Selections from Three Works. Francisco Suárez

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СКАЧАТЬ in the Nature of Law That It Should Be Instituted for Some Community?

      1. Having discussed the question of the general class in which law is to be placed, we should inquire into the distinguishing marks by virtue of which it acquires the [particular] nature of law. What these distinguishing marks are, we shall ascertain while explaining certain characteristic conditions

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      which are necessary to the true nature of law. And at the same time, we shall explain the causes of law, since the true and intrinsic conditions characterizing law can have no better source than those causes; neither can the said distinguishing marks be understood or explained, without reference to the subject-matter, object and end of law.

      It is inherent in the nature of law that it should be instituted for certain beings. In the first place, then, as to the essential nature of law, it is clear that law is instituted for a certain being or certain beings; for, in the words of Paul (Romans, Chap. iii [, v. 19]): ‘Now we know, that what things soever the law speaketh, it speaketh to them that are in the law.’ Thus, law essentially implies a certain habitual relation (habitudo) to those upon whom it is imposed; and consequently, in order to explain the essential nature of law, it is necessary to make clear the terms of this relationship.

      Human beings alone are capable of [subjection to] these laws. We assume, moreover, that law should be instituted for human beings, since inferior creatures are not capable of [subjection to] true law (which is the topic under consideration), as has often been remarked; for they are not capable of moral acts. And the angels, although they are capable of [subjection to] the divine law, are nevertheless not included within the range of our present discussion, as I said in the Preface. However, the statements which we shall make with respect to natural and divine law may easily be applied, in due proportion, to the angels.

      Law as we are treating of it must, then, be imposed upon human beings; and accordingly, every law may in this sense be called human, as I have remarked above,1 even though, to avoid ambiguity, it is not so called.

      2. Is it inherent in the nature of law that it should be instituted for some community? These statements having been assumed to be true, there arises a doubt as to whether law can be instituted for one individual only, or whether it is inherent in the nature of law that it should be instituted for a multitude of men, or a community.

      For we presume it to be a manifest fact that a human community is capable of [subjection to] laws and even stands in special need of them,

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      since the arguments advanced in the preceding Chapter offer convincing proof of this assertion. Accordingly, it is also clear that, as a matter of regular and ordinary procedure, law is indeed instituted for some community, or multitude of men; a fact which is sufficiently evident through usage itself, and which will become still more manifest from what we have yet to say. The difficulty, then, consists in the question of whether or not the said fact is inherent in the nature of law.

      The first and affirmative opinion. The first opinion as to this question is affirmative, namely, that only that precept is law which is instituted in general for all the persons included within a given community; whereas that precept which is imposed upon a single individual is not law. The foundation customarily adduced for this opinion is a passage in the Decretum (Pt. I, dist. IV, can. ii), taken from the Etymologies (Bk. I, chap. xxi [Bk. II, chap. x and Bk. V, chap. xxi]) of Isidore. In this passage, Isidore lays down various conditions for law and the last condition is, ‘that it shall have been written for no private benefit, but for the common advantage of the citizens’. This text, however, does not provide a compelling argument, since it is one thing that a law should be imposed upon a community, and quite another, that it should be imposed for the good or the advantage of that community. For it may be that a precept is imposed upon a particular individual and is nevertheless imposed with a view to the common good. Thus, Isidore, in the passage cited, is laying down a necessary condition, not with respect to the person on whom the law is to be imposed, but with respect to the end on account of which it is to be imposed, namely, the common good. This condition I shall explain in the next Chapter.

      3. It may be objected that the condition in question, if so interpreted, had already been included under another, laid down by Isidore in the same Chapter, the condition ‘that law be just and righteous’; for law will not have these qualities, unless it is ordered for the common good.

      But that objection is not valid; first of all, because many of the conditions that Isidore lays down in this Chapter are so related that one is included within another or inferred therefrom, and nevertheless all are added to the list for the sake of a more complete explanation. Thus, in the mere condition that law should be just, there are included the conditions that law should be [such that obedience] is possible and that it should be

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      useful. For how will law be just, if [obedience thereto] is impossible, or useless? And nevertheless, these three conditions are separately enumerated.

      Accordingly, with still more reason could this last condition have been added, in order to explain clearly the particular justice and rectitude which are required of law. For an act may be just and righteous, even if it be not directed to the common good; and it will suffice if such an act is not [positively] opposed to that good. But with respect to law, the additional requirement is made that, in order to be just, law must be ordered for the common good.

      4. Neither, apparently, can there be any doubt as to the fact that this was Isidore’s meaning [Etymologies, Bk. V, chap. xxi], as is evident from that adversative expression, ‘written for no private benefit but for the common advantage of all’.2 For it is not impossible that a law should be imposed upon the community, yet imposed for private benefit, since tyrannical laws are possessed of both characteristics simultaneously. But Isidore speaks of the two qualities above mentioned as if they were mutually opposed. Therefore, he is not speaking of the community upon which the law is to be imposed, but simply maintains that, on whomsoever it may be laid, the law must be imposed for the common advantage.

      It is in this sense, too, that St. Thomas (I.–II, qu. 90, art. 2) has interpreted the statement of Isidore. For, in the body of the article cited the whole argument of St. Thomas tends towards a declaration that the intention of a lawgiver in making a law ought to be directed towards the common good, since the common happiness should be a measure, and as it were, a first principle, by means of which the justice, utility and fitness of a law are measured. Wherefore, he concludes: ‘any other precept in regard to some individual work, must needs be devoid of the nature of a law, save in so far as it regards the common good. Therefore, every law is ordained to the common good.’ In these words St. Thomas would seem to indicate that law may contain precepts of an individual nature, provided that these precepts be related to the final end of law. Moreover, this passage in the

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      text under discussion [Decretum, Pt. I, dist. IV, can. ii] was similarly understood by Archidiaconus, Dominicus de Sancto Geminiano, Torquemada and many persons to whom I shall refer in the next Chapter.

      5. Secondly, this [first and affirmative] opinion is wont to be proved on the basis of a passage in the Digest (I. iii. 1) in which the statement is made that a law ought to be ‘a common precept’. Nevertheless, the word ‘common’ is also ambiguous; for, as Jason (on that passage, in the beginning [Digest, ibid.]) notes, together with Fulgosius, law may be termed a common precept for three [distinct] reasons: first, because it has been instituted by the common consent or authority; secondly, because it should be common to all; thirdly, on the ground that it serves the common good. However, in the above-cited law of the Digest, it is not stated that the second mode of being common is necessary in an absolute sense to the nature of law, or of a common СКАЧАТЬ