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Francisco Suárez, Selections from Three Works [2015]

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Francisco Suárez, Selections from Three Works: A Treatise on Laws and God the Lawgiver; A Defence of the Catholic and Apostolic Faith; A Work on the Three Theological Virtues: Faith, Hope, and Charity. Edited and with an Introduction by Thomas Pink (Indianapolis: Liberty Fund, 2015).

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About this Title:

The bulk of the selections in this volume are from A Treatise on Laws and God the Lawgiver (1612), “one of the major works of scholastic moral and legal theory,” writes volume editor Thomas Pink. In the Treatise, working within the framework originally elaborated by Thomas Aquinas, Suárez presented a systematic account of human moral activity in all its dimensions, synthesizing the entire scholastic heritage of thinking on this topic and identifying the key issues of debate and the key authors who had formulated the different positions most incisively. Then he went beyond this heritage of authorities to present a new account of human moral action and its relationship to the law.

The second selection is from A Defence of the Catholic and Apostolic Faith (1613), a treatise on the errors of Anglicanism and, in particular, on the errors of King James I in relation to the power of the king in temporal matters and the power of the pope to intervene in the cause of religion. The selections in the final section, A Work on the Three Theological Virtues (1621), are taken from Suárez’s accounts of faith and love, and they concern the conversion of unbelievers and the conditions of a just war.

The translations in this volume were originally published by the Carnegie Endowment for International Peace. Now republished with a new introduction, revisions to some of the existing notes, and additional notes, these selections are again available in English for those interested in the ethical and metaphysical foundations of political authority and the right to liberty. The texts are of special interest to historians of religious liberty, toleration, and coercion as a classic account of the coercive authority in matters of faith and religious practice of the Catholic church.

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Table of Contents:

Edition: current; Page: [i]
selections from three works
Edition: current; Page: [ii]

natural law and enlightenment classics

Knud Haakonssen

General Editor

Edition: current; Page: [iii]

Francisco Suárez

Edition: current; Page: [iv] Edition: current; Page: [v]
natural law and enlightenment classics
Selections from Three Works
A Treatise on Laws and God the Lawgiver
A Defence of the Catholic and Apostolic Faith
A Work on the Three Theological Virtues: Faith, Hope, and Charity
Francisco Suárez
Edited and with an Introduction by Thomas Pink
Translated by Gwladys L. Williams, Ammi Brown, and John Waldron with Certain Revisions by Henry Davis, S.J.
liberty fund
Edition: current; Page: [vi]

This book is published by Liberty Fund, Inc., a foundation established to encourage study of the ideal of a society of free and responsible individuals.


The cuneiform inscription that serves as our logo and as the design motif for our endpapers is the earliest-known written appearance of the word “freedom” (amagi), or “liberty.” It is taken from a clay document written about 2300 bc in the Sumerian city-state of Lagash.

Introduction, new editorial additions, index © copyright 2015 by Liberty Fund, Inc.

All rights reserved

Printed in the United States of America

The text of this edition is a reprint of the translation of Selections from Three Works by Gwladys L. Williams, Ammi Brown, and John Waldron, with certain revisions by Henry Davis, S.J., first published in 1944 by the Carnegie Endowment for International Peace.

Frontispiece reproduced from Raoul de Scorraille, Francois Suárez, de la Compagnie de Jésus, d’après ses lettres, ses autres écrits inédits et un grand nombre de documents nouveaux (Paris: P. Lethielleux, 1912), frontispiece to vol 1. © 1912 by Raoul de Scorraille.

19 18 17 16 15 c 5 4 3 2 1

19 18 17 16 15 p 5 4 3 2 1

Library of Congress Cataloging-in-Publication Data

Suárez, Francisco, 1548–1617, author. [Works. Selections. English. 2014]

Selections from three works / Francisco Suárez; edited and with an introduction by Thomas Pink; translated by Gwladys L. Williams, Ammi Brown, and John Waldron with certain revisions by Henry Davis, S.J.

pages cm.—(Natural law and enlightenment classics)

“Introduction, new editorial additions, index © copyright 2014 by Liberty Fund, Inc.”

“First published in 1944 by the Carnegie Endowment for International Peace.”

Includes bibliographical references and index.

isbn 978-0-86597-516-3 (hardcover: alk. paper) isbn 978-0-86597-517-0 (pbk.: alk. paper)

1. Canon law. 2. Natural law. 3. International law. I. Pink, Thomas, editor writer of introduction. II. Williams, Gwladys L., translator. III. Davis, Henry, 1866–1952, editor. IV. Suárez, Francisco, 1548–1617. De legibus, ac Deo legislatore.

English. V. Suárez, Francisco, 1548–1617. Defensio fidei catholicae. English. VI. Suárez, Francisco, 1548–1617. De triplici virtute theologica. English. VII. Title.


kbr2074. s84a2 2014


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8335 Allison Pointe Trail, Suite 300

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Edition: current; Page: [vii]


  • Introduction ix
  • Note on Translation (from the Carnegie edition) xix
  • Note on This Edition xxiii
  • Contents (from the Carnegie edition) xxv
  • selections from three works
    • A Treatise on Laws and God the Lawgiver 1
    • A Defence of the Catholic and Apostolic Faith 753
    • A Work on the Three Theological Virtues: Faith, Hope, and Charity 829
  • Bibliography 991
  • Suggestions for Further Reading 1009
  • Index 1011
Edition: current; Page: [viii] Edition: current; Page: [ix]


Born in 1548 to a prominent noble family of Granada, Francisco Suárez was one of the most important thinkers of the second scholastic, that revival of Catholic school theology that centered on the study of Thomas Aquinas, and, following the early sixteenth-century example of Cajetan and Vitoria, replaced the long-established medieval practice of commentary on the Sentences of Peter Lombard with commentary on Aquinas’s Summa theologiae. Suárez entered the recently founded Society of Jesus in 1564, and after undistinguished academic beginnings progressed in the study of theology and philosophy to gain a chair in philosophy at Segovia in 1571. He held a chair in theology at the Roman College, the Jesuits’ college in Rome, from 1580 to 1585, but then had to return to Spain for reasons of health. There followed an unhappy period at Alcalá marked by tensions with supporters of the previous occupant of his post there, Gabriel Vásquez, who was both a more popular university teacher than Suárez and one of Suárez’s main intellectual rivals in the Jesuit order. These tensions were not lessened by Vásquez’s return from Rome in 1591. After teaching for more than three years at the Jesuit college at Salamanca, in 1597 Suárez moved to a chair in theology at Coimbra, where he spent the remainder of his career. He died in 1617.

Besides composing one of the last intellectually formidable exercises in Aristotelian metaphysics, the Disputationes metaphysicae (1597), Suárez also wrote one of the major works of scholastic moral and legal theory, De legibus ac deo legislatore (1612), based on his course on law at Coimbra. This work, given in selections here, also served as the basis for his political thought, outlined in that treatise and developed in two further works, excerpts from which are also presented here: his treatise on the errors of Anglicanism and in particular on the errors of King James I in Edition: current; Page: [x] relation to papal spiritual and temporal authority, Defensio fidei catholicae et apostolicae adversus anglicanae sectae errores (1613); and his treatise on the supernatural virtues, in part material taught by him in Rome but much expanded by him subsequently and posthumously published in 1621. The excerpts from the last treatise were taken from Suárez’s accounts of faith and love, De fide and De caritate. Together these selections, originally published in the Carnegie series The Classics of International Law and now republished as a Liberty Fund edition, will give a general view of Suárez’s political thought and of its basis in his moral theory.

Suárez was a natural law thinker, a tradition that stretched from the Stoicism of pagan antiquity, and which continued through medieval and early modern Catholic scholasticism to remain the basis of the Catholic moral theory of the present day; but the tradition also included Protestant thinkers of the seventeenth and eighteenth centuries such as Hugo Grotius, Samuel Pufendorf, Gottfried Wilhelm Leibniz, and Christian Wolff. Central is the idea that morality comes to us in the shape of a universal law governing the actions of all humans by virtue of their shared rational nature, hence forming a natural law. The specific systems of positive (posited) law embodied in the customs or statutes of human communities have a moral authority—that of obligation—that is derived from the moral obligations imposed by universal natural law. We have then an account of political authority, in the form of the authority of state or civil law morally to oblige us, developed out of a general theory of moral obligation. The interest of this tradition in law, therefore, goes far beyond the humanly constructed systems of positive law, of humanly made custom and statute, that are the concern of modern jurisprudence. Law is first and foremost a moral standard before it is ever to be found in humanly created regulation. Human systems of positive law are of concern to the theory of law proper insofar as they serve a central function: that of defending, through human coercive authority, existing moral obligations and of adding to those existing moral directives new ones, general adherence to which will further the good of the community. As Catholic natural lawyers were all agreed, following St. Augustine, statutes or customs which fail to do this, which because of their injustice leave us under no moral obligation to conform to them, while they may be termed ‘laws’ and are presented as laws by Edition: current; Page: [xi] human authorities, do not constitute law of the kind with which Suárez and other natural lawyers were concerned. For they do not carry the force of moral obligation, which genuine law must do: an unjust law is not a true law (nam lex mihi esse non videtur, quae iusta non fuerit).1

How similar was the moral theory of Suárez and his Catholic contemporaries to those of subsequent Protestant natural law theorists? We can best compare Suárez with Pufendorf, who more than Grotius was to develop a serious theory of obligation and its moral psychology, and who shared with Suárez a similar conception of moral obligation’s nature. In both thinkers natural law is imposed by a divine will and command communicated to us through our natural capacity for reason. Moreover, for both thinkers the moral obligation attaching to actions that comes with natural law, though imposed by divine commands, is not taken simply to be the property of being divinely commanded. Rather, moral obligatoriness is taken to be a distinctive mode of justificatory support or force, a vis directiva, as Suárez terms it, which divine commands generate. The force of obligation, communicated through what Suárez terms praecepta, or preceptive commands, parallels and operates alongside the force of advice that is communicated through consilia, or counsels. Where the force of consilia recommends, or leaves what they support advisable or a good idea, the force of praecepta binds and leaves what they support obligatory. Both forces or modes of support are the voice of our reason, and both directly address the will, our capacity for choice and decision, which is viewed as a capacity for free action. The natural law binds and obliges us freely to choose or decide on action that is morally good and against action that is morally bad.

This conception of moral obligation as a justificatory force binding a free will is very distinctive and is clearly absent from Locke’s treatment of duty or obligation in An Essay Concerning Human Understanding. There Locke may appeal to natural law, but this law comes to no more than a series of punishment- or sanction-backed commands applying to the various actions we might decide on or will. There is no distinctive vis directiva of obligatoriness generated by those commands that applies to and binds the will itself.

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Despite this shared theory of obligation, Suárez and Pufendorf differ fundamentally in the remaining moral theory to which this theory of obligation is attached. We come to know of the content of the natural moral law, Suárez thinks, on the basis of a pre-legal grasp of what actions are morally good or bad. This grasp of a pre-legal morality of virtue, Suárez thinks, is possessed both by Christians and by rational pagans such as Aristotle, on whose theory of virtue Suárez, like other schoolmen, generally relies. Knowing what is morally good and bad, and knowing too through reason that God exists and that in freely creating us with a rational nature he wills an obligation on us to act morally, we can form rational conclusions as to both the existence of the natural law and the nature of its content. Whereas for Pufendorf, there is no pre-legal theory of virtue and vice, of moral good and bad, available to us. The notion of action that is morally good or bad simply is the notion of action that, under natural law, is permitted or prohibited. Aristotle is accorded no special authority, and moral theory has to be constructed from a general theory of advantage or disadvantage that is pre-moral and that applies to human and animal alike. This theory of pre-moral or natural good and bad has advisory force for us as rational beings and is then used by Pufendorf to generate the theory of moral law that is to bind our exercise, as rational beings, of our free will. We use reason to conclude from what is naturally good and advisable to what is obligatory, on the basis of God’s will that we should do what is naturally or pre-morally good or advantageous.

Suárez’s theory of moral obligation as a vis directiva governing free choices of the will is linked, then, to a traditionally Aristotelian-scholastic theory of virtue and of the moral good (honestum) and bad (turpe). In this he is like other Catholic thinkers of the second scholastic. Where he differs from many early modern Catholic thinkers is in his understanding of all law as legislated and as the exercise of some power of jurisdiction. For his fellow Jesuit Gabriel Vásquez or a Franciscan thinker such as John Punch, moral obligation was indeed a vis directiva. But it no more needed a legislator than did the recommendatory force of consilia. Just as some actions could be sensible or a good idea without some act of divine advice making them so, so too some actions could be obligatory and others prohibited Edition: current; Page: [xiii] or wrong without some act of divine command making them so. A major part of the theory of moral obligation that is developed in De legibus is, then, a defense of the idea that all obligation, including that of the natural law, depends for its generation on the legislative command of a superior. Suárez is accordingly committed to embedding all law and obligation within a general theory of legislation and legislative authority that extends to an ultimate and supreme legislative authority—that of God himself. The universe involves a cosmic legislative hierarchy in which its creator is also the ultimate creator of every law. Any man-made authority or law with the power to bind us owes its obligatory force to divine authority and to its legislation.

Suárez’s political thought concerns both the nature of political authority in its own right and its relation to the mission and authority of the Catholic church. In this respect it goes beyond the strict concerns of the natural law on which the temporal authority of the state is based. For besides the natural law that directs us to a lower or imperfect natural happiness as conceived by rational pagan and Christian alike, there is also a supernatural or divine law, given through revelation in the Old and New Testaments, that directs us to a higher and perfect supernatural happiness that we can know of only through divinely granted faith, and attain only with the help of divinely granted grace. The divine law of the New Testament does not abrogate but goes beyond the natural law, and the authority of the church is based on that divine law. It is within this generally accepted framework that Suárez and his fellow Jesuits developed a theory of the state and its relation to the church.

Like fellow Jesuits such as Robert, Cardinal Bellarmine, and Luis de Molina, Suárez teaches that the temporal authority of the state is based independently of that of the church and is not directly subordinate to or derived from church authority. Political authority is originally given by God, not to any individual or individuals—individuals are naturally free, lacking any original authority or dominion one over another—but to human communities considered as societates perfectae, united by consent and capable as a unity of directing their affairs without external help. This authority could then be transferred by a community’s consent to individual rulers or princes, as it mostly had been. This transfer was viewed Edition: current; Page: [xiv] as a form of alienation. That is, the authority could not be recovered by the community unless the conditions attaching to its original transfer had been broken, as would definitely happen if the ruler embarked on a form of tyranny that amounted to a war on his own community, which Suárez terms a war on his own state.

Jesuit writers were then agreed that the church had no direct temporal authority over earthly rulers. Since Christ’s kingdom was not of this world, the pope was no princeps mundi, exercising earthly sovereignty over the whole world. This consensus within the order was contrary to the views of a number of previous canonists, and even of some popes including, most recently, Pope Sixtus V, who had died in 1590 when just about to proscribe Bellarmine’s denial of direct papal temporal authority by placing his works on the index of prohibited books. Nevertheless the church and its earthly head the pope still had a spiritual authority over all baptized Christians, rulers and princes included. And, like his Jesuit brothers, Suárez taught that since spiritual ends were higher than temporal ones, with this authority came an indirect temporal authority to be exercised over, and for the spiritual benefit of, Christians. So the pope had the authority if necessary to absolve Christian subjects from their allegiance to spiritually abusive rulers and to punish rulers who themselves were Christian, such as heretical rulers, with sanctions ranging from the imposition of spiritual penalties, such as interdict and excommunication, to outright deposition should spiritual ends require this. Belief in at least this extensive though indirect papal authority over temporal rulers was regarded by Suárez as de fide, a matter of dogmatic and infallible teaching, a view shared within the Roman Curia, but not by Catholics everywhere. For Suárez’s views were denied not only in Protestant lands, but also in Catholic states such as France and Venice.

Conflict had already occurred between Pope Paul V and the Republic of Venice in 1605 over a claimed immunity of Catholic clergy from the coercive power of the state, a conflict that led to a sentence of papal interdict on Venice. Further controversy over papal authority was caused by James I’s imposition in 1606 of an oath on English Catholics affirming that the attribution of any authority to the pope to depose temporal sovereigns was not only false but a heresy:

Edition: current; Page: [xv]

I, ———, do truly and sincerely acknowledge etc., . . . that the Pope, neither of himself nor by any authority of the church or See of Rome or by any other means with any other hath any power or authority to depose the King . . . and I do further swear that I do from my heart abhor, detest and abjure, as impious and heretical, this damnable doctrine and position, that princes which be excommunicated or deprived by the Pope may be deposed or murdered by their subjects or any other whatsoever.2

As intended, this oath served to divide the English Catholic community, being taken by George Blackwell, the archpriest in charge of its administration, and most of the prominent laity, but refused by the majority of the secular clergy and by the English Benedictines and Jesuits. Following on a series of works by Bellarmine, Suárez’s Defensio fidei was an exercise in controversial apologetics in reply to this oath that was commissioned by the Roman Curia through Decio Caraffa, the papal nuncio to Madrid. With papal approval the book gave a systematic account of state authority, of the subordination of temporal ends to spiritual, and of the Pope’s consequent indirect temporal authority over Christians. Given Suárez’s reputation, the significance of the work was not lost on James I’s government. Copies of each of the six books of the Defensio were supplied to London by Sir John Digby, James I’s ambassador to Madrid, as they were printed. The complete work was burned by the hangman at St. Paul’s Cross, subversive as it was of James I’s pretensions to derive his authority to rule immediately from God and to exercise that authority quite immune from any papal interference.

Suárez’s strong view of papal authority both over the church as a whole and indirectly over Christian rulers was always going to be unpalatable to French Gallicans, who denied any papal temporal authority and viewed the exercise of the pope’s spiritual authority as subject to the consent of the church. But there was a further matter that, after the assassination of two successive French kings, guaranteed the Defensio fidei a hostile reception in France. James’s oath raised the issue of tyrannicide; and so, with typical thoroughness, Suárez addressed this issue in the Defensio too, defending the legitimacy of tyrannicide under certain conditions.

Edition: current; Page: [xvi]

The Council of Constance had issued a decree in 1415 condemning as heretical the following proposition:

Any tyrant can and ought to be killed, licitly and meritoriously, by any of his vassals or subjects, even by means of plots and blandishments or flattery, notwithstanding any oath taken, or treaty made with the tyrant, and without waiting for a sentence or a command from any judge.3

This condemnation was seen as binding on subsequent Catholic discussion of the permissibility of killing tyrants. But few Jesuits besides Juan Azor understood this decree to be a blanket condemnation of tyrannicide. Suárez insisted on a distinction between two sorts of tyrant that had been made by Aquinas.4 There are tyranni a regimine, or lawful tyrants, that is, princes with a legal title to rule, but who abuse their authority; and tyranni a titulo, or unlawful or usurping tyrants without even the right to rule. The latter may include previously lawful tyrants who have lost their title to rule through lawful deposition. In Suárez’s view, the difference between lawful and unlawful tyrants is that an unlawful tyrant is using violence on the state by his very retention of royal power, so that the state is by that very fact involved in defensive war against him. In contrast, a lawful tyrant has just title, but is abusive in his method of rule, which aims at his private advantage against the public good. In the latter case, it need not follow that the abuses amount to an actual attack on his community, though if an attack is being made then, again, the community is involved in a defensive war against its own prince. The Council of Constance was understood by Suárez to ban the indiscriminate killing of lawful tyrants, but to leave open the possibility of killing a usurping tyrant as part of a defensive war against him by the community. Even a lawful tyrant might similarly be killed if engaged in an outright attack on his own community.

The conditions set by Suárez for permissible tyrannicide were very circumscribed; but his discussion came only three years after the assassination Edition: current; Page: [xvii] of Henri IV, and the apparently sympathetic treatment of the earlier murder of Henri III by his fellow Jesuit Mariana in De rege et regis institutione (1599) was also fresh in mind. In even discussing the topic the Defensio fidei contradicted earlier assurances given by the papal nuncio to France that it would not address the question of tyrannicide. As a result, Suárez’s work was initially condemned, with the writings of other Jesuits, by the Paris Parlement, though the French crown was brought to retract the condemnation of Suárez along with an earlier parliamentary condemnation of Bellarmine.

Suárez writes of individuals as possessing an original and natural liberty. But the distance between his thought and any subsequent contractarianism, let alone any form of liberalism, is considerable. The consent of the community may be a condition of political subordination. But this consent is, as we have noted, an alienation and, except under limited conditions, cannot be retracted. It involves no transfer of rights or powers from individuals to their rulers, but only from the community as a whole. Moreover, the community’s consent comes to no more than a shared custom of obedience under conditions that leave this custom to further the common good. And even this shared custom is not, as it would be for Hume, the ultimate source of political authority, but merely a condition under which God, the true ultimate source, grants that authority. It should also be noted that the metaphysical freedom of the individual’s will guarantees no special freedom in questions of religion. As De fide makes clear, coercion of belief may be perfectly legitimate. The limits on such coercion are almost wholly jurisdictional and do not arise directly from the moral status of the individual. The state has jurisdiction in its own right only in relation to the ends of natural law, which is why the state cannot coerce specifically Christian belief. But the state can perfectly well coerce religious belief and practice otherwise. The state can and should force individuals out of idolatrous or polytheistic religion and into the practice of the rational monotheism that natural law requires. The church, by contrast, does have jurisdiction in relation to spiritual and supernatural ends, though this spiritual jurisdiction is limited to the baptized. But within this jurisdictional boundary coercion is again fully permitted. With the assistance of Christian rulers, the church can certainly use force and Edition: current; Page: [xviii] sanction on the previously baptized, in particular on heretics and apostates, to impose properly Catholic belief and practice.

We have seen that Suárez’s belief in a necessary dependence of all law on legislative origin and authority was controversial at the time, although the doctrine came to be increasingly widely shared among Catholic moralists thereafter.5 Much of the success of Suárez’s views lay in his considerable synthetic ability. His writings were informed by what seemed to many of his contemporaries an exemplary mastery not only of metaphysics and moral theology and psychology, but also, more than usual for his order, of canon and civil law and commentary thereon. This synthetic ability enabled Suárez to absorb and integrate much in the positions of opponents into his own work. In particular, those of his Catholic opponents who saw the natural law as unlegislated took its origin to lie not in the decrees of God, but in our own rational nature, and to be knowable simply through consideration of that nature. But Suárez too claimed to safeguard the link between natural law and rational human nature. Though in his view natural law was the product of divine legislation, Suárez sought to agree with his opponents that the natural law is not simply posited by authority but has a content determined by that rational nature which it governs and that the law can be known and obeyed just on the basis of understanding that nature. The reconciliation of rationalism regarding the content of the natural law with a voluntarist theory of its origin in the divine will was the central distinctive feature of Suárez’s De legibus.

Thomas Pink
Edition: current; Page: [xvi]

(from the Carnegie edition)

The translation of these Selections from the works of Francisco Suárez has been made from the following editions:

De legibus ac Deo legislatore, first edition, Coimbra, 1612.

Defensio fidei catholicae et apostolicae adversus Anglicanae sectae errores cum responsione ad apologiam pro iuramento fidelitatis & praefationem monitoriam Serenissimi Iacobi Angliae Regis, first edition, Coimbra, 1613.

De triplici virtute theologica, fide, spe & charitate, first edition, Coimbra, 1621.

In the preparation of the translation, however, various other editions have been consulted, notably the Paris edition of the Opera Omnia published in 1856–61.1 Several of the separate early editions of the treatises mentioned above were also referred to from time to time,2 as was the Spanish translation of the De legibus prepared by Don Jaime Torrubiano Ripoll.3

Some mention must be made here of the numerous problems encountered in translating the Selections. First of all there is the fact that as both a theologian and a philosophical jurist Suárez dealt with abstract and technical ideas, with fine distinctions and precise definitions. Again, his aim throughout his work was obviously fullness of presentation rather than conciseness Edition: current; Page: [xx] or a terse and sententious style. Then, too, steeped in the learning of the Schoolmen as he was, he naturally employed the scholastic method of exposition, presenting in detail the arguments opposed to his own views. In spite of its formalism there is much to be said in favour of the thoroughness of this method, but it demands of the translator that he accustom himself to the scholastic form of argument and that he keep constantly on the alert lest he find himself mistaking the elaborate statement of an opponent’s theories for the author’s own doctrines. For much the same reason it is hazardous for the reader to attempt a casual survey of Suárez by dipping at random into his pages. Finally, while Suárez was an excellent Latinist, his Latin is characterized by a marked tendency toward elliptical expressions and the habit, not uncommon among scholars of his day in Spain, of endowing Latin words with the meaning of their Spanish derivatives.

In coping with these problems it was necessary to obtain the services of exceptionally competent translators who were qualified to deal not only with Suárez’s subject-matter but with scholastic argument and logic, and who could render his profound and sometimes rather elusive thought into clear English. At the same time it was felt that his language should not be too much modernized in the English version. Suárez was one of the great Schoolmen, and it seemed appropriate that the translation of the Selections should retain a scholastic flavour. The English text therefore reproduces in some measure his formal style of argument and the terms of logic employed by him.

There are, however, certain theological and scholastic terms in the text which are unfamiliar to laymen. To minimize the reader’s perplexity over these terms the translators, and especially the reviser, have added numerous footnotes. Other footnotes have been added with reference to citations, or as guides where Suárez has referred rather loosely to his preceding arguments or propositions.

The treatment of citations, quotations, and certain legal terms calls for a few words of comment. In general the aim has been to give citations in rather full form. This would not have been possible had they been relegated to the margins, as has been done in other volumes in this series. Suárez himself, moreover, had made these citations an integral part of his text. In order, therefore, to avoid confusion and undue abbreviation, which would Edition: current; Page: [xxi] have tended to make such citations unintelligible to the reader, they have been retained in the text of the translation, but are set off from it by parentheses. Within the parentheses, extensions and corrections have been added in square brackets. Where Suárez has, for example, an incorrect reference to Aristotle’s Ethics, the corrected and extended reference is thus added in brackets in the text: (Ethics, Bk. I, chap. ix [Bk. X, chap. ix, § 12]).

Great care has been given to the verification of references and quotations. Biblical citations have been checked against the Latin Vulgate (Paris edition of 1887), and in quotations the language of the Douay version has been employed. In dealing with the many references to St. Thomas Aquinas much use was made of the careful translation of his Summa theologica (2nd ed.) by the Fathers of the English Dominican Province. Canon law references were for the most part checked against the Friedberg edition (Leipzig, 1879–81) of the Corpus juris canonici, while in verifying and translating Roman law texts recourse was had to the several editions of the Corpus juris civilis by Mommsen, Kreuger, Schoell, and Kroll, published in Berlin, and to S. P. Scott’s translation.4 The texts and translations of the Loeb Classical Library were extensively used in dealing with Suárez’s numerous references to classical authors.

The translators have felt it advisable in certain instances to employ Latin terms in the English text. Thus, in passages where Suárez distinguishes between ius and lex it has seemed best to retain those words in the translation lest the distinction be obscured by the use of the single English equivalent, ‘law’. For a similar reason the words usus, mos, and consuetudo have been retained in certain passages. As regards the term ius gentium, Suárez employs it in both its older and its more modern signification, i.e. as embracing the laws common to various peoples, or as meaning the law applicable to the relations of independent states. Since the Latin term is familiar to readers with any knowledge of law it has not been translated except where Suárez specifically distinguishes the two meanings,5 in which cases ius gentium in the sense of international law has at times been rendered as ‘the law of nations.’

Edition: current; Page: [xxii]

Various circumstances made it necessary to divide the work of translating among several scholars. Mr. Ammi Brown, whose suggestions regarding the choice of chapters to be included in the Selections were accepted in many instances, also contributed to the project by the preparation of preliminary translations of many chapters. For additional translations, and for the present form of the English version of all of the chapters except those from Book VII of the De legibus, Miss Gwladys L. Williams is responsible. Miss Williams also listed many of the errata in the Latin text. The twenty chapters from the seventh Book were translated independently by Mr. John Waldron. Subsequently the entire translation was carefully read by a noted English Jesuit scholar, Father Henry Davis, who gave special attention to revision and elucidation in connexion with theological terms, and who aided greatly in the verification of references as well as in compiling the Index of Authors and the List of Errata. In addition to assisting in these latter operations and in the editing of the Selections for publication, Mr. Walter H. Zeydel prepared the Subject Index and the Analytical Table of Contents.

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Since the original translation of these works for the Carnegie series Classics of International Law new editions of parts of the original Latin texts of De legibus and of Defensio fidei have appeared in the Corpus Hispanorum de Pace. In addition there is an edition by Karl Deuringer of Suárez’s Roman College lectures De fide, which provides an early version of the material that, subsequently greatly expanded by the author, was published posthumously in 1621 in the treatise on the supernatural virtues. The translations have been checked against these Latin texts, and where necessary some silent corrections have been made. Some explanatory notes have been revised and some further notes have been supplied. The original notes are otherwise retained in square brackets, my additional notes being without brackets.

The bibliography of works cited by Suárez refers to postclassical works, generally in the earliest printed editions. Classical works cited by him can generally be found in Loeb editions. A full list of ancient authors cited can be found in the index to the original Carnegie translation. The further reading includes Scorraille’s life of Suárez and various books and papers that further explain Suárez’s own psychological, moral, and political theory, or the intellectual environment within which he developed his ideas.

I should like to thank Laura Goetz of Liberty Fund for her essential editorial assistance, Professor Knud Haakonssen for his invaluable comments and advice, and Dr. Annabel Brett for her preliminary work on this edition and for very helpful advice.

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CONTENTS (from the Carnegie Edition)

    • Dedication to D. Afonso Furtado à Mendoça, Bishop of Ejea 5
    • preface. Setting Forth the Subject and Plan of the Whole Work 11
      • Study of laws a division of theology, 11; God the Universal Lawgiver, 13; Civil jurisprudence as the application of moral philosophy to political conduct of the commonwealth, 14; Aims of canon law, 14–15; scope of theology with respect to law, 15–16.
    • book i: concerning law in general; and concerning its nature, causes, and effects
      • i. The Meaning of the Term ‘Law’ (Lex) 17
        • Discussion of St. Thomas’s definition of law, 17; Divisions of law according to Plato, 18; Relation of natural law to natural inclination, 19–20; Lex fomitis, 20; True meaning of law, 22; Difference between law and counsel, 23–24; Etymology of term ‘law’, 24–25.
      • ii. What Ius Means and How It Is to Be Compared with Lex 26
        • Etymology of term ius, 26–28; meanings of term ius, 28–33; ius distinguished from the equitable and the good, 33–35; distinction between ius and fas, 35–36.
      • iii. The Extent of the Necessity for Laws, and of Their Variety 37
        • Law not necessary in absolute sense, 37–38; Necessary for rational creatures, 38–39; Utility of law, 39; Categories of law, 39; Divine or Edition: current; Page: [xxvi] eternal law, 40–41; Natural and positive law, 41–42; Conceptions of natural law, 42; Law in strict sense not attributable to irrational things, 42; Discussion of natural law in strict sense, 43; Human Law, 44; Natural and supernatural aspects of natural law, 45–47; Positive law defined, 47; Division of positive law into divine and human, 47; Necessity of divine positive law, 48–49; Definition of positive human law, 50–51; Necessity for human law, 51–53; Civil and ecclesiastical law, 53–54; Other divisions of law, 54.
      • iv. What Acts in the Mind of the Lawmaker Are Necessary for the Making of a Law? 55
        • Relation of law to the mind, 55; Law based on concrete act, 56; Threefold classification of law with respect to its state or subject, 56; An act of the mind of the subject necessary for existence of law, 57; Acts of intellect and will necessary for lawmaking, 58–60; A will to bind subjects is required, 60–61; Notification of lawmaker’s will to subjects, 61–64.
      • v. Is Law an Act of the Intellect or of the Will? And What Is the Nature of This Act? 64
        • First opinion: law an act of the intellect, 64–65; Authorities and arguments in support of this opinion, 65–70; Second opinion: law an act of lawmaker’s will, 70; Discussion of this opinion, 70–72; Its confirmation in characteristic properties of law, 72–73; In certain characteristic conditions requisite for law, 73–75; Discussion of Bartholomew Medina’s doctrine, 75–76; Incompatible manifestations of will, 76–78; Third opinion: act of intellect and of will necessary for law, 78–80; Conclusions regarding these opinions, 80–82.
      • vi. Is It Inherent in the Nature of Law That It Should Be Instituted for Some Community? 82
        • It is inherent in the nature of law to be instituted for human beings, 83; Whether it is also inherent in its nature to be instituted for a community—conflicting opinions discussed, 83–89; Affirmative opinion preferred, 89; Inductive proof of this affirmative contention, 89–91; Further confirmation drawn from certain properties of law, 91–93; Refutation of arguments in favour of negative opinion, 93–95; Difference between law and precept, 95; Kinds of community, 96–98; Perfect and Edition: current; Page: [xxvii] imperfect communities, 98–99; Human laws should be framed for perfect communities, 99–102.
      • vii. Is It Inherent in the Nature of Law That It Be Enacted for the Sake of the Common Good? 102
        • Inherent in nature of law to be enacted for common good, 102–104; Divine laws work for common good, 104–105; Human laws should be enacted for common good, 105; Common good the final end of law, 105–107; Discussion of this theory, 107–108; Necessary that subject-matter of law itself be adapted to common good, 108–111; Privilege, 111; Relation of privilege to law, 112; Taxes relate to common good, 113; Laws to be in absolute form for common good, 113–115; Whether a general law established to harm an individual is unjust, 115–116.
      • [Chapter VIII omitted from these Selections.]
      • ix. Is It Inherent in the Nature of Law That It Be Just, and Established in a Just Manner? In This Connexion the Other Conditions of Law Laid Down by Isidore Are Discussed 116
        • Suárez’s first assertion: inherent in nature of law to prescribe just things, 116–117; Two interpretations of justice of law, 117; Just things prescribed by divine law, 118–119; Human law prescribing unjust things not binding, 119–120; Formerly indifferent or optional acts may be rendered obligatory by law, 120–122; How a law permitting certain evils may be just, 122; Righteousness inherent in nature of law—the several conditions laid down by Isidore, 123–126; Law devoid of righteousness not binding, 127; Suárez’s second assertion: inherent in nature of law that it be justly established, 128–129; Three phases of justice necessary to enactment of law, 129–133; Suárez’s third assertion: inherent in nature of law that it be practicable, 133; Confirmation of this doctrine, 133–137; Difference between injustice in a law as regards subject-matter and mode, 137.
      • [Chapters X and XI omitted from these Selections.]
      • xii. What Definition of Law (Lex) Is Derived from the Conditions of Law Above Set Forth? 138
        • Various definitions of law, 138–140; St. Thomas’s definition, 140; Discussion of his definition, 140–142; Suárez’s definition, 142.
      • [Chapters XIII–XVII omitted from these Selections.]Edition: current; Page: [xxviii]
      • xviii. Are All Men in This Life Subject to Law and Bound by It? 142
        • The question as defined by Suárez, 143; Heretical theory that just men are exempt from binding force of law, 143–145; All men subject to law, according to Catholic Faith, 145–146; Wicked Christians bound by law of Gospel, 146; How just Christians are bound by law, 147–149; Refutation of arguments of heretics, 149–150.
      • [Chapters XIX and XX omitted from these Selections.]
    • book ii: on the eternal law, the natural law, and the ius gentium
      • introduction 151
      • i. Is There Any Eternal Law; and, What Necessity Is There for the Same? 152
        • Four arguments denying the existence of eternal law, 152; Its existence proclaimed by various theologians, 153–155; Two phases of law, 155–156; Replies to first and second arguments, 156; Answer of certain writers to third argument regarding promulgation of eternal law, 157–160; Promulgation not required for eternal law, 160–161.
      • ii. What Is the Immediate Subject-Matter of the Eternal Law? Or, What Actions Are Commanded or Governed by That Law? 161
        • Certain acts regulated by eternal law, 161–162; Whether that law is the rule of immanent acts of God, 162; Whether it is the measure of free acts of God, 163–164; First proposition: eternal law as rule of moral conduct is not imposed on God, 165–168; Second proposition: eternal law applies to things governed but is not applicable to God Himself, 168; Whether irrational and inanimate creatures are subject to eternal law, 168–171; Whether all moral actions are subject to eternal law, 171–172; St. Augustine’s theory regarding the sway of eternal law, 172–173.
      • iii. Is the Eternal Law an Act of the Divine Mind, Differing in Concept from Other Laws; and Is This Law One, or Manifold? 173
        • Whether eternal law is a free or necessary act of God, 174; Eternal law includes act of divine will, 174–176; Eternal law a free decree of the will of God as regards all the universe, 176–178; Eternal law considered as existing in divine intellect, 178–179; Distinction between eternal law of God and His Ideas, 179; Eternal law distinguished from Edition: current; Page: [xxix] providence, 180–181; Effects of eternal law, 181–183; Whether eternal law is one or manifold, 184; Conclusion of Suárez, 184.
      • iv. Is the Eternal Law the Cause of All Laws? Is It Manifested and Does It Exercise Binding Force through Them? 185
        • Binding force of eternal law, 186–187; Whether other laws derive binding force from eternal law, 187; Its relation to divine law, 187–190; To human law, 190; Difference between eternal divine law and human law, 191; How eternal law is made known to man, 192; Eternal law binding through medium of divine or human law, 193.
      • v. Is the Natural Law Natural Right Reason Itself? 194
        • Nature of this question, 194; First opinion: natural law consists formally in rational nature itself, 194–195; Arguments in support of this opinion, 195–197; Arguments against this opinion; its rejection, 197–200; Second opinion: law of nature a natural force called natural reason, 200; Confirmation of this opinion, 201–204; Whether natural law consists in an act of judgment or a mental habit, 204–205; Natural law distinguished from conscience, 205.
      • vi. Is the Natural Law in Truth Preceptive Divine Law? 206
        • Doubt: whether natural law is true law, 206–207; Whether God is the legislator of natural law, 207–208; First opinion: natural law a demonstrative law, 208–209; Second opinion: natural law a divine and preceptive law, 209–210; Suárez’s first proposition: natural law indicates what is good or evil and contains prohibitions of evil and command of good, 210–211; Arguments in support of this theory, 211–217; Second proposition: the good or evil involved in the observance or transgression of natural law is not only due to the divine will but presupposes inherent qualities of good or evil in such acts, 217–220; Third proposition: natural law is truly and properly divine law of which God is author, 220–221; Discussion of the bearing of natural law on evil acts, 221–226; Whether the divine will itself prescribes or forbids those things which come under natural law, 226–230; The promulgation of natural law through right reason, 230–232.
      • vii. What Is the Subject-Matter Dealt with by Natural Law; or, What Are the Precepts of That Law? 232
        • Subject-matter of natural law, 232; Difference between natural law and other laws, 232; Whether or not every moral good and every contrary evil fall under natural law, 232; Contrary opinions, 233–234; Reply of Edition: current; Page: [xxx] Suárez: natural law includes all moral precepts characterized by goodness necessary to right conduct, 234–235; Confirmation of this assertion by reasoning, 235–237; Gratian’s statement regarding natural law, 237–239; Suárez’s reply to contrary opinion, 239–240; Whether all virtuous actions fall under natural law, 240–243.
      • viii. Is the Natural Law One Unified Whole? 243
        • Three questions regarding unity of natural law, 243–244; Two phases of natural law: that of humanity, and that of grace, 244; As regards the individual there are many natural precepts, but all form one unified body of law, 244–245; Classification of these precepts, 245–246; Natural law a unified whole with respect to all men, 246–247; Whether ignorance of natural precepts is invincible, 248–249; Natural law a single law, with respect to all times and every condition of human nature, 249–250.
      • ix. Is the Natural Law Binding in Conscience? 250
        • Effects of natural law, 250; Natural law is binding in conscience, 251–253; Whether every natural obligation carries with it an obligation in conscience, 253–254; Moral obligation not necessarily an obligation in conscience, 255; Whether every obligation in conscience is an effect of natural law, 255–257; Difference between obligations arising under civil law and those arising under divine law, 257–260.
      • x. Is the Natural Law Binding Not Only with Respect to the Virtuous Act but Also with Respect to the Manner of Its Performance, in Such a Way That This Law Cannot Be Fulfilled, Save by an Act That Is Good in Every Particular? 260
        • St. Thomas’s discussion of precepts and virtuous action, 260; Difference between affirmative and negative precepts, 260–261; Difference between fulfilling a precept and refraining from the transgression thereof, 261; Conditions requisite to good moral action distinguished, 262; First proposition: the mode of voluntary action is requisite for the observance of the natural law, 263; various objections and answers thereto, 264–267; Second proposition: to act with knowledge is, in a sense, necessary for the fulfilment of a natural precept, 267–268; Extent and nature of this knowledge, 268–271; Third proposition: natural law imposes obligation as to mode of practising virtue, 271–273; Suárez deals with conflicting opinions and doubt, 273–274.
        Edition: current; Page: [xxxi]
      • xi. Does the Natural Law Impose as an Obligatory Mode of Action That Mode Which Springs from the [Natural] Love of God, or from Charity? 274
        • Nature of this question, 274; Natural law and the love of God as the Author of nature, 275–276; In what sense the assertion that the love of God is an obligation of the natural law should be understood, 276–277; The opinion of Gregory of Rimini is rejected, 277–279; Mode of action springing from infused charity not required for the observance of natural law, 279–280; Discussion of certain conflicting opinions and objections, 280–283; Explanation of passages from Scriptures and Augustine, 283–286.
      • xii. Does the Natural Law Not Only Forbid Certain Acts, but Also Invalidate Contrary Acts? 286
        • Permission and punishment do not properly come under natural law, 286; Whether natural law may invalidate an act done in contravention of an obligation imposed by that law, 287; Rules for determining when acts are invalid by natural law, 289–291; Some acts prohibited by natural law may be validated, 291.
      • xiii. Are the Precepts of the Natural Law Immutable of Themselves and Intrinsically? 291
        • How law may be changed, 291–293; No lapse or change possible in natural law, either in its entirety or in individual precepts, so long as rational nature endures, 293; Proofs of this principle, 296; Discussion of certain views of Aristotle and St. Thomas on this principle, 296–299; Suárez on adaptation of natural law to changing subject-matter, 299; Whether natural law can be eradicated from the minds of men, 300–301.
      • xiv. Does the Natural Law Admit of Change or Dispensation through Any Human Power? 301
        • First opinion: change of or dispensation from natural law possible through human agency in some cases according to certain Doctors, 301–302; First argument in behalf of this opinion supported by examples concerning division of common into private property, restraint of natural liberty, changes in natural property rights, and in natural precepts on contracts and testaments, 302–303; Second argument supported by examples concerning dispensation from vows and oaths, from marriages that are merely ratified, from obligation of episcopal residence, from diriment impediments to Edition: current; Page: [xxxii] matrimony, &c., 303–305; Second opinion: human law unable to abrogate or dispense from natural law, 305–307; How things pertain to natural law, 307; Its relation to human will, 308; First assertion: no human power can abrogate any natural precept, 309–312; Second assertion: precepts of natural law which depend upon consent of human will for binding force may be subjected to human dispensation, 312–313; Third assertion: subject-matter of natural law may be so changed through human law that the obligation imposed by natural law will be changed, 313; Reply to first opinion—the example regarding division of property is refuted, 314–315; Division of property not contrary to positive natural law, 315–316; The objections of Fortunius Garcia to this doctrine are answered, 316–318; Reply to second example (on restraint of natural liberty): natural law of dominion, as distinguished from preceptive natural law, may be changed by human agency, 318–319; Replies to third and fourth examples, 319; Answer to second argument in support of first opinion (examples of dispensations from natural law), 320; Reply to first example (vows and oaths), 320; To second example (concerning marriage that is merely ratified), 321; To third example (obligation of episcopal residence in diocese), 322–324; To fourth example (diriment impediments to matrimony), 324; To other examples, 324–326.
      • xv. Whether God Is Able to Grant Dispensations from the Natural Law, Even by His Absolute Power 326
        • Reason for doubt in regard to this question, 326–327; Three classes of natural precepts are first distinguished in connexion with dispensation, 327; First opinion: God is able to grant dispensations with respect to all natural precepts, 328; Opinion rejected, 329; Absurdity of first opinion demonstrated by examples, 330; Second opinion (Scotus’s opinion): precepts of Second Table of Decalogue can be subjected to dispensation but not those of First Table, 330–332; This opinion rejected, 332–334; Not only precepts relating to God are necessary by virtue of natural law but those relating to one’s neighbour as well, 335; Arguments of Scotus are answered, 335–337; Third opinion (that of Major and Durandus): that negative Commandments of Decalogue do not admit of dispensation with exception of Fifth Commandment, 337–338; Assertion of Major that all affirmative Commandments admit of dispensation, 338; Assertion of Durandus that Commandments of First Table do not admit of dispensation but that this is not true of Second Table, 339; Suárez’s objections to Durandus’s proposition, 339; Fourth opinion: that none of Commandments of Edition: current; Page: [xxxiii] Decalogue admits of dispensation even by absolute power of God, 340; St. Thomas’s argument in support of this opinion, 340–341; Suárez’s approval and exposition of the fourth opinion, 341–342; Examples to prove that change in human dominion brought about by God is not a dispensation, 342–345; Natural precepts the subject-matter of which does not depend on divine power of dominion are immutable and do not admit of dispensation, 345; Status of the Commandments under this doctrine, 345–346; Discussion of St. Bernard’s opinion, 346–348; Whether there are natural precepts, apart from Decalogue, from which dispensations may be granted, by divine power, 348–349; Solution: God does not grant dispensations from natural precepts, but does change the subject-matter or circumstances of such precepts, 349–350; Suárez’s proofs and arguments confirming this solution, 350–353; His additional argument that dispensation from natural precepts is not possible in that they flow as necessary consequences from natural principles, 353–355.
      • xvi. Does the Natural Law Afford Any Opportunity for Epieikeia (Equity) or Interpretation, Whether Made by God or by Man? 355
        • Whether natural law affords opportunity for epieikeia, 355–356; Only God may employ epieikeia with respect to natural law according to certain authorities, 356; Others assert that epieikeia with respect to natural law may be effected through a human being, 356; Another opinion: that natural law is not susceptible of epieikeia, 357–358; Last opinion preferred by Suárez, 358; Distinction between epieikeia and interpretation, 358–359; First assertion: many natural precepts require frequent interpretation and exposition, 360–361; Second assertion: true epieikeia has no place in any natural precept, in so far as it is natural, 361; Confirmation of this doctrine by examples, 361–364; Confirmation by reasoning, 364; Epieikeia has no place in negative precepts of natural law, 365–366; Distinctions between positive and natural law with respect to epieikeia, 366–370; Answer to objection citing apparent exceptions where epieikeia is alleged to apply to natural law, 370–372; Third assertion: natural law, as established through positive law, may admit of epieikeia, 372–373.
      • xvii. Is the Natural Law Distinguished from the Ius Gentium in That the Latter Pertains to Mankind Only, While the Former Is Shared in Common with Dumb Animals? 374
        • Ius gentium an intermediate form between natural and human law, 374; Meanings of word ius explained, 374; Divisions of ius: natural law, ius Edition: current; Page: [xxxiv] gentium and civil law, 375–376; First opinion: that of jurists who distinguish natural law from ius gentium, in that former relates to brutes, the latter to mankind, 376–377; Authorities who disagree with this opinion, 378; Arguments for and against the first opinion, 378–381; Second opinion: which distinguishes ius gentium from natural law on ground that latter reveals itself without reflection, the reverse being true of ius gentium, 381; Rejection of this opinion by Suárez, 381–382; Third opinion: which distinguishes natural law as binding independently of human authority, this not being true of ius gentium, 382; Suárez’s rejection of this opinion, 383–384; Suárez’s view of relation between ius gentium and natural law, 384.
      • xviii. Does the Ius Gentium Command or Forbid a Given Act; or Does It Merely Concede or Permit? 384
        • Opinion that ius gentium may be distinguished from natural law as having concessive but not preceptive characteristics, 384; This opinion rejected by Suárez, 385–386; Relation of ius gentium to natural reason and human society, 386; Examples to illustrate this point, 387; Distinction between concessive and preceptive law as applied to ius gentium and natural law not valid, 388; Proof by means of Isidore’s examples of ius gentium, 388–390; Suárez further refutes the distinction, 390; Additional proof from examples of Isidore, 391–393; Suárez’s conclusion, 393.
      • xix. Can the Ius Gentium Be Distinguished from Natural Law as Simply as Positive Human Law? 393
        • The ius gentium essentially distinct from natural law, 393; In what respect ius gentium and natural law agree, 393–394; In what they differ, 394–395; Ius gentium termed positive and human in absolute sense, 395–398; Difference between ius gentium and civil law set forth by Suárez, 398; Similarity of opinion of Justinian on this point, 399; Isidore’s definition of ius gentium, and examples, 399–400; Twofold form of ius gentium, 401; Examples of first kind (i.e. law of nations), 401–402; All states members of universal society, 402; Second kind of ius gentium (common civil law), 404; examples of this second kind, 405.
      • xx. Corollaries from the Doctrines Set Forth Above; and in What Way the Ius Gentium Is Both Just and Subject to Change 405
        • How the ius gentium is common to all nations although it is not natural law, 405; St. Thomas’s assertion: precepts of ius gentium are Edition: current; Page: [xxxv] conclusions drawn from principles of natural law, 406–407; True equity and justice to be observed in ius gentium, 407; An important difference between ius gentium and natural law, 407–408; An objection based on the Digest, 408–410; Ius gentium may be changed by the consent of men, 410; By whom and in what manner it may be changed, 410–412; Difference in this respect between ius gentium and civil law, 412–413.
    • book iii: on positive human law as such, and as it may be viewed in pure human nature, a phase of law which is also called civil
      • introduction 415
        • Relative position of human law, 415; Division of human law into common law and particular law of a single community, 416; Latter subdivided into civil and canon law, 416.
      • i. Does Man Possess the Power to Make Laws? 417
        • Whether men are able to command other men and bind them by human laws, 417; Affirmative conclusion: civil magistracy with temporal power for human government is just and in harmony with human nature, 418; This conclusion based upon the principle that man is a social animal and desires to live in a community, 419–421; And upon a second principle that a power of governing must exist in a community, 421–422; Necessity of some principle whose function is to provide for and seek after common good of community, 422; Second conclusion: supreme human magistracy has power to make laws proper to its sphere, 422–423; Corollary: power to make human laws is vested in supreme magistrate of state, 423; Relation of jurisdiction to the lawmaking power, 424–426; Political subjection is consistent with natural law and reason, and this is not disproved by existence of tyranny, 426; Human principates did not originate with nature but are not contrary to nature or to Scriptures, 427–428.
      • ii. In What Men Does This Power to Make Human Laws Reside Directly, by the Very Nature of Things? 429
        • Power to make human laws dwells either in individual men or in whole body of mankind, 429; Opinion that legislative power resides in supreme Edition: current; Page: [xxxvi] prince by divine conferment is rejected, 430; Opinion of Suárez: since men are born free, this power must reside in the whole body of mankind, 430; Adam possessed domestic, not political power, 431; The non-political multitude contrasted with the political body which needs and possesses the power of government, 432; Suárez rejects the idea of a world state in view of the division of mankind into various states each with its ruler, 433; Introduction of precepts of ius gentium in relations of these states, 434.
      • iii. Has the Power of Making Human Laws Been Given to Men Immediately by God as the Author of Nature? 435
        • Reason for doubt on this question, 435; True opinion: power is given immediately by God, 436; This power embraces acts and purposes which transcend human authority, 436–437; How this power is conferred upon men, 437; It manifests itself in duly constituted political bodies, 438–439; It is not immutably vested in such bodies, 439–441.
      • iv. Corollaries from the Doctrine Set Forth Above 441
        • First inference: the power in question is in an absolute sense an effect of natural law, but its specific form is dependent on human choice, 441; Of the three forms of political government Suárez favours monarchy, 442–443; Second inference: civil power, though residing in a prince, flows from people as a community, 443; Civil power is lodged immediately in community, 443; The various titles to monarchical power, 443–445; Relation of royal power to the divine will and to human law, 446–447; Third inference: no civil laws are established universally for the whole world and binding on all men, 447–448; Fourth inference: regarding ways in which the lawmaking power is imparted, 449–450; Ordinary or delegated power, 450; What power is capable of being delegated, 450; Distinction between delegation of power by community and by prince made by Bartolus, 451–452; What power is incapable of being delegated, 452.
      • [Chapters V–XXXI omitted from these Selections.]
      • xxxii. Are the Laws Peculiar to Some Kingdom or Domain Binding on the Men of That Domain, When They Are Dwelling outside Its Territorial Limits? 453
        • Various phases of residence and domicile, 453; Whether permanent inhabitant of a state dwelling abroad must obey its laws, 453–454; No Edition: current; Page: [xxxvii] law is binding outside the limits of the territory of a superior by whom it is decreed, 454–455; Prince cannot make laws which are valid outside his jurisdiction, 456–457; Punishment of extraterritorial crimes, 457–459; Status of subject resident abroad, 459; When a law may have effect outside the limits of a state, 459–460; Enclaves are ordinarily outside the jurisdiction of enclosing state, 460.
      • xxxiii. Are the Laws Peculiar to Some Domain Strictly Binding upon Aliens While They Are Living Within that Domain? 461
        • Three elements to be distinguished in every law: binding force with respect to conscience, coercive force, requirement of a definite form for legal acts, 461; Suárez rejects opinion that only those domiciled in a state are bound by its laws, 462; Another opinion: laws bind aliens who have established quasi-domicile but not transients, 462–463; The accepted opinion: while he remains in the state the alien is bound in conscience by its laws, 463; Laws made for general welfare and must therefore have general application, 463–464; Alien is held, by sojourning in state, to manifest submission to its laws, 464; This doctrine applicable to religious persons who are guests in alien provinces, 465; Why aliens in a state are bound by its laws, 466–467; Whether a state may frame laws binding only upon aliens, 467; Whether a law is binding, as to its coercive force, on aliens temporarily in the state, 467; Suárez replies in affirmative, with certain limitations, 469–470; Difference between law and precept—view of Panormitanus rejected, 470–472; Difference explained by Suárez, 472–473; Alien sojourning in a state must observe the forms prescribed by its laws for legal acts, 473–474; Alien’s obligation with respect to taxes, 474–475.
    • [Bk. III, chap. XXXIV; Bks. IV and V omitted from these Selections.]
    • book vi: on the interpretation, cessation, and change of human laws
      • [Chapters I–VIII omitted from these Selections.]
      • ix. Are There Occasions When a Law, as a Whole, Automatically Ceases to Exist, with the Cessation of Its Cause? 477
        • Since law is essentially perpetual and enacted for the sake of the community, it can cease to exist only through a change in its object, 477; Contrary and Edition: current; Page: [xxxviii] negative cessation of law, 479; Validity of law destroyed by change giving it contrary effect, 479–480; Need for evidence of such change with contrary effect before law can lose its force, 480–481; Arguments that law does not lapse when reason for law ceases to exist in a negative sense, 481–482; General opinion that when reason for law disappears, even in a negative sense, the law also ceases, 482; Whether the prince is bound to formally abrogate such law, 483–484; Suárez’s view: proclamation of cessation of law necessary, 485; Subject-matter of human law is essentially either of a righteous or a neutral character, 485–486; Law prescribing an intrinsically virtuous act does not cease to exist on disappearance of merely extrinsic end, 486–488; Law ceases when adequate end of law, both extrinsic and intrinsic, ceases to exist, 488–489; Difference between precept and law in this respect, 489; Law prescribing act of a neutral character ceases upon cessation of extrinsic end, 489; No decree of prince necessary to publish cessation of such law, 491–492; A distinction between a law enacted to avoid ills that follow a given fact and a law enacted for the sake of positive good, 492–494; A further distinction regarding reasons for prohibiting certain acts, 494; When the obligation of fraternal correction lapses, 495–496; Difference between cessation of law in general and in particular, with answers to arguments previously cited on cessation of reason of law in a negative sense, 497–498; Cessation of part of a law, 498–499; Limited cause of cessation produces a limited effect, 499.
      • [Chapters X–XXVII omitted from these Selections.]
    • book vii: of unwritten law which is called custom
      • introduction 501
      • i. The Definition of Custom, Usage or General Conduct, Forum, and Stylus, and How Each Differs from Written Law 502
        • Isidore’s definition of custom, 502; Difficulties regarding this definition, 502; Usus, mos, consuetudo, 503; Definition of usus, 503; Definition of mos, 504; Mos found in free actions only, 504; Distinction between mos and usus, 505; Custom resides in frequency of acts, 505; Two elements of custom: frequency of acts (formal custom), after-effects of repeated acts (habit, consuetudinary law), 506; Definition of custom of law and custom of fact, 507; Various definitions of custom in its relation to law, 507–510; Difference between custom and prescription, 511–513.
        Edition: current; Page: [xxxix]
      • ii. Does Custom Always Introduce Unwritten Law, and Is the Definition Given Complete? 513
        • A doubt regarding a phrase in Isidore’s definition relating to custom as unwritten law, 513–514; Consuetudinary law is unwritten and commonly introduced in default of law, 514; Custom formally reduced to writing by one in authority to establish law becomes written law, 515; Custom retains its force until abolished by written law, 515–516; Relation of custom to existing written law, 516; Custom in derogation from written law, 517; The element of consent in establishing custom as implied in Isidore’s definition, 518.
      • iii. Of the Varieties of Custom, and Whether It Includes Forum and Stylus 519
        • Two kinds of custom: that concerning persons, and that concerning human acts, 519; An explanation of this division which Suárez rejects, 519–522; His own explanation requires consideration of the two kinds of custom in relation to their purpose, 522–524; Another division: custom founded on human acts classified as universal, public or private, 524; Universal custom includes ius gentium, 524; Is to be excluded from this discussion, 524–525; Ecclesiastical traditions included under universal custom, 525; Private custom cannot institute law and is also excluded, 526–527; Public custom only is capable of introducing law, 527; Kinds of public custom, 528–529.
      • iv. Of a Third Division of Custom: That Which Is in Accordance with Law; That Which Is outside Law; and That Which Is Contrary to Law: and of Certain Points of Ecclesiastical Traditions 529
        • This threefold division of custom may be applied to three kinds of law: natural, positive, and human, 529; Custom and natural law, 530; Custom contrary to law of nature has no legal effect, 531–532; Parts of ius gentium may be abrogated by custom, 532–533; Ius gentium cannot be abolished as a whole, 533; The possibility of creating customs or laws derogating from the ius gentium, 533; Triple division of custom applied to positive divine law, 534–535; Unwritten traditions of Church classed as custom in accord with divine law, 535; Distinction between tradition and custom, 535; Custom may emanate from unwritten divine law, 536; Ecclesiastical customs, 537–538; Custom contrary to divine law, 538; Custom of observing human law is merely custom of fact and does not introduce consuetudinary law, 540; Such a custom may confirm or interpret law, 541; Whether it may extend law, 542.
        Edition: current; Page: [xl]
      • v. Of the Various Divisions of Custom on the Basis of Subject-Matter 543
        • Custom distinguished as canonical or civil, 543; Objection to this division and Suárez’s reply, 543–544; Division of custom into: style, general conduct, rite and forum, 544; Meaning of term ‘style’, 544; Style of fact and of law, 545; Effects of style, 546; Laws of style and their nature, 547; Rite defined, 547–548; Rite of fact and of law, 548; Meaning of term ‘forum’, 548–549; Difference between forum and style, 549; Forum as both custom and law, 550–551; Division of custom into positive and negative, 551–553.
      • vi. What Is a Good and Reasonable Custom and What Is an Evil and Unreasonable One553
        • Good and bad customs, 553; Bad custom is one of fact, not of law, 553; Custom may be good or bad either absolutely or objectively, 554–555; Different kinds of bad custom and their legal effects, 555–556; Opinions of Navarrus and others as to what constitutes reasonable and unreasonable custom, 556–558; Suárez rejects these opinions, 558–563; His conclusion that the division of custom into good and bad differs from its division into reasonable and unreasonable, 563–564; Various methods and factors for judging the reasonableness or unreasonableness of custom, 564–566; Rule suggested to determine reasonableness of custom, 566–567.
      • vii. What Sort of Custom Is or Is Not Condemned in Law 567
        • Custom condemned by law ought to be declared unreasonable or specifically prohibited, 568; How law may annul custom, 568; clause ‘notwithstanding any custom whatever’ in law revokes custom already existing, 569; Simple abrogation of custom not equivalent to condemnation, 569; Some contradictory opinions, 571; Law prohibiting custom contrary to it applies to both past and future customs, 572–573; But such a law does not necessarily condemn future custom, 573; Custom condemned by law in express terms and in various ways, 574–578.
      • viii. Concerning Another Division of Custom into That Which Is Valid by Prescription and That Which Is Not 578
        • The question whether customs may be validated by prescription, 578–579; Prescriptive custom—opinion of authorities and definition, 579–581; Prescription validates both custom of fact and of law, 581; Contrary opinion refuted, 582; Similarity of custom and prescription in the broad meaning of the terms, 582; Difference between them in regard to duration of time Edition: current; Page: [xli] necessary to their validity, 583–585; Definite time required for prescriptive custom, 585; Contrary argument discussed and rejected, 586; ‘a long time’ in law connotes a period of at least ten years, 587–589; How length of prescriptive period may be determined, 589–591; At least ten years required for prescriptive custom, 591; Prescriptive period must be continuous, 592; What constitutes an interruption of a custom, 593; Division of custom into customs that are and those that are not validated by prescription, 593–594; Legal custom may exist independently of prescription and of a definite determination of a certain period of time, 594; Meaning of custom in absolute sense, 595–597.
      • ix. Concerning the Causes of Custom and in Particular Who Can Introduce It 597
        • The nature of custom with respect to its form and content, 597–598; Proximate cause of custom, 598; Perfect community necessary for establishment of custom, 599; Arguments based on private custom do not constitute a valid objection to this principle, 599–601; Only community possessing capacity for legislative authority over itself may introduce legal custom, 601–602; Several objections to this doctrine are answered, 602–606; Observance by greater part of community necessary for establishment of custom by the people, 606–607; Minority custom enacted into law by the prince is not consuetudinary law, 607; Custom of majority in community held to be that of whole community, 608–609; What persons constitute ‘majority’, 609.
      • x. By What Acts Custom Is Introduced 609
        • Custom introduced by repetition of acts, 609–610; Answers to certain objections relating to omissions of actions, matters of prescription and individual action, 610–612; The problem of what frequency of actions is necessary for establishment of custom, 612–614; Actions introducing custom must be public, 614.
      • xi. Whether Judicial Cognizance of the Frequency of Actions Is Requisite for the Introduction of a Custom 615
        • The arguments for affirmative opinion regarding this question are set forth, 615; Suárez rejects this opinion, declaring that no judicial act of recognition is necessary for establishment of custom, 616–617; He meets the several arguments previously set forth in behalf of the opposing opinion, 617–621; Edition: current; Page: [xlii] Effect of opinion of Doctors regarding custom, 621; Effect of judicial decisions on custom, 622–623; Their effect on the establishment of legal ‘style’—various opinions discussed, 623–625; To establish a custom judicial acts must conform to the same requirements of frequency and time as is the case with other acts, 625–627; Two kinds of style considered, 627.
      • xii. Whether Only Voluntary Acts Avail for the Introduction of Custom 628
        • Acts establishing custom must be voluntary, 628; Acts done in ignorance or error cannot establish custom, 629–630; A passage in the Digest which seemingly infers that custom may be established by error, 630–631; Suárez reinterprets this passage to conform with his doctrine that custom derived from error never establishes law, 631–635; Ignorance and error in regard to introduction of custom explained, 635; Custom not established by acts done under compulsion or fear, 637; Effect of fear on volition, 637; Acts done from fear are performed without intention of establishing custom, 638.
      • xiii. Whether the Consent of the Prince Is Necessary for the Introduction of a Custom, and What Must Be the Nature of This Consent 638
        • Various classes of communities distinguished in respect to power of establishing law and custom, 639–640; If the prince is the legislator, his consent is essential for the establishment of custom, 640–641; Extent of the power held by the prince, 641–642; Two ways in which the prince may consent to custom, 642–643; First inference: personal consent of prince not required in case of law established through prescriptive custom, 643–646; Second inference: if custom does not prevail in virtue of prescription, personal consent of prince is necessary, 646–647; Kind of consent necessary, 647; tacit consent sufficient, 648.
      • xiv. What Sort of Custom Has the Effect of Establishing Unwritten Law? 648
        • Four effects of custom: establishment, interpretation, confirmation, and abrogation of law, 648; Legitimate custom may establish unwritten law where no written or traditional law exists, 649–650; Such custom may contain all the elements requisite for true law, 650–651; Authority requisite for validity of a custom, 651–652; Will (i.e. intention) requisite for the establishment of custom, 652; Importance of this element, 652–653; Edition: current; Page: [xliii] Character of will required to establish custom, 653–654; Evidence of this will, 654.
      • xv. How Long Must Custom Endure in Order to Suffice for the Establishment of Law?655
        • Concerning time required for the establishment of a custom, 655; In the case of prescriptive custom ten years required for it to introduce law, 656; Whether a longer period is required if the prince against whom such prescription runs is absent, 657–660; Length of time necessary in the case of custom not validated by prescription, 660; Difficulty of fixing a definite period for such custom, 661; Effect of judicial decisions and prudent opinion, 662–663; Intention of those observing custom an important factor in this connexion, 663–665; Various criteria for determining whether custom is observed for the purpose of introducing consuetudinary law, 665–666.
      • xvi. Concerning the Causes and Effects of Unwritten Law Introduced through Custom667
        • Written and consuetudinary law similar except in form and promulgation, 667–668; Binding effect of custom, 668; Custom may establish penal law, 668–669; Custom may invalidate act contrary thereto, 669–670; Comparison of binding effects of law and of custom, 670–673; The binding effect of each, according to Suárez, is fundamentally the same, 673–674; Whether clerics are bound by custom, 674–677; Whether the obligation of custom may be extended from one case to another similar one, 677–679.
      • xvii. Can Custom Interpret Law? 679
        • Only custom in accordance with a law may interpret that law, 679; How it may interpret law as a sign or witness thereof, 679–680; As one of the causes for the introduction and settling of such interpretation, 680; Interpretation by prescriptive custom and concordant judicial decisions, 681; Force of custom in interpretation of human law, 681–682; Of divine and natural law, 682; Of custom, 683.
      • xviii. Can Custom Abrogate Human Law? 683
        • Doubts concerning power of custom to abrogate civil law, 683–684; Human law (canonical and civil) may be abrogated by custom, 684; Source of the power to abrogate civil laws by custom, 685; Power of repudiation of law by custom lies in those under obedience to that Edition: current; Page: [xliv] law, 685; Will of both people and prince required for establishment of such custom, 686–687; Universal custom necessary to abrogate general law for the whole Church, 687; Privative custom (one arising from repeated omission of an act) sufficient to effect such abrogation, 688–689; Consent of prince to abrogation, 689; Nature of the reason in support of custom abrogating law, 689; Prescriptive period for custom abrogating law: ten years in case of civil law, 691; Forty years in the case of canon law, 692–694; Not essential that prince be aware of prescriptive custom abrogating law, 694–695; Non-prescriptive custom and the abrogation of law, 695–697; Time required for abrogation of law through custom of which prince has no knowledge, 698; Judgment of prudent man the criterion, 698; Reply to argument based on passage in Decretals, 699–701; Suárez meets difficulties raised at the beginning of the chapter: as to whether a municipal statute can abrogate a general law, 701–702; Whether a custom can prevail in opposition to will of prince, 702; Whether a reasonable custom contrary to law may be established by morally good actions, 703–704; How a custom arising out of actions legally forbidden may derogate from law, 704–705.
      • xix. Does the Abrogation of a Law through Custom Admit of Any Exception or Extension? 706
        • Whether custom may abrogate penal laws imposing penalty by fact of transgression, 706–707; Whether custom may derogate from the penalty attached to a law, leaving that law still binding in conscience, 707–710; The effect of unreasonable custom with respect to such penalties, 711–714; Whether custom may relax the direct obligation of law without affecting the penalty attached thereto, 714–717; Suárez rejects the theory that laws invalidating certain acts cannot be abrogated by custom, 717–720; How a disqualified person may become legally qualified through custom, 720–721; Revocation of a custom by law does not prevent derogation from that law by a subsequent custom, 722; Effect of law forbidding future customs contrary to it, 722–727; How custom reprobated by law can prevail against such law, 727–729; Whether a law of the Church relating to the Sacraments can be abrogated by prescriptive custom, 729–731; Suárez finds no exceptions to the general rule that custom may abrogate law, 731; A custom abrogating law is not to be extended, 731; So held by Panormitanus, Jason, Innocent, and Rochus, 731; Whether custom may not only derogate from law but introduce new contrary law, 732; Suárez holds that both of these results may be brought about at the same time by the same custom, 733–734.
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      • xx. In What Ways Custom May Be Changed 734
        • Modes of changing custom, 734–735; Revocation of custom, 735; May take place by passage of subsequent law in opposition thereto, 736–738; Requirements of such a law if it possesses no revoking clause, 738; General custom revoked by general law, 738–740; Universal law framed for whole Church revokes particular customs of dioceses, &c., only if it has clause to that effect, 740; To what customs this rule applies, 741–745; Whether a particular law enacted for a locality by a ruler of universal authority derogates from a particular custom in opposition thereto, 745–747; Clause added to general law to abrogate custom, 747; To abrogate immemorial custom, 747–749; When an ancient custom is abrogated by a subsequent one, 749–750; Determination of the validity of such subsequent custom, 750–752.
    • —In Refutation of the Errors of the Anglican Sect with a Reply to the Apologie for the Oath of Allegiance and to the Admonitory Preface of His Most Serene Majesty James, King of England
    • Dedication 757
    • [Of this treatise, only the following Chapters are included in these Selections: Book III, chaps. v and xxiii; Book VI, chap. iv.]
    • book iii: concerning the supremacy and power of the pope over temporal kings
      • v. Do Christian Kings Possess Supreme Power in Civil, or Temporal Affairs; and [If So] by What Right? 761
        • Nature of the question regarding supreme temporal power explained, 761; Two forms of subjection, direct and indirect, 762–763; Whether the temporal power of Christian kings is supreme, 763; The opinion that the Pope is supreme in both temporal and spiritual domains, 764–766; Suárez’s assertion that Christian kings possess supreme civil power within Edition: current; Page: [xlvi] their own order, 766; Denial of the Emperor’s temporal supremacy over the Church, 766–767; The doctrine that the Pope does not wield supreme temporal jurisdiction, 768; This doctrine supported by authority of Popes, 768–770; By reason, 770–771; It is proved that the Pope has never acquired such jurisdiction through election or other human title, 771; Further proof in connexion with canon and divine law, 772–776; Whether the Pope can be a temporal as well as a spiritual ruler, 776–777; Suárez rejects the argument that the Pope possesses supreme temporal jurisdiction, though he exercises it only indirectly, 777–780.
      • xxiii. The Pope May Use Coercive Power against Kings, Even to the Point of Deposing Them from Their Thrones, If There Be a Valid Cause 780
        • Coercive power of Pope chief point of controversy with King of England, 780; Necessity for the Pope to have coercive power over wicked kings, 781; This doctrine supported by Scriptures, 782–784; Its application to contentions of King of England, 784; The power of the Church to bind includes coercive power, 784–785; Means of coercion, 785; Use of excommunication as a coercive power, 785–788; Power resides in Pope to chastise kings with temporal punishments, 788–789; Confirmation of this conclusion from Scriptures and ecclesiastical authorities, 789–792; Further confirmation from papal practice and conciliar approval, 792–795; The truth of the conclusion is demonstrated by reasoning, 795–797; Power to punish by means of temporal penalties is necessary to the Church, 797; Such power is even more necessary for the correction of kings than for the correction of other Christians, 798–799; For the protection of Christian subjects the Pope may deliver them from dominion not only of heathen but of Christian kings, 800–801; Other grounds on which the Pope may intervene in temporal matters, 801.
    • book vi: concerning the oath of allegiance exacted by the king of england
      • iv. Does the Third Part of the Oath [Exacted by King James] Contain Any Requirement in Excess of Civil Obedience and Contrary to Catholic Doctrine? 803
        • Third part of oath exacted by King James, 803; Two kinds of tyrants distinguished, 804; Lawful prince who rules tyrannically cannot be slain on private authority, 804; Contrary proposition condemned as Edition: current; Page: [xlvii] heretical, 805; Grounds in defence of this contrary proposition analysed and rejected, 807–808; Permissible to slay unjust prince in defence of one’s life, 809; And in defence of the state if such a prince is attempting to destroy it, 809–810; Permissible to slay tyrant whose title is tyrannical, 810–812; Various limitations upon this doctrine, 812–814; The opposing opinion is refuted, 814–815; In connexion with the doctrine of tyrannicide certain important distinctions are pointed out between the two kinds of tyrants, 815–817; A king who has been lawfully deposed because of his tyranny may be slain by a private individual, 818; Deposing of heretical kings, 819–821; Power to depose king lies in the state itself and in the Pope, 821; A Christian kingdom is dependent on the Pope in deposing its tyrannical king, 821–822; Legal punishment of the king after he has been lawfully deposed, 822–825; Suárez demonstrates the errors involved in third part of the oath exacted by King James, 825–827; Proof that the oath exacts more than civil obedience, 827; That it involves erroneous doctrine, 828.
    • —Divided into Three Treatises to Correspond with the Number of the Virtues Themselves
    • Dedication 833
    • Balthasar Alvarus of the College of Coimbra to the Readers on behalf of the Author 834
    • [Of this Treatise On Faith, Hope, and Charity, only the following Disputations are included in these Selections: Disputation XVIII of On Faith and Disputation XIII of On Charity.]
    • disputation xviii: on the means which may be used for the conversion and coercion of unbelievers who are not apostates
      • [introduction] 837 Edition: current; Page: [xlviii]
        • In approaching this subject certain fundamental facts and principles are briefly mentioned, 837.
      • i. Has the Church the Power and Right of Preaching the Gospel to All Unbelievers Everywhere? 838
        • Power and right of preaching distinguished, 838; First proposition: Church has lawful power to preach Catholic faith everywhere, 839; This power resides in all believers, 840; Second proposition: the Church has a right and a special authority to preach the faith, 840–841; Reason for this authority, 841; Third proposition: The Church has the right to protect its preachers and punish those who hinder preaching, 842; Power of preaching rests in pastors, who delegate it to selected preachers, 843; This refers to public preaching, 844; Supremacy of the Pope in this connexion, 845; His duty of defending the right of preaching, 846; He may entrust this duty to Christian kings, and for this purpose may distribute among them the realms of unbelievers, 847–848; Suárez disapproves of advance military aggression to insure that preaching may be carried on in peace and security, 848–849; Only after peaceful attempts to preach are resisted may force be used, 849–850.
      • ii. Is It Permissible for the Church and Christian Princes to Force These Unbelievers to Give Ear to the Faith? 850
        • The first or affirmative opinion on this question supported by four arguments, 850–851; Negative opinion, 851–853; An intermediate opinion is approved, 853; Christian princes may force their own infidel subjects to hear the faith, 853–855; Limitations on this proposition by Báñez, 855–856; Not permissible to coerce unbelieving non-subjects to hear the faith, 856; Answers to the four arguments relating to first opinion, 857–858; The use of coercion if a pagan ruler, or his people, or both are unwilling to permit preaching of the Gospel, 858–859.
      • iii. After a Sufficient Presentation of the Gospel, Is It Allowable to Use Force to Compel Belief on the Part of Those Infidels Who Have Been Sufficiently Instructed? 859
        • The first or affirmative opinion on this question, with several arguments, 859–861; A second opinion (supported by arguments) that the Church and Christian princes may compel acceptance of faith by those temporally subject to them, 861–863; The true opinion that unbelievers who are not apostates, whether subjects or not, may not be coerced to embrace the faith, 863; Proofs that the Church has no lawful power over such unbelievers, 864–866; Church may not exercise compulsion even upon pagans temporally subject to it in order that they shall embrace the Edition: current; Page: [xlix] faith, 866; Indirect coercion to compel acceptance of faith not intrinsically evil, 867–868; Reason in support of this proposition, 868; Conditions under which indirect coercion may be used, 868–869; To whom direct coercion to faith may be applied, 869–870; Answer to arguments in support of first opinion, 870–871; Answers to arguments in favour of second opinion, 871.
      • iv. May Unbelievers Be Forced to Abandon Those of Their Errors and False Rites Which Are Contrary Not Only to Faith but Also to Reason? 872
        • Two kinds of unbelief are distinguished, 872; Whether unbelievers may be forced to abandon errors which are contrary to natural understanding, 872; The first opinion (accompanied by arguments) that compulsion may be used even against non-subjects, 873–874; The second and true opinion that unbelievers who are not subjects cannot be forced to change errors and rites, 874; Rejection of arguments supporting first opinion, 875–876; Infidels subject to a Christian prince may be forced to profess worship of God and to cease from errors, 877; Proofs of this doctrine and corollaries drawn therefrom, 877–880; Whether rites of unbelievers should be tolerated in Christian kingdoms, 880; Such rites, if not opposed to natural reason, are to be tolerated, 881; Why and to what extent Jews are permitted to celebrate their rites in Christian states, 882–883.
      • v. May the Unbelievers in Question Be Deprived of All Superior Power Which They Hold over Christians, That Is to Say, over the Faithful? 883
        • The power referred to in this question may be of four kinds, 883–884; Suárez rejects an affirmative answer to the question, 884; First proposition that unbelieving princes may not be deprived of their jurisdiction over Christian subjects simply on ground of unbelief, 884–885; Proof on the basis of invalidity of opposing arguments, 885–887; Second proposition that the Church may indirectly deprive non-Christian princes of their power over believers, 887–888; Freeing of Christians from power of non-Christian prince by change of their domicile, 888; Or by depriving unbelieving prince of sovereignty—a method to be employed with caution, 889; Conditions justifying the use of this method, 889–890; The nature of this indirect power over non-Christian princes, 890; Third proposition concerning the dominion of infidel masters over Christian slaves, 891–893; Fourth proposition that infidel officials under Christian Edition: current; Page: [l] king may be deprived of jurisdiction over Christians, 893–894; Fifth proposition that Christians may not be slaves of unbelievers who are subjects of Christian states, 894–896; Sixth proposition that the Church can prohibit Christians from acting as servants of unbelievers, 896; Status of baptized son of unbeliever, 896.
      • vi. Whether Every Other Form of Communication between Christians and Unbelievers Is or May Be Prohibited 897
        • Three kinds of communication between Christians and unbelievers, 897; Communication in the works of unbelief forbidden by natural law, 897; Rules on this point, 898; Communication of unbelievers with believers in works of the Christian religion is at times prohibited, 899; Whether it is permissible to debate with unbelievers on sacred matters, 900; Communication in secular affairs is not inherently evil or forbidden, 900–901; May be forbidden by ecclesiastical law, 901; Various restrictions on relations with Jews, 902–906; Whether these restrictions are applicable also to Mohammedans and other pagans, 906–907.
  • disputation xiii: on war
    • On Charity: To the Gentle Reader 909
    • [introduction] 910
    • i. Is War Intrinsically Evil? 911
      • Two erroneous beliefs, 911; First conclusion that war is not intrinsically evil or forbidden to Christians, 911–914; Second conclusion that defensive war is permitted and sometimes prescribed, 914; Third conclusion that even aggressive war may at times be right and necessary, 914–915; Definitions of defensive and aggressive war, 915; Fourth conclusion concerning necessary conditions for waging war justly, 916.
    • ii. Who Has the Legitimate Power of Declaring War? 917
      • First conclusion that a sovereign prince or state has power to declare war, 917–918; Second conclusion that an inferior prince or imperfect state requires authorization from superior to declare war, 918; Suárez discusses certain limitations and exceptions to this conclusion, 918–920; Supreme jurisdiction a characteristic of perfect state, 920; But Christian kings are amenable to the indirect power of the Pope, 920–921; Third conclusion Edition: current; Page: [li] that war declared without legitimate authority is contrary to charity and justice, 921; Consequences of waging a just war in defiance of papal prohibition, 922.
    • iii. Is It Permissible Even for Clerics to Declare War and to Engage Therein? 922
      • The question expounded, 922; First conclusion that Prelates of Church, if temporal sovereigns, may licitly declare war, 923; Second conclusion that clerics are forbidden to engage in war, not by divine but by ecclesiastical law, 924; Dispensation from this prohibition may be granted, 924; Third conclusion regarding the binding effect of the said prohibition under pain of mortal sin, 925; Nature of the sin if the war is just, 925–926; Whether clerics engaged in war incur irregularity, 926–929; The granting of dispensation in case of irregularity, 929.
    • iv. What Is a Just Cause of War, on the Basis of Natural Reason? 929
      • An old error concerning military might and war is condemned, 929; First conclusion that no war is just without a legitimate and necessary cause, 929; Suárez discusses the nature of causes sufficient to justify war, 930–932; Second conclusion that war is justified against one who inflicts injury and refuses to give satisfaction, 932; Such war may be necessary for the sake of order in the world, 932; The sovereign thus waging war is both plaintiff and judge, 933; The position of the sovereign not analogous to that of a private individual, 934–935; Third conclusion that he who begins war without just cause sins against charity and justice, 935; Instances in which even a war with just cause may result in such losses as to violate charity, 935–937; Whether the sovereign must be morally certain of victory before embarking on a just war, 937–938.
    • v. Can Christian Princes Have Any Just Ground for War beyond That Which Natural Reason Dictates? 938
      • Suárez denies that war is justified by refusal to accept the true religion, 938; Or on the grounds of idolatry and sins against nature, 938–940; Or on the theory that world dominion is possessed by the Emperor or Pope, 940; Or on the ground that unbelievers are barbarians and should be conquered for humanitarian reasons, 941–942; No just grounds for war lying outside the bounds of natural law are reserved to Christian princes, 942; Only an injury received or defence of the innocent justifies war, 942–943; Extension of this doctrine, within due limits, to unbelievers, 943.
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    • vi. What Certitude as to the Just Cause of War Is Required in Order That War May Be Just? 944
      • This question refers to theoretical rather than practical certitude, 944; First conclusion that the sovereign ruler must examine the cause of war and its justice and act accordingly, 944; When the justice of the cause is in doubt, possession is an important factor, 945; Procedure when neither side is in possession, 946; Resort to arbitration, 947; To the judgment of learned advisers, 947; Second conclusion that when consulted regarding war generals are bound to inquire into the truth, 948–949; Third conclusion that unless they consider the war clearly unjust, common soldiers are not bound to investigate its causes, 949; How soldiers should proceed in case of doubt, 949–950; Whether mercenaries are bound to inquire into justice of war before enlisting, 950–951; Arguments that they are not so bound, 951–953; Suárez concludes that only when they have positive doubts as to the justice of the war are mercenaries bound to investigate before enlisting, 953.
    • vii. What Is the Proper Mode of Conducting War? 954
      • Various aspects of this question, 954–955; Soldiers should not seize or despoil civilian property, 955; Loyalty and duties of soldiers, 955; Their relations with one another, 956; Before beginning hostilities the prince must notify the opposing state of the just cause of war and request reparation, 956–957; Whether reparation offered after war has begun must be accepted, 957–958; Extent of damages which may be assessed against the conquered state, 958; Rules on capture of property, 959; Punishment of guilty individuals among the enemy, 959; Status of enemy property, 960; Of neutral property in enemy territory, 960–962; Innocent persons among the enemy, 962; Treatment of such persons in war, 963; Whether prisoners of war may be enslaved, 963–965; Immunity of ecclesiastical persons and property in war, 965; Innocent may be slain only when necessary for victory, 965–966; Persons to whom this doctrine applies, 966; The opposing argument based on scriptural passages is met, 966–968; Urgent necessity in the prosecution of the war may permit the incidental killing of innocent persons, 968; Various arguments against this doctrine are answered, 968–971; Measures permissible to insure peace, 971–972; Whether restitution for losses inflicted is obligatory where both sides voluntarily wage war without just cause, 972–973; Stratagems in war, 973; Whether it is permissible to break Edition: current; Page: [liii] faith plighted with an enemy, 974; Whether fighting is permissible on feast days, 974; Whether Christian princes may request aid of infidel sovereigns, 975.
    • viii. Is Sedition Intrinsically Evil? 975
      • Sedition defined, 975; Sedition, not against prince, but involving two factions of the state is evil on part of aggressor, 975; War of a state against tyrannical prince is not intrinsically evil if conditions necessary for just war are present, 976–977; War of state against a prince who is not a tyrant is intrinsically evil, 977.
    • ix. Is a Private War, That Is to Say, a Duel, Intrinsically Evil? 977
      • Private contests divided into duels and single combat, 977–978; Most duels are without just cause and are therefore condemned, 978; Duels not characterized by conditions of a just war are considered evil, 979–981; Whether it is permissible for a person unjustly condemned to fight a duel with his accuser, 981–986; A private armed contest waged by public authority is not intrinsically wicked if it has the characteristics of a just war, 986–987; Suárez approves the reduction of war to an armed contest among a few combatants, 987–988; Opposing arguments are answered, 988–989.
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Selections from Three Works


