Selections from Three Works. Francisco Suárez

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СКАЧАТЬ other than an application, or extension, of moral philosophy to the rule and government of the political conduct of the commonwealth; and therefore, in order that [this jurisprudence] may partake somewhat of the essence of true science, it must be joined or subordinated to philosophy. All this treatment of the laws, then, fails to transcend their natural end; nor does it even touch upon that end in all its phases, but only upon such phases as are necessary to preserve the external peace and justice of the commonwealth.

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

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      own purpose, study and interpret the sacred canons from the standpoint of a superior end and aspect.

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

      Nor, indeed, are we the first among the theologians to undertake this treatment of laws. For we have as predecessors, writers of the gravest authority, in every age. In the first place, St. Thomas, in his Summa (I.–II, from qu. 90 to qu. 109) follows this mode of procedure when laying down a doctrine of laws; and he has been imitated by the commentators on these passages; especially, by Soto (De Iustitia et Iure, the first two Books) and by St. Antoninus (Summa Theologica, Pt. I, titles xi–xviii). Alexander of Hales ([Summa Universae Theologiae,] Pt. III, qq. xxvi–lx) and Vincent of Beauvais (Speculum Morale, Bk. I, pt. ii, first nine disputations7) have observed the same method. Gerson, too (De Vita Spirituali, Pt. III, lects. ii et seq.; De Potestate Ecclesiastica, Pt. I, especially consideratio 13), dealt with

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      certain points relating to individual laws. [Peter Lombard,] the Master of the Sentences, also touched lightly (Sentences, Bk. III, dists. xxxvii, to end) upon the subject of divine laws; and he was imitated therein by others who undertook simply the task of commentators. Moreover, special works on certain laws have been published by other theologians, such as William of Paris8 in his Summa (Pt. I, bk. ii [Pt. V, chap. i]), which book he entitled De Legibus, although it treats almost entirely of the precepts of the Old Law. Castro also wrote on penal laws; and Driedo, in his work De Libertate Christiana, treated learnedly of every kind of law; not to mention other writers in these fields.

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

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

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      A Treatise on Laws and God the Lawgiver

BOOK I

      Concerning Law in General; and Concerning Its Nature, Causes and Effects

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

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

CHAPTER I

      The Meaning of the Term ‘Law’ (Lex)

      1. The definition of lex, according to St. Thomas. St. Thomas (I.–II, qu. 90, art. 1) defines the term ‘law’ (lex) as follows: ‘Law is a certain rule and measure in accordance with which one is induced to act or is restrained

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

      2. The divisions of lex, according to Plato. With respect to the foregoing, we may note, in the first place, the division which is to be drawn from Plato’s Minos, or On Law [313 B et seq.],4 a dialogue in which he distinguishes between two [suggested] divisions of law: that of art, and that of custom. To these we may add a third group from the Timaeus [24 et seq.] and the Gorgias of this same Plato—the law of order or of natural propensity. Here, distinguishing a fourfold division of law, he gives СКАЧАТЬ