LAW
On the Essence of Law
FIRST ARTICLE
Does Law Belong to Reason?
We thus proceed to the first inquiry. It seems that law does not belong to reason, for the following reasons:
Objection 1. The Apostle in Rom. 7:23 says: “I perceive another law in my bodily members,” etc. But nothing belonging to reason belongs to bodily members, since reason does not use bodily organs. Therefore, law does not belong to reason.
Obj. 2. Only power, habits, and acts belong to reason. But law is not the very power of reason. Likewise, law is not a habit of reason, since habits of reason are intellectual virtues, about which I have spoken before. Nor is law an act of reason, since law would cease when the lawmaker ceased to reason (e.g., when he is sleeping). Therefore, law does not belong to reason.
Obj. 3. Law induces those subject to the law to act rightly. But inducing to act rightly belongs in the strict sense to the will, as is evident from what I have said before. Therefore, law belongs to the will rather than to reason, as the Jurist also says: “The pleasure of the ruler has the force of law.”
On the contrary, it belongs to law to command and forbid. But to command belongs to reason, as I have maintained before. Therefore, law belongs to reason.
I answer that law is a rule and measure of acts that induces persons to act or refrain from acting. For law [Lat.: lex] is derived from binding [Lat.: ligare] because law obliges persons to act. And the rule and measure of human acts is reason, which is the primary source of human acts, as is evident from what I have said before. For it belongs to reason to order us to our end, which is the primary source regarding our prospective action, as the Philosopher says. And the source in any kind of thing is the measure and rule of that kind of thing (e.g., units in numbers and first movements in movements). And so we conclude that law belongs to reason.
Reply Obj. 1. We say that law, since it is a rule or measure, belongs to something in two ways. It belongs in one way as to what measures and rules. And law in this way belongs only to reason, since measuring and ruling belong to reason. Law belongs to something in a second way as to what is ruled and measured. And then law applies to everything that a law induces to something, so that we can call every inclination resulting from a law, law by participation, as it were, not essentially. And we in this way call the very inclination of bodily members to concupiscence the law of the bodily members.
Reply Obj. 2. Regarding external acts, we can consider the activity and the product of the activity (e.g., building and the building constructed). Just so, regarding acts of reason, we can consider the very acts of reason (i.e., acts of understanding and reasoning) and the things produced by such acts. And regarding theoretical reason, definitions are indeed the first product. Propositions are the second product. And syllogisms and arguments the third product. And practical reason also uses a kind of syllogism regarding prospective actions, as I have maintained before, and as the Philosopher teaches in the Ethics. Therefore, there are things in practical reason that are related to actions as propositions in theoretical reason are related to conclusions. And such universal propositions of practical reason related to actions have the nature of law. And reason indeed sometimes actually contemplates and sometimes only habitually retains these propositions.
Reply Obj. 3. Reason has from the will the power to induce activity, as I have said before, since reason commands means because one wills ends. But an act of reason needs to rule the will regarding the means commanded in order that the willing have the nature of law. And we in this way understand that the will of a ruler has the force of law. Otherwise, the willing of the ruler would be injustice rather than law.
SECOND ARTICLE
Is Law Always Ordained for
the Common Good?
We thus proceed to the second inquiry. It seems that law is not ordained for the common good as its end, for the following reasons:
Objection 1. It belongs to law to command and forbid. But precepts are ordained for particular goods. Therefore, the end of law is not always the common good.
Obj. 2. Law directs the actions of human beings. But human acts regard particulars. Therefore, law is likewise ordained for particular goods.
Obj. 3. Isidore says in his Etymologies: “If law is based on reason, everything founded on reason will be law.” But both things ordained for the common good and things ordained for private good are based on reason. Therefore, law is ordained both for the common good and for the private good of individuals.
On the contrary, Isidore says in his Etymologies that laws are “enacted for no private convenience but for the common benefit of citizens.”
I answer that as I have said, law belongs to the source of human acts, since law is their rule and measure. And as reason is the source of human acts, so also is there in reason itself something that is the source of all other kinds of acts. And so law needs chiefly and especially to belong to this source.
And the first source in practical matters, with which practical reason is concerned, is the ultimate end. But the ultimate end of human life is happiness or blessedness, as I have maintained before. And so law especially needs to regard the ordination to blessedness.
Moreover, law in the strict sense needs to concern ordination to happiness in general, since every part is related to a whole as something imperfect to something perfect. And so also the Philosopher, regarding the cited definition of laws, speaks of both happiness and political community. For he says in the Ethics that “we call those laws just that constitute and preserve happiness and its particulars by citizens’ sharing in a political community.” For the political community is the perfect community, as he says in the Politics.
And regarding any kind of thing, the one most such is the source of the others, and we call the others such by their relation to that one. For example, fire, which is hottest, causes heat in composite material substances, which we call hot insofar as they share in fire. And so, since we speak of law in the first place because of its ordination to the common good, every other precept regarding particular acts has the nature of law only because of its ordination to the common good. And so every law is ordained for the common good.
Reply Obj. 1. Precepts signify the application of laws to things regulated by the laws. And the ordination to the common good, which belongs to law, can be applied to particular ends. And so there can be precepts even regarding particular matters.
Reply Obj. 2. Actions indeed concern particular matters, but such particulars can be related to the common good by sharing in the final cause, insofar as we call the common good the final cause, not by sharing in a genus or species.
Reply Obj. 3. As theoretical reason firmly establishes nothing except by tracing things back to first indemonstrable principles, so practical reason firmly establishes nothing except by ordering things to our ultimate end, that is, our common good. And what reason so establishes has the nature of law.
THIRD ARTICLE
Is Any Person’s Reason Competent to
Make Law?
We thus proceed to the third inquiry. It seems that any person’s reason is competent to make law, for the following reasons:
Objection 1. The Apostle says in Rom. 2:14 that “when the Gentiles, who do not have the law, by nature do the things the law prescribes, they make law for themselves.” But we say the same about everybody. Therefore, anyone can make law for oneself.
Obj. 2. As the Philosopher says in the Ethics, “lawmakers aim to induce human beings to virtue.” But any human being can lead others to virtue. Therefore, the reason of any human being is competent to make law.
Obj. 3. As the ruler of a political community governs that community, so the head of a household governs his household. But the ruler of a political community can make laws regarding the political community. Therefore, any head of a household can make laws regarding his household.
On the contrary, Isidore says in his Etymologies, and the Decretum maintains: “Laws are ordinances of the people whereby elders and commoners together prescribe things.” Therefore, not every person’s reason is competent to make law.
I answer that law in the strict sense primarily and chiefly regards ordaining things for the common good. But ordaining things for the common good belongs either to the whole people or to persons acting in the name of the whole people. And so lawmaking belongs either to the whole people or to a public personage who has the care of the whole people. For also in all other matters, ordaining things for ends belongs to those to whom the ends belong.
Reply Obj. 1. As I have said before law belongs both to those who rule, and by participation to those who are ruled. And it is in the latter way that everyone makes law for oneself, as one participates in the ordinations of the ruler. And so also the Apostle adds in v. 15: “And they manifest the law’s operation written in their hearts.”
Reply Obj. 2. Private persons cannot effectively induce others to virtue. For private persons can only offer advice and have no coercive power if their advice should not be accepted. And law should have coercive power in order to induce others effectively to virtue, as the Philosopher says in the Ethics. But the people or a public personage has such coercive power and the right to inflict punishment, as I shall explain later. And so it belongs only to the people or a public personage to make law.
Reply Obj. 3. As human beings are parts of a household, so households are parts of a political community, as the Politics says. And so, as the good of a human being is not the ultimate end of that individual but is ordained for the common good, so also the good of a household is ordained for the good of a political community, which is a perfect community. And so those who govern households can indeed make precepts and rules, but such precepts and rules do not have the nature of law in the strict sense.
FOURTH ARTICLE
Is Promulgation an Essential Component
of Law?
We thus proceed to the fourth inquiry. It seems that promulgation is not an essential component of law, for the following reasons:
Objection 1. The natural law most has the nature of law. But the natural law does not need to be promulgated. Therefore, promulgation is not an essential component of law.
Obj. 2. Obligation to do or not to do things belongs in the strict sense to law. But both those to whom laws have been promulgated and those to whom laws have not, are obliged to obey laws. Therefore, promulgation is not an essential component of law.
Obj. 3. The obligation to obey laws also extends to the future, since “laws impose obligation regarding future affairs,” as the Code says. But laws are promulgated to those present at their promulgation. Therefore, promulgation is not an essential component of law.
On the contrary, the Decretum says that “laws are established when they are promulgated.”
I answer that laws are imposed on others as rules and measures, as I have said. But rules and measures are imposed by being applied to those ruled and measured. And so laws, in order to oblige persons, as is proper to law, need to be applied to those who are to be ruled by the laws. But the promulgation leading them to knowledge achieves such application. And so promulgation is necessary for laws to be in force.
And so we can compose the definition of law from the four characteristics I have mentioned: law is an ordination of reason for the common good by one who has the care of the community, and promulgated.
Reply Obj. 1. The natural law is promulgated by God when he implants it in the minds of human beings so that they know it by nature.
Reply Obj. 2. Those to whom a law is not promulgated are obliged to observe it insofar as others make it known to them, or it can become known to them after it has been promulgated.
Reply Obj. 3. The present promulgation of a law reaches into the future through the durability of written words, which in a way are always promulgating it. And so Isidore says in his Etymologies that “we derive law [Lat.: lex] from reading [Lat.: legere], since law is written.”
On Different Kinds of Law
FIRST ARTICLE
Is There an Eternal Law?
We thus proceed to the first inquiry. It seems that there is no eternal law, for the following reasons:
Objection 1. Every law is imposed on particular persons. But there was no one from eternity on whom law could be imposed, since only God was from eternity. Therefore, no law is eternal.
Obj. 2. Promulgation is an essential component of law. But there could be no promulgation from eternity, since there was no one from eternity to whom a law would be be promulgated. Therefore, no law can be eternal.
Obj. 3. Law signifies the direction to an end. But nothing ordained to an end is eternal, since only the ultimate end is eternal. Therefore, no law is eternal.
On the contrary, Augustine says in his work On Free Choice: “No one with intelligence can perceive the law called supreme reason not to be immutable and eternal.”
I answer that as I have said before, law is simply a dictate of practical reason by a ruler who governs a perfect community. But supposing that God’s providence rules the world, as I maintained in the First Part, his reason evidently governs the entire community of the universe. And so the plan of governance of the world existing in God as the ruler of the universe has the nature of law. And since God’s reason conceives eternally, as Prov. 8:23 says, not temporally, we need to say that such law is eternal.
Reply Obj. 1. Things that do not exist in themselves exist with God insofar as he foreknows and foreordains them, as Rom. 4:17 says: “And he calls nonexisting things into existence.” Therefore, the eternal conception of God’s law has the nature of an eternal law insofar as he ordains that law for governance of the world he foreknows.
