Selections from Three Works. Francisco Suárez

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СКАЧАТЬ even though there have been imposed, among the common precepts, laws which are binding upon such and such particular members, according to their [respective] functions and capacity, these laws are nevertheless always laid down in a general and common form. Furthermore, even the divine precept imposed upon Adam in the state of innocence was imposed not upon him solely and personally, but upon him as the head of all nature; and it would have endured always in that state, binding all persons, so that, to this extent, it had the true nature of law. A proof of this contention is the fact that, although God imposed the precept upon Adam alone, before He formed Eve (as related in Genesis, Chap. ii), nevertheless, Eve also was bound thereby (as is evident from Chapter iii of that same Book).

      The precept that God imposed upon Abraham concerning the sacrifice of his son cannot, however, be said to be law, in the proper sense of the term, but must be termed [simply] a command in accordance with the usual manner of speaking.

      10. With regard to the civil law, indeed, this point would seem to be made sufficiently manifest in a passage of the Digest (I. iii. 8). For there we find the statement: ‘Laws are made, not for individual persons, but in general terms.’ Proof of the same view, in connexion with canon law also, may be derived from a chapter of the Decretum already cited (Pt. II, causa XIX, qu. ii, can. ii), in that this chapter contains the assertion that the canons and decrees laid down by the Fathers are public laws. Moreover, the private law which is also mentioned in that passage is not canonical law, but one of a very different nature, as we shall observe. So it is, too, that Gregory IX, in the Preface to his Decretals, makes the following statement: ‘[…] law (lex) is promulgated for this reason, that the evil appetite may be restrained under the rule of ius, through which rule, humankind is instructed that it may live […] righteously.’ Aristotle, also, has said, in the Ethics (Bk. VI [, chap. viii]), that the faculty or prudence required for lawmaking is architectonic, or regal, since the principal act of this prudence is the making of laws, as St. Thomas (II.–II, qu. 50, art. 1, ad 3) has declared. Moreover, the said prudence looks to the community and is concerned therewith, so that law (according to the opinion of Aristotle) also looks to the community. Thus Aristotle has asserted (Art of Rhetoric,

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      Bk. I, chap. iv [, § 12]) that, ‘it is on the laws that the safety of the State is based’. Again (Rhetoric to Alexander, Preface), he has said that law is, ‘reason as defined by the common consent of the State’, &c., assuming that it is established for the direction of that same community. Plato (Laws) often repeats this assertion; and all the philosophers express themselves similarly. Accordingly, Biesius (De Republica, Bk. IV [, section Leges]) says that, ‘Laws are public precepts of life which it behoves all persons to obey at all times’, &c. Therefore, according to the common usage of the laws (iura), the jurists and the sages, there is no doubt that the word ‘law’ (lex) refers to a public precept, imposed upon some community and not simply upon one or another single individual.

      11. The same opinion is more fully confirmed in the light of the [other] properties of law. The foregoing may be further demonstrated in the light of the other properties of law. One of these is that law should be perpetual, as we shall show below;5 yet a precept for one person only cannot possess this attribute, since such a person is not perpetual; whereas the community is perpetual, at least through a process of succession so that, in relation to the community, law in the true sense is possible. Neither is it of any consequence that even a precept imposed upon the community may be temporary. For this fact gives rise, at most, to the conclusion that not every precept imposed upon a community is law; a point which we shall consider later, but which does not interfere with the necessity that every law should be imposed upon the community, if it is to be perpetual. The same truth may be established by assuming that this perpetuity exists with respect [also] to the lawmaker. For it is inherent in the nature of law that it shall not depend upon the life of the lawmaker, as we shall demonstrate below;6 and this condition can exist only in the case of laws that are common, since an individual precept, imposed solely upon a single individual, lapses with the death of the person who lays down the precept, or it lapses when that person has been removed from his office, as common opinion and custom testify. The reason for this is a matter of which we shall treat

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      below.7 Neither has it any bearing upon the point under discussion, if a precept decreed for the community is annulled by the death of him who lays down the precept, provided (as I shall point out, later8) that this precept is not laid down in the form of a law. For from this annulment, it would follow merely that not every precept imposed upon a community is law; and this is in agreement with the assumption that a law ought to have that perpetuity and that independence of the person imposing it, which it does not have unless it is a precept imposed upon a community.

      It will be objected that such an assumption is applicable only in the case of human laws; since in the case of divine laws, whether natural or positive, the Lawmaker cannot pass away or suffer change, and since such laws depend always upon Him in regard to their institution and persistence, [so that their perpetuity is not dependent upon the perpetuity of those subject to them]. I reply that this objection is without force. For it is in view of this fact—namely, that divine laws have clearly been laid down for the community—that we have accordingly made the additional observation above set forth,9 regarding human laws, in order to make it clear that every precept, whether human or divine, possessed of the stability which law by its very nature requires, is to be considered as relating to some community.

      Thus the precept imposed by the paterfamilias upon his slaves, or even his children, or indeed, his whole household, is not law, as St. Thomas declares (I.–II, qu. 90, art. 3, ad 3); either because it has not been instituted for a sufficient community, again as St. Thomas asserts in that same passage, or else because it has not been instituted by means of a true compulsory authority, this being necessary for [the constitution of] law, a fact that is pointed out by Aristotle (Ethics, Bk. X, last chapter [, § 12]).

      12. Finally, proof of the opinion in question may be drawn from another attribute of law, namely, the fact that law is the rule and measure of an action from the standpoint (so to speak) of its subject-matter and of the mean of virtue. For in this sense, law is said to be the rule of the just and of the unjust, as I have noted above,10 referring to Basil and to other authorities. And in like manner, that which is laid down by means of law

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      is called by Aristotle (Ethics, Bk. V, chap. i), legitimate or legal justice, as St. Thomas has observed (I.–II, qu. 90, art. 2). Law, then, is a kind of rule establishing or pointing out, in regard to its own subject-matter or the operation with which it is concerned, that mean which is to be preserved for the sake of right and fitting action; and this rule is in itself universal, having relation to all persons, in due proportion; therefore, law is in itself general, and consequently, in order that any law may be law in a true and perfect sense, it must possess this characteristic.

      If, on the other hand, there are certain precepts which do not possess it, either they are not laws at all, or else—assuming that they are considered as being laws—they are thus considered to the extent that they do in some wise partake of the said characteristic. We may also add that it pertains to this general or common character of law that the latter shall be instituted universally, without regard for persons and without unjust exceptions, as is indicated in the Decretals (Bk. I, tit. II, chap. vi). Many expressions, too, in the laws there cited would seem to point to the same conclusion, presupposing the existence of the first conditions, or universality of law, and adding this last condition as necessary to the justice of law, a matter concerning which we shall speak a little later.11

      13. The contrary opinion is refuted by means of arguments. However, the foregoing explanation may be expanded by answering the arguments which have been advanced [to the contrary].

      Of these, the arguments first set forth are easily disposed of. For we admit, with respect to the first, that Isidore and St. СКАЧАТЬ