Selections from Three Works. Francisco Suárez

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СКАЧАТЬ (II. xiv. 34) makes the statement: ‘The right of kinship cannot be repudiated;’ while another passage (ibid., XLVIII. xxiii. 4) declares that the right of kinship is restored to the son. It is consequently inferred that [the term ius] is applied not to the blood-relationship itself, but to the moral claim (actio), or faculty, born of that relationship. The same explanation holds in the case of other passages.

      6. Another meaning of the term ius. However, according to the other etymology, which derives ius from iubendum (ordering), the true meaning of ius would seem to be lex. For lex is based upon ordering (iussio), or command. The jurisconsults, indeed, often give the word this signification; as when they say, ‘We are following this or that law (ius)’, or, ‘This is a point on which the law (ius) is certain and firmly established’, or when they make similar statements. Again, [ius] seems to be given this meaning whenever it is distinguished from fact; as when a discrimination is made between ignorance of law (ius), and ignorance of fact, a distinction which is frequent in law (ius), and among the Doctors. There is in the Digest, a title [i.e. XXII. vi], ‘On ignorance of law, and of fact’. Hence it is, that what is in harmony with reason is said to be lawfully done (iure fieri), as if to say, ‘done in conformity with law’ (legi conforme). It is thus, too, that Sallust (in The Conspiracy of Catiline) would seem to have defined ius, saying: ‘Ius is civil equity, either sanctioned by written laws or institutions, or else drawn from custom.’ This description has apparently been given

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      primarily with a view to the civil laws only, but if the word ‘civil’ is suppressed, [the definition] will be easily adaptable for the canon laws as well, and the positive divine laws. It does not seem applicable to natural law, however, unless we say that the latter law is written in the minds of men; whereas the term ius is indeed applied to natural law, as is evident from the title of Institutes, I. ii: De Iure Naturali & Gentium & Civili (Concerning natural law, the law of nations and the civil law), a title which we shall discuss later. Finally, the description in question appears to have been given rather with respect to the effect of law (lex) than with respect to the true rational basis thereof. Or, at least, it would seem to be rather a description of the object set up by the law, than a description of the law itself; since law constitutes equity, or is the measure and rule thereof, but is not properly speaking equity itself.

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

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

      However, it has now come about through usage that the term lex is properly applied both to written and to non-written law, so that ius, in so

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      far as it refers to lex, is used interchangeably with that term, and the two words are considered as synonyms.

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

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      determines what is just, is sometimes called ius. Thus he appears to give a tacit explanation of the above-cited law of the Digest (I. i. 1, § 1), in which Ulpian quotes with approval the definition of Celsus, namely: ‘Ius is the art of the good and the equitable.’ For this definition would seem to be suited, not so much to law (lex) itself, as to jurisprudence (iuris prudentiae), unless ‘art’ is taken in a broad sense, as referring to any method or measure of operation.

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

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

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

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

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