Selections from Three Works. Francisco Suárez

Чтение книги онлайн.

СКАЧАТЬ that the lawmaker was moved by an unjust intention owing to private hatred, that fact (as has been said above) will not be detrimental to the law itself, nor to the justice thereof, if in other respects this law is necessary to the common good. So Felinus has declared at length, in the passage already cited [on Decretals, Bk. I, tit. II, chap. vi, concl. 1]. Moreover, he adds (ibid., concl. 3) that the same conclusion holds true of a law made in favour of a private individual or of a family, if the said law redounds to the common advantage; a fact which is sufficiently clear in the light of what we have already said.16 Thus the authorities above cited17 are referring—when they speak of injustice and fraud—to cases involving an attempt, without just cause, to inflict harm upon a third party under the guise of a general law. For in these cases the injustice is manifest, and consequently a suitable method of self-defence is likewise permissible, and befitting; and it is of such self-defence that these authors treat, since the subject falls properly within their field.

CHAPTER IX

      Is It Inherent in the Nature of Law That It Be Just, and Established in a Just Manner? In This Connexion the Other Conditions of Law Laid Down by Isidore Are Discussed

      1. Now that we have expounded the conditions required of law with respect to the persons or causes that may be considered as extrinsic, the intrinsic conditions (so to speak) present themselves for discussion, whether intrinsic in the act to which a legal precept may apply, or intrinsic in the very process of making the law. We reduce these conditions to a question of justice; and under justice, we include all the conditions laid down by

      [print edition page 117]

      Isidore in a passage (Etymologies, Bk. V, chap. ii [chap. iii]) where he speaks thus: ‘Law will be all that which is established by reason, provided that it is in harmony with religion, agreeable to [moral] discipline and conducive to welfare.’1 However, Isidore would seem to be speaking here of human custom, rather than of law in general, although the words might be made applicable to all phases of law. In other chapters, indeed (ibid. chap. xxi and Bk. II, chap. x), he enumerates other conditions—or the same ones, with greater clarity—for he says: ‘Law will be righteous, just, practicable, and in harmony with nature and with the custom of the country, and suitable to the time and place.’ St. Thomas, also (I.–II, qu. 95, art. 3), interprets these conditions as referring to human law.

      Nevertheless, owing to the fact that either all or at least the chief of the said conditions, are applicable to every kind of law, and because it is necessary to have a knowledge of them in order to draw up a definition of law, an explanation of the conditions is fitting at this point.

      However, we shall reduce them all to the two conditions suggested in the title of this Chapter, namely, law shall be just, and law shall be established in a just manner. These conditions, we expressly undertake to expound; and, in connexion with them, we shall discuss certain others, viewing them as corollaries.

      2. The first assertion: It is inherent in the nature of law that it shall prescribe just things. My first assertion, then, is as follows: it is inherent in the nature and essence of law that it shall prescribe just things.2

      This assertion is not only indubitably true by the light of faith, but is also manifest by the light of natural reason. Accordingly, it is made not only by the theologians and Fathers whom I shall cite below, but also, in various passages, by the philosophers named in the preceding Chapter.3

      A twofold sense in which law may be regarded as just. Moreover, it may be expounded in the following manner. The statement that law ought to

      [print edition page 118]

      be just, is susceptible of two interpretations. First, the question of justice may be viewed from the standpoint of the very act which the subject is, by virtue of the said law, obliged to perform; that is to say, the act must be such that it may be justly executed by him. Secondly, the question may be considered in regard to the law itself; that is, the law must be imposed upon men without the infliction of injury. For sometimes an act may be such that it is possible for the subject to perform it justly—as in the case of a fast on bread and water—while the superior [nevertheless] does this subject an injury by prescribing such an act. This distinction has been pointed out by St. Thomas (I.–II, qu. 96, art. 4). Our assertion, then, should be interpreted according to the first standpoint, or first kind of just law; for in order to set it apart from the second standpoint, we have said that a law ought to prescribe just things.4

      Again, ‘justice’ sometimes signifies a special virtue; while at other times it refers to all the virtues. But in the present case, our assertion that law should be just must be taken in a general sense, as meaning that whatever the law prescribes should be such that it may be executed justly and virtuously, that is, righteously.5 Even this condition, however, is susceptible of a twofold interpretation; that is, it may be interpreted negatively, meaning that what is prescribed shall not be unjust or base; or it may be interpreted positively, meaning that what is prescribed shall be just and righteous.

      3. The said condition, then, is to be understood principally in the first sense; and accordingly its truth is self-evident.

      Nevertheless, it exists for one reason in the case of divine laws, and for another reason in the case of human laws.

      For in the former case the reason is the essential rectitude of the divine will, since God is superlatively good and therefore incapable of commanding anything evil.

      There is the further reason that God cannot be a contradiction to Himself, and therefore cannot lay down mutually contradictory precepts at

      [print edition page 119]

      one and the same time, while they continue to be thus contradictory. The prescribed deed, then,—a deed which, for the purposes of argument, we have assumed to be unjust or base—will be of such sort that it is in nowise separable from its iniquity (as in the case of lying, or entertaining hatred against God, or failing to believe when He speaks with sufficient evidence, or similar conduct); or else, the said deed will be such that its wickedness can be removed by a change in the subject-matter, or by the adoption of a [special] mode of action (as in the slaying of a human being, or other act of this kind). When the deed [prescribed] is intrinsically evil in the former sense, it is for that very reason prohibited by natural law, and consequently by God, as the Author of natural law; therefore, it is impossible that positive divine law should contain anything contrary to this natural justice, although it may contain many precepts in addition to those of natural justice, precepts which are most righteous in their own order. If, on the other hand, the deed in question is of the latter sort, it will be righteous for the very reason that it is prescribed by God; a point which may be illustrated by the deed of Abraham and also by similar cases which we shall discuss later, when we treat of dispensations from natural law. For this latter form of command occurs (a point which should be noted), not in divine laws of a general nature but, at most, in certain rare personal precepts. Accordingly, it is quite clear, with respect to divine laws, that they are always characterized by the kind of justice in question.

      4. In the case of human laws, however, this [condition which we have been discussing in the two preceding sections] is founded upon another principle. For a human legislator does not have a perfect will, as God has; and therefore, of himself and with respect to the deed [prescribed], such a legislator may sometimes prescribe unjust things, a fact which is manifestly true; but he has not the power to bind through unjust laws, and consequently, even though he may indeed prescribe that which is unjust, such a precept is not law, inasmuch as it lacks the force or validity necessary to impose a binding obligation.6 To be sure, I am speaking

      [print edition page 120]

      of unjust deeds which are opposed to natural or divine law. For if a deed is wicked solely because it is prohibited by a human law, and if the latter can СКАЧАТЬ