Objection 2: Further, a virtuous act
proceeds
from a virtue.
Summa Theologica
It may be
necessary simply, because it cannot be otherwise: and that which is
necessary in this way, is not subject to human judgment, wherefore
human law is not concerned with necessity of this kind. Again a thing
may be necessary for an end: and this necessity is the same as
usefulness. Therefore it is superfluous to say both "necessary" and
"useful. "
On the contrary, stands the authority of Isidore.
I answer that, Whenever a thing is for an end, its form must be
determined proportionately to that end; as the form of a saw is such as
to be suitable for cutting (Phys. ii, text. 88). Again, everything that
is ruled and measured must have a form proportionate to its rule and
measure. Now both these conditions are verified of human law: since it
is both something ordained to an end; and is a rule or measure ruled or
measured by a higher measure. And this higher measure is twofold, viz.
the Divine law and the natural law, as explained above [2030](A[2];
Q[93], A[3] ). Now the end of human law is to be useful to man, as the
jurist states [*Pandect. Justin. lib. xxv, ff. , tit. iii; De Leg. et
Senat. ]. Wherefore Isidore in determining the nature of law, lays down,
at first, three conditions; viz. that it "foster religion," inasmuch as
it is proportionate to the Divine law; that it be "helpful to
discipline," inasmuch as it is proportionate to the nature law; and
that it "further the common weal," inasmuch as it is proportionate to
the utility of mankind.
All the other conditions mentioned by him are reduced to these three.
For it is called virtuous because it fosters religion. And when he goes
on to say that it should be "just, possible to nature, according to the
customs of the country, adapted to place and time," he implies that it
should be helpful to discipline. For human discipline depends on first
on the order of reason, to which he refers by saying "just": secondly,
it depends on the ability of the agent; because discipline should be
adapted to each one according to his ability, taking also into account
the ability of nature (for the same burdens should be not laid on
children as adults); and should be according to human customs; since
man cannot live alone in society, paying no heed to others: thirdly, it
depends on certain circumstances, in respect of which he says, "adapted
to place and time. " The remaining words, "necessary, useful," etc. mean
that law should further the common weal: so that "necessity" refers to
the removal of evils; "usefulness" to the attainment of good;
"clearness of expression," to the need of preventing any harm ensuing
from the law itself. And since, as stated above ([2031]Q[90], A[2]),
law is ordained to the common good, this is expressed in the last part
of the description.
This suffices for the Replies to the Objections.
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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.
Objection 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.
Objection 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.
Objection 4: Further, those things that are accidental should be passed
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 [2032](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
[2033](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 God 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
([2034]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 assassins, and so on, differentiated in this
way, not on account of the authors, but on account of the matters to
which they refer.
Reply to Objection 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.
__________________________________________________________________
OF THE POWER OF HUMAN LAW (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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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.
Objection 2: Further, law is the director of human acts, as stated
above ([2035]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.
Objection 3: Further, law is a rule and measure of human acts, as
stated above ([2036]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, tit. 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 to Objection 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 to Objection 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 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 ([2037]Q[92], A[2],
OBJ[2]).
Reply to Objection 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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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.
Objection 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.
Objection 3: Further, human law is derived from the natural law, as
stated above ([2038]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 ([2039]Q[90], AA[1],2), law is framed as
a rule or measure of human acts. Now a measure should be homogeneous
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 to Objection 1: Audacity seems to refer to the assailing 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 to Objection 2: The purpose of human law is to lead men to
virtue, not suddenly, but gradually. Wherefore it does not lay upon the
multitude 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 (Mat. 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.
Reply to Objection 3: The natural law is a participation in us of the
eternal law: while human law falls short of the eternal law. Now
Augustine says (De Lib. Arb. i, 5): "The law which is framed for the
government of states, allows and leaves unpunished many things that are
punished by Divine providence. Nor, if this law does not attempt to do
everything, is this a reason why it should be blamed for what it does. "
Wherefore, too, human law does not prohibit everything that is
forbidden by the natural law.
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Whether human law prescribes acts of all the virtues?
Objection 1: It would seem that human law does not prescribe acts of
all the virtues. For vicious acts are contrary to acts of virtue. But
human law does not prohibit all vices, as stated above [2040](A[2]).
Therefore neither does it prescribe all acts of virtue.
Objection 2: Further, a virtuous act proceeds from a virtue. But virtue
is the end of law; so that whatever is from a virtue, cannot come under
a precept of law. Therefore human law does not prescribe all acts of
virtue.
Objection 3: Further, law is ordained to the common good, as stated
above ([2041]Q[90], A[2]). But some acts of virtue are ordained, not to
the common good, but to private good. Therefore the law does not
prescribe all acts of virtue.
On the contrary, The Philosopher says (Ethic. v, 1) that the law
"prescribes the performance of the acts of a brave man . . . and the
acts of the temperate man . . . and the acts of the meek man: and in
like manner as regards the other virtues and vices, prescribing the
former, forbidding the latter. "
I answer that, The species of virtues are distinguished by their
objects, as explained above ([2042]Q[54], A[2];[2043] Q[60],
A[1];[2044] Q[62], A[2]). Now all the objects of virtues can be
referred either to the private good of an individual, or to the common
good of the multitude: thus matters of fortitude may be achieved either
for the safety of the state, or for upholding the rights of a friend,
and in like manner with the other virtues. But law, as stated above
([2045]Q[90], A[2]) is ordained to the common good. Wherefore there is
no virtue whose acts cannot be prescribed by the law. Nevertheless
human law does not prescribe concerning all the acts of every virtue:
but only in regard to those that are ordainable to the common
good---either immediately, as when certain things are done directly for
the common good---or mediately, as when a lawgiver prescribes certain
things pertaining to good order, whereby the citizens are directed in
the upholding of the common good of justice and peace.