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A Treatise in Ten Books


By the Reverend Father FRANCISCO SUÁREZ

of Granada, Member of the Society of Jesus

Primary Professor of Sacred Theology at the celebrated Academy of Coimbra

Dedicated to the Most Illustrious and Most Reverend

d. afonso furtado à mendoça

Bishop of Ejea de los Cavaleiros

With Several Indexes


By Privilege of His Catholic Majesty for Castile and Portugal

From the Press of diogo gomez de loureyro

In the Year of our Lord 1612

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When I was about to publish my book On Laws, most illustrious Protector, I did not deem it necessary to consider at any great length the question of what person I should select before all others as its patron, that I might commend it to his care, to be defended by his authority, or embellished by his nobility. For under no patronage could my work more happily or more safely see the light, than under that of one who caused the drafting of its first outlines, its growth into a volume, and its dissemination in printed form for the common use; since this book, the first and foremost of all the books which I have thus far published, had its origin in this kingdom [of Portugal], and is the native product of this most noble Academy. All the rest of my works were already printed, or taken from my dictation, or composed by night, in other places; and this one only, through your exhortations and at your instigation, was first composed and dictated at this distinguished seat of learning. For while you were at the helm of the University as its most equitable director, to the immense benefit of that institution, and with the overwhelming applause of the whole realm, you believed that it would be beneficial to the world of letters if I should set forth from the professorial chair, a common doctrine of laws, in such a way as to adapt it—in so far as my diligence [under these conditions] might make this possible, or usage so demanded—to the various individual branches; and therefore, you suggested that I should bend all my energies to that task, and persuaded me to obey the suggestion. Accordingly, I carried out the undertaking so gladly begun at your bidding, devoting to it—under the happy auspices of your good will—an unbroken Edition: current; Page: [6] period of two years’ dictated exposition; but I did not so perfect that first draft as to fit it for the light of publication. Accordingly, I have at last polished the rough copy with such care as lay within my power, having become, according to the advice of St. Paul and at your bidding, ‘all things to all men’, that I might profit them all; and, having constant regard to the bidding of your will, I have fashioned the treatise with such care, that those whose words and leadership I follow are of the opinion that it should be published. Thus it was that simple justice seemed not only to ask and to urge, but also to require and to command, that you who were the instigator and originator of this work, should also be its patron; that the book conceived at your command, composed under your protection, and produced for your pleasure, should also be published under your name; a circumstance so remarkable and so glorious that my work cannot fail to derive from it great splendour and charm.1 However, even if I were not sufficiently persuaded by the reason just set forth to dedicate these commentaries to you, how many other arguments present themselves which would in any case force me to adopt such a course, even though I were reluctant! For whether I turn my attention to the gifts with which heaven has endowed you, or to those which you have derived from your ancestors, or to those which are the products of your own labour or the acquisitions of your industry, all these attributes stand out in such dazzling splendour and shine in you with such majesty, that he who should demand greater adornments in a patron, or a stronger bulwark for his labour, might well be considered senseless. Who, indeed, can fail to see how bounteously the immortal will has imparted to your spirit those virtues which befit such a pontiff as even God Himself has painted in living colours and drawn in shining likeness. In the Hebrew High Priest and in his rich adornments, God portrayed the virtues and instilled the gifts of mind which He required also of Christian priestly dignitaries. Indeed, among all the ornaments adorning the priestly attire, that ornament held the chief Edition: current; Page: [7] place which was seen to be suspended upon the breast by golden chains, and on which were inscribed in large letters these two names: ‘Truth,’ and ‘Judgment’; as if the Eternal Will preferred before all the other virtues which should adorn a pontiff, as being the chief and most noteworthy, this: that the soul of a prelate should shine with a sincere love of truth and with justice uncorrupted and equitable. These two virtues dwell in you, most illustrious Bishop; not to mention, for the present, that quality of yours which I know not how to name, whether to call it beneficence or extravagance, liberality or prodigality—the quality which moves you to lavish your resources upon the poor, to spend them for the needy, to exert yourself in behalf of those who suffer, so that you are called ‘Father of those in need,’ a tribute that is in truth divine. As I have said, I choose to pass over such qualities as this, and many other bright adornments of your spirit. But there is no one who fails to see—no one, indeed, who does not marvel upon seeing—how the two virtues which in their singular beauty decorated the breast of the High Priest, shine out from you with rays still brighter. For it is even as St. John Chrysostom has well said (on Matthew, Homily XIII): ‘As a lamp that is lit cannot be hid; so it is impossible that a word of justice should be concealed.’ Wherefore, indeed—however desirable it might seem to you, or to other persons, that it should be possible to conceal the ornaments of justice and integrity of which you gave such illustrious proof at Coimbra as Rector of the University, at Madrid as Counsellor to the King, at Lisbon while presiding over the Supreme Tribunal,2 and finally, now, in the diocese of Ejea,3 which you rule so uprightly and govern so justly that you seem to bear that laudatory inscription ‘Truth and Judgment’ not lightly pendant from your breast but engraved deep within—however desirable, I repeat, this concealment may seem to you—it was fitting in the very name of judgment that my book On Laws Edition: current; Page: [8] should be dedicated to you. For Law is the sister of Justice, and both are included under one name, according to that passage from Isaias (Chap. xlv [, v. 19]): ‘[. . .] I am the Lord that speak justice, that declare truth’,4 with regard to which Cyril of Alexandria says [on Isaias, ibid.]: ‘He calls Law, Justice.’ So distinguished a devotee of Justice and the Laws cannot but welcome in a kindly spirit a treatise on the laws and on justice. And how can one whose reflections concerning the laws are so keen, one who observes them with such accuracy, fail to defend, in case of attack, a book which contains and expounds legal doctrine; how, if that book suffer from disparagement, can he fail to adorn it with praise? For you will be the more richly equipped to render this service, in that you are not only illustrious for the qualities bestowed upon you by high heaven and celestial power, but also exceedingly distinguished for these other gifts which by reason of the long-established prerogatives of noble blood have descended to you from your forebears, by so many illustrious titles. If any person desires to contemplate the glory of your lineage and the ancient5 line of your ancestral images, let him look upon all Portugal6—nay, more, let him survey the whole of Spain, which so radiates the lustre of your race, that the man who fails to perceive such splendour must be deemed blind. For who is a stranger to the name and the fame of the Furtados à Mendoça? Gladly would I linger over the exposition of this point (for what man can speak adequately, when on a theme so lofty?) did I not believe that to cast verbal lustre upon a family so glorious would be to enrich7 the sun with light, the seas with water; especially in view of the fact that you, most illustrious Bishop, nobly descended as you are, transcend your nobility of lineage in the nobility of your spirit. For to those gifts which God has lavishly bestowed upon you, and to those which you have inherited from the illustrious and venerable line of your forebears, you have by your industry and Edition: current; Page: [9] labour, while diligently serving in the cause of letters, added this further qualification: the fact that our University looked up to you, as you trod its paths, not merely with congratulatory esteem, but also in just amaze and admiration. All those qualities, then, which men commonly desire in a patron, I behold in you, and possess through you in lavish quantity. But what would it avail me, that you should have conspicuous claims to renown, and should possess abundantly all that is wont to commend a patron, if in spite of your magnanimity to others the door of your benevolence were closed against me? However, while to all those who have earnestly devoted themselves to the pursuit of learning, that door has ever opened with a facility such that all men of letters acknowledge you as their outstanding protector, to me, indeed, it has always been opened so wide, in accord with your unique kindliness, that from the very day when first I took up my residence in Portugal, I have enjoyed your exceedingly generous benevolence and beneficence toward me, a generosity so great, and of so many years’ duration, a generosity expressed in your speech and made public in your deeds, that there is no need for me to make it known by my own proclamation. For in truth, you have always given—and still give, most lovingly—such signal proofs of your good will toward me, that no one in all Portugal, so it would seem, can have failed to witness, directly or by hearsay, your beneficent friendliness in my behalf. Therefore, reason demands and even insists that I should strive to emulate this kindness which you lavish upon me, although in truth, its magnitude is such that I am unable to make an equal return.

Accept, then, most illustrious Bishop, the gift of this little book. Although it is unworthy of the love and benevolence bestowed by you upon me and upon our Society; although indeed, it cannot worthily repay you the many debts and favours by which we, who were already your debtors, are so bound that we are unable to render you full payment for them, in spite of the fact that we truly desire to do so; nevertheless, this gift can certainly be the evidence of a most grateful heart, and a memorial of my entire good will toward you and all yours. This is your book because it was brought to light at your bidding and under your leadership. Since, then, it came from you, let it return to you. And even as it first saw the light under so happy a star, may it thus dwell for ever under that same Edition: current; Page: [10] star, a token of my affection for you. It is yours, being your due for many reasons, although it is an insufficient and unequal repayment. May you, then, defend the work as your own, with that potent authority which you possess; may you accord it that patronage for which you are so rarely distinguished; and may you shed lustre upon it with your own bright renown. For so your courteousness demands, your kindness promises, and my reverence for you deserves.

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Setting Forth the Subject and Plan of the Whole Work

It need not surprise anyone that it should occur to a professional theologian to take up the discussion of laws. For the eminence of theology, derived as it is from its most eminent subject-matter, precludes all reason for wonder. Surely, if the question is rightly examined, it will be evident that a treatise on laws is so included within the range of theology, that the theologian cannot exhaust his subject unless he tarries for a time in the study of laws. For just as theologians should contemplate God on many other grounds, so also should they contemplate Him on this ground: that He is the last end toward Whom rational creatures tend and in Whom their sole felicity consists. It follows, then, that the sacred science has this last end in view, and that it also sets forth the way to attain that end; since God is not only the end, and (as it were) the goal, towards which all intellectual creatures tend, but also the cause of that goal’s attainment. For He directs His creatures, and, having shown the way, leads them to Himself. Moreover, He checks them with admonitions, that they may not stray from the path of righteousness, and when they do stray from it, by His ineffable providence He recalls them and shepherds them back, enlightening them by His teaching, admonishing them with His counsels, impelling them by His laws and, above all, succouring them with the aid of His grace; so that Isaias most justly exclaims [Isaias, Chap. xxxiii, v. 22]: ‘the Lord is our lawgiver, the Lord is our king: he will save us’.1

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Since, then, the way of this salvation lies in free actions and in moral rectitude—which rectitude in turn depends to a great extent upon law as the rule of human actions2—it follows thence that the study of laws becomes a large division of theology; and when the sacred science treats of law, that science surely regards no other object than God Himself as Lawgiver.

All this is very well (someone may argue), if the theologian, keeping within the bounds of divine laws, does not invade the domain of human laws, which both the moral philosophers, and the professors of canon and civil law, may very justly claim as their own province. For if the theologian treats of laws only in so far as they are derived from God as Lawgiver, then surely he will be discharging an alien function, if he turns aside to discuss other legislators. Moreover, since theology is a supernatural science, it should be forbidden to descend to those matters which have their source in nature and in no way rise above her. If this be not true, then the natural philosopher may also study divine laws, in addition to natural laws; and the professors of Roman, or even of Pontifical law, may usurp for themselves the lessons of the divine laws; a supposition which is clearly opposed to an harmonious division of the sciences.

These considerations, however, are not of great moment and may be disposed of almost by a single word, if one reflects that, even as all paternity comes from God, so, too, does [the power of] every legislator, and that the authority of all laws must ultimately be ascribed to Him. For truly, if a law be divine, it flows directly from Him; if, on the other hand, it be human, that law is surely ordained by man, acting as God’s minister and vicar, in accordance with the testimony of the Apostle in his Epistle to the Romans [Chap. xiii].3 Hence, it is not without cause that, from this Edition: current; Page: [13] standpoint, at least, a discussion of all laws should fall within the scope of the faculty of theology. For, in view of the fact that it pertains to theology to look upon God as Lawgiver, and since God is the Universal Lawgiver, either through the mediation of a deputy, or by the immediate action of His own virtue (to use the terminology of the philosophers), this same sacred science must of necessity deal with all laws.

Moreover, it is a theological function to take thought for the consciences of men in this life, and rectitude of conscience rests upon the observance of laws, just as perversion of conscience rests upon their violation; for any law whatsoever is a rule which leads to eternal salvation if it is obeyed as it should be, and to the loss of that salvation if it is violated. Hence, the study of law as binding upon the conscience will also pertain to the province of the theologian.

Finally, the Catholic faith teaches not only how far we must obey God when He commands in the supernatural order; it teaches also what nature forbids, commands, or permits; furthermore, it clearly reveals to us the extent to which we must submit to the higher powers (in the words of Paul) and, indeed, the extent to which we must observe both ecclesiastical and secular laws. From these foundations of the faith, then, it is for the theologian to deduce what should be held, with respect to this or that system of laws.

One may understand, in this connexion, how theology fulfils the function in question without any imperfection or confusion; that is to say, it treats of law by the light of a higher inspiration. For, in the first place, the moral philosophers discuss many points relating to law. Thus, Plato wrote twelve books on the subject, compressed approximately into three, by Cicero.4 Aristotle, indeed, while he did not leave any work dealing strictly with laws, did write a great deal on that subject, here and there, throughout his works on morals;5 as did Seneca, Plutarch and others.6 Edition: current; Page: [14] It would seem, however, that these philosophers recorded only the principles of jurisprudence. For their treatment was almost entirely limited to those human laws which help to keep a commonwealth or state in justice and in peace; and, at most, they touched somewhat upon natural law in so far as it can be made known by human reason and serves as guide for the moral rectitude of acquired virtues. The [Roman] emperors, too, adopted very nearly the same principle in establishing their laws; as did the other framers of civil laws; for, using philosophy as a foundation, they deduced therefrom civil laws which were in accord with reason. Wherefore, Cicero (On Laws, Bk. I [, chap. xxii, § 58]) makes a particular effort to confirm the statement that jurisprudence should be derived from the very springs of philosophy. Ulpian agrees with this (Digest, I. i. 1, § 1), when he says: ‘We strive [ . . . ] for a true and not a simulated philosophy’. It follows thence that civil jurisprudence is nothing other than an application, or extension, of moral philosophy to the rule and government of the political conduct of the commonwealth; and therefore, in order that [this jurisprudence] may partake somewhat of the essence of true science, it must be joined or subordinated to philosophy. All this treatment of the laws, then, fails to transcend their natural end; nor does it even touch upon that end in all its phases, but only upon such phases as are necessary to preserve the external peace and justice of the commonwealth.

The canon laws, however, relate to the supernatural order, both because they are derived from the power given to Peter for the feeding of Christ’s flock [St. John, Chap. xxi, vv. 15, 16], and also because they trace their origin to the principles of divine law, and imitate that law in so far as is possible and expedient. Wherefore, Innocent III said (Decretals, Bk. V, tit. i, chap. xxiv) that the canonical sanctions were derived from the authorities of the Old and New Testaments. In the canon laws themselves, however, we may distinguish two separate ends. The one consists in the establishment in the whole ecclesiastical state of a due political order, the preservation in that state of peace and justice, and the regulation by right reason of all that relates to the external forum of the Church. The other end consists in the right and prudent ordering of all things relating to divine worship, the salvation of souls and the purity of faith and moral conduct. Hence the interpreters of canon law, by the very nature of their labours and of their Edition: current; Page: [15] own purpose, study and interpret the sacred canons from the standpoint of a superior end and aspect.

But theology embraces all these functions on a loftier plane. For it takes into consideration the natural law itself in so far as the latter is subordinated to the supernatural order, and derives greater firmness therefrom; whereas it considers the civil laws only by way of determining, according to a higher order of rules, their goodness and rectitude, or by way of declaring, in accordance with the principles of the faith, the obligations of conscience which are derived from the said civil laws. Furthermore, theology recognizes and claims as proper to itself, the sacred canons and the pontifical decrees in so far as they are binding upon the conscience and point the way to eternal salvation. Accordingly, with respect to all of these systems of law, theology conducts a divinely illuminated inquiry into the primary origins and the final ends; that is, it asks in what way the said systems derive their origin from God Himself, in the sense that the power to establish them exists primarily in God, flowing forth to men from Him either by a natural or by a supernatural course, and ever influencing and co-operating with them. Finally, theology clearly reveals the way in which all laws are standards of human action relatively to the conscience, and thus reveals also the extent to which they conduce to merit or demerit for eternal life.

Nor, indeed, are we the first among the theologians to undertake this treatment of laws. For we have as predecessors, writers of the gravest authority, in every age. In the first place, St. Thomas, in his Summa (I.–II, from qu. 90 to qu. 109) follows this mode of procedure when laying down a doctrine of laws; and he has been imitated by the commentators on these passages; especially, by Soto (De Iustitia et Iure, the first two Books) and by St. Antoninus (Summa Theologica, Pt. I, titles xi–xviii). Alexander of Hales ([Summa Universae Theologiae,] Pt. III, qq. xxvi–lx) and Vincent of Beauvais (Speculum Morale, Bk. I, pt. ii, first nine disputations7) have observed the same method. Gerson, too (De Vita Spirituali, Pt. III, lects. ii et seq.; De Potestate Ecclesiastica, Pt. I, especially consideratio 13), dealt with Edition: current; Page: [16] certain points relating to individual laws. [Peter Lombard,] the Master of the Sentences, also touched lightly (Sentences, Bk. III, dists. xxxvii, to end) upon the subject of divine laws; and he was imitated therein by others who undertook simply the task of commentators. Moreover, special works on certain laws have been published by other theologians, such as William of Paris8 in his Summa (Pt. I, bk. ii [Pt. V, chap. i]), which book he entitled De Legibus, although it treats almost entirely of the precepts of the Old Law. Castro also wrote on penal laws; and Driedo, in his work De Libertate Christiana, treated learnedly of every kind of law; not to mention other writers in these fields.

It is, then, the common consensus of the theologians that [the study of] law has regard to the consideration of the sacred science, in so far as concerns both the essential nature of law in general, and its division under all the various species.

Therefore, the foregoing makes clear the subject-matter of this treatise and the principle on the basis of which we shall treat of that subject-matter. With this end in view, then, we shall not find it difficult to set forth a summary of all the points to be treated, a plan of discussion, and the method to be followed. For we shall speak first of law in general, then we shall pass to each of its species, and in connexion with each of these, we shall treat only of those points which are adapted to our purpose; in order that, in so far as we find it possible, we shall neither omit anything that pertains to the purpose of theology, nor appear to go beyond the bounds of the sacred science.

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BOOK I: Concerning Law in General; and Concerning Its Nature, Causes and Effects

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

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

CHAPTER I: The Meaning of the Term ‘Law’ (Lex)

1. The definition of lex, according to St. Thomas. St. Thomas (I.–II, qu. 90, art. 1) defines the term ‘law’ (lex) as follows: ‘Law is a certain rule and measure in accordance with which one is induced to act or is restrained Edition: current; Page: [18] from acting.’1 This definition would appear to be too broad and general. For law would in that case be applicable not only to men, or rational creatures, but also to other creatures, since everything has its own rule and measure, in accordance with which it operates and is induced to act or is restrained therefrom. Moreover, law [if so defined] would relate not only to moral matters, but also to artificial matters; not only to what is good and upright,2 but also to what is evil; since the arts, too, whether licit or illicit, have their own rules and measures, according to which their operation is promoted or restrained. Finally (and this would seem to be a graver objection), it would follow from the definition above set forth that counsels are to be included under law; for counsel is also a species of rule and measure of virtuous action inclining one towards that which is better, and restraining one from that which is less good; yet, according to the faith, counsels are clearly distinct from precepts, and therefore are not included under law, strictly speaking.3

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

For the present, we refer the expression ‘natural law’ not to that law which dwells in mankind, a division which we shall also discuss later, but rather to that which befits all things, in accordance with the inclination imparted to them by the Author of nature; for such appears to be Plato’s Edition: current; Page: [19] explanation of the term, although he admits that the law in question exists among men also, after a nobler fashion.

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

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

3. Paul, too, may be interpreted according to this first acceptation, when, in the Epistle to the Romans (Chap. vii [, v. 23]), he speaks of the Edition: current; Page: [20] inclination of the sensitive appetite8 as ‘the law of the members’ and ‘a law of sin’, an inclination which St. Thomas (I.–II, qu. 90, art. 1, ad 1, and qu. 90 [qu. 91], art. 6) has called the lex fomitis9 (law of concupiscence).10 Furthermore, he there declares that this inordinate inclination of the fomes is called law, yet not formally, in the sense of law as a measure, but in a participatory sense, as one is wont to speak of that which is measured by law. Accordingly, St. Thomas holds, not that this inclination of the appetite comes of its very nature under the name of law, but that it does come under that name in so far as it is deprived of the rectitude of [its] original justice, owing to original sin, by operation of the punitive law of God. For in this sense, the inordinate nature of the fomes is not simply natural, but is a penalty of sin; and therefore, it is called ‘law’ in its capacity as an effect of divine law. Augustine (De Diversis Quaestionibus ad Simplicianum, Bk. I, qu. 1 [, no. 13]) seems to have held the same opinion, for he says: ‘This oppressive and weighty burden he calls law (lex), for the reason that it has been decreed and imposed by divine judgment through the law (ius) of punishment.’ Assuredly, this is to say that it was imposed by setting aside the [original] justice which endowed [the inclination] with the contrary quality of rectitude.

4. However, while the foregoing may be true, it would nevertheless seem that the inclination itself of the appetite, in so far as that inclination is purely natural, might be termed ‘law’ in the sense in which the natural inclination of water is so termed. For, in like manner, there would exist in man, in his purely natural state,11 this very law of the fomes, although Edition: current; Page: [21] it would not exist as a punishment for sin. Moreover, even to-day, this inclination of the fomes is apparently called law not only because it is an effect thereof, but also because it is (so to speak) a measure and rule of movements pertaining to the senses and has therefore been called by Paul ‘the law of the members’, as having dominion, in particular, over the members of the body. Thus it is that Augustine has said (De Genesi ad Litteram, Bk. V [Bk. IX], chap. x): ‘They have merited the operation in their members of that law which is opposed to the law of the mind.’12 So also is it that this law has been called the law of sin, not only because it is a result of sin, but also because it inclines thereto. In this sense, indeed, the law in question did not exist in Adam before the fall. For even though his sensitive appetite lacked not its natural propensity, it did not operate of itself, nor did it dominate in any way; neither was it a rule or measure of certain movements, but was, on the contrary, entirely subject to the law of the mind. However, for the matter of metaphorical locutions, the foregoing remarks will suffice.

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

Therefore, the name ‘law’ is properly applied, in an absolute sense, to that which pertains to moral conduct. And accordingly, we should narrow the description given by St. Thomas, so that it runs as follows: law is a certain measure of moral acts,14 in the sense that such acts are characterized Edition: current; Page: [22] by moral rectitude through their conformity to law, and by perversity, if they are out of harmony with law.

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

Plato amply confirms this assertion, in the Dialogue already cited.17 The reason supporting the view is also manifest in the light of what we have said above. For law is a measure of rectitude. But an unjust law is not a measure of the rectitude of human conduct. On the contrary, an action which conforms to it is unjust. Therefore, [such an unjust enactment] is Edition: current; Page: [23] not law, but partakes of the name of law by analogy (so to speak) in so far as it prescribes a certain mode of action in relation to a given end. We shall discuss this point later at some length.

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

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

8. Nevertheless, one should take into consideration the fact that sometimes there is laid down a law which relates to the performance of an act, so that it renders the act itself obligatory, as is the case, for instance, with the law of almsgiving; whereas at other times a law is made which deals only with the special quality of the action, or its mode of performance, a law which, although it does not require the performance of the act, does nevertheless require that, if the said act is performed, a particular mode of execution shall be observed. Of this nature, for example, is the law of attentive prayer. This precept, although it does not render obligatory the Edition: current; Page: [24] act of praying, nevertheless does impose the obligation to pray with attention if one prays at all. With respect to laws of this second class, then, it is, in a universal sense, true that (as St. Thomas has stated in the passage cited immediately above) every act, to the extent that it is a good act, must be in conformity with the eternal law; that is to say, with the eternal law as it prescribes a due method of performance. This conclusion applies also to the acts performed under counsel. Nevertheless, these acts, viewed as such, are not said to come under ‘acts of counsel’; rather, they are thus classified to the extent that their practice or performance is counselled, not prescribed.20 And, speaking in this sense, we must absolutely deny that counsel is included within the field of law.

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

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

But Isidore (Etymologies, Bk. II, chap. x and Bk. V, chap. iii) believes that law (lex) is so called from legendum (that which is to be read), a Edition: current; Page: [25] conclusion which he deduces from the fact that law ought to be written, and therefore is something to be read. However, since we are now dealing with law in a rather broad sense, the word legendum should be extended to include internal reading or reflection, as Alexander of Hales has noted ([Summa Universae Theologiae,] Pt. III, qu. xxvi, memb. 1), in order that this etymology may be suited to every law. For, just as the natural law is said by Paul (Romans, Chap. ii [, v. 15]) to be written in the heart, so it can and should also be read there by the mind; that is, it can and should be meditated and reflected upon, so that one’s conduct may be guided in conformity therewith, according to the passage in the Psalms, cxviii [, v. 105]: ‘Thy word is a lamp to my feet.’ Moreover, in harmony with this same etymology is the Hebrew name for law (Tora), which signifies ‘instruction’.

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

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

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

Edition: current; Page: [26]

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

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

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

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

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

2. The third derivation. The third etymological explanation derives the term ius from iustitia. For Ulpian has said (in Digest, I. i. 1), in accordance with this explanation: ‘ius, indeed, is so called from iustitia.’ Some persons assail this derivation on the ground that iustitia is derived from ius, rather than conversely; for that is called iustum (just) which is in accordance with Edition: current; Page: [27] ius. However, that argument lacks force, since it is one thing to speak of relationship (ordine), or derivation, with respect to causality, and quite another, to speak of such relationship with respect to the act of denomination, or assignment of a name. For in the former sense, it is true that iustitia (justice) is derived from ius; derived, that is, from that which is in reality just and fair with regard to its object and, accordingly, with regard to its final, or formal and extrinsic cause. In this sense, indeed, iustitia is defined by ius, since, according to the Digest (I. i. 10), ‘Ius renders to each one that which is his due’. However, in so far as concerns the denomination and appellation of ius (the point of which Ulpian is speaking), ius could have derived its name from iustitia; just as ‘vision’ (visus) is such because it tends toward an object that is ‘visible’ (visibile), while the object nevertheless receives the appellation ‘visible’ from the very term of ‘vision’. In like manner, then, iustitia is such, because it tends to the establishment of equity, which we say is the just mean (medium iustum) itself; and at the same time, this mean has been enabled rightly to take the title of iustum from iustitia, since such equity is fitted to be established through justice and is therefore called ‘just’ (iusta). And thus the term ius may easily have been derived through the dropping of the last syllable of iustum; even as we said in the case of the word iussum. Isidore (Etymologies, Bk. V, chap. iii) also has spoken to this effect, saying: ‘Ius is so called because it is just.’ Augustine, too (On Psalm cxlv, near the end [§ 15]), remarks: ‘Ius and iniuria (injustice) are opposites; for ius is that which is just.’ Therefore, even as iustum is clearly so called from iustitia, so ius may have derived its name from iustum and iustitia, in so far as relates to the etymology of the term.

3. Consequently, Augustine (On the City of God, Bk. XIX, chap. xxi) likewise deduces the following as a principle of the philosophers: ‘Because they call that ius, which has flowed from the fount of justice (iustitia).’1 For though ius may be, with respect to its object, the cause of iustitia, nevertheless, in the realm of efficient causality it is the effect of iustitia, since it is the latter which creates and sets up its own object, just as the other moral virtues do. Accordingly, if one were to consider this object in its potential aspect, it might be termed iustificabile (justifiable)—so Edition: current; Page: [28] to speak—from the word iustitia, even as we were saying with respect to visus and visibile; but the term iustificabile is not in use, it is barbarous, and in its place the word ius (in so far as it denotes the object of justice) seems to have been introduced. And if, on the other hand, the object in question is conceived of in its active character, then it is said to be iustum (just), and may be called ius. For it is in this sense that Augustine’s statement has a proper application—that is, his statement that ius and iniuria are opposites—since iniuria is nothing more nor less than an unjust act. So it is, too, that he has said, in the second passage cited: ‘That which is done by ius (iure),2 is surely done justly (iuste).’3 And thus Bartolus (on the said law of the Digest [I. i. 10]) declared that ius in its active character is execution, and interpreted accordingly the law on which he was commenting. However, the same conception may very well be accepted with regard to ius in its potential aspect, also, that is to say, in its [potential] nature (in habitu); because, as I have said, the question is not one of causal emanation, but simply one of the assignment of a name, just as scibile (that which may be known) derives its name from scientia (knowledge), even in a potential sense (in habitu).

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

4. The meaning of the term ius. In accordance, then, with those two derivations of the term, the word ius has two principal meanings. These have been noted by Driedo (De Libertate Christiana, Bk. I, chap. x). For, according to the last-cited derivation, ius has the same meaning as iustum (that which is just), and aequum (that which is equitable), these being the objects of iustitia. Yet one must take into consideration the fact that the word iustitia has [also] two acceptations. In the first place, this word may stand for every virtue, since every virtue in some wise is directed toward and brings about equity. In the second place, it may signify a special virtue which renders to another that which is his due. Accordingly, the word ius conforms, in due proportion, to each of these two meanings [of iustitia]. Edition: current; Page: [29] For, in the first sense, ius may refer to whatever is fair and in harmony with reason, this being, as it were, the general objective of virtue in the abstract. In the second sense, ius may refer to the equity which is due to each individual as a matter of justice. This latter acceptation is more common, since ius so taken is most particularly wont to be related to justice in the strict sense. Thus, St. Thomas (II.–II, qu. 57, art. 1) has said that such justice constitutes the primary basis and significance of ius. And in consequence, he well concludes (ibid., ad 2) that ius is not lex, but is rather that which is prescribed or measured by lex. This view should, I think, be understood in a relative sense. For the laws which pertain to justice in the special sense [likewise] involve a special form of ius, that referred to in the above-mentioned strict acceptation of the term. Whereas lex understood in the general sense, and in so far as it may have a place in all the virtues, will look to ius in the broad and general acceptation of the latter term; in accordance with Cicero’s statement (On Laws, Bk. II [, chap. v, §§ 11–12]), that in the very name of lex there is inherent the essential force of that which is iustum and of that which promotes ius, inasmuch as true law ought to prescribe what is just and fair, as I also have declared.

5. The true meaning of the word ius. According to the latter and strict acceptation of ius, this name is properly wont to be bestowed upon a certain moral power which every man has, either over his own property or with respect to that which is due to him. For it is thus that the owner of a thing is said to have a right (ius) in that thing, and the labourer is said to have that right to his wages by reason of which he is declared worthy of his hire. Indeed, this acceptation of the term is frequent, not only in law, but also in Scripture; for the law distinguishes in this wise between a right (ius) [already established] in a thing and a right to a thing; as it also distinguishes among rights of servitude or rights of rural or urban estates, rights of use or enjoyment, and similar rights, concerning which one may consult Brisson (De Verborum Significatione, Bk. IX, word ius, at great length). And in Scripture, we read that Abraham said (Genesis, Chap. xxiii [, v. 4]) to the sons of Heth: ‘Give me the right of a burying-place’ (ius sepulchri), that is, the power of burying (facultas sepeliendi); in another chapter (Genesis, Chap. xxxi [, v. 21]) it is said of Jacob that, when he departed from his father-in-law, he carried away with him ‘all Edition: current; Page: [30] that belonged to him’ (Omnia quae iuris sui erant); and similar passages are frequent. Again, it would seem that ius is so understood in the Digest in the passage (I. i. 10), where justice is said to be the virtue that renders to every man his own right (ius suum), that is to say, the virtue that renders to every man that which belongs to him. Accordingly, this right to claim (actio), or moral power, which every man possesses with respect to his own property or with respect to a thing which in some way pertains to him, is called ius, and appears to be the true object of justice. Hence, ius is also wont to be given the connotation of relationship, as is stated in another passage of the Digest (I. i. 12); for, in such a context, the word seems to refer to a certain bond or connexion born of relationship itself. In this sense, one person is said to succeed by right (ius) of kinship; another, by right of adoption; yet another, by right of appointment or testament. So it is, also, that the Digest (II. xiv. 34) makes the statement: ‘The right of kinship cannot be repudiated;’ while another passage (ibid., XLVIII. xxiii. 4) declares that the right of kinship is restored to the son. It is consequently inferred that [the term ius] is applied not to the blood-relationship itself, but to the moral claim (actio), or faculty, born of that relationship. The same explanation holds in the case of other passages.

6. Another meaning of the term ius. However, according to the other etymology, which derives ius from iubendum (ordering), the true meaning of ius would seem to be lex. For lex is based upon ordering (iussio), or command. The jurisconsults, indeed, often give the word this signification; as when they say, ‘We are following this or that law (ius)’, or, ‘This is a point on which the law (ius) is certain and firmly established’, or when they make similar statements. Again, [ius] seems to be given this meaning whenever it is distinguished from fact; as when a discrimination is made between ignorance of law (ius), and ignorance of fact, a distinction which is frequent in law (ius), and among the Doctors. There is in the Digest, a title [i.e. XXII. vi], ‘On ignorance of law, and of fact’. Hence it is, that what is in harmony with reason is said to be lawfully done (iure fieri), as if to say, ‘done in conformity with law’ (legi conforme). It is thus, too, that Sallust (in The Conspiracy of Catiline) would seem to have defined ius, saying: ‘Ius is civil equity, either sanctioned by written laws or institutions, or else drawn from custom.’ This description has apparently been given Edition: current; Page: [31] primarily with a view to the civil laws only, but if the word ‘civil’ is suppressed, [the definition] will be easily adaptable for the canon laws as well, and the positive divine laws. It does not seem applicable to natural law, however, unless we say that the latter law is written in the minds of men; whereas the term ius is indeed applied to natural law, as is evident from the title of Institutes, I. ii: De Iure Naturali & Gentium & Civili (Concerning natural law, the law of nations and the civil law), a title which we shall discuss later. Finally, the description in question appears to have been given rather with respect to the effect of law (lex) than with respect to the true rational basis thereof. Or, at least, it would seem to be rather a description of the object set up by the law, than a description of the law itself; since law constitutes equity, or is the measure and rule thereof, but is not properly speaking equity itself.

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

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

However, it has now come about through usage that the term lex is properly applied both to written and to non-written law, so that ius, in so Edition: current; Page: [32] far as it refers to lex, is used interchangeably with that term, and the two words are considered as synonyms.

8. The act of a judge is sometimes equivalent to ius. In consequence, to be sure, the word ius has come to possess certain other connotations which have not been transferred to the term lex. For the act of a judge is thus wont to be designated by the term ius, either because it ought to be performed in accordance with the laws (leges), or because it sometimes seems to establish a law (lex), as it were; so that the judge, when he exercises his office, is said to declare the law (ius dicere). This is the source of the title of Digest, II. iii: ‘If anyone fails to obey him who declares the law.’ Moreover, in the canon law (Sext, Bk. I, tit. ii, chap. ii), we find the words: ‘He who pronounces judgment outside the territory [of his jurisdiction] may be disobeyed with impunity.’ This statement may be interpreted as referring both to [judicial] sentences, and to law (lex) in the sense of a statute. And the Digest (I. i. 11) even speaks of a judge as administering law (ius reddere) when he makes an unjust decision, the reference being not to what he [actually] does but to that which he ought in duty to do. Furthermore, the judge is in this sense said to summon a subject to law (in ius vocare), with the meaning, in any case, that he does so for the purpose of testing the law, a point that is brought out in another passage (ibid., II. iv. 1). However, these words could be interpreted as referring to a summons to the place of judgment. For there has also been transferred to the term in question the signification of ‘a locality where judgment is rendered’, as the above-mentioned passage of Digest, I. i. 11, notes. Accordingly, among Roman5 peoples, ‘to go to law’ (ire in ius) is the same as to go before the Praetor or to the seat of the Praetor, as Brisson above cited, notes (De Verborum Significatione, Bk. IX, word ius), basing his comment upon Donatus [on Terence’s Eunuch, Act IV, sc. vii], Victorinus [Comment. on Cicero’s De Inventione, Bk. II, tit. 4] and a number of laws. Furthermore, this is also the interpretation given above by St. Thomas (II.–II, qu. 57, art. 1, ad 1), of the phrase in which one is said ‘to appear before the law’ (comparere in iure). In this passage, he adds still another meaning to the word in question, for he says that even the art itself by which one Edition: current; Page: [33] determines what is just, is sometimes called ius. Thus he appears to give a tacit explanation of the above-cited law of the Digest (I. i. 1, § 1), in which Ulpian quotes with approval the definition of Celsus, namely: ‘Ius is the art of the good and the equitable.’ For this definition would seem to be suited, not so much to law (lex) itself, as to jurisprudence (iuris prudentiae), unless ‘art’ is taken in a broad sense, as referring to any method or measure of operation.

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

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

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

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

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

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

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

10. Aequitas may be taken in another sense, however, as being a prudent moderation of the written law (lex scripta), transcending the exact literal interpretation of the latter; and, in this sense, aequitas is spoken of in the Digest (XXXIX. iii. 2, § 5) as being opposed to ius in its strict meaning. Edition: current; Page: [35] So, also, Terentius Clemens has said: ‘Between ius and aequitas, there is this distinction: ius is that which exacts that all things be strict and inflexible; whereas aequitas to a great extent abates the rigour of ius.’ Furthermore, in view of this interpretation of ‘equity’, the terms ‘equitable’ (aequum) and ‘good’ (bonum) are applied—by antonomasia so to speak—to that which does indeed of itself possess these qualities, even though it may appear to be at variance with the letter of the law (lex). Aristotle, too, understood ‘equity’ in this sense, when he spoke of it as the emendation of that which is just, that is to say, legal, and gave to the virtue from which it springs the name of epieikeia (equitable interpretation).10 St. Thomas also (II.–II, qu. 120) enters into a discussion of this virtue. For to this [form of equity] does it pertain to act, in particular cases, in opposition to the words of human law (lex), when the observance of that law would be contrary to natural equity. Under such circumstances, indeed, the judge is said to act, not according to law (iure)—not at least, according to the letter of the law as it stands—but in accordance with what is equitable and good; and this, in turn, is to observe the law (ius) itself, with respect to its intention, while the contrary mode of action would be to violate the law. Such is the view expressed in the Code of Justinian (Code, I. xiv. 5): ‘There is no doubt but that he attacks the law (lex) who, while accepting its words, labours against its spirit.’ And therefore, it is possible that jurisprudence has been called the art of the good and the equitable because, in the interpretation of the laws, the good and the equitable should always be regarded; even if it be needful at times to temper the rigour of the words, in order not to depart from what is naturally equitable and good. For a further discussion of this matter, see Covarruvias (on Sext, De Regulis Iuris, rule possessor Pt. II, § 6, no. 3).

11. Concerning the distinction between ius and fas. Another point should be made clear, namely, the question of what fas is and how it may be Edition: current; Page: [36] compared with ius and lex. For Isidore (Etymologies, Bk. V; chap. ii) says: ‘Fas is divine law; ius is human law.’ The same distinction is brought out in the Decretum (Pt. I, dist. i, can. i), where it is expounded with the aid of this example: ‘[The right] to pass through another’s field is fas; it is not ius.’ But it would seem that all this should be interpreted in accordance with the passage immediately following; for, in that passage, ius is understood strictly in the sense of ‘written law’ (lex), and fas, in the sense of ‘equity’ and as a just exception—so to speak—[from the letter of the law]. Thus, in the example above-mentioned, passing through another’s field is spoken of as not being ius, for the reason that it is in general prohibited rather [than permitted] by human law (lex); and nevertheless, if this act of transit is performed for reasonable cause and without consequent damage, it is fas, that is to say, it is permissible. Moreover, this is the explanation contained in the Gloss with respect to the passage in question; as it is also the explanation given by Henry of Ghent (Quodlibeta, IX, qu. 2 [qu. 26]).

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

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

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

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CHAPTER III: The Extent of the Necessity for Laws, and of Their Variety

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

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

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

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

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

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

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

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

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

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

5. The division of law into its various categories. In the first place, then, we may assume that law is divided into four different categories, a division which was laid down by Plato, in the Timaeus [24 et seq.] and in the Phaedrus, as follows: divine law; celestial law; natural law, and human law. The second of these terms is rejected by the theologians, because it is either superfluous or else involves erroneous doctrine. For by ‘celestial Edition: current; Page: [40] law’ Plato meant fate, and a certain necessity of action proceeding from the ordered movement and influence of the heavenly bodies; and therefore, if he understood that celestial law was of such a nature that it was not subject to divine providence, or that it imposed a necessity upon all things, even upon men, with respect to operations proper to the soul, [his interpretation] involves a false and heretical conception, opposed to the divine government and to the freedom of the will. If, on the other hand, he referred in the expression ‘celestial law’, merely to Aristotle’s statement that this lower world is so conjoined with the heavenly spheres that it is governed thence, that is to say, governed through natural influences and vicissitudes dependent always upon God, affecting bodies, not souls—if this was what Plato had in mind—it was not necessary to set up this separate category of law; because, to the extent that it may be called law, it is comprised under the head of the natural law, as we shall prove. This second term therefore being omitted, the other three are in use even among the theologians, though in a slightly different sense from that understood by Plato.

