is it inherent in the nature of law that it should be instituted for some community? These statements having been assumed to be true, there arises a doubt as to whether law can be instituted for one individual only, or whether it is inherent in the nature of law that it should be instituted for a multitude of men, or a community.

For we presume it to be a manifest fact that a human community is capable of [subjection to] laws and even stands in special need of them,

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since the arguments advanced in the preceding Chapter offer convincing proof of this assertion. Accordingly, it is also clear that, as a matter of regular and ordinary procedure, law is indeed instituted for some community, or multitude of men; a fact which is sufficiently evident through usage itself, and which will become still more manifest from what we have yet to say. The difficulty, then, consists in the question of whether or not the said fact is inherent in the nature of law.

The first and affirmative opinion. The first opinion as to this question is affirmative, namely, that only that precept is law which is instituted in general for all the persons included within a given community; whereas that precept which is imposed upon a single individual is not law. The foundation customarily adduced for this opinion is a passage in the Decretum (Pt. I, dist. IV, can. ii), taken from the Etymologies (Bk. I, chap. xxi [Bk. II, chap. x and Bk. V, chap. xxi]) of Isidore. In this passage, Isidore lays down various conditions for law and the last condition is, ‘that it shall have been written for no private benefit, but for the common advantage of the citizens’. This text, however, does not provide a compelling argument, since it is one thing that a law should be imposed upon a community, and quite another, that it should be imposed for the good or the advantage of that community. For it may be that a precept is imposed upon a particular individual and is nevertheless imposed with a view to the common good. Thus, Isidore, in the passage cited, is laying down a necessary condition, not with respect to the person on whom the law is to be imposed, but with respect to the end on account of which it is to be imposed, namely, the common good. This condition I shall explain in the next Chapter.

3. It may be objected that the condition in question, if so interpreted, had already been included under another, laid down by Isidore in the same Chapter, the condition ‘that law be just and righteous’; for law will not have these qualities, unless it is ordered for the common good.

But that objection is not valid; first of all, because many of the conditions that Isidore lays down in this Chapter are so related that one is included within another or inferred therefrom, and nevertheless all are added to the list for the sake of a more complete explanation. Thus, in the mere condition that law should be just, there are included the conditions that law should be [such that obedience] is possible and that it should be

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useful. For how will law be just, if [obedience thereto] is impossible, or useless? And nevertheless, these three conditions are separately enumerated.

Accordingly, with still more reason could this last condition have been added, in order to explain clearly the particular justice and rectitude which are required of law. For an act may be just and righteous, even if it be not directed to the common good; and it will suffice if such an act is not [positively] opposed to that good. But with respect to law, the additional requirement is made that, in order to be just, law must be ordered for the common good.

4. Neither, apparently, can there be any doubt as to the fact that this was Isidore’s meaning [Etymologies, Bk. V, chap. xxi], as is evident from that adversative expression, ‘written for no private benefit but for the common advantage of all’.2 For it is not impossible that a law should be imposed upon the community, yet imposed for private benefit, since tyrannical laws are possessed of both characteristics simultaneously. But Isidore speaks of the two qualities above mentioned as if they were mutually opposed. Therefore, he is not speaking of the community upon which the law is to be imposed, but simply maintains that, on whomsoever it may be laid, the law must be imposed for the common advantage.

It is in this sense, too, that St. Thomas (I.–II, qu. 90, art. 2) has interpreted the statement of Isidore. For, in the body of the article cited the whole argument of St. Thomas tends towards a declaration that the intention of a lawgiver in making a law ought to be directed towards the common good, since the common happiness should be a measure, and as it were, a first principle, by means of which the justice, utility and fitness of a law are measured. Wherefore, he concludes: ‘any other precept in regard to some individual work, must needs be devoid of the nature of a law, save in so far as it regards the common good. Therefore, every law is ordained to the common good.’ In these words St. Thomas would seem to indicate that law may contain precepts of an individual nature, provided that these precepts be related to the final end of law. Moreover, this passage in the

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text under discussion [Decretum, Pt. I, dist. IV, can. ii] was similarly understood by Archidiaconus, Dominicus de Sancto Geminiano, Torquemada and many persons to whom I shall refer in the next Chapter.

5. Secondly, this [first and affirmative] opinion is wont to be proved on the basis of a passage in the Digest (I. iii. 1) in which the statement is made that a law ought to be ‘a common precept’. Nevertheless, the word ‘common’ is also ambiguous; for, as Jason (on that passage, in the beginning [Digest, ibid.]) notes, together with Fulgosius, law may be termed a common precept for three [distinct] reasons: first, because it has been instituted by the common consent or authority; secondly, because it should be common to all; thirdly, on the ground that it serves the common good. However, in the above-cited law of the Digest, it is not stated that the second mode of being common is necessary in an absolute sense to the nature of law, or of a common precept. Wherefore, the Gloss on that passage [Digest, ibid.] refers to these alternative interpretations: ‘[the precept] is common, that is to say, decreed for the common advantage, or given in common to the whole body.’ Thus the first condition will suffice for the essence of law, even without the second.

Thirdly, the opinion in question may be proved from a passage in the Decretals (Bk. I, tit. II, chap. i) which says: ‘Let the statutes of the canons be observed by all’; assuming, consequently, that they should be imposed upon all. This text, however, is greatly weakened by the Gloss on the passage [Decretals, ibid.]; for, to the word ‘canons’, it attaches the comment: ‘general; for some canons are personal, and some are local.’ Consequently, there would seem to be no doubt that the statement in question is to be interpreted with suitable discrimination, that is, interpreted as meaning that the canons are to be observed by all to whom they are addressed, or upon whom they are imposed. But as to whether there are always a number of such persons in the case of each canon, or whether it is possible that there should be a canon constituted for the purpose of binding one person only, that is a point not dealt with in this Gloss.

6. The second opinion, which denies that it is inherent in the nature of law that it should be instituted for some community. Therefore, there may be a second opinion according to which, it is not inherent in the nature of law that it be imposed upon a community or multitude of men, although it

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may for the most part happen that law is thus instituted, since rules of conduct are ordinarily applicable to many persons in common. However, they may at times be constituted for this or that individual.

In behalf of this opinion, we may cite St. Thomas (I.–II, qu. 90, art. 2), in so far as he declares that an individual precept, when related to the common good, assumes the nature of law. Moreover, in the answer to the first objection, he brings out the same idea. And in answering the third objection, he lays down the general rule that a precept which is directed to the common good has the nature of law.

The Gloss (on Digest, I. iii. 1) upholds this view more expressly when it states that the law in question3 does not provide a definition of the term ‘law’, since there is some law that is not common. The same opinion is evident in another Gloss (on Decretals, Bk. I, tit. II, chap. i), wherein a distinction is made between general, and personal canons. Furthermore, this distinction occurs very frequently among the canonists as is clear from the words of Archidiaconus, Dominicus de Sancto Geminiano, and Torquemada (as cited above). The Gloss (on Digest, I. iii. 3) makes this same distinction, when it discriminates between law in general and special law (ius), declaring that the former is imposed upon the multitude, while the latter may be private. Other Glosses (on Code, X. xxxii (xxxi). 61 and 63) contain similar statements. Arguments [in defence of this negative opinion] may be based, first, on the two laws cited above [Code, ibid.]. For they are true laws, and nevertheless, they are decreed for certain special individuals. Secondly, the said opinion would seem to be expressly laid down in a law of the Digest (I. iv. 1, § 2), as follows: ‘Of these (namely, these laws), some are personal.’ Moreover, the same view is set forth in the Institutes (I. ii, § 6, word Plane). A third argument is the fact that the canons also distinguish private from public law, maintaining that the former should be imposed upon private persons, and the latter, upon the community. This we infer from two chapters of the canon law (Decretals, Bk. III, tit. XXXI, chap. xviii; and more extensively, Decretum, Pt. II, causa XIX, qu. ii, can. ii).

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7. This [negative] opinion is confirmed by reasoning. Finally, this [negative] opinion may be confirmed by reasoning. In the first place, it is reasoned that a just precept may be imposed upon a single subject, for the sake of the common good, and by virtue of the power to rule the commonwealth and its individual members; hence, such a precept will be of the same essential nature as a precept imposed upon many or upon all the members of that community; and therefore, it will be a true law. The proof of the first consequent is the fact that, with respect to the essence of a precept, it would seem to be an extraneous circumstance that this precept should be imposed upon one person only, or upon many; just as it is an extraneous circumstance in the case of heat that it should exist in one subject or in many, and extraneous in the case of speech that it should be addressed to one, or to many. The second consequent is proved as follows: the precept in question, if it were imposed upon many, would be law; therefore, it is also [law, when imposed] upon one individual, since it has indeed been proved to be of the same nature [in both instances]. And it can happen that this precept is imposed upon one individual and not upon many persons, owing simply to the fact that the necessity for it is found to exist in only one individual.

Secondly, one may reason thus: law is the rule of the moral actions of man, as has often been said; and not only the human community, but also individual men have need of this rule; therefore, law per se implies a relationship not with the human community, exclusively, but also with individual human beings.

Thirdly, law is made with reference to a person, and consequently with reference to a true person, not less than to a fictitious one; but on the contrary much more so, for a fiction always presupposes the truth which it imitates; and a community is a fictitious person, whereas an individual human being is a true person; therefore, an individual person is not less capable [of being the subject] of law than is a community.

Fourthly, when a law is established for a community, either it binds only the community, as such, or else it binds also the individual members of that community. The first alternative is not necessarily the true one; nor is such ordinarily the situation, as is self-evident. Furthermore, even if it were, then the community would be as an individual person, whence one

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would again conclude that a law may be made with respect to one person only. If, on the other hand, the second alternative is held to be true, from this fact, also, one would infer that it is possible for a law to be made for a single individual, if it is appropriate in regard to him and necessary only for him.

8. Preference is given to the opinion according to which it is inherent in the nature of law that it be made for a community. This controversy may depend, to a large extent, on the use of the term [‘common’]. However, the absolute statement should be made that it is inherent in the nature of law, as signified by this name, that it be a common precept; that is to say, a precept imposed upon the community, or upon a multitude of men.

This is the assumption made by Isidore and St. Thomas (as cited above, and in other places to be mentioned later). It is the teaching, too, of Panormitanus (on Decretals, rubric of Bk. I, tit. II), of Felinus (on Decretals, Bk. I, tit. II, chap. vi, no. 5), and of Jason and Fulgosius (on Digest, I. iii. I). For though they say that law may be termed a common precept in its habitual relationship (habitudo) to him who makes it, to the end for which it is made, and to those upon whom it is imposed, they nevertheless give sufficient indication4 that law, in the proper sense of the term, requires these three elements in conjunction, rather than separately. Antonio Gómez has expressed the same opinion in a passage (on Tauri., Law I, no. 5) where he lays down as a requisite for the nature of law the stipulation that it must be common, rather than particular, with reference to a given person. Other authorities, to whom we shall refer below, and in the following Chapter, have expressed themselves similarly.

9. This contention may be proved, first, by a certain process of induction. For the eternal and natural law are sufficiently common in character, as is clearly evident; the divine law, also (both Old and New) was laid down for communities: the Old Law for the Jewish people; the New for the Catholic Church and the entire world. And not only the law as a whole, but also its individual precepts, have been laid down generally. This is not to say that such individual precepts are laid down for each and every member of the community, since that is not necessary, nor is it

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pertinent to the nature of law; rather, it is to say that, even though there have been imposed, among the common precepts, laws which are binding upon such and such particular members, according to their [respective] functions and capacity, these laws are nevertheless always laid down in a general and common form. Furthermore, even the divine precept imposed upon Adam in the state of innocence was imposed not upon him solely and personally, but upon him as the head of all nature; and it would have endured always in that state, binding all persons, so that, to this extent, it had the true nature of law. A proof of this contention is the fact that, although God imposed the precept upon Adam alone, before He formed Eve (as related in Genesis, Chap. ii), nevertheless, Eve also was bound thereby (as is evident from Chapter iii of that same Book).

The precept that God imposed upon Abraham concerning the sacrifice of his son cannot, however, be said to be law, in the proper sense of the term, but must be termed [simply] a command in accordance with the usual manner of speaking.

10. With regard to the civil law, indeed, this point would seem to be made sufficiently manifest in a passage of the Digest (I. iii. 8). For there we find the statement: ‘Laws are made, not for individual persons, but in general terms.’ Proof of the same view, in connexion with canon law also, may be derived from a chapter of the Decretum already cited (Pt. II, causa XIX, qu. ii, can. ii), in that this chapter contains the assertion that the canons and decrees laid down by the Fathers are public laws. Moreover, the private law which is also mentioned in that passage is not canonical law, but one of a very different nature, as we shall observe. So it is, too, that Gregory IX, in the Preface to his Decretals, makes the following statement: ‘[…] law (lex) is promulgated for this reason, that the evil appetite may be restrained under the rule of ius, through which rule, humankind is instructed that it may live […] righteously.’ Aristotle, also, has said, in the Ethics (Bk. VI [, chap. viii]), that the faculty or prudence required for lawmaking is architectonic, or regal, since the principal act of this prudence is the making of laws, as St. Thomas (II.–II, qu. 50, art. 1, ad 3) has declared. Moreover, the said prudence looks to the community and is concerned therewith, so that law (according to the opinion of Aristotle) also looks to the community. Thus Aristotle has asserted (Art of Rhetoric,

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Bk. I, chap. iv [, § 12]) that, ‘it is on the laws that the safety of the State is based’. Again (Rhetoric to Alexander, Preface), he has said that law is, ‘reason as defined by the common consent of the State’, &c., assuming that it is established for the direction of that same community. Plato (Laws) often repeats this assertion; and all the philosophers express themselves similarly. Accordingly, Biesius (De Republica, Bk. IV [, section Leges]) says that, ‘Laws are public precepts of life which it behoves all persons to obey at all times’, &c. Therefore, according to the common usage of the laws (iura), the jurists and the sages, there is no doubt that the word ‘law’ (lex) refers to a public precept, imposed upon some community and not simply upon one or another single individual.

