Summa Theologica Part II (Pars Prima Secundae) Part 149

This suffices for the Replies to the Objections.

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FOURTH ARTICLE [I-II, Q. 95, Art. 4]

Whether Isidore's Division of Human Laws Is Appropriate?

Objection 1: It would seem that Isidore wrongly divided human statutes or human law (Etym. v, 4, seqq.). For under this law he includes the "law of nations," so called, because, as he says, "nearly all nations use it." But as he says, "natural law is that which is common to all nations." Therefore the law of nations is not contained under positive human law, but rather under natural law.

Obj. 2: Further, those laws which have the same force, seem to differ not formally but only materially. But "statutes, decrees of the commonalty, senatorial decrees," and the like which he mentions (Etym. v, 9), all have the same force. Therefore they do not differ, except materially. But art takes no notice of such a distinction: since it may go on to infinity. Therefore this division of human laws is not appropriate.

Obj. 3: Further, just as, in the state, there are princes, priests and soldiers, so are there other human offices. Therefore it seems that, as this division includes _military law,_ and _public law,_ referring to priests and magistrates; so also it should include other laws pertaining to other offices of the state.

Obj. 4: Further, those things that are accidental should be pa.s.sed over. But it is accidental to law that it be framed by this or that man. Therefore it is unreasonable to divide laws according to the names of lawgivers, so that one be called the "Cornelian" law, another the "Falcidian" law, etc.

_On the contrary,_ The authority of Isidore (Obj. 1) suffices.

_I answer that,_ A thing can of itself be divided in respect of something contained in the notion of that thing. Thus a soul either rational or irrational is contained in the notion of animal: and therefore animal is divided properly and of itself in respect of its being rational or irrational; but not in the point of its being white or black, which are entirely beside the notion of animal. Now, in the notion of human law, many things are contained, in respect of any of which human law can be divided properly and of itself. For in the first place it belongs to the notion of human law, to be derived from the law of nature, as explained above (A. 2). In this respect positive law is divided into the _law of nations_ and _civil law,_ according to the two ways in which something may be derived from the law of nature, as stated above (A. 2). Because, to the law of nations belong those things which are derived from the law of nature, as conclusions from premises, e.g. just buyings and sellings, and the like, without which men cannot live together, which is a point of the law of nature, since man is by nature a social animal, as is proved in _Polit._ i, 2. But those things which are derived from the law of nature by way of particular determination, belong to the civil law, according as each state decides on what is best for itself.

Secondly, it belongs to the notion of human law, to be ordained to the common good of the state. In this respect human law may be divided according to the different kinds of men who work in a special way for the common good: e.g. priests, by praying to G.o.d for the people; princes, by governing the people; soldiers, by fighting for the safety of the people. Wherefore certain special kinds of law are adapted to these men.

Thirdly, it belongs to the notion of human law, to be framed by that one who governs the community of the state, as shown above (Q. 90, A.

3). In this respect, there are various human laws according to the various forms of government. Of these, according to the Philosopher (Polit. iii, 10) one is _monarchy,_ i.e. when the state is governed by one; and then we have _Royal Ordinances._ Another form is _aristocracy,_ i.e. government by the best men or men of highest rank; and then we have the _Authoritative legal opinions_ (_Responsa Prudentum_) and _Decrees of the Senate_ (_Senatus consulta_). Another form is _oligarchy,_ i.e. government by a few rich and powerful men; and then we have _Praetorian,_ also called _Honorary,_ law. Another form of government is that of the people, which is called _democracy,_ and there we have _Decrees of the commonalty_ (_Plebiscita_). There is also tyrannical government, which is altogether corrupt, which, therefore, has no corresponding law.

Finally, there is a form of government made up of all these, and which is the best: and in this respect we have law sanctioned by the _Lords and Commons,_ as stated by Isidore (Etym. v, 4, seqq.).

Fourthly, it belongs to the notion of human law to direct human actions. In this respect, according to the various matters of which the law treats, there are various kinds of laws, which are sometimes named after their authors: thus we have the _Lex Julia_ about adultery, the _Lex Cornelia_ concerning a.s.sa.s.sins, and so on, differentiated in this way, not on account of the authors, but on account of the matters to which they refer.

Reply Obj. 1: The law of nations is indeed, in some way, natural to man, in so far as he is a reasonable being, because it is derived from the natural law by way of a conclusion that is not very remote from its premises. Wherefore men easily agreed thereto. Nevertheless it is distinct from the natural law, especially it is distinct from the natural law which is common to all animals.

The Replies to the other Objections are evident from what has been said.

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QUESTION 96

OF THE POWER OF HUMAN LAW (In Six Articles)

We must now consider the power of human law. Under this head there are six points of inquiry:

(1) Whether human law should be framed for the community?

(2) Whether human law should repress all vices?

(3) Whether human law is competent to direct all acts of virtue?

(4) Whether it binds man in conscience?

(5) Whether all men are subject to human law?

(6) Whether those who are under the law may act beside the letter of the law?

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FIRST ARTICLE [I-II, Q. 96, Art. 1]

Whether Human Law Should Be Framed for the Community Rather Than for the Individual?

Objection 1: It would seem that human law should be framed not for the community, but rather for the individual. For the Philosopher says (Ethic. v, 7) that "the legal just ... includes all particular acts of legislation ... and all those matters which are the subject of decrees," which are also individual matters, since decrees are framed about individual actions. Therefore law is framed not only for the community, but also for the individual.