6. The conception ofdivine law’, in Plato; and the [two] ways in which the term is used. Thus divine law, according to Plato, is a rational principle existing in the mind of God, and governing the universe. This law is also recognized by the theologians, who, however, call it the eternal law. For the term ‘divine law’ may be used in two senses: in one sense, as dwelling within God Himself; in the other, as being decreed directly by God Himself, though existing outside of His Being. Plato gave to the term the first connotation, while the theologians, agreeing with Augustine, and for the purpose of distinguishing that form of law from the other, which God promulgates outside of His own Being, call the former ‘the eternal law’; and we, too, shall call it by this name. With respect to this thing which is called eternal law, it as certainly exists in God, as does His providence over the universe; for the term refers simply to the essential principle of this providence, a principle dwelling in God, or to some element of that providence.2 As to the question of whence it derives the name and nature Edition: current; Page: [41] of ‘eternal law’, however, that is a point which we shall explain in the first part of the next Book.

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

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

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

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

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

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

8.Law’, in its strict meaning, is not to be attributed to insensate things. However, as I stated in the First Chapter, ‘law’ is to be attributed to Edition: current; Page: [43] insensate things, not in its strict sense, but metaphorically. Accordingly, of natural law in that first and most general acceptation, we need say nothing more at present than what we have already remarked in Chapter One, and what we shall remark below,5 in connexion with the eternal law. Not even brute animals are capable of [participating in] law in a strict sense, since they have the use neither of reason nor of liberty; so that it is only by a like metaphor that natural law may be ascribed to them. For, even though they differ from insensate things in this respect, namely, that they are guided not merely by the force of nature, but also by knowledge and natural instinct, an instinct which is for them a form of law; and although the second interpretation of the jurisconsults can therefore be sustained, after a fashion; nevertheless, absolutely speaking, that interpretation is metaphorical and to a great extent dependent upon analogy. Accordingly, we shall pass over it also, for the present; for later (in Bk. II, chap. viii [chap. xvii]), in our exposition of ius gentium,6 we shall attempt to explore the true meaning of the [divisions of law] above mentioned.

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

Moreover, in another passage (on the Sentences, Bk. IV, dist. xxxiii, art. 1), St. Thomas says: ‘Because man [alone] among living beings is cognizant of the essential nature of his end and of the comparative relationship between the work and the end, the natural power of comprehension implanted in Edition: current; Page: [44] him, which is directed toward befitting action, is therefore spoken of as the lex naturalis, or ius naturale (natural law), while in the case of the other animals, it is called naturalis aestimatio (instinct). This is plainly Cicero’s opinion, also (On Laws, Bk. II [, chap. iv, no. 8]). For, after writing the words above quoted, on the eternal law, he adds: ‘Wherefore that law which the gods have given to the human race has been justly praised; since it is the reason and mind of a wise being, suited to commanding and to restraining.’

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

10. A certain subdivision of natural law remains for discussion. But first, we must say a word concerning Plato’s fourth division of law, called by him the human, and relating to the law designated by Aristotle [Nicomachean Edition: current; Page: [45] Ethics, Bk. V, chap. vii] as ‘conventional law’, which he describes thus: ‘It is that form of law which is a matter of indifference, originally, but of great moment, once it has been established [as a law].’9 This comment is to be understood as referring to the subject-matter of the said law, since the latter relates to actions which apart from that law would not be a matter of obligation, but which are rendered obligatory by it. Finally, to this same division belong those laws which Cicero (On Laws, Bk. II [, chap. v, no. 11]) distinguishes from eternal and natural law, calling them popular. We, however, divide created or temporal law into natural and positive, after the manner of the theologians; since the term ‘positive’ covers a wider field than does ‘human’. For it is to be noted that the philosophers have not recognized man’s supernatural end but have dealt only with a certain felicity in this life, or rather, with a certain state conducive to passing it in peace and in justice, and have considered the subject of laws, from the standpoint of this temporal end; so that they have merely distinguished natural law from human law, which we may call ‘civil’, and to which we shall presently devote some words.10 However, since it is a doctrine of the faith that men are ordained to the supernatural end of the future life by fitting means which are to be sought after in this life, sacred theology rightly infers that this natural law is necessary for a reason vastly different [from the reason recognized by the philosophers], and that men need more laws of a positive nature than were discerned by those same philosophers.

11. In what ways human nature may be considered, with respect to the laws which it needs. With respect to the natural law, then, it is the teaching of theology that man may be considered from the standpoints of a twofold nature and dual light of reason. The first standpoint deals with pure nature, or the substance of the rational soul, and consequently with the light of reason that is connatural to man. The second deals with the nature of grace infused into man from above, and with the divine and supernatural light of faith which rules and guides him in this life. Moreover, in accordance with these two principles, [theology] distinguishes two aspects of natural Edition: current; Page: [46] law. The one is absolutely natural, [even] with respect to man. The other, although it is supernatural in its relation to man (since the whole order of grace is supernatural in that respect), may nevertheless be called natural in relation to grace. For grace also has an essence and a nature of its own, to which the infused light is connatural, and to which it is connatural not only to direct men toward righteous, good, and fitting behaviour in supernatural matters, but also to dispel darkness and errors relating to the purely natural law itself and to enjoin on the basis of a higher reason the observance of that same natural law. Two aspects of natural law, then, may be distinguished: the one purely natural; the other, supernatural in an absolute sense, but natural in a relative sense, as compared with grace. Wherefore, since the natural law even in its purely natural form is divine, its source being God, far more truly is the natural law of the divine order, a divine law. For the former [phase of natural law] is from God through the medium of nature, whence it flows as a property of nature; whereas the latter phase is [directly] from God, Who by His own action infuses grace and actual supernatural enlightenment, and Himself guides men to fulfil the commands of that law through aid supplied by a stimulating and assisting grace.

12. Finally, both phases of this law may be termed connatural to humanity, in so far as that which is concreate with nature and has always persisted in nature may in a certain sense be called natural. For in this sense, the law of connatural grace, also, has always existed among men; since the light of faith has never been lacking in mankind as a whole, nor in the whole Church, nor have men ever been without a supernatural divine law, in the absence of which they could not have striven toward eternal beatitude. Wherefore, when the conditions of men are, as is customary, distinguished through laws—that is to say, distinguished as being [respectively] the conditions under natural law, under written law, and under grace—then, in the case of the first state, one should understand by natural law, both the law of nature alone, and that which is connatural to grace, or the law of faith. For the world could never have been entirely without this law, in accordance with the ordinary course of providence, since it has always been possible for the doers of the law to be justified by divine aid; as may be inferred from the Epistle of Paul to the Romans (Chaps. ii and iii). So, Edition: current; Page: [47] also, the necessity and the utility of natural law, as explained in this latter sense, become evident; that is to say, it is necessary and useful because grace and faith have always been necessary, and the law in question is con-natural to them. [Natural law served] this purpose, too, namely: that man might have a law through the observance of which he could, by divine aid, obtain remission of sins and eternal life.

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

14. A division of positive law into divine and human. Thus the theologians deduce a third division, that of positive law into divine and human. That positive law is called divine which has been established directly by God Himself, and added to the whole body of natural law. Of human positive law, we shall speak presently. Apart from these two phases, however, there can be no other positive law relating to mankind, since there are no other legislators. For the angels have not such power over men, since it is not a part of their nature, nor has it been granted by God to them, inasmuch as11 their possession of that power has not, to our knowledge, been revealed to anyone, so that, consequently, we cannot divine [its existence].12 Accordingly, the term ‘divine law’ is here used to refer, not to Edition: current; Page: [48] the law which exists within God, but to that which emanates in a special manner from Him; for it denotes, not law that has been conceived, but law that has been made known, and in this among other respects it differs from the divine law as the latter was described by Plato.

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

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

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

The first of the four reasons is this: that such divine law may direct man to a supernatural end. The second, that it may aid man in natural matters Edition: current; Page: [49] also, lest he err therein. The third, that it may furthermore be able to govern and order his interior acts. The fourth, that it may forbid all evil; for it is impossible that human law should do so. There is a passage in Psalms, xviii [, v. 8], too, which St. Thomas applies to these four properties: ‘The law of the Lord is unspotted, converting souls: the testimony of the Lord is faithful, giving wisdom to little ones.’ For this last phrase contains the first reason, since it is through wisdom that man is ordered to his supernatural end. The last reason, indeed, is comprehended in the third or penultimate property; for the law in question depends upon God’s truth; it cannot be subject to error; more than that, it is able to correct and repress the errors of nature. Again, the third reason enters into the second property; for the divine law is justly said to convert the soul, in that it directs interior acts.14 Lastly, this law is called unspotted, because it permits no evil.

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

16. The divine [positive] law is necessary not in an absolute sense but on the basis of a presupposition. From the foregoing, we conclude that the divine positive law was necessary, not in an absolute sense, relatively to Edition: current; Page: [50] [man’s] supernatural end but on the presupposition of the institution of the Synagogue or of the Church. Relatively to such institution, the said law may be considered as an absolute necessity; although, with respect to the end itself, it serves rather for the better state and the greater instruction of mankind, either that men may be restrained in their excessive blindness and depraved morals, or for the sake of [their] greater perfection and enlightenment, that perfect virtue and holiness may be attained [by them]. The rational basis of the foregoing statements is as follows: even though some supernatural law, as well as some supernatural knowledge, may have been necessary, that law which was connatural to grace itself would have been able to suffice; therefore, the need to add another and positive law sprang from the particular institution of the mystical spiritual body, so to speak. The existence of this institution being granted, the reasons adduced by St. Thomas may very well be applied, in due proportion, to this positive divine law.

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

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

For this law is called human, not because it was imposed by men, nor because it exists in them as in those persons who are to be governed by it; since these facts, although they do apply to the law in question, are not characteristics peculiar to it, but are shared in common with all [the divisions of] law of which we treat, whether divine or natural. Thus, according to such a derivation, human law would be distinguished rather from angelic law, that is, from the law imposed on the angels, with which we are not dealing. Again, the said law is not called human from its subject-matter; that is to say, it is not so called on the ground that it is established with regard to human, and not to divine affairs. For although this derivation may perhaps be suitable with reference to the law which the philosophers have called ‘human’, nevertheless, it does not actually Edition: current; Page: [51] represent their meaning nor is it adequate, since human law covers a wider field, as we shall see.

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

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

18. What is the necessity for human law? From the preceding statements, the necessity, or the utility, of this human law is also readily to be seen. For as St. Thomas ([I.–II,] qu. 91, art. 3) has noted, its necessity springs from the fact that the natural, or the divine law, is of a general nature, and includes only certain self-evident principles of conduct, extending, at most, to those points which follow necessarily and by a process of obvious inference from the said principles; whereas, in addition to such points, many others are necessarily involved in the case of a human commonwealth in Edition: current; Page: [52] order that it may be preserved and rightly governed, so that it was necessary for human reason to determine more particularly certain points relating to those matters which cannot be defined through the natural reason alone, a determination that is effected by means of human law; and therefore, such law was most necessary. Accordingly, Plato (Laws, Bk. IX, not far from the end [875]) says: ‘It is necessary for men to lay down laws in order that they may live accordingly; for if they lived without laws, they would in nowise differ from the most savage beasts.’ Similarly, Aristotle (Politics, Bk. I, chap. ii [chap. i, no. 12, 1253 a]) has declared: ‘Even as man, when perfected, is the best of all animals, so, when separated from law and justice, he is the worst of all.’19

19. Moreover, relying upon both authors, it is possible to explain more fully the necessity involved. For that necessity is founded on the fact that man is a social animal, requiring by his very nature a civil life and intercourse with other men; therefore, it is necessary that he should live rightly, not only as a private person, but also as a part of a community; and this is a matter which depends to a large extent upon the laws of the individual community. It is furthermore necessary that each person should take counsel not only for himself, but also for others, preserving peace and justice, a condition that could not be brought about in the absence of appropriate laws. Again, it is necessary that those points which relate to the common good of men, or of the state, should be accorded particular care and observance; yet, men as individuals have difficulty in ascertaining what is expedient for the common good, and moreover, rarely strive for that good as a primary object; so that, in consequence, there was a necessity for human laws that would have regard for the common good by pointing out what should be done for its sake and by compelling the performance of such acts. Accordingly, Aristotle ([Ethics,] Bk. X, chap. ix [, no. 14]) says: ‘Public regulations and provisions must clearly be established by law, and the good ones are established by laws zealous20 of good.’ Wherefore Cyril (Against Julian, Bk. III, not far from the beginning [Migne, Patrologia Graeca, loc. cit., no. 81]) remarks: ‘Nor is there Edition: current; Page: [53] any doubt but that laws direct one toward what is good and compel one to recede from baser things; and consequently, no person in his senses will contradict the laws or the lawmakers.’ Positive laws, then, were both useful and necessary. Accordingly, in former times, when inanimate laws had not been established, the princes were (so to speak) animate laws, by whose will the peoples were ruled; as St. Augustine records (On the City of God, Bk. IV, chap. vi), citing Justin Martyr.

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

Again, what are the ecclesiastical laws? In addition to such laws, however, the Christian religion recognizes certain ecclesiastical or canon laws which are contained in the sacred canons and in the pontifical decrees. Some persons call these not human but divine, for the reason that they are derived from a special power, especially conferred by God, and relate chiefly to a supernatural end, to divine worship and to the salvation of souls. Nevertheless, in point of fact, they are human laws; as has been well taught by Giovanni d’Andrea, whom Panormitanus (on Decretals, Bk. II, tit. vii, chap. i, no. 7) cites and follows, and as one may clearly infer from the Decretals (Bk. IV, tit. xiv, chap. viii). The reason for this is that the said laws are proximately established by the human will, although they differ from civil laws with regard to the power that is their immediate source, and with regard to their end and to their subject-matter, as we shall see below. However, the reason or necessity for such laws was, in due proportion, the same. For (so we assume) God founded a special congregation of the faithful, which should be one body, and which we now call the Church; and He did not make specific provision, through the law which He Himself had established, for everything that might be fitting in the spiritual direction of the Church, but simply laid down certain essential Edition: current; Page: [54] bases for this spiritual commonwealth. The other matters, however, He left to be provided for, through His ministers and ecclesiastical pastors, partly with the purpose that all points might be ordered agreeably and in a manner adapted to mankind, and partly because it was not possible to determine every point specifically in such a way that it would be immutable. Therefore, this process of determining took place through canonical laws, so that such laws were as necessary in the spiritual commonwealth of the Church as civil laws, in the temporal commonwealth.

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

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

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

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

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

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

2. Law pertains to the intellectual nature. Thus we assume, first, that law is a thing which pertains to the intellectual nature as such, and accordingly, to the mind thereof; both intellect and will being included under the term ‘mind’, for it is with that understanding that I am now speaking. The truth of this assumption is sufficiently evident in itself, since law implies a moral relation to the performance of a given action, and since no aspect of nature save the intellectual is capable of such a relation. Moreover, properly speaking, only those who have the use of intellect and reason are governed by law, or are capable of being so governed; and therefore, it is still far more necessary that there be a mind in one who is to govern by means of laws. Law, then, is a thing that pertains to the mind. Furthermore, if it is said, by an extension of terms, that God conceives a given law for natural or irrational things, that is the case only in so far as things lacking intellect are in need of a superior governing mind, in order that the work of nature may be a work of intelligence; and thus from every standpoint, law must be related to mind. Such has been the concept of law entertained by all Edition: current; Page: [56] the wise, even by the philosophers, as is evident from the passages cited in our preceding Chapters from the works of Plato, Aristotle, and Cicero.

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

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

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

As to law when considered with respect to the two latter states, no difficulty can arise. For law, taken in the third sense, consists formally in some external act, by means of which the lawgiver makes known his thought; Edition: current; Page: [57] such an act as speech is among men, or writing. Thus Aristotle (Ethics, Bk. X, chap. ix [, no. 12]) has said that, ‘law [ . . . ] is a rule, emanating from a certain wisdom and intelligence’. Gabriel, too (on the Sentences, Bk. III, dist. xxxvii), defines law as a sign making sufficiently manifest the will or the thought of the prince. I have said, indeed, that this sign is an activity or act, including the term of duration of the said act, when the latter is permanent and embodies perfectly the character of a sign. For written law is accordingly called law, not only when it is at the time put into writing, but in so far as the term of that writing is permanent and indicates always the thought of the prince. Similarly, if a law is handed down merely by [the spoken] word, and even though the audible word passes away, then, in so far as this word endures in human memory, the law is said to be sufficiently enduring. For it is thus that unwritten law is sometimes preserved through tradition. In like manner, custom, too, may at times attain the force of law, as we shall see below.3

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

5. Law in the subject resides solely in an act of the mind. Furthermore, with respect to law as it may exist in its human subject, such law unquestionably consists in an act of the mind, and of itself requires only a judgment by the intellect and not an act of the will, since an act of the will is necessary to the observance or execution of the law but not to its existence. For law precedes the will of the subject and is binding upon that will; whereas an act of the intellect is necessary in order that the law itself may thereby be brought before and into direct contact with the will; and consequently, a judgment by the reason is required. It is in this sense, indeed, that the natural law is commonly spoken of as the natural judgment of the human reason; in so far, that is, as the said law exists in man as in one who is subject to it. Joannes Damascenus, too, speaks in this same manner, saying (De Fide Orthodoxa, Bk. IV, chap. iii [chap. xxii]): ‘The law of God, as it Edition: current; Page: [58] draws near to us, enkindling our minds, attracts them to itself and arouses our consciences, which are themselves said to be the law of our minds.’ The same is true, in due proportion, with respect to positive laws. For after they have been enacted, they are applied to each individual through a judgment of the reason, to the extent that what was not necessary per se is judged necessary by virtue of the law, so that this act of judgment is now the law (so to speak) as it exists in the subject himself.

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

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

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

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

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

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

Some one, to be sure, may ask: ‘And what is this act of will?’ There is, indeed, cause for doubt since simple or inefficacious willing6 is insufficient. For God possesses such a will with regard even to those things which He counsels but does not prescribe; and among men, although a superior Edition: current; Page: [60] might in this sense desire that something should be done by a subject, and might inform the latter of this desire, that would not suffice to constitute a command. On the other hand, an efficacious will would not seem to be necessary; for God does not possess this sort of will with respect to all things prescribed by Him. If He did, all these precepts would be executed, since His efficacious will would infallibly be fulfilled.

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

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

9. The will in question may be described in yet another way, as being the will to bring about a given action because that action is necessary to Edition: current; Page: [61] the preservation of equity or the mean in a particular matter of virtue. For the will of a superior has this moral efficacy, namely, that it can lay a binding obligation upon his subjects, and make that a requisite matter for virtue, which was not in itself essential; as, for example, when it makes fasting on a certain day necessary for the mean of temperance. For though this fast is not always necessary to the observance of the law, nevertheless, when it shall be necessary, [the imposition of such a restriction] does not exceed the power of the lawmaker.

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

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

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

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

12. This doctrine having been laid down with respect to each person’s command over himself, it is still needful to state that, with respect to the command of one person over another, the only necessary requisite, following the act of will on the part of the lawmaker which I have explained above,12 is that the lawmaker should manifest, indicate or intimate this decree and judgment of his, to the subjects to whom the law itself relates. For this is essential, since if he did not do so, the will of the prince could not be binding upon his subject, inasmuch as it would not be made known to that subject, a point which we shall discuss more fully when we treat of promulgation.13 It is clear, moreover, that this [act on the part of the lawgiver] suffices, since the will of the prince is of itself efficacious. For that will is derived from a sufficient authority and is, so we assume, accompanied by an absolute and binding decree; consequently, if the said will is adequately revealed to the subject, it effects that which is willed; Edition: current; Page: [63] hence, it establishes an obligation; the law is accordingly consummated; and therefore, nothing further is necessary. This argument will stand out more clearly in the light of the statements to be made in the following Chapter.

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

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

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

14. In addition to the acts enumerated, an act of the intellect for communicating with the subject is required. Thus, from the foregoing, I conclude that, subsequently to the above-mentioned16 act of the will, there is required of the lawmaker only an act of the intellect which will be needed in order to communicate a given matter or decree to the subject. Edition: current; Page: [64] And, in consequence, there may be a necessity for a new act of the will to produce some sign which will make manifest the previous act of the will. Just as we are required to have an understanding of the words which we are about to utter, and a will to move our tongues, so also in due proportion it is required that the prince shall conceive, through his intellect, a way to effect an intimation of the law, and that he shall, through his will, choose to execute this intimation. The foregoing statement may in due proportion be applied with respect to God; for it is thus that He executes this intimation, even as He executes His other effects.

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

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

1. The first opinion: law is held to be an act of the intellect. In the light of the assumptions which I have made in the previous Chapter, the question will turn almost entirely upon a manner of speaking. Nevertheless, it Edition: current; Page: [65] should be briefly discussed, because of the variety of opinions on this subject.

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

2. Furthermore, Plato (Dialogue, Minos, or On Law, at the beginning [314 c d]) calls law, ‘the upright opinion of the state’, that is to say, the true opinion. And later, he asserts that law is ‘the operation of truth’. Aristotle (De Sophisticis Elenchis, Bk. I, chap. xii, at the end) has likewise said that law is ‘the opinion of the multitude’. Again, in the Letter to Alexander, preceding the Rhetoric to Alexander,2 he defines law as the ‘utterance of a command, with the common consent of the state, etc.’ And in a closely Edition: current; Page: [66] following passage (Rhetoric, Chap. i), he says: ‘Law is the common consent of the state, a consent which prescribes in writing the way in which each act is to be performed.’ In this passage, Aristotle also embodies law as bidding and precept; although frequently, in other passages, he nevertheless attributes the function of commanding to reason and to prudence (Ethics, Bk. VI, chaps. ix et seq.; Politics, Bk. I, chap. iii [Bk. III, chap. xi]).

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

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

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

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

Thirdly, law is a rule, as we said at the beginning, in accordance with a Edition: current; Page: [67] passage of Basil (on Isaias, Chap. i, in v. 9)3 where he calls it ‘a rule of the just and the unjust’. This view is also supported by the Digest (I. iii. 2). Thus it is that the laws of the Church are called canons—that is to say, rules—as Isidore (Etymologies, Bk. II [, chap. x]) remarks. But the will is not a rule; rather should it be regulated by the reason itself. Therefore, law dwells in the reason.

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

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

Secondly, [the act] might consist in the will to bind the subject; a will which is also insufficient, unless it is made known. Indeed, some persons add that a will of this sort in the prince is not necessary to his establishment of the law, for if the prince wills to command, by the very act of commanding, he makes law, even though he reflects not at all upon the binding obligation involved. Bartholomew Medina goes further and says (on I.–II, qu. 90, art. 1) that, even though [the prince] may be [definitely] unwilling to impose the obligation, nevertheless, if he wills to command, he does impose it, and makes law. Just as one who makes a vow without willing to bind himself, nevertheless vows truly (says Medina) and becomes bound; and just as he who makes a deceitful promise under oath, without intent to lay himself under a binding obligation, is bound by the sanctity of the oath, to fulfil the promise; even so, he who wills to Edition: current; Page: [68] command, imposes a binding obligation, by the efficacy of the command, even though he be unwilling to do so.

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

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

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

6. Some say that law is the act of the intellect which is calledcommand’ (imperium).4 Other authors therefore, assert that law resides in the act of the intellect subsequent to willing, an act to which they give the name Edition: current; Page: [69] of ‘command’ (imperium). However, this act, if it is not in the form of a locution, is certainly a fiction, as we have remarked above.5 And if it is in that form, then it will have the nature of a sign, so that it will be not so much law, as the sign of law; or, at the most, it will be called law, even as written law or that promulgated orally is so called. But this external or written law has the force of law only in that it stands for something else, something in which there dwells the virtue of law; therefore, it necessarily presupposes the existence of another thing which is law in its essence;6 and this is the very object of our inquiries. Nor may it even be said that the internal locution, as we conceive it in the mind of the prince, constitutes law; for this locution, too, has force and efficacy only in that it is a sign, so that it necessarily presupposes the existence of that which is law in its essence.7

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

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

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

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

8. The second opinion: law is held to be an act of the will. There is, then, a second general opinion, according to which law is an act of the lawmaker’s will. In support of this opinion, one may cite all those who assign command to the will, as do Henry of Ghent (Quodlibeta, IX, qu. 6), Gabriel (on the Sentences, Edition: current; Page: [71] Bk. II, dist. xxxvii, qu. 1, art. 1, not. 3), Major (on the Sentences, Bk. III, dist. xxxiii, qu. 7), Occam (on the Sentences, Bk. III, qu. xxii [qu. xii], art. 4), Almain (Moralia, Tract. III, chap. ii), and Angest (on the Moralia, Tract. I, pt. iii, corol. iii).9 Bonaventure also supports this view, when he says (on the Sentences, Bk. III, dist. xvii, art. 1, qu. 1, ad penult.): ‘The will is that within which resides the rule and command of what is in the person who wills.’10 Joannes Medina (Codex de Oratione, Qu. 2) expresses himself in like manner. The opinion in question is furthermore attributed to Durandus and to Gregory of Rimini (on the Sentences, Bk. I, dist. xlvii) in so far as they assert that the divine will is a rule to which we are all bound to conform. Scotus,11 too, is cited in behalf of this opinion, in that he says, in certain passages (on the Sentences, Bk. II, dist. vi, qu. 1 and dist. xxxviii, qu. 1, ad ult. and quodlib. 17), that the ordering of another to the performance of any action is a function that pertains to the will. And in yet another passage (ibid., Bk. III, dist. xxxvi, qu. 1, art. 2), he assigns the function of command to the will. This same view is defended at length by Castro (De Potestate Legis Poenalis, Bk. II, chap. i).

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

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

10. However, even though the will when expressed by a sign may be so called [only] in a metaphorical sense, it must be indicative of some true will. For, why should it be called will metaphorically, unless because it has a relation to true will? And it has no such relation save as a sign, wherefore it is called ‘the will, as expressed in a sign’. Hence, the will which it has indicated is that which is fulfilled in the strict sense, and which has been designated in the passages above-cited by the term ‘law’. Accordingly, in Edition: current; Page: [72] the civil law (ius) also (Digest, I. iii. 19), law (lex) is said to have its own will; for written or external law undoubtedly indicates the will of the prince, and this is declared to be the will of the law itself; therefore, will of that sort is law existing in the prince himself.

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

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

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

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

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

12. Another characteristic property of law is that it enlightens and directs the subject. In connexion with this property, indeed, we should note that it may be attributed to law, in so far as the latter dwells within Edition: current; Page: [73] the subject himself; in which sense there is no doubt but that law is an act of the reason and, formally speaking, enlightening reason, as we have remarked in the preceding Chapter. Consequently, in reading the various authorities, one should take care lest he be led astray through ambiguity. For these authorities, inasmuch as they define law in terms of reason, are often speaking of it as it exists in the subject himself, in which sense the natural law is said to be right reason, imparted by nature; and thus it is that law enlightens, since it reveals the will of the lawmaker. Therefore, it would seem that there dwells within the lawmaker himself that will which objectively (so to speak), or even effectively, enlightens the subject; in accordance with the words of Anselm (De Voluntate Dei [Chap. iv]): ‘The will of God is the master of the human will.’

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

14. Hence, there is yet another way in which to meet the customary objection that a superior issues no command if he does not make his will Edition: current; Page: [74] known, even though he may wish that a given act be performed by the subject. For it is replied that this intimation may be external and that such an intimation is not pertinent to the discussion, since it does not reside within the lawmaker but is simply a transient act, affecting either the subject or some other external matter, in accordance with the statements made in the preceding Chapter;14 whereas intimation as it exists in the lawmaker would seem to consist pre-eminently in a will to intimate externally, which in its turn is an intimate part or else a consequence of the will to bind, so that, for this reason also, law pertains principally to the will.

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

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

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

The third. The third condition consists in the fact that lawmaking is an act of jurisdiction and of superior power, a matter upon which I shall Edition: current; Page: [75] comment below.15 Consequently, it is (so to speak) the use of a form of dominion; and use is an act of the will, particularly the use of dominion, which is a free act.

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

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

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

17. The doctrine of B. Medina concerning the will to bind, is assailed. This answer, however, is apparently a denial of what the other authors of the two opinions consider as a certainty; unless perhaps, there is some ambiguity in the wording. For it is a certainty that, in the case of these moral Edition: current; Page: [76] effects which depend upon the will, the agents do not act without intention or in excess thereof; but binding by means of law is a moral effect and one which depends upon the free will of the lawmaker; therefore, in order that this binding effect may be accomplished, intention and will on the part of the legislator are necessary, for otherwise, the said effect would take place without intention, an inacceptable conclusion.

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

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

18. To will to command, and to will not to bind, are incompatible intentions, repugnant [to reason], unless ignorance is involved. Similarly, in the case of vows, the intent to vow, and the intent not to bind [oneself], are incompatible. Wherefore, with respect to the example of the vow, it is in my opinion certain that the said vow is not binding if it was made without intent to bind; a point which I have brought out elsewhere (De Religione, Tr. VI, chap. iii).16 However, just as in the case of vows, a situation is frequently conceived of, in which some one vows with the intention of vowing and has at the same time the intention not to bind himself, even so B. Medina conceives of a similar situation in the case of a legislator who has the will to command and not to bind. Under Edition: current; Page: [77] those circumstances, says Medina, the legislator nevertheless does bind. However, unless ignorance is involved, such intentions are incompatible and involve a [mutual] contradiction, when the first intention is to vow, or to command, in very truth and not fictitiously. For willing to command is nothing more nor less than willing to bind, or at least, willing to indicate a will to bind; and the same is true in due proportion with respect to vows. If, on the other hand, the intention is not of the sort described, but is simply an intention to command or to vow outwardly, then doubtless the result is nil, and no true law is decreed, nor is any true vow made. For it is certain that a fictitious promise that does not bind can be made; but this sort of promise can occur in no other [than a fictitious] way. In due proportion, the same holds true of precepts; and therefore, if it were known to a subject that his superior had not the intention of binding, although he might give utterance to words of command, that subject would certainly not be bound; a point on which [the authorities] agree, with respect to the case of excommunication above mentioned. Again, and conversely, we have the words of St. Thomas, who says (II.–II, qu. 104, art. 2) that the will of a superior, in whatsoever fashion it may become known to his subject, is a kind of precept; a statement which cannot be understood save with reference to this will to bind.

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

On the other hand, the obligation imposed by the law cannot arise save from the will of the lawmaker; and therefore, an act of that will is necessary. Thus Gabriel has rightly said (on the Sentences, Bk. III, dist. xxxvii) Edition: current; Page: [78] that, howsoever well the will of a superior may be made known, no obligation results unless he wills that his inferior shall be bound by that will. But my assertion18 contained this reservation: ‘unless . . . there is some ambiguity in the wording.’ For it may not be necessary that the lawmaker should conceive directly and expressly of the obligation of the subject and should be directed toward it by his will, since it may suffice if he intends, for example, to command that a given thing shall be of a given degree of importance, or that a particular act shall be part of the necessary subject-matter of temperance, or if he vaguely intends to command in so far as he is able. But these [modes of willing] involve only slight differences; since every one of them includes the intention to impose a binding obligation, and since [actually] intending not to bind is wholly repugnant to them all, unless the agent is absolutely ignorant of what he wills. And in that case, this ignorance itself would prevent the existence of an entirely true will to bind, or—consequently—of a true law; a point which I made in connexion with the similar matter of vows. In so far as concerns the necessity for such willing, then, this second opinion is undoubtedly the true one.

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

This opinion, indeed, is usually attributed to Gregory of Rimini (on the Sentences, Bk. I, dist. xlviii [Bk. II, dist. xxxv,] only qu.). Nevertheless, he does not there discuss this matter, nor does he make any other statement Edition: current; Page: [79] than that he who acts out of harmony with God’s will and good pleasure, acts in opposition to the eternal law. In this connexion, Gregory cites Augustine’s assertion (Against Faustus, Bk. XXII, chap. xxvii) that the eternal law is the reason or the will of God, an assertion in which Augustine lays down no definite decision [regarding the two faculties]. Gabriel (ibid., Bk. III, dist. xxxvii, only qu., at beginning), more definitely upholds the opinion in question, when, after saying with regard to the external law (that is, with regard to law as it exists in the subject) that it is ‘a true sign making known to the rational creature that right reason which dictates that he is bound, etc.’, he declares that [the said law] ‘is the dictum of him who dictates or binds, etc., for the purpose of indicating that the right reason of the one who commands, together with his will, is the basis of the binding obligation incumbent upon the inferior; that is to say, the force by which the inferior is bound’.19 But the law is the true basis of the obligation; and therefore, Gabriel holds that in the prince himself the law is the reason of the prince combined with his will, and furthermore declares that this will is a will to bind the subject, as he has stated above.

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

21. It may also be added that, although the term law (lex) in its complete and adequate sense embraces both acts, nevertheless, from another standpoint, the act of the will and that of the intellect may each be spoken of as law, under diverse aspects. The words of Augustine in the passage above-cited (Against Faustus) are not out of harmony with this manner of speaking, and the passage is interpreted accordingly. For if one has in mind the moving force in law, so that law is said to be the power in the prince which moves and makes action obligatory, then, in that sense, it is an act of the will. If, on the other hand, we are referring to and considering that force in law which directs us toward what is good and necessary, then law pertains to the intellect. Moreover, it appears to consist in an Edition: current; Page: [80] active judgment and—in so far as it exists within the prince—to follow upon, not to precede the will. To be sure, it appears to do so, not after the fashion of an impelling act that is not a judgment (a view which has been sufficiently disproved), but after the fashion of an active judgment in which the prince, having issued his decree, decides that a given act absolutely must be performed by the subjects, to whom the said decree should therefore be made known. For I have in the preceding Chapter expounded the fact that, in the mind of the prince, this judgment follows upon the willing; so that, in this sense, it may be said that the law is written in his mind, which is the source of every external law. The similar judgment which takes place within the subject will be (so to speak) a law derived from that law which exists within the prince.

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

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

23. From this, indeed, we draw a second inference, namely, that it is not possible to give efficacious proof with regard to the manner of speaking adopted for either of those opinions. For the evidence adduced in support of the first opinion proves merely that law is not made without the guidance of prudence. Therefore, when the philosophers cited in that connexion attribute law to the reason, they refer, not to an act of the intellect resulting in the prince from the will whereby he chooses to bind his subjects, but to a judgment which precedes, directs, and (as it were) regulates that will. For Edition: current; Page: [81] the assertion made by them is simply that the will of the prince does not suffice to make law, unless it be a just and upright will; so that it must have its source in an upright and prudent judgment. As to this judgment, it is clearly not law, if it is considered in itself and as prior to the [act of] will. Accordingly, these philosophers call law right reason, having regard to its root; just as Cicero, On Laws (Bk. II, chap. iv), has said that virtue is the right reason of life.20 However, the arguments advanced in defence of this opinion, have been answered in the process of confirming the second opinion. But the evidence adduced in support of the latter merely proves, strictly speaking, that the binding obligation imposed by law is derived from the will of the legislator. For this suffices in order that it may be said that he who observes God’s law is doing God’s will, or acting in accordance with that will; and it suffices also to allow of the converse assertions. However, the arguments set forth in behalf of this opinion are, to my mind, more convincing if we assume that law is that act of the prince which of itself and by its own force creates an obligation and binds the subject. It may, indeed, be objected that the term ‘law’ (lex) refers, not to a binding act, but to the sign of such an act, or to the act of the intellect from which the said sign is proximately derived.

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

25. With respect to the application of the term,law’ (lex) signifies primarily the external rule, and the sign [thereof], of the person commanding. Lastly, Edition: current; Page: [82] however, I assert, with respect to the application of the term ‘law’ (lex), that it seems to have been used primarily to denote the external rule of the person commanding, and the sign making manifest his will. For it was in this sense that Aristotle (Ethics, Bk. X [, chap. ix, § 12]) declared law to be a rule emanating from a certain wisdom [etc.]; and that he elsewhere (Rhetoric to Alexander) speaks of it as the common wish of the people, set down in writing. Isidore, too, assumes this to be the case, when he says that lex is derived from legendum (that which is to be read, &c.), and should be in written form.

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

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

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

1. Having discussed the question of the general class in which law is to be placed, we should inquire into the distinguishing marks by virtue of which it acquires the [particular] nature of law. What these distinguishing marks are, we shall ascertain while explaining certain characteristic conditions Edition: current; Page: [83] which are necessary to the true nature of law. And at the same time, we shall explain the causes of law, since the true and intrinsic conditions characterizing law can have no better source than those causes; neither can the said distinguishing marks be understood or explained, without reference to the subject-matter, object and end of law.

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

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

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

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

For we presume it to be a manifest fact that a human community is capable of [subjection to] laws and even stands in special need of them, Edition: current; Page: [84] since the arguments advanced in the preceding Chapter offer convincing proof of this assertion. Accordingly, it is also clear that, as a matter of regular and ordinary procedure, law is indeed instituted for some community, or multitude of men; a fact which is sufficiently evident through usage itself, and which will become still more manifest from what we have yet to say. The difficulty, then, consists in the question of whether or not the said fact is inherent in the nature of law.

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

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

But that objection is not valid; first of all, because many of the conditions that Isidore lays down in this Chapter are so related that one is included within another or inferred therefrom, and nevertheless all are added to the list for the sake of a more complete explanation. Thus, in the mere condition that law should be just, there are included the conditions that law should be [such that obedience] is possible and that it should be Edition: current; Page: [85] useful. For how will law be just, if [obedience thereto] is impossible, or useless? And nevertheless, these three conditions are separately enumerated.

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

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

It is in this sense, too, that St. Thomas (I.–II, qu. 90, art. 2) has interpreted the statement of Isidore. For, in the body of the article cited the whole argument of St. Thomas tends towards a declaration that the intention of a lawgiver in making a law ought to be directed towards the common good, since the common happiness should be a measure, and as it were, a first principle, by means of which the justice, utility and fitness of a law are measured. Wherefore, he concludes: ‘any other precept in regard to some individual work, must needs be devoid of the nature of a law, save in so far as it regards the common good. Therefore, every law is ordained to the common good.’ In these words St. Thomas would seem to indicate that law may contain precepts of an individual nature, provided that these precepts be related to the final end of law. Moreover, this passage in the Edition: current; Page: [86] text under discussion [Decretum, Pt. I, dist. iv, can. ii] was similarly understood by Archidiaconus, Dominicus de Sancto Geminiano, Torquemada and many persons to whom I shall refer in the next Chapter.

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

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

6. The second opinion, which denies that it is inherent in the nature of law that it should be instituted for some community. Therefore, there may be a second opinion according to which, it is not inherent in the nature of law that it be imposed upon a community or multitude of men, although it Edition: current; Page: [87] may for the most part happen that law is thus instituted, since rules of conduct are ordinarily applicable to many persons in common. However, they may at times be constituted for this or that individual.

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

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

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

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

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

Fourthly, when a law is established for a community, either it binds only the community, as such, or else it binds also the individual members of that community. The first alternative is not necessarily the true one; nor is such ordinarily the situation, as is self-evident. Furthermore, even if it were, then the community would be as an individual person, whence one Edition: current; Page: [89] would again conclude that a law may be made with respect to one person only. If, on the other hand, the second alternative is held to be true, from this fact, also, one would infer that it is possible for a law to be made for a single individual, if it is appropriate in regard to him and necessary only for him.

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

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

9. This contention may be proved, first, by a certain process of induction. For the eternal and natural law are sufficiently common in character, as is clearly evident; the divine law, also (both Old and New) was laid down for communities: the Old Law for the Jewish people; the New for the Catholic Church and the entire world. And not only the law as a whole, but also its individual precepts, have been laid down generally. This is not to say that such individual precepts are laid down for each and every member of the community, since that is not necessary, nor is it Edition: current; Page: [90] pertinent to the nature of law; rather, it is to say that, even though there have been imposed, among the common precepts, laws which are binding upon such and such particular members, according to their [respective] functions and capacity, these laws are nevertheless always laid down in a general and common form. Furthermore, even the divine precept imposed upon Adam in the state of innocence was imposed not upon him solely and personally, but upon him as the head of all nature; and it would have endured always in that state, binding all persons, so that, to this extent, it had the true nature of law. A proof of this contention is the fact that, although God imposed the precept upon Adam alone, before He formed Eve (as related in Genesis, Chap. ii), nevertheless, Eve also was bound thereby (as is evident from Chapter iii of that same Book).

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

10. With regard to the civil law, indeed, this point would seem to be made sufficiently manifest in a passage of the Digest (I. iii. 8). For there we find the statement: ‘Laws are made, not for individual persons, but in general terms.’ Proof of the same view, in connexion with canon law also, may be derived from a chapter of the Decretum already cited (Pt. II, causa xix, qu. ii, can. ii), in that this chapter contains the assertion that the canons and decrees laid down by the Fathers are public laws. Moreover, the private law which is also mentioned in that passage is not canonical law, but one of a very different nature, as we shall observe. So it is, too, that Gregory IX, in the Preface to his Decretals, makes the following statement: ‘[ . . . ] law (lex) is promulgated for this reason, that the evil appetite may be restrained under the rule of ius, through which rule, humankind is instructed that it may live [ . . . ] righteously.’ Aristotle, also, has said, in the Ethics (Bk. VI [, chap. viii]), that the faculty or prudence required for lawmaking is architectonic, or regal, since the principal act of this prudence is the making of laws, as St. Thomas (II.–II, qu. 50, art. 1, ad 3) has declared. Moreover, the said prudence looks to the community and is concerned therewith, so that law (according to the opinion of Aristotle) also looks to the community. Thus Aristotle has asserted (Art of Edition: current; Page: [91] Rhetoric, Bk. I, chap. iv [, § 12]) that, ‘it is on the laws that the safety of the State is based’. Again (Rhetoric to Alexander, Preface), he has said that law is, ‘reason as defined by the common consent of the State’, &c., assuming that it is established for the direction of that same community. Plato (Laws) often repeats this assertion; and all the philosophers express themselves similarly. Accordingly, Biesius (De Republica, Bk. IV [, section Leges]) says that, ‘Laws are public precepts of life which it behoves all persons to obey at all times’, &c. Therefore, according to the common usage of the laws (iura), the jurists and the sages, there is no doubt that the word ‘law’ (lex) refers to a public precept, imposed upon some community and not simply upon one or another single individual.

11. The same opinion is more fully confirmed in the light of the [other] properties of law. The foregoing may be further demonstrated in the light of the other properties of law. One of these is that law should be perpetual, as we shall show below;5 yet a precept for one person only cannot possess this attribute, since such a person is not perpetual; whereas the community is perpetual, at least through a process of succession so that, in relation to the community, law in the true sense is possible. Neither is it of any consequence that even a precept imposed upon the community may be temporary. For this fact gives rise, at most, to the conclusion that not every precept imposed upon a community is law; a point which we shall consider later, but which does not interfere with the necessity that every law should be imposed upon the community, if it is to be perpetual. The same truth may be established by assuming that this perpetuity exists with respect [also] to the lawmaker. For it is inherent in the nature of law that it shall not depend upon the life of the lawmaker, as we shall demonstrate below;6 and this condition can exist only in the case of laws that are common, since an individual precept, imposed solely upon a single individual, lapses with the death of the person who lays down the precept, or it lapses when that person has been removed from his office, as common opinion and custom testify. The reason for this is a matter of which we shall treat Edition: current; Page: [92] below.7 Neither has it any bearing upon the point under discussion, if a precept decreed for the community is annulled by the death of him who lays down the precept, provided (as I shall point out, later8) that this precept is not laid down in the form of a law. For from this annulment, it would follow merely that not every precept imposed upon a community is law; and this is in agreement with the assumption that a law ought to have that perpetuity and that independence of the person imposing it, which it does not have unless it is a precept imposed upon a community.

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

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

12. Finally, proof of the opinion in question may be drawn from another attribute of law, namely, the fact that law is the rule and measure of an action from the standpoint (so to speak) of its subject-matter and of the mean of virtue. For in this sense, law is said to be the rule of the just and of the unjust, as I have noted above,10 referring to Basil and to other authorities. And in like manner, that which is laid down by means of law Edition: current; Page: [93] is called by Aristotle (Ethics, Bk. V, chap. i), legitimate or legal justice, as St. Thomas has observed (I.–II, qu. 90, art. 2). Law, then, is a kind of rule establishing or pointing out, in regard to its own subject-matter or the operation with which it is concerned, that mean which is to be preserved for the sake of right and fitting action; and this rule is in itself universal, having relation to all persons, in due proportion; therefore, law is in itself general, and consequently, in order that any law may be law in a true and perfect sense, it must possess this characteristic.

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

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

Of these, the arguments first set forth are easily disposed of. For we admit, with respect to the first, that Isidore and St. Thomas, in the passages cited, did not seek to treat directly of the condition in question; rather, they assumed its existence. Accordingly, the same St. Thomas, when expounding a passage in Aristotle (Commentary on Ethics, Bk. V, chap. i, lect. 2) which he also cites in the article above mentioned [I.–II, qu. 90, art. 2] says, more clearly, that those things are called legally just, which are productive of happiness in relation to the political community for which the law was established. In this passage, he is speaking of human law, but the same reasoning applies, in due proportion, to the remaining forms of law. With respect to the other laws, and the objections brought Edition: current; Page: [94] against them, our reply is that, though the words are not in themselves so convincing but that they may be weakened through some interpretation or evasion, nevertheless, when taken in conjunction with different laws and with the interpretations of wise authorities, they possess considerable force for the confirmation of the truth above set forth.

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

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

With respect to the Gloss, however, and the remarks of other Doctors therein cited, our reply is that these should be interpreted or admitted in accordance with the laws to which those Doctors allude, and that if they intended to convey some other meaning, their opinion is not to be approved. Thus, in regard to the two laws of the Code (X. xxxii. 61 and 63), it is true that in a certain sense they deal with the welfare of private individuals named in them; but nevertheless, in so far as they involve any command, they are instituted not for those individual persons but for the community and for all persons who are subject to the lawmaker, persons whom they bind to the observance of a particular immunity enjoyed by the aforesaid individuals. And in like manner, we shall explain in Book VIII12 that a privilege, although it may seem to be of an individual nature, can have the character of law. I add, furthermore, that in the case of the laws under discussion a favour is granted not only to the individual persons therein named but also to their successors in perpetuity, so that these laws partake of a perpetual and common quality; for the families involved might have constituted a large portion of the community and possibly a portion of the most important group. Accordingly, the laws in question, in spite of the fact that they may appear to be special when viewed in one Edition: current; Page: [95] aspect, are in their own way general, even though they are never established save by way of constituting a privilege, as is evident from usage.

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

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

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

Law and precept are not interchangeable. What is in law that is not in precept; and how the two differ. For, with respect to the first reason adduced, it is evident from those remarks, that precept and law are not interchangeable; since, though every law is a precept, not every precept is a law. On the contrary, a law must satisfy certain special conditions, among which is the requirement that it shall be a common precept, in the sense expounded above.17 Furthermore, in so far as the moral aspect is concerned, it is not necessary to inquire minutely as to whether precept and law are essentially Edition: current; Page: [96] distinct; since, [from the moral standpoint,] granting that they may not be physically distinct with respect to the natural species of acts involved, it is sufficient that they should be distinct morally, or (as it were) in their artificial being. For law is (so to speak) a certain artificial product resulting from a given act with the accompaniment of given circumstances, conditions or habitual relations, without which it is not true law, even though it may be of the same nature with respect to the act of commanding. It may also be added that legislation, with reference to the act of prudence from which it proceeds and the righteousness which characterizes it as it issues from the legislator, possesses a special kind of virtue distinct from that of an individual and private precept, so that, in this sense, it may be called law, being thus rendered essentially distinct from a private mandate.

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

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

However, a law may sometimes be established for the community itself, viewed as such; that is to say, it may be established by forbidding or prescribing an act which can be performed only by the community acting as a community; a fact which is made evident by the statutes of various societies, universities, [cathedral] chapters, colleges, &c., providing for certain points in connexion with the public and common acts of that mystical body. For such laws are true laws, provided that they satisfy the other requisite conditions, even though their commands be laid upon one Edition: current; Page: [97] individual community only, if that community is a perfect one; as I shall presently explain.18 This is true because, in the first place, although it may be called a fictitious person, it is a community in an absolute sense, has the perpetuity required of law, and relates directly to the common good. Secondly, moreover, the individual members of that community are always bound through such a law to refrain from operating or co-operating in opposition to it.

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

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

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

The latter form of community may be subdivided.

For certain [examples of it] may be thought of as additions to nature, yet brought about not by human but by divine law, in that they have been established by God Himself, under some head designated by Him, and with a unity directed toward some supernatural end. In former times, the Jewish synagogue was a community of this kind; and now, a much more perfect example is the Catholic Church, which was founded not for Edition: current; Page: [98] one or another people but for the whole world, by Christ Himself, under one and the same faith, which was to be professed through certain signs established by Christ and under obligation of obedience to one [visible] head to whom He Himself entrusted His representation upon earth. For this sort of community, then, positive divine laws are by their very nature primarily made. For example, the Old Law was given to the Jewish people, and the law of grace, for the Universal Church. Canon laws, too, are made for this same body, though not all of them are established for the Universal Church at large; rather, they are established in accordance with the intent or the power of the person who decrees them, as we shall see later.19

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

So, also, Aristotle has said (Politics, Bk. III, chap. x [chap. ix]) that a state is a multitude of citizens who have, indeed, a mutual bond of a moral nature. This kind of community, moreover, is wont to be divided by the moral philosophers and the jurists into perfect and imperfect. A perfect community is in general defined as one which is capable of possessing a political government; and this [type of community], in so far as it is such, is said to be self-sufficient within that [political] order. Thus Aristotle (ibid., Bk. I, chap. i) and St. Thomas (I.–II, qu. 90, art. 2) have asserted that the city state is a perfect community, and that, a fortiori, a kingdom or any other higher body or community of which the city state is a part will be a perfect community. For there may be a certain latitude in [the definition of] these communities, and even though individual ones, viewed in themselves, may be perfect, nevertheless that community which is part of another is in this respect imperfect; not in an absolute sense, but comparatively or relatively speaking. Again, among the communities in question, Edition: current; Page: [99] some are called real or local, because they are enclosed within certain real or local boundaries, as in the case of a city state or of a kingdom; while others are called personal, because they are considered in connexion with persons rather than with localities; as in the case of any religious community, for example, or confraternity, or similar group, which may also be perfect communities if they have perfect government and a moral unity. On this [personal kind of community], one may consult the jurists (Digest, III. iv. 1 et seq.20 and XLVII. xxii).

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

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

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

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

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

23. Objection. An objection to the foregoing remarks will, however, be raised. For it follows from what has been said that law in the true sense of the term cannot be established [even] in a perfect community, Edition: current; Page: [101] if it is established solely for a particular part of that community; but this would seem to be a false deduction; therefore, . . . The inference is clearly true, because a decree relating to a single household or an imperfect community is not law, since that imperfect community forms part of one that is perfect; and therefore, the same will be true of any part of a city state, for it, too, is an imperfect community and part of a perfect community. The minor premiss, indeed, is proved by the fact that it is not proper to the nature of law to be binding upon all the members of a state; therefore, it may be binding [only] upon a part of them, and nevertheless be true law.

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

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

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

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

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

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

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

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

It is inherent in the nature of law that it be enacted for the common good. With respect, then, to the question above set forth, there is no dispute among the various authorities; on the contrary, this axiom is common to them all: it is inherent in the nature and essence of law, that it shall Edition: current; Page: [103] be enacted for the sake of the common good; that is to say, that it shall be formulated particularly with reference to that good. So St. Thomas maintains, in a passage (I.–II, qu. 90 [, art. 2]) commented upon by Cajetan, Conrad Koellin, and other modern authorities; and also, by Soto (De Iustitia, Bk. I, qu. i, art. 2), Castro (De Potestate Legis Poenalis, Bk. I, chap. i), Antoninus (Summa Theologica, Pt. I, tit. xi, chap. ii, § 1 and tit. xvii, § 3), as well as all the Summists on the word lex. Navarrus, too (in his commentary On Ends, No. 28), brings out this point well; as does Gregory López (on Las Siete Partidas, Pt. I, tit. i, law 9), in which latter passage Alfonso, King of Spain, requires that his own laws shall fulfil this very condition. The same view is held, moreover, by all the commentators on civil law (Digest, I. iii. 1), who assert that law should be ‘a common precept’, that is to say, one ‘established for the common advantage’, as the Gloss on the above-cited law of the Digest explains. Bartolus, Jason, and others follow the Gloss on this point. Isidore (as cited in Decretum, Pt. I, dist. iv, can. ii) has set forth the doctrine more clearly, as I have explained in the preceding Chapter; and he is followed by the other canonists thereon.

2. Furthermore, the same truth may be inferred from the words of Aristotle, who says (Ethics, Bk. III, chap. vi [Politics, Bk. III, chap. ix, 1280 a]) that the end of the state is to live well and happily. Accordingly, he adds [ibid., 1280 b]: ‘Those who have a care for the good government of the state, engage in public deliberation on virtue and vice’;2 of course, by means of laws. Thus Aristotle subsequently (ibid., Bk. IV, chap. i, 1289 a) declares that, ‘The laws should be adapted to the commonwealth, and not the commonwealth to the laws’. Similarly, Marsilio Ficino, in connexion with the argument of Plato’s dialogue, Minos, draws from the latter’s opinion (as it is expressed both there, and in the works on Laws and on the Republic) the following description of law: ‘It is the true essence of government, and guides that which is governed to the best end, through fitting means.’ Furthermore, Plato, in this same dialogue [Minos, 314 d], calls that law noble, which establishes that which is right, in matters (ordine) of state and Edition: current; Page: [104] in the plan of government.3 Again in the dialogue, Hippias, or The Beautiful (shortly after the beginning [284 d]), he says: ‘In my opinion, indeed, law is established for the sake of its utility, and legislators give law as the greatest good to the state; for, if law is removed, we are unable to live legitimately in a state.’ In the work Laws, too (Bk. I [631]), Plato demonstrates at length that, ‘laws are established for the sake of virtue’ and in order to promote the common peace and happiness. Cicero (Laws, Bk. III) makes the same point in a very full discussion. And Plutarch (Problemata in 40) declares that, of all the things within a state, goodness of laws is to be deemed the most excellent for this reason, namely, that such laws work most to the common good.

3. This truth is indeed self-evident in the case of divine laws; so that it does not call for demonstration. For though the said laws are necessarily directed to the honouring of God (since He cannot will anything apart from Himself, or act save for His own sake), nevertheless in those laws He seeks not His own profit, but the good and happiness of humanity. Wherefore, since the divine works are superlatively perfect, and of a finely proportioned suitability, divine laws, in so far as they are given to a particular community, are accordingly given with a view to the common good and felicity of that community; a fact which becomes easily evident through a process of induction, with respect both to natural law and to the positive divine laws. Neither is there any force in the objection that through these laws God frequently provides for the private welfare of this or that individual; as when through the law of penance He provides for the salvation of the sinner himself, and as in other cases. This objection, I repeat, has no force. For, in the first place, the good of private individuals (as I shall shortly point out in greater detail) forms a part of the common good, when the former is not of a nature to exclude the latter good; being rather such that it is a necessary requisite in individuals—by virtue of the law in question as it is applied to individuals—in order that the common good may result from this good enjoyed by private persons. Moreover, and in the second place, the divine laws relate principally to eternal bliss, which is in itself a common good, and which is striven after, essentially Edition: current; Page: [105] and for its own sake, by every individual without regard to any community other [than the eternal]. Wherefore, St. Thomas has said (Summa, Pt. I, qu. 23, art. 7 and qu. 98, art. 1) that the multiplication of human souls, even though it results only in a difference in their number, is not simply an incidental effect, but one that is sought for its own sake in view of the immortality of those souls and their capacity for happiness.

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

Again, an excellent argument may be deduced in connexion with the ends [of law]. For ends should be in due proportion to acts, and to the original principles of and faculties pertaining to those acts; but law is the common rule of moral operations; consequently, the first principle of moral operations should also be the first principle of law; but their final end—that is to say, happiness—is the first principle of moral actions, since in moral matters the end to be attained is the principle of action, so that the final end is [also] the first principle of such acts; and the common good, or happiness of the state, is the final end of that state, in its own sphere; hence, this common good should be the first principle of [human] law; and therefore, law should exist for the sake of the common good. This reasoning is very nearly the same as the reasoning of St. Thomas (I.–II, qu. 90, art. 2); and it finds excellent illustration through the teachings of St. Augustine, where (On the City of God, Bk. XIX, chap. xvi) he infers from the due relationship of the part to the whole, and of one household to the state (of which, as he says, [the household] is the beginning or minute element), that domestic peace is related to civil peace. And he adds: ‘Thus it is that the paterfamilias ought to derive from the law of the state, those precepts by means of which he so governs his household that Edition: current; Page: [106] it accords with the civil peace.’ And therefore—so Augustine holds—it is far more obligatory that the laws of the state should serve the common peace and the good of the state.

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

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

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

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

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

7. The objection is answered. To the first part of this objection, the various authors make varying replies, as does Navarrus, above (On Ends, Edition: current; Page: [108] Nos. 28 and 29). In my opinion, however, the matter is clear and may easily be explained by the application of a double distinction.

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

8. A twofold subject-matter of the common good, with which law may be concerned. The other member of our twofold distinction is that which is generally made with respect to human acts. In these, we distinguish the proximate subject-matter with which they are concerned, from the motive or reason because of which [they are executed]. For, in view of the fact that law is a moral act, these two factors should be distinguished in the case of law, also. Therefore, the subject-matter with which law is concerned, may sometimes be the common good for its own sake and primarily; while at other times it is a private good for its own sake and primarily, but a private good which redounds to the common welfare.4 Accordingly, a distinction of this kind, also, was laid down with respect to laws, in those above cited, Edition: current; Page: [109] as I have, moreover, explained at greater length in my work, De Religione (Treatise V; that is, in Bk. II, chap. xxii5 of the part on oaths). For certain laws deal directly with subject-matter that is common; others, with the good of individuals; but the reason why law deals with either kind of subject-matter is the common good, which therefore should always be the primary aim of law.

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

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

The reason for the foregoing statements is clear; since even if a legislator makes a law from hatred, for example, or from some other perverse motive, if the law itself nevertheless works to the common good, that fact suffices to give the said law validity. For the perverse intention is strictly Edition: current; Page: [110] a personal factor, and its effect does not extend to the work imposed, in so far as the latter relates to the common advantage. Thus, the perverse intention of a judge does not affect the validity of his sentence, unless that intention is in [actual] opposition to the equity of the sentence; and similarly, the perverse intention of him who administers [a sacrament] is in no way detrimental to that sacrament, unless such an intention is in opposition to the essence thereof. Just so, then, in the matter under discussion, the common good must be sought in the law itself, and not in the extrinsic intention of the lawgiver. Augustine gives an excellent portrayal of this view when he says (On Free Will, Bk. I, chap. v): ‘A law which has been made for the protection of the people, cannot be censured on the ground of any evil desire, since he who made it, if he did so at God’s bidding (that is to say, in accordance with the precepts of eternal justice), may have performed this [legislative act] apart from any experience of such desire; if, on the other hand, evil desire was associated with his making of the decree, it does not follow [merely] from that fact, that it is necessary to obey the said law in such a spirit; for6 a good law may be made, even by one who is not himself good.’ Moreover, just below this passage, Augustine calls attention to an excellent argument, namely, that one may without evil desire conform to a law, even though he who made the law may have done so in a spirit of evil desire.

10. Reply to an objection. Accordingly, in the light of the foregoing remarks the first part of the objection is easily answered; since that part involves simply the conclusion that the proximate subject-matter of law is not always that common good which, per se and primarily, dwells within the community as such; and it is thus that the distinction laid down in connexion with the laws above cited, is understood. For it was laid down with regard to subject-matter; and the laws in question are said to turn about private benefits having as their subject-matter the personal welfare of the [individual] citizens themselves, welfare which, viewed from another standpoint, includes the common welfare, as we have remarked. With respect to these legal precepts it should also be noted that they never Edition: current; Page: [111] fall under the head of law when they relate merely to this or that individual, but do come under that head in so far as they deal with [all] persons of a certain condition (such as wards, soldiers, &c.), or with [all] persons of a certain origin (for example, nobles), or with [all] the successors of a given family; and in this sense, they look to the common good, because of a common participation (so to speak) in their universal effects, that is to say, because such good affects a large number of persons, as was pointed out at the end of the preceding Chapter.

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

11. In the light of the foregoing remarks, it is evident what should be said in regard to privileges, a matter apparently touched upon by the Digest (ibid.), also. Thus the Gloss (on Decretum, Pt. I, dist. iv, can. ii) answers that it is through the condition in question that law is distinguished from privilege.9 This reply is sharply attacked by Castro (cited above), on the ground that it leads to the conclusion that a law decreed by a prince, concerning payment of a perpetual tribute to himself and for his own advantage, would have to be called a privilege. However, this objection to the words of the Gloss has little force. For the tribute in question would be either just, or unjust. If it were just, then the law itself would be just, and would serve the common good, even though it would [also] be to the advantage of the prince; because, in the first place, the welfare of the prince, viewed as such, is considered as the common welfare, inasmuch Edition: current; Page: [112] as he is a public personage, pertaining to the whole community;10 and furthermore, because a just subsidy bestowed upon the prince by the state constitutes a common good, benefiting the state as a whole. If, on the other hand, the tribute should be unjust and tyrannical, then it would not be law, but would on the contrary have the character of an inequitable and unjust privilege. Moreover, this reply which is contained in the Gloss would seem to be in accord with Cicero’s statement (Laws, Bk. III [, chap. xix, no. 44]) that, ‘Our forefathers [ . . . ] desired no laws to be made which penalized private individuals; for to do so would be to make a law of personal privilege’.

12. Privileges are true laws.11 Nevertheless, I am of the opinion that the said condition was not laid down by Isidore, to the exclusion of privilege from the essential realm of law. For in the first place, this same Gloss (on Decretum, Pt. I, dist. iii, can. iii) declares that a privilege is law, and requires of it a compliance with certain other conditions which are laid down by Isidore as he is quoted in a different passage (Decretum, Pt. I, dist. iv, can. ii). Another reason for my opinion is the fact that the clause in question was framed for the immediate purpose of excluding tyrannical laws, or those which do not tend toward the common good, even though it may be that they do not look to any private good, either; so that evil laws are necessarily excluded through the said condition, even if they are not privileges. Finally, my opinion is supported by the fact that it was perhaps not needful to exclude privileges. This is a point which I shall discuss in the proper context. For the present, I shall merely assert that, in so far as relates to the common good, it is not unreasonable that a privilege should have the character of law. For even though its proximate subject-matter may be the private good of a particular family or household, or that of particular individuals—this being, perhaps, the reason that Isidore gave privileges the name of ‘private law’, in the Chapter12 of the Decretum above cited (Pt. I, dist. iii, Edition: current; Page: [113] can. iii)—nevertheless, from a formal standpoint, [a privilege] should look also to the common good. In this connexion, one may consult the Decretum (Pt. II, causa i, qu. vii, can. v, argument, and Section Nisi rigor [same canon]; also Pt. II, causa i, qu. vii, can. xvi) and the remarks of St. Thomas (I.–II, qu. 97, art. 4, ad 1). For the good conceded by the privilege should be a private good [only] in such a way as to redound to the common welfare, in the fashion explained above. Moreover, the particular grant of privilege should be of so rational a nature, that it will work to the common advantage if [other, and] similar privileges are granted for similar causes. Privileges, then, are not excluded from the strict and essential character of law, under this head. And as to the question of whether they are excluded on the ground that they relate to private individuals, or whether they may [in spite of this fact] be laws in the true sense of the term—especially if they are of a perpetual nature—that is a matter which we shall discuss in Book Ten.13

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

14. As to the other part of the objections, we may make the general reply that it is a natural characteristic of human affairs that they are not uniform in every way. And thus it frequently happens that what is expedient for the whole community, will be harmful to this Edition: current; Page: [114] or that individual; but, since the common good is preferred to private good whenever the two cannot exist simultaneously, therefore, laws are made in absolute form, for the sake of the common good, and take no account of individual cases. This point is brought out in a number of laws (Digest, I. iii and ibid., i; Decretals, Bk. III, tit. xxxi, chap. xviii and Decretum, Pt. II, causa vii, qu. i, can. xxxv). However, it is sometimes the case that several kingdoms, or several communities, are gathered together under one king; externally (so to speak) since, in actual fact, they do not form among themselves a single political body, but have come under the power of that king through various titles, and as the result of external accidents. In such cases, it would be unjust to bind the different kingdoms by the same laws, if those laws were advantageous to one kingdom, and not advantageous to another. For under these circumstances, the comparison would be made, not as between the common and the private good, but as between one common good and another, also common, each of which requires, per se and separately, that provision be made for it through its own laws just as if it were still under a separate king; even after the manner adopted by the Pope, when he lays down [separate] rules for different religious orders, in so far as they are distinct communities, each in need of its own laws. On the other hand, when the various communities are [in reality] parts of one and the same kingdom, or political body, then the welfare of each individual part is to be regarded as private in relation to the welfare of the whole, for which the laws are essentially and primarily made.