11. The same opinion is more fully confirmed in the light of the [other] properties of law. The foregoing may be further demonstrated in the light of the other properties of law. One of these is that law should be perpetual, as we shall show below;5 yet a precept for one person only cannot possess this attribute, since such a person is not perpetual; whereas the community is perpetual, at least through a process of succession so that, in relation to the community, law in the true sense is possible. Neither is it of any consequence that even a precept imposed upon the community may be temporary. For this fact gives rise, at most, to the conclusion that not every precept imposed upon a community is law; a point which we shall consider later, but which does not interfere with the necessity that every law should be imposed upon the community, if it is to be perpetual. The same truth may be established by assuming that this perpetuity exists with respect [also] to the lawmaker. For it is inherent in the nature of law that it shall not depend upon the life of the lawmaker, as we shall demonstrate below;6 and this condition can exist only in the case of laws that are common, since an individual precept, imposed solely upon a single individual, lapses with the death of the person who lays down the precept, or it lapses when that person has been removed from his office, as common opinion and custom testify. The reason for this is a matter of which we shall treat

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below.7 Neither has it any bearing upon the point under discussion, if a precept decreed for the community is annulled by the death of him who lays down the precept, provided (as I shall point out, later8) that this precept is not laid down in the form of a law. For from this annulment, it would follow merely that not every precept imposed upon a community is law; and this is in agreement with the assumption that a law ought to have that perpetuity and that independence of the person imposing it, which it does not have unless it is a precept imposed upon a community.

It will be objected that such an assumption is applicable only in the case of human laws; since in the case of divine laws, whether natural or positive, the Lawmaker cannot pass away or suffer change, and since such laws depend always upon Him in regard to their institution and persistence, [so that their perpetuity is not dependent upon the perpetuity of those subject to them]. I reply that this objection is without force. For it is in view of this fact—namely, that divine laws have clearly been laid down for the community—that we have accordingly made the additional observation above set forth,9 regarding human laws, in order to make it clear that every precept, whether human or divine, possessed of the stability which law by its very nature requires, is to be considered as relating to some community.

Thus the precept imposed by the paterfamilias upon his slaves, or even his children, or indeed, his whole household, is not law, as St. Thomas declares (I.–II, qu. 90, art. 3, ad 3); either because it has not been instituted for a sufficient community, again as St. Thomas asserts in that same passage, or else because it has not been instituted by means of a true compulsory authority, this being necessary for [the constitution of] law, a fact that is pointed out by Aristotle (Ethics, Bk. X, last chapter [, § 12]).

12. Finally, proof of the opinion in question may be drawn from another attribute of law, namely, the fact that law is the rule and measure of an action from the standpoint (so to speak) of its subject-matter and of the mean of virtue. For in this sense, law is said to be the rule of the just and of the unjust, as I have noted above,10 referring to Basil and to other authorities. And in like manner, that which is laid down by means of law

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is called by Aristotle (Ethics, Bk. V, chap. i), legitimate or legal justice, as St. Thomas has observed (I.–II, qu. 90, art. 2). Law, then, is a kind of rule establishing or pointing out, in regard to its own subject-matter or the operation with which it is concerned, that mean which is to be preserved for the sake of right and fitting action; and this rule is in itself universal, having relation to all persons, in due proportion; therefore, law is in itself general, and consequently, in order that any law may be law in a true and perfect sense, it must possess this characteristic.

If, on the other hand, there are certain precepts which do not possess it, either they are not laws at all, or else—assuming that they are considered as being laws—they are thus considered to the extent that they do in some wise partake of the said characteristic. We may also add that it pertains to this general or common character of law that the latter shall be instituted universally, without regard for persons and without unjust exceptions, as is indicated in the Decretals (Bk. I, tit. II, chap. vi). Many expressions, too, in the laws there cited would seem to point to the same conclusion, presupposing the existence of the first conditions, or universality of law, and adding this last condition as necessary to the justice of law, a matter concerning which we shall speak a little later.11

13. The contrary opinion is refuted by means of arguments. However, the foregoing explanation may be expanded by answering the arguments which have been advanced [to the contrary].

Of these, the arguments first set forth are easily disposed of. For we admit, with respect to the first, that Isidore and St. Thomas, in the passages cited, did not seek to treat directly of the condition in question; rather, they assumed its existence. Accordingly, the same St. Thomas, when expounding a passage in Aristotle (Commentary on Ethics, Bk. V, chap. i, lect. 2) which he also cites in the article above mentioned [I.–II, qu. 90, art. 2] says, more clearly, that those things are called legally just, which are productive of happiness in relation to the political community for which the law was established. In this passage, he is speaking of human law, but the same reasoning applies, in due proportion, to the remaining forms of law. With respect to the other laws, and the objections brought

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against them, our reply is that, though the words are not in themselves so convincing but that they may be weakened through some interpretation or evasion, nevertheless, when taken in conjunction with different laws and with the interpretations of wise authorities, they possess considerable force for the confirmation of the truth above set forth.

14. We turn, then, to the reply to the later arguments.

First, with respect to St. Thomas, we assert that in the passages cited from his works, he never excludes the condition which we are discussing, and that he speaks of the individual precept not in relation to the person upon whom it is imposed but in relation to the particular deed with regard to which it is established. As to this deed, he declares that it must contribute to the common good, and that, if the precept laid down for the deed does possess this quality, it will have the nature of law—provided, at least, that it possesses the other characteristics required for law.

With respect to the Gloss, however, and the remarks of other Doctors therein cited, our reply is that these should be interpreted or admitted in accordance with the laws to which those Doctors allude, and that if they intended to convey some other meaning, their opinion is not to be approved. Thus, in regard to the two laws of the Code (X. xxxii. 61 and 63), it is true that in a certain sense they deal with the welfare of private individuals named in them; but nevertheless, in so far as they involve any command, they are instituted not for those individual persons but for the community and for all persons who are subject to the lawmaker, persons whom they bind to the observance of a particular immunity enjoyed by the aforesaid individuals. And in like manner, we shall explain in Book VIII12 that a privilege, although it may seem to be of an individual nature, can have the character of law. I add, furthermore, that in the case of the laws under discussion a favour is granted not only to the individual persons therein named but also to their successors in perpetuity, so that these laws partake of a perpetual and common quality; for the families involved might have constituted a large portion of the community and possibly a portion of the most important group. Accordingly, the laws in question, in spite of the fact that they may appear to be special when viewed in one

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aspect, are in their own way general, even though they are never established save by way of constituting a privilege, as is evident from usage.

15. To the second argument, drawn from law 1 and section 1,13 I reply that laws of privilege are there called personal, being so designated by reason of the proximate advantage toward which they are directed; while they nevertheless do relate to the community in a certain sense, that is, with respect to the persons for whom they lay down a command; a point which we have just explained, and shall discuss more at length when treating of privileges.14

What private law is; and why it is so called.15 The reply to the third argument is this: the term ‘private law’ is to be taken, in those canons, in a very different sense. For the name ‘private law’ is therein given, either to a vow made by the special inspiration of the Holy Ghost, or to the divine inspiration itself through which man is specifically called to some higher good. This appellation is metaphorical; for such ‘law’ is not law, in the proper sense and of the kind which we are now discussing. Rather, it is so called because it is written in the heart and partakes of some of the effects of law, as we have said elsewhere in treating of vows.16

16. As for [the argument drawn from] reasoning, the reply is easily made on the basis of the foregoing remarks.

Law and precept are not interchangeable. What is in law that is not in precept; and how the two differ. For, with respect to the first reason adduced, it is evident from those remarks, that precept and law are not interchangeable; since, though every law is a precept, not every precept is a law. On the contrary, a law must satisfy certain special conditions, among which is the requirement that it shall be a common precept, in the sense expounded above.17 Furthermore, in so far as the moral aspect is concerned, it is not necessary to inquire minutely as to whether precept and law are essentially

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distinct; since, [from the moral standpoint,] granting that they may not be physically distinct with respect to the natural species of acts involved, it is sufficient that they should be distinct morally, or (as it were) in their artificial being. For law is (so to speak) a certain artificial product resulting from a given act with the accompaniment of given circumstances, conditions or habitual relations, without which it is not true law, even though it may be of the same nature with respect to the act of commanding. It may also be added that legislation, with reference to the act of prudence from which it proceeds and the righteousness which characterizes it as it issues from the legislator, possesses a special kind of virtue distinct from that of an individual and private precept, so that, in this sense, it may be called law, being thus rendered essentially distinct from a private mandate.

17. In what sense law is said to be common, and instituted for the community. To the first confirmation, we reply that it is true that law implies a relationship with individual persons, in so far as they are parts of the community upon which the law is imposed as a rule of action, so to speak.

The reply to the second confirmation is this: law is called general, not because it is necessarily imposed upon the community as a community and as a mystical body; but because it should be propounded in general terms, such that it may apply to each and every person, in accordance with the exigencies of the subject-matter, in which sense it is true that law is instituted as a rule for persons who are real, not simply fictitious. It should be added, indeed, with regard to the third confirmation, that ordinarily law is framed for the community not collectively, but distributively, that is to say, framed to the end that it may be observed by each and every member of the community, in the proper distribution, according to the nature of the law; for this provision is always implied.

However, a law may sometimes be established for the community itself, viewed as such; that is to say, it may be established by forbidding or prescribing an act which can be performed only by the community acting as a community; a fact which is made evident by the statutes of various societies, universities, [cathedral] chapters, colleges, &c., providing for certain points in connexion with the public and common acts of that mystical body. For such laws are true laws, provided that they satisfy the other requisite conditions, even though their commands be laid upon one

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individual community only, if that community is a perfect one; as I shall presently explain.18 This is true because, in the first place, although it may be called a fictitious person, it is a community in an absolute sense, has the perpetuity required of law, and relates directly to the common good. Secondly, moreover, the individual members of that community are always bound through such a law to refrain from operating or co-operating in opposition to it.

18. Of what nature a community must be, in order that it may be capable of [subjection to] law in the strict sense. But some one will inquire, and not without reason, what must be the nature of a community that is capable of [subjection to] law in the strict sense.

I reply briefly that different kinds of community suffice or are required in accordance with different kinds of law.

How many different kinds of community there are. In the first place, then, a distinction may be made with respect to communities. For there is a certain natural form of community, brought about solely through the conformity [of its members] in rational nature. Of this sort is the community of humankind, which is found among all men. Another form, however, may be termed the political or mystical community, constituted through a special conjunction in the case of a group that is morally a unit. The natural law relates to the former type of community, this law being revealed to every man by the light of reason; since it is established, not for any one individual as such (not because he is Peter, for example), but for each person as a human being. This observation may be made in regard both to the purely natural law, and to the supernatural law, in so far as the latter is connatural to grace.

The latter form of community may be subdivided.

For certain [examples of it] may be thought of as additions to nature, yet brought about not by human but by divine law, in that they have been established by God Himself, under some head designated by Him, and with a unity directed toward some supernatural end. In former times, the Jewish synagogue was a community of this kind; and now, a much more perfect example is the Catholic Church, which was founded not for

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one or another people but for the whole world, by Christ Himself, under one and the same faith, which was to be professed through certain signs established by Christ and under obligation of obedience to one [visible] head to whom He Himself entrusted His representation upon earth. For this sort of community, then, positive divine laws are by their very nature primarily made. For example, the Old Law was given to the Jewish people, and the law of grace, for the Universal Church. Canon laws, too, are made for this same body, though not all of them are established for the Universal Church at large; rather, they are established in accordance with the intent or the power of the person who decrees them, as we shall see later.19

19. In addition to these forms of the community, there is that which has been humanly assembled or devised, and which is spoken of as a gathering of men who are united under the bond of some law. Examples may be drawn from the Digest (XII. i. 27) and from the Decretals (Bk. V, tit. XXXI, chap. xiv), and the Gloss thereon. These passages make it clear that a multitude of men does not suffice to constitute a community, unless those men are bound together by a particular agreement, looking toward a particular end, and existing under a particular head.

So, also, Aristotle has said (Politics, Bk. III, chap. x [chap. ix]) that a state is a multitude of citizens who have, indeed, a mutual bond of a moral nature. This kind of community, moreover, is wont to be divided by the moral philosophers and the jurists into perfect and imperfect. A perfect community is in general defined as one which is capable of possessing a political government; and this [type of community], in so far as it is such, is said to be self-sufficient within that [political] order. Thus Aristotle (ibid., Bk. I, chap. i) and St. Thomas (I.–II, qu. 90, art. 2) have asserted that the city state is a perfect community, and that, a fortiori, a kingdom or any other higher body or community of which the city state is a part will be a perfect community. For there may be a certain latitude in [the definition of] these communities, and even though individual ones, viewed in themselves, may be perfect, nevertheless that community which is part of another is in this respect imperfect; not in an absolute sense, but comparatively or relatively speaking. Again, among the communities in question,

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some are called real or local, because they are enclosed within certain real or local boundaries, as in the case of a city state or of a kingdom; while others are called personal, because they are considered in connexion with persons rather than with localities; as in the case of any religious community, for example, or confraternity, or similar group, which may also be perfect communities if they have perfect government and a moral unity. On this [personal kind of community], one may consult the jurists (Digest, III. iv. 1 et seq.20 and XLVII. xxii).

20. What is an imperfect community? The term ‘imperfect community’ may, indeed, be applied not simply in a relative but in an absolute sense to a private household over which there presides the paterfamilias. This possibility has been noted by St. Thomas (I.–II, qu. 90, art. 3, ad 3) and by Soto (thereon; and De Iustitia, Bk. V [Bk. I], qu. i, art. 2) and it may be inferred from Aristotle, in the passage quoted above.

One reason, to be sure, is that such a community is not self-sufficient, as we shall presently explain. A further reason is that in such a household the individuals are not united as the principal members for the composition of one political body, but merely exist therein as inferiors destined for the uses of the master, and to the extent that they are, in some sense, under his dominion. Therefore, a community of this sort, per se and within its proper limits, is governed not by a true power of jurisdiction but by the power of dominion, so that it partakes, according to the diversity of dominions, of diverse kinds of command with regard to diverse [persons]. For there is one right, or dominion, so to speak, held by the paterfamilias over his wife; another, over his children; and another, over his servants or slaves. Consequently, neither [a private household] possesses a perfect unity or uniform power, nor indeed, does it enjoy a truly political government; and therefore, such a community is called imperfect, without qualification.

21. Human laws ought to be framed only for perfect communities. Accordingly, this distinction having been assumed to exist, it should be stated that human laws may properly be laid down for any perfect community, but not for one that is imperfect.

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The first part of this statement is proved by the fact that every perfect community is a true political body, governed by means of its own jurisdiction, which has a coercive force that is legislative. Furthermore, the precepts and rules of living propounded for such a community, if they fulfil the other conditions required for law, may constitute legal justice and the mean to be observed in every matter of virtue befitting the said community; and therefore, these rules or precepts will have the true nature of law. Finally, even as that community is perfect, just so a precept imposed upon it may in an absolute sense be called a common precept, and therefore, a law.

