Selections from Three Works. Francisco Suárez

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СКАЧАТЬ are bound by its laws, 462; Another opinion: laws bind aliens who have established quasi-domicile but not transients, 462–463; The accepted opinion: while he remains in the state the alien is bound in conscience by its laws, 463; Laws made for general welfare and must therefore have general application, 463–464; Alien is held, by sojourning in state, to manifest submission to its laws, 464; This doctrine applicable to religious persons who are guests in alien provinces, 465; Why aliens in a state are bound by its laws, 466–467; Whether a state may frame laws binding only upon aliens, 467; Whether a law is binding, as to its coercive force, on aliens temporarily in the state, 467; Suárez replies in affirmative, with certain limitations, 469–470; Difference between law and precept—view of Panormitanus rejected, 470–472; Difference explained by Suárez, 472–473; Alien sojourning in a state must observe the forms prescribed by its laws for legal acts, 473–474; Alien’s obligation with respect to taxes, 474–475.

      [Bk. III, chap. XXXIV; Bks. IV and V omitted from these Selections.]

       BOOK VI: ON THE INTERPRETATION, CESSATION, AND CHANGE OF HUMAN LAWS

      [Chapters I–VIII omitted from these Selections.]

       IX. Are There Occasions When a Law, as a Whole, Automatically Ceases to Exist, with the Cessation of Its Cause?

      Since law is essentially perpetual and enacted for the sake of the community, it can cease to exist only through a change in its object, 477; Contrary and

      [print edition page xxxviii]

      negative cessation of law, 479; Validity of law destroyed by change giving it contrary effect, 479–480; Need for evidence of such change with contrary effect before law can lose its force, 480–481; Arguments that law does not lapse when reason for law ceases to exist in a negative sense, 481–482; General opinion that when reason for law disappears, even in a negative sense, the law also ceases, 482; Whether the prince is bound to formally abrogate such law, 483–484; Suárez’s view: proclamation of cessation of law necessary, 485; Subject-matter of human law is essentially either of a righteous or a neutral character, 485–486; Law prescribing an intrinsically virtuous act does not cease to exist on disappearance of merely extrinsic end, 486–488; Law ceases when adequate end of law, both extrinsic and intrinsic, ceases to exist, 488–489; Difference between precept and law in this respect, 489; Law prescribing act of a neutral character ceases upon cessation of extrinsic end, 489; No decree of prince necessary to publish cessation of such law, 491–492; A distinction between a law enacted to avoid ills that follow a given fact and a law enacted for the sake of positive good, 492–494; A further distinction regarding reasons for prohibiting certain acts, 494; When the obligation of fraternal correction lapses, 495–496; Difference between cessation of law in general and in particular, with answers to arguments previously cited on cessation of reason of law in a negative sense, 497–498; Cessation of part of a law, 498–499; Limited cause of cessation produces a limited effect, 499.

      [Chapters X–XXVII omitted from these Selections.]

       BOOK VII: OF UNWRITTEN LAW WHICH IS CALLED CUSTOM

       INTRODUCTION

       I. The Definition of Custom, Usage or General Conduct, Forum, and Stylus, and How Each Differs from Written Law

      Isidore’s definition of custom, 502; Difficulties regarding this definition, 502; Usus, mos, consuetudo, 503; Definition of usus, 503; Definition of mos, 504; Mos found in free actions only, 504; Distinction between mos and usus, 505; Custom resides in frequency of acts, 505; Two elements of custom: frequency of acts (formal custom), after-effects of repeated acts (habit, consuetudinary law), 506; Definition of custom of law and custom of fact, 507; Various definitions of custom in its relation to law, 507–510; Difference between custom and prescription, 511–513.

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       II. Does Custom Always Introduce Unwritten Law, and Is the Definition Given Complete?

      A doubt regarding a phrase in Isidore’s definition relating to custom as unwritten law, 513–514; Consuetudinary law is unwritten and commonly introduced in default of law, 514; Custom formally reduced to writing by one in authority to establish law becomes written law, 515; Custom retains its force until abolished by written law, 515–516; Relation of custom to existing written law, 516; Custom in derogation from written law, 517; The element of consent in establishing custom as implied in Isidore’s definition, 518.

       III. Of the Varieties of Custom, and Whether It Includes Forum and Stylus

      Two kinds of custom: that concerning persons, and that concerning human acts, 519; An explanation of this division which Suárez rejects, 519–522; His own explanation requires consideration of the two kinds of custom in relation to their purpose, 522–524; Another division: custom founded on human acts classified as universal, public or private, 524; Universal custom includes ius gentium, 524; Is to be excluded from this discussion, 524–525; Ecclesiastical traditions included under universal custom, 525; Private custom cannot institute law and is also excluded, 526–527; Public custom only is capable of introducing law, 527; Kinds of public custom, 528–529.

       IV. Of a Third Division of Custom: That Which Is in Accordance with Law; That Which Is outside Law; and That Which Is Contrary to Law: and of Certain Points of Ecclesiastical Traditions

      This threefold division of custom may be applied to three kinds of law: natural, positive, and human, 529; Custom and natural law, 530; Custom contrary to law of nature has no legal effect, 531–532; Parts of ius gentium may be abrogated by custom, 532–533; Ius gentium cannot be abolished as a whole, 533; The possibility of creating customs or laws derogating from the ius gentium, 533; Triple division of custom applied to positive divine law, 534–535; Unwritten traditions of Church classed as custom in accord with divine law, 535; Distinction between tradition and custom, 535; Custom may emanate from unwritten divine law, 536; Ecclesiastical customs, 537–538; Custom contrary to divine law, 538; Custom of observing human law is merely custom of fact and does not introduce consuetudinary law, 540; Such a custom may confirm or interpret law, 541; Whether it may extend law, 542.

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       V. Of the Various Divisions of Custom on the Basis of Subject-Matter

      Custom distinguished as canonical or civil, 543; Objection to this division and Suárez’s reply, 543–544; Division of custom into: style, general conduct, rite and forum, 544; Meaning of term ‘style’, 544; Style of fact and of law, 545; Effects of style, 546; Laws of style and their nature, 547; Rite defined, 547–548; Rite of fact and of law, 548; Meaning of term ‘forum’, 548–549; Difference between forum and style, 549; Forum as both custom and law, 550–551; Division of custom into positive and negative, 551–553.

       VI. What Is a Good and Reasonable Custom and What Is an Evil and Unreasonable One

      Good and bad customs, 553; Bad custom is one of fact, not of law, 553; Custom may be good or bad either absolutely or objectively, 554–555; Different kinds of bad custom and their legal effects, 555–556; Opinions of Navarrus and others as to what constitutes reasonable and unreasonable custom, 556–558; Suárez rejects these opinions, 558–563; His conclusion that the division of custom into good and bad differs from its division into reasonable and unreasonable, 563–564; Various methods and factors for judging the reasonableness or unreasonableness of custom, 564–566; Rule suggested to determine reasonableness of custom, 566–567.

       VII. What Sort of Custom Is or Is Not Condemned in Law

      Custom condemned by law ought to be declared СКАЧАТЬ