Reply to Objection 1: Human law does not forbid all vicious acts, by
the obligation of a precept, as neither does it prescribe all acts of
virtue. But it forbids certain acts of each vice, just as it prescribes
some acts of each virtue.
Reply to Objection 2: An act is said to be an act of virtue in two
ways. First, from the fact that a man does something virtuous; thus the
act of justice is to do what is right, and an act of fortitude is to do
brave things: and in this way law prescribes certain acts of virtue.
Secondly an act of virtue is when a man does a virtuous thing in a way
in which a virtuous man does it. Such an act always proceeds from
virtue: and it does not come under a precept of law, but is the end at
which every lawgiver aims.
Reply to Objection 3: There is no virtue whose act is not ordainable to
the common good, as stated above, either mediately or immediately.
__________________________________________________________________
Whether human law binds a man in conscience?
Objection 1: It would seem that human law does not bind man in
conscience. For an inferior power has no jurisdiction in a court of
higher power. But the power of man, which frames human law, is beneath
the Divine power. Therefore human law cannot impose its precept in a
Divine court, such as is the court of conscience.
Objection 2: Further, the judgment of conscience depends chiefly on the
commandments of God. But sometimes God's commandments are made void by
human laws, according to Mat. 15:6: "You have made void the commandment
of God for your tradition. " Therefore human law does not bind a man in
conscience.
Objection 3: Further, human laws often bring loss of character and
injury on man, according to Is. 10:1 et seqq. : "Woe to them that make
wicked laws, and when they write, write injustice; to oppress the poor
in judgment, and do violence to the cause of the humble of My people. "
But it is lawful for anyone to avoid oppression and violence. Therefore
human laws do not bind man in conscience.
On the contrary, It is written (1 Pet. 2:19): "This is thankworthy, if
for conscience . . . a man endure sorrows, suffering wrongfully. "
I answer that, Laws framed by man are either just or unjust. If they be
just, they have the power of binding in conscience, from the eternal
law whence they are derived, according to Prov. 8:15: "By Me kings
reign, and lawgivers decree just things. " Now laws are said to be just,
both from the end, when, to wit, they are ordained to the common
good---and from their author, that is to say, when the law that is made
does not exceed the power of the lawgiver---and from their form, when,
to wit, burdens are laid on the subjects, according to an equality of
proportion and with a view to the common good. For, since one man is a
part of the community, each man in all that he is and has, belongs to
the community; just as a part, in all that it is, belongs to the whole;
wherefore nature inflicts a loss on the part, in order to save the
whole: so that on this account, such laws as these, which impose
proportionate burdens, are just and binding in conscience, and are
legal laws.
On the other hand laws may be unjust in two ways: first, by being
contrary to human good, through being opposed to the things mentioned
above---either in respect of the end, as when an authority imposes on
his subjects burdensome laws, conducive, not to the common good, but
rather to his own cupidity or vainglory---or in respect of the author,
as when a man makes a law that goes beyond the power committed to
him---or in respect of the form, as when burdens are imposed unequally
on the community, although with a view to the common good. The like are
acts of violence rather than laws; because, as Augustine says (De Lib.
Arb. i, 5), "a law that is not just, seems to be no law at all. "
Wherefore such laws do not bind in conscience, except perhaps in order
to avoid scandal or disturbance, for which cause a man should even
yield his right, according to Mat. 5:40,41: "If a man . . . take away
thy coat, let go thy cloak also unto him; and whosoever will force thee
one mile, go with him other two. "
Secondly, laws may be unjust through being opposed to the Divine good:
such are the laws of tyrants inducing to idolatry, or to anything else
contrary to the Divine law: and laws of this kind must nowise be
observed, because, as stated in Acts 5:29, "we ought to obey God rather
than man. "
Reply to Objection 1: As the Apostle says (Rom. 13:1,2), all human
power is from God . . . "therefore he that resisteth the power," in
matters that are within its scope, "resisteth the ordinance of God"; so
that he becomes guilty according to his conscience.
Reply to Objection 2: This argument is true of laws that are contrary
to the commandments of God, which is beyond the scope of (human) power.
Wherefore in such matters human law should not be obeyed.
Reply to Objection 3: This argument is true of a law that inflicts
unjust hurt on its subjects. The power that man holds from God does not
extend to this: wherefore neither in such matters is man bound to obey
the law, provided he avoid giving scandal or inflicting a more grievous
hurt.
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Whether all are subject to the law?
Objection 1: It would seem that not all are subject to the law. For
those alone are subject to a law for whom a law is made. But the
Apostle says (1 Tim. 1:9): "The law is not made for the just man. "
Therefore the just are not subject to the law.
Objection 2: Further, Pope Urban says [*Decretals. caus. xix, qu. 2]:
"He that is guided by a private law need not for any reason be bound by
the public law. " Now all spiritual men are led by the private law of
the Holy Ghost, for they are the sons of God, of whom it is said (Rom.
