Selections from Three Works. Francisco Suárez

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СКАЧАТЬ or signs which are not, properly speaking, laws.

      Finally, the same is true of other, similar definitions which can be found in the works of Gerson (Pt. III, tract. De Vita Spirituali, Lect. 10 and Pt. I, tract. De Potestate Ecclesiastica et Origine Iuris et Legum).

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      3. Consequently, that deduced by St. Thomas (I.–II, qu. 90, art. 4) has more frequently been adopted, namely: ‘Law is an ordinance of reason for the common good, promulgated by one who is charged with the care of the community.’ Alexander of Hales, too (Summa Universae Theologiae, Pt. III, qu. xxvi, memb. 4 [memb. 3]), offers almost the same definition.

      In the first place, the definition in question4 contains as its generic term, the expression, ‘ordinance of the reason’, an expression which is to be interpreted in an active and not a passive sense. For the ordinance is laid upon the subjects through the law, but the act of ordering issues from the lawgiver; this act whereby he orders, is given the name of an active ordinance; and that active ordinance must emanate from the reason; therefore, it is called an ordinance of the reason. But this term (whatever may be the particular sense in which it is employed by the authors [of the definition]) is not of itself restricted to an act of the intellect, nor to one of the will. For, in the case of both faculties, there may be an ordinance, and that ordinance which pertains to the will may be said to pertain to the reason, either because the will itself is a rational faculty, or, in any case, because it ought to be directed by right reason, especially in the law-making process. The term in question may even be applied to an external as well as to an internal act; for an external precept is also an ordinance of the reason, that is to say, an ordinance dictated by the reason.

      The remainder [of this definition], however, is added by way of differentiation, and includes virtually all the conditions of law, as is sufficiently evident from what we have already said.

      4. Objection. A question may indeed arise owing to the fact that the said definition contains no limitation whereby counsel is excluded from the nature of law. Accordingly, some persons grant that counsel is comprehended within law, a supposition which—as I indicated above,5 and as I shall repeat in the following Chapter6—is, strictly speaking, not true.

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      Solution; and the difference between law and counsel. I therefore reply that counsel is excluded in a twofold manner by the definition in question.7 For counsel, as such, is not of its very nature derived from a superior in so far as he possesses power over and charge of his subjects; whereas law should be an ordinance of the reason such that it emanates thus from one having charge of the community, even as this very definition provides, for the definition must be understood in its essential terms and formally.

      Similarly, prayer, or petition, should be excluded from this ordinance of the reason. For these three things—precept, counsel and petition—agree in this respect: that, through each of them, one person is ordered or directed to action by means of another’s reason, so that each of the three may be said to be an ordinance of the reason. And nevertheless, they differ one from another. For a petition is normally addressed by an inferior to a superior; although it may occur between equals and may sometimes proceed from a superior with respect to an inferior, which, however, does not apply in so far as regards the true nature of petition. Indeed, even in such an [abnormal] situation, the one submits himself, in a sense, to the other; as I have remarked above. Counsel, on the other hand, passes essentially between equals; and if it implies a certain pre-eminence on the part of the counsellor, that pre-eminence is one of wisdom only, not of power. But law essentially proceeds from a superior with respect to an inferior; and this is indicated by the definition under discussion. Accordingly, counsel is in this way sufficiently excluded from partaking of the nature of law. Furthermore, the kind of ordinance in question should be interpreted as being an efficacious ordinance that has compulsory force, as Aristotle declared; and this specification would seem to be laid down in the word ‘promulgated’, since true promulgation apparently does not pertain to counsel. For the word promulgation implies an order for the purpose of creating an obligation, and it is in this respect most of all that counsel differs from law.

      5. Another objection. Finally, there would seem to be [another] objection to this same definition of law, namely: the fact that it is possible that a

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      prelate may, in accordance with right reason, and by making his will sufficiently clear to the community, order those subject to him to execute a given act; and that [in so doing] he will nevertheless not be making a law, since [his order] does not involve a perpetual and stable precept, such as is requisite, according to what we have said, to the nature of law; so that the entire definition given above is applicable [, it would seem,] to precepts promulgated for a community, even when they have been enjoined only for a day.

      Solution. To this objection, I reply briefly that either St. Thomas understood ‘law’ in the broader sense, including thereunder every precept of this sort; or else, the first part of the definition should, indeed, be so interpreted that the phrase ‘an ordinance of the reason’ is made to refer solely to ordinances that are stable and enduring.

      The definition laid down by the author. Therefore, law may perhaps be more briefly defined as follows: law ‘is a common, just and stable precept, which has been sufficiently promulgated’. For this generic definition has also been laid down by St. Thomas (qu. 96, art. 1, ad 2 [I.–II, qu. 96, art. 4]) and by the jurist [Papinian] (Digest, I. iii. 1); and by means of that definition, particular precepts are excluded, while by means of the remaining terms, all those elements are provided for which can be desired in the case of law, as is easily apparent to any one who reflects upon the remarks made above.

CHAPTER XVIII

      Are All Men in This Life Subject to Law and Bound by It?

      1. We have said that the chief effect of law consists in its binding power,1 and that all its other effects have their roots in that one alone. Binding power, however, must of necessity relate to some one on whom it is imposed; and therefore, in order to provide a perfectly clear understanding

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      of this effect, it is necessary to explain what persons fall under the binding power of law, or are capable of so doing. For although we have already demonstrated that law is established for men, and for men considered in common—that is to say, established for some community—still, we have not explained whether all men are capable of being subject to this obligation, or whether some are (so to speak) exempt.

      This question has been discussed by St. Thomas (I.–II, qu. 96, art. 5), in special relation to human law; for he may have thought the discussion unnecessary with respect to law in general, in view of the fact that absolutely all adult human beings in this life (for of such are we speaking) are most clearly subject to some law.

      However, the heretics of the present age force us to deal generally, at this point, with the said question. In the course of this investigation, we are not asking what men are bound by positive laws—divine or human; nor even what men are bound by the natural law. For these are points to which we shall later2 give special consideration. Much less, then, do we inquire whether all men are bound by all laws, since it is clear that every individual is not bound by each and every law. For such a state of affairs, in so far as concerns positive laws, is neither necessary nor possible; as is self-evident. Therefore, we inquire solely whether the binding force of law, as such, or of some particular law, considered abstractly or in itself alone, extends to all men in such a way that there is no one of them not subject to the yoke of some law.

      2. The heretics exempt all just men from [the yoke of] law. For the heretics of the present age hold that just3 men are exempt from the yoke of law; nor are they speaking СКАЧАТЬ