Selections from Three Works. Francisco Suárez
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act of judgment is now the law (so to speak) as it exists in the subject himself.
In this connexion, to be sure, there has occurred a question as to whether in the case of these positive laws, there is sometimes required on the part of the subjects an act of the will that accepts the law. However, this point should be discussed in relation to human laws, to which it is pertinent. For the present, let us consider it a certainty that such an act is not a requisite for the essential principle of the law as such, and possibly not for any law, unless it be on account of some defect of power in the lawmaker. Accordingly, with regard to this aspect of law, nothing further of a general nature need be said. For the special difficulty which may arise from it, in connexion with natural law, will be better dealt with, in the following Book.
6. Acts of the intellect and of the will are necessary for the making of law. There remains, then, the matter of the law as it exists in the lawmaker himself. With respect to this phase of the question, it is certain, to begin with, that both the intellect and the will intervene in the making of law. But it is necessary to explain what acts are involved in connexion with that process.
In the first place, law, in so far as it is externally imposed upon the subjects, is a species of means for securing their welfare and peace or happiness. And therefore, one may assume first of all that the will of the lawmaker includes the purpose of promoting the common welfare, or the good government of the subjects. From this purpose there follows forthwith in the intellect a consideration of this or that [possible] law, as to which of them is just, or suitable for the commonwealth. These two acts are seen to occur successively and with ratiocination, in men; but in God, without imperfection, as a simple act in the order of reason.
How many acts are proximately necessary in the intellect and the will for the making of law? However, the said acts intervene only remotely in the making of law, and therefore it would seem clear that the essence of the law is not found in them.
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It appears, then, that after these acts are performed, there is direct intervention, on the part of the intellect, by an act of judgment through which the lawmaker decides and decrees that a given provision is advisable for the commonwealth, and that it is expedient that this provision should be observed by all. This fact is manifest since, without such an act of judgment, the law could not be prudently and rationally enacted; and it is part of the character of law that it shall be just and, consequently, prudent. For prudence5 commands, as St. Thomas (II.–II, qu. 47, art. 8) teaches, citing Aristotle (Ethics, Bk. VI, chaps. x et seq. [chaps. v et seq.]). Wherefore, just as in the case of each private person there is required a prudence that serves for the right direction of individual acts, whether with respect to himself or with respect to another private person, so, in the case of a prince, there is required a prudence that is political; that is to say, one that is constructive in relation to the building of laws, in accordance with the passage in Proverbs (Chap. viii [, v. 15]) where Wisdom says: ‘By me kings reign, and lawgivers decree just things.’ The teaching of St. Thomas (II.–II, qu. 50, art. 1), together with that of Aristotle (Politics, Bk. III, chap. iii [chap. vii]), on this point, is also excellent.
7. Secondly, it is certain that there is required, in addition to this act of judgment, an act on the part of the will, by which the prince agrees, chooses, and wills that his subjects shall be obedient to that which his intellect has judged expedient. On this point all the Doctors, too, are in agreement, at least with regard to positive laws; a fact which we shall demonstrate in the next Chapter. Moreover, the reason in support of the point is, briefly, this: law does not merely enlighten, but also provides motive force and impels; and, in intellectual processes, the primary faculty for moving to action is the will.
Some one, to be sure, may ask: ‘And what is this act of will?’ There is, indeed, cause for doubt since simple or inefficacious willing6 is insufficient. For God possesses such a will with regard even to those things which He counsels but does not prescribe; and among men, although a superior
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might in this sense desire that something should be done by a subject, and might inform the latter of this desire, that would not suffice to constitute a command. On the other hand, an efficacious will would not seem to be necessary; for God does not possess this sort of will with respect to all things prescribed by Him. If He did, all these precepts would be executed, since His efficacious will would infallibly be fulfilled.
8. What efficacy of act is requisite in willing, in order to set up a law. The reply [to the doubt above set forth] is that there is a necessity for some act of an efficacious will, a will which in God is that of His good pleasure,7 as is proved by the argument first set forth; but it is not necessary that this willing should relate to the observance or execution of a law, since execution is a thing which follows later, as is also proved by the last argument adduced. Accordingly, it is inherently necessary that [the said act of will] should relate to an obligation imposed on the subjects; in other words, that it should be a will to bind the subjects; for without such a will, [the act] cannot be binding upon them. And this will to bind suffices, in so far as willing is concerned.
The truth of the first assertion is evident, because the obligation is a moral effect, and voluntary on the part of the prince; also, because the acts of agents do not transcend their own intentions; and furthermore because, in accordance with the same reasoning, there can be no vow without the will to bind oneself; wherein [a vow] is like a law, a fact which we have mentioned in another work (Vol. II, De Religione, Treatise VI, bk. 1, chap. ii).8 The second assertion is also clearly true, since we assume that there exists in the lawmaker, the power to bind; and therefore, if he furthermore possesses the will to bind, nothing else can be required, in so far as relates to the will. It may be objected that the will to command is necessary, and that this will suffices even in the absence of the will to bind. I reply that these are not two separate forms of willing, but one and the same form described in different terms, a point which I shall explain below.
9. The will in question may be described in yet another way, as being the will to bring about a given action because that action is necessary to
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the preservation of equity or the mean in a particular matter of virtue. For the will of a superior has this moral efficacy, namely, that it can lay a binding obligation upon his subjects, and make that a requisite matter for virtue, which was not in itself essential; as, for example, when it makes fasting on a certain day necessary for the mean of temperance. For though this fast is not always necessary to the observance of the law, nevertheless, when it shall be necessary, [the imposition of such a restriction] does not exceed the power of the lawmaker.
This, then, is the correct explanation of the object with which the efficacious will of the legislator is concerned. For, even though that object may be moral rather than physical, the efficacious will may be exercised with respect to it; and not only the human will, but also the divine, as I have elsewhere expressly said9 and as I shall later repeat in the treatise on grace.10
In this connexion, indeed, there was a special difficulty in regard to the natural law; but this point will be treated to better advantage in the following Book.
10. The act of the intellect which some persons call intimation is not a requisite for the making of law. The sole remaining question is whether or not, subsequently to the acts of the intellect and of the will already mentioned, some other act on the part of the legislator himself is a requisite for the making of law. For many persons believe that an additional act of the intellect is indeed necessary, one to which they give the name of intimation, explanation or notification of the will of the superior with respect to the inferior; because this act, such persons say, involves the real essence of command and may be expressed in the phrase, ‘Do this’, so that, as I shall point out below, they find the real essence of law in the said act. The basis of their opinion, moreover, is their belief that in every moral operation the act in question is necessary, after the election [by the will] in respect to execution. Aristotle, too, touched upon this view, in declaring (Ethics, Bk. VI [, chap. v]) that to command was the most perfect act of prudence. St. Thomas did likewise (I.–II, qu. 17, art. 1) when he taught that the act of commanding is an act of the intellect.