Selections from Three Works. Francisco Suárez

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СКАЧАТЬ constitutes law; whereas it is easy to make such a designation in the case of the will. For the will of a superior to bind a subject to a given act, or—what is equivalent—to set a given matter within the sphere of obligatory virtue, is well denoted by the term ‘law’. This is true, both because of all the facts that we pointed out in connexion with the characteristic properties of law; and also because nothing antecedent to this will can have the force of law (a matter on which we have also touched), since it cannot induce necessity, while all that is subsequent [to the said will] is rather the sign of law that has already been conceived and established in the mind of the prince, since even the mental locution itself is only a mental sign.

      To these fundamental statements, Bartholomew Medina could have made no answer other than a denial that a will to bind on the part of the prince is necessary for lawmaking, and for binding through law.

      17. The doctrine of B. Medina concerning the will to bind, is assailed. This answer, however, is apparently a denial of what the other authors of the two opinions consider as a certainty; unless perhaps, there is some ambiguity in the wording. For it is a certainty that, in the case of these moral

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      effects which depend upon the will, the agents do not act without intention or in excess thereof; but binding by means of law is a moral effect and one which depends upon the free will of the lawmaker; therefore, in order that this binding effect may be accomplished, intention and will on the part of the legislator are necessary, for otherwise, the said effect would take place without intention, an inacceptable conclusion.

      The truth of the minor premiss is self-evident, and the same author (B. Medina) accordingly admits that law requires the concurrence of the will; while the major premiss is commonly accepted by the theologians, and, what is more, by the jurists. It is in this sense that they make the statement (Decretals, Bk. III, tit. V, chap. xxxviii) that the acts of agents do not operate in excess of their intentions.

      This conclusion, moreover, is made manifest by a process of induction, since it is for this reason that excommunication imposed without intent to bind is not binding, and absolution given without intent to absolve does not take effect, the same being true with respect to the other Sacraments; and in like manner, a vow or a marriage or a similar act, engaged in without intent, is not valid. The reason for this invalidity is the fact that all the virtue of such actions flows from or through the medium of the will. And again, it is the will that confers being as though it were the form. For an external act performed without intent is not, from that standpoint, a true moral act, but rather one that is feigned.

      18. To will to command, and to will not to bind, are incompatible intentions, repugnant [to reason], unless ignorance is involved. Similarly, in the case of vows, the intent to vow, and the intent not to bind [oneself], are incompatible. Wherefore, with respect to the example of the vow, it is in my opinion certain that the said vow is not binding if it was made without intent to bind; a point which I have brought out elsewhere (De Religione, Tr. VI, chap. iii).16 However, just as in the case of vows, a situation is frequently conceived of, in which some one vows with the intention of vowing and has at the same time the intention not to bind himself, even so B. Medina conceives of a similar situation in the case of a legislator who has the will to command and not to bind. Under

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      those circumstances, says Medina, the legislator nevertheless does bind. However, unless ignorance is involved, such intentions are incompatible and involve a [mutual] contradiction, when the first intention is to vow, or to command, in very truth and not fictitiously. For willing to command is nothing more nor less than willing to bind, or at least, willing to indicate a will to bind; and the same is true in due proportion with respect to vows. If, on the other hand, the intention is not of the sort described, but is simply an intention to command or to vow outwardly, then doubtless the result is nil, and no true law is decreed, nor is any true vow made. For it is certain that a fictitious promise that does not bind can be made; but this sort of promise can occur in no other [than a fictitious] way. In due proportion, the same holds true of precepts; and therefore, if it were known to a subject that his superior had not the intention of binding, although he might give utterance to words of command, that subject would certainly not be bound; a point on which [the authorities] agree, with respect to the case of excommunication above mentioned. Again, and conversely, we have the words of St. Thomas, who says (II.–II, qu. 104, art. 2) that the will of a superior, in whatsoever fashion it may become known to his subject, is a kind of precept; a statement which cannot be understood save with reference to this will to bind.

      19. In the case of an oath there may exist, together with an intent to take the oath, the intent not to bind oneself. In the case of oaths, however, the principle is not altogether the same. For it is possible that one may have the intention of taking an oath, that is, of calling God to witness, and may nevertheless intend not to bind himself; so that if, under such circumstances, an obligation does arise (and this is a debatable point), it results not from the personal will, but from the natural precept whereby every individual is bound to render true that statement which he has called upon God to witness. This fact I have elsewhere (De Religione, Tract. V, bk. II, chap. vii)17 discussed at length.

      On the other hand, the obligation imposed by the law cannot arise save from the will of the lawmaker; and therefore, an act of that will is necessary. Thus Gabriel has rightly said (on the Sentences, Bk. III, dist. xxxvii)

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      that, howsoever well the will of a superior may be made known, no obligation results unless he wills that his inferior shall be bound by that will. But my assertion18 contained this reservation: ‘unless … there is some ambiguity in the wording.’ For it may not be necessary that the lawmaker should conceive directly and expressly of the obligation of the subject and should be directed toward it by his will, since it may suffice if he intends, for example, to command that a given thing shall be of a given degree of importance, or that a particular act shall be part of the necessary subject-matter of temperance, or if he vaguely intends to command in so far as he is able. But these [modes of willing] involve only slight differences; since every one of them includes the intention to impose a binding obligation, and since [actually] intending not to bind is wholly repugnant to them all, unless the agent is absolutely ignorant of what he wills. And in that case, this ignorance itself would prevent the existence of an entirely true will to bind, or—consequently—of a true law; a point which I made in connexion with the similar matter of vows. In so far as concerns the necessity for such willing, then, this second opinion is undoubtedly the true one.

      20. The third opinion: affirming that law is composed of both acts. The arguments which we have advanced in favour of [each of] these opinions, thus seem to indicate that the act of the intellect and that of the will are both necessary for law; so that a third opinion may be held, according to which law is composed and compacted of the acts of both faculties. For in these moral matters, one need not seek a perfect and simple unity; on the contrary, that which is morally a unity, may be composed of many elements that are physically distinct and that are of mutual aid. So it is, then, that for law there are two requisites: impulse and direction, or (so to speak), goodness and truth; that is to say, right judgment concerning the things that should be done and an efficacious will impelling to the performance of those things; and therefore, law may consist of both an act of the will and an act of the intellect.

      This opinion, indeed, is usually attributed to Gregory of Rimini (on the Sentences, Bk. I, dist. xlviii [Bk. II, dist. xxxv,] only qu.). Nevertheless, he does not there discuss this matter, nor does he make any other statement

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      than that he who acts out of harmony with God’s will and good pleasure, acts in opposition to the eternal law. In this connexion, Gregory cites Augustine’s assertion (Against Faustus, Bk. XXII, chap. xxvii) that the eternal law is the reason or the will of God, an assertion СКАЧАТЬ