Reply Obj. 2. Word and inscription promulgate law. And God promulgates his eternal law in both ways, since the Word of God and the inscription of the predestined in the Book of Life are eternal. But as regards the creatures who hear or read God’s law, the promulgation cannot be eternal.
Reply Obj. 3. Law signifies actively ordaining things for an end, namely, that law ordain things for an end. And law does not signify being ordained for an end, that is, that law itself be ordained for another end, except incidentally in the case of human rulers, whose end is extrinsic to themselves. And then the rulers’ laws also need to be ordained for that extrinsic end. But the end of God’s governance is God himself, and his law is indistinguishable from himself. And so the eternal law is not ordained for another end.
SECOND ARTICLE
Is There a Natural Law in Us?
We thus proceed to the second inquiry. It seems that there is no natural law in us, for the following reasons:
Objection 1. The eternal law sufficiently governs human beings. For Augustine says in his work On Free Choice that “the eternal law is that whereby it is right that all things be most orderly.” But nature does not abound in superfluities, nor is it wanting in necessities. Therefore, there is no natural law for human beings.
Obj. 2. Law ordains human beings to their end regarding their actions, as I have maintained before. But nature does not ordain human actions to their end, as happens in the case of irrational creatures, which act for their ends only by natural appetites. Rather, human beings act for their end by the use of their reason and will. Therefore, there is no natural law for human beings.
Obj. 3. The freer one is, the less one is subject to law. But human beings are freer than all other animals because human beings, unlike other animals, have free choice. Therefore, since other animals are not subject to a natural law, neither are human beings.
On the contrary, a gloss on Rom. 2:14, “When the Gentiles, who do not have the law, do by nature things prescribed by the law,” etc., says: “Although they do not have the written law, they have a natural law, whereby each of them understands and is conscious of good and evil.”
I answer that as I have said before, law, since it is a rule or measure, can belong to things in two ways: in one way to those who rule and measure; in a second way to those ruled and measured, since things are ruled or measured insofar as they partake of the rule or measure. But the eternal law rules and measures everything subject to God’s providence, as is evident from what I have said before. And so everything evidently shares in some way in the eternal law, namely, insofar as all things have inclinations to their own acts and ends from its imprint on them. But the rational creature is subject to God’s providence in a more excellent way than other things, since such a creature also shares in God’s providence in providing for itself and others. And so it shares in the eternal plan whereby it has its natural inclination to its requisite activity and end. And we call such participation in the eternal law by rational creatures the natural law. And so Ps. 4:6, after saying, “Offer just sacrifices,” asks: “Who shows us just things?” and replies: “The light of your countenance, O Lord, has been inscribed on us.” The Psalmist thus signifies that the light of natural reason whereby we discern good and evil is simply the imprint of God’s light in us. And so it is clear that the natural law is simply rational creatures’ participation in the eternal law.
Reply Obj. 1. The argument of this objection would be valid if the natural law were to be something different from the eternal law. But the natural law shares in the eternal law, as I have said.
Reply Obj. 2. Every activity of reason and the will in us is derived from what exists by nature, as I have maintained before, since every process of reasoning is derived from first principles known by nature, and every desire of means is derived from the natural desire of our ultimate end. And so also the natural law needs first to direct our acts to their end.
Reply Obj. 3. Even irrational animals, like rational creatures, share in the eternal law in their own way. But because rational creatures share in the eternal law by using their intellect and reason, we call their participation in the eternal law law in the strict sense, since law belongs to reason, as I have said before. And irrational creatures do not share in the eternal law by the use of reason. And so we can call the latter participation law only by analogy.
THIRD ARTICLE
Are There Human Laws?
We thus proceed to the third inquiry. It seems that there are no human laws, for the following reasons:
Objection. 1. The natural law shares in the eternal law, as I have said. But the eternal law “renders all things most orderly,” as Augustine says in his work On Free Choice. Therefore, the natural law suffices for ordering all human affairs. Therefore, there is no need for human laws.
Obj. 2. Law has the nature of a measure, as I have said. But human reason is not the measure of things. Rather, the converse is true, as the Metaphysics says. Therefore, human reason can produce no law.
Obj. 3. A measure should be most certain, as the Metaphysics says. But dictates of human reason about things to be done are uncertain, as Wis. 9:14 says: “The thoughts of mortal human beings are fraught with fear, and our foresight uncertain.” Therefore, human reason cannot produce laws.
On the contrary, Augustine in his work On Free Choice posits two kinds of law, one kind eternal, and the other temporal, which he calls human.
I answer that law is a dictate of practical reason, as I have said before. But there are similar processes of practical and theoretical reason, since both proceed from principles to conclusions, as I have maintained before. Therefore, we should say that we advance in theoretical reason from indemonstrable first principles, naturally known, to the conclusions of different sciences, conclusions not implanted in us by nature but discovered by exercising reason. Just so, human reason needs to advance from the precepts of the natural law, as general and indemonstrable first principles, to matters that are to be more particularly regulated. And we call such regulations devised by human reason human laws, provided that the other conditions belonging to the nature of law are observed, as I have said before. And so also Cicero says in his Rhetoric: “Human law originally sprang from nature. Then things became customs because of their rational benefit. Then fear and reverence for law validated things that both sprang from nature and were approved by custom.”
Reply Obj. 1. Human reason cannot partake of the complete dictates of God’s reason but partakes of them in its own way and incompletely. And so regarding theoretical reason, we by our natural participation in God’s wisdom know general principles but do not specifically know every truth, as God’s wisdom does. Just so regarding practical reason, human beings by nature partake of the eternal law as to general principles but not as to particular specifications of particular matters, although such specifications belong to the eternal law. And so human reason needs to proceed further to determine the particular prescriptions of human law.
Reply Obj. 2. Human reason as such is not the rule of things, but the first principles implanted by nature in human reason are the general rules or measures of everything related to human conduct. And natural reason is the rule and measure of such things, although not of things from nature.
Reply Obj. 3. Practical reason regards practical matters, which are particular and contingent, and does not regard necessary things, as theoretical reason does. And so human laws cannot have the absolute certainty of demonstrated scientific conclusions. Nor need every measure be unerring and certain in every respect. Rather, every measure needs to be such only to the extent possible in its kind of thing.
FOURTH ARTICLE
Did Human Beings Need a Divine Law?
We thus proceed to the fourth inquiry. It seems that human beings did not need any divine law, for the following reasons:
Objection 1. The natural law is our participation in the eternal law, as I have said. But eternal law is divine law, as I have said. Therefore, we do not need another divine law besides the natural law and the human laws derived from natural law.
Obj. 2. Sir. 15:14 says that “God left human beings in the hands of their own deliberation.” But deliberation is an act of reason, as I have maintained before. Therefore, God left human beings to the governance of their own reason. But the dictates of human reason are human laws, as I have said. Therefore, human beings do not need to be governed by another divine law.
Obj. 3. Human nature is more self-sufficient than irrational creatures. But irrational creatures have no divine law besides the inclinations that nature implants in them. Therefore, much less should rational creatures have a divine law besides the natural law.
On the contrary, David petitioned God to lay out the law before him, saying in Ps. 119:33: “Teach me the law, O Lord, in the way of your statutes.”
I answer that in addition to the natural law and human laws, divine law was necessary to give direction to human life. And there are four reasons for this.
First, indeed, law directs our acts in relation to our ultimate end. And human beings, if they were indeed ordained only for an end that did not surpass the proportion of their natural ability, would not, regarding reason, need to have any direction superior to the natural law and human laws derived from the natural law. But because human beings are ordained for the end of eternal blessedness, which surpasses their proportional natural human capacity, as I have maintained before, God needed to lay down a law superior to the natural law and human laws to direct human beings to their end.
Second, because of the uncertainty of human judgment, especially regarding contingent and particular matters, different persons may judge differently about various human actions, and so even different and contrary laws result. Therefore, in order that human beings can know beyond any doubt what they should do or should not do, a divinely revealed law, regarding which error is impossible, was needed to direct human beings in their actions.
Third, human beings can make laws regarding things they are able to judge. But human beings can judge only sensibly perceptible external acts, not hidden internal movements. And yet human beings need to live righteously regarding both kinds of acts in order to attain complete virtue. And so human laws could not prohibit or adequately ordain internal acts, and divine law needed to supplement human laws.
Fourth, human laws cannot punish or prohibit all evil deeds, as Augustine says in his work On Free Choice. This is because in seeking to eliminate all evils, one would thereby also take away many goods and not benefit the common good necessary for human companionship. Therefore, in order that no evil remain unforbidden or unpunished, there needed to be a divine law forbidding all sins.
And Ps. 19:7 touches on these four reasons when it says: “The law of the Lord is pure,” that is, permitting no sinful wickedness; “converting souls,” since it directs both external and internal acts; “the Lord’s faithful witness” because of its certain truth and rectitude; “offering wisdom to the little ones,” since it ordains human beings for a supernatural and divine end.
Reply Obj. 1. The natural law partakes of the eternal law in proportion to the capacity of human nature. But human beings need to be directed in a higher way to their ultimate supernatural end. And so God gives an additional law that partakes of the eternal law in a higher way.
Reply Obj. 2. Deliberation is an inquiry, and so deliberation needs to advance from some principles. And it does not suffice that it advance from first principles implanted by nature, that is, precepts of the natural law, for the aforementioned reasons. Rather, other principles, namely, precepts of divine law, need to be supplied.
Reply Obj. 3. Irrational creatures are not ordained for higher ends than those proportioned to their natural powers. And so the argument of the objection is inapplicable.
On the Natural Law
FIRST ARTICLE
Is the Natural Law a Habit?
We thus proceed to the first inquiry. It seems that the natural law is a habit, for the following reasons:
Objection 1. “Three things belong to the soul: powers, habits, and emotions,” as the Philosopher says in the Ethics. But the natural law is neither a power of the soul nor an emotion. Therefore, the natural law is a habit.
Obj. 2. Basil says that conscience, that is, synderesis, is “the law of our intellect,” and we can only understand such regarding the natural law. But synderesis is a habit, as I maintained in the First Part. Therefore, the natural law is a habit.
Obj. 3. The natural law always abides in human beings, as I shall make clear later. But human beings’ reason, to which that law belongs, is not always thinking about the natural law. Therefore, the natural law is a habit, not an act.
On the contrary, Augustine says in his work On the Marital Good that “habits are the means whereby we do things when we need to.” But the natural law is not such, since that law belongs to infants and the damned, who cannot act by reason of its presence. Therefore, the natural law is not a habit.
I answer that we can speak about habits in two ways. We speak of them in one way in the strict sense and essentially, and then the natural law is not a habit. For I have said before that the natural law is constituted by reason, just as propositions are works of reason. And what one does, and the means whereby one does it, are not the same. For example, one makes a fitting speech by means of the habit of grammar. Therefore, since habits are the means whereby one does things, the natural law cannot be a habit in the strict sense and essentially.
