Selections from Three Works. Francisco Suárez

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

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

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

      6. Some say that law is the act of the intellect which is called ‘command’ (imperium).4 Other authors therefore, assert that law resides in the act of the intellect subsequent to willing, an act to which they give the name

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      of ‘command’ (imperium). However, this act, if it is not in the form of a locution, is certainly a fiction, as we have remarked above.5 And if it is in that form, then it will have the nature of a sign, so that it will be not so much law, as the sign of law; or, at the most, it will be called law, even as written law or that promulgated orally is so called. But this external or written law has the force of law only in that it stands for something else, something in which there dwells the virtue of law; therefore, it necessarily presupposes the existence of another thing which is law in its essence;6 and this is the very object of our inquiries. Nor may it even be said that the internal locution, as we conceive it in the mind of the prince, constitutes law; for this locution, too, has force and efficacy only in that it is a sign, so that it necessarily presupposes the existence of that which is law in its essence.7

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

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

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

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

      8. The second opinion: law is held to be an act of the will. There is, then, a second general opinion, according to which law is an act of the lawmaker’s will. In support of this opinion, one may cite all those who assign command to the will, as do Henry of Ghent (Quodlibeta, IX, qu. 6), Gabriel (on the Sentences, Bk. II, dist. xxxvii, qu. 1, art. 1, not. 3), Major (on the Sentences, Bk. III, dist. xxxiii, qu. 7), Occam (on the Sentences, Bk. III, qu. xxii [qu. xii], art. 4), Almain (Moralia, Tract. III, chap. ii), and Angest (on the Moralia, Tract. I, pt. III, corol. iii).9 Bonaventure also supports this view, when he says (on the Sentences, Bk. III, dist. xvii, art. 1, qu. 1, ad penult.): ‘The will is that within which resides the rule and command of what is in the person who wills.’10 Joannes Medina (Codex de Oratione, Qu. 2) expresses himself in like manner. The opinion in question is furthermore attributed to Durandus and to Gregory of Rimini (on the Sentences, Bk. I, dist. xlvii) in so far as they assert that the divine will is a rule to which we are all bound to conform. Scotus,11 too, is cited in behalf of this opinion, in that he says, in certain passages (on the Sentences,

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      Bk. II, dist. vi, qu. 1 and dist. xxxviii, qu. 1, ad ult. and quodlib. 17), that the ordering of another to the performance of any action is a function that pertains to the will. And in yet another passage (ibid., Bk. III, dist. xxxvi, qu. 1, art. 2), he assigns the function of command to the will. This same view is defended at length by Castro (De Potestate Legis Poenalis, Bk. II, chap. i).

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

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

      10. However, even though the will when expressed by a sign may be so called [only] in a metaphorical sense, it must be indicative of some true will. For, why should it be called will metaphorically, unless because it has a relation to true will? And it has no such relation save as a sign, wherefore it is called ‘the will, as expressed in a sign’. Hence, the will which it has indicated is that which is fulfilled in the strict sense, and which has been designated in the passages СКАЧАТЬ