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

15. From the foregoing we readily perceive what statements should be made regarding harm to private persons. For harm of this sort is accorded less consideration and consequently is sometimes permitted, as in the case of prescription, which regards the common good; that is to say, it regards peace, the avoidance of litigation, &c. At times, such harm is actually [one Edition: current; Page: [115] of the ends] sought [by legislation]; for example, by punitive laws, which are at the same time necessary to the common good.

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

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

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

Nevertheless, these authors do not hold that laws of this kind are always invalid, or unjust. For doubtless they may sometimes be enacted for a Edition: current; Page: [116] reasonable cause, permitting harm to a private individual for the sake of the common good, rather than [deliberately] seeking to inflict such harm, or even seeking to do so as a just penalty. Again, if it so chances that the lawmaker was moved by an unjust intention owing to private hatred, that fact (as has been said above) will not be detrimental to the law itself, nor to the justice thereof, if in other respects this law is necessary to the common good. So Felinus has declared at length, in the passage already cited [on Decretals, Bk. I, tit. ii, chap. vi, concl. 1]. Moreover, he adds (ibid., concl. 3) that the same conclusion holds true of a law made in favour of a private individual or of a family, if the said law redounds to the common advantage; a fact which is sufficiently clear in the light of what we have already said.16 Thus the authorities above cited17 are referring—when they speak of injustice and fraud—to cases involving an attempt, without just cause, to inflict harm upon a third party under the guise of a general law. For in these cases the injustice is manifest, and consequently a suitable method of self-defence is likewise permissible, and befitting; and it is of such self-defence that these authors treat, since the subject falls properly within their field.

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

1. Now that we have expounded the conditions required of law with respect to the persons or causes that may be considered as extrinsic, the intrinsic conditions (so to speak) present themselves for discussion, whether intrinsic in the act to which a legal precept may apply, or intrinsic in the very process of making the law. We reduce these conditions to a question of justice; and under justice, we include all the conditions laid down by Edition: current; Page: [117] Isidore in a passage (Etymologies, Bk. V, chap. ii [chap. iii]) where he speaks thus: ‘Law will be all that which is established by reason, provided that it is in harmony with religion, agreeable to [moral] discipline and conducive to welfare.’1 However, Isidore would seem to be speaking here of human custom, rather than of law in general, although the words might be made applicable to all phases of law. In other chapters, indeed (ibid. chap. xxi and Bk. II, chap. x), he enumerates other conditions—or the same ones, with greater clarity—for he says: ‘Law will be righteous, just, practicable, and in harmony with nature and with the custom of the country, and suitable to the time and place.’ St. Thomas, also (I.–II, qu. 95, art. 3), interprets these conditions as referring to human law.

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

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

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

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

A twofold sense in which law may be regarded as just. Moreover, it may be expounded in the following manner. The statement that law ought to Edition: current; Page: [118] be just, is susceptible of two interpretations. First, the question of justice may be viewed from the standpoint of the very act which the subject is, by virtue of the said law, obliged to perform; that is to say, the act must be such that it may be justly executed by him. Secondly, the question may be considered in regard to the law itself; that is, the law must be imposed upon men without the infliction of injury. For sometimes an act may be such that it is possible for the subject to perform it justly—as in the case of a fast on bread and water—while the superior [nevertheless] does this subject an injury by prescribing such an act. This distinction has been pointed out by St. Thomas (I.–II, qu. 96, art. 4). Our assertion, then, should be interpreted according to the first standpoint, or first kind of just law; for in order to set it apart from the second standpoint, we have said that a law ought to prescribe just things.4

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

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

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

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

There is the further reason that God cannot be a contradiction to Himself, and therefore cannot lay down mutually contradictory precepts at Edition: current; Page: [119] one and the same time, while they continue to be thus contradictory. The prescribed deed, then,—a deed which, for the purposes of argument, we have assumed to be unjust or base—will be of such sort that it is in nowise separable from its iniquity (as in the case of lying, or entertaining hatred against God, or failing to believe when He speaks with sufficient evidence, or similar conduct); or else, the said deed will be such that its wickedness can be removed by a change in the subject-matter, or by the adoption of a [special] mode of action (as in the slaying of a human being, or other act of this kind). When the deed [prescribed] is intrinsically evil in the former sense, it is for that very reason prohibited by natural law, and consequently by God, as the Author of natural law; therefore, it is impossible that positive divine law should contain anything contrary to this natural justice, although it may contain many precepts in addition to those of natural justice, precepts which are most righteous in their own order. If, on the other hand, the deed in question is of the latter sort, it will be righteous for the very reason that it is prescribed by God; a point which may be illustrated by the deed of Abraham and also by similar cases which we shall discuss later, when we treat of dispensations from natural law. For this latter form of command occurs (a point which should be noted), not in divine laws of a general nature but, at most, in certain rare personal precepts. Accordingly, it is quite clear, with respect to divine laws, that they are always characterized by the kind of justice in question.

4. In the case of human laws, however, this [condition which we have been discussing in the two preceding sections] is founded upon another principle. For a human legislator does not have a perfect will, as God has; and therefore, of himself and with respect to the deed [prescribed], such a legislator may sometimes prescribe unjust things, a fact which is manifestly true; but he has not the power to bind through unjust laws, and consequently, even though he may indeed prescribe that which is unjust, such a precept is not law, inasmuch as it lacks the force or validity necessary to impose a binding obligation.6 To be sure, I am speaking Edition: current; Page: [120] of unjust deeds which are opposed to natural or divine law. For if a deed is wicked solely because it is prohibited by a human law, and if the latter can be withdrawn by means of a subsequent law, then this second precept will not relate to an evil deed, since—through the revocation of the earlier law—the evil of the [prescribed] deed is removed. The reason for our assertion thus becomes clear. For, in the first place, the [legislative] power in question is derived from God; and those things which are from God, are well ordered; therefore, the said power has been given for good and for edification, not for evil or destruction. And secondly, no inferior can impose an obligation that is contrary to the law and the will of his superior; but a law prescribing a wrongful act, is contrary to the law of God, Who prohibits that act; therefore, [the former law] cannot be binding, for it is not possible that men should be bound, at one and the same time, to do and to abstain from doing a given thing. Moreover, if a wrongful deed is prohibited by divine law, no law made by an inferior can annul the obligation imposed by the superior; consequently, [such an inferior] cannot impose an obligation, for his own part; and therefore, his law on the deed in question cannot be valid.

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

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

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

Thus the second part of the same statement is also manifestly true. For, in some cases, it is presupposed that [certain] acts prescribed by law are of themselves good and righteous. Such acts acquire through law merely a necessary and obligatory character; since they were formerly optional and the failure to perform them was not evil, whereas such failure does become evil after the making of the law, and the act in question becomes essential to righteousness, manifest examples of this sort being found in the acts of hearing mass and of fasting, or in similar acts. Sometimes, on the other hand, a law is made with regard to a deed which is in itself indifferent; as in the case of laws concerning the carrying of arms, or abstaining therefrom, at a certain time or in a certain place, and similar matters. In such a situation, the act [prescribed] becomes good both by the efficacy [of the law] and by virtue of the end to which that law is directed. This righteousness ordinarily relates to some special virtue, in accordance with the capacity of the subject-matter with which the law is concerned, inasmuch as the said law establishes a certain moderation in regard to that [subject-matter]. Examples of this kind are found in the law of fasting, or the law prohibiting the use, at a stated time, of stated foods that are in themselves Edition: current; Page: [122] a matter of indifference; and in other laws of a like nature. Sometimes, however, the righteousness may be a matter solely of obedience, or legal justice. Examples of this sort are the law which prohibits carrying arms, and other, similar laws.

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

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

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

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

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

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

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

Furthermore, the natural law, being the first participant in this [eternal law], prescribes as a principal requirement, the worship of God. For it Edition: current; Page: [124] was in view of this precept that Paul wrote (Romans, Chap. i [, vv. 20, 21]) that the heathens were inexcusable. Because that, when they knew God, they have not glorified Him as God. Accordingly, the natural law does not merely refrain from prescribing anything incongruous with the religion of the true God; rather, it does not even permit such a thing. For though the individual precepts of that natural law do not all prescribe the worship of God, yet that law does not prescribe anything that cannot be done to the glory of God, and this is equivalent to being in harmony with religion.10

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

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

Finally, with respect to civil laws, while these do not per se serve such an end, they are nevertheless subordinate to it, and consequently should not Edition: current; Page: [125] be incompatible therewith; if they are incompatible, they cannot be just; and in this sense, civil laws should be in harmony with religion.

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

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

These assertions are, to be sure, correct. Nevertheless, if we interpret this condition as referring to discipline in relation to the subjects [upon whom laws are imposed], we may well say that every law lays down suitable doctrines for its subjects, and is thus agreeable to discipline;14 since every law is a species of instruction for the subjects, in accordance with the words [of the Psalmist (Psalms, xviii, v. 8)]: ‘The law of the Lord is unspotted, . . . giving wisdom to little ones.’15 For every just law is, in a sense, a law of the Lord, and gives wisdom to little ones; accordingly, it is, with respect to those little ones, a species of doctrine; and therefore, it is rightly asserted of all law, that it should be agreeable to discipline. But the instruction in habits of conduct (for it is of such instruction that Edition: current; Page: [126] we are speaking) which is said to be in consonance with discipline, is that which promotes virtue, or that which promotes other ends in such a way as to do no injury to righteous habits, being, rather—to the extent of its influence—advantageous to such habits. For this [third] condition, also, may be interpreted either positively or negatively; and both modes of interpretation are adequate, each in due proportion. To be sure, it is hardly possible that there should exist any law not repugnant to righteous habits of conduct, which would not be in some way agreeable to righteous discipline, assuming—as is indicated in the last of the [three] conditions mentioned—that with respect to its remaining qualifications, the said law is beneficial to the state.

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

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

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

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

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

The question, indeed, of the degree of certitude—regarding this injustice in a law—that is necessary in order to oblige men not to obey that law, is repeatedly dealt with in comments on I.–II [, qu. 96, art. 4], Edition: current; Page: [128] on conscience. Furthermore, we shall make some comments on this same point below,21 when we discuss the binding force of law, and especially that of human law. For doubts of the kind in question are particularly wont to occur with respect to law of this sort [i.e. human law], and they may take many diverse forms; so that this subject will be disposed of more fittingly and more fully in that [later] context. On the other hand, the question of how in a doubtful case a presumption is made in favour of the prince, is treated at length by Panormitanus (on Decretals, Bk. I, tit. ii, chap. vii, no. 14), Felinus (ibid., nos. 60 et seq.) and Torquemada (on Decretum, Pt. II, causa xi, qu. iii, can. i, concls. 6 and 7, nos. 8 and 9, and ibid., can. xciii, at end).

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

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

A second and specific argument is based upon the supposition that, when we declare establishment in a just manner to be inherent in the nature of law, we refer to a just mode Edition: current; Page: [129] of operation, not as regards the [legislative] agent, but as regards the product of his efforts. For, with respect to the mode of operation in its relation to the agent, it is necessary, not only that there be no defect in the law itself, but also that the agent be moved by a virtuous impulse, not by hatred or cupidity, and that for his part he conduct himself prudently in regard to the mode and circumstances of his action. But this good or virtuous behaviour on the part of the legislator who makes a given law, is not necessary to the validity of the law. For a prince may conduct himself wickedly and unjustly when he makes a law, while the law which he makes may nevertheless be just and good, and also valid. With respect to the law itself, however, the requisite mode involves not only righteousness in the subject-matter of the law, but also righteousness in its form. A law, then, is said to be just when the form of justice is preserved in it, a point which St. Thomas (ibid., art. 4 and qu. 95, art. 3) neatly expounds.

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

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

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

The third phase of justice is distributive. This also is a requisite of law. For in the process of laying down commands for the multitude, [law] distributes the burden, as it were, among the various parts of the state, Edition: current; Page: [130] for the good of the latter, and must therefore preserve in that distribution a proportionate equality, which is a matter pertaining to distributive justice. Accordingly, a law which apportions burdens unequally will be unjust, even if the thing which it prescribes is not inequitable. It is in this sense that St. Thomas (ibid.) has asserted that a proportionate equality is required in the form of a just law.

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

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

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

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

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

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

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

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

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

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

This part of our argument, moreover, may be further clarified by an explanation of the third principal condition for law, as laid down by Isidore [Etymologies, Bk. V, chap. xxi]—namely, that law must be practicable33 Edition: current; Page: [133] (possibilis)—as well as by an explanation of other points which he also mentions in that context, as follows: ‘[law must be] in harmony with nature and with the custom of the country, and suitable to the time and place.’ For all these latter factors evidently serve to define that practicability, as we shall [presently] explain.

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

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

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

18.36 The assertion laid down by the Council of Trent is confirmed. Moreover, in this [first and absolute] sense, at all events, the Council of Trent (Sixth Session, and Chap. xi, canon 18) laid down the same assertion with Edition: current; Page: [134] regard to divine laws, also.37 Bellarmine, too (De Iustificatione, Bk. IV, chap. xi), and Andreas de Vega (Tridentini Decreti de Justificatione Expositio et Defensio, Bk. XI, chap. ix), opposing the heretics38 of that time, furnish extensive proofs to the same effect, based upon the Scriptures, upon the writings of the Fathers, and upon reason. Consequently, it is clear, a fortiori, that it is still more necessary for human laws to be practicable [in the absolute sense], because they are derived from a lesser power and are a participation (so to speak) in the divine law, and because the arguments adduced with respect to divine law, apply a fortiori with respect to these [human precepts].

There is the further argument that Augustine (De Natura et Gratia, Chap. xcvi [Chap. lxix]) says, not merely that God does not command that which is impossible, but also that, ‘It is a matter of firmest belief that a just and good God cannot have commanded impossibilities’. How, then, shall man have been able to command impossibilities? In this connexion, there is a vast difference between God and man. For God can command certain things impossible to nature, being able to render them possible through grace, which He for His part does not withhold in so far as it is necessary to the observance of His commandments; and consequently, the commandments of God relate always to something which is possible [of achievement], since that which we are able to achieve through those who befriend us, we are in an absolute sense able to achieve, provided that this friendly assistance is surely to be had and ready to hand. Human beings, however, cannot supply the power necessary for the fulfilment of precepts, and therefore they must necessarily assume that this power exists either by the force of nature Edition: current; Page: [135] or through grace, according to the character of the precept in question. At this point, to be sure, difficulties might be raised as to the possibility of loving God, of overcoming concupiscence, and of obeying the commandments; but we shall take up these matters in the treatise On Grace.39

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

Isidore makes a further addition [ibid.], in the words, ‘[in harmony] with the custom of the country’. For custom is a second nature; and therefore, that which is repugnant to custom is held to be decidedly repugnant to nature and, consequently, almost morally impossible. This condition, however, should be understood as referring to custom that is righteous and advantageous to the state. For evil custom should be amended by law; and even though [a given custom] may have been at one time Edition: current; Page: [136] advantageous, nevertheless, if the state of affairs has undergone so great a change that [the same custom] ceases to be of advantage and the opposite course becomes expedient for the common good, then, in that case also, it will be possible for law to override custom; a point which we shall discuss later, in the proper context.

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

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

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

The determination, however, of the cases which involve a substantial defect in regard to such conditions, must be left to prudent judgment; and this judgment must be based upon a high degree of certainty, if a law is to be adjudged invalid on such grounds. For the statement which I made above,42 namely, that the injustice [of a law] must be clear and beyond Edition: current; Page: [137] doubt [if the law is to be declared invalid], is a statement which applies in the present43 connexion with much greater force. This is true, partly because of the reasons set forth in that earlier passage, since they hold good also for the matter now under discussion; and partly because less danger exists in connexion with this matter, since the doubt [in this case] turns solely upon a temporal objection.

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

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

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

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

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

2. Various definitions of law. A more general definition may be drawn from the statement made by St. Thomas (I.–II, qu. 91, art. 2 [art. 1]) Edition: current; Page: [139] that: ‘Law is a dictate of practical reason emanating from the prince who rules some perfect community.’ Castro, however, defines law differently (De Potestate Legis Poenalis, Bk. I, chap. i), as ‘The righteous will of one who represents the people, when that will is promulgated either orally or in writing, with the intention of binding the subjects to obey it’. These definitions express the personal opinions of the individuals who framed them, a practice which should be avoided, in so far as is possible; for a definition ought to consist of a primary principle (as it were), on a universally applicable basis. Furthermore, the definition last quoted contains certain elements which are not strictly necessary, or which require fuller explanation. Take, for example, the statement that [law] is a righteous will; for, strictly speaking, it could fail to be righteous in an absolute sense. Again, [we may question] the phrase, ‘one who represents the people’, since [the legislator] may be either the people themselves, or some one who does not represent the people but is nevertheless charged with caring for them. And as for the first of the two definitions, it is applicable to law only in so far as law dwells within the mind of the prince; whereas, in the present discussion, we are treating also of external law.

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

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

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

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

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

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

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

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

5. Another objection. Finally, there would seem to be [another] objection to this same definition of law, namely: the fact that it is possible that a Edition: current; Page: [142] prelate may, in accordance with right reason, and by making his will sufficiently clear to the community, order those subject to him to execute a given act; and that [in so doing] he will nevertheless not be making a law, since [his order] does not involve a perpetual and stable precept, such as is requisite, according to what we have said, to the nature of law; so that the entire definition given above is applicable [, it would seem,] to precepts promulgated for a community, even when they have been enjoined only for a day.

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

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

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

1. We have said that the chief effect of law consists in its binding power,1 and that all its other effects have their roots in that one alone. Binding power, however, must of necessity relate to some one on whom it is imposed; and therefore, in order to provide a perfectly clear understanding Edition: current; Page: [143] of this effect, it is necessary to explain what persons fall under the binding power of law, or are capable of so doing. For although we have already demonstrated that law is established for men, and for men considered in common—that is to say, established for some community—still, we have not explained whether all men are capable of being subject to this obligation, or whether some are (so to speak) exempt.

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

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

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

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

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

The principal basis of that view is their denial of true justice5 and of the necessity of works for the attainment of justice. For they say that men are justified solely through their acceptance by God, and through the lack of any extrinsic imputation [of sin] by Him; a state attained by every person who firmly believes that his sins have been forgiven him, or rather, are not imputed to him, because of Christ’s merits. Furthermore, they say that this faith suffices for salvation, whatever works a man may do. From this basic argument, it necessarily follows that a just man, as conceived by them, is not bound by any law, provided he remains steadfast in the faith; since, whatever works he may perform while believing that they are not imputed to him, he does not incur any punishment, nor are his acts imputed to him as sin. Thus, these heretics would not seem to deny that men are bound by law, in such a way as to imply in their denial that works opposed to law are not sins; on the contrary, they teach that, from other standpoints, all the works of the just are sinful, that it is impossible even for the just to fulfil the law of God, and similar doctrines which presuppose that law has binding force and is a rule for such works. They assert, then, that this obligation is morally removed (so to speak) or rendered ineffective, by that faith of theirs; since [such faith] renders one not liable to punishment,6 Edition: current; Page: [145] and since, by reason of it, one’s deed does not appear as evil in the sight of God, even though it may in itself be evil.

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

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

The truth of this conclusion may be proved inductively, as follows: from the beginning of their creation men were subject to natural law and, furthermore, Adam and Eve were subject to a prohibition against eating of the tree of knowledge, even though they were just and in a state of innocence. Moreover, it is manifest that, after the fall, and before the advent of Christ, the Jews were under the written law and the rest of mankind, under natural law (to omit human laws for the time being from our discussion). Such is the explicit teaching of Paul (Romans, Chaps. i and ii), who shows that the Jews as well as the Gentiles were transgressors of the law; the former, of the written law, and the latter, of the natural law, which they manifested as being written in their hearts whenever they observed any part of it. And these laws were not less binding upon the just than upon the unjust, since they were laid down for all without distinction. Edition: current; Page: [146] Moreover, the natural law is binding essentially and intrinsically, both before and after the states of justice or injustice; but the written law had its inception among the just, inasmuch as it was given to the whole of that faithful people, which included Moses, Aaron, and many other just persons, while the law of circumcision had even before that time been given to Abraham, who was just.

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

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

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

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

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

With regard to the first group, it is clear that they are bound at least by the law of baptism, over and above the obligations imposed by natural law and by faith, hope, charity, and penitence. However, we shall demonstrate later,12 and in the proper contexts, that even just persons who have been Edition: current; Page: [148] baptized are bound by human laws, both civil and ecclesiastical, and also by the positive divine law laid down by Christ.

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

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

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

8. Thirdly, all that Christ taught on the night of His Supper, with regard to the observance of precepts and particularly of charity, has a special pertinence in relation to just persons who have been baptized. For the Apostles were just and had been baptized, and to them He said (John, Chap. xiv [, v. 15]): ‘If you love me, keep my commandments’; again [v. 21], ‘He that hath my commandments, and keepeth them; he it is that loveth me’; yet again [v. 23], ‘If any one love me, he will keep my word’ and [v. 24], ‘He that loveth me not, keepeth not my words’; and also, in Chapter xv [, v. 9], ‘Abide in my love’, and in a subsequent verse [14:] ‘You are my friends, if you do the things that I command you.’ These conditions have the force of a threat, and indicate the necessity for observing the commandments in order that charity may be preserved; and therefore, the just are bound to Edition: current; Page: [149] such observance, and without it they will not preserve [their] justness. An infinite number of similar passages from the Scriptures might be adduced, but there is no need to dwell upon a matter that is clear and evident by the light of natural reason—in so far, at least, as moral precepts are concerned.

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

10. Thus, the basic position of the heretics is contrary also to natural reason, and most decidedly inconsistent with divine goodness. For sin, as such, cannot fail to be displeasing to God, since ‘[ . . . ] to God the wicked and his wickedness are hateful alike’ [Wisdom, Chap. xiv, v. 9]. It is Edition: current; Page: [150] furthermore inconsistent with divine justice that sins should be more easily forgiven, or should not be imputed, to those who commit them while possessed of more faith in God Himself; which would be as if He Himself granted licence to sin, by promising that sins would not be imputed against those who believe that they are not.17 This is true especially in view of the fact that such a promise is vain and fictitious, since it appears nowhere in the New Testament, any more than it does in the Old. On the contrary, Paul says (Romans, Chap. ii [, v. 16]) that God shall judge the secrets of men by Jesus Christ according to the Gospel—which will be, assuredly, according to the law and the truth, not according to the false opinions of men.

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

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BOOK II: On the Eternal Law, the Natural Law, and the Ius Gentium


After treating of law in general, it is logical that we should pass on to the individual kinds thereof, among which the eternal law has first place, on account of its dignity and excellence, and also for the reason that it is the source and origin of all laws.

But we shall discuss this kind more briefly than the others because, with respect to human affairs it is less applicable in itself to the uses or function of law; and because the eternal law is in great measure wont to be confused with divine providence, which is dealt with according to our plan in the first part of this treatise.

However, we shall combine the treatment of the natural law with that of the eternal law, partly for the sake of completeness in our work; partly because the natural law is the first system whereby the eternal law is applied or made known to us; and partly because these two laws differ as law by essence, and law by participation, or (so to speak) as symbol and symbolized, a point which we shall later explain.1 But at this point we are interpreting natural law strictly, in so far as it is contained in natural reason alone; for that law which is connatural with grace or faith is purely supernatural, and will in consequence be expounded later when we treat of the law of grace,2 although what we shall say about the natural law may, in due proportion, be applied also to the law of grace.

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With respect to the former, we must note that the natural law is made known to men in a twofold way; first, through the natural light of reason, and secondly, through the law of the Decalogue written on the Mosaic tablets. Thus it was that, in one passage, St. Thomas (I.–II, qu. 94) treated of the natural law under the former aspect, and later (qu. 100), he treated of it under the latter aspect.

But, since this law which was inscribed upon tables of stone is indeed the same as natural law in its substantial binding force, the wider knowledge of the latter being brought about solely by that written law, we shall consequently include in this work a consideration of all points relating to the Decalogue. But we shall consider later, in our discussion of the Old Law [De Legibus, Bk. IX],3 whatever has been added to the Decalogue from the law of the Old Testament, with regard either to penalties or to certain special circumstances, or to the increase of some particular obligation. In this later context, we shall duly see whether the law of the Decalogue has in any respect ceased to operate, or whether it still endures.

Finally, because the ius gentium is of all systems the most closely related to the natural law, we shall discuss that, also, at the end of this Book.

CHAPTER I: Is There Any Eternal Law; and, What Necessity Is There for the Same?

1. The first argument. The reason for doubt lies in the fact that a law necessarily requires some one upon whom it may be imposed; and from eternity1 there was no one upon whom law could be imposed; therefore, no system of eternal law could [actually] have existed. The truth of the major premiss is clear: for law is an act of sovereignty; and a contradiction is involved in the existence of sovereignty, unless there is some one over whom it may be exercised. The minor premiss may also be proved, because from eternity there was only God, and neither law nor sovereignty can be imposed upon Him.

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The second argument. A second argument is as follows: by a similar process of reasoning there existed from eternity no dominion, nor any jurisdiction, nor any government, because there was no being upon whom God might exercise dominion, or whom He might govern; but law is an act of government and of dominion, or jurisdiction, and therefore, for the same reason, law cannot have been eternal.

The third argument. Thirdly: promulgation is essential to law, as we have said;2 but from eternity promulgation was impossible, since there was no one to whom law might be promulgated, nor could it be promulgated within God alone; therefore, . . .

The fourth argument. Fourthly: if there were any eternal law, it would be intrinsically and absolutely necessary, as well as unchangeable; for nothing is eternal save what is intrinsically necessary; and no law is of itself and absolutely necessary, as we said above;3 therefore, there is no eternal law.

2. It is the common opinion of the theologians that eternal law does exist. Nevertheless, it is the common opinion of the theologians, that in God some kind of eternal law does exist. Thus St. Thomas (I.–II, qu. 91, art. 1, and qu. 93, throughout) teaches; as do Cajetan, Soto, and other commentators on that passage from St. Thomas, as well as Vincent de Beauvais (Speculum Morale, [Bk. I,] pt. ii, dist. i), Alexander of Hales (Summa Universae Theologiae, Part III, qu. xxvi, membrum i), Antoninus (Summa Theologica, Pt. I, tit. xi, chap. i, § 4, and tit. xii, at the beginning) and Torquemada (on Decretum, Pt. I, dist. i, can. i). The same conclusion is to be deduced from Augustine (On the True Religion, Chap. xxx [Chap. xxxi]; On Free Will, Book I, chaps. v and vi; and Against Faustus, Bk. XXII, chap. xxvii). And Cicero, also (Laws, Bk. I, and Bk. II [, chap. iv, § 8]), proclaims this law most of all, and asserts in the following words that it was recognized by the wisest philosophers: ‘I find that it has been the opinion of the wisest men that Law is not a product of human thought, nor is it any enactment of peoples, but something eternal which rules the whole universe by its wisdom in command and prohibition. Thus they Edition: current; Page: [154] have been accustomed to say that Law is the primal and ultimate mind of God, whose reason directs all things either by compulsion or restraint.’ Plato, too, distinguished four kinds of laws in Timaeus,4 calling the first divine law, whereby he clearly refers to this eternal law through which God governs the universe. The same conception is expounded in the Dialogues: On Laws (Bk. X, passim).

3. St. Thomas also demonstrates this truth, arguing that there must be in God Himself some kind of law, and that this law cannot be other than eternal in its nature, so that, consequently, there must exist in the universe some kind of eternal law. The minor premiss is assumed on the ground that God is unchangeable, and that nothing new can be added to Him [i.e. to His nature]. The major premiss is also clearly true, since God exercises providence and since it is therefore necessary to assume the existence in Him of some eternal and active reason controlling all the order and government of the universe, in accordance with the words of Boethius (The Consolation of Philosophy, Bk. III [, metrum ix]): ‘O Thou, who governest the universe by Thy eternal reason’; therefore, this eternal reason of God has the true nature of law; because as Isidore (Etymologies, Bk. II, chap. x [, § 3]) said: ‘If law consists in reason, then everything which is made known through reason will be law.’5

This argument is confirmed by Augustine on the ground that every human law is mutable and exposed to defects and errors; so that he necessarily assumes the existence of some unchangeable law, which stabilizes and serves as a measure for [these human laws], in order that right may be done through conformity with [this immutable] standard, which can be none other than the eternal law.

Finally, every specific6 law presupposes the existence of something which is law in essence; and this essential law is eternal; therefore, . . .

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4. Objection. Some persons may object, however, that these arguments prove only that there exists in God the eternal reason determining the acts that are to be performed, a rational principle which we call Providence, while they do not prove that this principle existed as strict law from eternity. For Providence connotes an eternal relation, and law, a temporal one, as the arguments set forth at the beginning of the Chapter indicate. Wherefore, this eternal reason may at the most be called law in a material sense (as it were) and in reference to that act of the divine will or intellect which is law, but it may not be given that name in the formal sense, in so far as relates to the strict connotation of the term ‘law’ and all the conditions required therefor; just as active creation may be said to be eternal in a material sense, when regarded as the act of God, but not formally and absolutely, in so far as it is [essentially] creation. The same must be said of the power to exercise dominion and the like.

St. Thomas (I.–II, qu. 91, art. i, ad 1), however, maintains that the law in question is eternal, even in a formal sense and viewed as law, strictly speaking, because, ‘The eternal concept of divine law has the nature of an eternal law, in that it is ordained by God for the government of things foreknown by Him.’

But, although St. Thomas may rightly say that the rational principle governing that which is destined to be performed, exists eternally within God and has the nature of an idea; nevertheless, he does not explain how that principle possesses from eternity the nature of law, nor in what way it differs therefrom, when regarded as an idea; nor does he seem to answer satisfactorily the difficulties advanced.

5. Therefore, lest we dwell exclusively on a matter of terminology, it remains for us to determine what is clear as a matter of actual fact, to what extent the question turns upon the use of terms, and what reason of an absolute nature may be adduced in favour of the phraseology adopted.

Two phases of law. A solution to the objection. Therefore let us distinguish in law, two phases. One is that which exists in the inner disposition of the lawmaker, in so far as the law in question has already been defined in his mind, and established by his absolute decree and fixed will. The other is that phase in which a law is externally established and promulgated for the subjects.

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It is evident that in the former mode the eternal law does exist in the mind of God: a fact proved by the reasons advanced in favour of the true opinion. But as for the latter mode, it is equally certain that this law of God did not exist in that second phase from eternity; and this conclusion is proved by the reasons for doubt set forth at the beginning of the Chapter, as will more clearly appear from the answers which we shall give to each of the said reasons. Furthermore, law regarded in the former aspect is an immanent act, wherefore it may exist eternally in God, even though it connotes relation to a temporal effect, as in the case of predestination or providence; whereas law in the latter aspect connotes a transient action in relation to God. For although this eternal law of God, in so far as it is properly law, may be laid down for those who are subject thereto, through acts immanent in those subjects, nevertheless, these same acts are external in relation to God, and necessarily temporal; so that the law in question cannot be eternal as regards this second phase.

But if any one quibbles over words, saying that this law in its first phase is not law, because it has not been, but is yet to be established, I shall reply, in the first place, that there should be no such controversy over terms, for the usage of the Fathers and of philosophers in this matter is sufficient to warrant this application of the name ‘law’, in an absolute sense; and secondly, I shall argue that an excellent reason may be advanced in favour of this nomenclature, a reason by which it may even be demonstrated that the law under discussion is, in this [first] phase, not merely a law which is yet to be established, but one which has been established from eternity after its own manner, as the replies to the arguments set forth above7 will show.

6. Solution of the first difficulty. Therefore, the reply to the first difficulty is that, just as the divine will is eternal, so also is [the divine] sovereignty, for this sovereignty, as regards its essence, consists in that very will alone, as I have already said.8 And if this sovereignty be given the name of reason or judgment as to activities to come, such reason or judgment also has existed eternally in the mind of God. A question is also brought up in connexion with that [first] argument, as to whether this eternal law is in Edition: current; Page: [157] any way applicable to God Himself; that is, whether it serves in any way as a measure and rule for the acts of the divine will, a point which we shall take up in the following Chapter.

Solution of the second difficulty. The reply to the second argument is that the exercise of dominion and of government is a transient act, and that true dominion connotes a certain relationship to a thing existing at the actual moment, so that the terms which are derived from these acts are temporal; whereas law as such, especially in its relation to God, does not necessarily connote a transient act; for in that first phase, which is of an essential nature, [the idea of law] is sufficiently verified in the immanent act, as we have explained.

7. Answer of certain writers to the third argument. The third argument is disposed of in various ways. Some authorities hold that the eternal law is not termed a law in relation to created beings, that is, in relation to men, because it is not a rule imposed upon them, but relates rather to the external works of God, since it is a rule and measure of all His acts. According to this explanation, the law in question is not a law regulating conduct (so to speak) but one governing the creations of the Artificer; for all things made by God are related to Him who made them. Wherefore, just as the idea of the artificer may be called a law, which he prescribes for himself, that he may produce works in accordance with it, even so is this eternal law the archetype in accordance with which God as the Supreme Artificer has willed from eternity to fashion all things. Consequently, the argument based on promulgation9 loses all force. For promulgation is necessary in the case of a law regulating conduct, but not in the case of one governing the production of works.

Furthermore, the other arguments [adduced above] also lose their force. For this is not a law which is imposed upon subjects, nor does it relate to government.

However, such an explanation is not satisfactory.

This answer is rejected. In the first place, it is contrary to the opinion of Augustine and the theologians, and to that of Cicero and of the philosophers as well. For all of these writers speak clearly of a law which is the rule Edition: current; Page: [158] of human acts and the pattern of all other laws existing in the minds of men, or capable of emanating therefrom, whether or not the eternal law contains within itself many [kinds of law], a point which we shall discuss later.10

Then, in the second place, the explanation in question is unsatisfactory, because the terminology involved in it is highly figurative and would be unfitted to the subject-matter of law, by reason of its mere metaphorical significance; for the fact itself which lies beneath the metaphor consists in nothing more nor less than the ideas which we have already discussed in the first part of this treatise,11 and connotes relation to nothing but [ideas].

In the third place, just as providence connotes relation to that which is cared for by it, and nevertheless can be eternal, although the things cared for are temporal; so also law can connote a relation to [temporal] subjects, and still be eternal.

8. The reply made to the [third] argument, by Alexander of Hales. Hence, Alexander of Hales [Summa Universae Theologiae, Pt. III, qu. xxvi, membrum i], gives a different reply, derived from Isidore (Etymologies, Bk. II [, chap. x]); for Alexander holds that the term lex (law) is derived on the one hand from legendum (reading), and on the other hand from ligandum (binding), and that, with respect to the former derivation, the law of God is eternal, since it was read in His mind, while, with respect to the other derivation, it is not eternal, and under that sole aspect requires promulgation. If one objects that a law which does not bind does not deserve the name of law, he is met with the reply [of Alexander] in the Summa to the effect that it is sufficient for the nature of law that it should of itself have binding force, although in point of fact it may not yet be binding inasmuch as it has not yet been applied.

While this doctrine is perhaps true, it would not seem to solve the difficulty raised in the argument about promulgation; for [according to the said doctrine] either it must be asserted that promulgation is not necessary for the essence of law, but only for the effect thereof, which is to bind—a statement that seems contrary to the common definition of law; or, at least, an explanation is not given as to how the law in question may Edition: current; Page: [159] be a true law without promulgation. Indeed, with regard to the twofold etymology for the word ‘law’, which Alexander of Hales assumes, in the passage cited, I find in Isidore not both derivations, but only that based upon legendum; neither is the latter etymology [expounded by Isidore] in any metaphorical sense; on the contrary, it is understood in a sense that is strictly literal. However, the derivation of the term is not of any great importance; for in order that anything may be termed law in an absolute sense, it is not enough that it should be possible to apply the etymology of the word lex correctly to that thing.

9. The third reply based upon St. Thomas. In the third place, then, St. Thomas (I.–II, qu. 91, art. 1, ad 2), attempts to explain how an eternal promulgation has not been lacking to the law in question: for he says that promulgation may be made orally or in writing, and that law has received promulgation in both ways from God its promulgator, because both the word of God and the writing of the Book of Life12 are eternal.

Objection. However, some persons object, with respect to the first method of promulgation, that the utterance of the Word is not in itself required for the law of God, since the Word is personal and not essential, and because if it were essential, the Father alone would have promulgated this law and would have been the Legislator.

Against the second method of promulgation it is furthermore objected that writing has little to do with promulgation if we regard the divine knowledge, when that writing does not and cannot become known to those who are subject thereto. For promulgation should be made to those upon whom the law is imposed; whereas such writing could not have been read by any one from all eternity, nor was there any one in existence from eternity, for whom the law in question could have been promulgated.

Neither is the explanation of St. Thomas (ibid., ad 1) satisfactory, when he says that created beings existed at that time in the foreknowledge of God; for promulgation is made not to creatures foreknown as the objects of knowledge, but to those actually existing in themselves. Otherwise, the Edition: current; Page: [160] law of Moses and the law of grace would also have been promulgated from eternity, and would consequently be eternal law.

10. But the first objection is of little weight, because, in the first place, what St. Thomas says concerning promulgation in the Word may be understood in an applied13 sense and not in a literal one, just as ideas are said to be contained potentially in a word; and thus St. Thomas himself explains, for he duly maintains that, in so far as the essential concept of a term is concerned, it should be strictly interpreted. Then, in the second place, it is no part of the essence of law that it should be promulgated both orally and in writing; on the contrary, it is enough that what is written should be publicly made known. For the sake of the completeness and nicety of his doctrine, however, St. Thomas wishes to explain that both modes exist in God. Hence, it is not unfitting that one mode should be personal and the other, essential. Neither does it follow from this, that the Father alone is the Legislator or Promulgator, since the essential mode suffices in both cases.

To the other objection, St. Thomas replies implicitly [I.–II, qu. 91, art. 1, ad 2] by adding the limiting phrase that the law in question ‘has received promulgation, in so far as relates to God . . . but in so far as relates to the creature who hearkens or regards, promulgation of law cannot be eternal.’ Hence, his statement (ibid., ad 1) as to creatures foreknown from eternity does not indicate that, in his opinion, the existence of creatures as objects of [divine] knowledge from eternity suffices to constitute an eternal promulgation in so far as they are concerned; rather is it an assertion that, in so far as concerns God, a law could have been established from eternity by which future creatures were to be governed.

11. Actual promulgation is not of the essence of the eternal law. And from this exposition of the doctrine of St. Thomas, it is clearly inferred that, according to his belief, promulgation actually made to subjects is not of the essence of this eternal law, but that, on the contrary, it suffices that the law should already have been made on the part of the Legislator, to become effective at its own proper time. Alexander of Hales was, indeed, of the same opinion. And I also regard it as true. I may add that this Edition: current; Page: [161] circumstance is peculiar to the law under discussion, for that law may be regarded as consummate and perfected, for the very reason that it has been established in the mind of the Lawgiver; whereas other laws are not complete until they are actually promulgated. This argument may also be added, that the eternal decree of God is immutable and is, without any change on its part, of binding force at its own proper time; while the decree of man is changeable, wherefore, as long as it is not promulgated in the form of law, it has more the character of a proposal to enact a law than that of a law firmly established and enacted.

Hence, with respect to this eternal law, absolutely speaking, no other public promulgation is necessary to make it actually binding, beyond the requirement that it shall come to the notice of the subject. And therefore if, through an interior revelation, a decree of the divine will should be made known to us, this fact would suffice to give such a decree binding authority, which would not be true in the case of a human law. For although a [temporal] subject may know that a law has already been written out by the king, he is not bound thereby until it is promulgated.

Ordinarily, however, God does not bind men by the eternal law, save through the medium of a law which is external and which constitutes a participation in and manifestation of the eternal law. So it is that, when other laws are promulgated to men, the eternal law itself is at the same time externally promulgated. Accordingly, in the case of this law, in so far as it is eternal, its promulgation, properly speaking, has no place.

In the fourth argument, this question arises: whether the eternal law is to be ranked among the free, or among the necessary acts of God. But this matter will be more properly treated in Chapter Three.

CHAPTER II: What Is the Immediate Subject-Matter of the Eternal Law? Or, What Actions Are Commanded or Governed by That Law?

1. We have said that the eternal law exists; consequently, we must explain what that law is.

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However, since every law is the standard of certain acts that it regards as the material and object of which it properly treats, this point also must be taken into consideration in connexion with the eternal law. Hence, in order to make clear the nature of the eternal law, it is well that we should first set forth the subject-matter with which it deals; for this matter bears the relation of object to it, and every act is properly explained in terms of its object.

Now, there are three orders or kinds of acts in connexion with which a doubt may occur as to whether or not they are regulated by the law in question. The first and highest order comprises certain acts of God Himself which are immanent in Him, that is to say, the free acts of the divine will. The second and lowest order comprises the acts of the inferior natural agents which are devoid of reason. The third consists of the free acts of rational creatures.

We shall speak briefly of each of these classes.

2. Whether the eternal law is the rule of the immanent acts of God. The negative solution. In the first place, then, a doubt may be raised as to whether the eternal law is the rule of the immanent acts of God.

In order to separate what is certain from what is uncertain, we assume that the acts of the divine intellect and will—in so far as they regard God Himself and have no relation to His creatures, as these are destined to exist in the future—do not fall under the eternal law and are not regulated by it. This is the opinion of St. Thomas (I.–II, qu. 93, art. 4), as well as of Alexander of Hales [Summa Universae Theologiae, Pt. III, qu. xxvi, membrum 1], and all the Doctors, who postulate the existence of this law on the ground that divine providence exists, thus maintaining that providence almost coincides with the law in question. Divine providence, however, relates to the works of God, and not to God as He is in Himself. Therefore, the eternal generation of the Son of God, or the procession of the Holy Spirit,1 does not come under that law; for they are altogether natural, and are not due to any direction or impulse proceeding from a Edition: current; Page: [163] dictate of the [divine] reason or from an exercise of the [divine] will, an impulse which would pertain to the nature of the law. In accordance with the same reasoning, the love with which God loves Himself has its source not in the eternal law, but in [His own] nature. However, the reason for all this is that the law does not relate to matters which are essentially and intrinsically necessary, for these matters require no rule, since they intrinsically possess a definite mode of existence, and are, of themselves, right.

Whether the eternal law is a rule governing the free acts of God, operating externally. Therefore, the difficulty has to do only with the free acts which are in God; and which, in so far as they are free, may be called moral, although, in so far as they operate externally, they may be said to relate to art [rather than to morals].

3. It may, then, be asserted, or conceived, that the eternal law is the measure and rule of the free acts of God, in both of these aspects.

First, [those acts are so regulated] in so far as they are moral and righteous; for they are ruled by the divine reason as by a natural law of God Himself.

The proof of this statement is that God always acts according to right reason, not the reason of another, but His own; and therefore, the rectitude of the free acts of God’s will is measured by the judgment of His own intellect, because, according to the logical order, the judgment is prior to the act which it is judged necessary to perform; hence, the judgment in question, in its relation to the divine will, has the nature of eternal law. This argument may be confirmed and made clear by means of certain examples. For if God speaks, He speaks truth, since lying is evil in His judgment; and if He promises, He fulfils, because He judges that fidelity is right and in harmony with His own nature; and for the same reason He takes pleasure in that which is morally right, while sinful acts are displeasing to Him, for right reason dictates that this should be so. Therefore, in His own moral acts, He is led by His eternal reason as by law. So it is that, to this extent, the eternal law has been imposed on God Himself, in so far as relates to the moral acts of His will and the righteous character of those acts.

4. With respect to the second aspect [the same relationship] may be discerned. The eternal law may be conceived of as one which God as an Artificer has imposed upon Himself, that He may perform His works in Edition: current; Page: [164] accordance with it. For God, although He might have made and ruled the world in any one of various ways, has determined to constitute and govern it according to a certain definite law. Thus, for example, He has determined to establish the elements and the heavenly bodies after a certain order, and to confine the waters within certain places. So also He has determined to visit sins with corresponding punishments, to give rewards, on the other hand, for meritorious conduct, and to govern the world by certain specific laws. Therefore, in the light of this reasoning, it may properly be said, that the eternal law applies to God’s works as they come from Him in the capacity of supreme Artificer and Governor; and that consequently it applies directly to the free acts of God’s will, from which all such works directly issue. The foregoing argument is confirmed by the fact that on this account it is said that God cannot perform certain acts by the ordinary law, that is, by the law which He has imposed upon Himself, or that He cannot perform them according to His regulated power,2 that is, according to the power reduced to a definite order through this same law, a point which Scotus has noted (on the Sentences, Bk. I, dist. xliv, only qu.). Therefore, if God should set free from hell any one of those who had died in mortal sin, it would be said that He was making use of His power to grant dispensations, and not that He was acting in accordance with the established law. Hence, the free works of God are ruled by a law set up by God Himself. Neither does it seem unfitting that the same will should be a law to itself with respect to acts that are distinct in their nature. For the will can issue commands to itself, and the lawgiver can be bound by his own law.

5. I assume from what has been said in the preceding Book, that law, properly understood, is the rule of moral actions, in so far as their rectitude is concerned; but that the term ‘law’ may also be used, at times, with reference to the rules of art or of some form of government. In either sense, then, the eternal law may be termed law; and, consequently, we may make reply to the question in hand, in either sense.

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The first proposition: The eternal law is not a rule of divine acts, in so far as they are moral. Therefore, I hold in the first place, that the eternal law as a rule of free and upright conduct should not be understood as being imposed upon God Himself; nor should the divine will be conceived of as good and upright because of conformity to the eternal law, as though it were subject thereto. St. Thomas (I.- II, qu. 93, art. 4, ad 1) and Alexander of Hales (Summa Universae Theologiae, Pt. III, qu. xxvi, memb. 8, art. 1) held this view; and Anselm (Cur Deus Homo, Bk. I, chap. xii) was of the same opinion, saying that God is entirely free from law, so that what He wills is just and fitting; and that, furthermore, what is unjust and unfitting does not fall within the scope of His will, not because of any law [prohibiting it from so doing], but because such matters have no relationship with His freedom.

6. This first proposition is explained by the fact that such a law must needs be understood as being either positive or natural; but it cannot be understood as existing in either way; therefore [that law cannot be in existence]. The first part of the minor premiss is proved as follows: a positive law is one which is established by the free will of some one able to command, and to lay an obligation by his precept or will upon the being on whom the law is imposed; but God has no superior, neither can He bind Himself through precept or law, for He is not superior to Himself; therefore, He can in no way be subject to positive law.

This argument is confirmed by the fact that in relation to God, nothing is evil on the ground that it is prohibited, whether as an act of commission or as one of omission; for howsoever strong a prohibition may conceivably exist with respect to a given act, if God moves in opposition to that prohibition, the act will be good, since it will proceed from the primary standard of goodness; and, therefore, positive law in relation to upright conduct has no application to the divine will. Hence, notwithstanding any law whatsoever made by Himself for the government of Creation, God may disregard that law, making use of His absolute power, as in the distribution of rewards or punishments, and so forth; because He is not bound to the observance of law. For He is Sovereign Lord and not confined within any order; so that He is not to be compared with any human legislator, the latter being a part of his own community, whatever may be the way in which the human lawgiver is bound by his own law. But if, apart from any general law, God Edition: current; Page: [166] makes a promise, He is indeed bound to keep that promise, not because of positive law, but because of the natural rectitude which, by virtue of the promise, attends its fulfilment. The matter of whether or not natural law intervenes, in this obligation, will be discussed below.

7. Objection. One may object that if God, after decreeing absolutely that something is not to be done, should then do the same, He would act improperly, and that it is, therefore, impossible for Him to commit an act so prohibited. Consequently, a free decree of God has the force of positive law with respect to His will, since He cannot righteously do that which in itself and apart from His decree, He might freely have done.

Solution. I reply that God is unable to act in opposition to His own decree, not on account of any prohibition which the decree carries with it, but on account of the repugnant nature of that act itself; for if He should move in opposition to an absolute decree, there would be in existence, at the same time and from eternity, contrary decrees about the same thing and with respect to the same point of time; that is to say, He would have willed absolutely two contradictories, a conception which is repugnant to reason. Moreover, He would [, under such circumstances,] be acting against the efficacy of His own will and rendering it ineffective and inconstant, which is also repugnant to reason. Hence, it must further be said that, granted that it implies not a physical contradiction (so to speak), but solely a moral one, for God to change His decree, and further, granted that once He has made a decree, it is contrary to due order that He should act in opposition thereto, nevertheless, these facts result not from any prohibition but from the intrinsic nature and essence of God; a point of which we shall presently speak in discussing [His] truthfulness, [His] fidelity, and similar matters. For just as it is unfitting that divinity should deceive, even so it is unfitting that divinity should be inconstant. Thus, His inability to will in opposition to His own decree arises, not from any prohibition, but from the nature of the case, if we suppose some object to have been placed in such a position [as to be contrary to a divine decree].

8. Why an active dictate of God as to what must be done, has not the nature of law in relation to Himself. The latter half of the minor premiss,3 which Edition: current; Page: [167] concerned natural law, is proved thus: although it cannot be denied that in the divine intellect the first place is taken, in the logical order, by the active dictates whereby God judges what is worthy of His goodness, justice, or wisdom—as He does in the following: ‘One may not lie; promises must be fulfilled’—nevertheless, in relation to the divine will these active dictates cannot have the nature of law. This is true, first, because they do not lay down any precept, or make known the will of any being, but simply reveal the fact, by indicating what the nature of the case determines, whereas law is either the will or the intimation of the will; therefore, . . . Secondly, in God reason and will are not, in point of fact, distinguished, wherefore St. Thomas (I.–II, qu. 93, art. 4, ad 1) has said, that the will of God regarded as such, cannot rightly be called rational, for it is rather reason itself; therefore, just as the eternal reason of God is not regulated by law, neither is His will so regulated, even with respect to its free acts, being, on the contrary, righteous in itself, as His reason is essentially righteous.

St. Thomas, again (in Pt. I, qu. 21, art. 1, ad 2), must be interpreted thus, when he says: ‘It is impossible for God to will anything other than that which is approved by the rule of His wisdom. This rule is, as it were, the law of justice, according to which His will is right and just.’ For the expression, ‘as it were’ (sicut), indicates a reference not to the true nature of law, but only to a certain analogy and proportion, and in order to explain this point, St. Thomas adds [ibid.]: ‘Hence what He does according to His will He does justly, as we also do justly whatever we do according to law; but we, indeed, act in accordance with the law of some superior; whereas God is a law unto Himself.’ That is, He is righteous in Himself, apart from law, as if He were a law unto Himself.

Finally, the foregoing may be explained on the ground that the judgment of reason is necessary to God, solely because nothing can be willed unless foreknown; nevertheless, [this judgment] has not the office of (as it were) binding or determining His will; on the contrary, His will is in itself right and good, and consequently the dictate of reason, which is understood to take logical precedence in the intellect, cannot, in relation to the divine will, possess the nature of true law. It may be objected that, even if [this rule of reason] cannot be called coercive law, it can be described as a directive law indicating the propriety or goodness of the end in view. My Edition: current; Page: [168] reply is that this description does not suffice for a moral law, a fact which is evident from what has been said above and which will be more fully explained in the later passages on natural law. Moreover, a metaphorical way of speaking is clearly not permissible, unless sanctioned by usage.

9. The second proposition: The eternal law may be called a law of action in regard to the things governed but not in relation to God Himself. I hold in the second place, that the eternal law, since it is a law of government or (so to speak) of operation by an artificer, may be said to have the nature of law in regard to the things governed, but not in relation to God Himself or His will. This is the opinion expressed by St. Thomas (I.–II, qu. 93, art. 4, ad 1), and also by Vincent de Beauvais in Speculum Morale (Bk. I, pt. ii, dist. i). It may be expounded first by means of examples. For God, in laying down any law—as, for instance, the rule that in accordance with His judgment, a certain good work should have a certain reward, and a given sin, a given punishment—thus brings it about that the doer of good shall be worthy of that particular reward, and that the sinner shall be liable to that particular punishment; so that the things themselves which are to be governed do straightway become subject to the law in question. But God is not subject to it; on the contrary, He remains always exempt from law, so that He is able to act as He wills; and in the natural order the same situation exists.

The opinion in question may also be expounded by reasoning, as follows: when God framed the eternal law with respect to the government of His creatures, He ordained this law as applying to those creatures themselves, that they might be directed in accordance with it; but He did not impose the law upon Himself, in such a way that He should be compelled to govern thereby. Moreover, law in the proper sense of the term is the regulation of an inferior by a superior, through the direct command of the latter. But if this definition is extended and applied in a metaphorical sense, a due proportion should always be observed, in such a way that the term still refers to the action of a superior upon something under his authority. Therefore the rational principle inherent in divine providence partakes, in accordance with this proportion, of the nature and name of law, a fact which will be made more evident in the following section.

10. Whether irrational and inanimate creatures are subject to the eternal law. Secondly, a question may be raised as to whether all created things, Edition: current; Page: [169] even those which are irrational or inanimate, and which perform their actions not freely, but from natural necessity, are included under the head of this eternal law.

The reason for raising such a question may be that St. Thomas (I.–II, qu. 93, arts. 4 and 5) favours the inclusion under that law of necessary actions of creatures, an opinion derived from Augustine (On Free Will, Bk. I, chaps. v and vi), who declares that the eternal law is reason dwelling within the mind of God, whereby all things are directed to their proper ends, through means in harmony with these ends. Furthermore, in another work (De Diversis Quaestionibus LXXXIII, Qu. xxvii), Augustine says: ‘An immutable law governs all mutable things, in a most beautiful manner.’

Argument for the affirmative. Moreover, in defence of this view, one may argue thus: just as our will controls our bodily members and imposes upon them, by its command, the necessity of action, even so the divine will governs all created things and imposes necessity upon them, according to the varying capacity of each of these things, and in agreement with the words of the Old Testament (Psalms, cxlviii [, v. 6]: ‘He hath made a decree, and it shall not pass away’; and again (Proverbs, Chap. viii [, v. 29]), ‘and set a law to the waters that they should not pass their limits’, this latter passage being expounded in Job (Chap. xxxviii [, v. 11]) as follows: ‘I said, hitherto thou shalt come, and shalt go no further, and here thou shalt break thy swelling waves.’ For these laws, although given in time, had their source in the eternal law.

11. Argument for the negative. But, on the other hand, it may be argued that no irrational nature is capable of [subjection to] law in the proper sense of that word, as Augustine has expressly declared (on Leviticus, Qu. 74 [Questions on Heptateuch, Bk. III, qu. 74], and this is stated in Decretum, Pt. II, causa xv, qu. i, can. iv). The same argument may be drawn from the words of Paul, in i Corinthians (Chap. ix [, v. 9]), wherein he refers to the law, ‘Thou shalt not muzzle the mouth of the ox that treadeth out the corn’, and adds: ‘Doth God take care for oxen?’ ‘Care’, that is, involving the imposition of a law. For divine providence, in a general sense, is concerned even with irrational creatures, a fact which is not to be doubted, but such care as is specifically provided through laws, is peculiarly directed toward intellectual beings. Consequently, Paul adds Edition: current; Page: [170] that the law in question was written for the sake of men, since the labourer should not be deprived of his hire.

One may also resort to logical reasoning, as follows: law, of its nature, involves a bond or moral obligation; and only intellectual creatures are capable of bearing such an obligation; neither are they thus capable with respect to all their actions, but only when they act freely, since all morality depends upon liberty.

12. Solution of the question. I reply briefly, that the problem concerns a mode of speaking; and that, nevertheless, if we examine the phrase of Augustine, who is the foremost author treating of eternal law, it will be seen that he included under this term all things, natural as well as moral. For he wished while using the term to explain the efficacy of divine providence, in relation not only to free actions, but to natural actions as well, and to the whole order of the universe; that is, he wished to explain in what way all things are subject to divine government and obey that government, in accordance with its efficacious power. This intention is evident from various previously cited passages in the works of Augustine (On Free Will, Bk. I, chap. vi, and On the City of God, Bk. V, chap. xi; Bk. IX, chap. xxii), in which he says that there is nothing in the universe not subject to the laws of divine providence; that the holy angels foresee temporal changes in the eternal and immutable laws of God, existing in His wisdom; and later (Bk. XIX, chap. xii), that, ‘Nothing is exempt from the laws of the Supreme Creator and Governor, by Whom the peace of the universe is administered.’4

13. However, I think that two analogous concepts (as it were) are comprehended under this general acceptation of the term ‘eternal law’. One concept is derived from the idea of law, since that law whereby God is said to govern natural or irrational things, is metaphorically called a law or precept. The other connotes a relation to the creatures themselves, and complements the first concept; for the subordination and subjection of irrational creatures to God is but loosely and metaphorically called obedience, since it is more properly a kind of natural necessity; while, on the other hand, the eternal law, in so far as rational beings are thereby governed as moral beings and as members of society, has the true nature of Edition: current; Page: [171] law, and obedience in the true sense is paid to it. It is in this latter acceptation, as I have remarked above,5 that the expression, ‘eternal law’ should be considered, in the present discussion; so that, using the term strictly, we shall not extend its application to irrational objects.

14. Whether all human actions are the proper subject-matter of eternal law. A further inquiry may be made, as to whether all moral or human actions are the subject-matter of this eternal law. There can, indeed, be no doubt in so far as evil actions are concerned, for they are all forbidden by the law in question, as we have pointed out above.6 With respect to actions morally indifferent, however, there is some doubt, since they are neither forbidden nor prescribed, and consequently do not seem to be the subject-matter of any law in the mind of God. As great or even greater doubt exists concerning good works which are not necessary to [the ultimate] end [of man], but are more excellent [than their alternatives]. For this reason, some authors say that the eternal law, strictly interpreted as a command, does not apply to such works; but that they are included under the more general conception of that law, inasmuch as it embraces any disposition whatsoever made by the [divine] Ruler, including permission and counsel. For permission is applicable to the indifferent actions and counsel to those actions which are more excellent [than their alternatives].

15. However, it may be asserted in an absolute sense, that all moral actions in some way come under the eternal law, even when the latter is conceived of in its strictly preceptive character.

This assertion may be expounded by means of a certain distinction pointed out above, the distinction between a law enjoining the performance of some action and one laying down specifications and enjoining a given mode of performance with regard to that action. Accordingly, we hold that the acts in question are the [proper] subject-matter of eternal law, whether the latter commands their performance, prescribes a particular mode of acting, or prohibits some other mode.

[The foregoing] may be elucidated as follows: in the first place, in so far as concerns the good or best actions, there is, according to St. Augustine, Edition: current; Page: [172] almost no deed that is the subject-matter of counsel, which, in the preparation of the soul, might not also be the subject-matter of precept, if that deed be necessary to the glory of God. This is especially true in relation to the eternal law, through which God binds man so that the latter shall be prepared to perform all such deeds, if God Himself should so will, or if they should be necessary for some other reason. Just as marriage—although it is not a deed enjoined by counsel, but one of the lesser goods, neither is it, as a general rule, a deed enjoined by precept—falls nevertheless by natural law, under the head of a bounden duty when it is necessary for the preservation of the race, in which case it comes under the eternal law as well. In this sense, then, there is no good action which does not come under the eternal law in its preceptive character. Moreover, when the performance of such actions is not necessary, though they may seem to be advised or approved, a mode of performance is nevertheless prescribed by the eternal law, and this mode must be observed, if the actions are to be executed aright. Accordingly, we say that they come under a preceptive law which relates to their mode of performance, that is to say, one which specifies that mode. The same statements are clearly true with respect to indifferent actions. For it is commanded that, if they are performed, they must be performed for the sake of a good end, and it is forbidden that they be executed for their own sake; so that, if they are regarded strictly as indifferent acts, they may be said to come under the eternal law in its prohibitive character, according to a very credible opinion of St. Thomas [I.–II, qu. 18, art. 9] to the effect that there is no such thing as a human action indifferent in the concrete.7 Thus, in relation to the actions under discussion, the eternal law may be interpreted as containing two precepts: one concerning their performance for the sake of a good and proper end, if they are actually performed; another forbidding their performance for their own sake, as, for example, idle words are prohibited.

16. In what sense Augustine has asserted that nothing can escape the sway of the eternal law. Thus we may understand, at last, in what sense there is Edition: current; Page: [173] truth in the assertion of Augustine, made in the passages cited above8 and frequently repeated elsewhere, namely: that there is nothing which can entirely escape the sway of the eternal law, whether in heaven, on earth, or in hell, whether in sinning or in acting righteously. For although a man may in sinning act contrary to one eternal law of God, he comes [through that very deed] under another law which prescribes that one must pay by suffering, in exact proportion to the defect in his act. So St. Thomas has held (ibid., qu. 93, art. 6); and Augustine (De Catechizandis Rudibus, Chap. xviii [, no. 30]), also, saying: ‘God knoweth how to govern spirits9 that forsake Him, and out of their just misery, to rule the lower parts of His Creation with the laws, most fitting and harmonious, of His wondrous dispensation.’ Another remark of Augustine (Confessions, Bk. I, chap. xii) also bears upon this point: ‘For it is even as Thou hast ordered, O Lord, that every sinful affection shall be its own punishment.’10 Indeed, if the matter is duly considered, that law which is fulfilled in the wicked by punishment, and in the righteous by reward, has no reference to a preceptive law governing moral actions on the part of intellectual creation, but is a mensurative law (so to speak) relating to the rewards and punishments in question, and brought through the efficacy of divine providence to the desired end.

CHAPTER III: Is the Eternal Law an Act of the Divine Mind, Differing in Concept from Other Laws; and Is This Law One, or Manifold?