22. The second part [of the same statement] is suggested with sufficient force in Aristotle’s Ethics (Bk. X, last chapter) and by a passage in St. Thomas (I.–II, qu. 90, art. 3, ad 3), in that these authorities maintain that a community consisting of one household is not sufficient [as a source] for law, in the proper sense of the term. The reason supporting this doctrine may be drawn from Aristotle’s argument that there is not found, in such a community, the true jurisdiction, nor the coercive force, required in the case of a true lawgiver. The reason, in turn, on which this contention is based, is the quasi-natural imperfection of that community, inasmuch as the latter is not in itself sufficient to attain human happiness in the mode in which such happiness is humanly attainable. Or, to put the matter more clearly, the parts of the said community do not furnish one another sufficient support or mutual aid, such as human society requires for its own ends or its own preservation; consequently, this kind of community is subordinated—naturally, as it were—to a perfect community, as the part is subordinated to the whole; and therefore, legislative power dwells, not in such a community, but only in one that is perfect. This reasoning properly refers to civil laws, but may be applied in due proportion to those which are ecclesiastical; since ecclesiastical legislative power, although it is derived not from the community but from Christ, is nevertheless communicated and distributed to the human community, in a fitting and properly proportioned manner.

23. Objection. An objection to the foregoing remarks will, however, be raised. For it follows from what has been said that law in the true sense of the term cannot be established [even] in a perfect community,

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if it is established solely for a particular part of that community; but this would seem to be a false deduction; therefore, … The inference is clearly true, because a decree relating to a single household or an imperfect community is not law, since that imperfect community forms part of one that is perfect; and therefore, the same will be true of any part of a city state, for it, too, is an imperfect community and part of a perfect community. The minor premiss, indeed, is proved by the fact that it is not proper to the nature of law to be binding upon all the members of a state; therefore, it may be binding [only] upon a part of them, and nevertheless be true law.

With respect to this point, some jurists assert that law made by the prince in order to bind one part of the state—for example, a fourth part only—is not a true law and has no binding force. So Angelus de Ubaldis has declared; and he has been quoted and followed by Jason (on Digest I. iii. 1, no. 2), who bases his opinion solely on the principle that a law should be a common precept.

24. Solution. Nevertheless, I reply that it is one thing to speak of such a law from the standpoint of its justice or injustice, that is, its regard for persons, and another thing, to speak of it from the standpoint of the lack of an adequate community on which it may be imposed.

For we are not treating, at present, of the former question; though even in that respect we cannot say that the said law is intrinsically bad, or unjust; since there may exist at times a sufficient cause and reason for imposing a burden upon one part [of the community], and not upon another part, either on account of the site and location, because the state has need of the service in question in that particular part, or on account of the condition of the particular persons involved, as is clear from the laws of taxation.

The second question, however, is pertinent at this point. With regard to that question, we assert that it is not inherent in the nature of law that it should necessarily be made for the entire community taken as a whole, so to speak. For there may reside in a portion of that whole, a community that is in itself sufficient, and a basis that is sufficient, for the perpetuity of a law and for the derivation of the latter from a political jurisdiction pertaining directly to the common government.

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Moreover, this may occur in various ways. In the first place, it may occur if a law is made with respect to a particular function or employment, with the result that it applies to particular workmen, and to no other persons. Secondly, it may occur if the law is made for persons of a certain kind or condition—for example, plebeians or nobles, descendants of the Hebrews, converts from among the Saracens, or any group of a similar nature. Thirdly, the law may be made in behalf of the inhabitants of a given part or quarter of the city state and not for any other persons, in such a way that it is enacted, not only with reference to those who are at the time residing in the said regions, but in perpetuity, to the end that it may endure for all their descendants without distinction.

For any one of these modes of generality will suffice to satisfy the essential requirements of law, provided that the requirements of justice are observed: since the first mode is absolutely general, within its proper field of distribution; the second partakes of the same general nature, if we assume that its range of application is just; while the third is also impartial by its very nature with respect to all persons, since it is not impossible for any one to dwell in the region specified. And similar arguments may be applied to any other law of this kind.

CHAPTER VII

Is It Inherent in the Nature of Law That It Be Enacted for the Sake of the Common Good?

1. The other characteristic conditions of law depend largely upon this characteristic.1 We have therefore given it the second place [in our discussion of the said conditions], in spite of the fact that Isidore placed it last. Moreover, we shall at the same time explain the intrinsic end of law.

It is inherent in the nature of law that it be enacted for the common good. With respect, then, to the question above set forth, there is no dispute among the various authorities; on the contrary, this axiom is common to them all: it is inherent in the nature and essence of law, that it shall

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be enacted for the sake of the common good; that is to say, that it shall be formulated particularly with reference to that good. So St. Thomas maintains, in a passage (I.–II, qu. 90 [, art. 2]) commented upon by Cajetan, Conrad Koellin, and other modern authorities; and also, by Soto (De Iustitia, Bk. I, qu. i, art. 2), Castro (De Potestate Legis Poenalis, Bk. I, chap. i), Antoninus (Summa Theologica, Pt. I, tit. XI, chap. ii, § 1 and tit. XVII, § 3), as well as all the Summists on the word lex. Navarrus, too (in his commentary On Ends, No. 28), brings out this point well; as does Gregory López (on Las Siete Partidas, Pt. I, tit. i, law 9), in which latter passage Alfonso, King of Spain, requires that his own laws shall fulfil this very condition. The same view is held, moreover, by all the commentators on civil law (Digest, I. iii. 1), who assert that law should be ‘a common precept’, that is to say, one ‘established for the common advantage’, as the Gloss on the above-cited law of the Digest explains. Bartolus, Jason, and others follow the Gloss on this point. Isidore (as cited in Decretum, Pt. I, dist. IV, can. ii) has set forth the doctrine more clearly, as I have explained in the preceding Chapter; and he is followed by the other canonists thereon.

2. Furthermore, the same truth may be inferred from the words of Aristotle, who says (Ethics, Bk. III, chap. vi [Politics, Bk. III, chap. ix, 1280 A]) that the end of the state is to live well and happily. Accordingly, he adds [ibid., 1280 B]: ‘Those who have a care for the good government of the state, engage in public deliberation on virtue and vice’;2 of course, by means of laws. Thus Aristotle subsequently (ibid., Bk. IV, chap. i, 1289 A) declares that, ‘The laws should be adapted to the commonwealth, and not the commonwealth to the laws’. Similarly, Marsilio Ficino, in connexion with the argument of Plato’s dialogue, Minos, draws from the latter’s opinion (as it is expressed both there, and in the works on Laws and on the Republic) the following description of law: ‘It is the true essence of government, and guides that which is governed to the best end, through fitting means.’ Furthermore, Plato, in this same dialogue [Minos, 314 D], calls that law noble, which establishes that which is right, in matters (ordine) of state and

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in the plan of government.3 Again in the dialogue, Hippias, or The Beautiful (shortly after the beginning [284 D]), he says: ‘In my opinion, indeed, law is established for the sake of its utility, and legislators give law as the greatest good to the state; for, if law is removed, we are unable to live legitimately in a state.’ In the work Laws, too (Bk. I [631]), Plato demonstrates at length that, ‘laws are established for the sake of virtue’ and in order to promote the common peace and happiness. Cicero (Laws, Bk. III) makes the same point in a very full discussion. And Plutarch (Problemata in 40) declares that, of all the things within a state, goodness of laws is to be deemed the most excellent for this reason, namely, that such laws work most to the common good.

3. This truth is indeed self-evident in the case of divine laws; so that it does not call for demonstration. For though the said laws are necessarily directed to the honouring of God (since He cannot will anything apart from Himself, or act save for His own sake), nevertheless in those laws He seeks not His own profit, but the good and happiness of humanity. Wherefore, since the divine works are superlatively perfect, and of a finely proportioned suitability, divine laws, in so far as they are given to a particular community, are accordingly given with a view to the common good and felicity of that community; a fact which becomes easily evident through a process of induction, with respect both to natural law and to the positive divine laws. Neither is there any force in the objection that through these laws God frequently provides for the private welfare of this or that individual; as when through the law of penance He provides for the salvation of the sinner himself, and as in other cases. This objection, I repeat, has no force. For, in the first place, the good of private individuals (as I shall shortly point out in greater detail) forms a part of the common good, when the former is not of a nature to exclude the latter good; being rather such that it is a necessary requisite in individuals—by virtue of the law in question as it is applied to individuals—in order that the common good may result from this good enjoyed by private persons. Moreover, and in the second place, the divine laws relate principally to eternal bliss, which is in itself a common good, and which is striven after, essentially

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and for its own sake, by every individual without regard to any community other [than the eternal]. Wherefore, St. Thomas has said (Summa, Pt. I, qu. 23, art. 7 and qu. 98, art. 1) that the multiplication of human souls, even though it results only in a difference in their number, is not simply an incidental effect, but one that is sought for its own sake in view of the immortality of those souls and their capacity for happiness.

4. With respect to human laws, indeed, of whatsoever order, the reason [supporting the conclusion set forth in Section 2] may be inferred from the essential condition of law discussed in the preceding [chapter]. For just as laws are imposed upon a community, so should they be made principally for the good of that community, since otherwise, they would be inordinate. This is true because it would be contrary to every consideration of rectitude that the common good should be subordinated to the private good, or the whole accommodated to a part for the sake of the latter; and therefore, since law is made for a community, it should of its very nature be directed primarily to the good of the community.

Again, an excellent argument may be deduced in connexion with the ends [of law]. For ends should be in due proportion to acts, and to the original principles of and faculties pertaining to those acts; but law is the common rule of moral operations; consequently, the first principle of moral operations should also be the first principle of law; but their final end—that is to say, happiness—is the first principle of moral actions, since in moral matters the end to be attained is the principle of action, so that the final end is [also] the first principle of such acts; and the common good, or happiness of the state, is the final end of that state, in its own sphere; hence, this common good should be the first principle of [human] law; and therefore, law should exist for the sake of the common good. This reasoning is very nearly the same as the reasoning of St. Thomas (I.–II, qu. 90, art. 2); and it finds excellent illustration through the teachings of St. Augustine, where (On the City of God, Bk. XIX, chap. xvi) he infers from the due relationship of the part to the whole, and of one household to the state (of which, as he says, [the household] is the beginning or minute element), that domestic peace is related to civil peace. And he adds: ‘Thus it is that the paterfamilias ought to derive from the law of the state, those precepts by means of which he so governs his household that

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it accords with the civil peace.’ And therefore—so Augustine holds—it is far more obligatory that the laws of the state should serve the common peace and the good of the state.

5. Another reason is clearly to be derived from the origin of human law. For the governing power that resides in men flows either immediately from God, as in the case of spiritual power, or immediately from men themselves, as in the case of purely temporal power; but, in both instances, this power has been primarily given for the general good of the community; and therefore, that good should be held in view, in the process of lawmaking.

The truth of the minor premiss in so far as relates to the first statement, on spiritual power, is evident from the Scriptures: since it is for this very reason that Prelates are called shepherds (who should lay down their lives for their sheep), stewards (not masters), and ministers of God (not primary causes); consequently, they are bound to conform to the divine purpose, in the exercise of such power; but the principal purpose toward which God works, is the common good of men themselves; therefore His ministers also are bound to serve this end; and accordingly, the Scriptures rebuke with the utmost severity those persons who abuse that power for their private advantage. When, on the other hand, the power has been granted directly by men themselves, it is most evident that it has been granted not for the advantage of the prince but for the common good of those who have conferred it; and for this reason, kings are called the ministers of the state. It is to be noted that they are also the ministers of God, according to a passage in Romans (Chap. xiii [, vv. 4, 6]), and these words from the Book of Wisdom (Chap. vi [, v. 5]): ‘Because being ministers of his kingdom’, &c.… Therefore, they should use that power for the good of the state, from which and for the sake of which they have received it. Thus it is that Basil (Homily XII: On Proverbs, at the beginning [No. 2, near end]) has rightly said that a tyrant differs from a king in this respect, namely, that the former in his rule seeks after his own advantage, the latter, after the common advantage. Aristotle (Ethics, Bk. VIII, chap. x and Politics, Bk. III, chap. v [chap. vii, 1279 A B]) writes to the same effect; and St. Thomas (II.–II, qu. 42, art. 2, ad 3 and De Regimine Principum, Bk. III, chap. xi) agrees with this view.

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Now the first consequent is proved by the fact that one of the principal acts of the power in question is law. For law is (so to speak) an instrument by means of which the prince exercises a moral influence upon the state, in order that he may govern it; and therefore, law should serve the common good of that same state.

6. Objection. It may be objected, however, in opposition to the condition in question, that there are many laws which are ordered to the good of private individuals; as, for example, the laws made in behalf of wards, those in behalf of soldiers, and similar laws. Wherefore, in the Digest (I. i. 1 [, § 2]) and in the Institutes (I. i, § 4), a distinction is made between two kinds of laws: those which are ordered to the general good, or the welfare of the state; and, on the other hand, those which relate to the private good of individuals. Moreover, the Digest (I. iv. 1 [, § 2]) also contains the statement that certain laws are of a personal nature, with an effect that is limited to the individual for this reason, namely, that they are made solely for his benefit. This is especially evident in the case of privileges, to which the Decretum (Pt. I, dist. III, can. iii) refers as private laws since, assuredly, they are granted for the private advantage of the persons on whom they are conferred; therefore, not all laws are ordered to the common good.

From yet another standpoint, it would seem insufficient that laws should be directed to the common good. For frequently they redound to the harm and detriment of many persons; yet evil should not be done that good may result, nor should certain persons be enriched at the expense of other persons, according to a rule of the Sext (Bk. V, tit. XII, rule xlviii). The major premiss is clearly true when, as a first example, many kingdoms are subject to one and the same king; for a law which is useful to one kingdom often is harmful to another, and the same situation may occur within a single kingdom, among its different cities. Again, the law of prescription, in order that it may endow one person with ownership of a given possession, deprives the true owner of his possession. Frequently, too, that which seems advantageous to the community is onerous and troublesome to a great number of private persons; and indeed, the laws at times inflict evil directly upon certain individuals, as is the case with punitive laws.

7. The objection is answered. To the first part of this objection, the various authors make varying replies, as does Navarrus, above (On Ends,

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Nos. 28 and 29). In my opinion, however, the matter is clear and may easily be explained by the application of a double distinction.