We can speak of habits in a second way as what we possess by reason of habits. For example, we call faith what we have by reason of the habit of faith. And so, as reason sometimes actually considers precepts of the natural law and sometimes only habitually possesses them, we can in the latter way say that the natural law is a habit. Just so, the indemonstrable first principles in theoretical matters are principles belonging to the habit of first principles, not the very habit.
Reply Obj. 1. The Philosopher in the cited text is attempting to discover the genus of virtues. And since virtues are evidently sources of activity, he posits only things that are sources of human activity, namely, powers, habits, and emotions. But other things belong to the soul besides the latter three. For example, certain acts belong to the soul: willing to those willing, and things known to those knowing. And the natural properties of the soul, such as immortality and the like, belong to the soul.
Reply Obj. 2. Basil calls synderesis the law of our intellect insofar as it is the habit that contains the precepts of the natural law, that is, the first principles of human actions.
Reply Obj. 3. The argument of this objection reaches the conclusion that we possess the natural law in a habitual way, and we concede this.
Qualification to the argument in the section On the contrary. Sometimes, due to an impediment, one cannot make use of what one possesses habitually. For example, human beings cannot make use of habitual knowledge when they are asleep. And likewise, children cannot make use of habitual understanding of first principles, or even of the natural law, which they possess habitually, due to their immature age.
SECOND ARTICLE
Does the Natural Law Include Several
Precepts or Only One?
We thus proceed to the second inquiry. It seems that that the natural law includes only one precept, not several, for the following reasons:
Objection 1. Law belongs to the genus of precept, as I have maintained before. Therefore, if there were to be many precepts of the natural law, it would follow logically that there would also be many natural laws.
Obj. 2. The natural law results from the nature of human beings. But human nature as a whole is one, although multiple regarding its parts. Therefore, either there is only one precept of the natural law because of the unity of the whole, or there are many precepts because of the many parts of human nature. And so even things that regard inclinations of concupiscible power will need to belong to the natural law.
Obj. 3. Law belongs to reason, as I have said before. But there is only one power of reason in human beings. Therefore, there is only one precept of the natural law.
On the contrary, the precepts of the natural law in human beings are related to action as the first principles in scientific matters are related to theoretical knowledge. But there are several indemonstrable first principles of theoretical knowledge. Therefore, there are also several precepts of the natural law.
I answer that as I have said before, the precepts of the natural law are related to practical reason as the first principles of scientific demonstrations are related to theoretical reason. For both the precepts of the natural law and the first principles of scientific demonstrations are self-evident principles. And we speak of things being self-evident in two ways: in one way as such; in a second way in relation to ourselves. We indeed speak of self-evident propositions as such when their predicates belong to the nature of their subjects, although such propositions may not be self-evident to those who do not know the definition of the subjects. For example, the proposition “Human beings are rational” is by its nature self-evident, since to speak of something human is to speak of something rational, although the proposition is not self-evident to one who does not know what a human being is. And so, as Boethius says in his work On Groups of Seven, there are axioms or universally self-evident propositions, and propositions whose terms all persons know (e.g., “Every whole is greater than one of its parts” and “Things equal to the same thing are themselves equal”) are such. But some propositions are self-evident only to the wise, who understand what the proposition’s terms signify. For example, for those who understand that angels are not material substances, it is self-evident that angels are not circumscriptively in a place, something not evident to the uneducated, who do not understand the nature of angels.
And there is a priority regarding the things that fall within the understanding of all persons. For what first falls within our understanding is being, the understanding of which is included in everything that one understands. And so the first indemonstrable principle is that one cannot at the same time affirm and deny the same thing. And this principle is based on the nature of being and nonbeing, and all other principles are based on it, as the Metaphysics says. And as being is the first thing that without qualification falls within our understanding, so good is the first thing that falls within the understanding of practical reason. And practical reason is ordered to action, since every efficient cause acts for the sake of an end, which has the nature of good. And so the first principle in practical reason is one based on the nature of good, namely, that good is what all things seek. Therefore, the first precept of the natural law is that we should do and seek good, and shun evil. And all the other precepts of the natural law are based on that precept, namely, that all the things that practical reason by nature understands to be human goods or evils belong to precepts of the natural law as things to be done or shunned.
And since good has the nature of end, and evil the nature of the contrary, reason by nature understands to be good all the things for which human beings have a natural inclination, and so to be things to be actively sought, and understands contrary things as evil and to be shunned. Therefore, the ordination of our natural inclinations ordains the precepts of the natural law.
First, for example, human beings have an inclination for good by the nature they share with all substances, namely, as every substance by nature seeks to preserve itself. And regarding this inclination, means that preserve our human life and prevent the contrary belong to the natural law.
Second, human beings have more particular inclinations by the nature they share with other animals. And so the Digest says that things “that nature has taught all animals,” such as the sexual union of male and female, and the upbringing of children, and the like, belong to the natural law.
Third, human beings have inclinations for good by their rational nature, which is proper to them. For example, human beings by nature have inclinations to know truths about God and to live in society with other human beings. And so things that relate to such inclinations belong to the natural law (e.g., that human beings shun ignorance, that they not offend those with whom they ought to live sociably, and other such things regarding those inclinations).
Reply Obj. 1. All the precepts of the natural law, insofar as they relate to one first precept, have the nature of one natural law.
Reply Obj. 2. All the inclinations of any part of human nature (e.g., the concupiscible and irascible powers), insofar as reason rules them, belong to the natural law and are traced to one first precept, as I have said. And so there are many precepts of the natural law as such, but they share a common foundation.
Reply Obj. 3. Reason, although as such one power, ordains everything that concerns human beings. And so the law of reason includes everything that reason can rule.
THIRD ARTICLE
Do All Virtuous Acts Belong to the
Natural Law?
We proceed thus to the third inquiry. It seems that not all virtuous acts belong to the natural law, for the following reasons:
Objection 1. It belongs to the nature of law that law be ordained for the common good, as I have said before. But some virtuous acts are ordained for the private good of an individual, as is particularly evident in the case of acts of the virtue of moderation. Therefore, not all virtuous acts are subject to the natural law.
Obj. 2. All sins are contrary to certain virtuous acts. Therefore, if all virtuous acts belong to the natural law, it seems that all sins are consequently contrary to nature. And yet we say this in a special way about some sins.
Obj. 3. Everybody agrees about things that are in accord with nature. But not everybody agrees about virtuous acts, for things that are virtuous for some are vicious for others. Therefore, not all virtuous acts belong to the natural law.
On the contrary, Damascene says in his work On Orthodox Faith that “virtues are natural.” Therefore, virtuous acts are subject to the natural law.
I answer that we can speak about virtuous acts in two ways: in one way as virtuous; in a second way as we consider such acts in their own species. Therefore, if we are speaking about virtuous acts as virtuous, then all virtuous acts belong to the natural law. For I have said that everything to which human beings are inclined by their nature belongs to the natural law. But everything is by its nature inclined to the activity that its form renders fitting. For example, fire is inclined to heat things. And so, since the rational soul is the specific form of human beings, everyone has an inclination from one’s nature to act in accord with reason. And this is to act virtuously. And so in this regard, all virtuous acts belong to the natural law, since one’s own reason by nature dictates that one act virtuously.
But if we should be speaking about virtuous acts as such and such, namely, as we consider them in their own species, then not all virtuous acts belong to the natural law. For we do many things virtuously to which nature does not at first incline us, but which human beings by the inquiry of reason have discovered to be useful for living righteously.
Reply Obj. 1. Moderation concerns the natural desires for food and drink and sex, which desires are indeed ordained for the natural common good, just as other prescriptions of the natural law are ordained for the common moral good.
Reply Obj. 2. We can call the nature proper to human beings the nature of human beings. And so all sins, insofar as they are contrary to reason, are also contrary to nature, as Damascene makes clear in his work On Orthodox Faith. Or else we can call the nature common to human beings and other animals the nature of human beings. And so we speak of certain particular sins being contrary to nature. For example, the sexual intercourse of males, which we specifically call the sin contrary to nature, is contrary to the sexual union of male and female, and such sexual union is natural for all animals.
Reply Obj. 3. The argument of this objection is valid regarding virtuous acts as such and such. For then, because of the different conditions of human beings, some acts may be virtuous for some persons, as proportionate and suitable for them, which are nonetheless wicked for other persons, as disproportionate for them.
FOURTH ARTICLE
Is the Natural Law the Same for All
Human Beings?
We thus proceed to the fourth inquiry. It seems that the natural law is not the same for all human beings, for the following reasons:
Objection 1. The Decretum says that “the natural law is contained in the [Old] Law and the Gospel.” But what is contained in the Law and the Gospel is not in the common possession of all, since Rom. 10:16 says: “Some do not heed the Gospel.” Therefore, the natural law is not the same for all human beings.
Obj. 2. “We call things in accord with law just,” as the Ethics says. But the same work says that nothing is so universally just that it is not otherwise for some. Therefore, even the natural law is not the same for all human beings.
Obj. 3. Things to which human beings’ nature inclines them belong to the natural law, as I have said before. But nature inclines different human beings to different things. For example, nature inclines some to desire pleasures, others to desire honors, others to desire other things. Therefore, the natural law is not the same for all human beings.
On the contrary, Isidore says in his Etymologies: “The natural law is common to all nations.”
I answer that things to which nature inclines human beings belong to the natural law, as I have said before, and one of the things proper to human beings is that their nature inclines them to act in accord with reason. And it belongs to reason to advance from the general to the particular, as the Physics makes clear. And regarding that process, theoretical reason proceeds in one way, and practical reason in another way. For inasmuch as theoretical reason is especially concerned about necessary things, which cannot be otherwise disposed, its particular conclusions, just like its general principles, are true without exception. But practical reason is concerned about contingent things, which include human actions. And so the more reason goes from the general to the particular, the more exceptions we find, although there is some necessity in the general principles. There fore, truth in theoretical matters, both first principles and conclusions, is the same for all human beings, although some know only the truth of the principles, which we call universal propositions, and not the truth of the conclusions. But truth in practical matters, or practical rectitude, is the same for all human beings only regarding the general principles, not regarding the particular conclusions. And not all of those with practical rectitude regarding particulars know the truth in equal measure.
Therefore, the truth or rectitude regarding the general principles of both theoretical and practical reason is the same for all persons and known in equal measure by all of them. And the truth regarding the particular conclusions of theoretical reason is the same for all persons, but some know such truth less than others. For example, it is true for all persons that triangles have three angles equal to two right angles, although not everybody knows this.
But the truth or rectitude regarding particular conclusions of practical reason is neither the same for all persons nor known in equal measure even by those for whom it is the same. For example, it is correct and true for all persons that they should act in accord with reason. And it follows as a particular conclusion from this principle that those holding goods in trust should return the goods to the goods’ owners. And this is indeed true for the most part, but it might in particular cases be injurious, and so contrary to reason, to return the goods (e.g., if the owner should be seeking to attack one’s country). And the more the particular conclusion goes into particulars, the more exceptions there are (e.g., if one should declare that entrusted goods should be returned to their owners with such and such safeguards or in such and such ways). For the more particular conditions are added to the particular conclusion, the more ways there may be exceptions, so that the conclusion about returning or not returning entrusted goods is erroneous.