1. From our previous discussion it is evident that the eternal law dwells within the divine mind, since outside it nothing is eternal. It is likewise evident that it exists in the form of a second and ultimate actuality.1 For Edition: current; Page: [174] law, in so far as it dwells in the lawgiver, consists in an act of this kind, and not by way of a habit, or first actuality, and this is especially so in God, Who is a pure act in the highest degree.2

One may ask then whether this law resides in His intellect or in His will; for Augustine (Against Faustus, Bk. XXII, chap. xxvii) seems to have left that point undecided and ambiguous, saying: ‘The eternal law is the divine reason, or the will of God, commanding the preservation of the natural order, and forbidding its violation.’

2. Whether the eternal law is a free or necessary act of God. The opinion of some who confound ideas with the eternal law. However, before replying to this latter question we inquire further whether the eternal law implies a free or a necessary act in God. For some say that it is solely divine ideas, whereby the external world is produced; because these persons think, not that the law in question has the function of commanding, but merely that it is a rule in accordance with which God makes all things. Upon this opinion, the conclusion would seem to follow, that just as the ideas exist in the divine intellect by natural necessity, and not freely, so does the eternal law necessarily exist.

3. Solution: The eternal law exists in a free act of God. It must be asserted, however, that the eternal law involves not a necessary, but a free act of God. This is the view held by St. Thomas, by Alexander of Hales, and by other authorities, in the passages cited.

The same conclusion may be deduced from the words which we have just quoted from Augustine; for the eternal law has as its subject-matter the external works of God, since He commands that the natural order be observed and forbids that it be violated, and since the natural order does not exist, save in created things; and therefore, just as these works are freely created, so does the eternal law involve a free relationship.

This argument is confirmed by the fact that no law can exist save in relation to what must be ruled thereby; and the eternal law, as has been said, is not imposed upon God or upon the Divine persons; so that it exists for the sake of created things, and therefore implies a free relation towards Edition: current; Page: [175] them. Thus it is that St. Thomas (I.–II, qu. 91, art. 1, ad 1) says: ‘The eternal concept of the divine mind has the character of eternal law, in so far as it is ordained by God for the government of things foreknown by Him.’3

Wherefore, as regards the above-mentioned doctrine of ideas, it may be denied, in the first place, that the eternal law, as law, partakes of the character of ideas; for an idea is set up as a principle of operation on the part of the artificer himself, rather than in the form of a command or impulse, relating to the thing which is to be produced in conformity with the idea; and so it is more probable that law and idea differ from each other in their concepts, a point which will be better established by our later discussion.

The difference between ideas and exemplars. Secondly, indeed, we must add that even if one follows the doctrine in question, it is more appropriate to say that ideas, not in themselves, but considered as exemplars, have the nature of eternal law. For ideas differ from exemplars in that ideas are wholly natural in God, so that they concern even those things the existence of which is [merely] potential; whereas exemplars involve a free relation, since they connote a causality in some sense actual, in such wise that something is or will be done in imitation of them. Thus it is that law may involve an idea in the sense described above, but not in the sense in which it is absolutely necessary.

4. The eternal law comprehends or requires an act of the divine will. Therefore, the conclusion with regard to the first doubt is, that the eternal law necessarily includes or postulates an act of the divine will; since freedom, even the freedom of God, is formally in the divine will, and the eternal law is a free principle residing in God, wherefore it includes [an act of His] will. For this reason, it is true, even with respect to the eternal law, that, as we said above, no law as such is absolutely necessary; for the eternal law itself, in so far as it is a freely established law, is not absolutely necessary. Nor is this fact inconsistent with its eternal character, for within God, even that which is free may be eternal. Neither is it opposed to the immutability of the eternal law, since the free decrees [thereof] are also immutable.

5. From the foregoing, another conclusion may be drawn, namely, that the eternal law does not consist in acts of the divine intellect, in the sense Edition: current; Page: [176] that those acts precede, in our concept of them, the free decrees of God. The proof of this conclusion is the fact that in the said acts, as such, there is no freedom, and consequently, no law. For this reason, also, neither providence nor predestination is conceived of as existing in the divine intellect, before any free decree of God’s will, for both providence and predestination connote free acts; and, therefore, the eternal law may not be thought of as existing within the divine intellect, as such.

Objection. But one may object that within the divine intellect, as so conceived, there are contained dictates of the natural law; for example: ‘Lying is forbidden’; ‘Promises must be kept’; ‘Evil deeds must be punished’; and the like. Hence, with respect to these dictates, at least, the eternal law exists within the divine intellect prior to any act of God’s will. This, then, was apparently the light in which the eternal law was viewed by Cicero (Laws, Bk. II [, chap. iv, § 8]) and other philosophers treating of the same.

Solution. Nevertheless, our reply is that if the dictates in question are considered in relation to the divine will itself, that is, in so far as they give expression to those things which are to be willed by God Himself, as such, then the said dictates do not possess the character of law, as we have already pointed out; and if, on the other hand, they are considered in relation to the created will, in so far as they declare what is to be done, or what is to be avoided, by that will, then again, they have not the nature of law until the divine will is superadded to them, since they are not commands, nor do they have any actual effects, being (so to speak) a speculative knowledge of the acts in question, as we shall explain below, in treating of the natural law.4

6. The eternal law consists formally in a free decree of God, Who lays down the order to be observed in the [separate] parts of the universe, with respect to the common good. Secondly, one may conclude from the above, that it is quite legitimate to assert that the eternal law is a free decree of the will of God, Who lays down the order to be observed: either generally, by the separate parts of the universe with respect to the common good (whether this decree be immediately congruous to common welfare, in relation to Edition: current; Page: [177] the universe as a whole, or whether it be thus congruous, at least, in relation to the individual species thereof); or else specifically, by intellectual creatures in their free actions.

This assertion may be proved, first, by what we have said in the Fifth Chapter of the preceding Book. Secondly, we may find support also in the opinion of Joannes Damascenus (De Fide Orthodoxa, Bk. II, chap. xii), as expressed in the passage wherein he refers to the view of Gregory Nazianzen (Orations, ii: De Paschate [Orations, xxxviii: In Theophania]), who says that after the creation of the spiritual and the physical worlds, it was necessary to create a being composed of both elements. To this he adds: ‘However, by the word “necessary” (Oportebat) I refer simply to the will of the Creator. For no law or sanction [more] fitting than this can be imagined or devised, &c.’5 The remark of Augustine (On the City of God, Bk. II, chap. xix) is also to the point: ‘In the heavenly and the angelic court, the will of God is law.’6 His will, then, is the eternal law of the entire universe, although it is especially assigned to the heavenly court, because there God’s will is known as it is in itself, and because it is the first and proximate rule of action for all the blessed.

7. Furthermore, as for the manner in which God is said to command irrational creatures, He does so not through His intellect, but proximately and immediately through His will; for he rules these creatures not by words but by acts, and He works more directly through His will than through His intellect, as I assume from what has been said in the first part.7 Therefore the eternal law, in so far as it is concerned with these lower creatures, is rightly thought of as residing in the will of God, Who ordains that to each of them shall be given its particular nature, tendency, Edition: current; Page: [178] and place. Thus, for example, that law which is spoken of in Proverbs (Chap. viii [, v. 29]) as follows: ‘And [He] set a law to the waters that they should not pass their limits’, when considered as temporal and as established outside of God, is nothing other than the natural tendency imparted to the water and causing it to remain so quietly in its own place that it does not rise upward, but is confined by the bounds of its nature. Such is the meaning to be drawn from Job (Chap. xxxviii [, v. 8]) and from the Psalms (ciii [, vv. 6–9]). This law, then, as it exists in eternity in the mind of God, is none other than God’s will, whereby He has decreed that the waters shall be set in a particular place and endowed with a particular tendency, so that they shall not transgress the bounds prescribed to them; and the same conclusion applies to other [precepts of this sort].

Therefore the eternal law, when metaphorically conceived (so to speak) in relation to merely natural and irrational creatures, is rightly established in the will of God.

8. Moreover, the same is true of that eternal law in so far as it has ordained that a given thing shall be done with respect to intellectual creatures without their free co-operation: as in the case either of those acts which are natural and which such creatures therefore perform by a necessity of nature; or those which God works in the said creatures without their free co-operation, as when He creates, illuminates, calls, or in some other similar way provides for them, or even when He rewards or punishes them. Again, if the eternal law be thought of as having the true nature of law, in relation to the moral obligation of intellectual creatures, then it is the eternal will of God, according to which rational wills must operate, if they are to be virtuous. For, as Augustine (De Diversis Quaestionibus LXXXIII, Qu. xxvii) has said, ‘Only when we will virtuously, do we act according to law; and in other acts, we are acted upon according to law; for the law itself remains unchangeable’, &c. Accordingly, we may apply at this point the general remarks made with respect to the same opinion, in the Fifth Chapter of the preceding Book.

9. In what act of the intellect the eternal law must be placed, if it formally consists in acts of the intellect. However, if any one should wish, in the light of those remarks, to consider the eternal law as existing in the divine intellect, it would not be difficult to explain that [conception of it also].

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Such a person must, however, regard that law as residing within the divine intellect subsequently, in the logical order, to the aforesaid decree of God’s will. For it cannot be denied that this decree constitutes (so to speak) the very soul and virtue of the law in question, and that from it is derived all the power [of the law] to bind or impart an inclination effectively. Nevertheless, assuming the existence of the decree, one may conceive that knowledge of it exists in the mind of God, a knowledge which follows upon the decree itself, and that by reason of the said decree the divine intellect thereupon passes precise judgment, as to what course must be taken in the government of created things; so that this intellect preconceives within itself the law which is to be prescribed in due season for each one of those things. It is thus that I understand the following passage from St. Thomas (I.–II, qu. 92 [qu. 91], art. 1, ad 1): ‘The eternal concept of God, whereby He ordains that which relates to the government of things foreknown by Him, is the eternal law of God.’8 For this ordination is none other than the decree of the [divine] will which we have discussed, and which, being known by the [divine] intellect, determines it in governing created things according to such a principle or law. Furthermore, perhaps because both [the divine intellect and the divine will] concur in making law, and both forces, each in its own way, are true in a proper sense, the two terms have been employed disjunctively by Augustine (Against Faustus [Bk. XXII, chap. xxvii]).

10. On the distinction between the eternal law of God and His ideas. In the third place, from the foregoing it is sufficiently manifest in what respects the eternal law is distinguished conceptually from the [divine] ideas.

For if that law consists in a decree of the [divine] will, the distinction in question is evident; since an idea certainly resides in the intellect.

If, on the other hand, we are speaking of the eternal law as it exists in God’s intellect, and especially if we speak of ideas as exemplars, there is no distinction, according to some authorities. Nevertheless, St. Thomas (I.–II, qu. 93, art. 1, ad 1) expressly distinguishes between the two, and according to his teaching, the distinction may be explained in various ways, as follows. First, ideas are properly concerned with the creation or production of things; Edition: current; Page: [180] whereas law is concerned with their government, as St. Thomas declared in the passage quoted above; wherefore, just as ideas are to be distinguished from providence, so they must also be distinguished from the eternal law. Secondly, the true difference seems to have been implied above, namely, that an idea has only the character of an exemplar in relation to God Himself, so that He works in accordance with it, while it serves (so to speak) merely as a concrete pattern for the works of God; whereas the divine law as law has rather a dynamic character, giving rise to an inclination or obligation to action; and these diverse characteristics are entirely sufficient to constitute a conceptual distinction. Finally, from the foregoing it is clear that law as such is imposed upon subjects, that is to say, upon inferiors: for law ordains how things in subjection shall operate, each according to its own mode; whereas an idea is not properly imposed upon the thing represented in it, but is rather fixed formally [that is, as an idea] in the mind of the artificer, so that he may work in accordance with it; hence, the distinction is clear.

11. On the distinction between the eternal law of God and His providence. Fourthly, one may furthermore perceive from the foregoing remarks the respects in which the eternal law is distinguished from providence. With regard to providence, also, there is wont to be doubt as to whether it resides in the intellect or in the will, since it includes acts on the part of both. Therefore, in order that providence and law may be compared, they should be examined in relation to each other, with due regard for proportion, that is to say, in so far as each resides in will or each in intellect; so that they seem not to be mutually distinct, even conceptually. For providence is the principle of the government of all things, a principle existing from eternity in the divine mind; and this very principle is the eternal law in its general connotation, as may be inferred from the words of St. Thomas (ibid., qu. 92, art. 2, ad 1 [qu. 91, art. 1, Corp.]); hence, providence and the eternal law apparently are not to be distinguished as two attributes, but are the same thing, receiving different names under different aspects. And if, on the other hand, the eternal law is to be interpreted, not in this broad sense, but in its restricted and proper sense, as concerned with intellectual creatures, and properly binding upon them, then, [even] when so interpreted, it will constitute a part (so to speak) of divine providence. For it is the work of the providence of God to lay down laws for rational Edition: current; Page: [181] creatures; indeed, providence is rather a special and peculiar form of moral government, appropriate to those intellectual natures for whom God has a special care, as Paul has indicated (1 Corinthians, Chap. ix [, vv. 9–10]). And, therefore, the eternal law will always coincide with providence, if the two are compared in due proportion. So St. Thomas seems to hold [I.–II, qu. 91, art. 1, Corp. and qu. 93, arts. 1 and 4], with regard to the eternal law and providence, as does Alexander of Hales (Summa Universae Theologiae, Pt. III, qu. xxvi, memb. 1); and Augustine ([Against Faustus, Bk. XXII, chap. xxvii] and On the True Religion, Chap. xxx, at the end, and Chap. xxxi, at the beginning, and De Diversis Quaestionibus LXXXIII, Qu. xxvii) favours the same opinion.

12. Solution. Nevertheless, St. Thomas (De Veritate, Qu. 5, art. 1, ad 6) distinguishes the eternal law from providence, saying: ‘Providence [ . . . ] signifies, not the eternal law, but something consequent upon the eternal law’; and in expounding this assertion, he adds that the eternal law is to be referred to providence, as a general principle is referred to particular conclusions or actions; even as, with us, first principles of practice are referred to prudence. Thus he explains that the acts or effects of divine providence are to be attributed to the eternal law as to a source whence they proceed, and not as to a proximate dictate concerning the specific execution of particular deeds.

A more complete explanation of this view may be given as follows: the divine reason, in so far as it has the nature of law, establishes general rules, as it were, in accordance with which all things should be actuated and should operate; whereas providence makes specific disposition of particular things and acts, and is consequently the principle (so to speak) according to which the law is executed and applied. This explanation seems to be in harmony with the literal meaning of the terms themselves; for lex implies ius, which has been established in general, as we have observed above,9 while providence implies the care which should be taken with respect to particular acts.

13. On the effects of the eternal law. Fifthly, the effects of the eternal law may incidentally be deduced from the foregoing, by comparison with the Edition: current; Page: [182] effects of providence. For it is often asked whether the eternal law produces all the effects which providence produces.

In this comparison, the eternal law must be conceived of in all its amplitude. For if it is conceived of in a narrow sense, as law that, strictly speaking, lays down moral commands for intellectual creatures, then it is clear that not all the effects of providence, but only the morally good acts, are [likewise] effects of the eternal law; because the natural effects [produced by providence] do not emanate from the eternal law regarded in this aspect. Morally good acts, however, are truly effects of this law, since the law of itself incites to them and supplies the obligation to perform them. On the other hand, morally evil acts, in so far as they are evil, are not the effects of the eternal law, although they are the subject-matter of this law, which prohibits them; just as such evil acts are not effects of providence, because they are not effects due to God, if we regard His providence, although they are indeed the subject-matter of His providence, both in so far as the very prohibition [against evil acts] is a part or principle (so to speak) of divine providence, according to St. Thomas’s way of speaking, and also, in so far as the acts in question are permitted, or punished, or regulated to some good end, by divine providence. Thus, although sin as such is not essentially derived from the eternal law nor in harmony with it, but, on the contrary, opposed thereto, yet in its material aspect it is derived from this law, whereby God has willed to co-operate with His creatures;10 and furthermore, punishment of sin also proceeds from the eternal law. Thus, as Augustine (Enchiridion, Chap. c) says with respect to those who sin, ‘In so far as they themselves are concerned, they have done what God willed not to be done; but in so far as relates to God’s omnipotence, they have in no wise been able to accomplish such a deed,11 for through the very fact that they acted in opposition to God’s will, His will concerning them was done.’ Augustine (Confessions, Bk. IV, chap. ix) speaks of the sinner, again, in the same strain, as follows: ‘And he who Edition: current; Page: [183] forsaketh Thee, whither goeth he, or whither fleeth he, save from Thee well pleased, to Thee who art angry? For where doth he not find Thy law in his punishment?’12

14. In speaking of the eternal law in its widest sense, however, it may be said that all the effects of providence are, in some manner, effects of the eternal law; since all the governmental force of divine providence is contained in principle (as it were) within the eternal law, and thus every effect of providence has its root (so to speak) within that law. This was the opinion of St. Thomas (De Veritate, Qu. 5, art. 1, ad 6); and the same conclusion may be drawn from the remarks of Augustine (Confessions, Bk. IV, chap. ix).

Objection. But one may object, that law is framed for universal application, whereas God through His providence at times acts outside of law; hence, the effect of such an act cannot be said to result from the eternal law, although it may well proceed from His providence. For example, the fact that the sun at one time stands still is an effect of divine providence, but not of the eternal law, since, on the contrary, it is a precept of the eternal law that the sun shall move continuously.

Solution. The reply to this objection is that the eternal law is most universal, and that what appears to be a departure from one part of it or even a dispensation (so to speak) therefrom, is, when viewed in another aspect, in harmony with that same law, being in accordance with another part of it. Thus, in the example given, although the fact that the sun stands still is not a result of the eternal law as it prescribes the order to be observed in the movements of the heavenly bodies—nay, more, although that fact is a dispensation therefrom—nevertheless it is congruous with another precept of the eternal law, whereby God wills that the prayers of those that love Him shall be heard, when they pray in due manner and for a just cause. Wherefore, Augustine (Against Faustus, Bk. XXVI, chap. iii) said: ‘We give the name of nature to that course which is known to us and customary in nature, and whatever God does contrary to this customary course, we call a prodigy or a miracle. Nevertheless, God in no wise acts in opposition to that supreme law of nature, which is beyond the knowledge [of men . . . ], even as He does not act in opposition to Himself.’

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15. Whether the eternal law is one or manifold. In the sixth and last place, from the preceding discussion we may determine this question: whether the eternal law shall be spoken of as one or manifold.

With respect to this question, St. Thomas (I.–II, qu. 93, art. 1, ad 1) holds that the law is one, so that it is not manifold even in thought; for he made this the distinguishing mark between ideas and law, namely, that ideas are multiplied, whereas the eternal law is simply one. Vincent de Beauvais cited above [Speculum Morale, Bk. I, pt. ii, dist. i] apparently is of the same opinion.

However, this distinction is not easy to grasp; for ideas are multiplied, not objectively, but merely according to diverse relations of reason with respect to objects; and, in the same way, precepts and laws are also multiplied in the mind of God. It is even as we said, a little above: there is one mode of law in relation to irrational things, and another in relation to rational beings, and touching the latter, we may distinguish in God’s mind law which is purely natural, or law which is positive.

And if the objection is raised, that from all these considerations, there proceeds one law wholly simple and all-sufficing, which regulates all the universe, then likewise it may be maintained that there dwells in the mind of God one all-sufficing idea of the universe, of which other ideas, distinct in their nature, are (as it were) but parts. Wherefore, Augustine (On Free Will, Bk. I, chaps. v and vi; On the True Religion, Chaps. xxx and xxxi)—who in these passages and repeatedly, elsewhere, refers to the eternal law as being simply one—speaks in the plural, in his work On the City of God (Bk. IX, chap. xxii), of the eternal and immutable laws which reside in the divine wisdom, and furthermore remarks, in the De Catechizandis Rudibus (Chap. xviii), that God in His wisdom has been able to regulate the inferior parts of creation with the laws that are most appropriate.

16. The conclusion drawn by the author. This whole question, indeed, turns upon a manner of speaking; and the doctrine of Alexander of Hales (Summa Universae Theologiae, Pt. III. qu. xxvi, memb. 6), is sufficiently credible; namely, that under varying aspects, the eternal law may be spoken of as one or as manifold in nature.

For, in an absolute and essential sense, this law is one, and entirely simple, as is evident; and, nevertheless, it comprehends within itself many Edition: current; Page: [185] laws distinct in their character, as is proved by the argument set forth above. Neither is this doctrine surprising; for the natural law [also] is spoken of as one, yet it contains many precepts; although, in the case of the natural law, this is true in a very different sense, for the natural law has the unity characteristic of a collection, whereas the unity of the eternal law is derived from absolute simplicity.

However, we may add, in view of the opinion of St. Thomas, that there is a certain reason for the existence of unity in law, greater than the reason for unity in idea. For an idea connotes only a relation to an exemplar, that is, to something modelled on the idea, and therefore it is diverse in nature according to the diversity of the exemplars; whereas law has the general good in view as its end, just as providence has; and accordingly all the precepts of law which are ordained to the same kind of end, are held to constitute one law in general and in the concrete.13 Therefore, since God has in view the most universal end of all, the law in His mind is said to be one, even as His providence is said to be one.

CHAPTER IV: Is the Eternal Law the Cause of All Laws? Is It Manifested and Does It Exercise Binding Force through Them?

1. We have discussed the essential reason, the universality, and the necessary character of eternal law; and there is no need to discuss the causes of that law, for it is God Himself and therefore has no cause. Indeed, at most, it may have an essential reason, either in the sense in which the divine will is the primary reason of the divine law, as constituted in God from eternity, or else in the sense in which the divine wisdom may be called the reason of His most just will, wherein the efficacy of the eternal law is founded, as we have explained.1 I repeat, then, that nothing remains to be said concerning the causes of that law.

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As to its effects, moreover, in so far as concerns the acts prescribed by it or resulting from the impulse given by it, we have also mentioned in passing those points which the scope of our discussion seemed to render essential. Therefore, it remains merely to speak of the way in which the proximate and (as it were) intrinsic effect of law—which is to lay a binding obligation on the subjects—befits the eternal law.

In order that this point, which is a moral one, may be treated without ambiguity of language, I assume that the discussion turns upon the truly binding aspect of the eternal law, in its relation to men, and likewise—in due proportion—to the angels. For in so far as that law relates to the lower creatures, it is clear that it creates not true obligation, but rather an instinct, or inclination, or impulse, naturally determining those creatures to pursue one definite course; and this effect neither pertains to law, strictly speaking, nor requires [for its elucidation] any doctrine other than the philosophical.

2. The eternal law in its preceptive aspect, and when sufficiently promulgated, has binding force. With regard to this aspect of the eternal law, then, we hold that the said law contains in itself a binding force, if it is sufficiently promulgated and applied.

The proof [of this assertion] is that otherwise it would not be law in the true and proper sense, since it is of the essence of law to have binding force, as has been demonstrated above.2 Furthermore, God has supreme power to give commands, and hence to create binding obligations, for the precept of a superior gives rise to the obligation of obedience; and it is through His eternal law that He does command, for God’s conception of His dominion does not originate in time; and therefore His binding power is exercised by means of this same law.

One may object that, according to the above argument, He imposes binding obligations from eternity, since the law itself is eternal: an inference which is clearly false, so that [the premiss from which it follows is likewise false]. We reply by denying that this inference follows. For providence is eternal, and yet it does not govern from eternity, inasmuch as government implies transitory action with respect to creatures in existence Edition: current; Page: [187] at the time; so that the eternal law in like manner is enacted from eternity, and nevertheless it has binding force, not from eternity, but in time, since binding implies a relation to creatures actually existing.

This point having been established, it remains for us to explain in what way the law in question exerts binding force: that is, whether it binds directly, by its own virtue, or mediately, through other laws which have their source in it.

3. Whether other laws derive their binding force from the eternal law. In order to explain this point, however, we must discuss the principal question involved, that is, whether or not the origin of all laws is in the eternal law, or in other words, and in the usual phrasing, whether or not all laws are the effects of the eternal law, and so participate in it that they derive a binding force therefrom.

A reason for doubt. There may be a reason for doubt as to this matter; for we are speaking either of divine or of human law, and neither of these could properly be said to be an effect of the eternal law; therefore, . . .

The first half of the minor premiss may be proved as follows: the divine law is a mandate of God Himself; accordingly it dwells in Him, and hence it does so from eternity, so that it is that same eternal law; therefore, it is not an effect of the eternal law. The [attempted] proof of the latter half of the minor premiss is this: if the human law were an effect of the eternal, it would share in the binding force of the latter; hence, it would bind, not by a human, but by a divine obligation; and this conclusion is clearly false. The last inference, in its turn, is proved thus: the natural law is binding by a divine obligation, only because it participates in the eternal law; and therefore, if the human law similarly participates therein, it will also be binding by that same obligation.

4. The affirmative solution. Nevertheless, it must be stated in the first place that, in some way, every law is derived from the eternal law, and receives binding force from the same. This is the opinion of St. Thomas (I.–II, qu. 93, art. 3), Alexander of Hales (ibid., qu. xxvi, memb. 7), and other theologians. The same conclusion may be inferred from the words of Augustine (On the True Religion, Chap. xxxi) when he says that this [eternal law] is ‘the law of all the arts’, and when he adds a little farther on, that ‘He who makes temporal laws consults, if he is good and wise, Edition: current; Page: [188] the eternal law on which no soul may pass judgment, so that he may discern, in accordance with its unchangeable rules, what should in time be prescribed or forbidden.’ To the same effect, Augustine remarks elsewhere (on the Gospel of John, Tract. VI [, no. 25]): ‘God imparts human laws themselves to mankind, through the medium of emperors and kings.’ And again (On Free Will, Bk. I, chap. vi): ‘There is nothing just in temporal law, save that which is derived from the eternal.’ And the same author (on Exodus, Qu. 67 [Questions on Heptateuch, II, qu. 67]) declares that: ‘The eternal law is God’s law,3 a law which all pious minds consult in order that they may act or issue commands or lay down prohibitions, according to whatever they may find therein.’ In this connexion, it should be noted incidentally that not all men who act righteously consult the eternal law as it is in itself, that is, as it exists in God; for perchance some who lack faith may not know that law, as it is in itself; and furthermore, there are many who do not have this law in mind at the very time when they act virtuously or command aright. Hence it is said that [persons who do act righteously] are consulting the eternal law either as it is in itself or else through something which partakes of its nature, such as natural reason or the light of faith, a matter explained by St. Thomas in the passage cited supra (ibid., art. 2), and by Alexander of Hales (ibid., memb. 2).

Many of the philosophers, however, have attained, through the effects of the eternal law, a conception of that law as existing in God Himself, and consequently they have perceived that every righteous and true law established among men emanates from the eternal, either immediately as the natural law does, or through the medium of the latter, as is the case with human laws. Therefore Cicero (Laws, Bk. II [, chap. iv, § 8]), after he has praised ‘that chief law’, namely, the eternal, adds, ‘Because of it, that law which the gods have given to the human race is rightly praised’, and so forth. In another work (Philippics, II [XI, chap. xii, no. 28]), Cicero has said: ‘Law is nothing other than right reason, derived from the will of the gods, enjoining that which is righteous, prohibiting that which is wrongful.’ Wherefore, Demosthenes [Against Aristogeiton, p. 774], also, Edition: current; Page: [189] according to Marcianus, Jurisconsult (Digest, I. iii. 2), has declared that, ‘Law is that which all men should obey, [ . . . ] since every law is (so to speak) the invention and the gift of God.’

5. A general argument may also be adduced, in that the eternal law is essentially law, while every other law exists by participation therein; hence, necessarily, every other law must be an effect of the eternal. It may also be noted that there are two requisites for law: one is that it be just and congruous with reason; the other, that it possess efficacious binding force; and all created right reason is a partaker of that divine light which has been shed upon us, while all human power is bestowed from above and comes from the Lord God; therefore, all law existing among men is derived from the eternal law. Both of the requisites in question have been named by divine wisdom, which has said (Proverbs, Chap. viii [, v. 15]): ‘By me kings reign’, referring, that is, to power; and also, ‘and lawgivers decree just things’, that is to say, with reference to right reason.

6. We shall explain our argument more fully, however, by discussing the two divisions of the reason for doubt above set forth.4

Cajetan [on I.–II, qu. 93, art. 3, ad 2] touches upon the first part of this doubt, the part which has to do with divine law; and he replies that the supernatural reason is divine law, and that it is a participation in and an effect of the eternal law, even as St. Thomas (Qu. 91, art. 4, ad 3 [I.–II, qu. 93, art. 3, ad 2]) holds. Wherefore, Cajetan adds, the divine law is not reason as it exists in God, but reason as it exists in man, for the supernatural government of himself or of others. This statement may be understood as applying, in due proportion, to divine natural law. In order, however, to understand this matter more fully, we must remember, as I have said at the beginning of the preceding Book,5 that law may be thought of as existing either in the lawgiver or in his subjects: strictly and formally speaking, in the former; but in the latter to the extent that it is applied through certain signs issuing from the lawgiver. The divine law, then, in so far as it resides in the lawgiver, dwells in God Himself, since He alone is the real Author thereof; but it dwells in men also, in their capacity as subjects, even in the Edition: current; Page: [190] case of those men who govern; for they, too, are subject to the divine law, and are, in their relation to others, merely promulgators and declarers of the law which is in God. Thus, in one passage of the New Testament, the old [Hebraic] law is said to have been given through Moses (John, Chap. i [, v. 17]), and in another passage (Acts, Chap. vii [, v. 53]), it is said to have been given to Moses himself through the angels. Nevertheless, the binding force did not come from the will of Moses, or from the will of the angels, but immediately from God’s will; and accordingly it dwelt in Him alone as in the Lawgiver. Moreover, the same is true, in due proportion, of the law of grace and of the natural law.

7. Therefore, it follows that the divine law, in so far as it resides in the lawgiver, is not an effect of the eternal law, but is rather that eternal law itself, the latter being conceived of in a particular and incomplete sense.

We may, indeed, distinguish two aspects of the eternal law. In one aspect, it is eternal, and being so, is independent of external promulgation, neither has it relation to creatures existing for the moment. In the other aspect, this law is promulgated and binding at the present time, and consequently has a temporal relation to creatures existing at the time. In this sense, it may be called divine. Accordingly, this latter term connotes the condition of adequate external communication and promulgation. That same law, indeed, may more properly be called divine law, when it has external existence in the subjects and servants of God, that is to say, in any knowledge or sign whereby it is adequately promulgated to them. In this sense, we may assert that the divine law is a partaker in the nature of the eternal law, more excellent than any other: partly because the eternal law is more perfectly embodied in it; partly, also, because the divine law emanates more directly from the eternal; and finally, because the binding force of the divine law proceeds immediately from the same divine authority.

Thus we dispose of the first part of the difficulty stated.6

8. And in regard to the other part of the doubt set forth above, we must deny the inference there made, namely, that the binding force of human law is divine. For there is a great difference between the nature of divine law and that of human law; since human law, not only as it Edition: current; Page: [191] exists in relation to its subjects but also as it exists in its own legislator, is something created and temporal, inasmuch as this law is formed and perfected in the mind and will of man, being, in the direct sense, a law of man and not a law of God Himself. Accordingly, under both aspects, human law is an effect of eternal law, as is proved by the argument set forth above; for this human law, as existing in its author, is law by reason of its participation [in the eternal]. Moreover, it emanates from a power given by God Himself, of which we read in the New Testament (Romans, Chap. xiii [, v. 1]). It has also a binding force, in so far as it is dependent upon principles of the eternal law, such as the precept that obedience is due to superiors. And finally, in order that [human law] may be righteous, it should conform to the eternal. Hence, in all these ways, the former is an effect of the latter. Accordingly, it was to this human law that Augustine particularly referred in the passages cited above.7 Whence it results that the law in question, in so far as it exists in the subjects, is not so directly an effect of the eternal, as is the divine law itself. For human law is made known to its subject through the mediation of men, the latter being not only an incidental cause (so to speak) that is, not merely the cause that proposes and applies this law; but also the essential cause, or that which creates the law. For this law receives its force and efficacy directly from the will of a human legislator.

The difference between the eternal divine law, and human laws. From the foregoing, there follows also the difference which was assumed in the difficulty already set forth; for in the case of the divine law, the obligation is derived immediately from God Himself, since in so far as that law exists in man, it has no binding force save as it manifests the divine reason, or will. In human law, however, the obligation is not derived immediately from God; for in so far as human law exists in those who are subject thereto, it has an immediate relation to the will of the prince who8 has the power to establish a new law, distinct from divine law, and from his will the obligation directly emanates, although fundamentally this obligation proceeds in its entirety from the eternal law.

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9. The eternal law is not known in itself to man in this life, but becomes known through other laws. Furthermore, from what has been said above, one may conclude that the eternal law is known to men in this life, not through itself, but either in other laws or through them. For men in this life cannot know the divine will, as it is in itself, but know it only in so far as it is revealed to them through certain signs or effects. Hence it is a peculiar characteristic of the blessed that, contemplating the divine will by intuition, they are governed thereby as by their own laws; a point which I have already mentioned,9 when citing Augustine. Human wayfarers, then, know the eternal law through participation therein, and, in an immediate sense, through just laws which are temporal and created; for even as secondary causes reveal the primary cause, and creatures, the Creator, so do temporal laws, which constitute a participation in the eternal, reveal the source from which they flow. Nevertheless, as I have said, not all men attain to this knowledge; since not all are able to discern the cause in the effect.

In what sense it is true that all have a knowledge of the eternal law. Thus, indeed, all men necessarily behold within themselves some sort of participation in the eternal law, since there is no rational person who does not in some manner judge that the virtuous course of action must be followed and the evil avoided; and in this sense, it is said that men have some knowledge of the eternal law, as St. Thomas, Alexander of Hales, and other theologians, including Augustine (On Free Will, Bk. I, chap. vi and On the True Religion, Chap. xviii), have said.

Nevertheless, not all men have knowledge of that law formally, from the standpoint of their participation therein; so that the eternal law is not known to all by such direct knowledge as to be the formal object thereof. Yet some men attain to this knowledge either through natural reasoning, or more perfectly through the revelation of faith; and accordingly, I have said that the eternal law is known to some men only in laws that are secondary to it, whereas to others, it is known not only in those laws but also through them.

10. On the manner in which the eternal law binds its subjects. Finally, the foregoing discussion makes manifest the way in which the eternal law exercises binding force.

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For regarded strictly, as being eternal, it cannot be said actually to bind; but it may be said to have a potentially binding character10 (if we may explain the matter thus), or to suffice of itself for the imposition of a binding obligation. The reason for this statement is that a law cannot actually bind, unless it is externally promulgated; and the eternal law, as such, is not externally promulgated; therefore, . . . Furthermore, the eternal law as such does not connote a temporal effect already accomplished, because this would be inconsistent with its eternal character; but actually to bind is a temporal effect; therefore, . . . Thus it also follows that the eternal law never binds through itself and apart from every other law, and that, on the contrary, it must necessarily be united with some other law in order actually to bind. For it never binds thus, unless it is actually and externally promulgated; and it is not promulgated, save through the promulgation of some divine or human law. So that we may also say that the eternal law never binds directly, but on the contrary, does so through the medium of some other law. [In the different cases,] however, [this act of binding indirectly is executed] in different ways.

For when the binding force is applied through a divine law, the chief and proximate cause of the obligation is the eternal law itself, and the external divine law which intervenes under such circumstances is only a sign that indicates the law which has primary binding force. This fact is manifest in the case of positive divine laws; but in the case of the natural law, the matter presents some difficulty, which we shall explain in the following Chapters.

However, when the application of the eternal law is made through a law that is human, then, although the eternal contributes to the binding obligation, in the character of a universal cause, the proximate cause of the obligation is nevertheless this same human law; for it binds not only as a sign of the divine will, but proximately, as the sign of a human will. Accordingly, in the case of human laws the eternal law binds less proximately, so to speak.

Concerning this law, it would seem that the foregoing remarks suffice.

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CHAPTER V: Is the Natural Law Natural Right Reason Itself?

1. Various opinions on the formal basis of the natural law. We have assumed and demonstrated in Bk. I, chap. iii, that there is some form of natural law, and as we inquire into the nature of this law, the fact of its existence will become more certain.

Some persons have asserted, then, that the law in question is none other than rational nature itself, as such.

However, this assertion may be advanced with more than one meaning, so that we should take into account the fact that rational nature may be considered in two different aspects: from one point of view, it may be regarded as it is in itself, that is to say, on the basis of the fact that, by reason of the essential characteristics which it possesses, certain things are in accord with it, and other things, in disaccord; from another point of view, it may be regarded on the basis of its power to judge, by the light of natural reason, concerning these very things which accord or disaccord with it. This twofold method of consideration has been suggested by St. Thomas (I.–II, qu. 94, art. 2), in the passage wherein he first discriminates among the various inclinations inherent in human nature, in accordance with which inclinations, reason dictates concerning those things which are good or evil for human nature; and he effects this discrimination in order that he may deduce therefrom the precepts of natural law.

The sense of the questions under discussion is expounded. Accordingly, a twofold interpretation may be applied to the assertion that the law of nature is rational nature itself. In the first place, this assertion may be understood to refer to nature itself, strictly speaking, and in so far as, by reason of its essential character, certain actions are naturally appropriate to it, and contrary actions, inappropriate. According to the other interpretation, the statement in question is to be understood as referring to nature on the basis of the [power of] rational judgment which is inherent in it, and with respect to which it has the character of law.

2. The first opinion: affirming that the natural law consists formally in rational nature itself, in the sense that it involves no inconsistency, and is the basis of moral goodness in actions. There is, then, the first opinion, asserting Edition: current; Page: [195] that rational nature, strictly speaking, is natural law itself, in the sense that rational nature involves no inconsistency and is the basis in human actions, either of all their righteousness (through their accord with the said rational nature), or else, on the contrary, of their turpitude (through their disaccord with that nature).

So Vázquez1 (on I.–II, disp. 150, chap. iii), has pointed out in a particular passage, a doctrine which he frequently repeats throughout his entire discussion of the subject, although he does not cite any authority for such an opinion.

The basis of this belief is, that certain actions are so intrinsically bad of their very nature, that their wickedness in no way depends upon external prohibition, nor upon the exercise of judgment, nor upon the divine will; and similarly, other actions are so essentially good and upright that their possession of these qualities is in no sense dependent upon any external cause. So I assume, at least, from the common opinion of the theologians (on the Sentences, Bk. II, dist. xxxvii); from the words of St. Thomas (I.–II, qu. 100, art. 8 [, ad 3]), and from the Relectio X (De Homicidio, nos. 1 et seq.) of Victoria. Moreover, in the following sections, we ourselves confirm this point.

Briefly, the underlying reason for such a view is that moral actions have their own intrinsic character and immutable essence, which in no way depend upon any external cause or will, any more than does the essence of other things which in themselves involve no contradiction, as I at present assume from the science of metaphysics.

3. From the foregoing, then, the first argument is formulated, as follows: the upright character or the turpitude of such actions is to be found in their conformity [or lack of conformity] with some law, and not with a judgment pronounced by reason; therefore, the character of the said actions is determined by their conformity with the rational nature itself, Edition: current; Page: [196] and consequently, that rational nature in itself is the natural law, with respect to all those things which are prescribed or forbidden, approved or permitted by the natural law.

The truth of the major premiss may be assumed either from the passage in Romans (Chap. iv [, v. 15]): ‘For where there is no law, neither is there transgression’; or from the definition of sin given by Augustine (Against Faustus, Bk. XXII, chap. xxxvii [chap. xxvii]): ‘It is a word, an act or a desire opposed to God’s law’; or from the words of Ambrose (On Paradise, Chap. viii): ‘Sin would not exist if no prohibition existed’; or, finally, from the fact that all the goodness of virtue is measured by some standard which is of the nature of law.

The proof of the minor premiss runs as follows: lying, for example, is not evil because it is adjudged by reason to be evil; rather, the converse is true, that lying is adjudged evil because it is essentially evil; therefore, it is not judgment that measures the evil of this action, and consequently, it is not a prohibitory law on the subject. Wherefore, other conclusions may be proved by the converse reasoning, as follows: the action in question is evil for this reason, namely, that in its very essence it is out of harmony with rational nature; hence, [that] nature itself is the standard by which this action is measured, and, consequently, that nature is the natural law.

4. A second argument may also be advanced, as follows: the precepts of this [natural] law are either principles self-evident from their very terms, or manifest conclusions necessarily derived therefrom and prior to every judgment framed by reason, not only to judgments of the created intellect, but also to those of the divine intellect itself. For just as the essence of things, in so far as it does not involve a contradiction, is in each case of a given nature, by virtue of the fact that it is such inherently and prior to any causality on the part of God and (as it were) independently of Him; even so, the righteousness of truth and the evil of falsehood, are such of themselves and by virtue of eternal truth. Hence, with respect to such actions and precepts, a judgment cannot have the nature of law, seeing that prior to every [possible] judgment they possess their good or evil character, and are prescribed or forbidden accordingly; and therefore, with regard to these same actions and precepts, there can be nothing endowed with the character of natural law, save rational nature itself.

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In the third place, with respect to the nature of other, inferior things, the standard according to which they are good or evil, appropriate or inappropriate, is the very nature of the particular thing in question. For example, heat is inappropriate to water, and cold is appropriate; since water, by virtue of its very form and nature implies cold and not heat, being, indeed, opposed to the latter. Consequently, if one wishes to fix a standard and (as it were) a law, of movements appropriate or inappropriate to a given object, he will find no such standard and law outside the bounds of that object’s nature. Accordingly, then, [the standard in question] dwells in like manner, in rational nature; and in this harmony or discord between a free act and rational nature itself, as such, consists the goodness or turpitude of that act; so that, more properly speaking, that nature falls into the category of law.

5. I believe that the opinion expounded above contains the true doctrine in its fundamental assumption regarding the intrinsic goodness or turpitude of actions, whereby they fall under the sway of the natural law commanding or forbidding them: a matter which I shall elucidate in the course of this Chapter’s argument.

Nevertheless, this opinion, in so far as it relates to the exposition of the natural law, and this mode of speaking of the said law, are not, in my opinion, acceptable.

The first opinion as to the basis of the natural law is rejected. The first reason for my objection is that the mode of speaking in question, as we shall presently see, is foreign to the teaching of all theologians and philosophers.

Secondly, the rational nature itself, strictly viewed in its essential aspect, neither gives commands, nor makes evident the rectitude or turpitude of anything; neither does it direct or illuminate, or produce any of the other proper effects of law. Therefore, it cannot be spoken of as law, unless we choose to use that term in an entirely equivocal and metaphorical sense, a use which would render the entire discussion futile. For, we assume, in accordance with the common opinion found not only in the words of the Doctors, but also in the canon and the civil law, that the body of natural law (ius) is a true body of law, and that particular natural law (lex) is true law.

[6.] Thirdly, the reason for our statements is the fact that not everything which forms the basis of the goodness or rectitude of an act prescribed by Edition: current; Page: [198] law, and not everything which is the ground for the turpitude of an act forbidden by law, may [in themselves] be called law; and, consequently, although the rational nature is the foundation of the objective goodness of the moral actions of human beings, it may not for that reason be termed law; and, by the same token, that nature may be spoken of as a standard, yet it is not correct to conclude on that ground that it is law, for ‘standard’ is a term of wider application than is ‘law’. Wherefore, the entire argument2 would proceed from the general to the particular by means of affirmative deduction, a faulty method of procedure.3

The foregoing assumption may be illustrated in many ways.

In the first place, the practice of almsgiving is an example. The indigence of the poor man and the capacity of the giver are the basis of the goodness or obligation involved in almsgiving; and, nevertheless, no one holds that the need of the poor man is the law that imposes almsgiving.

The words of St. Thomas (II.–II, qu. 141, art. 6), concerning temperance, furnish a similar example, when he says that the need of the body is the rule of temperance; yet no one will say that this need is the law [of temperance]; on the contrary, it is the foundation of the law. In that same passage (ad 1), indeed, St. Thomas says that happiness is the rule of human actions in so far as they are morally good; and yet that happiness is not law.

It is evident, then, that the basic principle of a rule and standard, has wider connotations [than that of a law]. Moreover, the end is the rule and measure of the means, but it is not law; and the object is the rule and measure of actions, and similarly, it is not law. Otherwise, [if we do not accept this view,] our abuse of terms will leave us floundering in ambiguity.

7. The opinion above set forth is assailed on the ground of the absurd conclusions consequent upon it. Furthermore, we may construct a [contrary] argument, based upon the absurd conclusions to be inferred from the opinion above set forth.

One example is the conclusion that it would be no less fitting that God should have His own natural law, binding and obligatory on Him, than Edition: current; Page: [199] that men should be subject to such a law; a deduction which is manifestly absurd. [Yet] such an inference is clearly to be drawn; for to God also, falsehood, for example, is repugnant, being incongruous with the perfection of His nature; therefore, the very nature of God is a rule of rectitude with regard to the speaking of truth, and a rule of evil with regard to falsehood; and, consequently, the nature of God would be law with respect to Him, no less than human nature is law with respect to mankind. For the fact that the will of God is so righteous that it could not fail to conform with His nature, when [the latter] makes any demand as being necessary to rectitude, has no relation to the essence of law, which is attributed only to the essential characteristics of a standard of measurement found in the divine nature. Accordingly, St. Thomas (Pt. I, qu. 21, art. 1, ad 3) says that God’s justice looks to that which befits Himself, in that He renders to Himself that which is due to Himself; therefore, God’s nature itself is the measure of His actions, in that He acts in a manner congruous with and fitting to that nature, and, consequently, His nature will be law.

In like manner, and in accordance with the same reasoning, divine goodness, as it is made manifest to the blessed, will be the law of beatifying love, since that goodness is the measure of rectitude for such love and the standard regulating the mode which the blessed should observe in loving. And it is of slight importance that this love is or is not necessary, inasmuch as this law is wholly natural, and requires as its essential principle a standard existing in nature itself.

8. It would follow, therefore, that natural law is not divine law, nor does it come from God.

The proof of this conclusion is as follows: according to the opinion expounded above, the precepts of the natural law are not from God, inasmuch as they are characterized by a necessary goodness, and inasmuch as that condition [of necessary goodness], which is in rational nature and by reason of which that nature is the standard of such goodness does not depend upon God for its rational basis, although its actual existence does depend upon Him. For the fact that falsehood, for example, is discordant with the rational nature, is not a fact derived from God, nor is it dependent upon His will. Indeed, in the order of thought, it is prior to the judgment of God. Hence, natural law is prior to the divine judgment and Edition: current; Page: [200] the divine will of God; and, therefore, natural law does not have God for its author, but necessarily dwells within rational nature in that manner, in such fashion that it is inherently endowed with this essence, and no other. However, we shall demonstrate in the following discussion, that this conclusion cannot be admitted as true.

And, finally, with respect to human laws themselves, since they should be just and righteous, one would necessarily assume that there exists in them some basis of justice and rectitude; for everything that is just and right is just in accordance with some rule and to the extent of its conformity with that rule. Hence, for example, the common welfare, or the community itself, in so far as a particular thing or act prescribed by human law is the due of the community, or advantageous to it, would be a law (so to speak) prior to human law itself, and (as it were) a law regulating human law, since it would be the standard with which the latter should accord. Yet no one will make such an assertion.

We conclude, then, that the essential principle of a standard or foundation for rectitude does not suffice as the equivalent of the essential principle of law; and, consequently, that rational nature merely as such, may not fittingly be called natural law.

9. The second opinion: asserting that the law of nature is a certain natural force, which we call natural reason. There is, then, a second opinion [regarding the formal basis of natural law].

According to this opinion, two aspects of rational nature are distinguishable: one being that nature itself, in so far as it is (so to speak) the basis of the conformity or non-conformity of human acts with itself; the other consisting in a certain power which this nature possesses, to discriminate between the actions in harmony with it and those discordant with it, a power to which we give the name of natural reason.

With regard to the first aspect, rational nature is said to be the basis of natural rectitude; but with regard to the second, it is said to be the very precept [lex] of nature which lays commands or prohibitions upon the human will regarding what must be done [or left undone], as a matter of natural law [ius]. This appears to be the opinion of the theologians, as one gathers from St. Thomas (I.–II, qu. 94, arts. 1 and 2 and on the Sentences, Bk. IV, dist. xxxiii, qu. 1, art. 1), and from Alexander of Hales (Summa Edition: current; Page: [201] Universae Theologiae, Pt. III, qu. xxvii, memb. 2, art. 1). Moreover, the same view is held by Abulensis [Tostado] (on Matthew, xix, qu. 30), Soto (De Iustitia et Iure, Bk. I, qu. iv, art. 1), Viguerius (Institutiones Theologicae, Chap. xv, § 1), in many instances by other theologians; by the jurists on Digest, I. i; and by Albert of Bologna (Tract. De Lege, Iure et Aequitate, Nos. [Chaps.] xxv and xxvi), who especially may be consulted, in a passage wherein he refers to other authorities. The philosophers, too, frequently speak in this vein, as we have previously noted (Bk. I, chap. iii).4

10. Confirmation [of the foregoing opinion] from Scripture. The opinion in question may also find a basis in the words of Paul (Romans, Chap. ii [, vv. 14–15]), who, after saying: ‘For when the Gentiles who have not the law, do by nature those things that are of the law, these having not the law, are a law to themselves’, adds, as if to indicate the way in which the Gentiles are a law unto themselves and the nature of that law: ‘Who show the work of the law written in their hearts, their conscience bearing witness to them.’ For conscience is an exercise of the reason, as is evident; and conscience bears witness to and reveals the work of the law written in the hearts of men, since it testifies that a man does ill or well, when he resists or obeys the natural dictates of right reason, revealing also, in consequence, the fact that such dictates have the force of law over man, even though they may not be externally clothed in the form of written law. Therefore, these dictates constitute natural law; and, accordingly, the man who is guided by them, is said to be a law unto himself, since he bears law written within himself through the medium of the dictates of natural reason. St. Thomas confirms this view (I.–II, qu. 91, art. 2) in his comment on the passage from Psalm iv [, vv. 6–7]: ‘[Many say,] Who sheweth us good things? The light of thy countenance O Lord, is signed upon us’; for these words, [according to St. Thomas], mean that man participates by the light of reason in the eternal law, which dictates what must be done or left undone. This [rational illumination], then, is the natural law; for the latter is nothing other than a natural participation (so to speak) in the eternal law.

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11. Confirmation [of the same] from the Fathers. The opinion under discussion may also be confirmed by the authority of the Fathers. For Basil, according to St. Thomas (I.–II, qu. 94, art. 1, obj. 2), has said that synteresis,5 or conscience, is the law of our intellect; and this statement is unintelligible, unless it refers to the natural law, as St. Thomas remarked in the passage cited, a passage apparently derived from Basil (Homily XII: On Proverbs, at the beginning). Joannes Damascenus (De Fide Orthodoxa, Bk. IV, chap. xxiii), also, would seem to have been speaking of this same law, when he said: ‘The law of God, enkindling our minds, draws them to itself, and rouses our consciences, which, in themselves, are spoken of as the law of our minds.’ These words are explained by Clichtove [on Joannes Damascenus’ De Fide Orthodoxa, Bk. IV, chap. xxiii, near the beginning], as follows: ‘The law of our minds is natural reason itself, in which there is fixed, stamped and inborn the law of God, by which through the medium of an inner light, we are able to distinguish between good and evil’, &c. St. Jerome (Letter cli, qu. viii [Letter cxxi, Ad Algasiam, Chap. viii, Migne ed., Vol. XXII, col. 1022]) expresses the same opinion when he calls this law, ‘the law of intelligence, which is disregarded by the very young, and unknown to infants, but which, when intelligence begins to assert itself, comes to the fore and lays down commands regarding those things which cannot be made to accord with pure rational nature.’ He adds, moreover, that Pharaoh, when he was roused by the law of nature to a recognition of his own guilt (Exodus, Chap. ix), was urged by nothing other than right reason. Maximus of Turin (Tom. V, Biblio. Centur. V, chap. xiii),6 too, says that, ‘The law of nature is natural reason, which holds captive the mind in order to destroy irrational impulse.’ And Augustine (On the Sermon of Our Lord on the Mount, Bk. II [, chap. ix, § 32]) declares that, ‘There is Edition: current; Page: [203] no soul [ . . . ] capable of reasoning, in whose conscience God does not speak. For who save God writes the natural law in the heart of man?’7 It is in this same vein that Augustine [ibid.] treats of the above cited passage from Paul (Romans, Chap. ii [, vv. 14–16]). Ambrose discusses this point similarly and at great length, in the passage (Letters, Bk. V, epistle xli [Letter lxxiii, Migne ed.]) in which he says, among other things, that, ‘The law in question’, namely, the natural law, ‘is not written but innate; neither is it perceived through any reading, but rather is it made manifest within the individual as by a flowing natural spring.’ Isidore (Etymologies, Bk. V, chap. ii [chap. iv]) wrote to the same effect. And, finally, Lactantius (Divine Institutes, Bk. VI: De Vero Cultu, chap. viii) describes the natural law in the words of Cicero (The Republic [Bk. III, chap. xxii, § 33]), saying: ‘Right reason is, indeed, true law, in harmony with nature, diffused among all men, constant, eternal, calling them to the observance of their duty in its commands and prohibitions’, &c.

12. The opinion, above set forth, is confirmed by reasoning. The opinion above set forth may be briefly supported by reasoning, in accordance with what has been said.

First, [we may argue] by means of an adequate discrimination: for natural law resides in man, since it does not reside in God, being temporal and created, nor is it external to man, since it is written not upon tablets but in the heart; neither does it dwell immediately within human nature itself, since we have proved that it does not do so; nor is it in the will, since it does not depend upon the will of man, but, on the contrary, binds and (as it were) coerces his will; hence, this natural law must necessarily reside in the reason.

Secondly, one may adduce the argument that the legal effects which may be thought of in the case of natural law, proceed immediately from a dictate of the reason, for that dictate directs and binds and is a rule of conscience which censures or approves what is done, so that law of the kind in question consists in the said dictate.

Thirdly, the exercise of dominion and the function of ruling are characteristic of law; and in man, these functions are to be attributed to right Edition: current; Page: [204] reason, that he may be rightly governed in accordance with nature; therefore, the natural law must be constituted in the reason, as in the immediate and intrinsic rule of human actions.

13. Whether the natural law consists in a [second] act or in a habit of mind. It is furthermore usual to ask, at this point, whether the natural law consists in a [second] act, or in a [mental] habit—that is to say, in the light of natural reason itself, or, in other words, some first act.8 For theologians disagree on this question also; and many prefer to answer that the law under discussion consists in the second act,9 since law is an exercise of authority, which consists in action, and since such action is, strictly speaking, a directive rule. This is the common opinion of the Thomists (I.–II, qu. 94, art. 1), for it is thus that they interpret St. Thomas’s meaning, as is evident from Cajetan, Conrad Koellin, and others. On this point, we may also refer to Antoninus ([Summa Theologica,] Pt. I, tit. xiii, chap. i, at the beginning), and Soto (De Iustitia et Iure, Bk. I, qu. iv, art. 1). Alexander of Hales, on the other hand ([Summa Universae Theologiae,] Pt. III, qu. xxvii, memb. 2, throughout three articles), judges natural law to be a [mental] habit. One may argue, on behalf of this latter opinion, that the natural law is said to be congenital with nature, and is permanent; characteristics which befit not a [second] act, but a habit. For, by the term ‘habit’, we understand, not a quality superadded to a faculty, but the light of the intellect itself, as it is regarded in its first act.10 Bonaventure (on the Sentences, Bk. II, dist. xxxix, art. 2, qu. 1, ad ult.), expressing yet another view, asserts that the term ‘natural law’ signifies in one sense a habit, and, in another sense, natural precepts themselves, in so far as these exist objectively in the mind, or synteresis. St. Thomas, however, says that the term properly refers to an act, or a judgment, on the part of the reason; although, in another [, less strict] sense, it denotes a habit, in so far as the natural precepts remain permanently in the mind.

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14. The opinion of the author, and the solution of the question. The question seems to me, indeed, to turn upon the use of terms; and I have no doubt but that, it is in the actual judgment of the mind that natural law, in the strictest sense, exists. I must add, however, that the natural light of the intellect—which is inherently to prescribe what must be done—may be called the natural law, since men retain that law in their hearts, although they may be engaged in no [specific] act of reflection or judgment. It must be taken into consideration, then, that natural law, as we are now using the term, is looked upon as existing not in the Lawgiver, but in men, in whose hearts that Lawgiver Himself has written it, as Paul says, and that, by means of the illumination of the mind, as is intimated in Psalm iv. Therefore, just as human law, in so far as it is external to the legislator, implies on the part of the subject not only active knowledge thereof, or an act of judgment, but also a permanent sign of its existence, contained in some written form which is always able to awaken knowledge of that law; even so, in the case of natural law, which exists in the lawgiver as none other than the eternal law, there is, in the subjects, not only an active judgment, or command, but also the [mental] illumination itself in which that law is (as it were) permanently written, and which the law is always capable of incorporating in action.

15. In what way the natural law may be distinguished from the rule of conscience. Thus, it is easy to understand a comparison between the natural law and conscience. For sometimes these two forces are thought of as identical (a fact which we have already gathered from Basil and Joannes Damascenus), on the ground that conscience is nothing more or less than a dictate regarding what ought to be done.

Nevertheless, strictly speaking, the two are different. For the term ‘law’ signifies a rule in general terms regarding those things which should be done; whereas ‘conscience’ signifies a practical dictate in a particular case, wherefore it is the application of the law to a particular act (so to speak) rather than [the law itself].

From these facts, it also follows that ‘conscience’ is a broader term than ‘natural law’, since it puts into application, not only the law of nature, but also every other law, whether divine or human. Indeed, conscience is wont to apply not merely true law, but even reputed law, in which sense Edition: current; Page: [206] it sometimes occurs that conscience is in error. [True] law, on the other hand, can never be in error, for, by the very fact that it was erroneous, it would fail to be law, an assertion which is especially true with respect to the natural law, of which God is the Author.

Finally, law is properly concerned with acts which are to be performed; while conscience deals also with things which have already been done, and consequently is endowed not only with the attribute of imposing obligations, but also with those of accusing, bearing witness, and defending, as may be gathered from St. Thomas (Pt. I, qu. 79 [, art. 13], and I.–II, qu. 19, art. 6), in certain passages, wherein he treats of conscience. Alexander of Hales, too, is especially to be consulted on this point (ibid., Qu. xxvii, memb. 2, art. 3); as is also Bonaventure (on the Sentences, Bk. II, dist. xxxix, art. 2, qu. 1).

CHAPTER VI: Is the Natural Law in Truth Preceptive Divine Law?

1. The reason for doubt is explained. The reason for doubt on this question originates in the fundamental grounds of a previously cited opinion, referred to in the preceding Chapter, which was there propounded and which has not yet been explained. For in its true sense, a preceptive law never exists without an act of willing on the part of him who issues the command, as has been shown in the First Book; but, [so runs the doubt,] the natural law is not dependent upon the will of any giver of commands; hence, it is not law in the true sense.

The truth of the minor premiss is established by the points adduced in the preceding Chapter, namely: that the dictates of natural reason, wherein natural law consists, are intrinsically necessary and independent of every will, even of the divine will, and prior, in concept, to the free act by which something is willed; examples of such dictates being the precepts that God must be worshipped, parents must be honoured, lying is evil and must be shunned, and the like; all of which has been sufficiently proved above. Therefore, the natural law cannot be called true law. This statement is further confirmed by the fact that [this so-called law] is not a true command; and hence, it is not true law.

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The truth of the antecedent is evident. For the natural law is one of two things. First, it may be a command laid upon man by himself; which is not actually the case since a command of this kind either does not exist save as an act of judgment manifesting the truth of the matter in hand, or else, if it be an expression of the will or of a choice already made, is not in itself necessary to action, nor does it impose an obligation, but [merely] leads to the actual execution of the act in question, so that it neither suffices for, nor contributes anything to, the true or proper character of law. Or, secondly, natural law may be the command of a given superior; but this assertion is also untenable, in view of the argument above stated, namely, that the natural law dictates concerning what is good or evil, without reference to the will of any superior.

2. From the foregoing it would also seem to follow that the natural law may not properly be termed divine, not with the implication, that is, that it has been given by God as by a lawmaker.

But I repeat, as by a lawmaker, since it is clear that natural reason and its dictates are a divine gift, descending from the Father of Light. It is one thing, however, to say that this natural law is from God, as from an efficient primary cause; and it is quite another thing to say that the same law is derived from Him as from a lawgiver who commands and imposes obligations. For the former statement is most certain, and a matter of faith, both because God is the primary cause of all good things in the natural order, among which the use of right reason and the illumination which it affords constitute a great good; and also because, in this sense, every manifestation of truth is from God, according to the saying in the Epistle to the Romans (Chap. i [, v. 18]): ‘For the wrath of God is revealed from heaven against all ungodliness and injustice of [those] men that detain the truth of God in injustice.’ Paul, in explaining why he uses the expression, ‘the truth of God’, adds (ibid. [, v. 19]): ‘Because that which is known of God is manifest in them. For God hath manifested it unto them’; by means, surely, of the natural light of reason, and by means of visible creatures whereby the invisible things of God may come to be known. It is in this sense, then—that is, as referring to an efficient cause and to the function of instructing, so to speak—that the words of Paul above-cited, are interpreted by Chrysostom (Homily III, On Romans and more at length, Homilies XII Edition: current; Page: [208] and XIII, To The People); by Theophylact also, on the same passage from Paul; by Ambrose, on the same; by Cyril (Against Julian, Bk. III, near the end, § Nam quod summa, et seq. [Vol. LXXVI, col. 666, Migne ed.]), and, most excellently, by Augustine (Sermons, lv, De Verbis Domini [Letter cxli, Vol. XXXVIII, col. 776, Migne ed.] and On the Sermon of our Lord on the Mount, Bk. II, chap. ix [, § 32]), who says in the latter work: ‘Who save God writes the natural law in the hearts of men?’

Therefore, without doubt, God is the efficient cause and the teacher (as it were) of the natural law; but it does not follow from this, that He is its legislator, for the natural law does not reveal God issuing commands, but [simply] indicates what is in itself good or evil, just as the sight of a certain object reveals it as being white or black, and just as an effect produced by God, reveals Him as its Author, but not as Lawgiver. It is in this way, then, that we must think of [God in relation to] the natural law.

3. The first opinion: holding that the natural law is a law not truly preceptive, but rather demonstrative. On this point, the first opinion which we shall discuss is, that the natural law is not a preceptive law, properly so-called, since it is not the indication of the will of some superior; but that, on the contrary, it is a law indicating what should be done, and what should be avoided, what of its own nature is intrinsically good and necessary, and what is intrinsically evil.

So it is that many writers distinguish between two aspects of law, the one indicative, the other preceptive, and hold that the natural law is law in the first sense, not in the second. This is the view expressed by Gregory of Rimini1 (on the Sentences, Bk. II, dist. xxxiv, qu. 1, art. 2, shortly after the beginning, § Secundum corollarium), who refers to Hugh of St. Victor (De Sacramentis Christianae Fidei, Bk. I, pt. vi, chaps. vi and vii) and who is followed by Gabriel (on the Sentences, Bk. II, dist. xxxv, qu. i, art. 1); Almain (Moralia, Bk. III, chap. xvi) and Corduba (De Conscientia, Bk. III, qu. x, ad 2).

