Front Page Titles (by Subject) QUESTION XCVI.: OF THE AUTHORITY OF HUMAN LAW. - Aquinas Ethicus: or, the Moral Teaching of St. Thomas, vol. 1 (Summa Theologica - Prima Secundae, Secunda Secundae Pt.1)
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QUESTION XCVI.: OF THE AUTHORITY OF HUMAN LAW. - St. Thomas Aquinas, Aquinas Ethicus: or, the Moral Teaching of St. Thomas, vol. 1 (Summa Theologica - Prima Secundae, Secunda Secundae Pt.1) 
Aquinas Ethicus: or, the Moral Teaching of St. Thomas. A Translation of the Principal Portions of the Second part of the Summa Theologica, with Notes by Joseph Rickaby, S.J. (London: Burns and Oates, 1892).
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OF THE AUTHORITY OF HUMAN LAW.
Article II.—Does it belong to human law to repress all vices?
R. A law is laid down as a rule or measure of human acts. Now a measure ought to be homogeneous with the thing measured. Hence laws also must be imposed upon men according to their condition. As Isidore says: “A law ought to be possible both according to nature and according to the custom of the country.” Now the power or faculty of action proceeds from interior habit or disposition. The same thing is not possible to him who has no habit of virtue, that is possible to a virtuous man; as the same thing is not possible to a boy and to a grown man; and therefore the same law is not laid down for children as for adults. Many things are allowed to children, that in adults are visited with legal punishment or with blame; and in like manner many things must be allowed to men not perfect in virtue, which would be intolerable in virtuous men. But a human law is laid down for a multitude, the majority of whom consists of men not perfect in virtue. And therefore not all the vices from which the virtuous abstain are prohibited by human law, but only those graver excesses from which it is possible for the majority of the multitude to abstain, and especially those excesses which are to the hurt of other men, without the prohibition of which human society could not be maintained, as murder, theft, and the like.1
§ 2. Human law aims at leading men on to virtue, not suddenly, but step by step; and therefore it does not impose upon a multitude of imperfect men the practice of those who are already virtuous, to abstain from all things evil. Otherwise these imperfect persons, unable to bear such precepts, would break out into evils still worse, as is said: “He that violently bloweth his nose, bringeth out blood;”2 and again we read that if “new wine,” that is, precepts of a perfect life, is “put into old bottles,” that is, into imperfect men, “the bottles break, and the wine runneth out,”3 that is, the precepts are contemned, and the men out of contempt rush into worse evils.
Article III.—Does human law enjoin acts of all virtues?
R. There is no virtue, the acts of which the law may not enjoin. Nevertheless, human law does not enjoin all acts of all virtues, but only those acts which are referable to the general good, whether immediately or mediately.
§ 1. Human law prohibits some acts of every vice, and also enjoins some acts of every virtue.
Article IV.—Is the obligation imposed on man by human law binding in the court of conscience?1
R. Laws enacted by men are either just or unjust. If they are just, they have a binding force in the court of conscience from the Eternal Law, whence they are derived. Laws are said to be just in respect of the end, when they are ordained to the general good; in respect of the author, when the law does not exceed the competence of the legislator; and in respect of the form, when burdens are laid upon subjects in proportionate equality in order to the general good. For as one man is a part of a multitude, all that every man is and has belongs to the multitude,2 as all that every part is, is of the whole: hence also nature inflicts loss on the part to save the whole. Under this consideration, the laws that impose these burdens according to proportion are just, and binding in the court of conscience, and are legal laws.
Laws are unjust in two ways: in one way by being contrary to human good either in respect of the end, as when one in authority imposes on his subjects burdensome laws, that have no bearing on the general good, but make rather for the gratification of his own cupidity or vainglory: or in respect of the author, as when one makes a law beyond the scope of the power committed to him; or in respect of the form, as when burdens are laid unevenly on the multitude, though the end of the imposition is the public good. Such proceedings are rather acts of violence than laws: because, as Augustine says: “A law that is not just, goes for no law at all.” Hence such laws are not binding in the court of conscience, except perhaps for the avoiding of scandal or turmoil, for which cause a man ought to abate something of his right, according to the text: “If a man will take away thy coat, let go thy cloak also unto him; and whosoever will force thee one mile, go with him other two.”1 In another way laws may be unjust by being in conflict with the good that is of God, like the laws of tyrants inducing to idolatry; or to anything else that is against the divine law; and such laws it is nowise lawful to observe, because, as is said: “We ought to obey God rather than men.”2
Article V.—Are all subject to the law?