The first [member of this distinction] relates to a twofold common good enjoyed by the state. One phase of this good is that which is of itself and primarily common, being subject not to the dominion of any private person but to that of the whole community, for whose use or enjoyment it is directly ordered. Examples of this form of good are temples or sacred things, magistracies, common pastures or meadows, and the like, mentioned in the laws above cited, and in other laws under the title De Rerum Divisione. But the other form is a common good only in a secondary sense and because it redounds [to the general welfare], so to speak. In a direct sense, however, it is a private good, since it is immediately subordinated to the dominion and advantage of a private individual. Yet it is also said to be a common good; either because the state has a certain higher right over the private goods of individuals, so that it may make use of these goods when it needs them, or also because the good of each individual, when that good does not redound to the injury of others, is to the advantage of the entire community, for the very reason that the individual is a part of the community. Thus the civil laws (Institutes, I. viii, § 2; Authentica, Coll. II [, tit. II, Pref., § 1 = Novels, VIII, Pref., § 1]; and other, similar laws) declare it to be expedient for the state that the citizens should be rich and that no one should abuse his possessions.

8. A twofold subject-matter of the common good, with which law may be concerned. The other member of our twofold distinction is that which is generally made with respect to human acts. In these, we distinguish the proximate subject-matter with which they are concerned, from the motive or reason because of which [they are executed]. For, in view of the fact that law is a moral act, these two factors should be distinguished in the case of law, also. Therefore, the subject-matter with which law is concerned, may sometimes be the common good for its own sake and primarily; while at other times it is a private good for its own sake and primarily, but a private good which redounds to the common welfare.4 Accordingly, a distinction of this kind, also, was laid down with respect to laws, in those above cited,

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as I have, moreover, explained at greater length in my work, De Religione (Treatise V; that is, in Bk. II, chap. xxii5 of the part on oaths). For certain laws deal directly with subject-matter that is common; others, with the good of individuals; but the reason why law deals with either kind of subject-matter is the common good, which therefore should always be the primary aim of law.

9. Objection. In regard to this point, however, it may be asked whether this good should be deliberately aimed at, in the intention of the person acting, or whether it should [simply] be the [natural] end of the actual work imposed, to use the terminology of St. Thomas (II.–II, qu. 141, art. 6, ad 1). For it would seem that the intention of the agent is extrinsic, that it may vary as the result of external accident, and that the essence of a law is not dependent upon this intention; yet the work imposed does not always and by its own virtue tend to the common good, unless it is made to do so by another, so that, in like manner, the aim of the work would seem to be neither essential nor sufficient.

The subject-matter of law should be advantageous for and adapted to the common good, not through the intention of the law-maker, but of itself. I reply briefly that for the validity and essence of a law, it is necessary only that its subject-matter be advantageous to and suitable for the common good, at the time and place involved, and with respect to the people and community in question. For this utility and fitness are not bestowed by the lawgiver, but are assumed to exist; and therefore, in so far as relates to their existence (so to speak) they are not dependent upon his intention. Wherefore it also follows that such subject-matter ought of itself to be referable to the common good, since every useful good as such is fit to be directed to the end for which it is useful, and in this sense, the aim of the work imposed and not that of the agent, is the necessary factor in the matter under discussion.

The reason for the foregoing statements is clear; since even if a legislator makes a law from hatred, for example, or from some other perverse motive, if the law itself nevertheless works to the common good, that fact suffices to give the said law validity. For the perverse intention is strictly

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a personal factor, and its effect does not extend to the work imposed, in so far as the latter relates to the common advantage. Thus, the perverse intention of a judge does not affect the validity of his sentence, unless that intention is in [actual] opposition to the equity of the sentence; and similarly, the perverse intention of him who administers [a sacrament] is in no way detrimental to that sacrament, unless such an intention is in opposition to the essence thereof. Just so, then, in the matter under discussion, the common good must be sought in the law itself, and not in the extrinsic intention of the lawgiver. Augustine gives an excellent portrayal of this view when he says (On Free Will, Bk. I, chap. v): ‘A law which has been made for the protection of the people, cannot be censured on the ground of any evil desire, since he who made it, if he did so at God’s bidding (that is to say, in accordance with the precepts of eternal justice), may have performed this [legislative act] apart from any experience of such desire; if, on the other hand, evil desire was associated with his making of the decree, it does not follow [merely] from that fact, that it is necessary to obey the said law in such a spirit; for6 a good law may be made, even by one who is not himself good.’ Moreover, just below this passage, Augustine calls attention to an excellent argument, namely, that one may without evil desire conform to a law, even though he who made the law may have done so in a spirit of evil desire.

10. Reply to an objection. Accordingly, in the light of the foregoing remarks the first part of the objection is easily answered; since that part involves simply the conclusion that the proximate subject-matter of law is not always that common good which, per se and primarily, dwells within the community as such; and it is thus that the distinction laid down in connexion with the laws above cited, is understood. For it was laid down with regard to subject-matter; and the laws in question are said to turn about private benefits having as their subject-matter the personal welfare of the [individual] citizens themselves, welfare which, viewed from another standpoint, includes the common welfare, as we have remarked. With respect to these legal precepts it should also be noted that they never

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fall under the head of law when they relate merely to this or that individual, but do come under that head in so far as they deal with [all] persons of a certain condition (such as wards, soldiers, &c.), or with [all] persons of a certain origin (for example, nobles), or with [all] the successors of a given family; and in this sense, they look to the common good, because of a common participation (so to speak) in their universal effects, that is to say, because such good affects a large number of persons, as was pointed out at the end of the preceding Chapter.

However, when the Digest (I. iv. 1) states that a regulation issued by a prince, does not at times extend its application beyond the particular person involved, the term ‘[princely] regulation’ is apparently not used in the sense of strict law, but rather in that of any edict or decree whatsoever, issued7 by the prince in favour of or adversely to some specific person; since such a regulation, unless it has [also] a wider scope and a more enduring force, is not law in the strict sense. This point, too, was brought out in an earlier Chapter.8

11. In the light of the foregoing remarks, it is evident what should be said in regard to privileges, a matter apparently touched upon by the Digest (ibid.), also. Thus the Gloss (on Decretum, Pt. I, dist. IV, can. ii) answers that it is through the condition in question that law is distinguished from privilege.9 This reply is sharply attacked by Castro (cited above), on the ground that it leads to the conclusion that a law decreed by a prince, concerning payment of a perpetual tribute to himself and for his own advantage, would have to be called a privilege. However, this objection to the words of the Gloss has little force. For the tribute in question would be either just, or unjust. If it were just, then the law itself would be just, and would serve the common good, even though it would [also] be to the advantage of the prince; because, in the first place, the welfare of the prince, viewed as such, is considered as the common welfare, inasmuch

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as he is a public personage, pertaining to the whole community;10 and furthermore, because a just subsidy bestowed upon the prince by the state constitutes a common good, benefiting the state as a whole. If, on the other hand, the tribute should be unjust and tyrannical, then it would not be law, but would on the contrary have the character of an inequitable and unjust privilege. Moreover, this reply which is contained in the Gloss would seem to be in accord with Cicero’s statement (Laws, Bk. III [, chap. xix, no. 44]) that, ‘Our forefathers […] desired no laws to be made which penalized private individuals; for to do so would be to make a law of personal privilege’.

12. Privileges are true laws.11 Nevertheless, I am of the opinion that the said condition was not laid down by Isidore, to the exclusion of privilege from the essential realm of law. For in the first place, this same Gloss (on Decretum, Pt. I, dist. III, can. iii) declares that a privilege is law, and requires of it a compliance with certain other conditions which are laid down by Isidore as he is quoted in a different passage (Decretum, Pt. I, dist. IV, can. ii). Another reason for my opinion is the fact that the clause in question was framed for the immediate purpose of excluding tyrannical laws, or those which do not tend toward the common good, even though it may be that they do not look to any private good, either; so that evil laws are necessarily excluded through the said condition, even if they are not privileges. Finally, my opinion is supported by the fact that it was perhaps not needful to exclude privileges. This is a point which I shall discuss in the proper context. For the present, I shall merely assert that, in so far as relates to the common good, it is not unreasonable that a privilege should have the character of law. For even though its proximate subject-matter may be the private good of a particular family or household, or that of particular individuals—this being, perhaps, the reason that Isidore gave privileges the name of ‘private law’, in the Chapter12 of the Decretum above cited (Pt. I, dist. III,

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can. iii)—nevertheless, from a formal standpoint, [a privilege] should look also to the common good. In this connexion, one may consult the Decretum (Pt. II, causa I, qu. vii, can. v, argument, and Section Nisi rigor [same canon]; also Pt. II, causa I, qu. vii, can. xvi) and the remarks of St. Thomas (I.–II, qu. 97, art. 4, ad 1). For the good conceded by the privilege should be a private good [only] in such a way as to redound to the common welfare, in the fashion explained above. Moreover, the particular grant of privilege should be of so rational a nature, that it will work to the common advantage if [other, and] similar privileges are granted for similar causes. Privileges, then, are not excluded from the strict and essential character of law, under this head. And as to the question of whether they are excluded on the ground that they relate to private individuals, or whether they may [in spite of this fact] be laws in the true sense of the term—especially if they are of a perpetual nature—that is a matter which we shall discuss in Book Ten.13

13. The question is less difficult in regard to laws of taxation. For these laws are imposed upon a community (a fact which is self-evident) and relate directly to the common good; since, as I have said, though they may seem to be directed to the advantage of the prince, nevertheless, if they are to be true laws, they must have in view the common welfare; because such taxes are granted to the king only to the extent that he is a public personage pertaining to the whole community,14 and on condition that he shall use them for the good of the community. Thus a canon of the Council of Toledo (Eighth Council, Chap. X, De Regibus)15 contains the qualification: ‘Not having respect to those rights which concern private advantage, but taking counsel for the country and the people.’

14. As to the other part of the objections, we may make the general reply that it is a natural characteristic of human affairs that they are not uniform in every way. And thus it frequently happens that what is expedient for the whole community, will be harmful to this

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or that individual; but, since the common good is preferred to private good whenever the two cannot exist simultaneously, therefore, laws are made in absolute form, for the sake of the common good, and take no account of individual cases. This point is brought out in a number of laws (Digest, I. iii and ibid., i; Decretals, Bk. III, tit. XXXI, chap. xviii and Decretum, Pt. II, causa VII, qu. i, can. xxxv). However, it is sometimes the case that several kingdoms, or several communities, are gathered together under one king; externally (so to speak) since, in actual fact, they do not form among themselves a single political body, but have come under the power of that king through various titles, and as the result of external accidents. In such cases, it would be unjust to bind the different kingdoms by the same laws, if those laws were advantageous to one kingdom, and not advantageous to another. For under these circumstances, the comparison would be made, not as between the common and the private good, but as between one common good and another, also common, each of which requires, per se and separately, that provision be made for it through its own laws just as if it were still under a separate king; even after the manner adopted by the Pope, when he lays down [separate] rules for different religious orders, in so far as they are distinct communities, each in need of its own laws. On the other hand, when the various communities are [in reality] parts of one and the same kingdom, or political body, then the welfare of each individual part is to be regarded as private in relation to the welfare of the whole, for which the laws are essentially and primarily made.

Two precautions, however, should be taken. For one thing, the harm to private individuals should not be so multiplied as to outweigh the advantages accruing to other persons. Again, dispensations or exceptions should when needed be annexed [to laws]; for in such cases of necessity, this is in the highest degree permissible, and sometimes even a matter of obligation.

15. From the foregoing we readily perceive what statements should be made regarding harm to private persons. For harm of this sort is accorded less consideration and consequently is sometimes permitted, as in the case of prescription, which regards the common good; that is to say, it regards peace, the avoidance of litigation, &c. At times, such harm is actually [one

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of the ends] sought [by legislation]; for example, by punitive laws, which are at the same time necessary to the common good.

Thus we have the explanation of the two other conditions of law laid down by Isidore, in the same passage [cited in Decretum, Pt. I, dist. IV, can. ii], namely, that law must be necessary, and that it must be useful. These conditions are explained by St. Thomas (I.–II, qu. 95, art. 3) in such a way that he connects necessity with the removal of evil (as when a law is made in order to avert some evil from the state) and utility, with the promotion of good; a distinction which is well made, in that it prevents either of the two conditions from seeming to be redundant. Nevertheless, in both cases, the promotion of the common welfare should be borne in mind. For a given evil must be removed in such a way that no other greater evil will afflict the state in consequence; since otherwise, the law in question would be, not necessary, but pernicious. And again, a given useful result must be attained in such fashion as not to impede thereby the attainment of a result still more useful, nor to afflict the community in consequence with evils greater [than those from which it would otherwise have suffered]. All these terms, then, serve to explain one and the same property in law, although they explain it in diverse aspects, for the purpose of a fuller exposition, a fact which suffices to prevent the said terms from being superfluous.

16. Is a general law, established with the intention of injuring a particular individual, unjust and invalid? At this point, it is customary to inquire whether a law established in general terms, but with the intention or fraudulent design of having it work harm to a single individual, is unjust, or invalid.

For the jurists are wont to say that such a law is so unjust that it is permissible to appeal therefrom, or to take exception to it on the ground of fraud. Statements to this effect may be found in the comments of Bartolus on the Digest, (I. i. 9, qu. 5, no. 53), Panormitanus (on Rubric of Decretals, Bk. I, tit. II, no. 2), Felinus (on Decretals, Bk. I, tit. II, chap. vi, no. 5), Jason [on Digest, I. iii. 1, no. 4] and Gregory López, as cited above [on Las Siete Partidas, Pt. I, tit. i, law 9].

Nevertheless, these authors do not hold that laws of this kind are always invalid, or unjust. For doubtless they may sometimes be enacted for a

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reasonable cause, permitting harm to a private individual for the sake of the common good, rather than [deliberately] seeking to inflict such harm, or even seeking to do so as a just penalty. Again, if it so chances that the lawmaker was moved by an unjust intention owing to private hatred, that fact (as has been said above) will not be detrimental to the law itself, nor to the justice thereof, if in other respects this law is necessary to the common good. So Felinus has declared at length, in the passage already cited [on Decretals, Bk. I, tit. II, chap. vi, concl. 1]. Moreover, he adds (ibid., concl. 3) that the same conclusion holds true of a law made in favour of a private individual or of a family, if the said law redounds to the common advantage; a fact which is sufficiently clear in the light of what we have already said.16 Thus the authorities above cited17 are referring—when they speak of injustice and fraud—to cases involving an attempt, without just cause, to inflict harm upon a third party under the guise of a general law. For in these cases the injustice is manifest, and consequently a suitable method of self-defence is likewise permissible, and befitting; and it is of such self-defence that these authors treat, since the subject falls properly within their field.