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Accordingly, it seems that these authors would grant that the natural law is not derived from God as a Lawgiver, since it does not depend upon His will, and since, in consequence, God does not, by virtue of that law, act as a superior who lays down commands or prohibitions. Indeed, on the contrary, Gregory, whom the others follow, says that even if God did not exist, or if He did not make use of reason, or if He did not judge of things correctly, nevertheless, if the same dictates of right reason dwelt within man, constantly assuring him, for example, that lying is evil, those dictates would still have the same legal character which they actually possess, because they would constitute a law pointing out the evil that exists intrinsically in the object [condemned].

4. The second opinion: affirming that the natural law is truly divine and preceptive. The second opinion, at the opposite extreme to the first, is that the natural law consists entirely in a divine command or prohibition proceeding from the will of God as the Author and Ruler of nature; that, consequently, this law as it exists in God is none other than the eternal law in its capacity of commanding or prohibiting with respect to a given matter; and that, on the other hand, this same natural law, as it dwells within ourselves, is the judgment of reason, in that it reveals to us God’s will as to what must be done or avoided in relation to those things which are conformable to natural reason.

This is the view one ascribes to William of Occam2 (on the Sentences, Bk. II, qu. 19, ad 3 and 4), inasmuch as he says that no act is wicked save in so far as it is forbidden by God, and that there is no act incapable of becoming a good act if commanded by God; and conversely, . . . ; whence he assumes that the whole natural law consists of divine precepts laid down by God, and susceptible of abrogation or alteration by Him. And if any one insists that such a law would be not natural but positive, the reply is, that it is called natural because of its congruity with the nature of things, and not with the implication that it was not externally enacted by Edition: current; Page: [210] the command of God. Gerson also inclines to this opinion (Pt. III, tract. De Vita Spirituali Animae, Lect. I, corols. 10 and 11; Alphabetum Divini Amoris, 61, littera E and F);3 and says accordingly (De Vita Spirituali Animae, Lects. II and III), that the natural law which exists within us is an expression of the upright dictates, not only of the divine intellect, but also of the divine will. Peter d’Ailly (on the Sentences, Bk. I, qu. xiv, art. 3), too, defends this view at length, saying that the divine will is the primary law and therefore able to create men endowed with the use of reason but totally destitute of law. The same opinion is supported at length by Andreas a Novocastro (on the Sentences, Bk. I, dist. xlviii, qu. 1, art. 1).

These authorities also add that the whole basis of good and evil in matters pertaining to the law of nature is in God’s will, and not in a judgment of reason, even on the part of God Himself, nor in the very things which are prescribed or forbidden by that law. Their opinion would assuredly seem to be founded upon the fact that actions are not good or evil, save as they are ordered or prohibited by God; since God Himself does not will to command or forbid a given action to any created being, on the ground that such an action is good or evil, but rather on the ground that it is just or unjust, [simply] because He has willed that it shall or shall not be done, as Anselm (Proslogion, Chap. xi), indicates, saying: ‘That is just which Thou dost will; and that is not just which Thou dost not will.’ Such is the view held also by Hugh of St. Victor (De Sacramentis, Bk. I, pt. iv, chap. i); and by Cyprian, in a work (De Singularitate Clericorum) attributed to him.

5. The first proposition: Not only does the natural law indicate what is good or evil, but it also contains precepts and prohibitions regarding both good and evil. However, neither of the opinions above set forth appears to me to be satisfactory; and consequently I hold that a middle course should be taken, this middle course being, in my judgment, the opinion held by St. Thomas and common to the theologians.

My first proposition, then, is as follows: Not only does the natural law indicate what is good or evil, but furthermore, it contains its own prohibition of evil and command of good. This is the inference which I draw from the words of St. Thomas, in the passage (I.–II, qu. 71, art. 6, ad 4) Edition: current; Page: [211] where he says that, in so far as human law4 is concerned, not all sins are evil simply because they are prohibited; but that, with respect to the natural law, which is contained primarily in the eternal law and secondarily in the judicial faculty5 of natural reason, every sin is wrongful simply for the reason that it is forbidden. In a subsequent passage (ibid., qu. 100, art. 8, ad 2), he says that God cannot deny Himself and therefore cannot abolish the order of His own justice; by which St. Thomas means that God cannot fail to prohibit those things which are evil and contrary to natural reason. Bonaventure (on the Sentences, Bk. II, dist. xxxv, dub. 4, circa literam) is of the same opinion; and Gerson (Tr. De Vita Spirituali, Lect. II, in entirety, especially coroll. 5) also writes clearly to this effect, when he defines the natural reason as follows: ‘The natural law in its preceptive character is a sign impressed upon every man who is not deficient in the due use of reason, a sign making known the divine will that rational human creatures shall be bound to perform certain actions or to refrain from other actions, in the attainment of their natural end.’ This definition is perhaps more comprehensive than necessary, and at present we avail ourselves of it only in so far as it serves our purpose. The assertion in question is also assumed to be true, by some of the authorities who hold the second of the two opinions discussed above; and it is furthermore defended at length by Victoria (Relectio XIII: De Pervenientibus ad Usum Rationis,6 Nos. 8 et seq.).

6. The foregoing proposition is confirmed by reasoning. This proposition may be proved, first, on the basis of the peculiar nature of law. For the natural law is truly law, inasmuch as all the Fathers, theologians, and philosophers so speak and think of it; but the mere knowledge or conception of anything existing in the mind cannot be called law, a fact which is self-evident and which follows also from the definition of law given above; therefore, . . . .

A second argument may be drawn from those actions which are evil, in that they are prohibited by human law. For in the case of such acts, also, if Edition: current; Page: [212] a man is to be guilty of sin, it is necessary that there be a preceding mental judgment indicating that the thing in question is evil; yet that judgment has not the nature of a law or prohibition, since it merely indicates [a quality] existing within that thing, whatever the source of the quality may be; hence, by the same reasoning, although in those matters which fall within the province of the natural law as it relates to good or evil actions, a judgment pointing out the good or evil involved in a particular thing or act must necessarily precede [that act]; nevertheless, such a judgment has not the character of a law or of a prohibition, but is merely a recognition of some fact already assumed to be true. Accordingly, the act which is recognized as evil by the said judgment, is not evil for the reason that it is thus considered, but because it actually is evil, and is, in consequence, truly adjudged to be so; therefore, that judgment is not a rule of evil or of good; and consequently, neither is it a law nor a prohibition.

Thirdly, if the assertion in question were not true, God Himself would be subject to a natural law relating to His will; since even in God, an intellectual act of judgment logically precedes an act of His will, a judgment indicating that lying is wicked, that to keep one’s promises is wholly right and necessary [, and so forth]; and therefore, if such an act of the intellect is sufficient to constitute the essence of law, then there will be a true natural law, even with respect to God Himself. For in such a case, the fact that God has no superior, will not serve as an objection, since the natural law is not imposed by any superior. Neither is any objection to the argument in question involved in the identity [of the action of God’s will with that of His intellect], since a distinction in thought is sufficient, in order that God’s will may truly be said to be directed to that which is manifested by His intellect, and since by that manifestation [the object of the law] is proposed [to the will]; so that [such a distinction] suffices to make [these intellectual manifestations] law; for that process is said to suffice for the essence of law.

Finally, a judgment showing the nature of a given action is not the act of a superior, but may, on the contrary, be that of an equal or of an inferior who has no binding power; and consequently, it is impossible for that judgment to have the nature of a law or of a prohibition. Otherwise, a teacher when he points out what is good and what is evil, would be Edition: current; Page: [213] imposing a law, an assertion which cannot [truthfully] be made. Law, then, is that sort of authority which can impose a binding obligation; whereas the judgment in question does not impose an obligation, but [simply] points out what obligation should be assumed to exist. Therefore, if this judgment is to have the nature of law, it must indicate some sort of authority as the source of such obligation.

7. However, some one may object that these arguments have weight only with respect to ‘law’ [in the strict sense of] the term, and may therefore easily be rendered inefficacious by the declaration that the natural law is not termed law in the rigorous sense in which law is said to be a universal precept imposed by a superior, but is so termed for the more general reason that it is a measure of moral good and evil, such as law is wont to be.

But in answer to this objection, I shall argue further that what is opposed to the natural law is necessarily opposed to true law and to the prohibition of some superior; so that the natural law, as existing in man, points out a given thing not only as it is in itself, but also as being forbidden or prescribed by some superior. The consequent is clearly true; for if the natural law consists intrinsically in its simple object as the latter is in itself, or in the manifestation of the same, then the violation of the natural law will not be of itself and intrinsically opposed to the law of any superior inasmuch as a man would violate the natural law, even independently of all laws imposed by a superior, if he acted in opposition to those natural dictates.

The antecedent, then, may be proved, first, from the words of Augustine (Against Faustus, Bk. XXII, chap. xxvii), when he defines sin thus: ‘It is a word, deed, or desire opposed to the eternal law’, and adds that ‘The eternal law is the reason and will of God’; indicating that he believes it to be the nature of sin that it should be contrary to the strict law of some superior. Wherefore, in another passage, Augustine (De Peccatorum Meritis et Remissione, Bk. II, chap. xvi [, § 23]) says: ‘Nor can that be sin, whatever it may be, concerning which God has not enjoined that it shall not be.’ And, farther on, he adds: ‘How can [ . . . ] forgiveness be bestowed by God’s mercy if there is no sin; or how can a prohibition by God’s justice not exist, if there is sin?’ his meaning being that it is no less repugnant to reason that sin should exist and not be forbidden by God, than that there should be need of forgiveness without the fact of sin. This opinion Edition: current; Page: [214] is confirmed by the definition of Ambrose (On Paradise, Chap. viii): ‘Sin is violation of the divine law and disobedience to the heavenly mandates.’ But an offence against the natural law is sin in the true sense; therefore, such an offence is a violation of a divine and heavenly mandate; and consequently, the natural law, as it exists in man, has the force of a divine mandate, indicating such a mandate (so to speak) and not merely the nature of its own subject-matter. Finally, the words of Paul are in agreement with the truth which we are discussing, for he says (Romans, Chap. iv [, v. 15]): ‘Where there is no law, neither is there transgression.’ For clearly, he is speaking of the whole law, not merely with reference to ceremonial and judicial precepts, but also with reference to the moral precepts which are part of the law of nature; because the teaching of Paul is valid for all law (natural law also being so classified), that is to say, the teaching that of itself and without the spirit of grace, the law worketh wrath. And thus it is that the passage in question is commonly interpreted, since otherwise the doctrine of the Apostle would not be complete, a fact which will be brought out more fully in our treatise on Grace.7 He holds, then, that every sin is contrary to some law. This conclusion, moreover, should be understood as applying to true preceptive law; both because that sort of law is referred to throughout the chapter cited, and also because words ought not to be given a strained interpretation without authority or unless there exists an urgent necessity.

8. Furthermore, the proposition in question8 may be supported by a priori reasoning; since all things which are declared evil by the natural law, are forbidden by God, by a special command and by that will whose decree binds and obliges us, through the force of His authority, to obey those [natural precepts]; and, therefore, the natural law is truly a preceptive law, that is to say, one which contains true precepts.

The truth of the consequent is evident.

The first proof of the antecedent premiss is as follows: God has complete providence over men; therefore, it becomes Him, as the supreme Edition: current; Page: [215] Governor of nature, to prohibit evil and prescribe that which is good; hence, although the natural reason reveals what is good and what is bad to rational nature, nevertheless God, as the Author and Governor of that nature, commands that certain actions shall be performed or avoided, in accordance with the dictates of reason.

Secondly, whatever is contrary to right reason is displeasing to God, and the opposite is pleasing to Him; for the will of God is supremely just, and therefore, that which is evil cannot fail to displease Him, nor can that which is righteous fail to please Him, inasmuch as God’s will cannot be irrational, as Anselm (Cur Deus Homo, Bk. I, chap. viii) says; consequently, the natural reason which indicates what is in itself evil or good for mankind, indicates accordingly that it is in conformity with the divine will that the good should be chosen, and the evil avoided.

9. Objection. One may object that the existence in God of a will which approves or disapproves, does not imply as a necessary corollary that this will is compelling in a preceptive sense. For in the first place, we are not for that reason bound to conform to every expression of the divine will that is a matter of simple volition; nor even to every approving and efficacious volition; but only to those volitions whereby God wills to bind us, as I gather from St. Thomas (I.–II, qu. 19 [, art. 11]). Wherefore, by this same reasoning, although the works of counsel9 may be pleasing to God, it is not to be inferred on that account that His will commands that they be performed. And [similarly]—to take a second example—whatever I do contrary to reason is displeasing to a just man or to one of the blessed, and nevertheless their will in the matter is not a command.

Solution. My reply to this objection is, in the first place, that the question concerns not simply any complaisant will, but that will which is so pleased by something, in so far as it is good, that the contrary—or that which is opposed thereto by the lack [of some quality], through omission—is displeasing as being evil; and the works of counsel are pleasing not in this fashion, but in such a way that their opposites, that is, omission to Edition: current; Page: [216] perform them, involves no displeasing evil, so that the complaisance with which these works are regarded, is called simple will; whereas the former sort of will, according to which one thing is pleasing in such fashion that another thing is unrestrictedly displeasing, is held to be will in a more absolute sense.

Secondly, I reply that such a will must be regarded as existing in God as the supreme Governor, and not as it may be found in a just individual, whether in this life or in the state of glory. For God, in that absolute disapproval or complaisance, wills absolutely that the deed in question shall be done or left undone, in so far as relates to His office as a just governor; and therefore, this volition is of such a nature that through it He wishes to oblige His subjects to perform a given action or to leave it unperformed. For the volition under discussion cannot be an efficacious volition, willing that a certain action absolutely must or must not be performed; since in that case, no action could ever be done [or left undone], save in accordance with God’s will, which nevertheless is clearly not the fact. Neither is such [a mode of willing] proper to the office of Governor, to whom it pertains, to will the good in such fashion that evil is [nevertheless] permitted, and secondary free causes are [nevertheless] allowed to use their free wills, without let or hindrance. Therefore, the volition in question must be binding volition, for it is thus that [God] provides for His subjects in this matter, as befits a righteous and prudent providence.

10. Wherefore the [first] proposition10 is confirmed; for offences against the natural law are said in Scripture to be opposed to the divine will. Thus Anselm declared (De Voluntate Dei [, Chap. ii]): ‘Whoever resists the natural law, fails to fulfil the will of God.’ The proof of this declaration is manifest, since a transgressor of the natural law is, in the divine judgment, deserving of punishment; hence, he is a transgressor against the divine will—for that slave shall be beaten with many stripes who does not the will of his lord, as is said in (Luke, Chap. xii [, v. 47]); and therefore it follows that the natural law includes the will of God [among its various elements]. Conversely, to him who does the will of God, is promised the Edition: current; Page: [217] kingdom of heaven (Matthew, Chap. vi [, v. 33]; 1 John, Chap. ii [, v. 17]), a promise which must be interpreted as referring particularly to the preceptive will [of God], for it is written: ‘If thou wilt enter into life, keep the commandments’; hence, whosoever obeys the natural law does God’s will; and therefore, the natural law includes the preceptive will of God.

The same assertion may be further confirmed, as follows: the divine will indicated by an external sign,11 and as such ascribed by the theologians to God, extends even to those matters that pertain to the natural law, a fact which one infers from St. Thomas (Pt. I, qu. 19, last art.), as well as from Peter Lombard (Sentences, Bk. I, dist. xlv) and others, and which is, moreover, self-evident; for whosoever violates the natural law draws away from the will of God, and when, in the Lord’s Prayer [Matthew, Chap. vi, v. 10] we pray, ‘Thy will be done’, we are asking also that it be done in the observance of the natural law; therefore, the natural law, as it exists in us, is an indication of some divine volition; hence, it is pre-eminently an indication of that volition whereby He wills to oblige us to the keeping of that law; and thus it follows that the natural law includes the will of God.

A third confirmation is the fact that a sin against the natural law is offensive to God, being characterized, therefore, by a certain infinite quality; consequently, it betokens opposition to God, as the Maker of that law, for it connotes a virtual contempt of Him; hence, the natural law includes God’s will, since without an act of will, no legislation exists.

The final confirmation is this: the binding force of the natural law constitutes a true obligation; and that obligation is a good in its own way, existing in point of fact; therefore, this same obligation must proceed from the divine will, which decrees that men shall be bound to obey that which right reason dictates.

11. The second proposition. The prohibition or [affirmative] command is not the whole reason for the good or evil involved in the transgression, or the observance of the law of nature; on the contrary, it presupposes the existence of Edition: current; Page: [218] some [such inherent quality]. My second assertion is as follows: this divine volition, in the form of a prohibition or in that of an [affirmative] command, is not the whole reason for the good or evil involved in the observance or transgression of the natural law; on the contrary, it necessarily presupposes the existence of a certain righteousness or turpitude in these actions, and attaches to them a special obligation derived from divine law. This second assertion is drawn from the words of St. Thomas, in the passages above cited.

The first part of the proposition may be deduced from an axiom common to the theologians, that certain evils are prohibited, because they are evil. For if they are forbidden on that very ground, they cannot derive the primary reason for their evil quality from the fact that they are prohibited, since an effect is not the reason for its cause.

This axiom, indeed, has a basis in the words of Augustine (On the Sermon of our Lord on the Mount, Bk. II, chap. xviii [, § 59]), in the passage where he says that there are certain acts which cannot be committed with a righteous intention, for example, debaucheries, adulteries, &c.; or more clearly (On Free Will, Bk. I, chap. iii) when he quotes Evodius as saying that adultery is not an evil because prohibited by law, but rather that the converse is true, [i.e., adultery is so prohibited, because it is evil], a statement of which Augustine tacitly approves. Moreover, the same opinion is held by the Scholastics, Durandus (on the Sentences, Bk. II [Bk. I], dist. xlvii, qu. 4, nos. 7 and 8), Scotus, Gabriel, and others (on the Sentences, Bk. III, dist. xxxvii), as well as by Cajetan (on I.–II, qu. 100, art. 1), Soto (De Iustitia, Bk. II, qu. iii, art. 2), and other theologians, cited above. We have also the clearly expressed opinion of Aristotle (Nicomachean Ethics, Bk. II, chap. vi [, § 18]), who says: ‘There are some passions which essentially have their evil nature implied in their very names, for example, malevolence, shamelessness,12 and envy; and a number of actions, such as adultery, theft, or murder. For all these and others like them are censured because they are intrinsically wicked.’

This doctrine also finds support in the metaphysical principle that the nature of things is immutable in so far as their essence is concerned, and Edition: current; Page: [219] hence also, in so far as concerns the consistency or inconsistency of natural properties. For although it is possible that a given thing may be deprived of a natural property, or that it may take on that of an opposite character, nevertheless it is not possible that such a [changed] condition should be connatural to that thing; a fact which Victoria has brought out at length (Relectio X: De Homicidio, Nos. 4 et seq.), which Soto has touched upon in the passage last cited, and which we mention elsewhere (Metaphysicarum Disputationum,13 Disp. XXXI, at the beginning, and De Deo Uno et Trino,14 Tract. III, bk. ix, chap. vi), in treating of created essences.

There is [also] an a posteriori confirmation of these statements; for if hatred of God, for example, involved no essential and intrinsic evil existing prior to its prohibition, then it would be possible for this hatred to be unprohibited. For why shall it not be allowed, if it is not in itself evil? Hence, it could be permitted, and it could be righteous. But this conclusion is clearly repugnant [to reason. Therefore, such an act must be essentially evil.]

Finally, the truth of this first part of our second assertion is sufficiently proven by the cause for doubt postulated at the outset [of this Book]15 together with the basic reasons which are stated in the preceding Chapter in support of the first opinion.16 And we shall have more to say upon this point when we treat of the indispensable character of the law in question.

12. As for the latter half of this second proposition, its truth may be inferred from what we have already said in connexion with the former conclusion. For the natural law prohibits those things which are bad in themselves; and this law is true divine law and a true prohibition; hence it must necessarily result in some sort of obligation to avoid an evil which is already evil of itself and by its very nature. Neither is it irrational to suppose that one may add to an act which is of itself righteous, the obligation to perform it; or that one may add to an act of itself evil, the obligation to avoid it. In fact, even when one obligation already exists, another may be added thereto, especially if it be of a different character, as is clearly true Edition: current; Page: [220] of a vow, a human law, and similar matters. Therefore, the law of nature, as it is true divine law, may also superimpose its own moral obligation, derived from a precept, over and above what may be called the natural evil or virtue inherent in the subject-matter in regard to which such a precept is imposed. This point will presently be more fully expounded, when we reply to the contrary argument.

13. The third proposition. The natural law is truly and properly [divine] law; and God is its Author. From the foregoing, then, I conclude and state as my third proposition that the natural law is truly and properly divine law, of which God is the Author.

This conclusion follows clearly from the discussion set forth above, and is taken from the works of the Fathers already cited, as well as from passages in Epiphanius and Tertullian, which are to be cited below, and from a work of Plutarch (Comment. In Principe Requiri Doctrinam, near the beginning [Ad Principem Ineruditum, 3, p. 780]).

Moreover, its truth may be demonstrated as follows: the natural law may be considered as existing either in God or in man; and as existing in God, it implies, to be sure, according to the order of thought, an exercise of judgment on the part of God Himself, with respect to the fitness or unfitness of the actions concerned, and annexes [to that judgment] the will to bind men to observe the dictates of right reason. This entire matter has already been sufficiently explained. Moreover, it may have been this doctrine that Augustine intended to suggest in the passage (Against Faustus, Bk. XXII, chap. xxvii) wherein he said: ‘The eternal law is the divine reason and will commanding the preservation of the natural order, and forbidding its disturbance.’17 For the particle vel is frequently understood in the sense of a connective, especially when the words between which it is placed are so related to each other that they are not to be separated [in meaning]; and this is true of the terms ‘divine reason’ and ‘divine will’, with respect to the eternal law; so that Augustine has included both.

Consequently, we may not approve the assertion of the Doctors cited in a later passage,18 namely, the assertion that [the action of] the divine will, Edition: current; Page: [221] whereby the natural law is sanctioned, does not presuppose the existence of a dictate of the divine reason declaring that a given act is righteous, or that it is evil; nor the further assertion that the will of God does not presuppose in the object, the existence of an intrinsic harmony or an intrinsic discord with the rational nature, by reason of which it wills that one thing be done and another avoided. For it is evident from our discussion of the second conclusion that such suppositions are false and opposed to the essence of the natural law.

Therefore, although the obligation imposed by the natural law is derived from the divine will, in so far as it is properly a preceptive obligation, nevertheless [such action on the part of] that will presupposes a judgment as to the evil of falsehood, for example, or similar judgments. However, in view of the fact that no real prohibition or preceptive obligation is created solely by virtue of such a judgment, since such an effect cannot be conceived of apart from volition, it is consequently evident that there exists, in addition, the will to prohibit the act in question, for the reason that it is evil.

Wherefore one concludes, finally, that the natural law, as it exists in man, does not merely indicate what is evil, but actually obliges us to avoid the same; and that it consequently does not merely point out the natural disharmony of a particular act or object, with rational nature, but is also a manifestation of the divine will prohibiting that act or object.

14.19 A satisfactory answer is given to the argument at the root of the two contrary opinions. It remains for us to reply to the argument at the root of the two [contrary] opinions. For the whole matter turns upon the following hypothesis: ‘Even if God does not issue the prohibition or commands which are part of the natural law, it will still be wicked to lie, and to honour one’s parents will still be a good and dutiful act.’

Two points must be considered, in connexion with this hypothesis: one is the question of what conclusion is to be drawn from it, once it has been posited; the other is the question of whether the hypothesis is admissible.

The reply of Medina to this fundamental opposing argument. To the latter of these queries Bartholomew Medina (on I.–II, qu. 18, art. 1) makes the reply that the hypothesis is inadmissible, because if it is assumed to be Edition: current; Page: [222] true, a contradiction is implied, as follows: lying, for example, is not a sin, because it is not forbidden by any law; and it is a sin, because it is contrary to reason and essentially incongruous with rational nature.

But, in opposition to this reply, one may urge that in the order of thought, such an act is evil, prior to the existence of any prohibition against it, by any law, in the strict sense of the term; that, therefore, even though one accepts the hypothesis in question, and so assumes that the action is not forbidden by God, it still does not follow that such an action is not evil, since by its very nature it does possess this quality, apart from any prohibition; and [finally] that for these reasons the self-contradictory conclusion mentioned above does not follow.

15.20 To this in turn one may reply that, although the negative proposition in the said conclusion does not follow on intrinsic grounds (as they say), or a priori, it does follow a posteriori and by extrinsic principles; for if the actions in question were not forbidden by God, then they would not be displeasing to Him, and consequently they would not be evil; yet, from another point of view, they are assumed to be evil; and thus the self-contradictory conclusion would indeed follow [upon the hypothesis which we are discussing]. Similarly, we may argue that, [according to this hypothesis,] if God willed that I should hate Him, then surely hatred of God would not be evil; yet, if my emotion is one of hatred, it is necessarily evil; and, therefore, that same contradictory conclusion would follow. Again, if God willed that fire should be cold by nature, that condition would surely result; but, since such a condition would be self-contradictory, it is impossible that God should will its existence. According to the reply [of Medina], then, one assumes that there is an inconsistency involved in the supposition that an act may in itself be evil and yet not be forbidden by God.

The reply of Medina is excluded. However, I do not see that his opinion can properly be supported by drawing [, from the hypothesis in question,] this inconsistent conclusion that a given action would [consequently] be evil and not evil at one and the same time. For, in arguing thus, one is guilty of a petitio principii21 and of reasoning in a vicious circle. Hence, Edition: current; Page: [223] another mode of proof must be adopted. A more fitting reply. Accordingly, as a result of that hypothesis, whether it be admissible or inadmissible, the sole inference is that a certain evil quality residing in a human act, or in the failure to perform that act, does not formally consist in a lack of conformity with a true precept or law, whether prohibitive or preceptive. Wherefore, if this hypothesis is posited, there follows, properly enough, the conclusion that such and such an action is evil, and not forbidden; but it cannot therefore be inferred that the two conditions are in reality separable, which is the only point pertinent to the matter under discussion.

16.22 Nevertheless, one may urge that the foregoing remarks lead to the conclusion that, if we assume the truth of the hypothesis that an act may be evil independently of the existence of any prohibitory law, or prescinding from and putting aside the law, then it will follow also that this act is morally evil, since it is assumed to be a free act; but the evil quality of a free act, because of disaccord with rational nature as such, is itself a moral evil; so that, consequently, the act in question is morally wrong, and not by reason of any prohibitory law; hence, it is also a sin, apart from all question of disaccord with a prohibitive law. Thus the entire foundation of the opinion which we have been discussing, falls to the ground.

To this argument, however, some writers, as B. Medina notes in the passage cited above, reply by distinguishing between an evil act and a sin, on the ground that the former term is more comprehensive and does not necessarily imply opposition to any law, which is not true with respect to a sin. Wherefore, these authors admit that in the case supposed the act in question would be evil; but they deny that it would be a sin. However, this is a difficult distinction; and it appears to be somewhat discordant with the doctrine of St. Thomas, for according to that doctrine, sin is nothing other than an action that is evil because it deviates from its proper end, that is, evil because, when it is or ought to be performed in view of some particular end, it does not work duly to that end, that is to say, it deviates therefrom. Consequently, if such an action is in the moral order and is human, the very fact that it is an evil act because of its deviation from right reason makes it a sin, as St. Thomas (I.–II, qu. 21, art. 1) declares; for that Edition: current; Page: [224] action deviates from the proper end toward which it should be directed, is therefore evil, and is consequently a sin.

Accordingly, other authorities reply that the action in question is indeed a sin, but that it does not involve guilt, if it is not contrary to law. But this statement, also, would seem to be opposed to the opinion of St. Thomas, as expressed in the same question (art. 2), in the course of which he says that in the case of free actions, sin and guilt are interchangeable terms and differ merely relatively, and as a matter of terminology. For a given act is termed a sin with reference to the fact that it deviates from its end; whereas it is called guilt with reference to the agent to whom it is imputed. But a free act, by virtue of the very fact that it is free, is imputed to an agent; hence, if it is both free and evil, it is in consequence a sin and involves guilt; and, therefore, even in the case supposed, and apart from the law of God, such an act would involve guilt. And thus, all the arguments set forth above [as a solution to the difficulty] in question, are bereft of force.

17.23 The true reply to the difficulty. Therefore, my own reply [with regard to that difficulty] is that in any human act there dwells some goodness or evil, in view of its object, considered separately in so far as that object is in harmony or disharmony with right reason; and that, in its relation to right reason, such an act may be termed an evil, and a sin, and a source of guilt, in view of the considerations above mentioned, and apart from its relation to law, strictly speaking. In addition to this [objective goodness or wickedness], human actions possess a special good or wicked character in their relation to God, in cases which furthermore involve a divine law, whether prohibitory or preceptive; and in accordance with such laws, these acts may in a special sense be said to be sins or to involve guilt in the sight of God, by reason of the fact that they transgress a true law of God Himself. It was to this special form of wickedness that Paul [Romans, Chap. iv, v. 15] apparently referred in the term ‘transgression’, when he said: ‘For where there is no law, neither is there transgression.’

A human action, then, opposed to rational nature, will not be characterized by this latter type of depravity, if one grants the supposition that God does not [positively] forbid this particular action; for, under such Edition: current; Page: [225] circumstances, it does not involve that virtual contempt of God which is involved in the violation of a law with respect to the legislator, as Basil declares (on Psalms, xxviii) in commenting upon the text: ‘Bring to the Lord glory and honour.’ The words of Paul (Romans, Chap. ii [, v. 23]) are in accord with this belief, when he says: ‘By transgression of the law, thou dishonourest God.’ Wherefore, Augustine has said (On True Religion, Chap. xxvi): ‘A prohibitory law redoubles [the guilt incurred through] all sins committed.’ And in connexion with this statement, he adds: ‘For it is not a simple sin to be guilty, not merely of that which is evil, but also of that which is forbidden.’

18.24 It is in this sense that St. Thomas (I.–II, qu. 71, art. 6, ad 5), too, seems to distinguish between a sin as contrary to reason and a sin as an offence against God, holding that in the former aspect it is treated by the moral philosophers, and in the latter aspect by the theologians. In the first case, then, the evil act would be a sin and would involve guilt in the moral order, but not in a theological sense, that is to say, not in relation to God. A similar interpretation should be given, so it seems, to the words of St. Thomas when, in the passage above cited, he answers the fourth objection, saying that the sins in question, in relation to the eternal law, are evil because forbidden; evil, surely, with that theological wickedness (so to speak) which such an act would not possess, unless it had been forbidden. Thus it is, apparently, that we must understand the argument which he appends, and which otherwise would be obscure. For, after saying that every sin is evil because forbidden relatively to the eternal law, St. Thomas adds [ibid., ad 4]: ‘For by the very fact that [such an act] is inordinate, it is repugnant to the natural law.’ This argument seems to prove that the sin is prohibited because evil, rather than the converse proposition. That is true, in speaking of the evil of irregularity in the moral order; and nevertheless, by reason of such irregularity, the eternal law is imposed, together with a divine prohibition in relation to which such a sin has a particular repugnance; and consequently that sin is also characterized by a special depravity which it would not possess if the divine prohibition had not intervened, and it is in view of this depravity that the character Edition: current; Page: [226] of sin considered theologically becomes complete, as well as that of absolute culpability in the sight of God. Victoria and some other theologians have apparently spoken to the same effect. And accordingly, the replies [of opponents] set forth above are without force save that which consists solely in words.

19.25 Therefore, from the hypothesis in question, if it is thus explained and its truth conceded, there can be drawn no conclusion opposed to our opinion, nor to the arguments by which we have proved that opinion. For, admitting the soundness of such a supposition, in the sense explained, nevertheless the natural law, thus viewed, truly and properly forbids anything in human actions which is in itself evil or inordinate; and if no such prohibition existed, that action would not possess the consummate and perfect character (so to speak) of guilt and of an offence against God, which undeniably exists in actions that are contrary to the natural law as such.

[20.] Whether God can have abstained from prohibiting by His own law those things which are opposed to natural reason. Moreover, in order that it may be entirely clear wherein this divine prohibition can intrinsically and essentially be a characteristic of the natural law, we should turn to the exposition of a second point, namely whether the hypothesis under discussion is admissible, i.e., whether it is admissible that God by an act of His own will has abstained from imposing, in addition, His own law that prescribes or forbids those things which in any case fall under the dictates of natural reason.

Two possible ways of speaking may be considered in connexion with this hypothesis.

The first and affirmative opinion. In the first place, we may say, indeed, if we have in mind the absolute power of God, that He can abstain from laying down such a prohibition, since no implied contradiction is evident in this statement, as would seem to be proved by the arguments accumulated by William of Occam, Gerson, and others in defence of their opinion. Nevertheless, such cannot possibly be the case, if we have in mind the ordinary law of divine providence, that is, the law which is in harmony Edition: current; Page: [227] with the nature of things; for this assertion at least is proved by the arguments opposed [to the assumption in question] and adduced in favour of our own opinion; and it is also strongly supported by Scripture and by the Fathers. Indeed, that same assertion would seem to provide an argument sufficiently strong, in favour of asserting that the natural law includes a true command of God, because the natural law is that law which harmonizes with the nature of things.

21.26 A second opinion, denying that the hypothesis is admissible. Another way of arguing may be as follows: the hypothesis is absolutely inadmissible, because God cannot fail to prohibit that which is intrinsically evil and inordinate in rational nature; neither can He fail to prescribe the contrary. Such is clearly the opinion of St. Thomas (I.–II, qu. 72, art. 6, and more clearly ibid., qu. 100, art. 8, ad 2), inasmuch as he says that the decree of divine justice with regard to this [natural] law is immutable, a statement which cannot be taken as referring to an immutability existing solely on the assumption of a [divine] decree; for in that sense every decree of God in connexion with any positive law whatsoever, is immutable. Therefore, St. Thomas must be speaking of immutability in an absolute sense. Hence, he holds that God cannot abandon the order of His justice in this matter, just as He cannot deny Himself or be unfaithful to His promises. The same opinion is clearly supported by B. Medina [on I.–II, qu. 18, art. 1]; and, more fully, in the aforecited Relectio XIII: De Pervenientibus ad usum rationis,27 nos. 9 and 10, part ii, by Victoria, in the passage where the latter holds that it is neither probable nor intelligible that any one could sin and not be under some superior and some precept, or law, of that superior. Accordingly, just as it is impossible that a man possessing the use of reason should be unable to sin, or that he should be under no superior, even so, [Victoria] believes it is equally impossible that God should be able to abstain from prohibiting those things which are evil in themselves, or from prescribing those which are necessary to natural rectitude. Finally, the reasoning whereby we have proved that God is in fact the Author of this law [of nature], proves also that such a law is necessary, in an absolute sense, Edition: current; Page: [228] inasmuch as God cannot fail to be displeased with actions of the sort in question, as befits His goodness, justice, and providence.

22.28 Objection. However, in order that the above argument may be elucidated, the following objection is raised: a divine command is an act of the will or at least presupposes the existence of volition and derives its origin therefrom; and the divine will is free in all of its external actions; hence, it is free even with respect to the act of volition in question; consequently, it is able to refrain from performing that act; and, therefore, it is able to refrain from imposing the precept under discussion.

The solution offered by some. To this objection, some persons reply that it suffices for the existence of the natural law, that there should be a natural dictate of the divine intellect whereby it judges that these evil actions should be avoided, and the good actions performed. For, in regard to those things which of themselves and intrinsically possess such qualities, that dictate is not a free act, but a necessary one; from the said dictate of divine and eternal law, in this matter, there necessarily issues a certain participation therein by the rational creature, assuming that he has indeed been created; and from this participation and derivation, without any further act of the divine will, there flows forth to the rational creature, as a natural consequence (so to speak), a special obligation, because of which he is bound to follow right reason as an indicator of the eternal rule that dwells in God. Accordingly, whatever may be true of the free actions of the divine will, this obligation and these prohibitions are necessary effects of the divine reason.

This reply is rejected. However, this reply is unintelligible, since the mere dictate of intelligence apart from will, cannot have the nature of a precept with respect to another being, nor can it impose upon that being, a particular obligation. For an obligation is a certain moral impulse to action; and to impel another to act is a work of the will. Moreover, the entire obligation in question does not transcend the force of the object, which is in itself good or evil, and from which the action involved derives its own essential goodness or evil; and the judgment of the reason29 merely has Edition: current; Page: [229] the office of applying and pointing out this object.30 Finally, the natural reason, by pointing out good and evil, has no more extensive nor stronger binding force because it is a participation of the divine reason, than it would possess in itself and viewed as being non-derivative.

23.31 The true reply to the objection: it is shown how, in spite of the existence of divine freedom, God cannot fail to prohibit, by some law, those things which are intrinsically evil. Therefore, I hold with Cajetan (on I.–II, qu. 100, art. 8), that although the divine will is absolutely free in its external actions, nevertheless, if it be assumed that this will elicits one free act, then, it may be necessarily bound, in consequence, to the performance of another action. For example, if through the divine will an unconditional promise is made, that will is obliged to fulfil the promise; and if it be the divine will to speak, or to make a revelation, that will must of necessity reveal what is true. In like manner, if it is the divine will to create the world, and to preserve the same in such a way as to fulfil a certain end, then there cannot fail to exist a providential care over that world; and assuming the existence of the will to exercise such providential care, there cannot but be a perfect providence, in harmony with the goodness and wisdom of the divine will. Accordingly, assuming the existence of the will to create rational nature [in such fashion that it shall be endowed] with sufficient knowledge for the doing of good and evil, and with sufficient divine co-operation for the performance of both,32 God could not have refrained from willing to forbid that a creature so endowed should commit acts intrinsically evil, nor could He have willed not to prescribe [, for performance by that creature,] the necessary righteous acts. For just as God cannot lie, neither can He govern unwisely or unjustly; and it would be a form of providence in the highest degree foreign to the divine wisdom and goodness, to refrain from forbidding or prescribing to those who were subject to that providence, such things as are [, respectively,] intrinsically evil, or necessary and righteous.

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Therefore, in the [alleged] argument, we must make a distinction as to the minor premiss. For, absolutely speaking, God could have refrained from laying down any command or prohibition; yet, assuming that He has willed to have subjects endowed with the use of reason, He could not have failed to be their lawgiver—in those matters, at least, which are necessary to natural moral rectitude. In like manner, the arguments suggested above are sufficiently cogent, since God cannot fail to hate that evil which is opposed to right reason, and since, moreover, He entertains this hatred, not merely as a private individual, but also as Supreme Governor; therefore, because of this hatred, He wills to bind His subjects lest they commit such evil.

24.33 Another objection. The solution of this objection, in the course of which it is shown what declaration of divine natural law God is obliged to give, in order that men may be bound by that law. Secondly, however, the objection is raised, that the will of the lawgiver does not suffice for the completeness of law, unless a publication, or declaration, of that will also takes place; and there is no reason which makes it obligatory that God should declare His will; hence, it is possible that He may refrain from making such a declaration, since He is free to refrain; and, therefore, it is possible that He may not establish the law in question, nor create any binding obligation through it, inasmuch as no obligation exists, independently of the declaration.

To this second objection I shall reply, in the first place, that if that volition on the part of God is essential to a fitting and prudent providence and government over mankind, it is in consequence necessary that, by virtue of this same providence, that divine volition shall be capable of being made known to men; and this process is sufficient for the nature of a precept and of law, nor is any other form of declaration necessary. Wherefore, it may further be stated that this very faculty of judgment which is contained in right reason and bestowed by nature upon men, is of itself a sufficient sign of such divine volition, no other notification being necessary. The proof of the foregoing is as follows: the faculty of judgment contained in reason, of itself indicates the existence of a divine providence befitting God, and morally necessary for His complete dominion and for the due subjection Edition: current; Page: [231] of mankind to Him, within which providence the legislation in question is comprehended. Moreover, for this same cause, it is revealed by the light of natural understanding, that God is offended by sins committed in contravention of the natural law, and that the judgment 34 and the punishment of those sins pertain to Him. Hence, this natural light is of itself a sufficient promulgation of the natural law, not only because it makes clearly manifest the intrinsic conformity or non-conformity of actions [with respect to that law,] a conformity and non-conformity which are indicated by the increate light of God; but also because it makes known to man the fact that actions contrary [to the law so revealed] are displeasing to the Author of nature, as Supreme Lord, Guardian and Governor of that same nature. This, then, suffices for the promulgation of the law under discussion, as St. Thomas has held (I.–II, qu. 90, art. 4, ad 1). On this account, moreover, the natural law is called the law of the mind, as has been noted by Epiphanius ([Panarium Adversus LXXX ] Haereses, Bk. LXIV, in words quoted from Methodius, at end of that section [Haeres. liv, no. lxi]), and as Tertullian suggests (Contra [Adversus] Judaeos, Chap. ii).

However, certain difficulties and certain rather obscure questions still remain in connexion with this matter. One question is this: does a transgression of the natural law, as we have explained such a transgression, involve any special kind of evil, distinct from that which the act would involve (according to the hypothesis discussed above) solely by reason of its non-conformity with rational nature as such? Furthermore, if that evil is of a special kind, what is its quality, and to what extent is its existence due to the force of the natural law? Again, one may ask whether it is possible to be invincibly ignorant of this special aspect of the natural law; and whether, assuming the existence of such ignorance, the commission of an act contrary to reason would be an offence against God; and whether it would involve infinite wickedness, that is to say, whether it would be a mortal sin. But these questions pertain rather to the subject-matter of sins,35 and, accordingly, I shall pass over them for the present, so that we Edition: current; Page: [232] may not digress too widely from our [immediate] purpose. Meanwhile, Victoria (aforesaid Relectio, De Pervenientibus ad Usum Rationis), Gerson (De Vita Spirituali, said Lectio II, a little before the First Corollary) and other authors already cited may be consulted.

CHAPTER VII: What Is the Subject-Matter Dealt with by Natural Law; or, What Are the Precepts of That Law?

1. We assume from the foregoing discussion that the subject-matter of natural law consists in the good which is essentially righteous, or necessary to righteousness, and the evil which is opposed to that good; in the one, as something to be prescribed, in the other, as something to be forbidden.

The proof of this assumption is as follows: since the law in question is true law and God is its Author, it cannot be other than righteous; and, therefore, it cannot prescribe anything save that which is righteous, neither can it prohibit anything which is not opposed to righteousness. Moreover, this law prescribes that which is in harmony with rational nature as such, and prohibits the contrary; and it is evident that the former1 is not otherwise than righteous.

The difference between the natural and other laws. Indeed, the natural law differs from other laws in this very respect, namely, that the latter render evil what they prohibit, while they render necessary, or righteous, what they prescribe; whereas the natural law assumes the existence in a given act or object, of the rectitude which it prescribes, or the depravity which it prohibits. Accordingly, it is usual to say that this law forbids a thing because that thing is evil, or prescribes a thing because it is good. We have already touched on this point, in the preceding Chapter.

2. Whether or not everything that is righteous and every opposing evil fall within the range of the natural law. The difficulty then turns upon the question of whether or not every moral good, and every contrary evil fall within the range of the natural law.

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The opinion of those who assert that only commonly applicable, general principles fall within the range of the natural law. For certain authorities have declared that the subject-matter of this law includes only general and self-evident principles concerned with goodness or evil in the moral sense, such principles as: ‘one must do good, and shun evil’; ‘do not to another that which you would not wish done to yourself’, and that it does not include the conclusions drawn from these principles, as for example: ‘a deposit must be returned’; ‘usury must be shunned.’ St. Thomas (I.–II, qu. 94, art. 2), is frequently cited in defence of this opinion, as is also Durandus (Tract. De Legibus). I have not been able to secure the work of the latter, but Torquemada (on Decretum, Pt. I, dist. 1, can. vii, no. 3) refers to him. Other jurists, too, support the same view to such a degree that, in their opinion, [even] the Commandments of the Decalogue embody principles, not of the natural law, but of the ius gentium, which these authorities regard as possessing a different character. Soto (De Iustitia, Bk. I, qu. v, art. 4) apparently inclines to this same opinion, as I shall point out more fully in the following Chapter. Moreover, the authors cited appear to base their stand upon a manner of speaking employed by the Roman jurisconsults, who do not attribute to the natural law those actions which are dictated by reason and solely through a process of rational reflection, as may be gathered from various passages of the Digest (I. i. 1, 2, 3 and 9, and others, also XVI. iii. 31).

3. The basis of the opinion above set forth may, in the first place, be the fact that the natural law is one to which nature itself gives an immediate inclination; and only first principles are of this kind, since those which are arrived at through reasoning have rather their origin in man himself. Hence, even with respect to habits2 themselves, a distinction must be drawn between a habit of applying principles and one of applying conclusions. In the second place, the law which deals with first principles is absolutely immutable, both in its essence, and also from the standpoint of mankind, since ignorance of it is impossible; but that law which is Edition: current; Page: [234] concerned with conclusions, is mutable, and ignorance thereof is possible. Thirdly, if the opinion in question were not correct, even the virtuous acts prescribed by men would pertain to the natural law, since they are drawn from that law by a process of reasoning. Fourthly, if the said opinion were incorrect, the ius gentium would not be distinguishable from the natural law; but would on the contrary be a part or a subdivision of the latter.

4. The question is answered; and it is shown that the natural law embraces all moral precepts which are plainly characterized by the righteousness necessary to virtuous conduct. Nevertheless, we must assert that the natural law embraces all precepts or moral principles which are plainly characterized by the goodness necessary to rectitude of conduct, just as the opposite precepts clearly involve moral irregularity or wickedness.

This is the opinion of St. Thomas (I.–II, qu. 91, art. 2; qu. 94, arts. 2 and 4 [art. 3]; qu. 95, art. 2; qu. 100, arts. 1, 2, and 3), as set forth in several passages, in connexion with which Cajetan, Conrad Koellin and other commentators express a like view; as does Soto, also (De Iustitia, Bk. I, qu. iv, art. 2; qu. v, arts. 1 and 2; Bk. III, qu. i, arts. 2 and 3). One gathers that the theologians cited in the preceding Chapter are of the same mind. And this is also true of Torquemada (on Decretum, Pt. I, dist. 1, can. vi, in many articles, especially the first and last) and Covarruvias (on Sext, rule peccatum, Pt. II, § 11, no. 4); as it is of Aristotle (Nicomachean Ethics, Bk. V, chap. vii), in the passage where he divides all law into two kinds, natural and legal, including under the former head all that which involves necessary and immutable truth. Cicero expresses this same view, in his work (On Invention, Bk. II [, chap. xxii]), defining the natural law as, ‘That which is imparted to us, not by mere opinion, but by a certain innate force, as is the case with religion, piety,’ &c. Isidore (Etymologies, Bk. V, chap. iii [chap. iv]), too, is of a similar mind, when he expounds the natural law by means of still other illustrations. Augustine (On Free Will, Bk. I, chap. iii) expresses himself in like manner, in that he classifies adultery as being contrary to natural law,3 for the same principle would apply to every offence of a similar sort. Finally, the conclusion in question may be deduced from the Psalms (iv [, vv. 6–7]): ‘Who sheweth us good Edition: current; Page: [235] things? The light of thy countenance, O Lord, is signed upon us.’ For we rightly conclude from this passage that all those things which natural enlightenment makes evident, pertain to the natural law. This conclusion may be confirmed from the words of Paul, in his Epistle to the Romans, Chap. ii [, v. 14]: ‘The Gentiles who have not the law do by nature those things that are of the law’; whence he infers that the Gentiles are a law to themselves; yet those things which are clearly recognized by means of natural enlightenment, whether they be recognized with or without reflection, are rightly said to be produced by nature; therefore, . . .

5. The assertion in question is confirmed by reasoning. The assertion in question4 may also be demonstrated by reasoning. For those things which are recognized by means of natural reason, may be divided into three classes. First, some of them are primary and general principles of morality, such principles as: ‘one must do good, and shun evil’, ‘do not to another that which you would not wish done to yourself’, and the like. There is no doubt but that these principles pertain to the natural law. Again, there are certain others, more definite and specific, which, nevertheless, are also self-evident truths by their very terminology. Examples [of the second group] are these principles: ‘justice must be observed’; ‘God must be worshipped’; ‘one must live temperately’; and so forth. Neither is there any doubt concerning [the fact that] this group [comes under the natural law], a point which will become evident, a fortiori, as a result of the discussion that is to follow. In the third class, we place those conclusions which are deduced from natural principles by an evident inference, and which cannot become known save through rational reflection. Of these conclusions, some are recognized more easily than others, and by a greater number of persons; as, for example, the inferences that adultery, theft, and similar acts are wrong. Other conclusions require more reflection, of a sort not easily within the capacity of all, as is the case with the inferences that fornication is intrinsically evil, that usury is unjust, that lying can never be justified, and the like.

The assertion set forth above may, then, be understood as applicable to all these [principles and conclusions]; for all of them pertain to the natural Edition: current; Page: [236] law. And if this truth is established with regard even to the conclusions of any one of these classes, then, the same truth will, a fortiori, be established with regard to the other conclusions mentioned, provided only that a degree of evidence involving certainty is reached.

6. Therefore, the proof follows; first, by a process of induction. For the precepts of the Decalogue are precepts of natural law, a fact accepted by all. Yet they do not all embody self-evident principles. On the contrary, some of them require reflection, as is also evident. This point is still more clear with regard to many natural precepts which are included within those of the Decalogue; as, for example, the prohibitions against simple fornication, against usury and against vengeance inflicted upon an enemy by one’s own authority, all of which according to Catholic doctrine, indubitably pertain to natural law. In like manner, the affirmative commands to keep vows and promises, to give alms out of one’s superfluous possessions, to honour one’s parents, are natural precepts, not only according to the faith, but also according to the philosophers and all right-thinking persons. Yet the conclusions [leading to these precepts] are not reached without reflection and, in some cases, a great deal of elaborate reasoning.

Secondly, we may advance the argument that all the [acts] dealt with by these principles and conclusions,5 are prescribed because they are righteous, or forbidden because they are evil, while the converse [i.e., that they are righteous because prescribed, or evil because forbidden] is not true; therefore, the said [acts] do not fall under positive law; and, consequently, they do come under natural law. For, as I have noted above, there is no branch of law outside [of these two]. The truth of the first consequent is evident from the fact that a positive law is properly one which involves additional obligation, beyond what is demanded by the intrinsic character of the subject-matter; for, as Aristotle has said [Nicomachean Ethics, Bk. V, chap. vii], positive law concerns those things which were of no import, before the enactment of the law. The truth of the antecedent is also clear. For the truth of a principle cannot stand, apart from the truth of the conclusion that is necessarily drawn [therefrom]; accordingly, Edition: current; Page: [237] if a conclusion relating to righteousness necessarily follows, from natural principles, then, even apart from any external law, that conclusion is righteous per se and by its intrinsic force; and therefore, when a law is [justly] applied [to such matter], it is applied because its object is necessarily righteous; the converse is also true, in the case of prohibitions and that which is [necessarily] evil.

7. Thirdly, no one is doubtful as to the primary and general principles; hence, neither can there be doubt as to the specific principles, since these, also, in themselves and by virtue of their very terminology, harmonize with rational nature as such; and, therefore, there should be no doubt with respect to the conclusions clearly derived from these principles, inasmuch as the truth of the principle is contained in the conclusion, and he who prescribes or forbids the one, necessarily prescribes or forbids that which is bound up in it, or without which it could not exist. Indeed, strictly speaking, the natural law works more through these proximate principles or conclusions than through universal principles; for a law is a proximate rule of operation, and the general principles mentioned above are not rules save in so far as they are definitely applied by specific rules to the individual sorts of acts or virtues.

Finally, all these precepts proceed, by a certain necessity, from nature, and from God as the Author of nature, and all tend to the same end, which is undoubtedly the due preservation and natural perfection or felicity of human nature; therefore, they all pertain to the natural law.

8. Gratian (Decretum, Pt. I, dist. i, at beginning), indeed, adds that the natural law is that which is contained in the law and the Gospel. If this is true, not only the precepts which we have mentioned, but also the precepts which God transmitted through Moses, or which Christ laid down in the New Law, will come under the natural law; for these precepts are embodied in the Gospel and the [Old] Law. The Gloss, tacitly replying to this remark of Gratian, contains in connexion with that passage a comment that the natural law is therein called by Gratian the divine law, a comment which indicates that [the natural law, as interpreted by Gratian] includes not only the natural divine law, but the positive divine law as well. This view is adopted by several of the jurists, also. Moreover, St. Thomas says (on the Sentences, Bk. IV, dist. xxxiii, qu. 1, art. 1, ad 4) Edition: current; Page: [238] that ‘The term “natural” is sometimes applied, not only to that which is derived from an intrinsic principle, but also to that which is infused and impressed by a Superior Agent, namely, God; and it is so interpreted by Isidore, when he says that what is contained in the Law and the Gospel is natural law.’ For the words in question, although they are taken not from Isidore, but from Gratian [Decretum, Pt. I, dist. i], are apparently based upon a passage of Isidore (Etymologies, Bk. V, chap. ii), which Gratian cites just below in Chapter One of the same distinction of the Decretum, and which reads: ‘All laws are either divine or human; divine laws are founded upon nature, human laws upon custom.’

Nevertheless, the interpretation in question is apparently not the one supported by the Fathers cited above. For, in the first place, they explain with sufficient clarity the kind of natural law to which they have reference, namely, that which is common to all nations and which has been established by natural instinct, not by any decree; a distinction by means of which they differentiate it from the civil law. Wherefore, these same authorities are clearly speaking of the law (ius), or rather, of the legal rules (legibus), whereby men have from the beginning been governed, whether by virtue of the strictly natural establishment of these rules, or else by their establishment on the basis of natural [principles]. The said authorities, then, do not include [under the natural law] supernatural or positive divine law. Neither is it probable that they include, under the term, ‘natural law’, all the ceremonies of the Old Law, or the ordinances relating to the Sacraments.

9. The words of Gratian are explained. Accordingly, I maintain that Gratian does not say that the natural law includes all those things which are contained in the Law and the Gospel; neither does he so describe or define the natural law. He merely asserts that it is comprehended within the [Old] Law, at least in so far as relates to its moral precepts and the precepts of the two Tables; and also within the Gospel, both in so far as the Gospel (Matthew, Chap. v) expressly confirms and expounds the precepts of the Decalogue, and in so far as the whole of the natural law is virtually contained in that principle which is laid down in the first of the Gospels (Matthew, Chap. vii [, v. 12]): ‘Whatsoever you would that men should do to you, do you also to them.’ This last text especially, seems to have Edition: current; Page: [239] been in Gratian’s mind; so that his words should be assembled as follows [Decretum, Pt. I, dist. i]: The natural law is the rule whereby each of us is commanded to do to another, what he would wish done to himself, a rule which is contained in the Law and the Gospel.6 Hence, Christ, according to the Gospel, has said: [‘All things therefore whatsoever you would that men should do to you, do you also to them. For this is the law and the prophets.’]

The explanation given by St. Thomas (I.–II, qu. 94, art. 4, ad 1) is very similar; as is also that of Torquemada (on Decretum, Pt. I, dist. i, art. 3, ad 4), although he does not speak consistently, for he favours now one interpretation, now another, and first rejects the opinion expressed in the Gloss, later approving the interpretation of St. Thomas, in Article 4, an interpretation which, subsequently, he has undoubtedly repudiated.

However, it remains to be explained at this point, whether all the conclusions which are clearly drawn from the principles of the natural law are, in an absolute sense, an integral portion thereof; and what, or how necessary,—that is to say, how evident,—a connexion between the two must exist in order to bring about their inclusion therein. This point, indeed, will in part be more easily disposed of, [than if we were to discuss it here independently,] when we reply to the foregoing arguments, and in part when we demonstrate in subsequent chapters the immutability of the natural law.

10. In regard to the bases of the contrary opinion, I deny, in the first place, that St. Thomas was of this opinion. The fact that he did not take such a view, has been made sufficiently clear by the foregoing discussion. Nor was Soto’s opinion different [from that of St. Thomas], as Soto himself has quite fully explained (De Justitia, Bk. III, qu. i, art. 3). As to that held by the jurists, this is a point which I shall discuss in the following Chapter.

Moreover, my reply to the first argument7 [in defence of the contrary opinion] is as follows: whatever is the result of a necessary dictate of the Edition: current; Page: [240] natural reason, is, as a matter of necessity, consequent upon nature, and is derived from a natural inclination, whether the said dictate be formulated directly, or indirectly through reflection. For not only the inclination which is a direct product [of the natural reason], but also that which is indirectly consequent thereon, flows from nature; and not only the internal principle of the impulse, but also the impulse itself, and the end that it seeks, are natural. Furthermore, the moral question, that is, the obligation, is little affected by the fact that reflection is or is not involved, provided that the obligation itself has an intrinsic connexion with the object [of the impulse], and with nature as well.

As to the second argument,8 I shall demonstrate below that the natural law is not, strictly speaking, mutable, although certain precepts of that law may involve subject-matter that is more or less mutable, a fact which does not alter the formal character of the law.

11. Whether all virtuous actions come under the natural law. In connexion with the third argument,9 a special difficulty is raised, namely, the question of whether or not all virtuous actions fall under the natural law. This question is discussed in two passages by St. Thomas (ibid., qu. 94, art. 3 and qu. 100, art. 2), who answers it affirmatively, explaining, however, that under natural law, he includes not only precepts, but counsels [of perfection] as well. Our inquiry, on the other hand, properly concerns the precepts [alone]. Therefore, it would be easy for us to dispose of the difficulty in question by the same method as that which we applied to our discussion of the eternal law: namely, by stating that all virtuous acts, in so far as relates to the specifications—that is, the manner—according to which they should be carried out, fall under the natural law; although they are not all prescribed [by that law] in an absolute sense, that is, in so far as actual performance is concerned.

However, St. Thomas, in the former of the two passages cited above, also propounds a different answer, involving the distinction that the term ‘virtuous acts’ may be considered to have a twofold sense, one of which has reference to the principle of virtue residing within those acts—reference, Edition: current; Page: [241] that is, to the fact that they are [in one way or another] virtuous;10 while the other sense is absolute, referring to the acts as they are in themselves. St. Thomas affirms that, in the first sense, all virtuous acts come under the natural law, but he denies that this is true in the second sense.

This distinction may be expounded in two ways. First, it may be explained as meaning that every virtuous act, when viewed in the light of its specific nature as virtue, comes under a natural precept prescribing not only the mode of performance, but also [the obligation] to perform it; for it is thus, in a strict sense, that we speak of precepts. If, on the other hand, we are to consider individually all virtuous acts of whatsoever kind, then, in this sense, not every such act comes under a natural precept.

This latter part [of our explanation] is plainly true; both with respect to acts falling under the counsels of perfection; and also with respect to many good acts which (although they are not characterized by the highest degree of moral excellence, and therefore are not matters of counsel, nor even matters of a necessary nature, so that they are consequently not [made obligatory] by any precept) are nevertheless righteous and may licitly be performed, as is the case with the act of marriage, &c.

12. Whether there is attached to every virtue, a natural precept requiring the exercise of that virtue, at one time or another. A difficulty arises, however, with regard to the first part of the explanation, a difficulty as to whether there exists in connexion with every virtue, a natural precept requiring the exercise of that virtue at one time or another. For, as a general rule, it is a sufficiently self-evident fact that this is the case; but the rule does not seem to hold with regard to certain virtues, such as liberality, which by its very nature would seem to exclude any attendant obligation, or eutrapelia (urbanity), which also appears to be in large measure a matter of choice.

An exact treatment of this difficulty, indeed, would necessitate an examination of all the virtues. Consequently, I shall state briefly that if the term ‘precept’ is taken in its rigorous meaning, as involving obligation under pain of mortal guilt, then precepts are to be applied not to every sort of virtue, but only to the more important ones, a fact which is proved Edition: current; Page: [242] by the argument set forth above. With regard to truth, [for example,] many persons hold that this virtue is never in itself obligatory under pain of mortal guilt, unless there is attached to it an obligation of justice or of some other similar virtue which is involved in it; [otherwise, truth] is not prescribed under penalty of mortal guilt. If, however, we are speaking more broadly, so as to include obligations under pain of venial guilt, there is probably, in that sense, no virtue the practice of which is not at one time or another obligatory. For, in view of the fact that the perfect rectitude of an individual man, his proper behaviour, both relatively to himself and in his relations with others, results from the possession of all the virtues collectively, it is probable that there are for each of the virtues respectively occasions on which it ought to be practised, owing to a special obligation attaching to each, with respect to which neither liberality nor any other virtue is an exception.

13. [Secondly,] the distinction in question may be interpreted in another sense. A virtuous act may be considered as such either in its objective aspect (as, for example, the act of eating or of abstaining therefrom); or in its formal aspect, as when the action is considered with reference to the fact that it involves the mean [between two extremes]. St. Thomas [I.–II, qu. 94, art. 3 and qu. 100, art. 2], then, is speaking of virtuous actions regarded in the latter aspect, when he says that they fall under the natural law, in that this law has regard to what is righteous.

With respect to this point, we must bear in mind the fact that there are two ways in which a given act may be found to contain the mean of virtue. In the first place, this may be discerned from the very nature of the case, in that—given the subject-matter of a particular act, a particular individual performing the same, and particular circumstances surrounding its performance—it is found, solely by means of reason and natural reflection, that the conduct in question involves the mean of a virtue, so that, in such a situation, the natural law clearly imposes an obligation [to perform the said act]. Secondly, however, it may happen that the mean of a virtue is placed in some particular subject-matter by the sole force of positive law, as in the case of fasting, or in that of the just price of a certain article. Under such circumstances, doubt exists as to whether the natural law has application. For St. Thomas appears to speak indifferently and in Edition: current; Page: [243] general terms on this point, and evidently it is thus that he is understood by Cajetan and other commentators. On the other hand, one may argue that in this second situation, either the obligation of the positive law is abolished,11 or else the obligations concerning the act in question are multiplied. But I shall deal with this matter more properly in explaining the effects of the natural law. For the present, I merely assert, that the natural law does indeed play a part in this situation, not so much as creating an obligation of itself, but as giving efficacy to positive law.

14. The fourth12 argument raised a grave question as to the distinction between the natural law and the ius gentium, a distinction which cannot be clarified without a clear exposition of both of the systems to be contrasted. Consequently, we shall postpone the treatment of that point to the last part of this Book,13 where, after a complete discussion of the natural law as it is in itself, we shall say something regarding the ius gentium; for in this context we may more fittingly explain the difference between these two forms of law.

CHAPTER VIII: Is the Natural Law One Unified Whole?

1. Three questions may be asked at this point. First, with respect to a single individual, is the natural law one unified whole? Secondly, with respect to all men and in all places, is it one unified whole? Thirdly, is it also such a unified whole with respect to all times and every condition of human nature?

Before replying separately to these questions, however, I must again call attention to a fact which I have noted above, that this natural law may be conceived of either in its relationship Edition: current; Page: [244] to pure nature,1 or in its relationship to [divine] grace, in so far as the latter has also a nature of its own. In this sense, then, it is manifest that there is a twofold natural law; the one phase that of humanity, so to speak; the other, that of grace. For these two phases are of different orders, and are directed to widely different ends. Accordingly, one of the two is wholly connatural with human nature; the other, wholly supernatural. Cajetan (on I.–II, qu. 100, art. 1), clearly teaches that this distinction exists, and the same conclusion is to be drawn from St. Thomas himself (I.–II, qu. 100, art. 1, and more clearly in art. 3). Therefore, the three questions enumerated above may be discussed from the standpoint of each of these two divisions; and indeed, everything that we say concerning the natural law may, in due proportion, be applied to both divisions. However, we almost always speak, by way of example, of the law that is wholly natural, partly because that law is better known, and partly because authorities usually adopt this manner of speaking.

