Selections from Three Works. Francisco Suárez

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      Ius gentium an intermediate form between natural and human law, 374; Meanings of word ius explained, 374; Divisions of ius: natural law, ius

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      gentium and civil law, 375–376; First opinion: that of jurists who distinguish natural law from ius gentium, in that former relates to brutes, the latter to mankind, 376–377; Authorities who disagree with this opinion, 378; Arguments for and against the first opinion, 378–381; Second opinion: which distinguishes ius gentium from natural law on ground that latter reveals itself without reflection, the reverse being true of ius gentium, 381; Rejection of this opinion by Suárez, 381–382; Third opinion: which distinguishes natural law as binding independently of human authority, this not being true of ius gentium, 382; Suárez’s rejection of this opinion, 383–384; Suárez’s view of relation between ius gentium and natural law, 384.

       XVIII. Does the Ius Gentium Command or Forbid a Given Act; or Does It Merely Concede or Permit?

      Opinion that ius gentium may be distinguished from natural law as having concessive but not preceptive characteristics, 384; This opinion rejected by Suárez, 385–386; Relation of ius gentium to natural reason and human society, 386; Examples to illustrate this point, 387; Distinction between concessive and preceptive law as applied to ius gentium and natural law not valid, 388; Proof by means of Isidore’s examples of ius gentium, 388–390; Suárez further refutes the distinction, 390; Additional proof from examples of Isidore, 391–393; Suárez’s conclusion, 393.

       XIX. Can the Ius Gentium Be Distinguished from Natural Law as Simply as Positive Human Law?

      The ius gentium essentially distinct from natural law, 393; In what respect ius gentium and natural law agree, 393–394; In what they differ, 394–395; Ius gentium termed positive and human in absolute sense, 395–398; Difference between ius gentium and civil law set forth by Suárez, 398; Similarity of opinion of Justinian on this point, 399; Isidore’s definition of ius gentium, and examples, 399–400; Twofold form of ius gentium, 401; Examples of first kind (i.e. law of nations), 401–402; All states members of universal society, 402; Second kind of ius gentium (common civil law), 404; examples of this second kind, 405.

       XX. Corollaries from the Doctrines Set Forth Above; and in What Way the Ius Gentium Is Both Just and Subject to Change

      How the ius gentium is common to all nations although it is not natural law, 405; St. Thomas’s assertion: precepts of ius gentium are

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      conclusions drawn from principles of natural law, 406–407; True equity and justice to be observed in ius gentium, 407; An important difference between ius gentium and natural law, 407–408; An objection based on the Digest, 408–410; Ius gentium may be changed by the consent of men, 410; By whom and in what manner it may be changed, 410–412; Difference in this respect between ius gentium and civil law, 412–413.

       BOOK III: ON POSITIVE HUMAN LAW AS SUCH, AND AS IT MAY BE VIEWED IN PURE HUMAN NATURE, A PHASE OF LAW WHICH IS ALSO CALLED CIVIL

       INTRODUCTION

      Relative position of human law, 415; Division of human law into common law and particular law of a single community, 416; Latter subdivided into civil and canon law, 416.

       I. Does Man Possess the Power to Make Laws?

      Whether men are able to command other men and bind them by human laws, 417; Affirmative conclusion: civil magistracy with temporal power for human government is just and in harmony with human nature, 418; This conclusion based upon the principle that man is a social animal and desires to live in a community, 419–421; And upon a second principle that a power of governing must exist in a community, 421–422; Necessity of some principle whose function is to provide for and seek after common good of community, 422; Second conclusion: supreme human magistracy has power to make laws proper to its sphere, 422–423; Corollary: power to make human laws is vested in supreme magistrate of state, 423; Relation of jurisdiction to the lawmaking power, 424–426; Political subjection is consistent with natural law and reason, and this is not disproved by existence of tyranny, 426; Human principates did not originate with nature but are not contrary to nature or to Scriptures, 427–428.

       II. In What Men Does This Power to Make Human Laws Reside Directly, by the Very Nature of Things?

      Power to make human laws dwells either in individual men or in whole body of mankind, 429; Opinion that legislative power resides in supreme

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      prince by divine conferment is rejected, 430; Opinion of Suárez: since men are born free, this power must reside in the whole body of mankind, 430; Adam possessed domestic, not political power, 431; The non-political multitude contrasted with the political body which needs and possesses the power of government, 432; Suárez rejects the idea of a world state in view of the division of mankind into various states each with its ruler, 433; Introduction of precepts of ius gentium in relations of these states, 434.

       III. Has the Power of Making Human Laws Been Given to Men Immediately by God as the Author of Nature?

      Reason for doubt on this question, 435; True opinion: power is given immediately by God, 436; This power embraces acts and purposes which transcend human authority, 436–437; How this power is conferred upon men, 437; It manifests itself in duly constituted political bodies, 438–439; It is not immutably vested in such bodies, 439–441.

       IV. Corollaries from the Doctrine Set Forth Above

      First inference: the power in question is in an absolute sense an effect of natural law, but its specific form is dependent on human choice, 441; Of the three forms of political government Suárez favours monarchy, 442–443; Second inference: civil power, though residing in a prince, flows from people as a community, 443; Civil power is lodged immediately in community, 443; The various titles to monarchical power, 443–445; Relation of royal power to the divine will and to human law, 446–447; Third inference: no civil laws are established universally for the whole world and binding on all men, 447–448; Fourth inference: regarding ways in which the lawmaking power is imparted, 449–450; Ordinary or delegated power, 450; What power is capable of being delegated, 450; Distinction between delegation of power by community and by prince made by Bartolus, 451–452; What power is incapable of being delegated, 452.

      [Chapters V–XXXI omitted from these Selections.]

       XXXII. Are the Laws Peculiar to Some Kingdom or Domain Binding on the Men of That Domain, When They Are Dwelling outside Its Territorial Limits?

      Various phases of residence and domicile, 453; Whether permanent inhabitant of a state dwelling abroad must obey its laws, 453–454; No

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      law is binding outside the limits of the territory of a superior by whom it is decreed, 454–455; Prince cannot make laws which are valid outside his jurisdiction, 456–457; Punishment of extraterritorial crimes, 457–459; Status of subject resident abroad, 459; When a law may have effect outside the limits of a state, 459–460; Enclaves are ordinarily outside the jurisdiction of enclosing state, 460.

       XXXIII. Are the Laws Peculiar to Some Domain Strictly Binding upon Aliens While They Are Living Within that Domain?

      Three elements to be distinguished in every law: binding force with respect to conscience, СКАЧАТЬ