Selections from Three Works. Francisco Suárez
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commonwealth of the Church as civil laws, in the temporal commonwealth.
21. From the foregoing divisions, then, the variety, necessity, and manifold constitution of law become sufficiently evident.
To these divisions, there are frequently added others, which are either doubtful or of [only] apparent importance, and over which, therefore, we need not for the present linger, since they will be better touched upon in their proper places. Of such sort is the division of law into instructive (ostendens) and mandatory (praecipiens), of which we shall speak in a subsequent Book, and one which may perhaps be an unnecessary classification. Again, there is another general division of law, into affirmative and negative, the former prescribing what should be done, the latter opposing or prohibiting what should be avoided. These two forms of law are manifested in all those which we have enumerated; for they differ only in the subject-matter of what is prescribed, which is to do or not to do, so that there is consequently a certain difference in their modes of binding. Of this difference, we shall treat more properly in Chapter Thirteen.21 Next, one may add the divisions of human law into penal and non-penal, and into the merely prohibitory, and that which annuls; terms which are familiar enough. Concerning the actual concepts involved, however, special discussions will be undertaken in the later pages of the work. Finally, it may seem that the ius gentium has been omitted from the number of the divisions mentioned; but in Chapter Eight of the next Book,22 we shall explain how that body of law is included within the forms above-mentioned.
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CHAPTER IV
What Acts in the Mind of the Lawmaker Are Necessary for the Making of a Law?
1. The points with which we have so far dealt relate only to the determination of the question of whether or not law exists. Moreover, we have demonstrated the necessity as well as the existence, not of one law only, but of various kinds or species of laws. We have explained the names of these species, and their rational bases, in order that our discussion of the subject may be clear and expeditious.
We should examine next the question, ‘What is law?’ Of this question, we shall treat in an abstract and general manner, postponing for the appropriate places, the difficulties arising in the case of particular laws. Moreover, we shall speak always from a human standpoint and in accordance with our own [human] mode of conception; yet we shall have to apply certain expressions to the divine law, or mind, excluding imperfections.
In this Chapter, then, and in the Chapter that follows, we shall discuss the genus under which law is comprehended; and later we shall inquire into the specific differences within that genus.
2. Law pertains to the intellectual nature. Thus we assume, first, that law is a thing which pertains to the intellectual nature as such, and accordingly, to the mind thereof; both intellect and will being included under the term ‘mind’, for it is with that understanding that I am now speaking. The truth of this assumption is sufficiently evident in itself, since law implies a moral relation to the performance of a given action, and since no aspect of nature save the intellectual is capable of such a relation. Moreover, properly speaking, only those who have the use of intellect and reason are governed by law, or are capable of being so governed; and therefore, it is still far more necessary that there be a mind in one who is to govern by means of laws. Law, then, is a thing that pertains to the mind. Furthermore, if it is said, by an extension of terms, that God conceives a given law for natural or irrational things, that is the case only in so far as things lacking intellect are in need of a superior governing mind, in order that the work of nature may be a work of intelligence; and thus from every standpoint, law must be related to mind. Such has been the concept of law entertained by all
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the wise, even by the philosophers, as is evident from the passages cited in our preceding Chapters from the works of Plato, Aristotle, and Cicero.
3. Law is based, not upon a habit, but upon an act. Secondly, I assume that law—properly speaking, and especially in so far as it exists in the lawgiver—is based upon a concrete act, and not upon a habit or power. This is clearly true, because that which is called law has the virtue of proximately moving its subjects and imposing an obligation upon them; but this virtue does not exist in potency or habit, save basically and remotely; therefore, it must exist in some act. Moreover, commanding, ordering and similar functions imply an act; and such functions are discharged through law, either formally, or (as it were) through a moral activity; hence, law consists in an act.
However, in order that we may explain what this act is, it will first be necessary to enumerate all the acts which may concur to make laws, and to describe the sequence or order of these acts. For they may be either interior, and elicited by the intellect or the will; or exterior, and prescribed; and all of them are necessary for the ultimate effectiveness of the law.1
4. Concerning the subject [or state] with respect to which the law may exist. For the clarification of this point, I shall note, thirdly, that law may be considered from a threefold standpoint, with respect to its state or subject. First, it may be considered as it is in the lawmaker himself; in which sense, as we were saying above,2 law is conceived in the mind of God from eternity. Secondly, law may be considered as it exists in the subjects on whom the law is imposed; from which standpoint, it is customarily said that the law of nature has been instilled into the minds of men. Thirdly, it may be considered as it is in some different symbolic manifestation (signum), or some other external materialization (materia exterior); for example, in writing or even in a spoken word that declares the will of a superior.
As to law when considered with respect to the two latter states, no difficulty can arise. For law, taken in the third sense, consists formally in some external act, by means of which the lawgiver makes known his thought;
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such an act as speech is among men, or writing. Thus Aristotle (Ethics, Bk. X, chap. ix [, no. 12]) has said that, ‘law […] is a rule, emanating from a certain wisdom and intelligence’. Gabriel, too (on the Sentences, Bk. III, dist. xxxvii), defines law as a sign making sufficiently manifest the will or the thought of the prince. I have said, indeed, that this sign is an activity or act, including the term of duration of the said act, when the latter is permanent and embodies perfectly the character of a sign. For written law is accordingly called law, not only when it is at the time put into writing, but in so far as the term of that writing is permanent and indicates always the thought of the prince. Similarly, if a law is handed down merely by [the spoken] word, and even though the audible word passes away, then, in so far as this word endures in human memory, the law is said to be sufficiently enduring. For it is thus that unwritten law is sometimes preserved through tradition. In like manner, custom, too, may at times attain the force of law, as we shall see below.3
No other difficulty arises with regard to this category of law, except in connexion with the promulgation of law, a point of which we shall treat later.4
5. Law in the subject resides solely in an act of the mind. Furthermore, with respect to law as it may exist in its human subject, such law unquestionably consists in an act of the mind, and of itself requires only a judgment by the intellect and not an act of the will, since an act of the will is necessary to the observance or execution of the law but not to its existence. For law precedes the will of the subject and is binding upon that will; whereas an act of the intellect is necessary in order that the law itself may thereby be brought before and into direct contact with the will; and consequently, a judgment by the reason is required. It is in this sense, indeed, that the natural law is commonly spoken of as the natural judgment of the human reason; in so far, that is, as the said law exists in man as in one who is subject to it. Joannes Damascenus, too, speaks in this same manner, saying (De Fide Orthodoxa, Bk. IV, chap. iii [chap. xxii]): ‘The law of God, as it
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draws near to us, enkindling our minds, attracts them to itself and arouses our consciences, which are themselves said to be the law of our minds.’ The same is true, in due proportion, with respect to positive laws. For after they have been enacted, they are applied to each individual through a judgment of the reason, to the extent that what was not necessary per se is judged necessary by virtue of the