8:14): "Whosoever are led by the Spirit of God, they are the sons of
God. " Therefore not all men are subject to human law.
Objection 3: Further, the jurist says [*Pandect. Justin. i, ff. , tit.
3, De Leg. et Senat. ] that "the sovereign is exempt from the laws. " But
he that is exempt from the law is not bound thereby. Therefore not all
are subject to the law.
On the contrary, The Apostle says (Rom. 13:1): "Let every soul be
subject to the higher powers. " But subjection to a power seems to imply
subjection to the laws framed by that power. Therefore all men should
be subject to human law.
I answer that, As stated above ([2046]Q[90], AA[1],2; A[3], ad 2), the
notion of law contains two things: first, that it is a rule of human
acts; secondly, that it has coercive power. Wherefore a man may be
subject to law in two ways. First, as the regulated is subject to the
regulator: and, in this way, whoever is subject to a power, is subject
to the law framed by that power. But it may happen in two ways that one
is not subject to a power. In one way, by being altogether free from
its authority: hence the subjects of one city or kingdom are not bound
by the laws of the sovereign of another city or kingdom, since they are
not subject to his authority. In another way, by being under a yet
higher law; thus the subject of a proconsul should be ruled by his
command, but not in those matters in which the subject receives his
orders from the emperor: for in these matters, he is not bound by the
mandate of the lower authority, since he is directed by that of a
higher. In this way, one who is simply subject to a law, may not be a
subject thereto in certain matters, in respect of which he is ruled by
a higher law.
Secondly, a man is said to be subject to a law as the coerced is
subject to the coercer. In this way the virtuous and righteous are not
subject to the law, but only the wicked. Because coercion and violence
are contrary to the will: but the will of the good is in harmony with
the law, whereas the will of the wicked is discordant from it.
Wherefore in this sense the good are not subject to the law, but only
the wicked.
Reply to Objection 1: This argument is true of subjection by way of
coercion: for, in this way, "the law is not made for the just men":
because "they are a law to themselves," since they "show the work of
the law written in their hearts," as the Apostle says (Rom. 2:14,15).
Consequently the law does not enforce itself upon them as it does on
the wicked.
Reply to Objection 2: The law of the Holy Ghost is above all law framed
by man: and therefore spiritual men, in so far as they are led by the
law of the Holy Ghost, are not subject to the law in those matters that
are inconsistent with the guidance of the Holy Ghost. Nevertheless the
very fact that spiritual men are subject to law, is due to the leading
of the Holy Ghost, according to 1 Pet. 2:13: "Be ye subject . . . to
every human creature for God's sake. "
Reply to Objection 3: The sovereign is said to be "exempt from the
law," as to its coercive power; since, properly speaking, no man is
coerced by himself, and law has no coercive power save from the
authority of the sovereign. Thus then is the sovereign said to be
exempt from the law, because none is competent to pass sentence on him,
if he acts against the law. Wherefore on Ps. 50:6: "To Thee only have I
sinned," a gloss says that "there is no man who can judge the deeds of
a king. " But as to the directive force of law, the sovereign is subject
to the law by his own will, according to the statement (Extra, De
Constit. cap. Cum omnes) that "whatever law a man makes for another, he
should keep himself. And a wise authority [*Dionysius Cato, Dist. de
Moribus] says: 'Obey the law that thou makest thyself. '" Moreover the
Lord reproaches those who "say and do not"; and who "bind heavy burdens
and lay them on men's shoulders, but with a finger of their own they
will not move them" (Mat. 23:3,4). Hence, in the judgment of God, the
sovereign is not exempt from the law, as to its directive force; but he
should fulfil it to his own free-will and not of constraint. Again the
sovereign is above the law, in so far as, when it is expedient, he can
change the law, and dispense in it according to time and place.
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Whether he who is under a law may act beside the letter of the law?
Objection 1: It seems that he who is subject to a law may not act
beside the letter of the law. For Augustine says (De Vera Relig. 31):
"Although men judge about temporal laws when they make them, yet when
once they are made they must pass judgment not on them, but according
to them. " But if anyone disregard the letter of the law, saying that he
observes the intention of the lawgiver, he seems to pass judgment on
the law. Therefore it is not right for one who is under the law to
disregard the letter of the law, in order to observe the intention of
the lawgiver.
Objection 2: Further, he alone is competent to interpret the law who
can make the law. But those who are subject to the law cannot make the
law. Therefore they have no right to interpret the intention of the
lawgiver, but should always act according to the letter of the law.
Objection 3: Further, every wise man knows how to explain his intention
by words. But those who framed the laws should be reckoned wise: for
Wisdom says (Prov. 8:15): "By Me kings reign, and lawgivers decree just
things. " Therefore we should not judge of the intention of the lawgiver
otherwise than by the words of the law.
On the contrary, Hilary says (De Trin. iv): "The meaning of what is
said is according to the motive for saying it: because things are not
subject to speech, but speech to things. " Therefore we should take
account of the motive of the lawgiver, rather than of his very words.
I answer that, As stated above [2047](A[4]), every law is directed to
the common weal of men, and derives the force and nature of law
accordingly. Hence the jurist says [*Pandect. Justin. lib. i, ff. , tit.
