Selections from Three Works. Francisco Suárez
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I hold, indeed, speaking generally of command over the personal acts and powers of the person himself who exercises the command, that there is no necessity for an act of the intellect directed immediately toward the executory power, subsequently to the choice, or act of willing, by which one definitely and effectively wills to perform some external act, with all the special accompanying conditions required for action in view of the circumstances and the executive power. I go further, and hold that such an act [of the intellect] is not even possible. For the executory power is not aware of the force of the command; and solely the placing of the object before the will, not the application of the power to the act, pertains to the intellect. To the will pertains the subsequent application of the other powers in actual use. This is the more common opinion, one which I derive from St. Thomas (I.–II, qu. 17) and from the authors to whom I shall refer in the following Chapter. I have touched upon the same matter more frequently, and at sufficient length, elsewhere (Tract. De Praedestinatione, Bk. I, chaps. xvi and xvii and De Religione, Tr. IV, bk. 1, chap. i and Tr. VI, bk. 1, chap. xii).11
12. This doctrine having been laid down with respect to each person’s command over himself, it is still needful to state that, with respect to the command of one person over another, the only necessary requisite, following the act of will on the part of the lawmaker which I have explained above,12 is that the lawmaker should manifest, indicate or intimate this decree and judgment of his, to the subjects to whom the law itself relates. For this is essential, since if he did not do so, the will of the prince could not be binding upon his subject, inasmuch as it would not be made known to that subject, a point which we shall discuss more fully when we treat of promulgation.13 It is clear, moreover, that this [act on the part of the lawgiver] suffices, since the will of the prince is of itself efficacious. For that will is derived from a sufficient authority and is, so we assume, accompanied by an absolute and binding decree; consequently, if the said will is adequately revealed to the subject, it effects that which is willed;
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hence, it establishes an obligation; the law is accordingly consummated; and therefore, nothing further is necessary. This argument will stand out more clearly in the light of the statements to be made in the following Chapter.
13. It is clear, however, that such instruction as to [the lawgiver’s] intention14 consists of some utterance, the term ‘utterance’ being understood to include any indication or manifestation whatsoever, given to another person, of an internal act. That utterance, indeed, properly considered with special reference to its relation to a creature, is effected by means of an act which passes on and is finally received in some way into the person to whom the utterance is addressed; a fact which is manifestly true in the case of human interrelations, and which I believe to be true, among the angels, also, in a sense appropriate to them. For if the one who speaks, causes no impression on the one to whom he speaks, the former will not be making his thought manifest to the latter.
Moreover, the same is true with respect to God in relation to His creatures. For God gave no intimation to Adam of His will concerning abstention from eating of the tree of life, save through some revelation made to Adam himself; and if God makes manifest in the Word, to one of the blessed, that which He wishes to be done, the very vision of the Word in the blessed has the force of an utterance and intimation from God, concerning the precept in question.
The utterance directed by the creature to God, however, involves another principle, of which I have spoken elsewhere ([De Religione, ubi] de Oratione, loc. cit.),15 but which is not pertinent here, since the creature cannot give commands to God.
14. In addition to the acts enumerated, an act of the intellect for communicating with the subject is required. Thus, from the foregoing, I conclude that, subsequently to the above-mentioned16 act of the will, there is required of the lawmaker only an act of the intellect which will be needed in order to communicate a given matter or decree to the subject.
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And, in consequence, there may be a necessity for a new act of the will to produce some sign which will make manifest the previous act of the will. Just as we are required to have an understanding of the words which we are about to utter, and a will to move our tongues, so also in due proportion it is required that the prince shall conceive, through his intellect, a way to effect an intimation of the law, and that he shall, through his will, choose to execute this intimation. The foregoing statement may in due proportion be applied with respect to God; for it is thus that He executes this intimation, even as He executes His other effects.
Finally, one may also infer that there takes place within the legislator, and subsequently to the aforesaid act of the will, a new act of the intellect, by which the legislator perceives his own will; just as we understand that there is in God, subsequently to His act of willing, that knowledge which is called the knowledge of vision.17 Thus it also results that the lawgiver, after having knowledge of his law, exercises judgment as to its subject-matter in yet another manner than that which he formerly employed; for at first, he judged18 it only as being suitable matter for his command, whereas afterwards he judged it as being necessary to moral rectitude, by virtue of his decree. All of which is so manifest that it requires no new proof. We shall speak in the following Chapter, however, of the way in which these elements concur to make law and, accordingly, of the act on which law is founded.
CHAPTER V
Is Law an Act of the Intellect or of the Will? And What Is the Nature of This Act?
1. The first opinion: law is held to be an act of the intellect. In the light of the assumptions which I have made in the previous Chapter, the question will turn almost entirely upon a manner of speaking. Nevertheless, it
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should be briefly discussed, because of the variety of opinions on this subject.
According to the first opinion, then, law is an act of the intellect. This is the view held by St. Thomas (I.–II, qu. 90, art. 1); and Vincent de Beauvais (Speculum Morale, Bk. V, pt. II, dist. 1), often speaks thus in his discussion of the matter. The same opinion is adopted by the Thomists, Cajetan, Conrad Koellin, and others (thereon and on I.–II, qu. 17; qu. 58, art. 4; qu. 60, art. 1). Mention should also be made of Soto (De Iustitia et Iure, Bk. I, qu. i, art. 1), Torquemada (on Decretum, Pt. I, dist. III, can. iii), Alexander of Hales ([Summa,] Pt. III, qu. xxvi, ad primum), Richard Middleton (on the Sentences, Bk. III, dist. xxxiii, art. 2, qu. 6, ad 3), Antoninus ([Summa,] Pt. II, tit. IV, chap. x [Pt. I, tit. xi, chap. ii]), William of Paris (Tr. De Legibus), and Corduba (Bk. II, Quaestionarium Theologicum, qu. 10). Moreover, the opinion in question is wont to be proved, first, by the argument that the Scriptures, as well as the Fathers, philosophers and jurisconsults, assign law to the reason, or to wisdom. For example, in Proverbs (Chap. viii [, v. 15]), Wisdom declares: ‘By me […] lawgivers decree just things.’ So, also, Clement of Alexandria (Stromata, Bk. I [, chap. xxv], not far from the end), declares that law is good opinion and that good opinion is that which is true. Moreover, he adds: ‘Consequently, certain persons have said law is right reason, which prescribes those things that should be done, and prohibits those that should not be done.’ Again, Basil (On Isaias, Chap. viii, in vv. 19–22) says: ‘Law is a teacher and instructress’ (doctrix & magistra).1 Joannes Damascenus (De Fide Orthodoxa, Bk. IV, chap. xxiii [chap. xxii]) has also attributed to law the function of teaching.
2. Furthermore, Plato (Dialogue, Minos, or On Law, at the beginning [314 C D]) calls law, ‘the upright opinion of the state’, that is to say, the true opinion. And later, he asserts that law is ‘the operation of truth’. Aristotle (De Sophisticis Elenchis, Bk. I, chap. xii, at the end) has likewise said that law is ‘the opinion of the multitude’. Again, in the Letter to Alexander, preceding the Rhetoric to Alexander,2 he defines law as the ‘utterance of a command, with the common consent of the state, etc.’ And in a closely
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following passage (Rhetoric, Chap. i), he says: ‘Law is the common consent of the state, a consent which prescribes in writing the way in which each act is to be performed.’ In this passage, Aristotle also embodies law as bidding and precept; although frequently, in other passages, he nevertheless attributes the function of commanding to reason and to