Selections from Three Works. Francisco Suárez
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means of law
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is called by Aristotle (Ethics, Bk. V, chap. i), legitimate or legal justice, as St. Thomas has observed (I.–II, qu. 90, art. 2). Law, then, is a kind of rule establishing or pointing out, in regard to its own subject-matter or the operation with which it is concerned, that mean which is to be preserved for the sake of right and fitting action; and this rule is in itself universal, having relation to all persons, in due proportion; therefore, law is in itself general, and consequently, in order that any law may be law in a true and perfect sense, it must possess this characteristic.
If, on the other hand, there are certain precepts which do not possess it, either they are not laws at all, or else—assuming that they are considered as being laws—they are thus considered to the extent that they do in some wise partake of the said characteristic. We may also add that it pertains to this general or common character of law that the latter shall be instituted universally, without regard for persons and without unjust exceptions, as is indicated in the Decretals (Bk. I, tit. II, chap. vi). Many expressions, too, in the laws there cited would seem to point to the same conclusion, presupposing the existence of the first conditions, or universality of law, and adding this last condition as necessary to the justice of law, a matter concerning which we shall speak a little later.11
13. The contrary opinion is refuted by means of arguments. However, the foregoing explanation may be expanded by answering the arguments which have been advanced [to the contrary].
Of these, the arguments first set forth are easily disposed of. For we admit, with respect to the first, that Isidore and St. Thomas, in the passages cited, did not seek to treat directly of the condition in question; rather, they assumed its existence. Accordingly, the same St. Thomas, when expounding a passage in Aristotle (Commentary on Ethics, Bk. V, chap. i, lect. 2) which he also cites in the article above mentioned [I.–II, qu. 90, art. 2] says, more clearly, that those things are called legally just, which are productive of happiness in relation to the political community for which the law was established. In this passage, he is speaking of human law, but the same reasoning applies, in due proportion, to the remaining forms of law. With respect to the other laws, and the objections brought
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against them, our reply is that, though the words are not in themselves so convincing but that they may be weakened through some interpretation or evasion, nevertheless, when taken in conjunction with different laws and with the interpretations of wise authorities, they possess considerable force for the confirmation of the truth above set forth.
14. We turn, then, to the reply to the later arguments.
First, with respect to St. Thomas, we assert that in the passages cited from his works, he never excludes the condition which we are discussing, and that he speaks of the individual precept not in relation to the person upon whom it is imposed but in relation to the particular deed with regard to which it is established. As to this deed, he declares that it must contribute to the common good, and that, if the precept laid down for the deed does possess this quality, it will have the nature of law—provided, at least, that it possesses the other characteristics required for law.
With respect to the Gloss, however, and the remarks of other Doctors therein cited, our reply is that these should be interpreted or admitted in accordance with the laws to which those Doctors allude, and that if they intended to convey some other meaning, their opinion is not to be approved. Thus, in regard to the two laws of the Code (X. xxxii. 61 and 63), it is true that in a certain sense they deal with the welfare of private individuals named in them; but nevertheless, in so far as they involve any command, they are instituted not for those individual persons but for the community and for all persons who are subject to the lawmaker, persons whom they bind to the observance of a particular immunity enjoyed by the aforesaid individuals. And in like manner, we shall explain in Book VIII12 that a privilege, although it may seem to be of an individual nature, can have the character of law. I add, furthermore, that in the case of the laws under discussion a favour is granted not only to the individual persons therein named but also to their successors in perpetuity, so that these laws partake of a perpetual and common quality; for the families involved might have constituted a large portion of the community and possibly a portion of the most important group. Accordingly, the laws in question, in spite of the fact that they may appear to be special when viewed in one
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aspect, are in their own way general, even though they are never established save by way of constituting a privilege, as is evident from usage.
15. To the second argument, drawn from law 1 and section 1,13 I reply that laws of privilege are there called personal, being so designated by reason of the proximate advantage toward which they are directed; while they nevertheless do relate to the community in a certain sense, that is, with respect to the persons for whom they lay down a command; a point which we have just explained, and shall discuss more at length when treating of privileges.14
What private law is; and why it is so called.15 The reply to the third argument is this: the term ‘private law’ is to be taken, in those canons, in a very different sense. For the name ‘private law’ is therein given, either to a vow made by the special inspiration of the Holy Ghost, or to the divine inspiration itself through which man is specifically called to some higher good. This appellation is metaphorical; for such ‘law’ is not law, in the proper sense and of the kind which we are now discussing. Rather, it is so called because it is written in the heart and partakes of some of the effects of law, as we have said elsewhere in treating of vows.16
16. As for [the argument drawn from] reasoning, the reply is easily made on the basis of the foregoing remarks.
Law and precept are not interchangeable. What is in law that is not in precept; and how the two differ. For, with respect to the first reason adduced, it is evident from those remarks, that precept and law are not interchangeable; since, though every law is a precept, not every precept is a law. On the contrary, a law must satisfy certain special conditions, among which is the requirement that it shall be a common precept, in the sense expounded above.17 Furthermore, in so far as the moral aspect is concerned, it is not necessary to inquire minutely as to whether precept and law are essentially
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distinct; since, [from the moral standpoint,] granting that they may not be physically distinct with respect to the natural species of acts involved, it is sufficient that they should be distinct morally, or (as it were) in their artificial being. For law is (so to speak) a certain artificial product resulting from a given act with the accompaniment of given circumstances, conditions or habitual relations, without which it is not true law, even though it may be of the same nature with respect to the act of commanding. It may also be added that legislation, with reference to the act of prudence from which it proceeds and the righteousness which characterizes it as it issues from the legislator, possesses a special kind of virtue distinct from that of an individual and private precept, so that, in this sense, it may be called law, being thus rendered essentially distinct from a private mandate.
17. In what sense law is said to be common, and instituted for the community. To the first confirmation, we reply that it is true that law implies a relationship with individual persons, in so far as they are parts of the community upon which the law is imposed as a rule of action, so to speak.
The reply to the second confirmation is this: law is called general, not because it is necessarily imposed upon the community as a community and as a mystical body; but because it should be propounded in general terms, such that it may apply to each and every person, in accordance with the exigencies of the subject-matter, in which sense it is true that law is instituted as a rule for persons who are real, not simply fictitious. It should be added, indeed, with regard to the third confirmation, that ordinarily law is framed for the community not collectively, but distributively, that is to say, framed to the end that it may be observed by each and every member of the community, in the proper distribution, according to the nature of the law; for this provision is always implied.
However, a law may sometimes be established for the community itself, viewed as such; that is to say, it may be established by forbidding