Selections from Three Works. Francisco Suárez
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and beyond
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doubt [if the law is to be declared invalid], is a statement which applies in the present43 connexion with much greater force. This is true, partly because of the reasons set forth in that earlier passage, since they hold good also for the matter now under discussion; and partly because less danger exists in connexion with this matter, since the doubt [in this case] turns solely upon a temporal objection.
The difference between injustice from the standpoint of subject-matter, and injustice from the standpoint of mode. For we must note the difference between injustice in a law from the standpoint of subject-matter, and injustice therein from the standpoint of mode.
In the former case, if the injustice clearly exists, it is on no account permissible to obey the law—not even for the sake of avoiding any damage or scandal whatsoever—since it is never permissible to do wrong for the sake of any end.
But in the second case, though the law may not of itself be binding, a subject may obey it if he so chooses, provided he does not co-operate in [any resulting] injustice; for he has the power to cede his own right. Accordingly, it is much more credible, that he can be bound to obey in a doubtful case. And, indeed, even in cases of indubitable injustice [i.e. from the standpoint of mode], the subject may sometimes be bound to obedience in order to avoid scandal; since the latter must be avoided, though some temporal damage be suffered in consequence. This view is supported by the Decretals (Bk. II, tit. XXVI, chap. ii); it also finds a basis in Augustine (De Verbis Domini, Serm. vi [Sermons, lxii, Migne ed.] and On Psalm cxxiv); and it has been noted by St. Thomas (I.–II, qu. 96, art. 4). Adrian (Quaestiones Quodlibeticae, No. 6, ad 1), too, may be consulted in the same connexion; as may Gabriel (on the Sentences, Bk. IV, dist. xvi, qu. 3 [Dicitur autem lex]), the jurists (on Decretals, Bk. II, tit. XXVI, chap. ii), Panormitanus (on Decretals, Bk. I, tit. II, chap. vii, no. 9), the Cardinal (on Decretum, Pt. I, dist. L, can. xxxvi), and Bellarmine (De Romano Pontifice, Bk. IV, chap. xv).
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CHAPTER XII
What Definition of Law (Lex) Is Derived from the Conditions of Law Above Set Forth?
1. The method above indicated1 was employed by St. Thomas (I.–II, qu. 90, art. 4), when, from the characteristic properties of lex as he had recorded them, he drew a definition of the term, a definition which I shall presently quote. For other definitions of lex have been laid down, and these have been cited and rejected by Soto on St. Thomas (De Iustitia et Iure, Bk. I, qu. i), by Castro (De Potestate Legis Poenalis, Bk. I, chap. ii) and by other modern authors. It is unnecessary, however, to dwell upon this point, since the descriptions in question are not true definitions, but eulogies of law, or else refer not to law in general, but to some particular law. Thus Cicero (Laws, Bk. I [Bk. II, chap. iv]) has said that: ‘Law is something eternal existing in the mind of God’, and (Book II [, chap. iv]), that it is: ‘The right reason of supreme Jove’, descriptions which are suitable for the eternal law. In another passage [Laws, Bk. I, chap. vi], indeed, he declares that law is ‘Right reason,2 implanted in nature’. Similarly, Clement of Alexandria has also said that law is ‘right reason’. And these statements are applicable to natural law. Aristotle, however, in the Rhetoric to Alexander, has asserted that, ‘Law is the common consent of the state,’ &c., and again (Ethics, Bk. X, last chapter [, § 12]), that it is, ‘a rule emanating from a certain wisdom’, &c. These assertions may fittingly be applied to human or civil law. Similar declarations are found in several passages of Isidore (Etymologies, Bk. II, chap. x and Bk. V, passim), whom we have frequently cited, and to these passages Gratian refers in the Decretum (Pt. I, dists. I and IV). Moreover, definitions of a like nature may be inferred from various laws of the Digest (I. i and iii).