Therefore, we should say that the natural law regarding general first principles is the same for all persons both as to their rectitude and as to knowledge of them. And the natural law regarding particulars, which are, as it were, conclusions from the general principles, is for the most part the same for all persons both as to its rectitude and as to knowledge of it. Nonetheless, it can be wanting in rather few cases both as to its rectitude and as to knowledge of it. As to rectitude, the natural law can be wanting because of particular obstacles, just as natures that come to be and pass away are wanting in rather few cases because of obstacles. And also as to knowledge of the natural law, the law can be wanting because emotions or evil habituation or evil natural disposition has perverted the reason of some. For example, the Germans of old did not consider robbery wicked, as Caesar’s Gallic Wars relates, although robbery is expressly contrary to the natural law.
Reply Obj. 1. We should not understand the cited statement to mean that all the matters included in the Law and the Gospel belong to the natural law, since the Law and the Gospel transmit to us many things above nature. Rather, we should understand the statement to mean that the Law and the Gospel completely transmit to us the things that belong to the natural law. And so Gratian, after saying that “the natural law is contained in the Law and the Gospel,” immediately adds by way of example: “And everyone is thereby commanded to do unto others what one wishes to be done to oneself.”
Reply Obj. 2. We should understand the cited statement of the Philosopher regarding things just by natureas conclusions derived from general principles, not as the general principles. And such conclusions are correct for the most part and are wanting in rather few cases.
Reply Obj. 3. As the power of reason in human beings rules and commands other powers, so reason needs to direct all the natural inclinations belonging to other powers. And so it is universally correct for all persons to direct all their inclinations by reason.
FIFTH ARTICLE
Can the Natural Law Vary?
We thus proceed to the fifth inquiry. It seems that the natural law can vary, for the following reasons:
Objection 1. A gloss on Sir. 17:9, “He [God] supplied them with instruction and the law of life,” says: “He wanted the [Old] Law to be written in order to correct the natural law.” But what is corrected is changed. Therefore, the natural law can vary.
Obj. 2. The killing of innocent human beings as well as adultery and theft are contrary to the natural law. But God altered these precepts. For example, God on one occasion commanded Abraham to slay his innocent son, as Gen. 22:2 relates. And God on another occasion commanded the Jews to steal vessels the Egyptians had lent them, as Ex. 12:35–36 relates. And God on another occasion commanded Hosea to take a fornicating wife, as Hos. 1:2 relates. Therefore, the natural law can vary.
Obj. 3. Isidore says in his Etymologies that “the common possession of all property and the same freedom for all persons belong to the natural law.” But we perceive that human laws have altered these prescriptions. Therefore, it seems that the natural law can vary.
On the contrary, the Decretum says: “The natural law originates with rational creatures. It does not vary over time and abides without change.”
I answer that we can understand the mutability of the natural law in two ways. We can understand it in one way by things being added to it. And then nothing prevents the natural law changing, since both divine law and human laws add to natural law many things beneficial to human life.
We can understand the mutability of the natural law in a second way by way of substraction, namely, that things previously subject to the law cease to be so. And then the natural law is altogether immutable as to its first principles. And as to its secondary precepts, which we said are proper proximate conclusions, as it were, from the first principles, the natural law is not so changed that what it prescribes is not for the most part completely correct. But it can be changed regarding particulars and in rather few cases, due to special causes that prevent observance of such precepts, as I have said before.
Reply Obj. 1. We say that written law has been given to correct the natural law either because the written law supplements what the natural law lacked, or because the natural law in the hearts of some regarding particulars had been corrupted insofar as they thought that things by nature evil were good. And such corruption needed correction.
Reply Obj. 2. All human beings, without exception, both the innocent and the guilty, die when natural death comes. And God’s power indeed inflicts such natural death on human beings because of original sin, as 1 Sam. 2:6 says: “The Lord causes death and life.” And so, at the command of God, death can without any injustice be inflicted on any human being, whether guilty or innocent.
Likewise, adultery is sexual intercourse with another man’s wife, whom the law handed down by God has allotted to him. And so there is no adultery or fornication in having intercourse with any woman at the command of God.
And the argument is the same regarding theft, which consists of taking another’s property. One does not take without the consent of the owner (i.e., steal) anything that one takes at the command of God, who is the owner of all property.
Nor is it only regarding human affairs that everything God commands is owed to him. Rather, regarding things of nature, everything God does is also in one respect natural, as I said in the First Part.
Reply Obj. 3. We speak of things belonging to the natural law in two ways. We speak of them belonging in one way because nature inclines us to them. For example, one should not cause injury to another. We speak of them belonging in a second way because nature did not introduce the contrary. For example, we could say that it belongs to the natural law that human beings are naked, since nature did not endow them with clothes, which human skill created. And it is in the latter way that we say that “the common possession of all property and the same freedom for all persons” belong to the natural law, namely, that the reason of human beings, not nature, introduced private property and compulsory servitude. And so the natural law in this respect varies only by way of addition.
SIXTH ARTICLE
Can the Natural Law Be Excised from the
Hearts of Human Beings?
We thus proceed to the sixth inquiry. It seems that the natural law can be excised from the hearts of human beings, for the following reasons:
Objection 1. A gloss on Rom. 2:14, “When the Gentiles, who do not have the law,” etc., says: “The law of righteousness, which sin had wiped out, is inscribed on the inner human being renewed by grace.” But the law of righteousness is the natural law. Therefore, the natural law can be wiped out.
Obj. 2. The law of grace is more efficacious than the law of nature. But sin destroys the law of grace. Therefore, much more can the natural law be wiped out.
Obj. 3. What law establishes is rendered just, as it were. But human beings have established many things contrary to the natural law. Therefore, the natural law can be excised from the hearts of human beings.
On the contrary, Augustine says in his Confessions: “Your law is inscribed on the hearts of human beings, and indeed no wickedness wipes it out.” But the law inscribed on the hearts of human beings is the natural law. Therefore, the natural law cannot be wiped out.
I answer that as I have said before, there belong to the natural law, indeed primarily, very general precepts, precepts that everyone knows, and more particular, secondary precepts, which are like proximate conclusions from first principles. Therefore, regarding the general principles, the natural law in general can in no way be excised from the hearts of human beings. But the natural law is wiped out regarding particular actions insofar as desires or other emotions prevent reason from applying the general principles to particular actions, as I have said before.
And the natural law can be excised from the hearts of human beings regarding the other, secondary precepts, either because of wicked opinions, just as errors in theoretical matters happen regarding necessary conclusions, or because of evil customs or corrupt habits. For example, some did not think robbery a sin, or even sins against nature to be sinful, as the Apostle also says in Rom. 1:24–28.
Reply Obj. 1. Sin wipes out the natural law regarding particulars but not in general, except perhaps regarding secondary precepts of the natural law, in the way I mentioned.
Reply Obj. 2. Although grace is more efficacious than nature, nature is nonetheless more essential to human beings and so more abiding.
Reply Obj. 3. The argument of this objection is valid regarding the secondary precepts of the natural law, contrary to which some law makers have passed wicked statutes.
On Human Law
FIRST ARTICLE
Was It Beneficial That Human Beings
Establish Laws?
We thus proceed to the first inquiry. It seems that it was not beneficial that human beings establish laws, for the following reasons:
Objection 1. The purpose of every law is to make human beings good, as I have said before. But admonitions induce human beings willingly to live rightly more than laws do coercively. Therefore, there was no need to establish laws.
Obj. 2. The Philosopher says in the Ethics: “Human beings have recourse to judges as justice-in-the-flesh.” But justice-in-the-flesh is better than the inanimate justice contained in laws. Therefore, it would have been better to commit the execution of justice to the decisions of judges than to establish laws to supplement their decisions.
Obj. 3. Every law directs human actions, as is evident from what I have said before. But since human acts regard particular things, which are potentially infinite, no one except wise persons, who regard particulars, can sufficiently contemplate the things that belong to the direction of human acts. Therefore, it would have been better that the decisions of wise persons direct human actions than that any established law should. Therefore, there was no need to establish human laws.
On the contrary, Isidore says in his Etymologies: “Laws were established so that fear of them curb human audacity, and that innocence be safe in the midst of the wicked, and that the fear of punishment restrain the ability of the wicked to inflict harm.” But the human race most needs such things. Therefore, it was necessary to establish human laws.
I answer that, as is evident from what I have said before, human beings by nature have a capacity for virtue, but they need to arrive at the very perfection of virtue by some training. Just so, we perceive that industriousness helps them regarding their necessities (e.g., food and clothing). And nature gives them the sources to provide these necessities, namely, reason and hands, not the full complement of the necessities that nature gives other animals, for whom nature has sufficiently provided covering and food.
But human beings are not readily self-sufficient in regard to this training, since the perfection of virtue consists chiefly of human beings’ restraint from excessive pleasures, toward which they are most prone. And this is especially true of youths, for whom training is more efficacious. And so human beings receive such training, whereby they arrive at virtue, from others. And indeed regarding youths prone to virtuous acts by good natural disposition or habituation (or, rather, a gift from God), paternal training, which consists of admonitions, suffices.
But some persons are wicked and prone to vices, and cannot be easily persuaded by words. Therefore, force and fear were needed to restrain them from evil. Consequently, at least desisting from evil deeds, they would both leave others in peace and be themselves at length brought by such habituation to do voluntarily what they hitherto did out of fear, and so become virtuous. But such training, which compels by fear of punishment, is the training administered by laws. And so it was necessary to establish laws in order that human beings live in peace and have virtue. For, as the Philosopher says in the Politics: “As human beings, if perfect in virtue, are the best of animals, so are they, if cut off from law and justice, the worst of all animals.” This is because human beings, unlike other animals, have the tools of reason to satisfy their disordered desires and beastly rages.
Reply Obj. 1. Voluntary admonitions induce well disposed human beings to virtue better than compulsion does, but there are some who are not induced to virtue unless they be compelled.
Reply Obj. 2. The Philosopher says in the Rhetoric: “It is better that law direct all things than that they be left to the decisions of judges.” And this is so for three reasons. First, indeed, it is easier to find the few wise persons sufficient to establish right laws than the many wise persons necessary to judge rightly about particular matters. Second, lawmakers consider over a long time what to impose by law, but judges reach decisions about particular deeds as cases spontaneously arise. And human beings can more easily perceive what is right by considering many inst ances than they can by considering only one deed. Third, lawmakers decide in general and about future events, but presiding judges decide current cases, and love or hatred or covetousness affects such decisions. And so their decisions are perverted.
Therefore, since few embody the justice required of a judge, and since that justice can be perverted, it was necessary that law determine, whenever possible, what judges should decide, and commit very few matters to the decisions of human beings.