3, De Leg. et Senat. ]: "By no reason of law, or favor of equity, is it
allowable for us to interpret harshly, and render burdensome, those
useful measures which have been enacted for the welfare of man. " Now it
happens often that the observance of some point of law conduces to the
common weal in the majority of instances, and yet, in some cases, is
very hurtful. Since then the lawgiver cannot have in view every single
case, he shapes the law according to what happens most frequently, by
directing his attention to the common good. Wherefore if a case arise
wherein the observance of that law would be hurtful to the general
welfare, it should not be observed. For instance, suppose that in a
besieged city it be an established law that the gates of the city are
to be kept closed, this is good for public welfare as a general rule:
but, it were to happen that the enemy are in pursuit of certain
citizens, who are defenders of the city, it would be a great loss to
the city, if the gates were not opened to them: and so in that case the
gates ought to be opened, contrary to the letter of the law, in order
to maintain the common weal, which the lawgiver had in view.
Nevertheless it must be noted, that if the observance of the law
according to the letter does not involve any sudden risk needing
instant remedy, it is not competent for everyone to expound what is
useful and what is not useful to the state: those alone can do this who
are in authority, and who, on account of such like cases, have the
power to dispense from the laws. If, however, the peril be so sudden as
not to allow of the delay involved by referring the matter to
authority, the mere necessity brings with it a dispensation, since
necessity knows no law.
Reply to Objection 1: He who in a case of necessity acts beside the
letter of the law, does not judge the law; but of a particular case in
which he sees that the letter of the law is not to be observed.
Reply to Objection 2: He who follows the intention of the lawgiver,
does not interpret the law simply; but in a case in which it is
evident, by reason of the manifest harm, that the lawgiver intended
otherwise. For if it be a matter of doubt, he must either act according
to the letter of the law, or consult those in power.
Reply to Objection 3: No man is so wise as to be able to take account
of every single case; wherefore he is not able sufficiently to express
in words all those things that are suitable for the end he has in view.
And even if a lawgiver were able to take all the cases into
consideration, he ought not to mention them all, in order to avoid
confusion: but should frame the law according to that which is of most
common occurrence.
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OF CHANGE IN LAWS (FOUR ARTICLES)
We must now consider change in laws: under which head there are four
points of inquiry:
(1) Whether human law is changeable?
(2) Whether it should be always changed, whenever anything better
occurs?
(3) Whether it is abolished by custom, and whether custom obtains the
force of law?
(4) Whether the application of human law should be changed by
dispensation of those in authority?
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Whether human law should be changed in any way?
Objection 1: It would seem that human law should not be changed in any
way at all. Because human law is derived from the natural law, as
stated above ([2048]Q[95], A[2]). But the natural law endures
unchangeably. Therefore human law should also remain without any
change.
Objection 2: Further, as the Philosopher says (Ethic. v, 5), a measure
should be absolutely stable. But human law is the measure of human
acts, as stated above ([2049]Q[90], AA[1],2). Therefore it should
remain without change.
Objection 3: Further, it is of the essence of law to be just and right,
as stated above ([2050]Q[95], A[2]). But that which is right once is
right always. Therefore that which is law once, should be always law.
On the contrary, Augustine says (De Lib. Arb. i, 6): "A temporal law,
however just, may be justly changed in course of time. "
I answer that, As stated above ([2051]Q[91], A[3]), human law is a
dictate of reason, whereby human acts are directed. Thus there may be
two causes for the just change of human law: one on the part of reason;
the other on the part of man whose acts are regulated by law. The cause
on the part of reason is that it seems natural to human reason to
advance gradually from the imperfect to the perfect. Hence, in
speculative sciences, we see that the teaching of the early
philosophers was imperfect, and that it was afterwards perfected by
those who succeeded them. So also in practical matters: for those who
first endeavored to discover something useful for the human community,
not being able by themselves to take everything into consideration, set
up certain institutions which were deficient in many ways; and these
were changed by subsequent lawgivers who made institutions that might
prove less frequently deficient in respect of the common weal.
On the part of man, whose acts are regulated by law, the law can be
rightly changed on account of the changed condition of man, to whom
different things are expedient according to the difference of his
condition. An example is proposed by Augustine (De Lib. Arb. i, 6): "If
the people have a sense of moderation and responsibility, and are most
careful guardians of the common weal, it is right to enact a law
allowing such a people to choose their own magistrates for the
government of the commonwealth. But if, as time goes on, the same
people become so corrupt as to sell their votes, and entrust the
government to scoundrels and criminals; then the right of appointing
their public officials is rightly forfeit to such a people, and the
choice devolves to a few good men. "
Reply to Objection 1: The natural law is a participation of the eternal
law, as stated above ([2052]Q[91], A[2]), and therefore endures without
change, owing to the unchangeableness and perfection of the Divine
Reason, the Author of nature. But the reason of man is changeable and
imperfect: wherefore his law is subject to change. Moreover the natural
law contains certain universal precepts, which are everlasting: whereas
human law contains certain particular precepts, according to various
emergencies.
Reply to Objection 2: A measure should be as enduring as possible. But
nothing can be absolutely unchangeable in things that are subject to
change. And therefore human law cannot be altogether unchangeable.