Obj. 2: Further, law is the director of human acts, as stated above (Q. 90, AA. 1, 2). But human acts are about individual matters.

Therefore human laws should be framed, not for the community, but rather for the individual.

Obj. 3: Further, law is a rule and measure of human acts, as stated above (Q. 90, AA. 1, 2). But a measure should be most certain, as stated in _Metaph._ x. Since therefore in human acts no general proposition can be so certain as not to fail in some individual cases, it seems that laws should be framed not in general but for individual cases.

_On the contrary,_ The Jurist says (Pandect. Justin. lib. i, t.i.t.

iii, art. ii; De legibus, etc.) that "laws should be made to suit the majority of instances; and they are not framed according to what may possibly happen in an individual case."

_I answer that,_ Whatever is for an end should be proportionate to that end. Now the end of law is the common good; because, as Isidore says (Etym. v, 21) that "law should be framed, not for any private benefit, but for the common good of all the citizens." Hence human laws should be proportionate to the common good. Now the common good comprises many things. Wherefore law should take account of many things, as to persons, as to matters, and as to times. Because the community of the state is composed of many persons; and its good is procured by many actions; nor is it established to endure for only a short time, but to last for all time by the citizens succeeding one another, as Augustine says (De Civ. Dei ii, 21; xxii, 6).

Reply Obj. 1: The Philosopher (Ethic. v, 7) divides the legal just, i.e. positive law, into three parts. For some things are laid down simply in a general way: and these are the general laws. Of these he says that "the legal is that which originally was a matter of indifference, but which, when enacted, is so no longer": as the fixing of the ransom of a captive. Some things affect the community in one respect, and individuals in another. These are called "privileges," i.e. "private laws," as it were, because they regard private persons, although their power extends to many matters; and in regard to these, he adds, "and further, all particular acts of legislation." Other matters are legal, not through being laws, but through being applications of general laws to particular cases: such are decrees which have the force of law; and in regard to these, he adds "all matters subject to decrees."

Reply Obj. 2: A principle of direction should be applicable to many; wherefore (Metaph. x, text. 4) the Philosopher says that all things belonging to one genus, are measured by one, which is the principle in that genus. For if there were as many rules or measures as there are things measured or ruled, they would cease to be of use, since their use consists in being applicable to many things. Hence law would be of no use, if it did not extend further than to one single act. Because the decrees of prudent men are made for the purpose of directing individual actions; whereas law is a general precept, as stated above (Q. 92, A. 2, Obj. 2).

Reply Obj. 3: "We must not seek the same degree of certainty in all things" (Ethic. i, 3). Consequently in contingent matters, such as natural and human things, it is enough for a thing to be certain, as being true in the greater number of instances, though at times and less frequently it fail.

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SECOND ARTICLE [I-II, Q. 96, Art. 2]

Whether It Belongs to the Human Law to Repress All Vices?

Objection 1: It would seem that it belongs to human law to repress all vices. For Isidore says (Etym. v, 20) that "laws were made in order that, in fear thereof, man's audacity might be held in check."

But it would not be held in check sufficiently, unless all evils were repressed by law. Therefore human laws should repress all evils.

Obj. 2: Further, the intention of the lawgiver is to make the citizens virtuous. But a man cannot be virtuous unless he forbear from all kinds of vice. Therefore it belongs to human law to repress all vices.

Obj. 3: Further, human law is derived from the natural law, as stated above (Q. 95, A. 2). But all vices are contrary to the law of nature.

Therefore human law should repress all vices.

_On the contrary,_ We read in _De Lib. Arb._ i, 5: "It seems to me that the law which is written for the governing of the people rightly permits these things, and that Divine providence punishes them." But Divine providence punishes nothing but vices. Therefore human law rightly allows some vices, by not repressing them.

_I answer that,_ As stated above (Q. 90, AA. 1, 2), law is framed as a rule or measure of human acts. Now a measure should be h.o.m.ogeneous with that which it measures, as stated in _Metaph._ x, text. 3, 4, since different things are measured by different measures. Wherefore laws imposed on men should also be in keeping with their condition, for, as Isidore says (Etym. v, 21), law should be "possible both according to nature, and according to the customs of the country."

Now possibility or faculty of action is due to an interior habit or disposition: since the same thing is not possible to one who has not a virtuous habit, as is possible to one who has. Thus the same is not possible to a child as to a full-grown man: for which reason the law for children is not the same as for adults, since many things are permitted to children, which in an adult are punished by law or at any rate are open to blame. In like manner many things are permissible to men not perfect in virtue, which would be intolerable in a virtuous man.

Now human law is framed for a number of human beings, the majority of whom are not perfect in virtue. Wherefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft and such like.

Reply Obj. 1: Audacity seems to refer to the a.s.sailing of others.

Consequently it belongs to those sins chiefly whereby one's neighbor is injured: and these sins are forbidden by human law, as stated.

Reply Obj. 2: The purpose of human law is to lead men to virtue, not suddenly, but gradually. Wherefore it does not lay upon the mult.i.tude of imperfect men the burdens of those who are already virtuous, viz.

that they should abstain from all evil. Otherwise these imperfect ones, being unable to bear such precepts, would break out into yet greater evils: thus it is written (Ps. 30:33): "He that violently bloweth his nose, bringeth out blood"; and (Matt. 9:17) that if "new wine," i.e. precepts of a perfect life, "is put into old bottles,"

i.e. into imperfect men, "the bottles break, and the wine runneth out," i.e. the precepts are despised, and those men, from contempt, break into evils worse still.