Reply Obj. 3. “We need to commit to judges” certain particular details, which laws cannot encompass, as the Philosopher also says in the Rhetoric, such as, “whether alleged deeds have or have not been done,” and the like.
SECOND ARTICLE
Is Every Human Law Derived from the
Natural Law?
We thus proceed to the second inquiry. It seems that not every human law is derived from the natural law, for the following reasons:
Objection 1. The Philosopher says in the Ethics that “it does not at all matter originally whether one effects legal justice in this or that way.” But regarding obligations to which the natural law gives rise, it does matter whether one effects justice in this or that way. Therefore, not all the things established by human laws are derived from the natural law.
Obj. 2. Positive law differs from natural law, as Isidore makes clear in his Etymologies and the Philosopher makes clear in the Ethics. But things derived as conclusions from the general principles of the natural law belong to the natural law, as I have said before. Therefore, things proper to human law are not derived from the natural law.
Obj. 3. The natural law is the same for all persons. For the Philosopher says in the Ethics that “natural justice has the same force everywhere.” Therefore, if human laws were to be derived from the natural law, human laws would likewise be the same for all persons. But such a conclusion is evidently false.
Obj. 4. We can assign reasons for things derived from the natural law. But “one cannot assign reasons for all the statutes rulers have decreed,” as the Jurist says. Therefore, some human laws are not derived from the natural law.
On the contrary, Cicero says in his Rhetoric: “Fear and reverence for the laws have prescribed things derived from nature and approved by custom.”
I answer that Augustine says in his work On Free Choice: “Unjust laws do not seem to be laws.” And so laws have binding force insofar as they have justice. And we say regarding human affairs that things are just because they are right according to the rule of reason. But the primary rule of reason is the natural law, as is evident from what I have said before. And so every human law has as much of the nature of law as it is derived from the natural law. And a human law diverging in any way from the natural law will be a perversion of law and no longer a law.
But we should note that we can derive things from the natural law in two ways: in one way as conclusions from its first principles; in a second way as specifications of certain general principles. Indeed, the first way is like the way in which we draw conclusions from first principles in theoretical sciences. And the second way is like the way that craftsmen in the course of exercising their skill adapt general forms to specific things. For example, a builder needs to adapt the general form of a house to this or that shape of a house. Therefore, some things are derived from general principles of the natural law as conclusions. For example, one can derive the prohibition against homicide from the general principle that one should do no evil to anyone. And some things are derived from general principles of the natural law as specifications. For example, the natural law ordains that criminals should be punished, but that criminals be punished in this or that way is a specification of the natural law.
Therefore, human laws are derived from the natural law in both ways. Things derived from the natural law in the first way are not only contained in human laws as established by those laws, but they also have part of their binding force from the natural law. But things derived from the natural law in the second way have all of their binding force from human law.
Reply Obj. 1. The Philosopher is speaking about the things laws decreed by determining or specifying one of the precepts of the natural law.
Reply Obj. 2. The argument of this objection is valid regarding things derived from the natural law as conclusions.
Reply Obj. 3. The general principles of the natural law cannot be applied to all peoples in the same way because of the great variety of human affairs. And so there are different positive laws for different peoples.
Reply Obj. 4. We should understand the Jurist’s statement to regard things decreed by rulers about particular specifications of the natural law. And the judgments of experienced and prudent persons are indeed related to such specifications as certain principles underlying their judgments, namely, inasmuch as they immediately perceive what is the most fitting particular specification. And so the Philosopher says in the Ethics that “we should” in such matters “attend to the intuitive statements and opinions of the experienced and the mature or prudent no less than to their arguments.”
THIRD ARTICLE
Does Isidore Appropriately Describe the
Characteristics of Positive Law?
We thus proceed to the third inquiry. Isidore says: “Laws should be virtuous, just, possible by nature, in accord with a country’s customs, suitable to time and place, necessary, useful, so clear that they contain nothing obscure to cause deception, and decreed for the common benefit of all citizens, not the private benefit of some.” It seems that he in this way inappropriately describes the characteristics of positive law, for the following reasons:
Objection 1. Isidore previously had explained the characteristics of law in terms of three conditions: “Laws should be everything constituted by reason if befitting religion, suitable for training, and useful for the commonweal.” Therefore, he later unnecessarily added further conditions of law.
Obj. 2. Justice is a virtue, as Cicero says in his work On Duties. Therefore, Isidore needlessly adds “just” after he mentioned “virtuous.”
Obj. 3. Isidore contrad istinguished written laws from customs. Therefore, he ought not to have posited in the definition of law that laws be “in accord with a country’s customs.”
Obj. 4. We call things necessary in two ways. Things that cannot be otherwise, are absolutely necessary, and such necessary things are not subject to human judgment. And so such necessity does not belong to human law. Other things are necessary for ends, and such necessity is the same as usefulness. Therefore, Isidore needlessly posits both “necessary” and “useful” as characteristics of law.
On the contrary, there stands the authority of Isidore himself.
I answer that we need to determine the form of any means in relation to the end desired. For example, the form of a saw is such as to be suitable for cutting wood, as the Physics makes clear. Likewise, everything ruled and measured needs to have a form apportioned to its rule or measure. And human law has both, since it is both something ordained for an end and a rule or measure ruled or measured by a higher measure. And the higher measure is indeed of two kinds, namely, the divine law and the natural law, as is evident from what I have said before. But the end of human law is the benefit of human beings, as the Jurist also says. And so indeed Isidore first posited three things as conditions of human law, namely, that human law benefit religion (i.e., as human law is properly related to the divine law), that human law be suitable for training (i.e., as human law is properly related to the natural law), that human human law be useful for the commonweal (i.e., as human law is properly related to human usefulness).
And all the other conditions that he later mentions are traceable to these three things. For what he calls virtuous is a reference to what befits religion. And by adding that human laws be “just, possible by nature, in accord with a country’s customs, suit able to the place and time,” he indicates that the laws should be suitable for training. For we indeed first consider human training in relation to the ordination of reason, which ordination is implied in what he calls just. Second, we consider human training in relation to the capacity of human agents. For training ought to be suitable to each according to the capacity of each, including natural capacity. (For example, one should not impose the same training on children that one imposes on adults.) And training ought to be suitable according to human customs, since human beings do not live in society by themselves, not manifesting their behavior to others. Third, in relation to requisite circumstances, he says: “suitable to the place and time.” And the additional words, “necessary,” “useful,” and so forth, refer to what facilitates the commonweal. For example, necessity refers to removing evils, usefulness to acquiring benefits, and clarification to preventing harm that could arise from the laws themselves.
And he indicates that human laws are ordained for the common good, as I have previously affirmed, in the last part of the definition.
Reply Objs. 1–4. The answer makes clear the replies to the objections.
FOURTH ARTICLE
Does Isidore Appropriately Designate
Kinds of Human Law?
We thus proceed to the fourth inquiry. It seems that Isidore does not appropriately designate kinds of human law, for the following reasons:
Objection 1. Isidore includes in human law “the common law of peoples,” which he so names, as he says, because “almost every people possesses it.” But “natural law is common to all peoples,” as he himself says. Therefore, the common law of peoples is contained in the natural law rather than positive human law.
Obj. 2. Things that have the same binding force seem to differ only materially, not formally. But “statutes, plebiscites, decrees of the senate,” and the other like things Isidore describes all have the same binding force. Therefore, they seem to differ only materially. But artisans should pay no attention to such differences, since there can be an endless number of them. Therefore, Isidore inappropriately introduces such divisions.
Obj. 3. As there are rulers and priests and soldiers in political communities, so human beings also have other public duties. Therefore, as Isidore posits “military law” and “public law” (which govern priests and magistrates), so he should also posit other laws pertaining to other public duties.
Obj. 4. We should ignore accidental things. But it is accidental to laws whether they are framed by this or that human being. Therefore, Isidore inappropriately posits a division of laws by the names of their framers, namely, that one is called the Cornelian law, another the Falcidian law, and so forth.
On the contrary, the authority of Isidore suffices.
I answer that we can intrinsically distinguish each thing by what belongs to its nature. For example, the nature of animals includes a soul that is rational or nonrational. And so we properly and intrinsically distinguish animals by whether they are rational or irrational, and not by whether they are black or white, which are characteristics altogether outside the nature of animals.
And many characteristics belong to the nature of human laws, and we can properly and intrinsically distinguish human laws by any of those things. For example, it first of all belongs to the nature of human laws that they be derived from the natural law, as is evident from what I have said before. And we in this respect divide positive laws into the common law of peoples and the laws of particular commonwealths by the two ways in which things may be derived from the natural law, as I have said before. For precepts derived from the natural law as conclusions from its general principles belong to the common law of peoples (e.g., just buying and selling, and the like, without which human beings cannot live sociably with one another). And living sociably with others belongs to the natural law, since human beings are by nature social animals, as the Politics proves. But precepts derived from the natural law by way of particular specifications belong to the laws of particular commonwealths, whereby each commonwealth specifies things suitable for itself.
Second, it belongs to the nature of human laws that they be ordained for the common good of a political community. And we can in this respect distinguish human laws by the different kinds of persons who perform particular tasks for the common good (e.g., priests, who pray to God for the people; rulers, who govern the people; soldiers, who fight for the safety of the people). And so special laws are adapted for such persons.
Third, it belongs to the nature of human laws that they be established by those who govern the political community, as I have said before. And we in this respect distinguish human laws by the different forms of governing political communities. And as the Philosopher says in the Politics, one of these forms is monarchy (i.e., rule by one person). And we understand the laws of monarchical regimes as royal decrees. And aristocracy (i.e., rule by the best persons or aristocrats) is another form of government. And we understand the laws of aristocratic regimes as the authoritative legal opinions of the wise, and also as the decrees of the senate. And oligarchy (i.e., rule by a few rich and powerful persons) is another form of government. And we understand the laws of oligarchical regimes as magisterial law, also called law by dignitaries. And another form of government is by the people, which form we call democracy. And we understand the laws of democratic regimes as laws by the people. (Tyranny is another form of government, an altogether corrupt form, and so we do not understand the laws of tyrannical regimes as any law.) There is also a form of government that is a mixture of the good forms, and this mixed form of government is the best. And we understand the laws of such regimes as law “prescribed by elders and the people,” as Isidore says.
Fourth, it belongs to the nature of human laws that they direct human actions. And we in this respect distinguish laws, which we sometimes designate by their authors, by the laws’ different subject matter. For example, we distinguish the Julian Law on adultery, the Cornelian Law on assassination, and the like, because of their subject matter, not because of their authors.
Reply Obj. 1. The common law of peoples is indeed natural for human beings in one respect, insofar as it is rational, since it is derived from the natural law as conclusions not very remote from general principles of the natural law. And so human beings easily agree about such matters. But we distinguish the common law of peoples from the natural law, especially from what is common to all animals.
Reply Objs. 2–4. The replies to these objections is evident from what I have said.
On the Power of Human Laws
FIRST ARTICLE
Should Human Laws Be Framed in
Particular Rather Than General Terms?