Reply to Objection 3: In corporal things, right is predicated
absolutely: and therefore, as far as itself is concerned, always
remains right. But right is predicated of law with reference to the
common weal, to which one and the same thing is not always adapted, as
stated above: wherefore rectitude of this kind is subject to change.
necessary simply, because it cannot be otherwise: and that which is
necessary in this way, is not subject to human judgment, wherefore
human law is not concerned with necessity of this kind. Again a thing
may be necessary for an end: and this necessity is the same as
usefulness. Therefore it is superfluous to say both "necessary" and
"useful. "
On the contrary, stands the authority of Isidore.
I answer that, Whenever a thing is for an end, its form must be
determined proportionately to that end; as the form of a saw is such as
to be suitable for cutting (Phys. ii, text. 88). Again, everything that
is ruled and measured must have a form proportionate to its rule and
measure. Now both these conditions are verified of human law: since it
is both something ordained to an end; and is a rule or measure ruled or
measured by a higher measure. And this higher measure is twofold, viz.
the Divine law and the natural law, as explained above [2030](A[2];
Q[93], A[3] ). Now the end of human law is to be useful to man, as the
jurist states [*Pandect. Justin. lib. xxv, ff. , tit. iii; De Leg. et
Senat. ]. Wherefore Isidore in determining the nature of law, lays down,
at first, three conditions; viz. that it "foster religion," inasmuch as
it is proportionate to the Divine law; that it be "helpful to
discipline," inasmuch as it is proportionate to the nature law; and
that it "further the common weal," inasmuch as it is proportionate to
the utility of mankind.
All the other conditions mentioned by him are reduced to these three.
For it is called virtuous because it fosters religion. And when he goes
on to say that it should be "just, possible to nature, according to the
customs of the country, adapted to place and time," he implies that it
should be helpful to discipline. For human discipline depends on first
on the order of reason, to which he refers by saying "just": secondly,
it depends on the ability of the agent; because discipline should be
adapted to each one according to his ability, taking also into account
the ability of nature (for the same burdens should be not laid on
children as adults); and should be according to human customs; since
man cannot live alone in society, paying no heed to others: thirdly, it
depends on certain circumstances, in respect of which he says, "adapted
to place and time. " The remaining words, "necessary, useful," etc. mean
that law should further the common weal: so that "necessity" refers to
the removal of evils; "usefulness" to the attainment of good;
"clearness of expression," to the need of preventing any harm ensuing
from the law itself. And since, as stated above ([2031]Q[90], A[2]),
law is ordained to the common good, this is expressed in the last part
of the description.
This suffices for the Replies to the Objections.
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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.
Objection 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.
Objection 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.
Objection 4: Further, those things that are accidental should be passed
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 [2032](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
[2033](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 God 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
([2034]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 assassins, and so on, differentiated in this
way, not on account of the authors, but on account of the matters to
which they refer.
Reply to Objection 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.
__________________________________________________________________
OF THE POWER OF HUMAN LAW (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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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.
Objection 2: Further, law is the director of human acts, as stated
above ([2035]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.
Objection 3: Further, law is a rule and measure of human acts, as
stated above ([2036]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, tit. 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 to Objection 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 to Objection 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 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 ([2037]Q[92], A[2],
OBJ[2]).
Reply to Objection 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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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.
Objection 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.
Objection 3: Further, human law is derived from the natural law, as
stated above ([2038]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 ([2039]Q[90], AA[1],2), law is framed as
a rule or measure of human acts. Now a measure should be homogeneous
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 to Objection 1: Audacity seems to refer to the assailing 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 to Objection 2: The purpose of human law is to lead men to
virtue, not suddenly, but gradually. Wherefore it does not lay upon the
multitude 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 (Mat. 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.
Reply to Objection 3: The natural law is a participation in us of the
eternal law: while human law falls short of the eternal law. Now
Augustine says (De Lib. Arb. i, 5): "The law which is framed for the
government of states, allows and leaves unpunished many things that are
punished by Divine providence. Nor, if this law does not attempt to do
everything, is this a reason why it should be blamed for what it does. "
Wherefore, too, human law does not prohibit everything that is
forbidden by the natural law.
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Whether human law prescribes acts of all the virtues?
Objection 1: It would seem that human law does not prescribe acts of
all the virtues. For vicious acts are contrary to acts of virtue. But
human law does not prohibit all vices, as stated above [2040](A[2]).
Therefore neither does it prescribe all acts of virtue.
Objection 2: Further, a virtuous act proceeds from a virtue. But virtue
is the end of law; so that whatever is from a virtue, cannot come under
a precept of law. Therefore human law does not prescribe all acts of
virtue.
Objection 3: Further, law is ordained to the common good, as stated
above ([2041]Q[90], A[2]). But some acts of virtue are ordained, not to
the common good, but to private good. Therefore the law does not
prescribe all acts of virtue.
On the contrary, The Philosopher says (Ethic. v, 1) that the law
"prescribes the performance of the acts of a brave man . . . and the
acts of the temperate man . . . and the acts of the meek man: and in
like manner as regards the other virtues and vices, prescribing the
former, forbidding the latter. "
I answer that, The species of virtues are distinguished by their
objects, as explained above ([2042]Q[54], A[2];[2043] Q[60],
A[1];[2044] Q[62], A[2]). Now all the objects of virtues can be
referred either to the private good of an individual, or to the common
good of the multitude: thus matters of fortitude may be achieved either
for the safety of the state, or for upholding the rights of a friend,
and in like manner with the other virtues. But law, as stated above
([2045]Q[90], A[2]) is ordained to the common good. Wherefore there is
no virtue whose acts cannot be prescribed by the law. Nevertheless
human law does not prescribe concerning all the acts of every virtue:
but only in regard to those that are ordainable to the common
good---either immediately, as when certain things are done directly for
the common good---or mediately, as when a lawgiver prescribes certain
things pertaining to good order, whereby the citizens are directed in
the upholding of the common good of justice and peace.