2. With respect to any one, there are many natural precepts; yet all of these form one unified body of law. Turning to the first question, then, we must state that with respect to any one individual, there are many natural precepts; but that from all of these there is formed one unified body of natural law. It is thus that St. Thomas [I.–II, qu. 94, art. 2], Soto, and others explain this matter. Moreover, the same conclusion is drawn from the Digest (I. i. 1, § 2), in the following passage: ‘This law is made up of natural precepts.’2 The basis of this unity, apart from the common manner of speaking, consists, according to St. Thomas, in the fact that all natural precepts may be reduced to one first principle in which these precepts are (as it were) united; for where there is union, there is also a certain unity. Basil (Regulae Fusius Tractatae, Interrogatio 1), too, upholds this opinion when he says that a [relative] order exists between the divine commands, one of them—that enjoining the love of God—being the first, the other—that enjoining the love of one’s neighbour—being the second, as stated in Matthew (Chap. xxii [, v. 39]); and that the remaining natural precepts are reduced to these two, as to primary principles, a fact which Paul also has indicated (Romans, Chap. xiii [, v. 8]). Finally, it may be added that all natural precepts are united in one end; in one author or lawgiver, also; and in the one characteristic of avoiding evil Edition: current; Page: [245] because it is evil, and of prescribing good because it is right and necessary; so that these facts suffice to constitute a moral unity.

3. However, in order that the multitude of precepts may be reduced to some kind of order, they may be distinguished from one another under various heads. For example, they may be distinguished with reference to the persons for whom they are—objectively, so to speak—ordained. Thus, certain precepts relate to God; certain others to one’s neighbour; and still others, to the individual himself. Or, the precepts in question may be distinguished according to the virtues [which they prescribe]. For some relate to justice; others to charity or natural love; and so on. Or, again, they may be distinguished according to their respective relations to the intellect. It is thus that natural precepts are classified by St. Thomas, Cajetan, and others, even as propositions necessarily true are classified by the philosophers. For certain of these precepts are manifest in and of themselves, and with respect to all men, as is the case with the most universal precepts. Others are manifest in and of themselves, and in an immediate sense, but not in so far as relates to our apprehension, although they may have this character in so far as relates to the wise. As examples of this group, we have certain precepts regarding individual virtues, and the Commandments of the Decalogue. However, there are still other precepts, which call for reflection [in order that they may be known], and this group, in turn, admits of gradations; for certain of these precepts are recognized easily, others with difficulty. The distinctions above set forth will be useful in examining the matter of ignorance in regard to natural law, a point which we shall presently discuss.

4. Lastly, St. Thomas (ibid., qu. 94, art. 2), followed by Cajetan and others, traces this variety in the natural precepts to the varied natural inclinations of mankind. For man is (as it were) an individual entity and as such has an inclination to preserve his own being, and to safeguard his own welfare; he is also a being corruptible—that is to say, mortal—and as such is inclined towards the preservation of the species, and towards the actions necessary to that end; and finally, he is a rational being and as such is suited for immortality, for spiritual perfection, and for communication with God and social intercourse with rational creatures. Hence, the natural law brings man to perfection, with regard to every one of his tendencies and, in this capacity, it contains various precepts—for example, precepts Edition: current; Page: [246] of temperance and of fortitude, relating to the first tendency mentioned above; those of chastity and prudence, relating to the second tendency; and those of religion, justice and so forth, relating to the third tendency. For all these propensities in man, must be viewed as being in some way determined and elevated by a process of rational gradation. For, if these propensities are considered merely in their natural aspect, or as animal propensities, they must be bridled, that virtue may be attained, as Aristotle (Nicomachean Ethics, Bk. II, chap. ix) and Chrysostom, in an excellent passage (Homily XIII, To the People, near the end), have said; and on the other hand, if the same propensities are considered with respect to their capacity for being regulated by right reason, then proper and suitable precepts apply to each of them.

5. The natural law is a single unit with respect to all men. In answer to the second question,3 the statement must be made that this natural law is a unified whole with respect to all men and in all places. This is the opinion of Aristotle (ibid., Bk. V, chap. vii) and likewise of Cicero, whose remarkable words have been quoted above [Chap. v, p. 185] and cited by Lactantius (Divine Institutes, Bk. II, chap. vii and Bk. V, chap. viii). St. Thomas ([I.–II,] qu. 94, art. 4), and all the commentators on that passage may also be consulted in this connexion.

The rational basis of this position is that the law in question is (so to speak) a peculiar quality accompanying not the particular rational faculty of any given individual, but rather that characteristic nature which is the same in all men. Furthermore, synteresis is one and the same in all men; and, absolutely speaking, the recognition of the truth of conclusions might be one and the same; therefore, the law of nature is also one and the same [in all men].

Objection. At this point, one encounters the objection that various nations have followed laws contrary to natural precepts; and that consequently, the natural law is not the same in all nations. The truth of the antecedent is clear from the words of Jerome (Against Jovinianus, Bk. II [, no. 7]), of Theodoret (Curatio, Bk. IX) and of St. Thomas (ibid.), where the latter declares, on the authority of Julius Caesar (Gallic War, Bk. VI Edition: current; Page: [247] [, chap. xxiii]), that formerly, among the Germans, theft4 was not considered iniquitous. Castro also (De Potestate Legis Poenalis, Bk. II, chap. xiv), following Plutarch, says the same thing of the Lacedaemonians. Moreover, Plutarch, in his account of the life of Lycurgus [Lycurgus, Chap. xv, no. 6] relates that adultery was approved by the latter.

Solution. To this objection, following St. Thomas (ibid.), I shall reply briefly that the natural law in so far as relates to its substance is one and the same among all men, but that, in so far as concerns the knowledge of it, that law is not complete (so to speak) among all.

6. I shall expound this statement briefly. For, as I have previously remarked, the natural law may be considered in its first act,5 and as such, it may be regarded as the intellectual understanding itself; so that it is therefore evident that in this sense, the natural law is one and the same in all men. Furthermore, it may be the same with respect to the second act,6 that is, in actual cognition and judgment, or again, in a proximate habit induced by such act; and in this sense, the natural law is in part [the same] in all who have the use of reason. For in so far, at least, as regards the primary and most universal principles—no one can be ignorant of this law, inasmuch as those principles are by the very terms defining them completely known and to such a degree in harmony with and (as it were) fitted to the natural bent of the reason and will, that it is not possible to evade them. Thus it is that St. Thomas (ibid., art. 6), has said that the natural law, at least in so far as such principles are concerned, cannot be eradicated from the hearts of men. And it is in the same sense, that some writers interpret Aristotle (Nicomachean Ethics, Bk. III, chap. i [, § 15]), when the latter says that any person may well be censured if he is ignorant of universal [principles]. On the other hand, one may [less reprehensibly] be ignorant of particular precepts; and, assuming the existence of such ignorance, some nations may have introduced rules contrary to the natural law, although these rules were never regarded by them as natural, but were considered as positive human rules.

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7. Whether ignorance of natural precepts can be invincible. The negative opinion on this point. In this connexion, however, a question arises as to whether such ignorance of natural precepts can be invincible.7 Castro [De Potestate Legis Poenalis, Bk. II, chap. xiv] indicates that this is not possible; and the same opinion has been held by some other theologians, as may be seen in the works of Alexander of Hales (Pt. II, qu. 153, membrum 3), and of Durandus (on the Sentences, Bk. III, dist. xxv, qu. 1). Moreover, certain jurists also favour this view, as is evident from the words of Gratian (Decretum, Pt. II, causa i, qu. iv, can. xii); and from the Gloss (on Decretals, Bk. I, tit. iv, chap. ii).

The opinion of Suárez. But since it is customary to treat of this point more at length in dealing with the subject of sin ([Disp. XV, De Peccatis of Tract. De Fide,8 in which is cited] St. Thomas, I.–II, qu. 76), my opinion shall be briefly stated here, as follows: it is not possible that one should in any way be ignorant of the primary principles of the natural law, much less invincibly ignorant of them; one may, however, be ignorant of the particular precepts, whether of those which are self-evident, or of those which are deduced with great ease from the self-evident precepts.

Yet such ignorance cannot exist without guilt; not, at least, for any great length of time; for knowledge of these precepts may be acquired by very little diligence; and nature itself, and conscience, are so insistent in the case of the acts relating to those [precepts] as to permit no inculpable ignorance of them. The precepts of the Decalogue, indeed, and similar precepts, are of this character. The truth of the foregoing has been sufficiently indicated by Paul (Romans, Chap. ii [, vv. 12 et seq.]), for he was speaking of the transgression of the precepts in question, when he said of the Gentiles that they were given over [by God] to reprobation, on account of their sins. The same may be inferred from the Decretum (Pt. II, causa xxxii, qu. vii, can. xiii). However, with respect to other precepts, which require greater reflection, invincible ignorance is possible, especially on the part of the multitude, a fact which is also to be inferred from the Decretum (ibid., qu. iv, can. vii). Edition: current; Page: [249] The reason for this, is self-evident. See Corduba (Quaestionarium Theologicum, Bk. IV, qu. iv), and Soto (De Iustitia, Bk. I, qu. iv, art. 4).

8. The natural law is a single law, with respect to all times, and every condition of human nature. The last statement to be advanced is that the natural law is a single law with respect to all times and every condition of human nature.9 So Aristotle teaches (Nicomachean Ethics, Bk. V, chap. vii) using the phrase ‘everywhere and always’; and Cicero (The Republic, Bk. III [, chap. xxii]) supports the same view; as does Lactantius ([Divine Institutes,] Bk. VI, chap. viii), who says: ‘all nations in every time,’ &c. The reason for these statements, indeed, is the same; namely, that the law in question is the product, not of any [particular] state in which human nature is found, but of human nature itself in its essence. However, there are some who may say that, although this is true with respect to the universal principles of the natural law, it does not hold with respect to the conclusions drawn therefrom; but that, on the contrary, one must distinguish between two states of human nature, namely, the incorrupt and the corrupted states, a diverse form of the natural law being applied to each. For in the former, the natural law demanded, for example, the liberty of all men, common ownership, and the like; whereas, in the corrupted state, it demands servitude, division of property, &c., a conclusion which may be gathered from the Digest (I. i. 4), and also from the Institutes (I. ii, § 1).

9. This distinction, however, is not a necessary one. For, in the first place, the examples cited and any similar examples which may exist, pertain not to the natural law, in its proper and positive sense, but to the ius gentium (a point which I shall later explain more fully).10 Wherefore, true natural precepts—generally speaking, at least—are commonly applicable to both the incorrupted and the corrupted states.

In the second place, it is one thing to speak of the existence of such precepts (as it were) and another thing to speak of their actual binding force or application. Therefore, although a given condition may demand the application of one precept and not of another, the natural law is Edition: current; Page: [250] nevertheless always the same, and comprises the same precepts; since the latter are either principles, or else conclusions derived therefrom by a necessary inference, and consequently possess a necessary quality of which they are not devoid with respect to any condition whatsoever.

Finally, it may be asserted that in connexion even with the natural law one may consider either its negative or its affirmative precepts. The negative precepts must necessarily be and have always been the same for all conditions [of human nature]; for they prohibit actions intrinsically evil, which are therefore evil for every such condition. Furthermore, they are binding without intermission,11 and consequently, binding also for every [human] condition, whenever their proper subject-matter shall be involved.

The affirmative precepts, on the other hand, in like manner prescribe actions which are righteous of themselves, and consequently possess always this same righteous nature; and, nevertheless, since they are not binding without intermission, it may be that in connexion with one particular [human] state there will arise occasions to observe certain of these precepts, and in connexion with another [human state], occasions for the observance of other precepts. Yet this fact does not suffice to justify the assertion that the law itself is diversified in character. For even in the corrupted state of [human] nature, a time of peace is one thing, a time of war is quite another thing, and during these times respectively, diverse precepts must be observed. Furthermore, the art of medicine is one and the same art, even though it prescribes that certain things shall be done in time of health, and other things in time of illness. It is in such a sense, then, that the natural law is always one and the same.

CHAPTER IX: Is the Natural Law Binding in Conscience?

1. Thus far, we have expounded the nature and causes, that is to say, the subject-matter, of the natural law. Next in order we must treat of the Edition: current; Page: [251] effects of that law, of which the chief, or very nearly the sole effect, is its binding force, for if the natural law does have other effects, they too may be reduced to this one. Its binding obligation, then, and the mode in which it so binds, must be discussed.

2. An assertion: The natural law is binding in conscience. In the first place, we must establish the fact that the natural law is binding in conscience.

This conclusion is unquestionably true, being a matter of faith, according to the theologians. It may be deduced, moreover, from the words of Paul (Romans, Chap. ii [, v. 12]): ‘For whosoever have sinned without the law,’—the written law, undoubtedly—‘shall perish without the law’; that is, [they shall perish] because they have violated the natural law. With regard to the latter, Paul adds [ibid., vv. 14, 15]: ‘The Gentiles, who have not the law, do by nature those things that are of the law [ . . . ], their conscience bearing witness to them.’

As for the reasons in favour of the above proposition, however, the first is that the natural law is the law of God, as has been shown. Secondly, this law is the proximate rule of moral goodness; and therefore, moral evil is wont to result from defiance of this law, so that sin is defined as an act contrary to God’s law. Although Augustine and St. Thomas offer this explanation in connexion with the eternal law, yet, touching the subject-matter of the natural law also, whatever is to any extent contrary to reason, is to the same extent contrary to the eternal law, a view which is held by St. Thomas himself (I.–II, qu. 71, art. 6, ad 4 and 5). For the eternal law, as I have said above, is not the proximate rule for man, save in so far as it is explained by the natural law; and it may consequently happen that the latter, considered in all its latitude, shall be binding both under pain of mortal, and under pain of venial guilt; a fact which is clearly to be gathered from the above-cited passage in the Epistle of Paul, and which may easily be proved by induction. The reason for this assertion, indeed, is that the subject-matter of the law in question is often extremely weighty, and necessary to the observance of divine or neighbourly charity—and, consequently, necessary to the attainment of human felicity. However, the question of the occasions on which the precepts of this law are in one way or another binding, is not pertinent at this point, but will be explained when we deal with the subject of sin [Disp. XV, De Peccatis of Tract. De Edition: current; Page: [252] Fide1], and the essential distinction between venial and mortal sin; and the same matter will also be touched upon later [in this work2], in our discussion of human law.

3. As against this truthful assertion, however, it may in the first place be urged that the natural law is a dictate of natural reason; but natural reason knows nothing of eternal punishment; hence, this law cannot be binding under pain of eternal punishment; and consequently, it cannot bind under pain of mortal guilt. The truth of the latter consequent is evident, because that sin is mortal which leads to eternal punishment. And the truth of the former consequent is proved, since a law cannot be binding with the sanction of a punishment which it can neither indicate nor inflict. It is on this ground that Gerson (Tr. De Vita Spirituali, Pt. III, lect. iv, [corol. 1,] alphab. 62, lit. G)3 apparently denies the possibility that the natural law, as such, may bind under pain of guilt, and particularly, mortal guilt. However, we shall speak more fully, in the next Book, chapter xviii [chap. xxi]4 of this author’s expression of opinion, and his meaning.

For the present, we simply assert that, according to the faith, it cannot be denied that a transgression of the natural law suffices for the incurring of eternal punishment, even if the transgressor be ignorant of every supernatural law. For this fact is convincingly established by the testimony of Paul, and by the arguments already adduced. Neither is it to be controverted by the objection set forth above, for even though, in us, the natural law is reason itself, nevertheless in God, it is the Divine reason or will, and therefore it suffices that God Himself should know the penalty due to transgressors of that law. For in order that the subject and transgressor of the law may incur a given penalty, it is not necessary that he himself shall be aware of the penalty attaching to his transgression; on the contrary, it suffices if he commits an act that deserves such punishment; a truth which Gerson himself admits (ibid., Lect. ii).

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4. A second possible objection [to the assertion that the natural law is binding upon the conscience], is that this law does not create obligation, but merely assumes its existence; hence, such obligation is not the effect of the natural law. The truth of the antecedent is evident; for this law prohibits a given thing because that thing is evil; and therefore, prior to the existence of the said law, there exists the obligation of avoiding such an evil. The same is true, in due proportion, with respect to the command and precept to do good [simply] because it is good. However, we have already given a partial reply to this objection, and the question will, moreover, recur below; so that, for the present, we shall content ourselves with stating briefly that the objection in question proves our very proposition. For if the natural law does forbid a thing because that thing is then evil, it also draws in its train its own especially imposed obligation of avoiding the thing in question; for this is an intrinsic characteristic of any prohibition. Furthermore, [the objection mentioned above] proves at the same time that this law assumes the existence of something which pertains to an intrinsic debt of nature, since everything owes it to itself, in a sense, to do nothing inconsistent with its own nature; but, in addition to this, the law imposes a special moral obligation, which we speak of as an effect of that law. It is customarily called by the jurists a natural obligation; not because it is not moral, but in order to distinguish it from civil obligations. Wherefore, these same persons also admit that it is an obligation binding in conscience, and so term it, as is evident from the Gloss (on Digest, I. i. 5, word obligationem); from Panormitanus, and from other canonists (on Decretals, Bk. III, tit. xlix, chap. viii).

5. Whether every obligation induced by the natural law is binding in conscience. Thirdly, with respect to the obligation in question, and in order that it may be more fully explained, a question may be raised as to whether it is universally true that an obligation imposed by the natural law is one that is binding in conscience. A reason for this doubt may be that every obligation springing from a moral virtue pertains to the natural law; since, as we have said above, this law lays men under an obligation to practise all the virtues, and nevertheless, not every sort of obligation springing from a moral virtue is binding upon the conscience; therefore, . . .

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The minor premiss is clearly true, since obligations of gratitude, for example, are not binding in conscience, the same being true with respect to obligations of this or that friendship. A confirmation of this argument lies in the fact that the obligation to undergo punishment which results from guilt, is a part of the natural law; and nevertheless, that obligation is not binding in conscience; therefore, . . .

6. The distinction made by some authorities, between legal and moral right, as an aid to solving the difficulty. With regard to this point, some authorities distinguish a twofold duty—that is, legal and moral—each aspect of which springs from the natural law. The first, they say, is not binding in conscience; only the second is thus binding. Covarruvias supports their opinion (on Decretals, Bk. III, tit. xxvi, chap. vii, no. 10; ibid., no. 9; on Sext, Chap. quamvis pactum, pt. II, § 4, no. 5 [no. 6]), and cites St. Thomas (II.–II, qu. 106, art. 1, ad 2, and art. 5), naming debts of gratitude as an example. But it is in an entirely different sense that St. Thomas himself, in the passage cited [by Covarruvias], draws a distinction between legal debts and debts of virtue as he calls the latter, from which [second group], he surely does not exclude obligations binding in conscience; inasmuch as he uses the expression ‘virtue’, for the very reason that [the obligations in question] must necessarily [be observed], as a requirement of virtuous conduct, although they are not so rigorous that human laws bind men to observe them—for in this case, [St. Thomas] would use the term ‘legal debt.’

A natural obligation, strictly speaking, always carries with it an obligation in conscience. Wherefore, if we are speaking in a strict sense of a natural obligation, it certainly cannot be separated from an obligation in conscience, since, if that natural obligation consists in [a duty] to avoid something, it must spring from the intrinsic evil of the action [prohibited], which, for that reason, is to be avoided, as a matter of conscience; and if, on the other hand, the natural obligation consists in [a duty] to do something, then it springs from the intrinsic connexion between the required action and that which is good from the standpoint of moral virtue, which we are bound in conscience also to observe in our actions, so that the omission of a required action is in itself wicked. A confirmation of the foregoing lies in the fact that to break the natural law without sinning Edition: current; Page: [255] involves an inconsistency, as is evident from the definition of sin given above; and therefore the existence of an obligation which is imposed by the natural law, but which is not a matter of conscience, also involves an inconsistency.

7. In what sense a moral obligation does not carry with it an obligation in conscience. However, lest there should be some ambiguity in our use of terms we must note that, according to the common mode of speech, the expression, ‘a moral obligation’, is occasionally applied to something which ought to be done, not as a matter of necessity, but rather because it is preferable, pertaining (as it were) to a counsel of perfection included under some virtue in its broad [optional] aspect; and in this sense, it is true that not every moral obligation is one of conscience, that is to say, binding under pain of guilt. But [such a duty] does not constitute a true obligation under the natural law. Yet it may have been with reference to these duties that Covarruvias made his assertion. Thus, the reply to the reason for the doubt set forth above,5 becomes evident. By way of confirmation, moreover, we may add that Bartolus ([Tractatus Super Constitutionem] Ad Reprimendum, [fol. 77 of his Consilia, Tractatus, Quaestiones] on the word, denunciationem, § sed dico, no. 10) makes to the proposed rule an exception of the obligation to suffer punishment. But it is not a necessary exception, since this obligation is not an obligation to perform any act, but rather a duty to submit to the punishment which is to be inflicted by another; and the exception is unnecessary for this reason especially, that within the bounds of natural law one does not incur the burden of any punishment, save that which is to be inflicted by God and which has no relation to the strict obligation now under discussion.

8. Whether or not every obligation in conscience is an effect of the natural law. Lastly, we may inquire whether the converse proposition is true, namely, that every obligation binding in conscience is an effect of the natural law, and that consequently every such obligation may be called natural.

The reason for doubting this proposition is that human laws also, as we shall see, are binding in conscience; so that the obligation in question is an Edition: current; Page: [256] effect not of the natural, but of the positive law. Furthermore, there exist obligations in conscience which are derived immediately from the positive supernatural law, as, for example, the obligation to make confession, or to keep the seal of confession; wherefore, such an obligation may be called supernatural, and is therefore in no wise an effect of the natural law. Finally, if the said proposition were not [open to question], there would exist one and the same adequate effect of natural law, and of law in general; and consequently, all laws other [than the natural] would be superfluous.

9. But, on the other hand, it would seem that an obligation in conscience arising from human law, is indeed an effect of the natural law. For any objection to this view would be drawn chiefly from the fact that the will of the prince plays a part [in such a law]; yet this contention would not constitute a [real] obstacle, since even in the obligation resulting from a vow, the personal will of the one making the vow plays a part, yet the obligation in question is nevertheless an effect of the natural law. And just as the natural law commands the fulfilment of what has been promised of one’s own will, so also does it command the performance of that which has been enjoined by the will of a superior.

Likewise, in the case of prescription, a part is played by that human law which transfers the ownership of a thing from one person to another; and yet the resulting obligation not to deprive another of the property which he has obtained by prescription, is a natural obligation, the violation of which would be theft.

The same appears to be true of the obligation which arises upon the establishment of a law determining the price of a given thing, for there springs up immediately a resultant obligation of justice, the violation of which would be theft and therefore contrary to the natural law.

10. Secondly, not only the obligation resulting from human law, but also that resulting from divine and supernatural law, would seem to be an effect of the law of nature. For it is the opinion of the theologians, that the failure to assent to matters of faith which have been sufficiently made known, is opposed to the very light of nature, which, under such circumstances, clearly indicates that these matters are worthy of belief and should therefore, according to right reason, be believed. Wherefore, the theologians also say, more commonly, that no one is turned away through sin Edition: current; Page: [257] from his supernatural end, without being diverted from his natural end, as well; and the reason for the truth of this statement must be that one always violates the natural law [in violating the supernatural law]; hence, conversely, the obligation to observe supernatural precepts is always an effect of the natural law. Moreover, the additional reason may be adduced, that nature is the foundation for grace, as well as for every human law.6 Again, the natural principles in accordance with which a man ought to be governed in moral matters, are so general in character, as virtually to include every obligation; and consequently, no obligation can be made applicable to man save through the mediation of those principles; therefore, just as all human knowledge is an effect of first principles, even so, every obligation in conscience is an effect of the natural law, in so far, at least, as it comprehends those first principles.

11. The doubt propounded above, is resolved; and the assertion is made that not every obligation in conscience is immediately and essentially an effect of the natural law. This question may be briefly resolved, in accordance with a certain distinction which was suggested above and of which the authorities make no mention. We may speak, then, either of an immediate and essential effect, or of a remote effect which may sometimes be essential and sometimes, incidental.

Accordingly, I assert first of all that not every obligation in conscience is immediately and essentially an effect of the natural law. The reasons first7 set forth prove this assertion. For no one will say that the obligation to observe a fast day ordered by the Church is a precept of the natural law, nor even that it is an obligation of faith, properly speaking. Accordingly, with respect to the third precept of the Decalogue,8 as it has been handed down in the written law, the theologians distinguish between two [obligations], namely, the worship of God, and the keeping of the Sabbath day. The first, they say, is an effect of the natural law; but this is not true of the second, since it would not fall under the head of an obligation if it were Edition: current; Page: [258] not for the fact that a positive law of God has intervened. Finally, there is the a priori argument, that the natural law is not the proximate rule of all human actions.

12. In what sense it may be said that every obligation in conscience is an effect of the natural law. I must, however, make this second assertion: there is no obligation in conscience which is not in some way an effect of the natural law—mediately and remotely, at least. The second group of arguments proves this fact.9

We must, indeed, note the difference between an obligation which arises from civil law, that is, from merely human law (as I term it in order to exclude the canon law, which for the present I include preferably under the supernatural), and one which arises from the divine law supernaturally given by God.

For, with respect to a human law and the obligation proceeding therefrom, the natural law may be spoken of as a cause per se, since, in truth, every such obligation is per se founded upon principles of the natural law, known through the natural light [of reason]. For, although the civil law is not deduced speculatively (as it were) through an absolute inference drawn from the principles of the natural law, being, on the contrary, established by some act of determination, through the will of the prince; nevertheless, granting this assumption as to an act of determination, [the conclusion] that such a human law must—in actual practice, at least—be obeyed, is deduced from natural principles. And, in this sense, the obligation imposed by that civil law is said to be an effect of the natural law considered as a cause per se, not proximate but universal (so to speak) and modified by a specific [agency], which is human law. In this connexion (because of certain arguments set forth above) one must also take into consideration the fact that human law sometimes has the effect of imposing a simple obligation to perform, or to refrain from performing, a given act. In such a case, the obligation in question is derived from human law, strictly speaking and in an immediate sense, but remotely, it is derived from the natural law. Sometimes, however, human law has other effects, Edition: current; Page: [259] relating to the subject-matter itself with which virtuous actions are concerned. And in that case, it may frequently happen that, though a change may be effected in this subject-matter through human law, or through the ius gentium, or even through the will of a private individual, nevertheless, later, the obligation to observe this or some other [special] manner of acting may arise directly from the natural law. Such is indeed the case with respect to the above-cited examples relating to prescription, division of property, and vows. But the reason is that, under these circumstances, the change is made merely in the subject-matter; and it is of no importance whether that change be made owing to one cause or owing to another; for once it has taken place, the natural law forthwith imposes a binding obligation to the same effect, as is illustrated in the examples already set forth, and as we shall explain more fully in the following Chapters.

13. However, with respect to the supernatural obligation proceeding from the divine law, a further distinction must be made, touching the natural law.

For if we are speaking of that natural law which is connatural with grace, it may be compared with any positive law whatsoever, belonging to the supernatural order, just as a comparison is made between a purely natural law and one that is civil; since the same proportionate relationship exists [in both cases]. Indeed, a similar statement may be made with respect to the canon law in its human aspect; for in so far as that law proceeds from a supernatural power, it is per se founded upon supernatural principles connatural with grace itself, and therefore derives its origin from grace, as from a universal cause, indirectly, to be sure, but per se and connaturally.

If, however, we are speaking of the natural law in its stricter sense, as law proceeding from the light of nature alone, there is also, indeed, a supernatural obligation existing in a sense as an effect of that law, not, however, per se, but merely incidentally. The arguments above set forth prove the former portion of this proposition. The proof of the latter portion is as follows: natural knowledge cannot be the cause per se of supernatural knowledge, since the former pertains to an inferior order; but natural knowledge can be a necessary condition in order that a given object may be duly referred to supernatural knowledge, as is evident from the treatise Edition: current; Page: [260] De Fide.10 In this sense, then, a natural dictate may be assumed to exist, and may be necessary to the binding force of a supernatural precept.

CHAPTER X: Is the Natural Law Binding Not Only with Respect to the Virtuous Act but Also with Respect to the Manner of Its Performance, in Such a Way That This Law Cannot Be Fulfilled, Save by an Act That Is Good in Every Particular?

1. The consideration of this question is essential to a perfect understanding of the strength and efficacy of the natural law, and of its exact binding force.

St. Thomas has discussed this matter when treating of the commandments of the Decalogue, in a passage which we shall expound here almost in its entirety (I.–II, qu. 100 [, art. 9]), together with an earlier one (qu. 95); for the precepts of the Decalogue are natural precepts, although they were laid down in the Old Law in a special manner. In the first of these two passages, then, St. Thomas (ibid.) inquires whether or not the mode [of performing an act] of virtue falls within the scope of precepts. He asks the same question (ibid., art. 10) regarding the mode [of performing an act] of charity, and distinguishes many conditions which are required for a virtuous action, holding that some of these conditions come under the natural law, while the rest do not.

The difference between the affirmative and the negative precepts. Before we set down his doctrine, however, let us make a distinction between the negative and the affirmative precepts, which do agree to a certain extent in that, just as the affirmative precepts prescribe nothing save that which is righteous, so the negative precepts forbid nothing save that which is evil; since (as we have often said) those things which are forbidden by the natural law are not evil because they are prohibited, but are prohibited because they are evil. The two kinds of precepts differ, however, in that Edition: current; Page: [261] the negative may be fulfilled without action, in so far as the form of the precept is concerned; for men conform to them, simply by abstaining from the forbidden act. Thus, the question propounded above has scarcely any application to the negative precepts, save perchance to the extent that the latter may be fulfilled through a will to refrain from doing what is prohibited, a point which we shall touch upon presently. But that question does have strict application to the affirmative precepts, which—as is evident—must be fulfilled by a positive act.

2. The difference between fulfilling a precept, and refraining from the transgression thereof. Furthermore, we should note that, properly speaking, it is one thing, to refrain from transgressing a precept, and another thing to fulfil that precept. For he who does not offend against a commandment, does not transgress the same; and nevertheless it is not always true that he who does not offend against a commandment, fulfils it. For one who is invincibly ignorant of a given precept, who is drunk, or asleep, who is incapable of action, or who has any other, similar excuse, does not offend against that precept; yet he does not fulfil it—especially not, if it be affirmative—since he does not do what the law prescribes, which would be, properly, the fulfilment of the law. Indeed, if we use the word [‘fulfil’] in a moral sense, it is not enough to do what the law commands; we must do it freely, and in human fashion, as I shall presently show.1 Wherefore, the question under discussion does not relate to the non-transgression of a precept, since such non-transgression may exist apart not only from virtuous action but even from any action at all, a fact which is evident from what has already been said. For it may happen that one abstains from offending against the precept, because one is asleep.

The question, then, relates to the situation in which no excuse exists [for the omission of a given act], but rather, the law has to be positively2 (so to speak) fulfilled, if offence against it is to be avoided. Under such circumstances, it is clear that [this] necessary act is righteous by its very nature, since—as I have said previously (Chap. vii)—the natural law does not prescribe acts of any other sort, and cannot be fulfilled save through Edition: current; Page: [262] the act which it prescribes; but, in view of the fact that the demands of virtue are not satisfied by the doing of a righteous act unless that act be performed in a righteous manner, according to the saying in Deuteronomy, Chap. xvi [, v. 20]: ‘Thou shalt follow justly after that which is just’—in view of this fact—we are moved to inquire whether this entire procedure must necessarily be followed in order to fulfil the natural law.

3. On the conditions requisite to a good moral action. Finally, we should distinguish three conditions which are required in the case of a moral action in order that it may be good. These were included by Aristotle under two heads. For the sake of clearness, however, we have made the triple distinction as indicated, a point which we shall explain more fully in the discussion that follows. The first condition is that the act shall be performed with sufficient knowledge; the second, that it shall be freely and deliberately performed; and the third, that it shall not only concern a righteous object, but shall also be attended by all the circumstances requisite to the righteousness of an act.

Aristotle adds another condition, which he puts in the third place, and which we could regard as the fourth, namely, that the act in question shall be performed firmly, readily, and with pleasure, that is to say, as an act that proceeds from habit. We may, however, omit this last condition, since it is universally considered to be certain and indubitable that neither the natural law nor any other law makes such a mode of action obligatory.

This fact is manifest, in so far as relates to laws other [than the natural]; since these laws do not prescribe the said mode, directly and formally (as is readily apparent from a consideration of all legal systems, both positive divine laws, and human); and since, moreover, the prescription of that mode does not follow from the precepts contained in the laws in question, inasmuch as all these precepts may be fulfilled without adopting the mode. The same reasoning will afford [similar] proof in so far as relates to the natural law, especially since the natural law prescribes nothing save that which is inherently necessary to righteousness, whereas the mode under discussion is not necessary to a righteous performance, although it may be desirable and appropriate. Furthermore, the natural law is binding from the beginning [of one’s life], before—if we take into consideration the nature of the case—it has been possible to acquire habits [of fulfilling Edition: current; Page: [263] that law]; for one must acquire those habits through his own acts. Again, to have or not to have a habit is not in itself subject-matter for a precept, since precepts are imposed with respect to human actions; and as to the fact that certain habits may or may not follow upon such actions, this depends either upon the nature of the latter, as is the case with acquired habits, or upon the grace of God, as is the case with [habits] divinely infused; so that such a result is not a matter of precept. Hence, although it may happen that, from a continuous observance of precepts, the habit and the above-mentioned facility of execution may be acquired; nevertheless, this acquisition is an incidental matter so far as the precept itself is concerned; for the precept is observed before the habit is acquired, and it may very well happen that a precept—for example, that of fasting—is observed for a long time without the acquisition of the habit of fasting or of facility in the same, if outside of the season of fasting, one eats sumptuously, even though he does not exceed the bounds of natural temperance.

Accordingly, waiving this [fourth] condition, with respect to which no difficulty arises, we shall speak of the other conditions; for they require some explanation.

4. The first proposition. The mode of voluntary action falls under a precept of the natural law, and is a requisite for the observance of that law. I hold in the first place, then, that the mode of voluntary action is a matter which falls under a precept of the natural law; and that, consequently, this mode is a requisite for the observance of the natural law.

So St. Thomas teaches (I.–II, qu. 100, art. 9), as do all the commentators on that passage of his works.

Moreover, the proof of this proposition is as follows: the natural law is founded in reason, and immediately directs and governs the will; consequently, the binding force of the natural law is imposed per se (so to speak) and primarily upon the will; therefore, this law is observed only by the mediation of the will; hence, the mode of voluntary action is per se a matter of precept, and a requisite for the observance of the law in question.

A second proof is this: human action comes directly under the natural law, and an act is not human unless it be perfectly voluntary and, consequently, free—in relation, at least, to the circumstances of this life; therefore, the mode of acting which we are discussing [likewise] falls directly Edition: current; Page: [264] under the natural law; hence, whoever involuntarily performs an act in accordance with the law, although he may seem to observe it, is a transgressor of the law; as one may infer from a passage in the works of Augustine (Contra Duas Epistolas Pelagianorum, Bk. II, chap. ix), and from numerous other statements which he makes, to the effect that where a good action is done not from a love of justice but from a fear of punishment, it is not well done; especially not, when the fear is so servile as to be coupled with a disposition to abstain from performing the act prescribed, save for the fact that a penalty attaches to its non-performance. To the same effect, St. Thomas (ibid., art. 9, ad 3) has held that performance [of prescribed acts] without sadness is included under the precepts of the divine law, since he who acts sadly, acts unwillingly. For this assertion is true of the sadness originating from an entirely contrary disposition, in accordance with which one intends not to obey a precept if he is not forced to do so. Such an unwilling disposition, then, is especially contrary to the natural law, which applies directly even to internal acts; and therefore, conversely, the mode of voluntary action is necessarily included in that which is prescribed by this law.

5. Objection.3 One may object that, although this reasoning duly proves the necessity, at least, for not coupling with the execution of the law an [actual] disposition to refrain from acting in the absence of any penalty or other similar compulsion, the same reasoning nevertheless does not prove the necessity of a positive mode of voluntary observance of the law. For a middle course may perhaps be taken; that is to say, the deed may be performed neither willingly nor unwillingly, and such [a performance] will suffice, since the law prescribes only that the deed be done.

Solution. My reply to this objection is that, in the argument last adduced,4 it is assumed that the act whereby the command is observed should be a human act, as is made sufficiently evident in the arguments previously set forth; and it cannot be human unless it is voluntary and Edition: current; Page: [265] proceeds from the will, for otherwise it should be designated as passivity rather than as human activity. However, since not everything which proceeds from the will is voluntary, absolutely and properly speaking, the argument in question5 shows that the voluntary disposition should be such as not to admit, in conjunction with itself, any contrary will inherently opposed to the precept, and that, accordingly, will in the absolute sense is necessary for the observance of the natural law.

In order to explain the matter more fully, we may distinguish at this point between two different situations. One is that the act prescribed should, simply in itself, be voluntarily performed; the other is that this act should be voluntarily performed, while regarded, moreover, as being prescribed, so that the willingness extends also to the actual observance of the precept. These two situations may indeed be distinguished. For one who is ignorant of the precept of almsgiving cannot will to observe that precept; and nevertheless, he might voluntarily perform an act of almsgiving. The conclusion in question, then, may be understood as applying to both kinds of will. For the former is necessary as the basis of the prescribed act, in order that this act may be human and correspond to the subject-matter of the precept; while the latter form of willing would also appear to be necessary in order that the observance of the precept may be moral, that it may be the effect of the law or precept, and that this fact may be attributed to the man himself, for otherwise it would be merely an accidental occurrence that the external act was in conformity with the precept.

6. Some objections to the proposition stated above. A difficulty arises, however, in relation to each of these two phases of our proposition.6 As to the first, the difficulty is that, apparently, a precept is sometimes fulfilled through an action performed without the use of reason and therefore not voluntary in a human fashion. But we shall discuss this problem [more fully] in connexion with the next proposition. The second hypothesis leaves room for doubt because it leads to the conclusion that a formal act of obedience—that is, of willingness to obey the precept—is necessary for Edition: current; Page: [266] the observance thereof; a conclusion which is absurd, and contrary to all the authorities. Another conclusion which would follow [from the same hypothesis]—the conclusion that to act with displeasure regarding a precept is always a sin, so that [under such circumstances] the precept is not fulfilled—is also inacceptable. For he who gives an alms, even if he does so with displeasure, nevertheless obeys the precept.

The objections are answered. I shall reply to the first [of the objections in connexion with the second hypothesis7] by denying the validity of the consequent. For it is one thing to will to do that which is prescribed, and another thing, to will to do the same because it is prescribed and with that fact as the motive for one’s action. I hold that the first form of willing is a requisite, and that this requisite is satisfied by the simple fact that the precept is not unknown and the will desires that which has been prescribed. Yet such a disposition does not suffice for a formal act of obedience. On the contrary, the second form of willing is also necessary for that act, that is to say, it is also necessary to act formally from the particular motive mentioned. But this requisite is certainly not essential to the [actual] fulfilment of the precept, since it is not a requisite prescribed in the law itself, neither is there any reason which makes it obligatory. Accordingly, there are few persons who execute in this [formal] fashion, the works enjoined by natural precepts; for, on the contrary, [the majority execute them] with attention fixed upon the righteous character pertaining to the individual precepts themselves.

7. What sort of displeasure as to the prescribed deed is inconsistent with a fulfilment of that [precept]. Again, as to the second part [of the objections to the hypothesis in question8], I shall reply [once more] by absolutely denying the validity of the consequent.

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For, in the first place, there may be a certain kind of displeasure which is merely natural, and which arises from some [involuntary] repugnance on the part of the subject, or from some human inconvenience consequent upon [the observance of the precept involved]; a form of displeasure which is not in itself wicked, and which does not necessarily render the act in question evil.

Furthermore, a distinction should be made even with respect to the displeasure which is voluntary and entertained through deliberate consent; for a twofold displeasure [of this voluntary sort] may be conceived, in the present connexion. One phase is a displeasure in the very observance of the precept, but displeasure in a composite sense (so to speak) when, notwithstanding the obligation imposed by the natural law, a man would will not to observe that law, if he did not fear the penalty attaching to non-observance, or some other evil, a point which we have already discussed in connexion with that fear which is servilely submissive. This phase, moreover, includes an intrinsic contradiction to the precept involved, and therefore is intrinsically evil, and contrary to the natural law. For such displeasure, although it does not exclude the possible existence of an absolute will to perform the deed [prescribed], which a servile fear commands more efficaciously [than the precept], does nevertheless exclude the existence of a will to observe the law; and it implies the existence of a contrary disposition, which in itself, and with respect to the will, is absolute, although it may be modified by fear.

However, there may exist another kind of [voluntary] displeasure, relating to the occasion (so to speak) of a particular precept and to the fact that the obligation involved in that precept falls upon one at a particular moment. This displeasure, indeed, is not intrinsically evil, and may coexist with an absolute disposition to obey the precept; so that, even when there is such an attitude of displeasure, the said precept may be observed, since, as is evident, that attitude is not incompatible with a sufficient willingness to obey.

8. The second proposition: to act wittingly is, in a certain sense necessary for the fulfilment of a natural precept. My second proposition is this: to act wittingly—that is, with knowledge—is in a certain sense necessary for the fulfilment of a natural precept.

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The argument in support of the proposition is as follows: a precept is not obeyed, save by a human action; and an action is not human, unless it proceeds from knowledge; therefore, . . . The truth of the major premiss is sufficiently well established in the discussion of the first proposition, upon which this second assertion necessarily follows. Furthermore, a confirmation of the same truth consists in the fact that knowledge would seem to be no less necessary for the observance of a precept than for its transgression; and some knowledge is indeed necessary for the latter act; therefore, . . .

It may be objected that, on the contrary, sometimes the transgression of a precept occurs apart from any knowledge of that precept and through ignorance. The reply to this objection is that, in such a case, the essential knowledge, at least, was required and within reach, and was unattained, through negligence; and that this negligence suffices to constitute a transgression, since evil arises in the case of any defect, while the fulfilment of a precept is a good act and accordingly involves of necessity a faultlessness in all respects (integram causam) of which knowledge is one [essential] element.9

9. What knowledge and how many kinds thereof should exist concerning the prescribed action, in order that the latter may be carried out. It should also be noticed that this knowledge may be twofold.

For example, it may relate to the prescribed action as it is inherently;10 and it is with respect to this [sort of knowledge], particularly, that the arguments set forth above have application. For it is evident that the knowledge of an action is necessary in order that this action may be performed voluntarily, since knowledge is the root of that same voluntary quality.

Objection. One may object to the foregoing, however, on the ground that he who has ignorantly or unwillingly performed a [prescribed] action is not bound to repeat that action later; which is an indication that he has already fulfilled the precept. The antecedent is clearly true; for if restitution has been made against the debtor’s will, the latter is free from the obligation to make restitution; in like manner, if tithes have thus been Edition: current; Page: [269] paid, or rather, extracted from an unwilling individual, he is not bound to pay them a second time; again, if an alms has been given by a drunken person, his obligation [to bestow that alms] no longer persists; and finally, the same is true with respect to positive precepts, as in the case of one who hears Mass under compulsion or fasts against his will because he is deprived of food, and as in similar cases.

Solution.11 My reply is that, in all these instances, the natural precepts are not observed; for serious offences are committed against them. Therefore, I deny the validity of the consequent in the argument set forth, since, in each of the cases mentioned, the precept involved ceases to bind, not because it has been fulfilled, but because the object which the law enforced has been withdrawn. Thus, the obligation to make restitution ceases because the debt has been extinguished by the restitution of the thing itself, even though it was extorted from an unwilling agent; for willingness on the part of the debtor, as is evident, is not always necessary to the discharge of a debt. The same argument holds true in due proportion with respect to the payment of tithes; we shall presently apply it also to the giving of alms. Concerning the positive precepts, indeed, we shall speak in the following Book. For the present, I shall observe [simply] that, in the sight of God, a precept is not fulfilled in the fashion described above; although, in the external forum, it is fulfilled to the extent of evading punishment, provided the prescribed act is substantially executed. For if one should under compulsion attend Mass in such a way as not to give heed to it, he will not even externally fulfil the command involved. In accordance with the same reasoning, if any one while drunk reads the whole of his divine office,12 he fulfils no precept; for he does not recite13 the office, and therefore, he is still under an obligation to do so later.

10. Whether knowledge of the prescribed action, as being prescribed,14 is necessary for the fulfilment of a precept. One might express oneself differently, Edition: current; Page: [270] however, with respect to knowledge of the actual precept; knowledge, that is, of the fact that the act in question is prescribed. Thus there might be some doubt as to whether such knowledge is necessary to the fulfilment of the precept. For the human and moral action which is prescribed may be performed, without that knowledge. As to this contention, however, there is probably some difficulty in the case of a positive law, a point which we shall discuss later.15

Reply. But, for the present, I shall say briefly that, without the knowledge in question, a precept may be observed in a material sense (so to speak) which will suffice to exclude sinning directly against that precept, as is proved by the reasons already set forth; yet, even so, it would not be observed in a formal sense, nor in human fashion; accordingly, the knowledge of which we are speaking is necessary in order that this act may be human with respect to the observance of the precept, in accordance with our discussion of the preceding16 proposition. Wherefore, if any one happens knowingly to have given alms at a time when a natural precept bound him to do so, and if he acted while ignorant of that obligation, then, although he has not transgressed the precept, he cannot properly be said to have fulfilled it; for, in so far as that precept is concerned, he has performed the act casually and (as it were) incidentally. To go a step further, it may happen that, if the ignorance was vincible, he has thus sinned against that very precept, since by reason of his disposition—that is, his knowledge at the time—he may have exposed himself to the peril of transgressing the precept in the very fact that he was ignorant of the obligation imposed thereby.

It may be objected that, if any one while ignorant of a precept—for example, the precept of almsgiving—has performed the act [prescribed thereby], he is not bound to give the alms again, at a later time, even though he comes to know of the precept; therefore, this is an indication that it has been fulfilled by him. One may reply to the objection on the basis of what has been said above, denying the consequent on the ground that affirmative precepts do not bind one to uninterrupted fulfilment of Edition: current; Page: [271] them, but impose their obligation only when the particular occasion so demands; whereas this act of almsgiving caused the need of [the almsgiver’s] neighbour to cease, so that the obligation imposed by the precept also ceased to exist, not because the precept was fulfilled, but because the subject-matter and the occasion for the prescribed act were wanting; whence one may infer that, if this same occasion or necessity persists, then, the obligation of fulfilling the precept will also persist.

Lastly, it may be inferred incidentally from the foregoing that there arises from the very existence of every precept the obligation to have knowledge of it, since, in a moral sense, it could not otherwise be observed. So St. Thomas has rightly maintained ([I.–II, qu. 100,] art. 9), asserting that he who ignorantly performs an act which is prescribed by law, performs the prescribed deed by chance, and incidentally; whereas the precept imposes the obligation of observance for the precept’s sake and intentionally, as has already been shown; therefore, it imposes the obligation of knowing, and furthermore, of reflecting upon it.

11. The third proposition: the natural law imposes an obligation as to the mode of practising virtue. In the third place, I hold that the natural law also imposes an obligation as to the mode of practising virtue.

In order that this proposition may be understood, we must explain what we mean by the phrase, ‘the mode of practising virtue’. For under that phrase we include everything required in order that an act may be righteous and good in an absolute and moral sense; and for this it is necessary that the act in question shall be directed to a good object, not only materially, but also formally—that is to say, it shall be inspired by a righteous motive. This was the meaning of Aristotle (Nicomachean Ethics, Bk. II, chap. iv), when he said that, in order that a virtuous work may be performed with [all due] care, it is not sufficient that the acts involved shall themselves be just or temperate; for it is furthermore required ‘that the agent shall perform them while he is in the following state of mind: first, he shall act knowingly; secondly, he shall act by deliberate choice and for the sake of those acts themselves; thirdly, he shall act with a firm and unchangeable spirit’.

Of these three conditions, the second is that which is pertinent to the matter in hand; for within it, Aristotle would seem to have included Edition: current; Page: [272] our first proposition, as well as the third, which we have just laid down. Accordingly, some authors subdivide that [second] condition into two parts, as follows: first, one must act voluntarily, for this is acting from choice; secondly, one must act for righteousness’ sake. Although Soto (De Iustitia, Bk. II, qu. iii, art. 9) rejects this subdivision, for the reason that Aristotle treats of the condition in question as a single unit, nevertheless, the doctrine itself is true; and it will be profitable to distinguish between those [two] parts, in this discussion, for the purpose of explaining the binding force of the natural law.

Thus, to act by deliberate choice pertains to our first proposition; to perform acts ‘for the sake of those acts themselves’,17 that is, for righteousness’ sake, pertains to the third proposition. Under the head of righteousness, moreover, I would include all that is necessary in order that an act may be characterized by every condition required for righteousness in an absolute sense; since no one acts with intent toward righteousness unless he does so under the proper attendant circumstances.

The phrase ‘mode of practising virtue’ thus includes all the points mentioned above; so that we hold it to be included under natural law.

12. The conclusion just set forth, then, is taken from the above-cited passage of St. Thomas [I.–II, qu. 100, art. 9], who has thus distinguished between the natural and the positive law, a distinction which cannot be understood in any other way. Accordingly, he holds, not only that the natural law binds one to act voluntarily, but also that it binds one to act thus voluntarily for the reason already set forth, that is, for righteousness’ sake, in which [form of action] the mode of practising virtue is comprehended. Soto, on that passage (ibid., answer to third objection), clearly upholds the same doctrine, expounding in this wise the teaching of St. Thomas.

Nevertheless, there are certain authorities who do not accept that distinction, but rather maintain, in an absolute sense, that the mode of practising virtue is not included within the obligation imposed by the natural law. This would seem to be the opinion held by Joannes Medina (Codex Edition: current; Page: [273] de Oratione, Qu. 16; De Horis Canonicis Iterandis); and Navarrus (Tr. De Horis Canonicis et Oratione, Chap. xx, no. 29), and on Decretum II. xi. iii. 55 [, conclusio v, no. 72] and in Summa, Chap. xxi, no. 7). For one who pays a debt obeys the natural precept regarding payment, even if he performs this act in an improper way; and one who gives an alms obeys the natural precept of compassion, even if he is actuated by vainglory.

13. A reconciliation of the two opinions. However, these [conflicting views] may be reconciled in a few words, as follows. Although a particular precept of the natural law may be observed by means of an act which is good in itself but which is, as a matter of fact, performed in an evil way, the natural law as a whole may not be thus observed; and in this respect, it differs from human law. For human law may be observed by means of an evil act, in such a way that no part of it is violated, since the evil attaching to the act in question is often opposed, not to any human precept, but to a natural precept. This is clearly the case, when, for example, a person receives communion unworthily at the Easter season, an act which is in no way contrary to ecclesiastical law since the precept which it violates, namely, that of receiving communion worthily when one does receive it, is not a human but a natural precept, and the latter [form of law] alone is violated under these circumstances.18 But the same natural law which prescribes the doing of a righteous act, prescribes also that this act shall be done with [all due] care, for such a specification is itself a dictate of the natural reason and consequently a part of the natural law; therefore, whenever a particular natural precept is fulfilled by means of an evil act, the law of nature itself is violated.

14. Doubt. It may be asked, however, whether this twofold, or virtually twofold, obligation springs from one and the same natural precept, or from different precepts. In connexion with this question, we may avail ourselves of a distinction which we may assume to be valid.

For sometimes the circumstance of evil annexed to [a given act] is opposed to a virtue of a different sort [from that involved in the act]; as in the example cited, regarding a vainglorious intent attached to an act of compassion, that Edition: current; Page: [274] is, of almsgiving, the evil in this case being opposed to humility, and not to compassion itself. Under these circumstances, then, there is a twofold obligation springing from diverse precepts; accordingly, in such a case, it must be affirmed that one natural precept is completely observed by means of an act which is good in itself, but which is performed in an evil way; and nevertheless, the natural law [itself] is not completely and absolutely observed, since [in this observance of one natural precept] another is violated.

Sometimes, on the other hand, it may happen that the evil involved in a given act is contrary to the very virtue enjoined by the precept apparently observed in the substance of that act; as when a person prays with recollection, but in an unsuitable place, or under other circumstances opposed to the reverence due to God in prayer. In such cases, it may be truly said that one and the same precept is obeyed with respect to its substance, and violated with respect to the attendant circumstances. For, even though a virtuous act necessarily involves both an [external] object and intrinsic circumstances, nevertheless, it must not be thought, in consequence, that this act is regulated by a number of distinct precepts, referring [respectively] to its object and to the individual circumstances connected with it. On the contrary, a single natural precept is laid down, prescribing an act of a specific righteous character, such as to require specific accompanying circumstances; and accordingly, this same precept can be observed in so far as relates to the substance of the external act while it is violated with respect to the other circumstances involved.

CHAPTER XI: Does the Natural Law Impose as an Obligatory Mode of Action That Mode Which Springs from the [Natural] Love of God, or from Charity?

1. St. Thomas treats (I.–II, qu. 100, art. 10), in this connexion, of the question above set forth. However, that question involves many points which relate to other matters, especially matters of faith, charity, and grace; and [in the passage cited] it is dependent upon St. Thomas’s previous remarks (ibid. qu. 18) concerning the requisites for moral goodness in a human Edition: current; Page: [275] action. Consequently, that question might well be disregarded, at this point; and yet, in view of the fact that it is complementary to our subject-matter, and inasmuch as it includes some remarks necessary for the explanation of the force of the natural law, we shall deal with it briefly here, postponing for treatment in the proper passages, in so far as is possible, those points which are foreign to the matter in hand.

It is necessary to assume, indeed, that one may speak either of the natural love of God or of an infused charity;1 for in our title we have suggested that by the term ‘charity’ infused charity is to be understood, but that the term ‘love’ refers to the natural love of God, viewed as the end of nature. Accordingly, it is also possible to speak relatively of the natural law; to speak, that is, either of the purely natural law that accompanies pure nature in so far as the latter is illuminated solely by natural reason, or else of the law that is connatural with grace and with the light of faith, which we may call divine by antonomasia.

2. Therefore, when we speak of the love of God as the Author of nature, we assume, in the first place, that there may exist in human nature such love, even above all things, and essentially distinct from a love that is infused, although it may be impossible that [this natural love] should be perfectly possessed without the aid of grace. In our treatise De Gratia2 we shall touch upon this point, showing by what powers this love can be elicited; and, in our discussion on charity,3 the distinction in question will be more fully expounded.

We assume, secondly, that the natural law contains a special precept enjoining the love of God, as the Author of nature, an assumption which will also be proved in our discussion of charity.

The assertion is made that the natural law obliges man, viewed simply with respect to his nature, to order himself and all his [works] towards God Edition: current; Page: [276] [as his final end]. Thirdly, it follows upon this assertion, that the natural law, taken as a whole, obliges man, viewed in the light of pure nature, to refer himself and all his [works] to God as his final end; for thus to refer oneself and one’s [works] is involved in a love of God above all things. However, since this precept is in affirmative form, it is binding not continuously, but only at suitable times; and therefore, that love is not necessary in order that other precepts may be fulfilled completely and without the transgression of some natural precept. For at times there may occur a fit occasion for the honouring of one’s parents which is not an occasion calling for the love of God; and under such circumstances, I may fulfil the precept of filial piety, even though—in so far as concerns the part of the active agent—such fulfilment may be in no wise motivated by the love of God.

Every work whereby a natural precept is fulfilled tends of its own nature to God as its final end. Fourthly, however, we must add that every work whereby a natural precept is fulfilled tends of its own nature towards God as its final end, and in itself contributes to His glory. For every such work issues from God as its chief and primary source; moreover, through it the will of God is in actual fact fulfilled, even if the agent does not formally work to this end; and again, it is a righteous work, and one suited to the final natural end of man, which is, primarily, God.

3. A solution of the question: in what sense one should understand the assertion that the love of God is an obligation of the natural law. The foregoing, then, provides a sufficiently clear solution for the question of the extent to which this obligation may be derived from the pure law of nature and from the pure love of God as the Author of nature, a love which is in harmony with natural reason. For, in this order, the mode of acting from the love of God consists simply in the activity of that love itself, or of something else, under the command of that love.

The former kind of action will be required only on occasions when the precept [enjoining it] is in active force; and consequently, by reason of that same precept, this mode of love is essential in order that the natural law as a whole and collectively may be fulfilled, although it is not essential to the fulfilment of individual moral precepts, since the latter do not all impose, as an obligation, the love of God.

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The second kind of action, if the command in question is assumed to be formal, is manifestly not required; for no particular precept is laid down regarding this point, nor do the other individual precepts impose this obligation. The truth of the foregoing is self-evident, since, if it were not true, right action would always be joined of necessity to an actual love of God, and to assert that such is the case would be absurd. If, on the other hand, we refer [merely] to a virtual command [of love], that is, to a relationship with some previous action of the agent himself, even this mode of action is not required for the observance of other precepts. For, in the first place, this act of love may not have taken place previously, yet an occasion may be offered for some good act in accordance with another natural precept; and, in the second place, even if such an act of love did occur previously, it may exercise no influence here and now, inasmuch as there is no recollection thereof nor any virtue from it that persists.4

I shall add, moreover, that not even the habitual disposition of such love is required, for he who is in a state of mortal sin is not considered to possess that habitual disposition, and nevertheless he may observe some natural precept. Therefore, it is sufficient that there should exist the natural relation or tendency which is included in the righteous action itself, by its very nature, as has been explained.

4. The opinion of Gregory that nothing created is rightfully lovable for its own sake, and that God alone is thus lovable. In this connexion there is wont to arise a dispute regarding the view of Gregory of Rimini, who has said (on the Sentences, Bk. II, dist. xxxix, qu. i, art. 1, concl. 2) that nothing created is rightfully lovable for its own sake, and that God alone is thus lovable; whence he infers (in art. 2, corols. 1 and 2) that it is not possible for men to act righteously unless they act for the love of God, to Whom they refer their deed, either actually or virtually—that is, by the force of some previous act of love. He finds proof for his statement in various passages of Augustine (On Christian Doctrine, Bk. I, chaps. xxvii and xxxvii; De Trinitate, Bk. IX, chap. viii and De Diversis Quaestionibus, LXXXIII, Qu. xxx) wherein he says that it is perverse to enjoy any created thing Edition: current; Page: [278] beyond5 God. Wherefore, he asserts, in another work (On the Customs of the Catholic Church, Bk. I, chap. xiv), that all good things must be referred to the highest good, a fact from which he infers (ibid., chap. xv) that virtue is nothing other than the highest love of God; so that he defines all of the virtues (On the City of God, Bk. XIX, chap. xxv) in accordance with this love, asserting in consequence that it is pride to love even these virtues themselves for their own sake. The reason for this view, indeed, is that God alone is supremely good, and that therefore He alone is to be desired for His Own sake. And furthermore, if the view in question were not correct, any good created thing could be loved for its own sake.

5. However, this discussion is not appropriate to the present context; for it pertains to a matter dealt with by St. Thomas in a passage (I.–II, qu. 18) where he treats of the requisites for moral rectitude in a human action. In discussing the subject of faith, too, it is also customary to deal with this question owing to the case of unbelievers who have no knowledge of God.

The opinion of Gregory is rejected. Briefly, I hold that the opinion of Gregory, above set forth (p. 277), is probably not sound nor based upon any sound foundation. For a thing that is morally good is lovable for its own sake, and suffices to render this act [of love] moral, even if one’s thought is not of God [on the occasion in question] and was not previously directed to Him in such a way that a past act of loving God has a certain present influence upon the [present] act [of love for the created thing]. Moreover, it is one thing to love something as being the supreme good; but it is different to love a thing as being a good which is in itself lovable. The first kind of love pertains strictly to God; but the second is imparted by God Himself to every morally good thing; and therefore, in so loving that which is morally good, one commits no offence against God. Neither does the foregoing lead to the conclusion that all good created things are lovable for their own sake, because there are no goods of this inferior [created] order, either useful or enjoyable, which are to be desired Edition: current; Page: [279] only for their goodness. Finally, although a created thing which is morally good may be loved for itself, it is not loved as an ultimate end. On the contrary, the love in question tends of its own nature, towards God; and this fact suffices to prevent the assertion that man enjoys rather than uses such good.6 He might, indeed, be said to enjoy such [a lesser good], if he should set it up as his ultimate end; and it was to this latter action that Augustine referred, calling it pride. Therefore, the authority of Augustine does not stand in our way, nor does the argument of Gregory have weight; and consequently, the opinion of Gregory is commonly rejected by the theologians in their treatises on faith, as we shall see—God willing—in the proper place. One may also consult Soto (De Iustitia, Bk. II, qu. iii, art. 10) and [Joannes] Medina (Codex de Oratione, Qu. 16, and [Bartholmaeus Medina] on I.–II, qu. 18, art. 9).

6. The mode of action that springs from infused charity is not required for the observance of the natural law. Secondly, there remains for discussion the mode of action that springs from infused charity.7 With respect to this point, it is certain that such a mode is not necessarily required for the fulfilment of the purely natural law, since it is [a virtue] of a much higher order. But there may be a doubt as to whether or not, assuming the elevation of man to a supernatural end, this circumstance is required even for the fulfilment without sin of the natural law. For such seems to have been the meaning of those writers who have said that man is not, at any given time, fulfilling any divine precept whatsoever, unless he is in some sense acting from charity. The opinion of Denys, the Carthusian, and a criticism of that opinion. This opinion was held by Denys, the Carthusian (on the Sentences, Bk. I, dist. xvii, qu. 1, art. 3), and the same view was supported, a few years ago, by Michael Baius,8 who declared [cf. De Charitate, Iustitia, et Iustificatione, Bk. I, chap. vi] that every action which does not spring from charity comes from a corrupt concupiscence and is therefore evil.

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7. Nevertheless, such an opinion is entirely false and erroneous, or, at least, it affords great occasion for error. In order to demonstrate this proposition, however, we must take it up point by point.

For the opinion in question may first be interpreted as referring to a habit of charity or, what is the same thing, to a state of grace; and in this sense it is erroneous, and was virtually condemned in the case of the Lutherans, at the Council of Trent (Session VI, canon vii).9 For, according to this opinion, all works done outside the state of grace would be contrary to the divine precept, and therefore would be sins; a conclusion from which it would follow that all works by which a sinner remotely disposes himself for grace are sinful. This consequent has been condemned in the Council above mentioned, and justly so, since the sacred Scriptures very frequently counsel works of this kind, such as holy fear, almsgiving, prayer and the like.

However, Baius would perhaps reply that habitual charity is required for the avoidance of sinning, but that it is not sufficient to one’s attainment of remission of sin; for habitual justness may be attained without [consequent] remission of sin. This reply, however, involves another error, namely, that it is possible for true justness and charity to exist de facto in a man while he is in a state of sin; a proposition which is contrary to that same Council in the same Session VI (canon vii). Nor does such a reply dispose of the definition cited above, since in that definition the Council referred to works preceding justification, which involves not merely the remission of sin, but chiefly the infusion of justness, as is evident from the teaching of the same Council. And furthermore, remote dispositions10 are directed not only to the remission of sin, but also to an infusion of justness, and therefore, it is impossible that such works should be evil or against the law of God.