We thus proceed to the first inquiry. It seems that human laws should be framed in particular rather than general terms, for the following reasons:
Objection 1. The Philosopher says in the Ethics that “things of the legal order consist of everything laws decree about individual matters, and likewise of judicial decisions,” which also concern particular matters, since judges hand down decisions on particular cases. Therefore, laws are framed both in general and in particular terms.
Obj. 2. Laws direct human actions, as I have said before. But human actions consist of particular things. Therefore, laws should be framed in particular rather than general terms.
Obj. 3. Laws are the rules and measures of human actions, as I have said before. But measures should be most certain, as the Metaphysics says. Therefore, since nothing about human actions can be so universally certain as not to be wanting in particular cases, it seems that laws need to be framed in particular rather than general terms.
On the contrary, the Jurist says: “Laws need to be framed to suit things that more frequently happen, and laws are not framed to suit things that can happen once in a while.”
I answer that everything for an end needs to be proportioned to the end. But the end of law is the common good, since “laws should be framed for the common benefit of citizens, not for any private benefit,” as Isidore says in his Etymologies. And so human laws need to be proportioned to the common good. But the common good consists of many things. And so laws need to regard many things, both persons, matters, and times. For the political community consists of many persons, and its good is procured by many actions. Nor is it instituted to endure only for a short time but to last for all time through successive generations of citizens, as Augustine says in The City of God.
Reply Obj. 1. The Philosopher in the Ethics posits three parts of legal justice (i.e., positive law). For there are certain prescriptions framed only in general terms, and these are general laws. And regarding such laws, he says that “legal justice indeed does not originally differentiate in particulars but does once established.” For example, captives are ransomed at a fixed price. And there are some laws that are general in one respect and particular in another. And we call such laws privileges, that is, private laws, since they regard particular persons, and yet the power of these laws extends to many matters. And it is regarding these that the Philosopher adds: “And, further, everything laws decree in particular cases.”
And we call some things legal because general laws are applied to particular cases, not because the applications are laws. For example, judges hand down decisions that we consider legally binding. And it is regarding such that the Philosopher adds: “And judicial decisions.”
Reply Obj. 2. Something directive needs to direct several things, and so the Philosopher says in the Metaphysics that all the things belonging to a genus are measured by the one of them that primarily belongs to the genus. For if there were to be as many rules or measures as things measured or ruled, a rule or measure, which is that one thing enable many things to be known, would cease to be of any use. And so a law would have no usefulness if it were to cover only a single action. For wise persons give individual commands to direct individual actions, but law is a general command, as I have said.
Reply Obj. 3. “One should not look for the same certainty in all kinds of things,” as the Ethics says. And so in the case of contingent things like natural events and human affairs, there is sufficient certainty if things are true for the most part, even though they sometimes fail to happen in relatively few cases.
SECOND ARTICLE
Does It Belong to Human Laws to
Prohibit All Vices?
We thus proceed to the second inquiry. It seems that it belongs to human laws to prohibit all vices, for the following reasons:
Objection 1. Isidore says in his Etymologies that “laws have been established in order to curb human audacity out of fear of them.” But human audacity would not be sufficiently curbed unless laws were to prohibit everything evil. Therefore, human laws ought to prohibit everything evil.
Obj. 2. The aim of lawmakers is to make citizens virtuous. But citizens can be virtuous only if they are curbed of all vices. Therefore, it belongs to human law to curb all vices.
Obj. 3. Human law is derived from natural law, as I have said before. But all sins are contrary to the natural law. Therefore, human law ought to prohibit all vices.
On the contrary, Augustine says in his work On Free Choice: “It seems to me that laws written for the people’s governance rightly permit such things, and that God’s providence punishes them.” But God’s providence only punishes sins. Therefore, human laws, by not prohibiting some sins, rightly permit them.
I answer that laws are established as the rules or measures of human actions, as I have already said. But measures should be homogeneous with what they measure, as the Metaphysics says, since different kinds of things are measured by different kinds of measures. And so laws need also to be imposed on human beings according to their condition, since laws ought to be “possible regarding both nature and a country’s customs,” as Isidore says. And the power or ability to act results from internal habituation or disposition, since the virtuous and those without virtuous habits do not have the same power to act. Just so, children and adults do not have the same power to act, and so the law is not the same for children and adults. For example, many things are permitted children that the law punishes in adults, or even that public opinion censures. And likewise, many things are tolerated in persons of imperfect virtue that would not be tolerated in virtuous persons. And human law is established for the collectivity of human beings, most of whom have imperfect virtue. And so human law does not prohibit every kind of vice, from which the virtuous abstain. Rather, human law prohibits only the more serious kinds of vice, from which most persons can abstain, and especially those vices that inflict harm on others, without the prohibition of which human society could not be preserved. For example, human laws prohibit murders, thefts, and the like.
Reply Obj. 1. Audacity seems to belong to attacks on others. And so audacity belongs chiefly to the sins that inflict injury on neighbors, and human law prohibits such sins, as I have said.
Reply Obj. 2. Human laws aim to induce human beings to virtue little by little, not all at once. And so the laws do not immediately impose on the many imperfect citizens what already belongs to virtuous citizens, namely, that citizens abstain from everything evil. Otherwise, the imperfect citizens, unable to endure those commands, would erupt into worse evil things. Just so, Prov. 30:33 says: “Those who blow their nose too strongly, emit blood.” And Mt. 9:17 says: “If one should put new wine,” that is, the precepts of a perfect life, “into old wineskins,” that is, imperfect human beings, “the wineskins burst, and the wine is spilled,” that is, the precepts are despised, and human beings burst into worse evil things out of contempt.
Reply Obj. 3. The natural law is our participation in the eternal law, but human law falls short of the eternal law. For Augustine says in his work On Free Choice: “The laws framed for the governance of political communities permit and leave unpunished many things that God’s providence punishes. Nor, indeed, should we criticize what the laws do do because of the fact that they do not do everything.” And so also human laws cannot prohibit everything that the natural law prohibits.
THIRD ARTICLE
Do Human Laws Command Every
Virtuous Action?
We thus proceed to the third inquiry. It seems that human laws do not command every virtuous action, for the following reasons:
Objection 1. Vicious actions are the contrary of virtuous actions. But human laws do not prohibit all vices, as I have said. Therefore, human laws also do not command every virtuous action.
Obj. 2. Virtuous actions come from virtue. But virtue is the aim of laws, and so what comes from virtue cannot fall within legal precepts. Therefore, human laws do not command every virtuous action.
Obj. 3. Laws are ordained for the common good, as I have said. But some virtuous actions are ordained for private, not the common, good. Therefore, laws do not command every virtuous action.
On the contrary, the Philosopher says in the Ethics: “Laws command courageous and temperate and gentle behavior, and likewise regarding other virtues and vices, commanding the former and forbidding the latter.”
I answer that we distinguish specific virtues by their objects, as is evident from what I have said before. But we can relate all the objects of virtues either to the private good of a person or to the common good of the people. For example, one can perform courageous acts either to preserve the political community or to uphold the rights of one’s friends, and similarly with other virtuous acts. And laws are ordained for the common good, as I have said. And so there are no virtues regarding whose actions laws could not command. But laws do not command regarding every action of every virtue. Rather, they only command things that can be ordained for the common good, whether immediately, as when things are done directly for that good, or mediately, as when lawmakers ordain things belonging to good training, which trains citizens to preserve the common good of justice and peace.
Reply Obj. 1. Human laws do not by strict command prohibit every vicious action, just as they do not command every virtuous action. But human laws prohibit some acts of particular vices, just as they command some acts of particular virtues.
Reply Obj. 2. We call actions virtuous in two ways. We call them virtuous in one way because persons perform virtuous deeds. For example, just actions consist of doing just things, brave actions consist of doing brave things. And human laws command virtuous acts in this way. We call actions virtuous in a second way because persons perform virtuous deeds as virtuous persons do. And the actions of virtuous persons always come from virtue and do not fall within legal precepts, although law makers aim to induce such behavior.
Reply Obj. 3. There are no virtues whose actions cannot be ordained for the common good, either directly or indirectly, as I have said.
FOURTH ARTICLE
Does Human Law Impose Obligation
on Human Beings in the Court
of Conscience?
We thus proceed to the fourth inquiry. It seems that human law does not impose obligation on human beings in the court of conscience, for the following reasons:
Objection 1. Lower powers cannot impose laws on the courts of higher powers. But the power of human beings, which establishes human laws, is inferior to God’s power. Therefore, human law cannot impose laws on the court of God, that is, the court of conscience.
Obj. 2. The judgment of conscience depends most of all on God’s commandments. But human laws sometimes nullify God’s commandments, as Mt. 15:6 says: “You have nullified God’s commandment for the sake of your traditions.” Therefore, human laws do not impose obligation regarding conscience.
Obj. 3. Human laws often bring defamation and injury to human beings. Just so, Is. 10:1–2 says: “Woe to those who establish wicked laws and inscribe injustices when they write laws, in order to oppress the poor in the courts and do violence in cases involving the lowly of my people.” But all are permitted to avoid oppression and violence. Therefore, human laws do not impose obligation on human beings regarding conscience.
On the contrary, 1 Pet. 2:19 says: “It is a blessing if one, suffering unjustly, endures sorrows for the sake of conscience.”
I answer that laws established by human beings are either just or unjust. If just, they indeed have obligatory force in the court of conscience from the eternal law, from which they are derived. Just so, Prov. 8:15 says: “Kings rule through me, and lawmakers decree justice.” And we call laws just from three perspectives: (1) from their end, namely, when they are ordained for the common good; (2) from their authority, namely, when the laws enacted do not surpass the power of the lawmakers; (3) from their form, namely, when they impose proportionately equal burdens on citizens for the common good.
And laws are unjust in two ways. They are unjust in one way by being contrary to the human good in the foregoing respects. Laws may be unjust regarding their end, as when authorities impose burdensome laws on citizens to satisfy the authorities’ covetousness or vainglory rather than to benefit the community. Or laws may be unjust regarding the authority to make them, as when persons enact laws that exceed the power committed to them. Or laws may be unjust regarding their form, as when burdens, even if ordained for the common good, are disproportionately imposed on the people. And such laws are acts of violence rather than laws, since “unjust laws do not seem to be laws,” as Augustine says in his work On Free Choice. And so such laws do not oblige in the court of conscience, except perhaps to avoid scandal or civil unrest, to avoid which human beings ought to yield even their rights. Just so, Mt. 5:40–41 says: “If someone has taken your coat from you, give the person your cloak as well, and if someone has forced you to go one mile, go with the person another two.”
Laws can be unjust in a second way by being contrary to the divine good (e.g., the laws of tyrants inducing their subjects to worship idols or to do anything else contrary to the divine law). And it is never permissible to obey such laws, since “we ought to obey God rather than human beings,” as Acts 5:29 says.