Reply to Objection 1: Human law does not forbid all vicious acts, by
the obligation of a precept, as neither does it prescribe all acts of
virtue. But it forbids certain acts of each vice, just as it prescribes
some acts of each virtue.
Reply to Objection 2: An act is said to be an act of virtue in two
ways. First, from the fact that a man does something virtuous; thus the
act of justice is to do what is right, and an act of fortitude is to do
brave things: and in this way law prescribes certain acts of virtue.
Secondly an act of virtue is when a man does a virtuous thing in a way
in which a virtuous man does it. Such an act always proceeds from
virtue: and it does not come under a precept of law, but is the end at
which every lawgiver aims.
Reply to Objection 3: There is no virtue whose act is not ordainable to
the common good, as stated above, either mediately or immediately.
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Whether human law binds a man in conscience?
Objection 1: It would seem that human law does not bind man in
conscience. For an inferior power has no jurisdiction in a court of
higher power. But the power of man, which frames human law, is beneath
the Divine power. Therefore human law cannot impose its precept in a
Divine court, such as is the court of conscience.
Objection 2: Further, the judgment of conscience depends chiefly on the
commandments of God. But sometimes God's commandments are made void by
human laws, according to Mat. 15:6: "You have made void the commandment
of God for your tradition. " Therefore human law does not bind a man in
conscience.
Objection 3: Further, human laws often bring loss of character and
injury on man, according to Is. 10:1 et seqq. : "Woe to them that make
wicked laws, and when they write, write injustice; to oppress the poor
in judgment, and do violence to the cause of the humble of My people. "
But it is lawful for anyone to avoid oppression and violence. Therefore
human laws do not bind man in conscience.
On the contrary, It is written (1 Pet. 2:19): "This is thankworthy, if
for conscience . . . a man endure sorrows, suffering wrongfully. "
I answer that, Laws framed by man are either just or unjust. If they be
just, they have the power of binding in conscience, from the eternal
law whence they are derived, according to Prov. 8:15: "By Me kings
reign, and lawgivers decree just things. " Now laws are said to be just,
both from the end, when, to wit, they are ordained to the common
good---and from their author, that is to say, when the law that is made
does not exceed the power of the lawgiver---and from their form, when,
to wit, burdens are laid on the subjects, according to an equality of
proportion and with a view to the common good. For, since one man is a
part of the community, each man in all that he is and has, belongs to
the community; just as a part, in all that it is, belongs to the whole;
wherefore nature inflicts a loss on the part, in order to save the
whole: so that on this account, such laws as these, which impose
proportionate burdens, are just and binding in conscience, and are
legal laws.
On the other hand laws may be unjust in two ways: first, by being
contrary to human good, through being opposed to the things mentioned
above---either in respect of the end, as when an authority imposes on
his subjects burdensome laws, conducive, not to the common good, but
rather to his own cupidity or vainglory---or in respect of the author,
as when a man makes a law that goes beyond the power committed to
him---or in respect of the form, as when burdens are imposed unequally
on the community, although with a view to the common good. The like are
acts of violence rather than laws; because, as Augustine says (De Lib.
Arb. i, 5), "a law that is not just, seems to be no law at all. "
Wherefore such laws do not bind in conscience, except perhaps in order
to avoid scandal or disturbance, for which cause a man should even
yield his right, according to Mat. 5:40,41: "If a man . . . take away
thy coat, let go thy cloak also unto him; and whosoever will force thee
one mile, go with him other two. "
Secondly, laws may be unjust through being opposed to the Divine good:
such are the laws of tyrants inducing to idolatry, or to anything else
contrary to the Divine law: and laws of this kind must nowise be
observed, because, as stated in Acts 5:29, "we ought to obey God rather
than man. "
Reply to Objection 1: As the Apostle says (Rom. 13:1,2), all human
power is from God . . . "therefore he that resisteth the power," in
matters that are within its scope, "resisteth the ordinance of God"; so
that he becomes guilty according to his conscience.
Reply to Objection 2: This argument is true of laws that are contrary
to the commandments of God, which is beyond the scope of (human) power.
Wherefore in such matters human law should not be obeyed.
Reply to Objection 3: This argument is true of a law that inflicts
unjust hurt on its subjects. The power that man holds from God does not
extend to this: wherefore neither in such matters is man bound to obey
the law, provided he avoid giving scandal or inflicting a more grievous
hurt.
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Whether all are subject to the law?
Objection 1: It would seem that not all are subject to the law. For
those alone are subject to a law for whom a law is made. But the
Apostle says (1 Tim. 1:9): "The law is not made for the just man. "
Therefore the just are not subject to the law.
Objection 2: Further, Pope Urban says [*Decretals. caus. xix, qu. 2]:
"He that is guided by a private law need not for any reason be bound by
the public law. " Now all spiritual men are led by the private law of
the Holy Ghost, for they are the sons of God, of whom it is said (Rom.