CHAPTER IX

Is It Inherent in the Nature of Law That It Be Just, and Established in a Just Manner? In This Connexion the Other Conditions of Law Laid Down by Isidore Are Discussed

1. Now that we have expounded the conditions required of law with respect to the persons or causes that may be considered as extrinsic, the intrinsic conditions (so to speak) present themselves for discussion, whether intrinsic in the act to which a legal precept may apply, or intrinsic in the very process of making the law. We reduce these conditions to a question of justice; and under justice, we include all the conditions laid down by

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Isidore in a passage (Etymologies, Bk. V, chap. ii [chap. iii]) where he speaks thus: ‘Law will be all that which is established by reason, provided that it is in harmony with religion, agreeable to [moral] discipline and conducive to welfare.’1 However, Isidore would seem to be speaking here of human custom, rather than of law in general, although the words might be made applicable to all phases of law. In other chapters, indeed (ibid. chap. xxi and Bk. II, chap. x), he enumerates other conditions—or the same ones, with greater clarity—for he says: ‘Law will be righteous, just, practicable, and in harmony with nature and with the custom of the country, and suitable to the time and place.’ St. Thomas, also (I.–II, qu. 95, art. 3), interprets these conditions as referring to human law.

Nevertheless, owing to the fact that either all or at least the chief of the said conditions, are applicable to every kind of law, and because it is necessary to have a knowledge of them in order to draw up a definition of law, an explanation of the conditions is fitting at this point.

However, we shall reduce them all to the two conditions suggested in the title of this Chapter, namely, law shall be just, and law shall be established in a just manner. These conditions, we expressly undertake to expound; and, in connexion with them, we shall discuss certain others, viewing them as corollaries.

2. The first assertion: It is inherent in the nature of law that it shall prescribe just things. My first assertion, then, is as follows: it is inherent in the nature and essence of law that it shall prescribe just things.2

This assertion is not only indubitably true by the light of faith, but is also manifest by the light of natural reason. Accordingly, it is made not only by the theologians and Fathers whom I shall cite below, but also, in various passages, by the philosophers named in the preceding Chapter.3

A twofold sense in which law may be regarded as just. Moreover, it may be expounded in the following manner. The statement that law ought to

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be just, is susceptible of two interpretations. First, the question of justice may be viewed from the standpoint of the very act which the subject is, by virtue of the said law, obliged to perform; that is to say, the act must be such that it may be justly executed by him. Secondly, the question may be considered in regard to the law itself; that is, the law must be imposed upon men without the infliction of injury. For sometimes an act may be such that it is possible for the subject to perform it justly—as in the case of a fast on bread and water—while the superior [nevertheless] does this subject an injury by prescribing such an act. This distinction has been pointed out by St. Thomas (I.–II, qu. 96, art. 4). Our assertion, then, should be interpreted according to the first standpoint, or first kind of just law; for in order to set it apart from the second standpoint, we have said that a law ought to prescribe just things.4

Again, ‘justice’ sometimes signifies a special virtue; while at other times it refers to all the virtues. But in the present case, our assertion that law should be just must be taken in a general sense, as meaning that whatever the law prescribes should be such that it may be executed justly and virtuously, that is, righteously.5 Even this condition, however, is susceptible of a twofold interpretation; that is, it may be interpreted negatively, meaning that what is prescribed shall not be unjust or base; or it may be interpreted positively, meaning that what is prescribed shall be just and righteous.

3. The said condition, then, is to be understood principally in the first sense; and accordingly its truth is self-evident.

Nevertheless, it exists for one reason in the case of divine laws, and for another reason in the case of human laws.

For in the former case the reason is the essential rectitude of the divine will, since God is superlatively good and therefore incapable of commanding anything evil.

There is the further reason that God cannot be a contradiction to Himself, and therefore cannot lay down mutually contradictory precepts at

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one and the same time, while they continue to be thus contradictory. The prescribed deed, then,—a deed which, for the purposes of argument, we have assumed to be unjust or base—will be of such sort that it is in nowise separable from its iniquity (as in the case of lying, or entertaining hatred against God, or failing to believe when He speaks with sufficient evidence, or similar conduct); or else, the said deed will be such that its wickedness can be removed by a change in the subject-matter, or by the adoption of a [special] mode of action (as in the slaying of a human being, or other act of this kind). When the deed [prescribed] is intrinsically evil in the former sense, it is for that very reason prohibited by natural law, and consequently by God, as the Author of natural law; therefore, it is impossible that positive divine law should contain anything contrary to this natural justice, although it may contain many precepts in addition to those of natural justice, precepts which are most righteous in their own order. If, on the other hand, the deed in question is of the latter sort, it will be righteous for the very reason that it is prescribed by God; a point which may be illustrated by the deed of Abraham and also by similar cases which we shall discuss later, when we treat of dispensations from natural law. For this latter form of command occurs (a point which should be noted), not in divine laws of a general nature but, at most, in certain rare personal precepts. Accordingly, it is quite clear, with respect to divine laws, that they are always characterized by the kind of justice in question.

4. In the case of human laws, however, this [condition which we have been discussing in the two preceding sections] is founded upon another principle. For a human legislator does not have a perfect will, as God has; and therefore, of himself and with respect to the deed [prescribed], such a legislator may sometimes prescribe unjust things, a fact which is manifestly true; but he has not the power to bind through unjust laws, and consequently, even though he may indeed prescribe that which is unjust, such a precept is not law, inasmuch as it lacks the force or validity necessary to impose a binding obligation.6 To be sure, I am speaking

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of unjust deeds which are opposed to natural or divine law. For if a deed is wicked solely because it is prohibited by a human law, and if the latter can be withdrawn by means of a subsequent law, then this second precept will not relate to an evil deed, since—through the revocation of the earlier law—the evil of the [prescribed] deed is removed. The reason for our assertion thus becomes clear. For, in the first place, the [legislative] power in question is derived from God; and those things which are from God, are well ordered; therefore, the said power has been given for good and for edification, not for evil or destruction. And secondly, no inferior can impose an obligation that is contrary to the law and the will of his superior; but a law prescribing a wrongful act, is contrary to the law of God, Who prohibits that act; therefore, [the former law] cannot be binding, for it is not possible that men should be bound, at one and the same time, to do and to abstain from doing a given thing. Moreover, if a wrongful deed is prohibited by divine law, no law made by an inferior can annul the obligation imposed by the superior; consequently, [such an inferior] cannot impose an obligation, for his own part; and therefore, his law on the deed in question cannot be valid.

It was to this justice of law, indeed, that St. Augustine referred, when he wrote (On Free Will, Bk. I, chap. v): ‘In my opinion, that is not law which is not just.’ Moreover, one may interpret as a reference to the same justice, the words of St. Augustine in another passage (On the True Religion, Chap. xxxi): ‘A founder of temporal laws, if he is a good and wise man, will consult the eternal law in order to discern, […] in accordance with its immutable rules, what from a temporal standpoint should be avoided or prescribed.’ Wherefore, just as the eternal law prescribes only that which is just, since this law is essential justice itself, even so, true human law ought to be a participation therein, and consequently cannot validly prescribe anything save that which is just and righteous; a condition which accords with the verse in Proverbs (Chap. viii [, v. 15]): ‘By me kings reign, and lawgivers decree just things.’

5. In what way an act prescribed by law is characterized by positive righteousness. From the foregoing, we draw the further conclusion that the condition in question, even when positively interpreted, pertains to the essential nature of law; although it is not to be applied in one and the same manner to each individual [legal precept].

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The first part of this statement may be demonstrated to be true on the basis of our preceding remarks; for if the act prescribed is not of itself evil and if it is prescribed by a superior, then, for this very reason, it may righteously be executed, since by virtue of the precept of the superior it acquires a certain righteousness, even though it may not always possess that quality inherently. For, even as an act not of itself evil becomes evil through the just7 prohibition of a superior, so an act not of itself either good or evil, will become good through a law which justly prescribes it; and accordingly, law always relates to a good act, since it either presupposes that the act is good, or causes it to be so.8

Thus the second part of the same statement is also manifestly true. For, in some cases, it is presupposed that [certain] acts prescribed by law are of themselves good and righteous. Such acts acquire through law merely a necessary and obligatory character; since they were formerly optional and the failure to perform them was not evil, whereas such failure does become evil after the making of the law, and the act in question becomes essential to righteousness, manifest examples of this sort being found in the acts of hearing mass and of fasting, or in similar acts. Sometimes, on the other hand, a law is made with regard to a deed which is in itself indifferent; as in the case of laws concerning the carrying of arms, or abstaining therefrom, at a certain time or in a certain place, and similar matters. In such a situation, the act [prescribed] becomes good both by the efficacy [of the law] and by virtue of the end to which that law is directed. This righteousness ordinarily relates to some special virtue, in accordance with the capacity of the subject-matter with which the law is concerned, inasmuch as the said law establishes a certain moderation in regard to that [subject-matter]. Examples of this kind are found in the law of fasting, or the law prohibiting the use, at a stated time, of stated foods that are in themselves

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a matter of indifference; and in other laws of a like nature. Sometimes, however, the righteousness may be a matter solely of obedience, or legal justice. Examples of this sort are the law which prohibits carrying arms, and other, similar laws.

Thus law must be just from the standpoint of its subject-matter, in one of the ways above described.

6. In what way a law concerned with the permission of evil is just. Nevertheless, an objection may be raised at this point, with respect to human laws which permit some evil and which apparently do not relate to what is just. Augustine (On Free Will, Bk. I, chaps. v and vi) discusses this objection at considerable length; and we shall return to the point later.

For the present, I shall answer briefly that the subject-matter of such a law is not the evil deed involved, but the permission of that deed; and permission of an evil deed may in itself be good, inasmuch as God wills that it shall be granted; accordingly, a law of this sort deals with subject-matter that is just. And if it is urged that the permission is not the subject-matter but the effect of the law, I answer, first of all, that the permission does not result from the law, save in so far as [the latter] prescribes that the act in question shall be permitted, and not punished or checked; for otherwise, the true and essential principle of the law could not subsist, as is evident from its general nature, and as I shall explain more fully below.9 Secondly, if any one should venture to speak of the said act as being the subject-matter of the law, I would reply as follows: the act itself may be considered in either of two aspects; that is to say, as capable of being performed (in which sense it is evil), or [simply] as permissible, so to speak (an aspect in which it is not wrongful subject-matter, nor subject-matter contrary to reason). In other words, this act is not fit subject-matter from the standpoint of its capacity to be legally obligatory, but it is capable of being permitted, since with respect to the purpose of such [legal] power, it does not necessarily call for prohibition or punishment and is, therefore, in itself just subject-matter in relation to the law in question.

7. From this [first] assertion, thus expounded, we are able to draw two inferences.

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The first corollary: Righteousness is inherent in the nature of law; and the remaining conditions laid down by Isidore are reduced to this one [condition of righteousness]. One inference is as follows: to the said assertion, there pertains, most of all, the first condition laid down by Isidore (Etymologies, Bk. V, chap. xxi), namely, the condition that law shall be righteous, a requirement which is sufficiently clear from the very nature of the term. I shall add, moreover, that to this quality of justice in law, we may very well reduce all the conditions laid down by Isidore in the passage cited above, and also in the Decretum (Pt. I, dist. I, can. v), in which passage he first says: ‘Law will be all that which is established by reason’; that is to say, law ought to be in accord with reason; and this [in turn] is equivalent to requiring that law shall be just, in the sense explained above. Furthermore, this condition includes virtually all the justice of law, in its entirety. For law cannot be in absolute conformity with reason, unless it is just in every respect. Accordingly, St. Thomas (I.–II, qu. 95, art. 3) accepted this requirement, not as a special condition of law, but as a general one virtually including all other conditions, so that he does not discuss the others.

8. Secondly, then, Isidore [Etymologies, Bk. V, chap. iii] requires of law, ‘that it shall be in harmony with religion’; a requirement which St. Thomas expounds in the place cited in connexion with human law, saying that law should be in harmony with religion, in so far as it ought to correspond to divine law. However, this correspondence consists simply in not prescribing what divine law prohibits, and in not prohibiting what divine law prescribes; so that, in like manner, it may be said that to be in harmony with religion is the same as to be righteous.

Nevertheless, it is possible to extend the condition to apply to all law, and it is also possible to understand religion more exactly, as the true mode of worshipping the true God. For, in this way, it becomes clear that the eternal law, viewed as externally preceptive for its proper occasions, is in the highest degree harmonious with divine worship; since God ordains all things to His own honour and glory through this law. Consequently, He especially prohibits all sin, since sin is opposed to His law and His goodness.

Furthermore, the natural law, being the first participant in this [eternal law], prescribes as a principal requirement, the worship of God. For it

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was in view of this precept that Paul wrote (Romans, Chap. i [, vv. 20, 21]) that the heathens were inexcusable. Because that, when they knew God, they have not glorified Him as God. Accordingly, the natural law does not merely refrain from prescribing anything incongruous with the religion of the true God; rather, it does not even permit such a thing. For though the individual precepts of that natural law do not all prescribe the worship of God, yet that law does not prescribe anything that cannot be done to the glory of God, and this is equivalent to being in harmony with religion.10

9.11 Furthermore, it is a self-evident fact that the condition in question applies to positive divine laws; since the latter have always been laid down in a manner eminently in harmony with divine worship and religion, for given times and given peoples, as we shall see later when we treat of such laws, and as one may well infer from the words of the Apostle to the Hebrews (Chap. vii [, v. 12]): ‘the priesthood being translated, it is necessary that a translation also be made of the law.’ For even though that statement was made with special reference to the Old Law, it may rightly be based upon this condition of law, namely, that law should be in harmony with religion, so that a change in the former is consequently necessary when religious rites have undergone change. Thus Augustine is wont to explain on this basis the consonance and character of the two kinds of law; a matter on which he touches in the Confessions (Bk. III, chap. xxxvii [chap. vii]), and which he pursues at length in his work Against Faustus, and in numerous other passages.

Again, human laws, if they are canonical, are by their very nature directed primarily to the ends of divine worship and religion; and accordingly, almost every one of them deals with this subject-matter. A few [individual precepts], indeed, may be concerned with other subjects; but even in these cases, there is always the greatest regard for that which befits and harmonizes with religion.

Finally, with respect to civil laws, while these do not per se serve such an end, they are nevertheless subordinate to it, and consequently should not

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be incompatible therewith; if they are incompatible, they cannot be just; and in this sense, civil laws should be in harmony with religion.

For the condition in question may be expounded from either a positive or a negative standpoint; and even though the former standpoint is applicable in the case of certain laws, in regard to other laws the latter suffices, that is to say, it suffices that such laws shall be not incompatible with the true religion; all of which is a matter pertaining to their righteousness.

