Selections from Three Works. Francisco Suárez
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under such circumstances, an obligation does arise (and this is a debatable point), it results not from the personal will, but from the natural precept whereby every individual is bound to render true that statement which he has called upon God to witness. This fact I have elsewhere (De Religione, Tract. V, bk. II, chap. vii)17 discussed at length.
On the other hand, the obligation imposed by the law cannot arise save from the will of the lawmaker; and therefore, an act of that will is necessary. Thus Gabriel has rightly said (on the Sentences, Bk. III, dist. xxxvii)
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that, howsoever well the will of a superior may be made known, no obligation results unless he wills that his inferior shall be bound by that will. But my assertion18 contained this reservation: ‘unless … there is some ambiguity in the wording.’ For it may not be necessary that the lawmaker should conceive directly and expressly of the obligation of the subject and should be directed toward it by his will, since it may suffice if he intends, for example, to command that a given thing shall be of a given degree of importance, or that a particular act shall be part of the necessary subject-matter of temperance, or if he vaguely intends to command in so far as he is able. But these [modes of willing] involve only slight differences; since every one of them includes the intention to impose a binding obligation, and since [actually] intending not to bind is wholly repugnant to them all, unless the agent is absolutely ignorant of what he wills. And in that case, this ignorance itself would prevent the existence of an entirely true will to bind, or—consequently—of a true law; a point which I made in connexion with the similar matter of vows. In so far as concerns the necessity for such willing, then, this second opinion is undoubtedly the true one.
20. The third opinion: affirming that law is composed of both acts. The arguments which we have advanced in favour of [each of] these opinions, thus seem to indicate that the act of the intellect and that of the will are both necessary for law; so that a third opinion may be held, according to which law is composed and compacted of the acts of both faculties. For in these moral matters, one need not seek a perfect and simple unity; on the contrary, that which is morally a unity, may be composed of many elements that are physically distinct and that are of mutual aid. So it is, then, that for law there are two requisites: impulse and direction, or (so to speak), goodness and truth; that is to say, right judgment concerning the things that should be done and an efficacious will impelling to the performance of those things; and therefore, law may consist of both an act of the will and an act of the intellect.
This opinion, indeed, is usually attributed to Gregory of Rimini (on the Sentences, Bk. I, dist. xlviii [Bk. II, dist. xxxv,] only qu.). Nevertheless, he does not there discuss this matter, nor does he make any other statement
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than that he who acts out of harmony with God’s will and good pleasure, acts in opposition to the eternal law. In this connexion, Gregory cites Augustine’s assertion (Against Faustus, Bk. XXII, chap. xxvii) that the eternal law is the reason or the will of God, an assertion in which Augustine lays down no definite decision [regarding the two faculties]. Gabriel (ibid., Bk. III, dist. xxxvii, only qu., at beginning), more definitely upholds the opinion in question, when, after saying with regard to the external law (that is, with regard to law as it exists in the subject) that it is ‘a true sign making known to the rational creature that right reason which dictates that he is bound, etc.’, he declares that [the said law] ‘is the dictum of him who dictates or binds, etc., for the purpose of indicating that the right reason of the one who commands, together with his will, is the basis of the binding obligation incumbent upon the inferior; that is to say, the force by which the inferior is bound’.19 But the law is the true basis of the obligation; and therefore, Gabriel holds that in the prince himself the law is the reason of the prince combined with his will, and furthermore declares that this will is a will to bind the subject, as he has stated above.
Wherefore, just as free will is wont to be defined as a faculty of the will and of the reason, so law, which is customarily called the free will of the prince, may not improperly be considered an act of each of the two faculties.
21. It may also be added that, although the term law (lex) in its complete and adequate sense embraces both acts, nevertheless, from another standpoint, the act of the will and that of the intellect may each be spoken of as law, under diverse aspects. The words of Augustine in the passage above-cited (Against Faustus) are not out of harmony with this manner of speaking, and the passage is interpreted accordingly. For if one has in mind the moving force in law, so that law is said to be the power in the prince which moves and makes action obligatory, then, in that sense, it is an act of the will. If, on the other hand, we are referring to and considering that force in law which directs us toward what is good and necessary, then law pertains to the intellect. Moreover, it appears to consist in an
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active judgment and—in so far as it exists within the prince—to follow upon, not to precede the will. To be sure, it appears to do so, not after the fashion of an impelling act that is not a judgment (a view which has been sufficiently disproved), but after the fashion of an active judgment in which the prince, having issued his decree, decides that a given act absolutely must be performed by the subjects, to whom the said decree should therefore be made known. For I have in the preceding Chapter expounded the fact that, in the mind of the prince, this judgment follows upon the willing; so that, in this sense, it may be said that the law is written in his mind, which is the source of every external law. The similar judgment which takes place within the subject will be (so to speak) a law derived from that law which exists within the prince.
22. A definite judgment is laid down with regard to the whole controversy. The opinions above set forth are credible, and the one last stated seems sufficiently acceptable, as well as reasonable. However, in order to pass some judgment on the question as a whole, we shall set aside the natural law, and therefore the eternal law, also, [for separate consideration,] since they involve a special difficulty with regard to this very point, namely: whether and in what way they have the true and proper nature of law; a matter of which we shall treat in the following Book.
The present controversy, then, simply concerns law as it is constituted through the will of some superior. With respect to this form of law, it is certain either, that it consists of an act of the reason and an act of the will or, at least, that it assuredly does not exist apart from both of them; in such wise that, if it consists of one of the two only, it is nevertheless intrinsically dependent upon the other. For this fact is proved by all the arguments adduced in support of the first two opinions.
23. From this, indeed, we draw a second inference, namely, that it is not possible to give efficacious proof with regard to the manner of speaking adopted for either of those opinions. For the evidence adduced in support of the first opinion proves merely that law is not made without the guidance of prudence. Therefore, when the philosophers cited in that connexion attribute law to the reason, they refer, not to an act of the intellect resulting in the prince from the will whereby he chooses to bind his subjects, but to a judgment which precedes, directs, and (as it were) regulates that will. For
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the assertion made by them is simply that the will of the prince does not suffice to make law, unless it be a just and upright will; so that it must have its source in an upright and prudent judgment. As to this judgment, it is clearly not law, if it is considered in itself and as prior to the [act of] will. Accordingly, these philosophers call law right reason, having regard to its root; just as Cicero, On Laws (Bk. II, chap. iv), has said that virtue is the right reason of life.20 However, the arguments advanced in defence of this opinion, have been answered in the process of confirming the second opinion. But the evidence adduced in support of the latter merely proves, strictly speaking, that the binding obligation imposed by law is derived from the will of the legislator. For this suffices in order that it may be said that he who observes God’s law is doing God’s will, or acting in accordance with that will; and it suffices also to allow of the converse assertions. However, the arguments set forth in behalf of this opinion are, to my mind, more convincing if we assume that law is that act of the prince which of itself and by its own force creates an obligation and binds the subject. It may, indeed, be objected that the term ‘law’ (lex)