Selections from Three Works. Francisco Suárez
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dispensation from vows and oaths, from marriages that are merely ratified, from obligation of episcopal residence, from diriment impediments to
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matrimony, &c., 303–305; Second opinion: human law unable to abrogate or dispense from natural law, 305–307; How things pertain to natural law, 307; Its relation to human will, 308; First assertion: no human power can abrogate any natural precept, 309–312; Second assertion: precepts of natural law which depend upon consent of human will for binding force may be subjected to human dispensation, 312–313; Third assertion: subject-matter of natural law may be so changed through human law that the obligation imposed by natural law will be changed, 313; Reply to first opinion—the example regarding division of property is refuted, 314–315; Division of property not contrary to positive natural law, 315–316; The objections of Fortunius Garcia to this doctrine are answered, 316–318; Reply to second example (on restraint of natural liberty): natural law of dominion, as distinguished from preceptive natural law, may be changed by human agency, 318–319; Replies to third and fourth examples, 319; Answer to second argument in support of first opinion (examples of dispensations from natural law), 320; Reply to first example (vows and oaths), 320; To second example (concerning marriage that is merely ratified), 321; To third example (obligation of episcopal residence in diocese), 322–324; To fourth example (diriment impediments to matrimony), 324; To other examples, 324–326.
XV. Whether God Is Able to Grant Dispensations from the Natural Law, Even by His Absolute Power
Reason for doubt in regard to this question, 326–327; Three classes of natural precepts are first distinguished in connexion with dispensation, 327; First opinion: God is able to grant dispensations with respect to all natural precepts, 328; Opinion rejected, 329; Absurdity of first opinion demonstrated by examples, 330; Second opinion (Scotus’s opinion): precepts of Second Table of Decalogue can be subjected to dispensation but not those of First Table, 330–332; This opinion rejected, 332–334; Not only precepts relating to God are necessary by virtue of natural law but those relating to one’s neighbour as well, 335; Arguments of Scotus are answered, 335–337; Third opinion (that of Major and Durandus): that negative Commandments of Decalogue do not admit of dispensation with exception of Fifth Commandment, 337–338; Assertion of Major that all affirmative Commandments admit of dispensation, 338; Assertion of Durandus that Commandments of First Table do not admit of dispensation but that this is not true of Second Table, 339; Suárez’s objections to Durandus’s proposition, 339; Fourth opinion: that none of Commandments of
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Decalogue admits of dispensation even by absolute power of God, 340; St. Thomas’s argument in support of this opinion, 340–341; Suárez’s approval and exposition of the fourth opinion, 341–342; Examples to prove that change in human dominion brought about by God is not a dispensation, 342–345; Natural precepts the subject-matter of which does not depend on divine power of dominion are immutable and do not admit of dispensation, 345; Status of the Commandments under this doctrine, 345–346; Discussion of St. Bernard’s opinion, 346–348; Whether there are natural precepts, apart from Decalogue, from which dispensations may be granted, by divine power, 348–349; Solution: God does not grant dispensations from natural precepts, but does change the subject-matter or circumstances of such precepts, 349–350; Suárez’s proofs and arguments confirming this solution, 350–353; His additional argument that dispensation from natural precepts is not possible in that they flow as necessary consequences from natural principles, 353–355.
XVI. Does the Natural Law Afford Any Opportunity for Epieikeia (Equity) or Interpretation, Whether Made by God or by Man?
Whether natural law affords opportunity for epieikeia, 355–356; Only God may employ epieikeia with respect to natural law according to certain authorities, 356; Others assert that epieikeia with respect to natural law may be effected through a human being, 356; Another opinion: that natural law is not susceptible of epieikeia, 357–358; Last opinion preferred by Suárez, 358; Distinction between epieikeia and interpretation, 358–359; First assertion: many natural precepts require frequent interpretation and exposition, 360–361; Second assertion: true epieikeia has no place in any natural precept, in so far as it is natural, 361; Confirmation of this doctrine by examples, 361–364; Confirmation by reasoning, 364; Epieikeia has no place in negative precepts of natural law, 365–366; Distinctions between positive and natural law with respect to epieikeia, 366–370; Answer to objection citing apparent exceptions where epieikeia is alleged to apply to natural law, 370–372; Third assertion: natural law, as established through positive law, may admit of epieikeia, 372–373.
XVII. Is the Natural Law Distinguished from the Ius Gentium in That the Latter Pertains to Mankind Only, While the Former Is Shared in Common with Dumb Animals?
Ius gentium an intermediate form between natural and human law, 374; Meanings of word ius explained, 374; Divisions of ius: natural law, ius
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gentium and civil law, 375–376; First opinion: that of jurists who distinguish natural law from ius gentium, in that former relates to brutes, the latter to mankind, 376–377; Authorities who disagree with this opinion, 378; Arguments for and against the first opinion, 378–381; Second opinion: which distinguishes ius gentium from natural law on ground that latter reveals itself without reflection, the reverse being true of ius gentium, 381; Rejection of this opinion by Suárez, 381–382; Third opinion: which distinguishes natural law as binding independently of human authority, this not being true of ius gentium, 382; Suárez’s rejection of this opinion, 383–384; Suárez’s view of relation between ius gentium and natural law, 384.
XVIII. Does the Ius Gentium Command or Forbid a Given Act; or Does It Merely Concede or Permit?
Opinion that ius gentium may be distinguished from natural law as having concessive but not preceptive characteristics, 384; This opinion rejected by Suárez, 385–386; Relation of ius gentium to natural reason and human society, 386; Examples to illustrate this point, 387; Distinction between concessive and preceptive law as applied to ius gentium and natural law not valid, 388; Proof by means of Isidore’s examples of ius gentium, 388–390; Suárez further refutes the distinction, 390; Additional proof from examples of Isidore, 391–393; Suárez’s conclusion, 393.
XIX. Can the Ius Gentium Be Distinguished from Natural Law as Simply as Positive Human Law?
The ius gentium essentially distinct from natural law, 393; In what respect ius gentium and natural law agree, 393–394; In what they differ, 394–395; Ius gentium termed positive and human in absolute sense, 395–398; Difference between ius gentium and civil law set forth by Suárez, 398; Similarity of opinion of Justinian on this point, 399; Isidore’s definition of ius gentium, and examples, 399–400; Twofold form of ius gentium, 401; Examples of first kind (i.e. law of nations), 401–402; All states members of universal society, 402; Second kind of ius gentium (common civil law), 404; examples of this second kind, 405.
XX. Corollaries from the Doctrines Set Forth Above; and in What Way the Ius Gentium Is Both Just and Subject to Change
How the ius gentium is common to all nations although it is not natural law, 405; St. Thomas’s assertion: precepts of ius gentium are
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conclusions drawn from principles of natural law, 406–407; True equity and justice to be observed in ius gentium, 407; An important difference between ius gentium and natural law, 407–408; An objection based on the Digest, 408–410; Ius gentium may be changed by the consent of men, 410; By whom and in what manner it may be changed, 410–412; Difference in this respect between ius gentium and civil law, 412–413.
BOOK III: ON POSITIVE HUMAN LAW AS SUCH, AND AS IT MAY BE VIEWED IN PURE HUMAN NATURE, A PHASE OF LAW WHICH IS ALSO CALLED CIVIL
INTRODUCTION
Relative position of human law, 415; Division of human law into common law and particular law of a single community, 416; Latter subdivided into civil and canon law, 416.