8:14): "Whosoever are led by the Spirit of God, they are the sons of
God. " Therefore not all men are subject to human law.
Objection 3: Further, the jurist says [*Pandect. Justin. i, ff. , tit.
3, De Leg. et Senat. ] that "the sovereign is exempt from the laws. " But
he that is exempt from the law is not bound thereby. Therefore not all
are subject to the law.
On the contrary, The Apostle says (Rom. 13:1): "Let every soul be
subject to the higher powers. " But subjection to a power seems to imply
subjection to the laws framed by that power. Therefore all men should
be subject to human law.
I answer that, As stated above ([2046]Q[90], AA[1],2; A[3], ad 2), the
notion of law contains two things: first, that it is a rule of human
acts; secondly, that it has coercive power. Wherefore a man may be
subject to law in two ways. First, as the regulated is subject to the
regulator: and, in this way, whoever is subject to a power, is subject
to the law framed by that power. But it may happen in two ways that one
is not subject to a power. In one way, by being altogether free from
its authority: hence the subjects of one city or kingdom are not bound
by the laws of the sovereign of another city or kingdom, since they are
not subject to his authority. In another way, by being under a yet
higher law; thus the subject of a proconsul should be ruled by his
command, but not in those matters in which the subject receives his
orders from the emperor: for in these matters, he is not bound by the
mandate of the lower authority, since he is directed by that of a
higher. In this way, one who is simply subject to a law, may not be a
subject thereto in certain matters, in respect of which he is ruled by
a higher law.
Secondly, a man is said to be subject to a law as the coerced is
subject to the coercer. In this way the virtuous and righteous are not
subject to the law, but only the wicked. Because coercion and violence
are contrary to the will: but the will of the good is in harmony with
the law, whereas the will of the wicked is discordant from it.
Wherefore in this sense the good are not subject to the law, but only
the wicked.
Reply to Objection 1: This argument is true of subjection by way of
coercion: for, in this way, "the law is not made for the just men":
because "they are a law to themselves," since they "show the work of
the law written in their hearts," as the Apostle says (Rom. 2:14,15).
Consequently the law does not enforce itself upon them as it does on
the wicked.
Reply to Objection 2: The law of the Holy Ghost is above all law framed
by man: and therefore spiritual men, in so far as they are led by the
law of the Holy Ghost, are not subject to the law in those matters that
are inconsistent with the guidance of the Holy Ghost. Nevertheless the
very fact that spiritual men are subject to law, is due to the leading
of the Holy Ghost, according to 1 Pet. 2:13: "Be ye subject . . . to
every human creature for God's sake. "
Reply to Objection 3: The sovereign is said to be "exempt from the
law," as to its coercive power; since, properly speaking, no man is
coerced by himself, and law has no coercive power save from the
authority of the sovereign. Thus then is the sovereign said to be
exempt from the law, because none is competent to pass sentence on him,
if he acts against the law. Wherefore on Ps. 50:6: "To Thee only have I
sinned," a gloss says that "there is no man who can judge the deeds of
a king. " But as to the directive force of law, the sovereign is subject
to the law by his own will, according to the statement (Extra, De
Constit. cap. Cum omnes) that "whatever law a man makes for another, he
should keep himself. And a wise authority [*Dionysius Cato, Dist. de
Moribus] says: 'Obey the law that thou makest thyself. '" Moreover the
Lord reproaches those who "say and do not"; and who "bind heavy burdens
and lay them on men's shoulders, but with a finger of their own they
will not move them" (Mat. 23:3,4). Hence, in the judgment of God, the
sovereign is not exempt from the law, as to its directive force; but he
should fulfil it to his own free-will and not of constraint. Again the
sovereign is above the law, in so far as, when it is expedient, he can
change the law, and dispense in it according to time and place.
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Whether he who is under a law may act beside the letter of the law?
Objection 1: It seems that he who is subject to a law may not act
beside the letter of the law. For Augustine says (De Vera Relig. 31):
"Although men judge about temporal laws when they make them, yet when
once they are made they must pass judgment not on them, but according
to them. " But if anyone disregard the letter of the law, saying that he
observes the intention of the lawgiver, he seems to pass judgment on
the law. Therefore it is not right for one who is under the law to
disregard the letter of the law, in order to observe the intention of
the lawgiver.
Objection 2: Further, he alone is competent to interpret the law who
can make the law. But those who are subject to the law cannot make the
law. Therefore they have no right to interpret the intention of the
lawgiver, but should always act according to the letter of the law.
Objection 3: Further, every wise man knows how to explain his intention
by words. But those who framed the laws should be reckoned wise: for
Wisdom says (Prov. 8:15): "By Me kings reign, and lawgivers decree just
things. " Therefore we should not judge of the intention of the lawgiver
otherwise than by the words of the law.
On the contrary, Hilary says (De Trin. iv): "The meaning of what is
said is according to the motive for saying it: because things are not
subject to speech, but speech to things. " Therefore we should take
account of the motive of the lawgiver, rather than of his very words.
I answer that, As stated above [2047](A[4]), every law is directed to
the common weal of men, and derives the force and nature of law
accordingly. Hence the jurist says [*Pandect. Justin. lib. i, ff. , tit.