R. There are two essential elements in law; one that it is a rule of human actions; another that it is fraught with coercive power. In two ways then a man may be subject to law: in one way as the regulated to the regulator; and in this way all who are subject to authority are subject to the law which authority frames. It may happen in two ways that one is not subject to an authority: in one way by being altogether free from subjection to him: hence persons of one city or kingdom are not subject to the laws of the sovereign of another city or kingdom; in another way by being under the direction of a higher law: for instance, the subject of a proconsul should be ruled by his command, but not on those points on which the subject has a dispensation from the emperor. In another way one is said to be subject to a law as the coerced to the coercer; and in this way virtuous and just men are not subject to the law, but only bad men. For what is constrained and violent is contrary to the will: but the will of the good is in harmony with the law, from which the will of the wicked is at discord; and therefore in this respect good men are not under the law, but only bad men.
§ 2. The law of the Holy Ghost1 is superior to all law laid down by man; and therefore spiritual men, inasmuch as they are led by the law of the Holy Ghost, are not subject to the law in particulars that disagree with the guidance of the Holy Ghost. But this very provision is part of the guidance of the Holy Ghost, that spiritual men should be subject to human laws, according to the text: “Be ye subject to every human creature for God’s sake.”2
§ 3. The sovereign is said to be “released from the laws” as regards their coercive force: for no one properly is coerced by himself; and the law has no coercive force except from the authority of the sovereign. Thus then the sovereign is said to be “released from the law,” because none can pass judgment of condemnation upon him if he acts against the law. But as regards the directive force of the law, the sovereign is subject to the law by his own will, as the Emperors Theodosius and Valentinian wrote to the Prefect Volusian: “It is a saying worthy of the majesty of the ruler, for the Emperor to profess himself bound by the laws.” They also are reproached by the Lord, 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.”1 Hence, in the judgment of God, the sovereign is not released from the law as regards its directive force, but ought voluntarily, and not of constraint, to fulfil the law. The sovereign is also above the law, inasmuch as, if expedient, he can change the law; and dispense in it according to place and season.
Article VI.—Is any deviation from the letter of the law permissible to one who is under the law?
R. Every law is ordained to the common welfare of men, and has so far the essence and force of law; and failing this, it has no binding power. Hence the Lawyer says: “No reason of law, or bounty of equity, allows us to take the wholesome measures that are enacted for the welfare of men, and by a harsh interpretation draw them over to the side of severity to the grievance of the subject.” Now it happens many times that a point of observance is profitable to the common welfare generally, but in some cases is decidedly hurtful. Since then the legislator cannot have all individual cases in his view, he puts forward a law on the basis of the circumstances that generally occur, his aim being the public utility. Hence if a case arises in which the observance of such a law would be hurtful to the public welfare, it is not to be observed. But this caution is to be taken note of, that if the observance of the law to the letter involves no sudden danger that has to be met at once, it does not belong to every one at pleasure to interpret and decide what is useful and what is harmful to the State, but this interpretation is reserved to the men in power, who have authority for such cases to dispense from the laws. But if the danger is sudden, and brooks not the delay of having recourse to higher powers, the mere necessity carries a dispensation with it, because necessity is not amenable to law.1
[1 ]The further perfection of man is not the concern of the State, but of the Church. Ethics and Natural Law, pp. 355—357. (Trl.)
[2 ]Prov. xxx. 33.
[3 ]St. Matt. ix. 17.
[1 ]Ethics and Natural Law, pp. 360—361. n. 4. (Trl.)
[2 ]Compare however I-II. q 21. art. 4. § 3. (Trl.)
[1 ]St. Matt. v. 40, 41.
[2 ]Acts v. 29.
[1 ]Romans viii. 14.
[2 ]1 St. Peter ii. 13. Cf II-II. q. 104. art. 6 (Trl.)
[1 ]St. Matt. xxiii. 3, 4.
[1 ]See further, II-II. q. 120. (Trl.)