Selections from Three Works. Francisco Suárez

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СКАЧАТЬ and, consequently, almost morally impossible. This condition, however, should be understood as referring to custom that is righteous and advantageous to the state. For evil custom should be amended by law; and even though [a given custom] may have been at one time

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      advantageous, nevertheless, if the state of affairs has undergone so great a change that [the same custom] ceases to be of advantage and the opposite course becomes expedient for the common good, then, in that case also, it will be possible for law to override custom; a point which we shall discuss later, in the proper context.

      Finally, Isidore adds [Etymologies, Bk. V, chap. xxi], ‘suitable to the time and place’ [as qualifying words], since regard should be had for these circumstances, in every prudent act. In this connexion, however, they are to be considered, not from the standpoint of the act of command, but from that of the subject-matter or act which is prescribed, since not in every place, nor at every time, are the same actions suitable; wherefore, in the process of legislation, the said circumstances should be accorded the most careful consideration, as Augustine, too (Confessions, Bk. III, chap. xxxvii [chap. vii]), has rightly declared.

      If, however, we give this matter proper attention, we shall see that the circumstances in question are also determining elements of the practicability of any law whatsoever, since a given thing may be regarded as morally impossible at one time and as easily [accomplished] at another time; the same argument being applicable in due proportion to matters of locality. Sometimes, moreover, these circumstances may affect the righteousness [of a law], owing to similar reasons.

      20.41 Finally, the explanation of the conditions discussed above enables us to understand that, in so far as these conditions may be pertinent to the substance and validity of law, they are correspondingly necessary either to the justice or to the requisite practicability of human law; since legislative power has been granted to men in conjunction with such just limitations.

      The determination, however, of the cases which involve a substantial defect in regard to such conditions, must be left to prudent judgment; and this judgment must be based upon a high degree of certainty, if a law is to be adjudged invalid on such grounds. For the statement which I made above,42 namely, that the injustice [of a law] must be clear and beyond

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      doubt [if the law is to be declared invalid], is a statement which applies in the present43 connexion with much greater force. This is true, partly because of the reasons set forth in that earlier passage, since they hold good also for the matter now under discussion; and partly because less danger exists in connexion with this matter, since the doubt [in this case] turns solely upon a temporal objection.

      The difference between injustice from the standpoint of subject-matter, and injustice from the standpoint of mode. For we must note the difference between injustice in a law from the standpoint of subject-matter, and injustice therein from the standpoint of mode.

      In the former case, if the injustice clearly exists, it is on no account permissible to obey the law—not even for the sake of avoiding any damage or scandal whatsoever—since it is never permissible to do wrong for the sake of any end.

      But in the second case, though the law may not of itself be binding, a subject may obey it if he so chooses, provided he does not co-operate in [any resulting] injustice; for he has the power to cede his own right. Accordingly, it is much more credible, that he can be bound to obey in a doubtful case. And, indeed, even in cases of indubitable injustice [i.e. from the standpoint of mode], the subject may sometimes be bound to obedience in order to avoid scandal; since the latter must be avoided, though some temporal damage be suffered in consequence. This view is supported by the Decretals (Bk. II, tit. XXVI, chap. ii); it also finds a basis in Augustine (De Verbis Domini, Serm. vi [Sermons, lxii, Migne ed.] and On Psalm cxxiv); and it has been noted by St. Thomas (I.–II, qu. 96, art. 4). Adrian (Quaestiones Quodlibeticae, No. 6, ad 1), too, may be consulted in the same connexion; as may Gabriel (on the Sentences, Bk. IV, dist. xvi, qu. 3 [Dicitur autem lex]), the jurists (on Decretals, Bk. II, tit. XXVI, chap. ii), Panormitanus (on Decretals, Bk. I, tit. II, chap. vii, no. 9), the Cardinal (on Decretum, Pt. I, dist. L, can. xxxvi), and Bellarmine (De Romano Pontifice, Bk. IV, chap. xv).

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CHAPTER XII

      What Definition of Law (Lex) Is Derived from the Conditions of Law Above Set Forth?

      1. The method above indicated1 was employed by St. Thomas (I.–II, qu. 90, art. 4), when, from the characteristic properties of lex as he had recorded them, he drew a definition of the term, a definition which I shall presently quote. For other definitions of lex have been laid down, and these have been cited and rejected by Soto on St. Thomas (De Iustitia et Iure, Bk. I, qu. i), by Castro (De Potestate Legis Poenalis, Bk. I, chap. ii) and by other modern authors. It is unnecessary, however, to dwell upon this point, since the descriptions in question are not true definitions, but eulogies of law, or else refer not to law in general, but to some particular law. Thus Cicero (Laws, Bk. I [Bk. II, chap. iv]) has said that: ‘Law is something eternal existing in the mind of God’, and (Book II [, chap. iv]), that it is: ‘The right reason of supreme Jove’, descriptions which are suitable for the eternal law. In another passage [Laws, Bk. I, chap. vi], indeed, he declares that law is ‘Right reason,2 implanted in nature’. Similarly, Clement of Alexandria has also said that law is ‘right reason’. And these statements are applicable to natural law. Aristotle, however, in the Rhetoric to Alexander, has asserted that, ‘Law is the common consent of the state,’ &c., and again (Ethics, Bk. X, last chapter [, § 12]), that it is, ‘a rule emanating from a certain wisdom’, &c. These assertions may fittingly be applied to human or civil law. Similar declarations are found in several passages of Isidore (Etymologies, Bk. II, chap. x and Bk. V, passim), whom we have frequently cited, and to these passages Gratian refers in the Decretum (Pt. I, dists. I and IV). Moreover, definitions of a like nature may be inferred from various laws of the Digest (I. i and iii).

      2. Various definitions of law. A more general definition may be drawn from the statement made by St. Thomas (I.–II, qu. 91, art. 2 [art. 1])

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      that: ‘Law is a dictate of practical reason emanating from the prince who rules some perfect community.’ Castro, however, defines law differently (De Potestate Legis Poenalis, Bk. I, chap. i), as ‘The righteous will of one who represents the people, when that will is promulgated either orally or in writing, with the intention of binding the subjects to obey it’. These definitions express the personal opinions of the individuals who framed them, a practice which should be avoided, in so far as is possible; for a definition ought to consist of a primary principle (as it were), on a universally applicable basis. Furthermore, the definition last quoted contains certain elements which are not strictly necessary, or which require fuller explanation. Take, for example, the statement that [law] is a righteous will; for, strictly speaking, it could fail to be righteous in an absolute sense. Again, [we may question] the phrase, ‘one who represents the people’, since [the legislator] may be either the people themselves, or some one who does not represent the people but is nevertheless charged with caring for them. And as for the first of the two definitions, it is applicable to law only in so far as law dwells within the mind of the prince; whereas, in the present discussion, we are treating also of external law.

      Thus Gabriel (on the Sentences, Bk. III, dist. xxxvii, art. 1 [, par. Lex obligatoria]) has defined law as: ‘The explicit sign made by right reason when the latter dictates that some one shall perform or shall refrain from performing a given action.’ It would seem that this definition is approved by Aristotle, when he says [Nicomachean Ethics, Bk. X, chap. ix, § 12] that, ‘law […] is a rule emanating from a certain wisdom,3 [etc.]’. One ought not, however, to limit the definition to the external sign alone. Moreover, the entire definition СКАЧАТЬ