3, De Leg. et Senat. ]: "By no reason of law, or favor of equity, is it
allowable for us to interpret harshly, and render burdensome, those
useful measures which have been enacted for the welfare of man. " Now it
happens often that the observance of some point of law conduces to the
common weal in the majority of instances, and yet, in some cases, is
very hurtful. Since then the lawgiver cannot have in view every single
case, he shapes the law according to what happens most frequently, by
directing his attention to the common good. Wherefore if a case arise
wherein the observance of that law would be hurtful to the general
welfare, it should not be observed. For instance, suppose that in a
besieged city it be an established law that the gates of the city are
to be kept closed, this is good for public welfare as a general rule:
but, it were to happen that the enemy are in pursuit of certain
citizens, who are defenders of the city, it would be a great loss to
the city, if the gates were not opened to them: and so in that case the
gates ought to be opened, contrary to the letter of the law, in order
to maintain the common weal, which the lawgiver had in view.
Nevertheless it must be noted, that if the observance of the law
according to the letter does not involve any sudden risk needing
instant remedy, it is not competent for everyone to expound what is
useful and what is not useful to the state: those alone can do this who
are in authority, and who, on account of such like cases, have the
power to dispense from the laws. If, however, the peril be so sudden as
not to allow of the delay involved by referring the matter to
authority, the mere necessity brings with it a dispensation, since
necessity knows no law.
Reply to Objection 1: He who in a case of necessity acts beside the
letter of the law, does not judge the law; but of a particular case in
which he sees that the letter of the law is not to be observed.
Reply to Objection 2: He who follows the intention of the lawgiver,
does not interpret the law simply; but in a case in which it is
evident, by reason of the manifest harm, that the lawgiver intended
otherwise. For if it be a matter of doubt, he must either act according
to the letter of the law, or consult those in power.
Reply to Objection 3: No man is so wise as to be able to take account
of every single case; wherefore he is not able sufficiently to express
in words all those things that are suitable for the end he has in view.
And even if a lawgiver were able to take all the cases into
consideration, he ought not to mention them all, in order to avoid
confusion: but should frame the law according to that which is of most
common occurrence.
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OF CHANGE IN LAWS (FOUR ARTICLES)
We must now consider change in laws: under which head there are four
points of inquiry:
(1) Whether human law is changeable?
(2) Whether it should be always changed, whenever anything better
occurs?
(3) Whether it is abolished by custom, and whether custom obtains the
force of law?
(4) Whether the application of human law should be changed by
dispensation of those in authority?
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Whether human law should be changed in any way?
Objection 1: It would seem that human law should not be changed in any
way at all. Because human law is derived from the natural law, as
stated above ([2048]Q[95], A[2]). But the natural law endures
unchangeably. Therefore human law should also remain without any
change.
Objection 2: Further, as the Philosopher says (Ethic. v, 5), a measure
should be absolutely stable. But human law is the measure of human
acts, as stated above ([2049]Q[90], AA[1],2). Therefore it should
remain without change.
Objection 3: Further, it is of the essence of law to be just and right,
as stated above ([2050]Q[95], A[2]). But that which is right once is
right always. Therefore that which is law once, should be always law.
On the contrary, Augustine says (De Lib. Arb. i, 6): "A temporal law,
however just, may be justly changed in course of time. "
I answer that, As stated above ([2051]Q[91], A[3]), human law is a
dictate of reason, whereby human acts are directed. Thus there may be
two causes for the just change of human law: one on the part of reason;
the other on the part of man whose acts are regulated by law. The cause
on the part of reason is that it seems natural to human reason to
advance gradually from the imperfect to the perfect. Hence, in
speculative sciences, we see that the teaching of the early
philosophers was imperfect, and that it was afterwards perfected by
those who succeeded them. So also in practical matters: for those who
first endeavored to discover something useful for the human community,
not being able by themselves to take everything into consideration, set
up certain institutions which were deficient in many ways; and these
were changed by subsequent lawgivers who made institutions that might
prove less frequently deficient in respect of the common weal.
On the part of man, whose acts are regulated by law, the law can be
rightly changed on account of the changed condition of man, to whom
different things are expedient according to the difference of his
condition. An example is proposed by Augustine (De Lib. Arb. i, 6): "If
the people have a sense of moderation and responsibility, and are most
careful guardians of the common weal, it is right to enact a law
allowing such a people to choose their own magistrates for the
government of the commonwealth. But if, as time goes on, the same
people become so corrupt as to sell their votes, and entrust the
government to scoundrels and criminals; then the right of appointing
their public officials is rightly forfeit to such a people, and the
choice devolves to a few good men. "
Reply to Objection 1: The natural law is a participation of the eternal
law, as stated above ([2052]Q[91], A[2]), and therefore endures without
change, owing to the unchangeableness and perfection of the Divine
Reason, the Author of nature. But the reason of man is changeable and
imperfect: wherefore his law is subject to change. Moreover the natural
law contains certain universal precepts, which are everlasting: whereas
human law contains certain particular precepts, according to various
emergencies.
Reply to Objection 2: A measure should be as enduring as possible. But
nothing can be absolutely unchangeable in things that are subject to
change. And therefore human law cannot be altogether unchangeable.
Reply to Objection 3: In corporal things, right is predicated
absolutely: and therefore, as far as itself is concerned, always
remains right. But right is predicated of law with reference to the
common weal, to which one and the same thing is not always adapted, as
stated above: wherefore rectitude of this kind is subject to change.