10.12 Thirdly, Isidore [Etymologies, Bk. V, chap. iii] requires of law ‘that it shall be agreeable to [moral] discipline’; a condition which is explained by St. Thomas [I.–II, qu. 95, art. 3, with the comment,] ‘because it should be in due proportion to the law of nature’.13 This proportion must consist in nothing more nor less than the quality of not deviating from the precepts and rules of the law of nature; since a human lawgiver ought to conduct himself in his legislative acts as a disciple of natural law (so to speak), and ought to prescribe those things which are in harmony with its teaching.

These assertions are, to be sure, correct. Nevertheless, if we interpret this condition as referring to discipline in relation to the subjects [upon whom laws are imposed], we may well say that every law lays down suitable doctrines for its subjects, and is thus agreeable to discipline;14 since every law is a species of instruction for the subjects, in accordance with the words [of the Psalmist (Psalms, xviii, v. 8)]: ‘The law of the Lord is unspotted, … giving wisdom to little ones.’15 For every just law is, in a sense, a law of the Lord, and gives wisdom to little ones; accordingly, it is, with respect to those little ones, a species of doctrine; and therefore, it is rightly asserted of all law, that it should be agreeable to discipline. But the instruction in habits of conduct (for it is of such instruction that

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we are speaking) which is said to be in consonance with discipline, is that which promotes virtue, or that which promotes other ends in such a way as to do no injury to righteous habits, being, rather—to the extent of its influence—advantageous to such habits. For this [third] condition, also, may be interpreted either positively or negatively; and both modes of interpretation are adequate, each in due proportion. To be sure, it is hardly possible that there should exist any law not repugnant to righteous habits of conduct, which would not be in some way agreeable to righteous discipline, assuming—as is indicated in the last of the [three] conditions mentioned—that with respect to its remaining qualifications, the said law is beneficial to the state.

For Isidore [Etymologies, Bk. V, ch. iii] adds [another requirement for law], namely, ‘that it shall be conducive to welfare’.16 St. Thomas I.–II, qu. 95, art. 3, interprets this condition, saying, ‘in so far as it is adapted to the advantage of mankind’, whereby he relates this requirement to the one mentioned above, the utility of law in promoting the common good. And in this sense, the said condition may be applied to every law, as we have already explained. However, it is possible to interpret the phrase in question theologically, as referring to the salvation of the soul, in preference [to the interpretation first suggested]. This spiritual welfare may have been what Isidore had in mind. For the Holy Fathers are wont to refer to such welfare by the term salus. If a law is just, it will indeed conform to such a condition,17 since observance of a just law is essentially conducive to salvation.18

Thus all these [qualifying] remarks constitute [simply] an exposition of the righteousness of law, in so far as relates to the required observance thereof on the part of the subject. Nor are the said remarks superfluous for that reason. For the consideration of these diverse aspects [of law’s righteousness] leads to a clearer understanding of that quality of law, and of its relation to higher goods that pertain both to God and to the soul.

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11.19 The second corollary: A law devoid of righteousness not only has not the nature of [true] law, but furthermore is neither binding nor capable of being obeyed. Our second inference [from the first assertion], above set forth, is: a law not characterized by this justice or righteousness is not a law, nor does it possess any binding force; indeed, on the contrary, it cannot be obeyed.

This is clearly true, because justice that is opposed to this quality of righteousness in law, is in opposition to God Himself, since it involves guilt, and offence against Him; and therefore, it cannot licitly be obeyed, because it is not possible licitly to offend God. Furthermore, injustice of this sort is to be found only in laws laid down by men; but one must obey God rather than men; and therefore, such laws cannot be observed in opposition to the obedience due to God, just as one does not obey the praetor in defiance of a command issued by the king. So Augustine argues, a fortiori (De Verbis Domini, Bk. I, serm. vi, c. 8 [Sermons, lxii, no. 8, Migne ed.]).

In cases of doubt as to the righteousness of a law, it must be assumed to be righteous, and accordingly, must be obeyed. However, all the Doctors indicate that the evidence of injustice in the law must be such as to constitute a moral certainty. For if the matter is doubtful, a presumption must be made in favour of the lawgiver; partly because he has and is in permanent possession of a superior right; partly, also, because he is directed by superior counsel and may be moved by general reasons hidden from his subjects; and partly because the subjects, if this presumption in his favour did not exist,20 would assume an excessive licence to disregard the laws, since the latter can hardly be so just that it is impossible for them to be treated as doubtful, by some individuals, apparently for plausible reasons. Such, indeed, was the opinion upheld by Augustine (Against Faustus, Bk. XXII, chaps. [lxxiv and] lxxv), and quoted in the Decretum (Pt. II, causa XXIII, qu. i, can. iv).

The question, indeed, of the degree of certitude—regarding this injustice in a law—that is necessary in order to oblige men not to obey that law, is repeatedly dealt with in comments on I.–II [, qu. 96, art. 4],

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on conscience. Furthermore, we shall make some comments on this same point below,21 when we discuss the binding force of law, and especially that of human law. For doubts of the kind in question are particularly wont to occur with respect to law of this sort [i.e. human law], and they may take many diverse forms; so that this subject will be disposed of more fittingly and more fully in that [later] context. On the other hand, the question of how in a doubtful case a presumption is made in favour of the prince, is treated at length by Panormitanus (on Decretals, Bk. I, tit. II, chap. vii, no. 14), Felinus (ibid., nos. 60 et seq.) and Torquemada (on Decretum, Pt. II, causa XI, qu. iii, can. i, concls. 6 and 7, nos. 8 and 9, and ibid., can. xciii, at end).

12.22 The second assertion: it is inherent in the nature of law that it be justly established. My second assertion is as follows: it is inherent in the nature of law, that it be justly established; and if it is established in any other way, it will not be true law. The first part of this assertion is commonly accepted as true. Moreover, since in the case of divine laws it is a quite self-evident fact that they are justly established, it is in regard to human laws that we shall explain this assertion; which St. Thomas [also] has set forth in the question above cited (I.–II, qu. 96, art. 4). All the commentators on this passage, and others, to be cited presently, [agree on this point].

The said assertion, however, finds a first and general proof in the fact that conformity with reason is inherent in the nature of law, a fact proved by all the arguments adduced just above and acknowledged, moreover, by all the philosophers there cited; but in order that law may be in conformity with reason, it is not enough that the subject-matter of law should be righteous; on the contrary, its form must also be just and reasonable, which is to say that law must be established in a just manner; therefore, this latter requirement is likewise essential to the nature of law.

A second and specific argument is based upon the supposition that, when we declare establishment in a just manner to be inherent in the nature of law, we refer to a just mode of operation, not as regards the [legislative] agent, but as regards the product of his efforts. For, with respect to the mode

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of operation in its relation to the agent, it is necessary, not only that there be no defect in the law itself, but also that the agent be moved by a virtuous impulse, not by hatred or cupidity, and that for his part he conduct himself prudently in regard to the mode and circumstances of his action. But this good or virtuous behaviour on the part of the legislator who makes a given law, is not necessary to the validity of the law. For a prince may conduct himself wickedly and unjustly when he makes a law, while the law which he makes may nevertheless be just and good, and also valid. With respect to the law itself, however, the requisite mode involves not only righteousness in the subject-matter of the law, but also righteousness in its form. A law, then, is said to be just when the form of justice is preserved in it, a point which St. Thomas (ibid., art. 4 and qu. 95, art. 3) neatly expounds.

13.23 Three phases of justice must be observed in order that a law may be made justly. A fuller explanation may be offered, as set forth below. For in order that a law may be made justly, three phases of justice must be perceptible in its form.

The first phase is legal justice. It is the function of this form of justice to seek the common good and, consequently, to guard the due rights of the community; but law ought to be directed chiefly to this purpose, as we have shown; and therefore, law should be made in a just manner from the standpoint of legal justice. Thus it is that St. Thomas (ibid.) declares that law should be just in having as its goal the common good.

The second phase is commutative justice. It is the care of this phase of justice that the legislator shall not exceed his own power in laying down his commands. Such justice is in the highest degree essential for the validity of a law. Consequently, if a prince legislates for persons who are not subject to him, he sins against commutative justice in so far as those persons are concerned, even though he may be requiring an act that is in itself righteous and advantageous. And accordingly, St. Thomas has said that in a law justice on the part of the legislator is a requisite.

The third phase of justice is distributive. This also is a requisite of law. For in the process of laying down commands for the multitude, [law] distributes the burden, as it were, among the various parts of the state,

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for the good of the latter, and must therefore preserve in that distribution a proportionate equality, which is a matter pertaining to distributive justice. Accordingly, a law which apportions burdens unequally will be unjust, even if the thing which it prescribes is not inequitable. It is in this sense that St. Thomas (ibid.) has asserted that a proportionate equality is required in the form of a just law.

From the foregoing, moreover, he correctly concludes that, in addition to its inequity from the standpoint of subject-matter, a law can be unjust in three ways, namely: because the end in view is private advantage, not the public good; or, because of a defect in power on the part of the [legislative] agent; or, because of a defect in the form [of the law], that is, a defect of just distribution.

It is clear, then, that just enactment from all the standpoints above mentioned is essential to law.

14.24 Proof that justice is necessary to the validity of a law. Moreover, the second part of our assertion25—namely, that this justice [in enactment] is so necessary to law that without it law is invalid and ceases to bind—is expressly upheld by St. Thomas in the same place [I.–II, qu. 96, art. 4]; by Soto [De Iustitia et Iure, Bk. I, qu. v, art. iii], B. Medina and others (on that passage of St. Thomas); by Castro (De Potestate Legis Poenalis, Bk. I, chap. v), Victoria (Relectio: De Potestate Papae et Concil., no. 18), Panormitanus (on Decretals, Bk. I, tit. II, chap. vii, no. 9), Felinus (ibid., nos. 40 and 41) and others. This view is also favoured by the Digest (I. i. 1); and the interpreters of that passage may be consulted. St. Thomas, too, interprets as referring to this phase of justice, the words of Augustine above cited (On Free Will, Bk. I, chap. v): ‘That is not law which is not just.’ Still more pertinent to this point is the remark which he makes in the City of God (Bk. XIX, chap. xxi): ‘What is done according to law (iure) is done justly (iuste), and what is unjustly done, cannot be done according to law. For the unjust decrees of men should not be thought of or spoken of as laws, since even they themselves define law as that which has flowed from the fount of justice.’26

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15.27 Finally, it is in this sense that we shall rightly interpret the second condition of law laid down by Isidore in the last of the passages above cited. For he says that ‘law should be righteous and just’; and the first of these attributes relates to the subject-matter of law, as I have pointed out in a preceding statement; so that the second relates to the form of the law, as it were—that is to say, [it implies] that [law] must be justly enacted.

Moreover, this part of our discussion may be demonstrated by reasoning, if we shape our argument in accordance with the three standpoints regarding justice which were indicated by St. Thomas as follows: the end, the [legislative] agent, and the form.

For with respect to the first standpoint, all those statements are applicable which we made in Chapter Seven,28 where we proved that there is no law that is not enacted for the common good. Consequently, under this division of justice, which we call legal, are included certain29 conditions of law laid down by Isidore in the aforementioned passage [Etymologies, Bk. V, chap. xxi and Decretum, Pt. I, dist. IV, can. ii], namely: law must be necessary, it must be useful, and it must serve the common welfare. Accordingly, we shall omit the discussion of those conditions in the present context, inasmuch as we have expounded them above.

Again, as to justice on the part of the [legislative] agent, or commutative justice, everything set forth in Chapter Eight30 is pertinent; and consequently, it is also sufficiently clear that a law enacted [by an agent] without jurisdiction is null.

16.31 Concerning the necessity of distributive justice for the validity of a law. Thus there remains to be proved only the assertion regarding the other and third part of justice, which relates to the form, that is, to distributive equity.

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As to this factor, it is manifestly essential to the justice of law; since, if a law is imposed upon certain subjects, and not upon others to whom its subject-matter is equally applicable, then it is unjust, unless the exception is the result of some reasonable cause; a point which we have demonstrated above.

Again, the imposition of equal burdens upon all persons, without regard to the strength or capacity of each, is also contrary to reason and to justice, as is self-evident. And as to the fact that such injustice suffices to nullify a law, this is expressly affirmed by St. Thomas [I.–II, qu. 96, art. 4], when he says: ‘[Precepts] of this sort are manifestations of violence, rather than laws, and therefore they are not binding in conscience.’ In my opinion, this statement should be interpreted as referring to cases in which the disproportion and inequality of a law are so great that the latter redounds to the common detriment, and results in a grave and unjust burdening of many members of the community.32 If it so happens, however, that a law is in itself useful, while some exceptional instance to which it applies involves injustice, the law would not on that account be entirely null, nor would it cease to bind the other subjects. For, strictly speaking, no positive injustice (as it were) is done these subjects in the imposition of such a burden upon them, since the burden would not in itself be wrongful and since there results simply a measure of disproportion as between certain individuals and the community as a whole, a disproportion which would seem insufficient to nullify the law. But if, by an exception in favour of certain persons, others are burdened to a degree that exceeds the bounds of equity, then, to the extent of that excess, the law will fail to bind; while it will nevertheless be able to bind in other ways wherein it is not unjust. An example of this sort may be noted in the case of the laws on taxes, to which we shall later devote some remarks.

This part of our argument, moreover, may be further clarified by an explanation of the third principal condition for law, as laid down by Isidore [Etymologies, Bk. V, chap. xxi]—namely, that law must be practicable33

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(possibilis)—as well as by an explanation of other points which he also mentions in that context, as follows: ‘[law must be] in harmony with nature and with the custom of the country, and suitable to the time and place.’ For all these latter factors evidently serve to define that practicability, as we shall [presently] explain.

17.34 The third assertion: it is inherent in the nature of law that it shall relate to a practicable object. My third assertion, then, is this: it is inherent in the nature of law that it shall be practicable. This assertion, interpreted in a general sense, is applicable to every law.

However, in order that it may be proved and expounded, we should note that the term possibilis admits of two distinct interpretations: first, as opposed, absolutely, to impossibilis; secondly, as opposed to what is difficult, oppressive, and burdensome.

Taken in the first sense, this property of practicability is35 a self-evident [requirement of law], whatever the evasive arguments heretics may employ. For that which does not fall within the realm of freedom does not fall within that of law; but what is absolutely impossible does not come within the realm of freedom, since the latter of its very nature demands power to choose either of two alternatives; and therefore, [what is impossible] cannot be the subject-matter of law. Similarly, in cases of transgression or omission which cannot be reckoned as involving guilt or calling for punishment, it is impossible for law to intervene. For it is a part of the intrinsic nature of law that it shall contain some intrinsic element of obligation; but the omission to perform impossible deeds cannot be accounted guilt (any more than the performance of what is absolutely necessary is accounted deserving of a reward); and therefore, laws cannot be concerned with matters of this sort.

