Selections from Three Works. Francisco Suárez
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as to the fact that this was Isidore’s meaning [Etymologies, Bk. V, chap. xxi], as is evident from that adversative expression, ‘written for no private benefit but for the common advantage of all’.2 For it is not impossible that a law should be imposed upon the community, yet imposed for private benefit, since tyrannical laws are possessed of both characteristics simultaneously. But Isidore speaks of the two qualities above mentioned as if they were mutually opposed. Therefore, he is not speaking of the community upon which the law is to be imposed, but simply maintains that, on whomsoever it may be laid, the law must be imposed for the common advantage.
It is in this sense, too, that St. Thomas (I.–II, qu. 90, art. 2) has interpreted the statement of Isidore. For, in the body of the article cited the whole argument of St. Thomas tends towards a declaration that the intention of a lawgiver in making a law ought to be directed towards the common good, since the common happiness should be a measure, and as it were, a first principle, by means of which the justice, utility and fitness of a law are measured. Wherefore, he concludes: ‘any other precept in regard to some individual work, must needs be devoid of the nature of a law, save in so far as it regards the common good. Therefore, every law is ordained to the common good.’ In these words St. Thomas would seem to indicate that law may contain precepts of an individual nature, provided that these precepts be related to the final end of law. Moreover, this passage in the
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text under discussion [Decretum, Pt. I, dist. IV, can. ii] was similarly understood by Archidiaconus, Dominicus de Sancto Geminiano, Torquemada and many persons to whom I shall refer in the next Chapter.
5. Secondly, this [first and affirmative] opinion is wont to be proved on the basis of a passage in the Digest (I. iii. 1) in which the statement is made that a law ought to be ‘a common precept’. Nevertheless, the word ‘common’ is also ambiguous; for, as Jason (on that passage, in the beginning [Digest, ibid.]) notes, together with Fulgosius, law may be termed a common precept for three [distinct] reasons: first, because it has been instituted by the common consent or authority; secondly, because it should be common to all; thirdly, on the ground that it serves the common good. However, in the above-cited law of the Digest, it is not stated that the second mode of being common is necessary in an absolute sense to the nature of law, or of a common precept. Wherefore, the Gloss on that passage [Digest, ibid.] refers to these alternative interpretations: ‘[the precept] is common, that is to say, decreed for the common advantage, or given in common to the whole body.’ Thus the first condition will suffice for the essence of law, even without the second.
Thirdly, the opinion in question may be proved from a passage in the Decretals (Bk. I, tit. II, chap. i) which says: ‘Let the statutes of the canons be observed by all’; assuming, consequently, that they should be imposed upon all. This text, however, is greatly weakened by the Gloss on the passage [Decretals, ibid.]; for, to the word ‘canons’, it attaches the comment: ‘general; for some canons are personal, and some are local.’ Consequently, there would seem to be no doubt that the statement in question is to be interpreted with suitable discrimination, that is, interpreted as meaning that the canons are to be observed by all to whom they are addressed, or upon whom they are imposed. But as to whether there are always a number of such persons in the case of each canon, or whether it is possible that there should be a canon constituted for the purpose of binding one person only, that is a point not dealt with in this Gloss.
6. The second opinion, which denies that it is inherent in the nature of law that it should be instituted for some community. Therefore, there may be a second opinion according to which, it is not inherent in the nature of law that it be imposed upon a community or multitude of men, although it
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may for the most part happen that law is thus instituted, since rules of conduct are ordinarily applicable to many persons in common. However, they may at times be constituted for this or that individual.
In behalf of this opinion, we may cite St. Thomas (I.–II, qu. 90, art. 2), in so far as he declares that an individual precept, when related to the common good, assumes the nature of law. Moreover, in the answer to the first objection, he brings out the same idea. And in answering the third objection, he lays down the general rule that a precept which is directed to the common good has the nature of law.
The Gloss (on Digest, I. iii. 1) upholds this view more expressly when it states that the law in question3 does not provide a definition of the term ‘law’, since there is some law that is not common. The same opinion is evident in another Gloss (on Decretals, Bk. I, tit. II, chap. i), wherein a distinction is made between general, and personal canons. Furthermore, this distinction occurs very frequently among the canonists as is clear from the words of Archidiaconus, Dominicus de Sancto Geminiano, and Torquemada (as cited above). The Gloss (on Digest, I. iii. 3) makes this same distinction, when it discriminates between law in general and special law (ius), declaring that the former is imposed upon the multitude, while the latter may be private. Other Glosses (on Code, X. xxxii (xxxi). 61 and 63) contain similar statements. Arguments [in defence of this negative opinion] may be based, first, on the two laws cited above [Code, ibid.]. For they are true laws, and nevertheless, they are decreed for certain special individuals. Secondly, the said opinion would seem to be expressly laid down in a law of the Digest (I. iv. 1, § 2), as follows: ‘Of these (namely, these laws), some are personal.’ Moreover, the same view is set forth in the Institutes (I. ii, § 6, word Plane). A third argument is the fact that the canons also distinguish private from public law, maintaining that the former should be imposed upon private persons, and the latter, upon the community. This we infer from two chapters of the canon law (Decretals, Bk. III, tit. XXXI, chap. xviii; and more extensively, Decretum, Pt. II, causa XIX, qu. ii, can. ii).
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7. This [negative] opinion is confirmed by reasoning. Finally, this [negative] opinion may be confirmed by reasoning. In the first place, it is reasoned that a just precept may be imposed upon a single subject, for the sake of the common good, and by virtue of the power to rule the commonwealth and its individual members; hence, such a precept will be of the same essential nature as a precept imposed upon many or upon all the members of that community; and therefore, it will be a true law. The proof of the first consequent is the fact that, with respect to the essence of a precept, it would seem to be an extraneous circumstance that this precept should be imposed upon one person only, or upon many; just as it is an extraneous circumstance in the case of heat that it should exist in one subject or in many, and extraneous in the case of speech that it should be addressed to one, or to many. The second consequent is proved as follows: the precept in question, if it were imposed upon many, would be law; therefore, it is also [law, when imposed] upon one individual, since it has indeed been proved to be of the same nature [in both instances]. And it can happen that this precept is imposed upon one individual and not upon many persons, owing simply to the fact that the necessity for it is found to exist in only one individual.
Secondly, one may reason thus: law is the rule of the moral actions of man, as has often been said; and not only the human community, but also individual men have need of this rule; therefore, law per se implies a relationship not with the human community, exclusively, but also with individual human beings.
Thirdly, law is made with reference to a person, and consequently with reference to a true person, not less than to a fictitious one; but on the contrary much more so, for a fiction always presupposes the truth which it imitates; and a community is a fictitious person, whereas an individual human being is a true person; therefore, an individual person is not less capable [of being the subject] of law than is a community.
Fourthly, when a law is established for a community, either it binds only the community, as such, or else it binds also the individual members of that community. The first alternative is not necessarily the true one; nor is such ordinarily the situation, as is self-evident. Furthermore, even if it were, then the community would be as an individual person, whence one
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would again conclude that a law may be made with respect to one person only. If, on the other hand, the second alternative is held to be true, from this fact, also, one would infer that it is possible for a law to be made for a single individual, if it