Selections from Three Works. Francisco Suárez

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СКАЧАТЬ no definite decision [regarding the two faculties]. Gabriel (ibid., Bk. III, dist. xxxvii, only qu., at beginning), more definitely upholds the opinion in question, when, after saying with regard to the external law (that is, with regard to law as it exists in the subject) that it is ‘a true sign making known to the rational creature that right reason which dictates that he is bound, etc.’, he declares that [the said law] ‘is the dictum of him who dictates or binds, etc., for the purpose of indicating that the right reason of the one who commands, together with his will, is the basis of the binding obligation incumbent upon the inferior; that is to say, the force by which the inferior is bound’.19 But the law is the true basis of the obligation; and therefore, Gabriel holds that in the prince himself the law is the reason of the prince combined with his will, and furthermore declares that this will is a will to bind the subject, as he has stated above.

      Wherefore, just as free will is wont to be defined as a faculty of the will and of the reason, so law, which is customarily called the free will of the prince, may not improperly be considered an act of each of the two faculties.

      21. It may also be added that, although the term law (lex) in its complete and adequate sense embraces both acts, nevertheless, from another standpoint, the act of the will and that of the intellect may each be spoken of as law, under diverse aspects. The words of Augustine in the passage above-cited (Against Faustus) are not out of harmony with this manner of speaking, and the passage is interpreted accordingly. For if one has in mind the moving force in law, so that law is said to be the power in the prince which moves and makes action obligatory, then, in that sense, it is an act of the will. If, on the other hand, we are referring to and considering that force in law which directs us toward what is good and necessary, then law pertains to the intellect. Moreover, it appears to consist in an

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      active judgment and—in so far as it exists within the prince—to follow upon, not to precede the will. To be sure, it appears to do so, not after the fashion of an impelling act that is not a judgment (a view which has been sufficiently disproved), but after the fashion of an active judgment in which the prince, having issued his decree, decides that a given act absolutely must be performed by the subjects, to whom the said decree should therefore be made known. For I have in the preceding Chapter expounded the fact that, in the mind of the prince, this judgment follows upon the willing; so that, in this sense, it may be said that the law is written in his mind, which is the source of every external law. The similar judgment which takes place within the subject will be (so to speak) a law derived from that law which exists within the prince.

      22. A definite judgment is laid down with regard to the whole controversy. The opinions above set forth are credible, and the one last stated seems sufficiently acceptable, as well as reasonable. However, in order to pass some judgment on the question as a whole, we shall set aside the natural law, and therefore the eternal law, also, [for separate consideration,] since they involve a special difficulty with regard to this very point, namely: whether and in what way they have the true and proper nature of law; a matter of which we shall treat in the following Book.

      The present controversy, then, simply concerns law as it is constituted through the will of some superior. With respect to this form of law, it is certain either, that it consists of an act of the reason and an act of the will or, at least, that it assuredly does not exist apart from both of them; in such wise that, if it consists of one of the two only, it is nevertheless intrinsically dependent upon the other. For this fact is proved by all the arguments adduced in support of the first two opinions.

      23. From this, indeed, we draw a second inference, namely, that it is not possible to give efficacious proof with regard to the manner of speaking adopted for either of those opinions. For the evidence adduced in support of the first opinion proves merely that law is not made without the guidance of prudence. Therefore, when the philosophers cited in that connexion attribute law to the reason, they refer, not to an act of the intellect resulting in the prince from the will whereby he chooses to bind his subjects, but to a judgment which precedes, directs, and (as it were) regulates that will. For

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      the assertion made by them is simply that the will of the prince does not suffice to make law, unless it be a just and upright will; so that it must have its source in an upright and prudent judgment. As to this judgment, it is clearly not law, if it is considered in itself and as prior to the [act of] will. Accordingly, these philosophers call law right reason, having regard to its root; just as Cicero, On Laws (Bk. II, chap. iv), has said that virtue is the right reason of life.20 However, the arguments advanced in defence of this opinion, have been answered in the process of confirming the second opinion. But the evidence adduced in support of the latter merely proves, strictly speaking, that the binding obligation imposed by law is derived from the will of the legislator. For this suffices in order that it may be said that he who observes God’s law is doing God’s will, or acting in accordance with that will; and it suffices also to allow of the converse assertions. However, the arguments set forth in behalf of this opinion are, to my mind, more convincing if we assume that law is that act of the prince which of itself and by its own force creates an obligation and binds the subject. It may, indeed, be objected that the term ‘law’ (lex) refers, not to a binding act, but to the sign of such an act, or to the act of the intellect from which the said sign is proximately derived.

      24.21 The assertion that law is an act of the will, is better understood and upheld. Wherefore, and thirdly, I add that, with regard to the essence of the matter, a more intelligible and more easily defensible assertion is this: law in its mental aspect (so to speak), as it exists in the lawmaker himself, is the act of a just and upright will, the act whereby a superior wills to bind an inferior to the performance of a particular deed. I find a proof of this assertion in the arguments advanced in support of the second opinion. For though such an act of the will cannot take effect in the subject unless it be sufficiently propounded to him, nevertheless this act of propounding is an application of the cause that creates obligation, rather than the true cause and basis of obligation.

      25. With respect to the application of the term, ‘law’ (lex) signifies primarily the external rule, and the sign [thereof], of the person commanding. Lastly,

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      however, I assert, with respect to the application of the term ‘law’ (lex), that it seems to have been used primarily to denote the external rule of the person commanding, and the sign making manifest his will. For it was in this sense that Aristotle (Ethics, Bk. X [, chap. ix, § 12]) declared law to be a rule emanating from a certain wisdom [etc.]; and that he elsewhere (Rhetoric to Alexander) speaks of it as the common wish of the people, set down in writing. Isidore, too, assumes this to be the case, when he says that lex is derived from legendum (that which is to be read, &c.), and should be in written form.

      According to this acceptation of the term, then, one may well defend the view that law, as it exists within the prince, is that act of the intellect whereby he proximately dictates the external law, or that act which is by its very nature suitable for the dictation and manifestation of this [external law].

      For, just as the external law is in a sense a proximate rule for the will of the subjects, even so, in due proportion, the law which is written (as it were) in the intellect of the prince, is a rule for this same will of the subject, one from which the rule of external law is proximately derived when it is set forth to the subject. However, it is derived, as the saying goes, in the form of another intimation or impelling force; yet this intimation is nothing more nor less than the external locution that is directed and (so to speak) dictated by the intellect of the prince, through that judgment which his will has already approved, or in so far as that locution is derived from the said [intellectual] act as already defined and decreed through the volitional act of the same prince; a point which is made sufficiently clear by what we have said above.

CHAPTER VI

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