Reply Obj. 1. The Apostle says in Rom. 13:1–2: “All human power is from God, and so those who resist the power” in matters belonging to its scope “resist God’s ordination.” And so such persons become guilty in respect to their conscience.
Reply Obj. 2. The argument of this objection is valid about human laws ordained contrary to God’s commandments. And the scope of human power does not extend to such laws. And so one should not obey human laws in such matters.
Reply Obj. 3. The argument of this objection is valid about laws that inflict unjust burdens on citizens, and also the scope of power granted by God does not extend to such laws. And so human beings are not obliged in such cases to obey the laws if it be possible to resist them without giving scandal or causing greater harm.
FIFTH ARTICLE
Is Everyone Subject to the Law?
We thus proceed to the fifth inquiry. It seems that not everyone is subject to the law, for the following reasons:
Objection 1. Only those for whom laws are established are subject to the law. But the Apostle says in 1 Tim. 1:9 that “laws are not established for the righteous.” Therefore, the righteous are not subject to human law.
Obj. 2. Pope Urban says, and the Decretum maintains: “No reason demands that those guided by private law be constrained by public law.” But all spiritual persons, who are sons and daughters of God, are guided by the private law of the Holy Spirit. Just so, Rom. 8:14 says: “Those moved by the Spirit of God are God’s children.” Therefore, not every person is subject to human law.
Obj. 3. The Jurist says that “rulers are exempt from the laws.” But those exempt from the law are not subject to it. Therefore, not everyone is subject to the law.
On the contrary, the Apostle says in Rom. 13:1: “Let every soul be subject to higher powers.” But any persons not subject to the law that higher powers establish seem not to be subject to the powers. Therefore, all persons should be subject to human law.
I answer that, as is evident from what I have said before, two things belong to the nature of law: first, indeed, that law be the rule of human actions; second, that law have coercive power. Therefore, human beings can be subject to the law in two ways. They can be subject to law in one way as the ones regulated by the rule. And in this regard, all those subject to a power are subject to the laws the power establishes. But one may not be subject to a power in two ways.
One may not be subject to a power in one way because one is absolutely free from subjection to the power. And so those belonging to one political community or kingdom are not subject to the laws of the ruler of another political community or kingdom, since such persons are not subject to that ruler’s dominion. One may not be subject to a power in a second way insofar as one is ruled by a higher law. For example, a person subject to a proconsul ought to be ruled by the proconsul’s commands but not regarding matters from which the emperor exempted the person. For regarding the latter, a person directed by a higher command is not bound by the command of an inferior power. And so those absolutely subject to the law may not be bound by the law regarding matters about which they are ruled by a higher law.
We say in a second way that some are subject to the law as the coerced to the power coercing. And in this respect, only the wicked, not the virtuous and righteous, are subject to the law. For what is coerced and forced is contrary to the will. But the will of the virtuous is in accord, and the will of the wicked in discord, with the law. And so only the wicked, not the virtuous, are subject to the law in this respect.
Reply Obj. 1. The argument of this objection is valid about being subject to the law by way of coercion. For then “the law is not established for the righteous,” since “they are a law unto themselves” because “they manifest what the law requires written in their hearts,” as the Apostle says in Rom. 2:14–15. And so the law does not have the coercive force in their regard that the law has regarding the wicked.
Reply Obj. 2. The law of the Holy Spirit is superior to every human law. And so spiritual persons, insofar as they are guided by the law of the Holy Spirit, are not subject to human law regarding things contrary to the Holy Spirit’s guidance. But it belongs to the Holy Spirit’s guidance that spiritual persons be subject to human laws, as 1 Pet. 2:13 says: “Be subject to every human creature for God’s sake.”
Reply Obj. 3. We say that rulers are exempt from the law regarding its coercive force, since, properly speaking, one is not coerced by oneself, and law has coercive force only by the power of a ruler. Therefore, we say that rulers are exempt from the law because no one can pass sentence on them if they act contrary to the law. And so a gloss on Ps. 51:4, “I have sinned against you alone,” etc., says that “there is no one who is competent to judge the deeds of a king.”
But regarding the directive power of law, rulers are subject to the law by their own will. Just so, the Decretals say: “Rulers should follow the law that they decree for others. And the authority of a wise man says: ‘Obey the law you yourself decreed.’” Also, the Lord reproves “those who preach and do not practice” and “those who impose heavy burdens on others but do not themselves want to lift a finger to move them,” as Mt. 23:3–4 relates. And so, regarding God’s judgment, rulers are not exempt from the law regarding its directive power, and they should willingly, not by coercion, fulfill the law.
Also, rulers are above the law insofar as they can, if it be expedient, alter the law and dispense from it at certain times and places.
SIXTH ARTICLE
Are Those Subject to the Law Permitted to
Act Contrary to the Letter of the Law?
We thus proceed to the sixth inquiry. It seems that those subject to the law are not permitted to act contrary to the letter of the law, for the following reasons:
Objection 1. Augustine says in his work On True Religion: “Although human beings judge about temporal laws when they decree them, the subjects will not be permitted to judge about them after they have been decreed and established. Rather, subjects should judge according to the laws.” But if one disregards the letter of the law, claiming that one preserves the lawmaker’s aim, such a one seems to judge about the law. Therefore, those subject to the law are not permitted to disregard the letter of the law in order to preserve the lawmaker’s aim.
Obj. 2. Only those who frame laws are competent to interpret them. But human beings subject to the law are not competent to frame them. Therefore, such human beings are not competent to interpret them. Rather, such human beings ought always to act according to the letter of the law.
Obj. 3. Every wise person knows how to explain the person’s aim in words. But we ought to esteem wise those who frame laws, since wisdom says in Prov. 8:15: “Kings rule through me, and the framers of laws decree justice.” Therefore, we should judge about the lawmaker’s aim only by the words of the law.
On the contrary, Hilary says in his work On the Trinity: “We should understand the meaning of statements from the reasons for making them, since speech ought to be governed by things, not things by speech”. Therefore, we ought to pay more attention to the lawmaker’s aim than to the very words of the law.
I answer that, as I have said before, every law is ordained for the commonweal and has the force and nature of law insofar as it is so ordained. But a law has no power to bind morally insofar as it falls short of this ordination. And so the Jurist says: “No aspect of law or favor of equity allows us to render severe by a harsher interpretation contrary to the benefit of human beings things wholesomely introduced for their benefit.” And it often happens that observing the law is generally beneficial to the commonweal but most harmful to it in particular cases. Therefore, since lawmakers cannot envision all particular cases, they direct their aim at the common benefit and establish laws regarding things that generally happen. And so one should not observe a law if a case happens to arise in which observance of the law would be harmful to the commonweal. For example, if a law should decree that the gates of a besieged city remain shut, this is for the most part for the benefit of the commonweal. But if a situation should arise in which enemy soldiers are pursuing some citizens defending the city, it would be most harmful to the community if the gates were not to be opened to admit the defenders. And so, contrary to the letter of the law, the city gates should be opened in such a situation in order to preserve the commonweal, which is the lawmaker’s intention.
And yet we should note that not everyone is competent to interpret what may be useful or not useful for the community if observance of the letter of the law does not risk a sudden danger that needs to be immediately resolved. Rather, only rulers are competent to make such interpretations, and they have authority in such cases to dispense citizens from laws. On the other hand, if there be a sudden danger that does not allow enough time to be able to have recourse to a superior, the very necessity includes an implicit dispensation, since necessity is not subject to the law.
Reply Obj. 1. Those who in cases of necessity act contrary to the letter of the law do not judge about the law itself. Rather, they judge about particular cases, in which they perceive that they should not observe the letter of the law.
Reply Obj. 2. Those who follow the law maker’s aim do not, absolutely speaking, interpret the law. Rather, they interpret the law regarding particular cases in which evidence of harm makes it clear that the lawmaker intended otherwise than the letter of the law. For if they have any doubt, they ought to act according to the letter of the law or consult superiors.
Reply Obj. 3. No human being’s wisdom is so great as to be able to contemplate every single case. And so one cannot adequately express in words the things suitable for an intended end. And if a lawmaker could contemplate all cases, the lawmaker, to avoid confusing citizens, need not express all of them. Rather, the lawmaker should establish laws regarding what generally happens.
WAR AND KILLING
On War
[This question is divided into four articles, one of which is translated here.]
FIRST ARTICLE
Is It Always Sinful to Wage War?
We thus proceed to the first inquiry. It seems that it is always sinful to wage war, for the following reasons:
Objection 1. Punishment is inflicted only for sin. But the Lord declares that those who wage war will be punished, as Mt. 26:52 says: “Those who take to the sword will perish by the sword.” Therefore, all wars are unlawful.
Obj. 2. Everything contrary to a divine precept is a sin. But waging war is contrary to a divine precept, divine precept, since Mt. 5:39 says: “I tell you not to resist evil,” and Rom. 12:19 says: “Do not defend yourselves, dearly beloved, but leave it to [God’s] wrath.” Therefore, it is always sinful to wage war.
Obj. 3. Only sin is contrary to a virtuous act. But war is contrary to peace. Therefore, war is always a sin.
Obj. 4. Every exercise regarding something lawful is lawful, as is evidently the case with scientific exercises. But the church prohibits the warlike exercises in tournaments, since the church denies those who die in such contests Christian burial. Therefore, war seems to be absolutely sinful.
On the contrary, Augustine says in a sermon on the centurion’s servant: “If Christian teaching were altogether to condemn war, the soldiers in the Gospel who sought salutary advice [Lk. 3:14] would be told to cast aside their arms and abandon military service altogether. But Christ told them: ‘Do violence to no one, and be content with your pay.’ And if Christ commanded them to be satisfied with their pay, he did not forbid military service.”
I answer that three things are required for a war to be just. The first requirement is indeed that the ruler at whose command the war is to be waged have the lawful authority to do so. For it belongs to no private citizen to initiate war, since private persons can pursue vindication of their rights through the decisions of their superiors. Likewise, it belongs to no private citizen to initiate war because no private citizen can call on the people to wage war, which has to be done in wars. Rather, since the care of the common weal has been entrusted to rulers, it belongs to them to protect the common weal of the city or kingdom or province subject to them. And they lawfully use physical weapons to defend the common weal against domestic rebels when they punish malefactors, as the Apostle says in Rom. 13:4: “He [the ruler] does not carry a sword without cause, since he is Gods’ servant, an avenger to execute wrath on the evildoer.” Just so, it also belongs to rulers to use weapons of war to protect the common weal against foreign enemies. And Ps. 82:4 tells rulers: “Rescue the poor and free the needy from the hands of sinners.” And so Augustine says in his work Against Faustus: “The natural order conducive to peace among mortals requires that the legitimate authority to undertake war, and deliberation regarding war, be in the hands of rulers.”
Second, there needs to be a just cause to wage war, namely, that the enemy deserves to have war waged against it because of some wrong the enemy has inflicted. And so Augustine says in his Questions on the Heptateuch: “We usually define just wars as those that avenge wrongs, when peoples or political communities need to be punished either because they have failed to rectify wrongs committed by their subjects, or because they have failed to restore property unjustly seized.”