8. Finally, there is this clear argument: that the necessity of habitual grace or charity in order that individual precepts may be observed without Edition: current; Page: [281] fresh transgression, springs neither from the purely natural law, as has been shown,11 nor from that law which is connatural with habitual grace itself or charity; for there is no necessary connexion between such habits and the particular obligation [to observe those individual precepts], nor can it be proved that there is such connexion, on the basis of any principle of probable validity. Neither does [the necessity in question] spring from any special positive law of God, since it is nowhere found that such a law has been established, a point which we shall presently demonstrate, in replying to the objections.

Accordingly, all theologians require for certain acts which are especially holy an habitual sanctity in the person performing them, that they may be performed worthily and without sin; as, for example, in the administering of the sacraments of the living. The same state of habitual sanctity may be required on the occasion of a deed involving imminent danger of death, or because of some similar occasion; although this requirement is a special one, emanating from the law of charity or of religion. But a general requirement of habitual sanctity applying to all acts cannot be founded upon any law, nor conceived by any plausible reasoning.

9. Another interpretation of the question. Secondly, the opinion under discussion12 may be understood as referring to an actual love of charity; so that, for the observance of any precept whatsoever of the natural law, it may be necessary that one shall order himself toward God, through a supernatural love that is the personal act of the agent, or an act coexistent with the deed through which the [natural] precept is observed, or one which shall have preceded that observance and shall virtually influence it.

However, this interpretation also may easily be refuted, on the basis of the principles already laid down. For it must be taken as referring, either to a love of God above all things, or else to another, imperfect and merely affective love, which is supernatural and through which the observance of any precept may be directed toward God.

If the former of these alternatives be maintained, one is led into the difficulty already mentioned, and a new one is added. For the act of loving Edition: current; Page: [282] God above all things is not separate from the habit of thus loving Him (whether the act proceeds from the habit or proximately prepares [the soul] for it, alternatives which have no bearing upon the point under discussion); and therefore, if this love is necessary, either as existent in the act or as having preceded it and not having been withdrawn (for the latter condition is required in order that [the love] may exert a virtual influence), then the state [of the agent] will necessarily consist also in a state of grace and of charity; but [the suggestion of such a requirement] has been rejected. Furthermore, there would also be demanded an act of perfect charity, influencing the prescribed action; and this supposition is a new absurdity. For, just as we are prepared for the attainment of a state of habitual justness by means of good works which precede that state of justness, in so far as these works may be brought about by the Holy Spirit disposing us thereto, but not indwelling within us, according to the Council of Trent (Session XIV, chap. iv), even so are we made ready to obtain the aid and receive the impulse [of grace], through which, proximately, we are prepared for that state of justness and for the love of God above all things. Therefore, it is no less absurd to lay down as a prerequisite to individual acts observing moral precepts, the infused act of the love of God above all things, than it is to lay down as a prerequisite the habitual state of such love. Moreover, the arguments which we have adduced in opposition to the opinion of Gregory apply in due proportion when opposed to the opinion now under discussion; a point which I shall now expound in connexion with the other part of our discussion.

10. If there is demanded, accordingly, not a love above all things, but another and lesser love, which will be sufficient in order to refer a given act to God as its supernatural end; then, in the first place, it is difficult to distinguish such an affection—one which partakes of a supernatural complacency in, or good will towards God, and which is apt to be elicited by infused charity—[it is difficult, I say, to distinguish such an affection] from the love [of God] above all things and the love that justifies. For the present, however, I shall postpone this question to another and more fitting place, and shall demonstrate, following the appropriate line of argument, that the opinion under discussion is false and arbitrary, even in the sense just set forth. For such an obligation does not proceed by the very Edition: current; Page: [283] nature of the case from the principles and light of faith; nor, on the other hand, can it be shown that God has laid down for men as ordained for a supernatural end, any special command always to discharge or to observe the precepts of the natural law, out of this sort of love or this reference of one’s acts [towards Him]. In opposition to the assumption [that this obligation exists], one may apply, in due proportion, all the arguments that we have used in opposing the opinion of Gregory.

And furthermore, such reference [of one’s acts to God], or such love, is not necessary in a general sense and per se even to the observance of other supernatural precepts. For the precept of faith is fulfilled by the act of believing, prior to any act of true love of God; one may make a similar statement regarding the precept of hope, as is to be inferred from the teaching of the Council of Trent (Session VI, chap. vii); and the precept enjoined by religion concerning divine worship or that concerning prayer may be observed in the same fashion.

One may go farther and say that, although a state of grace is required in the case of some external acts, as I have just pointed out, on account of their special sanctity, nevertheless, even for such acts, this special love, whether actual or virtual, is not necessary, provided the agent is assumed to be in a state of grace; on the contrary, a religious intention, one that regards the virtue of religion, is sufficient. And similarly, if an occasion should arise either for professing the faith or for witnessing to the honour of God, this may be done from an impulse towards the faith and the confession of it, or from an impulse towards divine worship and the honouring [of God], involved in religion, even if it is not done by a formal act of charity. In no wise, then, is the mode of acting out of charity a requirement for the observance of other precepts, apart from the special precept of charity, which is binding not uninterruptedly but only at certain times and on certain occasions, as will be pointed out when we deal with that special matter.

11. Objection. But an objection may be raised, first, on the basis of several passages from Paul (i Corinthians, Chap. x [, v. 31]): ‘Do all to the glory of God’; (Colossians, Chap. iii [, v. 17]): ‘All whatsoever you do in word or in work do all in the name of the Lord Jesus Christ, giving thanks to God and the Father by Him’; and (i Corinthians, Chap. xvi [, v. 14]): ‘Let all your things be done in charity.’

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Secondly, various passages from the works of Augustine are cited by way of objection, passages in which he declares that any act performed not from charity is performed from a corrupt concupiscence, and is therefore evil. Accordingly, he says (Retractationes, Bk. I, chap. xv): ‘Will without charity is wholly a corrupt concupiscence.’13 And again (De Gratia et Libero Arbitrio, Chap. xviii): ‘What is done without love is not well done.’14 He also has numerous similar passages (De Gratia Christi et de Peccato Originali, Bk. I, Chap. xxvi).

Thirdly, Dionysius argues that God, in His precepts, seeks to make us lovers of Himself; hence, if those precepts are not observed from a love of God, His will is not done; and therefore, the precepts are not fulfilled.

12. Solution of the objection. My reply to the passages from Holy Scripture, cited as testimony, is, first, that they contain the best of counsels; secondly, they may contain a precept which is to be interpreted in one of two ways.

One interpretation is that all our works, in so far as their essential character is concerned, should be such that they tend to the glory of God, even if they are not actually related to this end. [Such an interpretation] accords with the words of Christ (Matthew, Chap. v [, v. 16]): ‘So let your light shine before men, that they may see your good works and glorify your Father who is in heaven.’ For the meaning of these words is not that it is necessary to perform the works with the [specific] purpose of having them seen by others who will glorify God, since such a purpose, even if it is good in itself, is nevertheless not required, nor is it ordinarily advisable, because of the peril [of vainglory which it involves]. The meaning, then, is that these works should be of such nature that, if they are seen, the glory of God may result from them.

According to the other mode [of interpreting the testimony of the Scriptures], that testimony may be understood to contain an affirmative precept that is always binding, but not uninterruptedly save with respect to the preparation of the soul; that is, with respect to our state of readiness to do all things for the glory of God, whether from charity or as a confession of the name of Christ, when such acts are necessary or becoming.

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13. Explanation of the passages from Augustine. To the passages containing the testimony of Augustine we shall reply specifically and in the proper places, in De Fide and De Charitate;15 for the works of Augustine contain difficult passages on both these virtues.

For the present, I will say that the words of Augustine may be expounded in the same way as those of Scripture; so that the expression to act from charity does not signify ‘to be evoked or commanded by charity’, but rather, ‘to act in accord with it’, so that the act in question is such that by charity it may be directed and performed, charity thus being always and inherently a rule (so to speak) of a good deed, although not necessarily a [moving] principle as well, nor an end [specifically] sought by the agent. Accordingly, when [Augustine, De Gratia et Libero Arbitrio, Chap. xviii] says that, ‘An act is not well done that is done without love’, it is just as if he said, ‘not done in accord with love’, or ‘done [in a spirit] alien to love’. When, indeed, he says [Retractationes, Bk. I, Chap. xv]16 that will without charity is wholly a corrupt concupiscence, this statement also may be explained as referring to the will in itself, and not to its individual acts; and the whole will may be termed a corrupt concupiscence in a moral, but not in a rigorously physical sense, for a will destitute of charity is regularly overcome by corrupt concupiscence, although at times it may act from a love of righteousness, without any relation to charity, as we shall show at greater length in the treatise De Gratia.17

Some persons, to be sure, also explain that, in the passages cited (De Gratia et Libero Arbitrio, Chap. xviii, De Gratia Christi et de Peccato Originali, Chap. xxvi), Augustine means by the word ‘charity’, not the infused theological virtue, but a general love of moral good, that is, of right conduct for the sake of justness itself. Nevertheless, in the Chapters cited, he clearly Edition: current; Page: [286] speaks of the charity which is referred to in the precept of Christ (John, Chap. xiii [, v. 34]): ‘A new Commandment I give unto you; that you love one another’; and in that other precept (Deuteronomy, Chap. vi [, v. 5], Mark, Chap. xii [, vv. 30–1]): ‘Thou shalt love the Lord thy God with all thy heart [ . . . ] and thy neighbour as thyself.’ [Augustine] is also speaking of the charity concerning which Peter said (i Peter, Chap. iv [, v. 8]), that it ‘covereth a multitude of sins’; and to which John referred [i John, Chap. iv, v. 7] in the words: ‘[Dearly beloved,] let us love one another: for charity is of God.’ For Augustine cites these passages in the context under discussion, in order to explain what sort of charity it is to which he refers. As yet, I have not found the other passage from the Retractationes. But let this suffice us, as far as the discussion of Augustine is concerned.

14. To the argument from reason one may reply, in agreement with St. Thomas, whom Soto and others follow, that the purpose sought in a precept is not itself enjoined by the precept. Accordingly, although God purposes pre-eminently, that we shall act from charity, He nevertheless does not impose this command with respect to all actions, neither does He impose it by virtue of [every] individual precept, but only by the special precept of charity, which is to be observed on the proper occasions. Save for this special necessity, then, not only the natural law, but also the supernatural law, may be observed without following the mode in question. For thus the Christian sinner by the act of belief fulfils the law of faith, even though he does not believe from the motive of charity, and attains the end proximately sought by God in that precept; for this proximate end is contained within the precept [of faith] itself; although the extrinsic and remote end may not be attained. The same is true of the other precepts also.

CHAPTER XII: Does the Natural Law Not Only Forbid Certain Acts, but Also Invalidate Contrary Acts?

1. In discussing the binding force of natural law, we have in consequence dealt with almost all the effects which are usually assigned to law in general. For it is evident from what has already been said, that this law prescribes certain good actions and prohibits evil ones, but that permission Edition: current; Page: [287] and punishment, properly speaking, have no place therein. The reason for this is that a violation of the natural law results in a desert of punishment, in relation to divine providence and justice, to which pertains the assignment of that penalty; nevertheless, natural reason cannot define this punishment, and therefore, such and so great a penalty does not, strictly speaking, result from the authority of some merely natural law; but rather, the said desert of punishment follows from a natural and intrinsic condition of guilt, so that, even if the penalty were not fixed by any specific law, the guilt could be punished by the decision of the competent judge.

Permission has no place in the natural law. Whence it follows that true permission has no place in this law, since it permits nothing which is evil in itself to be done licitly, a self-evident fact, inasmuch as the law in question is opposed to actions that are intrinsically and per se evil. It also follows that this natural law does not permit intrinsically evil actions to be done with impunity, in so far as punishment can result from the said law, that is to say, in so far as relates to a state of liability to punishment; since it never impedes, nor can of itself impede, such a state. For if it is said that this law permits either those indifferent actions which it does not prohibit, or those good actions of which it approves, although without prescribing them, it may be answered that neither attitude is equivalent to true legal permission, so to speak. For the former is simple negation, inasmuch as an action is spoken of as indifferent which is neither prescribed nor forbidden, nor yet approved; while the latter attitude is more than a permission, since it is a kind of positive concession, a matter which has been touched upon above and which will be more fully discussed later,1 when we treat of the ius gentium. And with respect to these points, if the natural law is considered in so far as it establishes the manner in which [a given action] must be executed in order that it may be done righteously and blamelessly, then the question is one which pertains to law as prescribing a given manner and forbidding another, a matter also touched upon above; so that, with regard to these effects [of the law], nothing more need be said.

2. The only question remaining for discussion, then, is this: When and in what way may the natural law have not only obligatory or prohibitory force, but also the force which invalidates an act done in contravention of Edition: current; Page: [288] such obligation? This doubt is especially pertinent with respect to negative precepts, but it may be extended to apply to affirmative precepts, in so far as the latter logically prohibit acts contrary to those which they prescribe.

The reason for this difficulty. The reason for the doubt, indeed, is that to invalidate is not to prescribe, but [actually] to do something [beyond that]; whereas the natural law, as such, apparently has power solely to give commands, and not to abolish the power of ownership, for example, or to do anything similar. This point may be confirmed by induction. For the natural law forbids the contracting of marriage after the taking of a vow of chastity, or after betrothment to another person; and nevertheless, such a marriage is valid. The natural law also forbids the selling of anything for more than a just price; and yet such a sale is not rendered void by the law of nature. Therefore, the same will hold true of all similar cases. For the efficacy of the natural law is the same in all cases; nor does it employ any special language for prohibiting, such that, on account of this diversity in wording, we might say that it does invalidate at times, but not always, a statement which may be made with regard to positive law.

3. Actions opposed to the natural law are not only perverse, but sometimes invalid. Nevertheless, it is certain that, at times, acts committed in opposition to the natural law are not only evil, but also invalid. The writers on the subject assume this to be certain in many of the questions which they discuss specifically; such questions as whether or not these acts—for example, a contract effected under the influence of fear, violence, fraud, or some similar condition—are nullified by the natural law or only by the positive law. They assume, then, that such contracts may be null under both heads. Furthermore, this position is confirmed by the following examples. A second marriage made during the lifetime of a former spouse is null by the natural law. The same is true of a marriage, let us say, between brother and sister; and still more certainly true in the case of a marriage between father and daughter. So also a usurious contract is invalid by the natural law, that is, it is null in so far as any obligation to pay usurious interest is concerned. The same conclusion holds with respect to a contract made by means of a grave fraud. And there are many similar examples.

In order, however, that we may establish a rational basis [for all of them] and may satisfy the foregoing objections, it is necessary to assign some rule Edition: current; Page: [289] for determining when an action prohibited by the natural law is valid, and when it is invalid. For the fact that either situation may occur is demonstrated by the examples already adduced; but the distinction cannot be based upon the words of the natural law itself, as has rightly been objected. Whence, then, shall we derive that distinction?

4. The rules for ascertaining when acts are invalid by the natural law. Two rules especially present themselves.

The first rule. The first is as follows: when an act is forbidden by the natural law because of some defect of power, or because of the incapacity of the subject-matter, then, the act is null and void, by its very nature. The example cited in connexion with a second marriage demonstrates this point; as do, in general, the cases in which a gift has been made of a thing which has previously been validly and permanently donated; for such a [second donation] is null, since he who is giving or transferring the thing for the second time has already ceased to have power over it. This consideration will make clear the difference between a transfer effected subsequently to a prior transfer, and one effected simply after a prior promise. For both of these transactions are opposed to the natural law, and nevertheless, one is valid and the other is invalid; since the earlier transfer has extinguished the ownership of the thing transferred, and thus has also extinguished the power over that thing; whereas the promise does not do away with the ownership, and therefore does not do away with the power [of the promisor], although it may place him under an obligation to use the property in the manner agreed upon. According to the same reasoning, a contract or a consent extorted through substantial fraud (as it were) is null by the natural law; since the fraud impedes true consent, and causes it to be involuntary, and since a human contract cannot be perfected without an exercise of the will. The same reasoning applies to other [similar] acts. Thus the rational basis of the [first] rule is easily evident; for, in these and like cases, the substantial principle (so to speak) of the validity of the action is destroyed, this principle being a moral power, that is, a power that has attached to it, a sufficient exercise of the will; and there is no valid act without power and volition.

5. The second rule. The second rule is this: when an act is forbidden on account of some unseemliness or turpitude discerned in its subject-matter, then it is also invalid when that same turpitude persists in the effect itself Edition: current; Page: [290] of the act, or, as the jurists say, when the turpitude has a continuous cause. This rule I take from a similar statement in the Gloss (on the Constitutions of Clement, Bk. III, tit. xii, chap. i, word inhibentes, at end), from yet another passage in the Gloss (on Decretum, Pt. I, dist. x, can. x), from Decio (on Decretals, Bk. II, tit. xx, chap. ii), and from other authorities to whom Covarruvias refers (on Decretum, Bk. IV, pt. ii, can. vi, no. 6, at the beginning); it may also be inferred from the following words of the civil law (Digest, XLV. i. 35, § 1): ‘That agreement which the laws prohibit ceases to have a binding effect, if the cause of its prohibition is to be perpetual; as, for example, when any person enters into an agreement of marriage with his own sister’. On this passage, the Gloss notes that such a promise is invalid, by the natural law itself. Thus the [second] rule is confirmed by the above-cited example of a marriage between blood relations of the first degree. For in that case there is no lack of power, that is, no lack of dominion over oneself for the purpose of giving oneself in matrimony; nor is there a lack of volition, in so far as the parties to the contract are concerned; but that unseemliness from the standpoint of nature which causes such a marriage to be forbidden, endures perpetually, if the marriage in question endures; therefore, even the duration itself is forbidden, and is thus invalid. The same condition is seen to exist with respect to the example of usury. For usury is forbidden because it is unjust, and this injustice consists in the retention of the profit received, as well as in the act of receiving it, so that the prohibition against usury has an invalidating effect [upon such retention]. From the foregoing, the rational basis [of the second rule] is also evident. For if it is contrary to the natural law to invest a given act with validity, that act may not be performed by any one, since the law of a superior authority stands in the way; and, in the case in question, the very validity of the act is contrary to the natural law, since it is characterized by the same cause of turpitude [as that which characterizes the subject-matter of the act] and, consequently, cannot endure; therefore, the act involved is without valid effect. One may consider accordingly the difference between this [second] rule and the preceding rule. For in the case of the first rule, the act is prohibited, on the ground that it is wrongful and null because of a defect of power; whereas, according to the second rule, the act is null by reason of an intrinsic and perpetual wickedness, and consequently by reason of the very fact that a [natural] prohibition exists, since, Edition: current; Page: [291] apart from these considerations, an absolute power over the subject-matter involved in the act was not lacking.

6. When an act forbidden by the natural law is nevertheless not rendered null. Aside from the cases just discussed, however, the natural law, although it may prohibit an act, will not render null the effect of that act; for if one assumes the existence of a power sufficient to produce such an effect, and if, besides, the effect may endure without turpitude and with a righteous use, there is no reason for it to be invalid.

This point is best brought out in the case of a marriage entered into, in contravention of a simple vow of chastity. For that vow has not destroyed, but has enchained the power which a man has over his own body; and, in other respects, a marriage contracted contrary to that vow has, in so far as an actual surrender [of the body] is involved, a greater efficacy (so to speak) than a promise has, and may also have a righteous use, at least in discharging, [though] not in seeking the [conjugal] debt; therefore, such a marriage may rightfully be valid.

In like manner, an unjust sale leaves behind it, to be sure, a perpetual obligation of making restitution for the excess price; yet, if this restitution is made, all turpitude in the validity and perpetuity of that contract disappears; and consequently, there is no reason for the contract to be invalid in an absolute sense. Thus the reply to the objections set forth above is evident. In connexion with these examples, we may also take into consideration the fact that the prohibition is not (as it were) direct or absolute, with respect to the substance of the act in question, but either proceeds from some general law, such as that which enjoins the observance of a vow, or refers solely to a particular mode or excess involved; so that it is not strange that this prohibition does not make the act itself invalid.

CHAPTER XIII: Are the Precepts of the Natural Law Immutable of Themselves and Intrinsically?

1. In the foregoing discussion we have treated of the substance and binding force of the natural law. It remains to speak of the stability, or immutability, of that law.

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Change, with respect to any law, indeed, may be conceived of in two ways: namely, as change through addition; or else as change through subtraction, or diminution.

Here, however, we are not speaking of the process of addition; since addition does not constitute a change when the earlier law is left in its entirety, but rather, there takes place a perfecting and extension which contribute to human utility, as St. Thomas has said ([I.–II,] qu. 94, art. 5). And, in like manner, Ulpian (in Digest, I. i. 6) says that the civil law is built up by the addition of various [precepts] to the natural law. Furthermore, the divine law, too, has added many [precepts] to the law of nature, as has the canon law to both of these. For, as we shall see below,1 human laws determine many points which have not been determined by the natural or the divine law, and which were not capable of being suitably determined by them.

The meaning of the question [set forth in the Chapter heading] is weighed; and an explanation is given as to what sort of immutability is under discussion. We are treating, then, of a change in the strict sense, a change brought about by subtraction from a law or from the obligation imposed by it. And this change in things is wont to occur in one of two ways; that is, either as a change in a thing that becomes intrinsically defective, or as one occurring externally through some agent having the necessary power. Either mode is applicable to law, for sometimes a matter2 becomes itself deficient, for it changes from a useful thing to one that is harmful, or from a rational thing to one that is irrational; whereas, at other times, it is abolished by a superior, as we shall see later, in connexion with positive laws.3 Both changes, moreover, may occur either absolutely and entirely, with respect to the whole law, such a change being spoken of as the abrogation of a law; or with respect to a particular point, in which case the change is called a dispensation, or special relaxation. Thus, an inquiry might be made into all these Edition: current; Page: [293] modes of change, in connexion with the natural law; but in this Chapter we shall speak only of intrinsic changes, while in the following Chapters we shall investigate the question of those effected by external agents.

2. Solution. The natural law cannot of itself lapse or suffer change, whether in its entirety, or in its individual precepts. I maintain, then, that properly speaking the natural law cannot of itself lapse or suffer change, whether in its entirety, or in its individual precepts, so long as rational nature endures together with the use of reason and freedom [of will]. For this latter hypothesis is always presupposed and assumed to be true; since, if this [rational] nature were wholly abolished, then the natural law—because it is a property (so to speak) of this nature—would also be abolished in so far as its [actual] existence is concerned, and would endure only objectively as an essence, or potentially, in the mind of God, just as would rational nature itself. Indeed, in such a situation, even the eternal law would not have the character of true law, for there would be no creature for whom God might lay down commands. It is necessary, then, to assume the existence of rational nature; accordingly, we shall assert that the natural law cannot lapse or suffer change of itself, whether completely or in part.

This is the inference to be drawn from the works of St. Thomas (I.–II, qu. 94, arts. 4 and 5, and qu. 100, art. 8; II.–II, qu. 66, art. 2, ad i, and qu. 104, art. 4, ad 2), of Vincent de Beauvais (Speculum Morale, Bk. I, pt. ii, dist. 3 [dist. 2]), and of other authorities to whom I shall refer in Chapters xiv and xv. The same inference may be drawn from the works of Augustine (De Diversis Quaestionibus LXXXIII, Qu. liii; On the True Religion, Chap. xxxi, and On Free Will, Bk. I, chap. vi); Lactantius ([Divine Institutes,] Bk. VI: De Vero Cultu, chap. viii); Aristotle (Nicomachean Ethics, Bk. V, chap. vii); Cicero (Laws, Bks. I and II; The Republic, Bk. III), as well as from the Institutes (I. ii, § 6 [§ 11]).

The first proof of this view, indeed, is the fact that the natural law may be considered as existing either in God or in man. And as it exists in man, it cannot suffer change, since it is an intrinsic property which flows of necessity from that [human] nature as such or (as some persons maintain) this natural law is the rational nature itself; and, therefore, a contradiction would be involved, if that nature should remain fitted for the use of reason while the natural law itself was abolished. If, on the other hand, the law Edition: current; Page: [294] in question is considered as it exists in God, then, as has been demonstrated above,4 it is impossible not only for the said law to be abolished by a judgment of the divine intellect, but also for it to be abolished by that will, whereby He wills either to prescribe certain good things, or to avert5 certain evil things.

3. Secondly, I argue as follows: no law can lapse of itself save through revocation by the lawgiver; unless it does so either because it was not of a permanent nature, being constituted rather for a definite period of time with the expiration of which the law itself also expires and wholly ceases to be, or else because some change occurs in the subject-matter, by reason of which change the law is now unreasonable and unjust although formerly it was just and wise. For if the law was set up for an indefinite period, without any limit, and if no change has been made with regard to its subject-matter, one cannot conceive how it should cease to have force while its object and subject persist, inasmuch as it is not abolished by the legislator, according to the assumption which we have made. Yet, neither of those modes [of abrogation]6 apply to the natural law.

This statement is clearly true with respect to the first mode. For the precepts of the natural law are necessary and characterized by eternal truth, since (as I have said above)7 that law comprises self-evident moral principles together with all the conclusions—and only those conclusions—which are drawn therefrom by a process of necessary inference, whether proximately or through a series of such inferences. But all of these elements are eternally true, [since] this truth in the principles does not subsist apart from the truth of the conclusions in question, the principles themselves being necessarily true by their very definition. Therefore, all of the precepts in question are of a perpetual character. And, consequently, they cannot cease to be, solely through lapse of time.

With regard to the second mode [of abrogation], indeed, the truth of our conclusion may easily be demonstrated, by means of the same principle. Edition: current; Page: [295] For a judgment which is necessarily inferred from self-evident principles can never be false; and, therefore, it cannot be irrational or unwise. But every judgment derived from the natural law is of such a character that it rests either upon self-evident principles or upon deductions necessarily drawn therefrom; and, therefore, however much things themselves may vary, there can never be a variation in such judgment.

4. Thirdly, another inference may be drawn by distinguishing in this law between affirmative and negative precepts and by showing that neither sort of precept can of itself lapse or cease to be of binding force.

For, in the first place, the negative precepts prohibit things which are in themselves and intrinsically wrong; and, therefore, they are binding for all time, and continuously, both by reason of their form, since negation destroys everything, and by reason of the fact that what is in itself evil should always and everywhere be avoided; hence, according to the same reasoning, these precepts cannot of themselves cease to exist, inasmuch as a thing which is in itself evil cannot cease to be evil.

The affirmative precepts, on the other hand, although they are binding for all time, are not continuously binding. Therefore, this kind of precept, although it is natural, may be binding at one time and not at another, or upon one occasion and not upon another. Yet it does not for this reason suffer change, since such is its nature, and since (so to speak) it was made from the beginning for given occasions or conditions, and not for others; and nevertheless, it retains its proper force for all time, and is binding for all time, though not continuously. Thus, for example, the precept which imposes confession, although it may not be binding for this particular month and is binding for the Lenten season, does not therefore suffer change, but always in its nature remains the same. This proposition may also be stated in broader terms, as follows: the affirmative precepts of the natural law are of binding force only for those occasions upon which the failure to perform the act prescribed would be of itself and intrinsically evil; accordingly, just as that omission cannot fail to be evil, so, in like manner, the obligation imposed by an affirmative precept, and compelling the performance of the action opposed to the omission, cannot of itself lapse or undergo change; and, therefore, such a precept is necessarily always binding with respect to the time to which it refers, and Edition: current; Page: [296] consequently always imposes also a binding obligation not to entertain the contrary purpose, or an obligation to obedience, at least, in the preparation of the spirit.

5. Fourthly, this truth is to be expounded and confirmed by answering the objection which may be urged against it at this point. For Aristotle says (Ethics, Bk. V, chap. vii) that natural justice, that is to say, justice which exists by nature, is not as a whole changeable, but that [human rules of such justice] may at times be liable to change.8 St. Thomas also makes this statement (I.–II, qu. 94, art. 5), saying that the natural law, in so far as relates to its primary principles, is entirely immutable; while with respect to its conclusions for the most part, it is unchanging, yet it does change in certain cases, which are in the minority, owing to particular causes which then occur. St. Thomas [ibid., art. 4] confirms the above view, by means of the example afforded by the natural precept which commands that a deposit shall be returned to the owner when the latter asks for it, a precept which is not binding in cases where the deposit is sought for the purpose of harming the commonwealth. The same argument may be applied in connexion with the natural precept on the keeping of secrets, which is negative and which may nevertheless be violated, if such violation is necessary for the defence of the state or of an innocent person. Likewise, the precept, ‘Thou shalt not kill’, is a natural one, and nevertheless, it is permissible to kill in self-defence. A more complex example may be noted in the case of the precept which prohibits the contracting of marriage with one’s sister or with one’s mother; a natural precept which nevertheless, in the event of necessity relating to the propagation of the human species, is not binding. Thus it was not binding, in point of fact, at the beginning of creation, as will become evident from our discussion of matrimony.9 Finally, St. Thomas confirms this view by reasoning, arguing that speculative and natural science is characterized by more certitude than moral and practical science, while, nevertheless, in physical and natural science, although the universal principles do not fail, the conclusions—even those Edition: current; Page: [297] that are necessary—at times do fail; therefore, the same may happen in moral matters, and accordingly, the natural law may undergo change. The truth of the consequent is proved by a parity of reasoning; for, just as physical matter is changeable, so also human affairs, which are the matter of the natural law, are much more changeable; and, therefore, that law itself is likewise subject to change since, even as it derives its specific form from its subject-matter, so does it imitate and participate in the very nature of that matter.

6. In what way the natural law is immutable; and in what way it undergoes change. However, all these statements, rightly explained, confirm rather than weaken our assertion. We should consider, then, that those things which stand in a certain equivalence and relationship, as it were, [to other things], are in two ways liable to actual change, or to virtual change (that is to say, a cessation of being), as follows: these things may change either intrinsically, in themselves—as when a father ceases to be a father, if he himself dies—or extrinsically, simply through change in another—as when a father ceases to be such, owing to the death of the son. For this cessation on the part of the father is not [actually] change, but is [merely] conceived or spoken of, by us, as being a manner of change. In the positive law, then, change may occur in the former of the two modes, for this law may be abrogated; whereas, with regard to the natural law, that is by no means the case, since, on the contrary, it is liable to change only in the second manner, that is, to change through changing subject-matter; so that a given action is withdrawn from the obligation imposed by the natural law [with respect to it], not because the law is abolished or diminished, since it always is and has been binding in this sense, but because the matter dealt with by the law is changed, as will presently be made clear through the examples adduced.

Wherefore, we should go farther and take into consideration the fact that the natural law, since in its own set terms it has been written not upon tablets or upon parchments but in the minds [of men], is not always formulated in the mind according to those general or indefinite terms in which we quote it when speaking or writing. For example, the law concerning the return of a deposit, in so far as it is natural, is mentally conceived, not in such simple and absolute terms, but with limitations and circumspection; for reason dictates that a deposit shall be returned to one Edition: current; Page: [298] who seeks it rightfully and reasonably, or in cases involving no objection based upon just defence, whether of the state, of oneself, or of an innocent person; yet this law is usually quoted simply in the following terms: ‘A deposit must be returned’; because the rest is implied, nor is it possible to make in the shape of a law humanly drawn up a complete statement of all points involved.

7. An explanation of the admissions made by St. Thomas and by Aristotle, that change may take place in natural precepts. Therefore, when St. Thomas asserts [I.–II, qu. 94, art. 5] with Aristotle [Nicomachean Ethics, Bk. V, chap. vii] that certain precepts of the natural law suffer change or lapse or admit of an exception in a few cases—that is to say, occasionally—he is speaking of change in the loose sense of the term, simply by metonymy and extrinsically, by reason of a change which occurs in the matter [dealt with by that law], as is evident from a passage already cited (I.–II, qu. 100, art. 8); and with respect to this point, he makes a distinction between certain precepts which are natural in relation to other precepts, and those which are natural in relation to universal principles. For some precepts deal with matter that does not admit of change or limitation, as is the case with the general principle, ‘One may not do evil’, or, sometimes, with the special precept, that ‘One may not lie’; while there are other precepts which can undergo change in the matter involved and therefore do admit of limitation and exceptions of a sort. Consequently, we often speak of these latter precepts as if they were framed in absolute terms under which they suffered an exception, the reason for this apparent exception being that those general terms do not adequately set forth the natural precepts themselves, as they are inherently. For these precepts, thus viewed as they are inherently, do not suffer any exception; since natural reason itself dictates that a given act shall be performed in such and such a way, and not otherwise, or under specific concurrent circumstances, and not unless those circumstances exist. Indeed, upon occasion, when the circumstances are changed, the natural law not only refrains from imposing the obligation to perform a certain act—such, for example, as the return of a deposit—but even imposes the [contrary] obligation to leave the act undone.

8. Thus, the example of the deposit, cited above, is easily explained. For even if in a particular case it ought not to be returned, the precept Edition: current; Page: [299] of the natural law does not for that reason suffer change; because, from the outset, it was established with reference not to this situation, but to certain others, indicated by right reason; just as he who fails to fulfil a promise, because of a notable change in the circumstances involved, does not himself change; neither does the law requiring the observance of good faith; the subject-matter, however, has undergone a change, but from the very beginning a virtual exception was made with regard to this change, by means of a condition implied in the promise itself, so that it is not a true or intrinsic, but [merely] an apparent change, and one so termed through an extrinsic process of metonymy. The same is true, then, in the case of a deposit, even if a promise to return that deposit is annexed to [the act of making] it. This assertion is supported by Augustine (On Psalms, v [, § 7]), and is also set forth in the Decretum (Pt. II, causa xxii, qu. ii, can. xiv).

The same view applies, in due proportion, to the natural precept enjoining the keeping of secrets; since a secret is a kind of deposit which is given that it may be guarded, and which is accepted under promise of preserving it, [in so far as is possible,] without causing harm or injury to a third person. For this condition is necessarily implied, in order that the promise may be licit. We are speaking, however, of natural secrets; for the seal of confession involves an obligation of a higher nature.

Finally, the view in question also holds true with respect to the fifth precept of the Decalogue, ‘Thou shalt not kill’, which includes, in so far as it is a natural precept, many conditions, [so that it means,] for example, ‘Thou shalt not kill upon thine own authority, and as an aggressor’; points which are to be discussed in their proper context, and to which we shall give some attention in Chapter xv. Of the last example, which is, indeed, more obscure, I shall speak in the following Chapter.

9. A reply is made to the contrary position. To the above argument, I reply by admitting, with due regard for proportion, the truth of the analogy drawn from physical conclusions. For physical propositions, although they are said to be defective at times, are nevertheless not defective as scientific conclusions; since as such they are deduced not inevitably, but with this limitation, namely, that certain conclusions result per se from certain causes, unless these causes are checked. Thus, with respect to the case under discussion, a natural precept—as I have pointed out—does not lay Edition: current; Page: [300] down an absolute command in regard to some particular subject-matter, [the command,] for example, that a deposit must be returned; rather does it command that [the act in question] must be performed, assuming that the proper circumstances exist, a point which has been sufficiently explained. For it is only in this way that such conclusions are necessarily inferred from natural principles; and they are not natural precepts, save as they are necessarily deduced from those principles. Therefore, neither is any objection to our view involved in the fact that the subject-matter is changeable. For the natural law discerns the mutability in the subject-matter itself, and adapts its own precepts to this mutability, prescribing in regard to such subject-matter a certain sort of conduct for one condition, and another sort of conduct for another condition; so that the law in itself remains at all times unchanged, although, according to our manner of speaking and by an extrinsic attribution, it would seem, after a fashion, to undergo change.

10. Can the natural law be eradicated from the minds of men, and so undergo change? The reply. Another difficulty is wont to occur in this connexion. For it seems that the natural law may be effaced from the minds of men; and accordingly, that it is subject to change through separation from its subject (as it were); just as knowledge, which with respect to its object is immutably true, may in the subject become corrupted through error. But this difficulty, in so far as it is relevant to our discussion, has been dealt with sufficiently above (Bk. II, Chap. viii, supra, p. 243), where we spoke of the ignorance that may exist under this law. Therefore we shall assert, briefly, that this law cannot be entirely effaced from the minds of men, but that there may be ignorance with respect to some of its precepts, an ignorance which, moreover, is perhaps not shared by all men; for, although certain nations are in error in regard to one precept and others in regard to another precept, there nevertheless seems to be no one precept that is not made manifest to some men, at least, through the light of nature. This fact suffices to enable one to make the absolute assertion that no precept of the natural law can be totally eradicated, even through ignorance. I shall add, moreover, that, through error or ignorance, the law does not change in itself, but is obscured or not known, which is a very different matter. Edition: current; Page: [301] For, although all the precepts of the natural law may be immutable, yet not all are equally manifest; so that it is not incongruous that some of them should fail to be known.

Another difficulty arises here, as to epieikeia; a difficulty that is more serious and that requires special treatment, which we shall devote to it in a later chapter (Chap. xvi).

CHAPTER XIV: Does the Natural Law Admit of Change or Dispensation through Any Human Power?

1. Although this question may seem to have been settled by the preceding discussion, nevertheless there are certain Doctors of great authority who lay down an absolute statement to the effect that sometimes a dispensation from the natural law may be made through human agency, or this law may be changed by means of human law, whether the latter be the ius gentium or the civil law. This statement does not apply, indeed, to all the precepts of the natural law, for [the said Doctors] admit that such change can have no place in the primary principles of that law, or in the conclusions immediately derived therefrom, with respect to which, in their opinion, all that was said in the preceding Chapter holds good.

The opinion of those who assert that a dispensation from the natural law may be made through human power with respect to a specific point. They maintain, then, that only with regard to certain things, or certain precepts more remote [from the primary principles], can that change be effected; a change which is not universal, by a process of abrogation, but specific, by a process of dispensation or diminution. This opinion is expressly set forth in several passages of the Gloss (on Decretals, Bk. III, tit. xxx, chap. xxiv, word exemptus). The same opinion is observed in the Gloss (on Digest, I. i. 4, word nascerentur, and on Digest, I. i. 6, § 1). It is also followed by Abbas [i.e. Panormitanus] (on Decretals, Bk. III, tit. xxx, chap. xxiv, no. 4, Bk. I, tit. iv, chap. xi, no. 3, and Bk. I, tit. ii, chap. vii, no. ii). On which (viz. Decretals, Bk. I. tit. ii, chap. vii) one may also consult Felinus (No. 26), Innocent, and others, all of whom are commonly agreed upon this position. However, the Edition: current; Page: [302] opinion in question has been more fully and clearly expounded by Angelus de Clavasio ([Summa,] on word Papa, No. 1), where he speaks especially of papal dispensations. Navarrus (Consilia seu Responsa, Bk. II, Qui filii sint legit., no. 8 [Consilia, Bk. III, De Sponsalibus, Consil. III, no. 8]) also says that the Pope can limit a natural or a divine law, and that he can grant dispensations therefrom. The same doctrine is laid down concerning the Pope by Thomas Sánchez (De Sancto Matrimonii Sacramento, Bk. VIII, disp. vi [, no. 4]), who also refers to many of the jurists, and to Cano (Relectio: De Poenitentia, Pt. V), from among the theologians. However, we have already, in another passage (De Voto, Bk. VI, chap. ix)1 sufficiently refuted the opinion of the latter [i.e. Cano] on this point. Henríquez (De Eucharistia, Bk. VIII, chap. xiii), too, may be cited in defence of the view in question. But in the case of these writers and of others who discuss the same point, it should be noted that at times they are speaking generally of divine law and of the power of the Pope to grant dispensations therefrom, [so that] they confuse under the heading of divine law, both the natural and the positive divine law. But we are speaking definitely and specifically, and at present are dealing solely with natural law in its relation to any human power and to the action of that power, whether such action be a dispensation, a precept, or a legal institution constituted either by a legal precept, or by custom, whether particular or world-wide; [the latter sort] being customarily called the ius gentium, a matter which I shall discuss below.2 With positive divine law, however, we shall deal in the last Book of this treatise.3

2. The opinion which we are discussing, then, may be confirmed, first, by various examples [of change].4 The first example, and a common one, relates to a division of ownership rights; for by the natural law all things were [originally] held in common, and nevertheless a division of property was introduced by mankind. On this point, see the Decretum (Pt. I, dist. i, can. vii; Pt. I, dist. viii, can. i).

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Indeed, it is even said in one Chapter of the Decretum (Pt. II, causa xii, qu. i, can. ii), that the division of property was introduced as a result of [human] iniquity; not because the introduction itself was evil, but because it was occasioned by sin, according to the interpretation of all the writers cited below. The second example is similar [to the first], and concerns liberty, which is proper to mankind by the law of nature, and is nevertheless taken from men by human laws. On this point, one may consult the Digest (I. i. 4; I. v. 4) and the Institutes (I. ii, § 1 [§ 2]). The third example relates to that precept of natural law which prohibits taking away the property of another, a precept which would seem to be changed through the introduction among men of [the institutions of] usucaption and prescription. The Gloss cites this example in connexion with the above-mentioned law (Digest, I. i. 4). The fourth example is drawn from the natural precept which rules that a marriage is effected through the mutual consent of the man and the woman; a precept which is changed by men, so that a marriage may not be effected thus, unless there are also witnesses present. A similar example is that of the law regarding the execution of a will, or the donation of one’s own property; for, according to the natural law, these acts might be performed according to the owner’s will, and nevertheless this natural precept is changed or limited by men; so that, for example, a will may not be made, save as a formal testament, &c.

3. Secondly, and as the principal [argument], there are adduced various examples of human dispensations from the natural law. The first of these examples relates to dispensation from vows and oaths, which derive their binding force from the natural law. The second concerns dispensation from marriage that is [merely] ratified,5 which we assume to be dissoluble through a papal dispensation, although it is indissoluble by the natural law. The third example is that of a dispensation as to the residence of bishops, which, according to the Council of Trent (Session XXIII, chap. i: De Reformatione), is a matter of divine natural law, and which nevertheless is subjected to daily dispensation, as is well known. Nor will the common Edition: current; Page: [304] explanation apply to this example, namely, the explanation that [the exceptions in question] are not dispensations, but interpretations of the natural law. For, in the first place, it is evident from obvious examples that this faculty [of residence outside the diocese], has been granted in many cases in which the obligation of [episcopal] residence had not ceased to exist, and in which there can be no convincing reason for supposing that this was done solely through interpretation, the obligation having rather been removed by the authority of the Pope, through a relaxation of the said obligation, which constitutes a dispensation. And in the second place, [the act] is often so named in the indults themselves, and even by the Council of Trent (Session VI, chap. ii: De Reformatione). The fourth example is that of dispensation from impediments which make a marriage invalid by natural law; for Angelus, in the passage above cited [Summa, on word Papa, No. 1], relates that a dispensation was given by human6 law, in the case of a marriage between brother and sister; and nevertheless that relationship is a diriment7 impediment imposed by the law of nature.8 Further examples are then adduced by the jurists relating to dispensation from the duty of paying tithes, which they declare to be derived from divine natural law. Moreover, an example is found in the exemption of clerics from secular jurisdiction; an exemption which [the jurists] also judge to be derived from divine natural law, and with respect to which the Pope nevertheless grants dispensations, permitting a cleric to be punished by a temporal judge, even in a criminal case. Other examples of a similar kind may be found in the works of Felinus (on Decretals, Bk. I, tit. xxxiii, chap. xvii, nos. 7 et seq.).

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4. Thirdly, it is argued that this dispensation with respect to certain natural laws is often necessary for the welfare of souls, as is evidenced by the examples adduced; and, therefore, it is not probable that God has left men without this remedy, since it pertains to God’s providence to grant to men the power practically necessary for the proper government of the state. From this principle, then, we infer that there resides in men the power to punish malefactors, even with the death penalty; to deprive them of their property when the welfare of the state so requires; and to do similar things. Hence Angelus, in the passage cited above, has said that God would not have been a good Father to His family, had He not left a shepherd set over His flock who could provide for all cases that arose, and that were, of necessity, expedient [for the common good]. He [i.e. Angelus] cites Richard Middleton (on the Sentences, Bk. IV, dist. xxxviii, art. 9, qu. 1) on this point, saying merely that right reason dictates that there should be in the Church some representative of God who may reasonably take measures against the dangers to individuals after weighing their infirmities and advantages. The foregoing may be demonstrated by means of analogy: for unless the Pope so framed his own laws as to grant the bishops power to dispense therefrom in cases of necessity when he himself could not be approached or consulted, he would not be making proper provision for the Church; and therefore, on the basis of this principle, authorities generally conclude that in such cases [of emergency] inferior officials may grant dispensations from the laws of the superior; hence, a similar conclusion with due modifications would hold true in the case under discussion. In fine, all admit that by this reasoning it is possible for the natural law to be subjected to interpretation; but the principle that applies to interpretation applies likewise to dispensation, for both require the same power, since authentic interpretation of a law can be made only by its author; hence, on the same ground, the [possibility of] dispensation must be allowed, since frequently one cannot provide through interpretation alone for all the cases which arise.

5. The second and more common opinion, that the natural law cannot, in any of its precepts, be abrogated or dispensed from, by human authority. According to the contrary opinion, however, the natural law cannot be subjected, in any of its true precepts, to abrogation, diminution, dispensation, or any Edition: current; Page: [306] other change of a similar sort, by means of any human law or power. This is, without doubt, the common opinion of the theologians, to whom we shall refer more at length, in the following Chapter. Particularly, indeed, is it the view of St. Thomas (I.–II, qu. 100, art. 8), as expressed in several passages cited in the preceding Chapter [ibid., qu. 94, art. 5] and, especially, concerning the Pope in the Quaestiones Quodlibetales (Quodl. IV, qu. viii, art. 13). The same opinion may be noted in a passage from Alexander of Hales (Pt. III, qu. xxvii, memb. 4, in its entirety), although in a preceding section (memb. 2, § 2 [memb. 3, art. 2]), he speaks obscurely of the mutability of the natural law, as we shall observe in the following Chapter. The view in question is held also by the theologians who absolutely deny that the Pope can grant dispensations from divine law; for if he cannot do this with respect to positive divine law, much less is it possible for him with respect to the natural law, which is also divine and, besides, less subject to change. However, we shall refer again to these authorities, when we treat below of the law of grace.9 This view of the natural law, indeed, is expressly maintained by Almain in his De Potestate Ecclesiae (Chap. xiii, concl. i [, propositio 1]); and he holds to the same opinion in another work (on the Sentences, Bk. IV, dist. xv, qu. 2, art. 1). Sylvester (word Papa, Qu. 16) and Abulensis (on Exodus, Chap. xx, qu. 35, at the middle) also support this opinion. And Victoria (in Relectio II [IV]: De Potestate Papae et Concilii) frequently makes the same assumption; as do Driedo (De Libertate Christiana, Bk. II, chap. iv, at end) and Soto (De Iustitia, Bk. I, qu. vii, art. 3 [, ad 3]; Bk. IV, qu. iii, art. 1, ad 1, and Bk. X, qu. iii, art. 4), the latter extending his statement even to the special example of the residence of bishops. The modern theologians, too, are commonly agreed upon this view. And as for the jurists, several of the Glosses on Decretum (Pt. II, causa xxv, qu. ii [qu. i], can. vi), throughout this and the following text, as well as the Gloss on Decretals (Bk. III, tit. viii, chap. iv), suggest this opinion, although they couch it in obscure terms. The doctrine is stated more clearly by Torquemada (Summa, Bk. III, chaps. liv and lvii) and Navarrus (Consilia, Bk. IV, De Desponsat. Impuberum, no. 16 [De Sponsalibus, Consil. xxxix]); it may be inferred from the comments of the Edition: current; Page: [307] latter on the Decretals (Bk. V, tit. vi, chap. vi [Consilia, Bk. V, De Judaeis, Consil. iii], next to last Gloss in its entirety); [and it is also stated thus clearly] by Covarruvias (on Sext, rule peccatum, Pt. II, § 11, nos. 3 et seq. and rule quamvis pactum, Pt. II, § 4, no. 6, and Epitome on Decretals, IV [De Matrimonio,] Pt. II, chap. vi, § 9, no. 3); Barbosa (on Digest, rubric XXIV. iii, pt. ii, no. 104) and Albert of Bologna (tract. De Lege, Iure, et Aequitate, Chap. xxvi, nos. 3 et seq.). Furthermore, the said opinion is in my own judgment entirely true, although, regarding certain points thereof, there may be some disagreement as to terminology.

6. In what ways a thing may fall under the natural law. Therefore, in order that we may briefly set forth the truth, it should be noted that there are many ways in which a thing may be spoken of as pertaining to the natural law.

In the first and most fitting sense, it may be spoken of thus when some natural precept prescribes the thing in question; and this is the sense proper to the natural law, with which we are dealing. For such a situation, it is necessary that natural reason, viewed in its essential character, shall dictate that something is necessary to right conduct; whether it so dictates without reflection or as the result of a single act of reflection, or of several such acts; for as long as the inference is always inevitable, this latter consideration10 is of slight importance, as I have frequently remarked.

According to another manner of speaking, however, a thing is said to pertain to the natural law merely in a permissive, negative, or concessive sense, to put the matter thus. Under this classification many things fall which, from the standpoint simply of natural law, are permissible, or conceded, to men—such things as the holding of goods in common, human liberty, and the like. With respect to these things, the natural law lays down no precept enjoining that they shall remain in that state; rather does it leave the matter to the management of men, such management to be in accord with the demands of reason. Thus it can be said that nakedness is natural to man, and that this nakedness would not require covering in the state of innocence; whereas, in the condition of fallen [human] nature, Edition: current; Page: [308] natural reason imposes a different requirement. So also liberty is natural to man, since he possesses it by virtue of natural law; yet the law of nature does not forbid the loss of his liberty.

In yet another sense, a thing may be spoken of as pertaining to the natural law, for the reason that it has its foundation in a natural disposition, although it is not absolutely prescribed by natural law; for example, the fact that, as the Digest records (XXXVIII. vi. 7, at end), the son inherits from a father who dies intestate; for the natural law, although it does not absolutely prescribe that this shall be so, does incline toward this arrangement, which follows from it naturally (so to speak) unless an impediment arises from some other source. So, too, the practice of giving credence to two witnesses, or the fact that they are sufficient for human requirements of proof, may be said to pertain to the natural law—not in its prescriptive, but in its approving and permissive character—unless for special causes some other requirement is added, or imposed [in substitution].

In the present discussion, then, we are speaking (as I have pointed out) of the natural law in the first sense; but in connexion with certain arguments, we shall say something concerning that law in the latter sense.

7. A point to be noted. With respect to the first mode, however, it should be further noted that, among the precepts of natural law, there are certain precepts—dealing with pacts, agreements, obligations—which are introduced through the will of men: for example, the laws relating to the observance of vows and of human promises, whether these be made in simple form or confirmed by oath; and the same is true of other contracts, according to the particular characteristics of each; and true, also, of rights, natural and legal,11 arising therefrom.

There are other natural laws, however, which are directly binding, in their very subject-matter and independently of any prior consent by human will: for example, the positive precepts of religion in relation to God, of filial piety, of mercy, and of almsgiving to one’s neighbour; and the negative precepts against killing, those against slander, and similar Edition: current; Page: [309] prohibitions. In both kinds of precepts12 there is involved the same necessity in so far as concerns the formal character of law, and, consequently, there are the same uniformity and immutability; but with respect to the subject-matter, the second group of precepts possesses a greater degree of immutability, since they have not for their subject-matter (so to speak) human free will, which is exceedingly changeable and frequently requires correction and alteration.

8. I hold, first: that no human power, even though it be the papal power, can abrogate any proper precept of natural law, nor truly and essentially restrict such a precept, nor grant a dispensation from it.

The first assertion: no human power can abrogate any natural precept. The first proof of this assertion is drawn from the statements made in the preceding Chapter; for it has been shown in that Chapter that the natural law, in so far as its precepts are concerned, is by its very nature unchangeable; and men cannot change that which is unchangeable; therefore, . . . This argument is confirmed and made clear by the fact that the natural law, in all its precepts, relates to the natural qualities of mankind; and man cannot change the nature of things; therefore, . . . Secondly, the assertion in question is proved by the fact that, in the case of every precept of natural law, God is the Lawgiver; and man cannot change a law that God has established, since an inferior cannot prevail as against his superior, a point which is brought out in the Decretum (Pt. I, dist. xxi, can. iv) and the Constitutions of Clement (Bk. I, tit. iii, chap. ii), therefore, . . . Thirdly, there is the argument that the natural law is the foundation of human law, and that therefore, human law cannot derogate from natural law; since if it did so, it would destroy its own foundation and consequently itself. Fourthly, if human law could derogate from natural law, it would be possible for the former to make an enactment in opposition to the latter, since one can conceive of no other way of changing natural law; but [human law] cannot make such an enactment; therefore, . . . The minor premiss is proved thus: what is contrary to natural law is intrinsically evil; therefore, Edition: current; Page: [310] the human law in question would relate to an intrinsically evil matter, and in consequence would not [truly] constitute law either in general or in particular. A confirmation of this argument is the fact that, for this same reason, a custom opposed to natural law cannot inaugurate a legal rule. On this fact, see the Decretals (Pt. I, tit. iv, can. xi) and the Gloss thereon. The latter passage notes that the natural law is immutable in so far as concerns its commands and prohibitions. There is another, similar passage in the Gloss (on Decretum, Pt. I, dist. v, pars 1, § 1), where Gratian says that the natural law is unchangeable; a statement which he repeats in the following distinction (Decretals, Pt. I, dist. vi, § 1 [following can. iii, citing the words of Gratian]).

9. Objection. It may be objected that all these remarks apply rightly to the abrogation or absolute change of any natural precept, but not to dispensations upon the occurrence of a legitimate cause; for it is not probable that God has granted to mankind authority to abrogate or restrict [the natural law] without cause; nor do men of themselves possess such authority, as is proved by the arguments already presented. But the case is otherwise with respect to just dispensations. For, although a man may not grant such a dispensation on his own authority—a fact which is also proved by the arguments in question—nevertheless, he may do so with authority from God, since an inferior is in this sense able to grant dispensations from the law of a superior, and since it seems probable that man, acting as vicegerent on earth of God, is likewise able to grant dispensations for a just cause and by divine concession from the laws in question, inasmuch as this [ability on the part of man] is pertinent to the good government of the universe, as we were reasoning above.

10. Solution. However, in answer to this objection, it may be urged, first, that God Himself is not able—at least, not by ordinary law—to grant dispensations with respect to any precept of natural law. For if, at times, He does work some change in these precepts, He is making use of His absolute power, and indeed, of His supreme dominion, as we shall explain in the following Chapter; and therefore, it is improbable that He has given to men, ordinary power for granting dispensations with respect to any natural precept. This is especially evident, in view of the conclusion which will follow clearly upon the solutions to the arguments, and the Edition: current; Page: [311] content of Chapter xvi—namely, that this power is not necessary to men for the proper conduct of government.

Secondly, it may be answered that, if such power did reside in men, it would be found not only in the Pope, but also in the Emperor, or temporal king, in so far as those natural precepts are concerned which have to do with temporal affairs, as is the case with nearly all the precepts which relate to one’s neighbour; and both [of these conclusions] are false; therefore, . . . The consequent is explained as follows: although the Pope has supreme power in the Church, nevertheless, the Emperor also holds power from God and acts, in his own realm, as the minister of God, according to the statement made by Paul in his Epistle to the Romans (Chap. xiii); moreover, from the standpoint of the natural law, one can think of no person other [than the Emperor], prior to the institution of the Papal dignity, who was the minister of God within the state in so far as such an act was concerned; and even now, the Emperor will have the same power, provided that the Pope places no impediment in his way. The minor proposition, moreover, in so far as it concerns the Emperor, is stated in the Constitutions of Clement (Bk. II, tit. xi, chap. ii, at end): ‘Neither could the aforesaid remedy of the defect [of jurisdiction] with respect to a subject, reasonably have been applied to those things through which it would have been possible to do away with the right of self-defence—springing from the law of nature—against a criminal charge, especially a charge that was so grave; for it would not be permissible that the Emperor should abolish those things which proceed from the natural law.’ The same general conclusion is to be drawn from the Decretals (Bk. V, tit. xix, chap. iv), where these words appear: ‘Since the crime of usury is held in abhorrence in the pages of both Testaments, we do not see that any dispensation can be granted with regard to that crime.’ For the Pope tacitly infers from the fact that the said crime is execrated in both Testaments, that it is contrary to the natural law, and consequently beyond the bounds of possible dispensation in an absolute sense, wherefore it lies beyond them in so far as every human power is concerned.

Thirdly, one may answer that with respect to the precepts in question, the same principle is applicable to the parts and to the whole. For in the case of the necessary proposition applied by logicians to a matter which is Edition: current; Page: [312] natural, falsity in a single instance is no less inconceivable than the falsity of the whole universal proposition; but every natural precept deals with such a natural matter, and is characterized by the absolute truth which is necessary from the very nature of the case; therefore, just as a natural precept cannot be abrogated, so it cannot be changed in any particular instance, and consequently cannot be subjected to dispensation. The force of this argument, however, depends upon the statements to be made in the following Chapter and in the answers to the arguments.13

11. The second assertion: those precepts of the natural law which depend upon the consent of the human will for their binding force, may at times be subjected to human dispensation. My second assertion is this: the precepts of the natural law which depend for their preceptive binding force upon a prior consent of the human will, and upon the efficacy of that will to issue in some action, may sometimes be subjected to human dispensation, involving not a direct and absolute abolition of the obligation of natural law but a certain remission that affects the subject-matter [of the precept in question].

The truth of the first and negative member of this assertion is readily apparent in the light of the preceding assertion, since the said precepts, when viewed in themselves, possess an intrinsic rectitude that can never be abolished or violated if they are applied to their [proper] subject-matter; as is evident in the case of precepts such as the rule that good faith must be observed towards God and man, and the like. Moreover, the other and affirmative member [of the assertion] is most effectually proved by the example of a vow, that of an oath, and similar examples. It has been fully explained in our tractate De Voto (Bk. VI, chap. ix)14 and will be clarified below in the replies to the various arguments. The reason, indeed, [in support of this affirmative statement], is none other than the fact that to change or to vary the subject-matter in question is not contrary to natural law, since such a variation depends upon a change of [human] volition. By the same reasoning, moreover, this [kind of dispensation] is not beyond Edition: current; Page: [313] the power of a human superior, either in so far as the will of the subject depends upon that superior, or in so far as the latter is the vicar of God. Furthermore, once this change has been effected, not only is there no obstacle necessarily opposed to the abolition of [that particular] obligation of the natural law, but the obligation lapses even of itself, and ceases to exert a binding force. Nay, more; a private individual can sometimes do away with the natural obligation arising from a promise (for instance, by remitting it) or with the obligation arising from a loan (by making it completely a gift). Accordingly, it is thus that one should conceive of the above-mentioned relaxation of natural law—the relaxation involved in this kind of dispensation, which, indeed, strictly speaking, is not from natural law, but may be called a dispensation from a vow or from an oath, since it is effected through an act of remission (so to speak) by a superior power, of [its own] jurisdiction; although [such relaxation] is (strictly speaking) a dispensation in fact, rather than in law, as Albert of Bologna has rightly remarked (De Lege, Iure, et Aequitate, Chap. xxvi, nos. 3 et seq.).

12. The third assertion: through human law the subject-matter of the natural law may be so changed, that in consequence of this change in the matter, the obligation imposed by natural law will also change. My third assertion is this: through human law, whether it be the ius gentium or the civil law, there may be effected in the subject-matter of the natural law a change of such sort that, by reason thereof, the obligation imposed by natural law will also change. It would seem that a number of civil laws should be understood in the light of this conclusion; or that the jurists should be thus understood when they say that some part of the natural law is withdrawn, through the ius gentium or the civil law. This point is clearly brought out in the Digest (I. i. 4 and 6) and in the Institutes (I. ii, § 1). The third assertion is furthermore confirmed by many of the examples adduced to illustrate the first basis of the contrary opinion, as we shall see when we expound those examples. And finally, the rational basis of the said assertion is the fact that such a mode of change is not inconsistent with the necessary and unchangeable character of the natural law; and that, for the rest, it is convenient and frequently necessary for men, in accordance with the various changes of estate which befall them. In this connexion, too, one may fittingly apply the familiar illustration drawn from Augustine, namely, Edition: current; Page: [314] that just as the science of medicine lays down certain precepts for the sick, others for the well, certain precepts for the strong and others for the weak, although the rules of medicine do not therefore undergo essential change but merely become manifold, so that some serve on one occasion, and others, on another occasion; even so, the natural law, while it remains [in itself] the same, lays down one precept for one occasion and another, for another occasion; and is binding [in one of its rules] at one time, though not binding previously or subsequently, and this without undergoing any change in itself but merely because of a change in the subject-matter.

13. The arguments are answered. A reply must be made, then, to the arguments supporting the first opinion,15 in so far as those arguments may be opposed to the foregoing assertion.

Reply to the first argument. Thus, with respect to the first example laid down in connexion with the first argument and relating to ownership in common and division of property, Scotus (on the Sentences, Bk. IV, dist. xv, qu. 2, art. 1) and Gabriel (on the Sentences, ibid., qu. 2, at the beginning), say that, before the commission of sin, a precept was laid on mankind ruling that all property should be owned in common: whereas, after the commission of sin, this law was annulled, so that the division of property was not then contrary to the law of nature. This opinion, however, with regard to that first precept, is not acceptable to me, since I do not see the necessity for such a rule. For if it is conceived of as being a positive precept, the assertion is gratuitous, since it cannot be proved; and if the precept is conceived of as natural, proof must be offered of the necessary connexion between community of property and the state of innocence, proof which would seem not to exist, since, without prejudice to the rectitude of their conduct, men could in that state of innocence take possession of, and divide among themselves, certain pieces of property, especially those which are movables and necessary for ordinary use. This fact has been noted by Almain (on the Sentences, Bk. IV, dist. xv, qu. 2, art. 1, secunda propositio). Moreover, the conjectures that Scotus employs to prove this precept—that is to say, the conjecture that community of property in such a state would be better adapted to promote Edition: current; Page: [315] the sustenance and peace of mankind, and similar suppositions—prove merely that at that time a division of property was not necessary; or, at most, they prove that ownership in common would have been more useful in that state, but not that it would have been necessary. Just as, conversely, the advantages which show that a division of property is better adapted to [human] nature in the fallen state are proof, not that this division of ownership is a matter prescribed by natural law, but merely that it is adapted to the existing state and condition of mankind. Yet we must note that, according to the opinion of Scotus, the admission is, not that there has been any intrinsic and true change in natural law, but simply that there has been a cessation in its binding force, owing to a change made by men and therefore made in the subject-matter itself.

14. A division in the natural law, into the negative and the positive aspects. The common reply, then, with respect both to the example in question and to many other examples, is that there are two senses in which a matter may fall under the natural law; namely, a negative, and a positive sense. It is said that [a given action] falls negatively under the natural law because that law does not prohibit, but on the contrary permits [the said action], while not positively prescribing its performance. When, however, something is prescribed by natural law, that prescription is said to be positively a part of natural law; and when any thing is prohibited thereby, the thing thus prohibited is said to be positively opposed to natural law.

A division of property