18.36 The assertion laid down by the Council of Trent is confirmed. Moreover, in this [first and absolute] sense, at all events, the Council of Trent (Sixth Session, and Chap. xi, canon 18) laid down the same assertion with

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regard to divine laws, also.37 Bellarmine, too (De Iustificatione, Bk. IV, chap. xi), and Andreas de Vega (Tridentini Decreti de Justificatione Expositio et Defensio, Bk. XI, chap. ix), opposing the heretics38 of that time, furnish extensive proofs to the same effect, based upon the Scriptures, upon the writings of the Fathers, and upon reason. Consequently, it is clear, a fortiori, that it is still more necessary for human laws to be practicable [in the absolute sense], because they are derived from a lesser power and are a participation (so to speak) in the divine law, and because the arguments adduced with respect to divine law, apply a fortiori with respect to these [human precepts].

There is the further argument that Augustine (De Natura et Gratia, Chap. xcvi [Chap. lxix]) says, not merely that God does not command that which is impossible, but also that, ‘It is a matter of firmest belief that a just and good God cannot have commanded impossibilities’. How, then, shall man have been able to command impossibilities? In this connexion, there is a vast difference between God and man. For God can command certain things impossible to nature, being able to render them possible through grace, which He for His part does not withhold in so far as it is necessary to the observance of His commandments; and consequently, the commandments of God relate always to something which is possible [of achievement], since that which we are able to achieve through those who befriend us, we are in an absolute sense able to achieve, provided that this friendly assistance is surely to be had and ready to hand. Human beings, however, cannot supply the power necessary for the fulfilment of precepts, and therefore they must necessarily assume that this power exists either by the force of nature

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or through grace, according to the character of the precept in question. At this point, to be sure, difficulties might be raised as to the possibility of loving God, of overcoming concupiscence, and of obeying the commandments; but we shall take up these matters in the treatise On Grace.39

19.40 The words of Isidore [Etymologies, Bk. V, chap. xxi], when he requires of law that it shall be practicable, should, then, be interpreted in accordance with this last part of our discussion. For Isidore is speaking principally of human law, and therefore, in order to explain the kind of practicability [to which he refers], he adds the phrase, ‘in harmony with nature’; that is to say, regard being had for the frailty and the constitution of nature. This condition, God Himself, in His own way, observes. For He refrains from prescribing that virginity be preserved by all persons, since this would be impossible, according to nature. So, also, the canon law refrains from prescribing that communion be received on all feast days, because such a practice could not be worthily observed, in view of the conditions inherent in nature. The same argument applies to other instances. Under this head comes the contention (upheld by St. Thomas) that law should be adapted to the subjects, in accordance with their [varying] capacities, so that the same fasts are not imposed upon children as upon their elders.

Isidore makes a further addition [ibid.], in the words, ‘[in harmony] with the custom of the country’. For custom is a second nature; and therefore, that which is repugnant to custom is held to be decidedly repugnant to nature and, consequently, almost morally impossible. This condition, however, should be understood as referring to custom that is righteous and advantageous to the state. For evil custom should be amended by law; and even though [a given custom] may have been at one time

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advantageous, nevertheless, if the state of affairs has undergone so great a change that [the same custom] ceases to be of advantage and the opposite course becomes expedient for the common good, then, in that case also, it will be possible for law to override custom; a point which we shall discuss later, in the proper context.

Finally, Isidore adds [Etymologies, Bk. V, chap. xxi], ‘suitable to the time and place’ [as qualifying words], since regard should be had for these circumstances, in every prudent act. In this connexion, however, they are to be considered, not from the standpoint of the act of command, but from that of the subject-matter or act which is prescribed, since not in every place, nor at every time, are the same actions suitable; wherefore, in the process of legislation, the said circumstances should be accorded the most careful consideration, as Augustine, too (Confessions, Bk. III, chap. xxxvii [chap. vii]), has rightly declared.

If, however, we give this matter proper attention, we shall see that the circumstances in question are also determining elements of the practicability of any law whatsoever, since a given thing may be regarded as morally impossible at one time and as easily [accomplished] at another time; the same argument being applicable in due proportion to matters of locality. Sometimes, moreover, these circumstances may affect the righteousness [of a law], owing to similar reasons.

20.41 Finally, the explanation of the conditions discussed above enables us to understand that, in so far as these conditions may be pertinent to the substance and validity of law, they are correspondingly necessary either to the justice or to the requisite practicability of human law; since legislative power has been granted to men in conjunction with such just limitations.

The determination, however, of the cases which involve a substantial defect in regard to such conditions, must be left to prudent judgment; and this judgment must be based upon a high degree of certainty, if a law is to be adjudged invalid on such grounds. For the statement which I made above,42 namely, that the injustice [of a law] must be clear and beyond

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doubt [if the law is to be declared invalid], is a statement which applies in the present43 connexion with much greater force. This is true, partly because of the reasons set forth in that earlier passage, since they hold good also for the matter now under discussion; and partly because less danger exists in connexion with this matter, since the doubt [in this case] turns solely upon a temporal objection.

The difference between injustice from the standpoint of subject-matter, and injustice from the standpoint of mode. For we must note the difference between injustice in a law from the standpoint of subject-matter, and injustice therein from the standpoint of mode.

In the former case, if the injustice clearly exists, it is on no account permissible to obey the law—not even for the sake of avoiding any damage or scandal whatsoever—since it is never permissible to do wrong for the sake of any end.

But in the second case, though the law may not of itself be binding, a subject may obey it if he so chooses, provided he does not co-operate in [any resulting] injustice; for he has the power to cede his own right. Accordingly, it is much more credible, that he can be bound to obey in a doubtful case. And, indeed, even in cases of indubitable injustice [i.e. from the standpoint of mode], the subject may sometimes be bound to obedience in order to avoid scandal; since the latter must be avoided, though some temporal damage be suffered in consequence. This view is supported by the Decretals (Bk. II, tit. XXVI, chap. ii); it also finds a basis in Augustine (De Verbis Domini, Serm. vi [Sermons, lxii, Migne ed.] and On Psalm cxxiv); and it has been noted by St. Thomas (I.–II, qu. 96, art. 4). Adrian (Quaestiones Quodlibeticae, No. 6, ad 1), too, may be consulted in the same connexion; as may Gabriel (on the Sentences, Bk. IV, dist. xvi, qu. 3 [Dicitur autem lex]), the jurists (on Decretals, Bk. II, tit. XXVI, chap. ii), Panormitanus (on Decretals, Bk. I, tit. II, chap. vii, no. 9), the Cardinal (on Decretum, Pt. I, dist. L, can. xxxvi), and Bellarmine (De Romano Pontifice, Bk. IV, chap. xv).

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CHAPTER XII

What Definition of Law (Lex) Is Derived from the Conditions of Law Above Set Forth?

1. The method above indicated1 was employed by St. Thomas (I.–II, qu. 90, art. 4), when, from the characteristic properties of lex as he had recorded them, he drew a definition of the term, a definition which I shall presently quote. For other definitions of lex have been laid down, and these have been cited and rejected by Soto on St. Thomas (De Iustitia et Iure, Bk. I, qu. i), by Castro (De Potestate Legis Poenalis, Bk. I, chap. ii) and by other modern authors. It is unnecessary, however, to dwell upon this point, since the descriptions in question are not true definitions, but eulogies of law, or else refer not to law in general, but to some particular law. Thus Cicero (Laws, Bk. I [Bk. II, chap. iv]) has said that: ‘Law is something eternal existing in the mind of God’, and (Book II [, chap. iv]), that it is: ‘The right reason of supreme Jove’, descriptions which are suitable for the eternal law. In another passage [Laws, Bk. I, chap. vi], indeed, he declares that law is ‘Right reason,2 implanted in nature’. Similarly, Clement of Alexandria has also said that law is ‘right reason’. And these statements are applicable to natural law. Aristotle, however, in the Rhetoric to Alexander, has asserted that, ‘Law is the common consent of the state,’ &c., and again (Ethics, Bk. X, last chapter [, § 12]), that it is, ‘a rule emanating from a certain wisdom’, &c. These assertions may fittingly be applied to human or civil law. Similar declarations are found in several passages of Isidore (Etymologies, Bk. II, chap. x and Bk. V, passim), whom we have frequently cited, and to these passages Gratian refers in the Decretum (Pt. I, dists. I and IV). Moreover, definitions of a like nature may be inferred from various laws of the Digest (I. i and iii).

2. Various definitions of law. A more general definition may be drawn from the statement made by St. Thomas (I.–II, qu. 91, art. 2 [art. 1])

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that: ‘Law is a dictate of practical reason emanating from the prince who rules some perfect community.’ Castro, however, defines law differently (De Potestate Legis Poenalis, Bk. I, chap. i), as ‘The righteous will of one who represents the people, when that will is promulgated either orally or in writing, with the intention of binding the subjects to obey it’. These definitions express the personal opinions of the individuals who framed them, a practice which should be avoided, in so far as is possible; for a definition ought to consist of a primary principle (as it were), on a universally applicable basis. Furthermore, the definition last quoted contains certain elements which are not strictly necessary, or which require fuller explanation. Take, for example, the statement that [law] is a righteous will; for, strictly speaking, it could fail to be righteous in an absolute sense. Again, [we may question] the phrase, ‘one who represents the people’, since [the legislator] may be either the people themselves, or some one who does not represent the people but is nevertheless charged with caring for them. And as for the first of the two definitions, it is applicable to law only in so far as law dwells within the mind of the prince; whereas, in the present discussion, we are treating also of external law.

Thus Gabriel (on the Sentences, Bk. III, dist. xxxvii, art. 1 [, par. Lex obligatoria]) has defined law as: ‘The explicit sign made by right reason when the latter dictates that some one shall perform or shall refrain from performing a given action.’ It would seem that this definition is approved by Aristotle, when he says [Nicomachean Ethics, Bk. X, chap. ix, § 12] that, ‘law […] is a rule emanating from a certain wisdom,3 [etc.]’. One ought not, however, to limit the definition to the external sign alone. Moreover, the entire definition above quoted may be applied to numerous precepts or signs which are not, properly speaking, laws.

Finally, the same is true of other, similar definitions which can be found in the works of Gerson (Pt. III, tract. De Vita Spirituali, Lect. 10 and Pt. I, tract. De Potestate Ecclesiastica et Origine Iuris et Legum).

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3. Consequently, that deduced by St. Thomas (I.–II, qu. 90, art. 4) has more frequently been adopted, namely: ‘Law is an ordinance of reason for the common good, promulgated by one who is charged with the care of the community.’ Alexander of Hales, too (Summa Universae Theologiae, Pt. III, qu. xxvi, memb. 4 [memb. 3]), offers almost the same definition.

In the first place, the definition in question4 contains as its generic term, the expression, ‘ordinance of the reason’, an expression which is to be interpreted in an active and not a passive sense. For the ordinance is laid upon the subjects through the law, but the act of ordering issues from the lawgiver; this act whereby he orders, is given the name of an active ordinance; and that active ordinance must emanate from the reason; therefore, it is called an ordinance of the reason. But this term (whatever may be the particular sense in which it is employed by the authors [of the definition]) is not of itself restricted to an act of the intellect, nor to one of the will. For, in the case of both faculties, there may be an ordinance, and that ordinance which pertains to the will may be said to pertain to the reason, either because the will itself is a rational faculty, or, in any case, because it ought to be directed by right reason, especially in the law-making process. The term in question may even be applied to an external as well as to an internal act; for an external precept is also an ordinance of the reason, that is to say, an ordinance dictated by the reason.

The remainder [of this definition], however, is added by way of differentiation, and includes virtually all the conditions of law, as is sufficiently evident from what we have already said.

4. Objection. A question may indeed arise owing to the fact that the said definition contains no limitation whereby counsel is excluded from the nature of law. Accordingly, some persons grant that counsel is comprehended within law, a supposition which—as I indicated above,5 and as I shall repeat in the following Chapter6—is, strictly speaking, not true.

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Solution; and the difference between law and counsel. I therefore reply that counsel is excluded in a twofold manner by the definition in question.7 For counsel, as such, is not of its very nature derived from a superior in so far as he possesses power over and charge of his subjects; whereas law should be an ordinance of the reason such that it emanates thus from one having charge of the community, even as this very definition provides, for the definition must be understood in its essential terms and formally.

Similarly, prayer, or petition, should be excluded from this ordinance of the reason. For these three things—precept, counsel and petition—agree in this respect: that, through each of them, one person is ordered or directed to action by means of another’s reason, so that each of the three may be said to be an ordinance of the reason. And nevertheless, they differ one from another. For a petition is normally addressed by an inferior to a superior; although it may occur between equals and may sometimes proceed from a superior with respect to an inferior, which, however, does not apply in so far as regards the true nature of petition. Indeed, even in such an [abnormal] situation, the one submits himself, in a sense, to the other; as I have remarked above. Counsel, on the other hand, passes essentially between equals; and if it implies a certain pre-eminence on the part of the counsellor, that pre-eminence is one of wisdom only, not of power. But law essentially proceeds from a superior with respect to an inferior; and this is indicated by the definition under discussion. Accordingly, counsel is in this way sufficiently excluded from partaking of the nature of law. Furthermore, the kind of ordinance in question should be interpreted as being an efficacious ordinance that has compulsory force, as Aristotle declared; and this specification would seem to be laid down in the word ‘promulgated’, since true promulgation apparently does not pertain to counsel. For the word promulgation implies an order for the purpose of creating an obligation, and it is in this respect most of all that counsel differs from law.

5. Another objection. Finally, there would seem to be [another] objection to this same definition of law, namely: the fact that it is possible that a

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prelate may, in accordance with right reason, and by making his will sufficiently clear to the community, order those subject to him to execute a given act; and that [in so doing] he will nevertheless not be making a law, since [his order] does not involve a perpetual and stable precept, such as is requisite, according to what we have said, to the nature of law; so that the entire definition given above is applicable [, it would seem,] to precepts promulgated for a community, even when they have been enjoined only for a day.

Solution. To this objection, I reply briefly that either St. Thomas understood ‘law’ in the broader sense, including thereunder every precept of this sort; or else, the first part of the definition should, indeed, be so interpreted that the phrase ‘an ordinance of the reason’ is made to refer solely to ordinances that are stable and enduring.