2. Various definitions of law. A more general definition may be drawn from the statement made by St. Thomas (I.–II, qu. 91, art. 2 [art. 1])
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that: ‘Law is a dictate of practical reason emanating from the prince who rules some perfect community.’ Castro, however, defines law differently (De Potestate Legis Poenalis, Bk. I, chap. i), as ‘The righteous will of one who represents the people, when that will is promulgated either orally or in writing, with the intention of binding the subjects to obey it’. These definitions express the personal opinions of the individuals who framed them, a practice which should be avoided, in so far as is possible; for a definition ought to consist of a primary principle (as it were), on a universally applicable basis. Furthermore, the definition last quoted contains certain elements which are not strictly necessary, or which require fuller explanation. Take, for example, the statement that [law] is a righteous will; for, strictly speaking, it could fail to be righteous in an absolute sense. Again, [we may question] the phrase, ‘one who represents the people’, since [the legislator] may be either the people themselves, or some one who does not represent the people but is nevertheless charged with caring for them. And as for the first of the two definitions, it is applicable to law only in so far as law dwells within the mind of the prince; whereas, in the present discussion, we are treating also of external law.
Thus Gabriel (on the Sentences, Bk. III, dist. xxxvii, art. 1 [, par. Lex obligatoria]) has defined law as: ‘The explicit sign made by right reason when the latter dictates that some one shall perform or shall refrain from performing a given action.’ It would seem that this definition is approved by Aristotle, when he says [Nicomachean Ethics, Bk. X, chap. ix, § 12] that, ‘law […] is a rule emanating from a certain wisdom,3 [etc.]’. One ought not, however, to limit the definition to the external sign alone. Moreover, the entire definition above quoted may be applied to numerous precepts or signs which are not, properly speaking, laws.
Finally, the same is true of other, similar definitions which can be found in the works of Gerson (Pt. III, tract. De Vita Spirituali, Lect. 10 and Pt. I, tract. De Potestate Ecclesiastica et Origine Iuris et Legum).
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3. Consequently, that deduced by St. Thomas (I.–II, qu. 90, art. 4) has more frequently been adopted, namely: ‘Law is an ordinance of reason for the common good, promulgated by one who is charged with the care of the community.’ Alexander of Hales, too (Summa Universae Theologiae, Pt. III, qu. xxvi, memb. 4 [memb. 3]), offers almost the same definition.
In the first place, the definition in question4 contains as its generic term, the expression, ‘ordinance of the reason’, an expression which is to be interpreted in an active and not a passive sense. For the ordinance is laid upon the subjects through the law, but the act of ordering issues from the lawgiver; this act whereby he orders, is given the name of an active ordinance; and that active ordinance must emanate from the reason; therefore, it is called an ordinance of the reason. But this term (whatever may be the particular sense in which it is employed by the authors [of the definition]) is not of itself restricted to an act of the intellect, nor to one of the will. For, in the case of both faculties, there may be an ordinance, and that ordinance which pertains to the will may be said to pertain to the reason, either because the will itself is a rational faculty, or, in any case, because it ought to be directed by right reason, especially in the law-making process. The term in question may even be applied to an external as well as to an internal act; for an external precept is also an ordinance of the reason, that is to say, an ordinance dictated by the reason.
The remainder [of this definition], however, is added by way of differentiation, and includes virtually all the conditions of law, as is sufficiently evident from what we have already said.
4. Objection. A question may indeed arise owing to the fact that the said definition contains no limitation whereby counsel is excluded from the nature of law. Accordingly, some persons grant that counsel is comprehended within law, a supposition which—as I indicated above,5 and as I shall repeat in the following Chapter6—is, strictly speaking, not true.
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Solution; and the difference between law and counsel. I therefore reply that counsel is excluded in a twofold manner by the definition in question.7 For counsel, as such, is not of its very nature derived from a superior in so far as he possesses power over and charge of his subjects; whereas law should be an ordinance