Selections from Three Works. Francisco Suárez

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СКАЧАТЬ relating to a single household or an imperfect community is not law, since that imperfect community forms part of one that is perfect; and therefore, the same will be true of any part of a city state, for it, too, is an imperfect community and part of a perfect community. The minor premiss, indeed, is proved by the fact that it is not proper to the nature of law to be binding upon all the members of a state; therefore, it may be binding [only] upon a part of them, and nevertheless be true law.

      With respect to this point, some jurists assert that law made by the prince in order to bind one part of the state—for example, a fourth part only—is not a true law and has no binding force. So Angelus de Ubaldis has declared; and he has been quoted and followed by Jason (on Digest I. iii. 1, no. 2), who bases his opinion solely on the principle that a law should be a common precept.

      24. Solution. Nevertheless, I reply that it is one thing to speak of such a law from the standpoint of its justice or injustice, that is, its regard for persons, and another thing, to speak of it from the standpoint of the lack of an adequate community on which it may be imposed.

      For we are not treating, at present, of the former question; though even in that respect we cannot say that the said law is intrinsically bad, or unjust; since there may exist at times a sufficient cause and reason for imposing a burden upon one part [of the community], and not upon another part, either on account of the site and location, because the state has need of the service in question in that particular part, or on account of the condition of the particular persons involved, as is clear from the laws of taxation.

      The second question, however, is pertinent at this point. With regard to that question, we assert that it is not inherent in the nature of law that it should necessarily be made for the entire community taken as a whole, so to speak. For there may reside in a portion of that whole, a community that is in itself sufficient, and a basis that is sufficient, for the perpetuity of a law and for the derivation of the latter from a political jurisdiction pertaining directly to the common government.

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      Moreover, this may occur in various ways. In the first place, it may occur if a law is made with respect to a particular function or employment, with the result that it applies to particular workmen, and to no other persons. Secondly, it may occur if the law is made for persons of a certain kind or condition—for example, plebeians or nobles, descendants of the Hebrews, converts from among the Saracens, or any group of a similar nature. Thirdly, the law may be made in behalf of the inhabitants of a given part or quarter of the city state and not for any other persons, in such a way that it is enacted, not only with reference to those who are at the time residing in the said regions, but in perpetuity, to the end that it may endure for all their descendants without distinction.

      For any one of these modes of generality will suffice to satisfy the essential requirements of law, provided that the requirements of justice are observed: since the first mode is absolutely general, within its proper field of distribution; the second partakes of the same general nature, if we assume that its range of application is just; while the third is also impartial by its very nature with respect to all persons, since it is not impossible for any one to dwell in the region specified. And similar arguments may be applied to any other law of this kind.

CHAPTER VII

      Is It Inherent in the Nature of Law That It Be Enacted for the Sake of the Common Good?

      1. The other characteristic conditions of law depend largely upon this characteristic.1 We have therefore given it the second place [in our discussion of the said conditions], in spite of the fact that Isidore placed it last. Moreover, we shall at the same time explain the intrinsic end of law.

      It is inherent in the nature of law that it be enacted for the common good. With respect, then, to the question above set forth, there is no dispute among the various authorities; on the contrary, this axiom is common to them all: it is inherent in the nature and essence of law, that it shall

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      be enacted for the sake of the common good; that is to say, that it shall be formulated particularly with reference to that good. So St. Thomas maintains, in a passage (I.–II, qu. 90 [, art. 2]) commented upon by Cajetan, Conrad Koellin, and other modern authorities; and also, by Soto (De Iustitia, Bk. I, qu. i, art. 2), Castro (De Potestate Legis Poenalis, Bk. I, chap. i), Antoninus (Summa Theologica, Pt. I, tit. XI, chap. ii, § 1 and tit. XVII, § 3), as well as all the Summists on the word lex. Navarrus, too (in his commentary On Ends, No. 28), brings out this point well; as does Gregory López (on Las Siete Partidas, Pt. I, tit. i, law 9), in which latter passage Alfonso, King of Spain, requires that his own laws shall fulfil this very condition. The same view is held, moreover, by all the commentators on civil law (Digest, I. iii. 1), who assert that law should be ‘a common precept’, that is to say, one ‘established for the common advantage’, as the Gloss on the above-cited law of the Digest explains. Bartolus, Jason, and others follow the Gloss on this point. Isidore (as cited in Decretum, Pt. I, dist. IV, can. ii) has set forth the doctrine more clearly, as I have explained in the preceding Chapter; and he is followed by the other canonists thereon.

      2. Furthermore, the same truth may be inferred from the words of Aristotle, who says (Ethics, Bk. III, chap. vi [Politics, Bk. III, chap. ix, 1280 A]) that the end of the state is to live well and happily. Accordingly, he adds [ibid., 1280 B]: ‘Those who have a care for the good government of the state, engage in public deliberation on virtue and vice’;2 of course, by means of laws. Thus Aristotle subsequently (ibid., Bk. IV, chap. i, 1289 A) declares that, ‘The laws should be adapted to the commonwealth, and not the commonwealth to the laws’. Similarly, Marsilio Ficino, in connexion with the argument of Plato’s dialogue, Minos, draws from the latter’s opinion (as it is expressed both there, and in the works on Laws and on the Republic) the following description of law: ‘It is the true essence of government, and guides that which is governed to the best end, through fitting means.’ Furthermore, Plato, in this same dialogue [Minos, 314 D], calls that law noble, which establishes that which is right, in matters (ordine) of state and

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      in the plan of government.3 Again in the dialogue, Hippias, or The Beautiful (shortly after the beginning [284 D]), he says: ‘In my opinion, indeed, law is established for the sake of its utility, and legislators give law as the greatest good to the state; for, if law is removed, we are unable to live legitimately in a state.’ In the work Laws, too (Bk. I [631]), Plato demonstrates at length that, ‘laws are established for the sake of virtue’ and in order to promote the common peace and happiness. Cicero (Laws, Bk. III) makes the same point in a very full discussion. And Plutarch (Problemata in 40) declares that, of all the things within a state, goodness of laws is to be deemed the most excellent for this reason, namely, that such laws work most to the common good.

      3. This truth is indeed self-evident in the case of divine laws; so that it does not call for demonstration. For though the said laws are necessarily directed to the honouring of God (since He cannot will anything apart from Himself, or act save for His own sake), nevertheless in those laws He seeks not His own profit, but the good and happiness of humanity. Wherefore, since the divine works are superlatively perfect, and of a finely proportioned suitability, divine laws, in so far as they are given to a particular community, are accordingly given with a view to the common good and felicity of that community; a fact which becomes easily evident through a process of induction, with respect both to natural law and to the positive divine laws. Neither is there any force in the objection that through these laws God frequently provides for the private welfare of this or that individual; as when through the law of penance He provides for the salvation of the sinner himself, and as in other cases. This objection, I repeat, has no force. For, in the first place, the good of private individuals (as I shall shortly point out in greater detail) forms a part of the common good, when the former is not of a nature to exclude the latter good; being rather such that it is a necessary requisite in individuals—by СКАЧАТЬ