The definition laid down by the author. Therefore, law may perhaps be more briefly defined as follows: law ‘is a common, just and stable precept, which has been sufficiently promulgated’. For this generic definition has also been laid down by St. Thomas (qu. 96, art. 1, ad 2 [I.–II, qu. 96, art. 4]) and by the jurist [Papinian] (Digest, I. iii. 1); and by means of that definition, particular precepts are excluded, while by means of the remaining terms, all those elements are provided for which can be desired in the case of law, as is easily apparent to any one who reflects upon the remarks made above.

CHAPTER XVIII

Are All Men in This Life Subject to Law and Bound by It?

1. We have said that the chief effect of law consists in its binding power,1 and that all its other effects have their roots in that one alone. Binding power, however, must of necessity relate to some one on whom it is imposed; and therefore, in order to provide a perfectly clear understanding

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of this effect, it is necessary to explain what persons fall under the binding power of law, or are capable of so doing. For although we have already demonstrated that law is established for men, and for men considered in common—that is to say, established for some community—still, we have not explained whether all men are capable of being subject to this obligation, or whether some are (so to speak) exempt.

This question has been discussed by St. Thomas (I.–II, qu. 96, art. 5), in special relation to human law; for he may have thought the discussion unnecessary with respect to law in general, in view of the fact that absolutely all adult human beings in this life (for of such are we speaking) are most clearly subject to some law.

However, the heretics of the present age force us to deal generally, at this point, with the said question. In the course of this investigation, we are not asking what men are bound by positive laws—divine or human; nor even what men are bound by the natural law. For these are points to which we shall later2 give special consideration. Much less, then, do we inquire whether all men are bound by all laws, since it is clear that every individual is not bound by each and every law. For such a state of affairs, in so far as concerns positive laws, is neither necessary nor possible; as is self-evident. Therefore, we inquire solely whether the binding force of law, as such, or of some particular law, considered abstractly or in itself alone, extends to all men in such a way that there is no one of them not subject to the yoke of some law.

2. The heretics exempt all just men from [the yoke of] law. For the heretics of the present age hold that just3 men are exempt from the yoke of law; nor are they speaking simply of human law, as some persons believe, but rather of law in the absolute sense, a fact which may clearly be inferred from the fundamental principles that they uphold.4

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These principles have been carefully and accurately explained by Peter Canisius (De Verbi Dei Corruptelis, Bk. I, chap. xi), by Salmerón (on the Epistle to the Galatians, Disp. xiv) and by Cardinal Bellarmine (De Iustificatione, Bk. IV, chap. i) where the latter cites, among other blasphemies pronounced by Luther, the following, from one of Luther’s sermons: ‘Let us beware of sins, but far more of laws, and good works; and let us give heed only to the promise of God and to faith.’ [Bellarmine] furthermore relates that [these heretics] interpret Christian liberty as consisting in the just man’s freedom from the duty of fulfilling the law before God, so that all works are indifferent to him, that is to say, neither prescribed nor forbidden.

They base their view partly upon their own errors, partly upon certain misinterpreted Scriptural passages.

The principal basis of that view is their denial of true justice5 and of the necessity of works for the attainment of justice. For they say that men are justified solely through their acceptance by God, and through the lack of any extrinsic imputation [of sin] by Him; a state attained by every person who firmly believes that his sins have been forgiven him, or rather, are not imputed to him, because of Christ’s merits. Furthermore, they say that this faith suffices for salvation, whatever works a man may do. From this basic argument, it necessarily follows that a just man, as conceived by them, is not bound by any law, provided he remains steadfast in the faith; since, whatever works he may perform while believing that they are not imputed to him, he does not incur any punishment, nor are his acts imputed to him as sin. Thus, these heretics would not seem to deny that men are bound by law, in such a way as to imply in their denial that works opposed to law are not sins; on the contrary, they teach that, from other standpoints, all the works of the just are sinful, that it is impossible even for the just to fulfil the law of God, and similar doctrines which presuppose that law has binding force and is a rule for such works. They assert, then, that this obligation is morally removed (so to speak) or rendered ineffective, by that faith of theirs; since [such faith] renders one not liable to punishment,6

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and since, by reason of it, one’s deed does not appear as evil in the sight of God, even though it may in itself be evil.

Another basis for their view is derived from a certain false distinction made between the law and the Gospel, which we shall consider below, when we treat of the law of grace.7 And as for the Scriptural testimony on which they make a show of reliance, that will be discussed in the following Chapter.8

3. The Faith teaches that all men in this life are subject to law. But the true Catholic belief is that all men in this life are subject to law to such an extent, that they are bound to obey it, and become legal culprits in the sight of God, if they do not voluntarily observe the law. This is a certain conclusion, and one of faith, defined in the Council of Trent ([Sixth Session,] Chap. xi and canons 18, 19 and 20), where the Council particularly mentions the just and the perfect, since it lays down a doctrine specifically in opposition to heretics. But it does not omit the general doctrine, for it makes this statement: ‘Moreover, no one, howsoever truly he may have been justified, should consider himself free from the obligation to observe the commandments.’ If, then, no one is exempted from that obligation, all men in this world are certainly subject to laws.

The truth of this conclusion may be proved inductively, as follows: from the beginning of their creation men were subject to natural law and, furthermore, Adam and Eve were subject to a prohibition against eating of the tree of knowledge, even though they were just and in a state of innocence. Moreover, it is manifest that, after the fall, and before the advent of Christ, the Jews were under the written law and the rest of mankind, under natural law (to omit human laws for the time being from our discussion). Such is the explicit teaching of Paul (Romans, Chaps. i and ii), who shows that the Jews as well as the Gentiles were transgressors of the law; the former, of the written law, and the latter, of the natural law, which they manifested as being written in their hearts whenever they observed any part of it. And these laws were not less binding upon the just than upon the unjust, since they were laid down for all without distinction.

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Moreover, the natural law is binding essentially and intrinsically, both before and after the states of justice or injustice; but the written law had its inception among the just, inasmuch as it was given to the whole of that faithful people, which included Moses, Aaron, and many other just persons, while the law of circumcision had even before that time been given to Abraham, who was just.

4. Subsequently to the advent of Christ, however, there have been no just persons outside of the Church; and therefore, with regard to the men who are entirely outside of it, we can only say that the unbelieving Gentiles are bound by that same natural law, since no dispensation [therefrom] has been granted to them, nor has any grace been imparted to them. Furthermore, it is certain that they are bound to accept the faith and the law of Christ, as He Himself testifies, when He says (Matthew, Chap. xxviii [, vv. 19, 20]): ‘Going [therefore], teach ye all nations; baptizing them in the name of the Father, and of the Son and of the Holy Ghost. Teaching them to observe all things whatsoever I have commanded you.’

As to the Jews, it is also manifest that they are bound by natural law, and subject to the same precept as the Gentiles with respect to receiving baptism and accepting the faith and the law of Christ; a fact which Mark made sufficiently clear, saying (Mark, Chap. xvi [, vv. 15, 16]): ‘preach the Gospel to every creature.… he that believeth not’ (that is to say, believeth not with a living faith that works through charity)9 ‘shall be condemned.’ Furthermore, those Jews, although they are no longer bound in actual fact by the written law, since it has been abrogated, nevertheless sin through a faulty conscience when they fail to observe it; for Paul (Galatians, Chap. v [, v. 3]) testifies,10 ‘to every man circumcising himself, that he is a debtor to do the whole law’.

5. Wicked Christians are bound by the law of the Gospel. I come now to the Church of Christ, to which the words of the heretics especially refer, and in that body, I distinguish the wicked from the good, or just.

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As to the wicked, it is manifest that they are bound by the law, seeing that they are wicked for this very reason, namely, that they fail to observe the law. The heretics will perhaps assert that these persons are sinners, not for the simple reason that they fail to observe the commandments, but because they thus fail while they are without faith; that is to say, because they have not a firm faith, while acting contrary to the law, that such evil works are not imputed to them and do not cause them to lose the goodwill and favour of God in which they consider that their justness rests. But this error may easily be refuted by means of the words of Christ, Who, in the sentence of condemnation of the bad Christians (Matthew, Chap. xxv [, vv. 41 et seq.]), condemns them, not because they have not believed, nor because while disobeying the precepts, they have lacked faith in the non-imputation [of sin against them], but simply because they have not performed the works of mercy and because, accordingly, they have failed to observe the law of mercy and charity. This point has been discussed by Augustine, in the works (De Fide et Operibus, Chap. xv and De Octo Dulcitii Quaestionibus, Chap. [Qu.] i) in which he amasses a number of other Scriptural passages as testimony confirming the position in question. At present, however, it is not necessary to dwell at length upon this phase of the subject, either; for with respect to these baptized evildoers, also, the heretics do not deny that such persons are subject to the law, but [merely] err in their mode of explanation, a matter of which we shall treat presently, and more fully, in the treatises on Grace and Faith.11

6. It remains, then, to speak of the just among the faithful. Some of these persons may be baptized only in desire and may be said to be of the Church in this sense, that is, by merit, though they are not so numbered; whereas others are baptized persons in actual fact and are numbered among the living members of the Church.

With regard to the first group, it is clear that they are bound at least by the law of baptism, over and above the obligations imposed by natural law and by faith, hope, charity, and penitence. However, we shall demonstrate later,12 and in the proper contexts, that even just persons who have been

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baptized are bound by human laws, both civil and ecclesiastical, and also by the positive divine law laid down by Christ.

Accordingly, we undertake at this point to prove [the existence of a similar obligation] in regard to divine, moral, or natural law.

The first proof is as follows: the law is so essential, so necessary in its very nature, that it cannot be abolished, as we shall demonstrate in the following book.

7. Secondly, Christ did not abolish the law, but on the contrary confirmed it, at the very beginning of His preaching (Matthew, Chap. v), where He clarified it and purged it of the corruptions of the Pharisees and the imperfections of the Mosaic law, and, having added counsels and means for the observance of the law, perfected and in a certain sense enriched it. Moreover, it is certain that all these teachings were laid down by Our Lord for His future Church, for the just as well as for the unjust, since He says [ibid., vv. 20 et seq.] to all: ‘[…] Unless your justice abound more than that of the scribes and Pharisees, you shall not enter into the kingdom of heaven’, and so forth. Especially should one reflect upon the words [ibid., Chap. vii, v. 13], ‘Enter ye in at the narrow gate […]’. For He most clearly speaks of the observance of His commandments as ‘the narrow gate’, commandments which He declares to be included in the principle, ‘[…] whatsoever you would that men should do to you, do you also to them’ [ibid., v. 12]; and He teaches that this principle pertains to the Gospel and relates to all who profess the Gospel.

8. Thirdly, all that Christ taught on the night of His Supper, with regard to the observance of precepts and particularly of charity, has a special pertinence in relation to just persons who have been baptized. For the Apostles were just and had been baptized, and to them He said (John, Chap. xiv [, v. 15]): ‘If you love me, keep my commandments’; again [v. 21], ‘He that hath my commandments, and keepeth them; he it is that loveth me’; yet again [v. 23], ‘If any one love me, he will keep my word’ and [v. 24], ‘He that loveth me not, keepeth not my words’; and also, in Chapter xv [, v. 9], ‘Abide in my love’, and in a subsequent verse [14:] ‘You are my friends, if you do the things that I command you.’ These conditions have the force of a threat, and indicate the necessity for observing the commandments in order that charity may be preserved; and therefore, the just are bound to

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such observance, and without it they will not preserve [their] justness. An infinite number of similar passages from the Scriptures might be adduced, but there is no need to dwell upon a matter that is clear and evident by the light of natural reason—in so far, at least, as moral precepts are concerned.

9. The fundamental arguments of the heretics are refuted. The basic position of the heretics involves a number of errors, of which we cannot treat at this point, but which are to be discussed in various parts of this work. For in the first place, their assertion that the divine commandments are impossible of fulfilment has been rejected above,13 and [the validity of this rejection] will be made more evident in the treatise on Grace.14 Secondly, in that same treatise we shall refute their declaration that all the works of the just are sins, and particularly the declaration that these works are mortal sins. Thirdly, we shall lay down the distinction between the Old and the New Laws at the end of this treatise [De Legibus, Bks. IX and X]15 and shall assail the false distinction devised by the heretics. Fourthly, in the treatise on Grace,16 we shall pluck out the root of all the heresies, which is imputed justness, and we shall demonstrate in that treatise that men are truly, actually and intrinsically justified through an inherent justness given by Christ, and that, through this same justness, their sins are truly and completely remitted, not merely covered over or left free from imputation of punishment. Accordingly, it will become clear and indisputable that the works of the just are weighed, estimated and imputed by God, according to their character in point of fact. Consequently, if they are good works, they are imputed for reward; if slightly evil, for temporal punishment, unless they are blotted out by penance and satisfaction; if they are grave sins, they are so imputed as actually to destroy the just character [of the doer] until that character is restored through penance.

10. Thus, the basic position of the heretics is contrary also to natural reason, and most decidedly inconsistent with divine goodness. For sin, as such, cannot fail to be displeasing to God, since ‘[…] to God the wicked and his wickedness are hateful alike’ [Wisdom, Chap. xiv, v. 9]. It is

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furthermore inconsistent with divine justice that sins should be more easily forgiven, or should not be imputed, to those who commit them while possessed of more faith in God Himself; which would be as if He Himself granted licence to sin, by promising that sins would not be imputed against those who believe that they are not.17 This is true especially in view of the fact that such a promise is vain and fictitious, since it appears nowhere in the New Testament, any more than it does in the Old. On the contrary, Paul says (Romans, Chap. ii [, v. 16]) that God shall judge the secrets of men by Jesus Christ according to the Gospel—which will be, assuredly, according to the law and the truth, not according to the false opinions of men.

Finally, I ask of these heretics whether or not men were justified in the faith of Christ before His advent. If they answer in the negative, they gravely offend against the universal redemption of Christ and contradict explicit passages in the Holy Scriptures. ‘For there is no other name under heaven given to men, whereby we must be saved’ (Acts, Chap. iv [, v. 12]); since, as Paul testifies (Romans, Chap. iii [, v. 25]), God hath proposed Him alone to be a propitiator through faith in His blood. If, on the other hand, [the heretics] affirm that justification has always been effected through faith, then, in order to be consistent, they must say that it has always been effected without law or works, and through non-imputation [of sins] combined simply with faith on the part of men. Therefore, these same heretics will be forced to assert also that the just, under the natural or the Old Law, were not subject to the law, nor did they sin against it even in transgressing it, provided that they transgressed with faith in the non-imputation [of their act]. What, then, remains for them to attribute especially to the Gospel? Consequently,18 this basic position is impious and vain.