Selections from Three Works. Francisco Suárez

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СКАЧАТЬ Accordingly, in

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      the civil law (ius) also (Digest, I. iii. 19), law (lex) is said to have its own will; for written or external law undoubtedly indicates the will of the prince, and this is declared to be the will of the law itself; therefore, will of that sort is law existing in the prince himself.

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

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

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

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

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

      12. Another characteristic property of law is that it enlightens and directs the subject. In connexion with this property, indeed, we should note that it may be attributed to law, in so far as the latter dwells within

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

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

      14. Hence, there is yet another way in which to meet the customary objection that a superior issues no command if he does not make his will

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      known, even though he may wish that a given act be performed by the subject. For it is replied that this intimation may be external and that such an intimation is not pertinent to the discussion, since it does not reside within the lawmaker but is simply a transient act, affecting either the subject or some other external matter, in accordance with the statements made in the preceding Chapter;14 whereas intimation as it exists in the lawmaker would seem to consist pre-eminently in a will to intimate externally, which in its turn is an intimate part or else a consequence of the will to bind, so that, for this reason also, law pertains principally to the will.

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

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

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

      The third. The third condition consists in the fact that lawmaking is an act of jurisdiction and of superior power, a matter upon which I shall

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      comment below.15 Consequently, it is (so to speak) the use of a form of dominion; and use is an act of the will, particularly the use of dominion, which is a free act.

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

      16. One may adduce as a final argument the fact that it is possible, in the light of the remarks I made when setting forth the first opinion, to understand how difficult it is to designate the СКАЧАТЬ