Selections from Three Works. Francisco Suárez
Читать онлайн книгу.
law is unwritten and commonly introduced in default of law, 514; Custom formally reduced to writing by one in authority to establish law becomes written law, 515; Custom retains its force until abolished by written law, 515–516; Relation of custom to existing written law, 516; Custom in derogation from written law, 517; The element of consent in establishing custom as implied in Isidore’s definition, 518.
III. Of the Varieties of Custom, and Whether It Includes Forum and Stylus
Two kinds of custom: that concerning persons, and that concerning human acts, 519; An explanation of this division which Suárez rejects, 519–522; His own explanation requires consideration of the two kinds of custom in relation to their purpose, 522–524; Another division: custom founded on human acts classified as universal, public or private, 524; Universal custom includes ius gentium, 524; Is to be excluded from this discussion, 524–525; Ecclesiastical traditions included under universal custom, 525; Private custom cannot institute law and is also excluded, 526–527; Public custom only is capable of introducing law, 527; Kinds of public custom, 528–529.
IV. Of a Third Division of Custom: That Which Is in Accordance with Law; That Which Is outside Law; and That Which Is Contrary to Law: and of Certain Points of Ecclesiastical Traditions
This threefold division of custom may be applied to three kinds of law: natural, positive, and human, 529; Custom and natural law, 530; Custom contrary to law of nature has no legal effect, 531–532; Parts of ius gentium may be abrogated by custom, 532–533; Ius gentium cannot be abolished as a whole, 533; The possibility of creating customs or laws derogating from the ius gentium, 533; Triple division of custom applied to positive divine law, 534–535; Unwritten traditions of Church classed as custom in accord with divine law, 535; Distinction between tradition and custom, 535; Custom may emanate from unwritten divine law, 536; Ecclesiastical customs, 537–538; Custom contrary to divine law, 538; Custom of observing human law is merely custom of fact and does not introduce consuetudinary law, 540; Such a custom may confirm or interpret law, 541; Whether it may extend law, 542.
[print edition page xl]
V. Of the Various Divisions of Custom on the Basis of Subject-Matter
Custom distinguished as canonical or civil, 543; Objection to this division and Suárez’s reply, 543–544; Division of custom into: style, general conduct, rite and forum, 544; Meaning of term ‘style’, 544; Style of fact and of law, 545; Effects of style, 546; Laws of style and their nature, 547; Rite defined, 547–548; Rite of fact and of law, 548; Meaning of term ‘forum’, 548–549; Difference between forum and style, 549; Forum as both custom and law, 550–551; Division of custom into positive and negative, 551–553.
VI. What Is a Good and Reasonable Custom and What Is an Evil and Unreasonable One
Good and bad customs, 553; Bad custom is one of fact, not of law, 553; Custom may be good or bad either absolutely or objectively, 554–555; Different kinds of bad custom and their legal effects, 555–556; Opinions of Navarrus and others as to what constitutes reasonable and unreasonable custom, 556–558; Suárez rejects these opinions, 558–563; His conclusion that the division of custom into good and bad differs from its division into reasonable and unreasonable, 563–564; Various methods and factors for judging the reasonableness or unreasonableness of custom, 564–566; Rule suggested to determine reasonableness of custom, 566–567.
VII. What Sort of Custom Is or Is Not Condemned in Law
Custom condemned by law ought to be declared unreasonable or specifically prohibited, 568; How law may annul custom, 568; clause ‘notwithstanding any custom whatever’ in law revokes custom already existing, 569; Simple abrogation of custom not equivalent to condemnation, 569; Some contradictory opinions, 571; Law prohibiting custom contrary to it applies to both past and future customs, 572–573; But such a law does not necessarily condemn future custom, 573; Custom condemned by law in express terms and in various ways, 574–578.
VIII. Concerning Another Division of Custom into That Which Is Valid by Prescription and That Which Is Not
The question whether customs may be validated by prescription, 578–579; Prescriptive custom—opinion of authorities and definition, 579–581; Prescription validates both custom of fact and of law, 581; Contrary opinion refuted, 582; Similarity of custom and prescription in the broad meaning of the terms, 582; Difference between them in regard to duration of time
[print edition page xli]
necessary to their validity, 583–585; Definite time required for prescriptive custom, 585; Contrary argument discussed and rejected, 586; ‘a long time’ in law connotes a period of at least ten years, 587–589; How length of prescriptive period may be determined, 589–591; At least ten years required for prescriptive custom, 591; Prescriptive period must be continuous, 592; What constitutes an interruption of a custom, 593; Division of custom into customs that are and those that are not validated by prescription, 593–594; Legal custom may exist independently of prescription and of a definite determination of a certain period of time, 594; Meaning of custom in absolute sense, 595–597.
IX. Concerning the Causes of Custom and in Particular Who Can Introduce It
The nature of custom with respect to its form and content, 597–598; Proximate cause of custom, 598; Perfect community necessary for establishment of custom, 599; Arguments based on private custom do not constitute a valid objection to this principle, 599–601; Only community possessing capacity for legislative authority over itself may introduce legal custom, 601–602; Several objections to this doctrine are answered, 602–606; Observance by greater part of community necessary for establishment of custom by the people, 606–607; Minority custom enacted into law by the prince is not consuetudinary law, 607; Custom of majority in community held to be that of whole community, 608–609; What persons constitute ‘majority’, 609.
X. By What Acts Custom Is Introduced
Custom introduced by repetition of acts, 609–610; Answers to certain objections relating to omissions of actions, matters of prescription and individual action, 610–612; The problem of what frequency of actions is necessary for establishment of custom, 612–614; Actions introducing custom must be public, 614.
XI. Whether Judicial Cognizance of the Frequency of Actions Is Requisite for the Introduction of a Custom
The arguments for affirmative opinion regarding this question are set forth, 615; Suárez rejects this opinion, declaring that no judicial act of recognition is necessary for establishment of custom, 616–617; He meets the several arguments previously set forth in behalf of the opposing opinion, 617–621; Effect of opinion of Doctors regarding custom, 621;
[print edition page xlii]
Effect of judicial decisions on custom, 622–623; Their effect on the establishment of legal ‘style’—various opinions discussed, 623–625; To establish a custom judicial acts must conform to the same requirements of frequency and time as is the case with other acts, 625–627; Two kinds of style considered, 627.
XII. Whether Only Voluntary Acts Avail for the Introduction of Custom
Acts establishing custom must be voluntary, 628; Acts done in ignorance or error cannot establish custom, 629–630; A passage in the Digest which seemingly infers that custom may be established by error, 630–631; Suárez reinterprets this passage to conform with his doctrine that custom derived from error never establishes law, 631–635; Ignorance and error in regard to introduction of custom explained, 635; Custom not established by acts done under compulsion or fear, 637; Effect of fear on volition, 637; Acts done from fear are performed without intention of establishing custom, 638.
XIII. Whether the Consent of the Prince Is Necessary for the Introduction of a Custom, and What Must Be the Nature of This Consent
Various classes of communities distinguished in respect to power of establishing law and custom, 639–640; If the prince is the legislator, his consent is essential for the establishment of custom, 640–641; Extent of the power held by the prince, 641–642;