Selections from Three Works. Francisco Suárez
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in other laws under the title De Rerum Divisione. But the other form is a common good only in a secondary sense and because it redounds [to the general welfare], so to speak. In a direct sense, however, it is a private good, since it is immediately subordinated to the dominion and advantage of a private individual. Yet it is also said to be a common good; either because the state has a certain higher right over the private goods of individuals, so that it may make use of these goods when it needs them, or also because the good of each individual, when that good does not redound to the injury of others, is to the advantage of the entire community, for the very reason that the individual is a part of the community. Thus the civil laws (Institutes, I. viii, § 2; Authentica, Coll. II [, tit. II, Pref., § 1 = Novels, VIII, Pref., § 1]; and other, similar laws) declare it to be expedient for the state that the citizens should be rich and that no one should abuse his possessions.
8. A twofold subject-matter of the common good, with which law may be concerned. The other member of our twofold distinction is that which is generally made with respect to human acts. In these, we distinguish the proximate subject-matter with which they are concerned, from the motive or reason because of which [they are executed]. For, in view of the fact that law is a moral act, these two factors should be distinguished in the case of law, also. Therefore, the subject-matter with which law is concerned, may sometimes be the common good for its own sake and primarily; while at other times it is a private good for its own sake and primarily, but a private good which redounds to the common welfare.4 Accordingly, a distinction of this kind, also, was laid down with respect to laws, in those above cited,
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as I have, moreover, explained at greater length in my work, De Religione (Treatise V; that is, in Bk. II, chap. xxii5 of the part on oaths). For certain laws deal directly with subject-matter that is common; others, with the good of individuals; but the reason why law deals with either kind of subject-matter is the common good, which therefore should always be the primary aim of law.
9. Objection. In regard to this point, however, it may be asked whether this good should be deliberately aimed at, in the intention of the person acting, or whether it should [simply] be the [natural] end of the actual work imposed, to use the terminology of St. Thomas (II.–II, qu. 141, art. 6, ad 1). For it would seem that the intention of the agent is extrinsic, that it may vary as the result of external accident, and that the essence of a law is not dependent upon this intention; yet the work imposed does not always and by its own virtue tend to the common good, unless it is made to do so by another, so that, in like manner, the aim of the work would seem to be neither essential nor sufficient.
The subject-matter of law should be advantageous for and adapted to the common good, not through the intention of the law-maker, but of itself. I reply briefly that for the validity and essence of a law, it is necessary only that its subject-matter be advantageous to and suitable for the common good, at the time and place involved, and with respect to the people and community in question. For this utility and fitness are not bestowed by the lawgiver, but are assumed to exist; and therefore, in so far as relates to their existence (so to speak) they are not dependent upon his intention. Wherefore it also follows that such subject-matter ought of itself to be referable to the common good, since every useful good as such is fit to be directed to the end for which it is useful, and in this sense, the aim of the work imposed and not that of the agent, is the necessary factor in the matter under discussion.
The reason for the foregoing statements is clear; since even if a legislator makes a law from hatred, for example, or from some other perverse motive, if the law itself nevertheless works to the common good, that fact suffices to give the said law validity. For the perverse intention is strictly
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a personal factor, and its effect does not extend to the work imposed, in so far as the latter relates to the common advantage. Thus, the perverse intention of a judge does not affect the validity of his sentence, unless that intention is in [actual] opposition to the equity of the sentence; and similarly, the perverse intention of him who administers [a sacrament] is in no way detrimental to that sacrament, unless such an intention is in opposition to the essence thereof. Just so, then, in the matter under discussion, the common good must be sought in the law itself, and not in the extrinsic intention of the lawgiver. Augustine gives an excellent portrayal of this view when he says (On Free Will, Bk. I, chap. v): ‘A law which has been made for the protection of the people, cannot be censured on the ground of any evil desire, since he who made it, if he did so at God’s bidding (that is to say, in accordance with the precepts of eternal justice), may have performed this [legislative act] apart from any experience of such desire; if, on the other hand, evil desire was associated with his making of the decree, it does not follow [merely] from that fact, that it is necessary to obey the said law in such a spirit; for6 a good law may be made, even by one who is not himself good.’ Moreover, just below this passage, Augustine calls attention to an excellent argument, namely, that one may without evil desire conform to a law, even though he who made the law may have done so in a spirit of evil desire.
10. Reply to an objection. Accordingly, in the light of the foregoing remarks the first part of the objection is easily answered; since that part involves simply the conclusion that the proximate subject-matter of law is not always that common good which, per se and primarily, dwells within the community as such; and it is thus that the distinction laid down in connexion with the laws above cited, is understood. For it was laid down with regard to subject-matter; and the laws in question are said to turn about private benefits having as their subject-matter the personal welfare of the [individual] citizens themselves, welfare which, viewed from another standpoint, includes the common welfare, as we have remarked. With respect to these legal precepts it should also be noted that they never
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fall under the head of law when they relate merely to this or that individual, but do come under that head in so far as they deal with [all] persons of a certain condition (such as wards, soldiers, &c.), or with [all] persons of a certain origin (for example, nobles), or with [all] the successors of a given family; and in this sense, they look to the common good, because of a common participation (so to speak) in their universal effects, that is to say, because such good affects a large number of persons, as was pointed out at the end of the preceding Chapter.
However, when the Digest (I. iv. 1) states that a regulation issued by a prince, does not at times extend its application beyond the particular person involved, the term ‘[princely] regulation’ is apparently not used in the sense of strict law, but rather in that of any edict or decree whatsoever, issued7 by the prince in favour of or adversely to some specific person; since such a regulation, unless it has [also] a wider scope and a more enduring force, is not law in the strict sense. This point, too, was brought out in an earlier Chapter.8
11. In the light of the foregoing remarks, it is evident what should be said in regard to privileges, a matter apparently touched upon by the Digest (ibid.), also. Thus the Gloss (on Decretum, Pt. I, dist. IV, can. ii) answers that it is through the condition in question that law is distinguished from privilege.9 This reply is sharply attacked by Castro (cited above), on the ground that it leads to the conclusion that a law decreed by a prince, concerning payment of a perpetual tribute to himself and for his own advantage, would have to be called a privilege. However, this objection to the words of the Gloss has little force. For the tribute in question would be either just, or unjust. If it were just, then the law itself would be just, and would serve the common good, even though it would [also] be to the advantage of the prince; because, in the first place, the welfare of the prince, viewed as such, is considered as the common welfare, inasmuch
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as he is a public personage, pertaining to the whole community;10 and furthermore, because a just subsidy bestowed upon the prince by the state constitutes a common good, benefiting the state as a whole. If, on the other hand, the tribute should be unjust and tyrannical, then it would not be law, but would on the contrary have the character of an inequitable and unjust privilege. Moreover, this reply which is contained in the Gloss would seem to be in accord with Cicero’s statement (Laws, Bk. III [, chap. xix, no. 44]) that, ‘Our forefathers […] desired no laws to be made which penalized private individuals; for to do so would be to make