Third, those waging war need to have a right intention, namely, an intention to promote good or avoid evil. And so Augustine says: “For true worshipers of God, wars waged with zeal for peace and not out of desire for gain or out of cruelty, to restrain the wicked and assist the good, are also conducive of peace.” But even if legitimate authority declares war, and the cause is just, wars may be unlawful because they are waged with a wicked intention. For Augustine says in his work Against Faustus: “Desire to harm, vengeful cruelty, unsatiated and implacable animus, savagery in renewing combat, lust for dominance, and the like are justly condemned in the matter of waging war.”
Reply Obj. 1. Augustine says in his work Against Faustus: “They take to the sword who take up arms against the life of another without any superior or legitimate authority either commanding or allowing it.” But they who use the sword by the authority of a ruler or judge, if they be private citizens, or out of zeal for justice, by the authority of God, as it were, if they be public officials, do not themselves “take to” the sword. Rather, they “use” the sword committed to them by another. And so they do not deserve punishment.
Still, even those who use the sword sinfully are not always slain by the sword, although they always perish by their own sword, since they are eternally punished for their sinful use of the sword unless they repent.
Reply Obj. 2. As Augustine says in his work On the Lord’s Sermon on the Mount, human beings should always observe such precepts in readiness of spirit, namely, that they be ready, if necessary, not to resist and not to defend themselves. But sometimes one should act otherwise for the sake of the common good, and also for the good of those against whom one is fighting. And so Augustine says in a letter to Marcellinus: “We need to do many things against those whom we punish with a kindly severity against their will. For they are beneficially vanquished who are snatched from the licentiousness of sin, since nothing is more miserable than the happiness of sinners, which feeds a punishable licentiousness and, like an internal enemy, strengthens an evil will.”
Reply Obj. 3. Even those who wage just war strive for peace. And so they are only contrary to the evil peace that the Lord “did not come to send upon the earth,” as Mt. 10:34 says. And so Augustine says in a letter to Boniface: “We do not seek peace in order to wage war. Rather, we wage war in order to achieve peace. Therefore, be peacemakers in waging war, so that you may, in winning, bring to those against whom you war the benefit of peace.”
Reply Obj. 4. Not all military exercises by human beings are forbidden. Rather, only disordered and dangerous military exercises that give rise to slayings and plunderings are forbidden. And the ancients took part in military exercises without such risks. And so the ancients called them “military exercises” or “bloodless wars,” as Jerome makes clear in one of his letters.
OBEDIENCE AND SEDITION
On Rebellion
[This question is divided into two articles, one of which is translated here.]
SECOND ARTICLE
Is Rebellion Always a Mortal Sin?
We thus proceed to the second inquiry. It seems that rebellion is not always a mortal sin, for the following reasons:
Objection 1. Rebellion signifies “a military insurrection,” as a gloss on 2 Cor. 12:20 makes clear. But war is not always a mortal sin and sometimes just and lawful, as I have maintained before. Therefore, much more can there be rebellion without mortal sin.
Obj. 2. Rebellion is a form of discord, as I have said. But there can be discord without mortal sin, and sometimes without any sin. Therefore, there can also be rebellion with mortal sin or any sin.
Obj. 3. We praise those who deliver a people from the power of a tyrant. But this cannot be easily done without a popular insurrection if some of the people strive to maintain the tyrant, and others strive to unseat him. Therefore, there can be rebellion without sin.
On the contrary, the Apostle in 2 Cor. 12:20 prohibits rebellion along with other sins that are mortal. Therefore, rebellion is a mortal sin.
I answer that as I have said, rebellion is contrary to the unity of citizens (that is, the people) of a political community or kingdom. But Augustine says in The City of God that wise persons define the people as “a popular assembly legally constituted and bound by common interest, not any popular assembly.” And so the unity contrary to rebellion is evidently one of law and common interest. Therefore, rebellion is obviously contrary to both justice and the common good. And so rebellion is, by its nature, a mortal sin and more serious insofar as the common good, which rebellion subverts, surpasses private goods, which private disputes subvert.
And the leaders of rebellions indeed first and chiefly incur the sin of rebellion, and they sin most seriously. Second, supporters of rebellion who disturb the common good also incur the sin of rebellion. But we should not call those resisting the rebels and defending the common good seditious, just as we do not call those defending themselves brawlers, as I have said before.
Reply Obj. 1. Lawful war is waged for the benefit of the community, as I have said before. But rebellion is waged against the common good of the people. And so rebellion is always a mortal sin.
Reply Obj. 2. Discord from what is not clearly good can occur without sin. But discord from what is clearly good cannot happen without sin. And rebellion, which is contrary to the unity of the people, something clearly good, is the latter kind of discord.
Reply Obj. 3. Tyrannical governance is unjust, since it is ordained for the private good of the ruler, not for the common good, as the Philosopher makes clear in the Politics and the Ethics. And so disturbance of such governance does not have the character of rebellion, except, perhaps, in cases where the tyrant’s governance is so inordinately disturbed that the subject people suffer greater harm from the resulting disturbance than from the tyrant’s governance. Rather, tyrants, who by seeking greater domination incite discontent and rebellion in the people subject to them, are the rebels. For governance is tyrannical when ordained for the ruler’s own good to the detriment of the people.
PROPERTY
On Theft and Robbery
FIRST ARTICLE
Is the Possession of External
Goods Natural to Human Beings?
We thus proceed to the first inquiry. It seems that the possession of external goods is not natural, for the following reasons:
Objection 1. No one should ascribe to self what belongs to God. But dominion over all creatures belongs uniquely to God, as Ps. 24:1 says: “The Lord’s is the earth,” etc. Therefore, the possession of goods is not natural to human beings.
Obj. 2. Basil, explaining the words of the rich man who in Lk. 12:18 said, “I shall gather all my harvest and my possessions,” says: “Tell me, which goods are yours? Whence did you get them and bring them into existence?” But human beings can appropriately claim that things they possess by nature are their own. Therefore, human beings do not by nature possess external goods.
Obj. 3. Ambrose says in his work On the Trinity: “Dominion denotes power.” But human beings have no power over external things, since they cannot alter the nature of such things. Therefore, the possession of external goods is not natural to human beings.
On the contrary, Ps. 8:6 says: “You [God] have put all things under their feet,” that is, the feet of human beings.
I answer that we can consider external things in two ways. We can consider them in one way regarding their nature, which is subject only to God’s power, which all things obey at his whim, not to the power of human beings. We can consider external things in a second way regarding their use. And then human beings have dominion over external things from nature, since human beings can, by their powers of reason and will, make use of external things for personal benefit, as the things were made for human beings’ sake. For less perfect things exist for the sake of more perfect things, as I have maintained before. And the Philosopher by the latter argument proves in the Politics that the possession of external goods is natural to human beings. And the natural dominion over the other creatures, which according to reason (in which the image of God consists) belongs to human beings, is evident in the very creation of human beings, as Gen. 1:26 says: “Let us make human beings in our likeness and image, and let them have dominion over the fish of the sea,” etc.
Reply Obj. 1. God has the chief dominion over all things. And he in his providence has ordained some things for the material sustenance of human beings. And so human beings have dominion from nature regarding the power to use such things.
Reply Obj. 2. The rich man is criticized because he thought external goods belonged chiefly to him, as if he had not received them from another, namely, God.
Reply Obj. 3. The argument of this objection is valid regarding dominion over external goods regarding their nature, which indeed belongs only to God, as I have said.
SECOND ARTICLE
Are Individuals Permitted to Possess
Property as Their Own?
We thus proceed to the second inquiry. It seems that individuals are not, for the following reasons:
Objection 1. Everything contrary to the natural law is illicit. But all things are by the natural law common possessions, and individual ownership of possessions is indeed contrary to possession by the community. Therefore, no human being is permitted to appropriate external goods for self.
Obj. 2. Basil, explaining the words of the rich man in Lk. 12:18, says: “As those who come to public events ahead of time would prevent those coming later from attending, by appropriating for selves what is ordained for common use, so the rich think that common goods they seize first, belong to them.” But it is illicit to prevent others from possessing common goods. Therefore, it is illicit to appropriate common goods for self.
Obj. 3. Ambrose says, and the Decretum holds: “Let no one call one’s own what is common property.” But he calls external goods common property, as his prior remarks make clear. Therefore, it seems that no one is permitted to appropriate external goods for self.
On the contrary, Augustine says in his work On Heresies: “The ‘Apostolics’ have most arrogantly so designated themselves because they do not receive into their fellowship the married or those possessing their own property. (The Catholic Church likewise has very many monks and celibate clerics.)” But these heretics hold this view because, cut off from the church, they think that the married and possessors of property, which they themselves are not, have no hope of salvation. Therefore, it is false to say that human beings are not permitted to possess their own property.
I answer that two things belong to human beings regarding external goods. One is the power to manage and disperse external goods. And human beings are permitted to possess them as their own in that regard. And this is necessary for human life for three reasons. First, indeed, the power to manage and dispense external goods is necessary for human life because individuals are more careful in managing goods that belong to them alone than goods that are common to all or many. This is so because individuals, shunning work, leave common property to the care of others, as happens when there are many servants.
Second, the power of individuals to manage and dispense external goods is necessary for human life because human affairs are conducted in a more orderly fashion if the requisite care in managing external goods be entrusted to individuals. On the other hand, there would be confusion if unspecified individuals were to manage everything.
Third, the power of individuals to manage and dispense external goods is necessary for human life because human beings content with their own property live in a condition of peace. And so we observe that quarrels arise rather frequently among those who possess goods in common and not individually.
And the use of external goods is the second thing that belongs to human beings regarding the goods. And human beings in that regard should not possess external goods as their own but as common possessions, namely, in such a way that they readily share the goods when others are in need. And so the Apostle says in 1 Tim. 6:17–18: “Teach the rich of this world to distribute and share readily.”
Reply Obj. 1. We do not ascribe the common character of external goods to the natural law because the natural law dictates that all such goods should be possessed in common, and nothing possessed as one’s own. Rather, we ascribe the common character of external goods to the natural law because there is a division of possessions by human agreement which belongs to positive law, as I have said before, and not by the natural law. And so the individual ownership of possessions is not contrary to the natural law, although the intervention of human reason adds this to the natural law.
Reply Obj. 2. Those who come early to public events and were to open the way for others to attend, would not act improperly. And likewise, the rich do not act improperly if they before others take possession of property that was in the beginning common, and share the property with others. But the rich sin if they indiscriminately prevent others from using the property. And so Basil says in the same place: “Why are you rich and others beggars, except that you gain the merit of dispensing your wealth well, and that others are rewarded for their patience?”
Reply Obj. 3. When Ambrose says: “Let no one call common property one’s own,” he is speaking about individual ownership in regard to the use of external goods. And so he adds: “Those who spend too much are guilty of robbery.”