Front Page Titles (by Subject) QUESTION XCVII.: OF CHANGE OF LAWS. - Aquinas Ethicus: or, the Moral Teaching of St. Thomas, vol. 1 (Summa Theologica - Prima Secundae, Secunda Secundae Pt.1)
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QUESTION XCVII.: OF CHANGE OF LAWS. - 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 CHANGE OF LAWS.
Article I.—Ought human law ever to be changed at all?
R. Human law is a dictate of reason for the direction of human acts. Thus two manner of causes may appear for a proper alteration of human law: one on the part of reason, another on the part of the people whose acts are regulated by the law. On the part of reason we have this cause, that it seems natural to human reason to travel by degrees from imperfection to perfection. Hence we see in speculative science that the imperfect teaching of early philosophers has given place to the more perfect teaching of a later age. So also in matters of practice: the first who applied their minds to discover something useful for the commonwealth, were not able to take everything into consideration; and accordingly their institutions were defective on many points, which points later ages have altered, and set up other institutions, which it is hoped may prove less defective in view of the public welfare.
On the part of the people whose acts are regulated by law, a law may be changed for the changed condition of the people, as their expediency varies with their condition. Augustine furnishes an example. “If the people,” he says, “are observant of moderation and of principle, and carefully watch over the common interest, it is right to enact a law allowing such a people to appoint their own magistrates and carry on the government. If in course of time the same people become gradually corrupt, sell their votes, and place atrocious criminals in office, the power of conferring offices of State is rightly taken away from the people, and returns to the discretion of a few good men.”
Article II.—Ought human law always to be changed when anything better occurs?
R. The alteration of a human law is right exactly so far as the alteration is conducive to the public interest. But the mere change of itself is in some measure prejudicial to that interest, because custom goes a long way towards getting the laws observed, so much so that enactments running counter to common custom, though light in themselves, seem burdensome. Hence, when the law is changed, the binding power of the law is diminished, inasmuch as a custom is set aside. And therefore human law never ought to be changed, unless the gain to the public advantage on the other side be enough to balance the loss on this head.
§ 1. Rules of art have force by reason only; and therefore the old arrangement is to be altered for every improvement that occurs. But laws gather greatest weight by custom, and therefore they ought not lightly to be changed.1
Article III.—Can custom obtain the force of law?
R. Every law emanates from the reason and will of the lawgiver: divine and natural law from the reasonable will of God; human law from the will of man regulated by reason. Now the reason and will of man concerning things to be done may be manifested in deed no less than in word: for a man is always supposed to choose that as good which he carries into effect in act. But clearly the law may be both altered and expounded by the word of man, manifesting the inward motion and concept of human reason. Hence also by repeatedly multiplied acts, which make a custom, the law may be altered and expounded, and also something be established that shall have the force of law; inasmuch as the multiplication of exterior acts is a most effectual declaration of the inward motion of the will and concept of the reason; for when a thing is done many times over, it seems to come of the deliberate judgment of the reason. And in this way custom at once has the force of law, and abolishes law, and is the interpreter of the laws.
§ 2. Human laws break down in some cases. Hence it is possible to act against the law, in a case where the law breaks down, without the act being therefore evil. When cases like this multiply on account of some change in the circumstances of the people, then the law is declared by custom to be no longer useful, as it might be declared by the express promulgation of a law to the contrary. But if the same reason sitll remains for which the law was first useful, then it is not the custom that should prevail against the law, but the law against the custom; unless perchance the law should be adjudged useless on this mere ground, that it is not possible according to the custom of the country, which possibility was one of the conditions of the law. For it is difficult to set aside the custom of the multitude.
§ 3. The people amongst whom a custom is introduced may be of two conditions. If they are a free people that can make a law for themselves, the consent of the whole people goes for more in favour of the observance indicated by the custom than does the authority of the prince, who has no power of framing a law, except inasmuch as he personates the people. Hence, though individuals cannot make a law, the whole people can make one. But if the people have not the unrestricted power of making a law for themselves, or setting aside a law enacted by higher authority, still the custom prevailing in such a people has the force of law, in so far as it is tolerated by them to whom it belongs to impose a law upon the people: for this tolerance of theirs is taken as an approval of the practice which the custom has brought in.1
Article IV.—Can the rulers of the people dispense from human laws?
R. A dispensation properly means a measuring out to individuals of something held in common. Hence the ruler of a household is called a dispenser, inasmuch as he allots to every one in the household in due weight and measure both duties and the necessaries of life. So then in every community one is said to dispense, in that he ordains how some common precept is to be fulfilled by individuals. But it happens sometimes that a precept which is to be advantage of the community generally, is not adapted to a particular person or to a particular case, either because it would hinder some greater good, or would even bring on some evil. Now it would be dangerous to leave this issue to be settled by individual judgments, except perchance for an evident and sudden emergency. And therefore he who has the ruling of a community has the power of dispensing from the human law that rests on his authority, so that he can give leave for the precept of the law not to be observed by certain persons, or in certain cases, when the law fails in its application to them. But if without this reason he gives leave of his mere will and pleasure, he will be unfaithful in his dispensation, or even imprudent: unfaithful, if he has not an eye to the common good; imprudent, if he is ignorant of the principle on which dispensations should be granted. Wherefore our Lord says: “Who (thinkest thou) is the faithful and wise steward, whom his lord setteth over his family?”1
§ 1. When any one is dispensed from the observance of the general law, it ought not to be to the prejudice of the general good, but to the advancement of the same.
§ 2. It is not a respecting of persons if equal measure is not kept with persons who are unequal. Hence when the condition of any person reasonably requires that some special regard should be had for him, it is not a respecting of persons if a special favour is done him.
§ 3. So far as the natural law contains general precepts that never fail, it does not admit of dispensation. But in its other precepts, that follow as conclusions from the general precepts, a dispensation is sometimes given by man, as that a loan should not be paid back to a traitor, or something of that sort. But in the precepts of the divine law, which are from God, none can dispense but God, or the man whom God may empower for that special purpose.2
[1 ]Another reason would be, that the value of a new improvement in art or manufactures is at once tested commercially: the value of a new law is not. (Trl.)
[1 ]Therefore, according to St. Thomas (cf. q. 90. art. 3.), sovereignty either may or may not rest with the people. He is opposed at once to intolerant monarchism, and to the “inalienable sovereignty of the people,” as taught by Rousseau. Cf. Ethics and Natural Law, pp. 330, 339, 340. (Trl.)
[1 ]St Luke xii 42
[2 ]The “divine law” is the Christian law (I-II. q 91. art. 4.), and so far as dispensation is possible, the positive part of that law. For the alleged dispensations in the natural law, see above, q 94 art. 5. note (Trl.)