Of the Essence of Law

Of the Essence of Law — St. Thomas Aquinas asks: Whether law is something pertaining to reason?; Whether the law is always something directed to the common good?; Whether the reason of any man is competent to make laws?; Whether promulgation is essential to a law?.

We have now to consider the extrinsic principles of acts. Now the extrinsic principle inclining to evil is the devil, of whose temptations we have spoken in the . But the extrinsic principle moving to good is God, Who both instructs us by means of His Law, and assists us by His Grace: wherefore in the first place we must speak of law; in the second place, of grace.

Concerning law, we must consider: (1) Law itself in general; (2) its parts. Concerning law in general three points offer themselves for our consideration: (1) Its essence; (2) The different kinds of law; (3) The effects of law.

Under the first head there are four points of inquiry:

Article 1: Whether law is something pertaining to reason?

It belongs to the law to command and to forbid. But it belongs to reason to command, as stated above (). Therefore law is something pertaining to reason.

Law is a rule and measure of acts, whereby man is induced to act or is restrained from acting: for "lex" [law] is derived from "ligare" [to bind], because it binds one to act. Now the rule and measure of human acts is the reason, which is the first principle of human acts, as is evident from what has been stated above (); since it belongs to the reason to direct to the end, which is the first principle in all matters of action, according to the Philosopher (Phys. ii). Now that which is the principle in any genus, is the rule and measure of that genus: for instance, unity in the genus of numbers, and the first movement in the genus of movements. Consequently it follows that law is something pertaining to reason.

Article 2: Whether the law is always something directed to the common good?

Isidore says (Etym. v, 21) that "laws are enacted for no private profit, but for the common benefit of the citizens."

As stated above (), the law belongs to that which is a principle of human acts, because it is their rule and measure. Now as reason is a principle of human acts, so in reason itself there is something which is the principle in respect of all the rest: wherefore to this principle chiefly and mainly law must needs be referred. Now the first principle in practical matters, which are the object of the practical reason, is the last end: and the last end of human life is bliss or happiness, as stated above (; ). Consequently the law must needs regard principally the relationship to happiness. Moreover, since every part is ordained to the whole, as imperfect to perfect; and since one man is a part of the perfect community, the law must needs regard properly the relationship to universal happiness. Wherefore the Philosopher, in the above definition of legal matters mentions both happiness and the body politic: for he says (Ethic. v, 1) that we call those legal matters "just, which are adapted to produce and preserve happiness and its parts for the body politic": since the state is a perfect community, as he says in Polit. i, 1.

Now in every genus, that which belongs to it chiefly is the principle of the others, and the others belong to that genus in subordination to that thing: thus fire, which is chief among hot things, is the cause of heat in mixed bodies, and these are said to be hot in so far as they have a share of fire. Consequently, since the law is chiefly ordained to the common good, any other precept in regard to some individual work, must needs be devoid of the nature of a law, save in so far as it regards the common good. Therefore every law is ordained to the common good.

Article 3: Whether the reason of any man is competent to make laws?

Isidore says (Etym. v, 10): "A law is an ordinance of the people, whereby something is sanctioned by the Elders together with the Commonalty."

A law, properly speaking, regards first and foremost the order to the common good. Now to order anything to the common good, belongs either to the whole people, or to someone who is the viceregent of the whole people. And therefore the making of a law belongs either to the whole people or to a public personage who has care of the whole people: since in all other matters the directing of anything to the end concerns him to whom the end belongs.

Article 4: Whether promulgation is essential to a law?

It is laid down in the Decretals, dist. 4, that "laws are established when they are promulgated."

As stated above (), a law is imposed on others by way of a rule and measure. Now a rule or measure is imposed by being applied to those who are to be ruled and measured by it. Wherefore, in order that a law obtain the binding force which is proper to a law, it must needs be applied to the men who have to be ruled by it. Such application is made by its being notified to them by promulgation. Wherefore promulgation is necessary for the law to obtain its force.

Thus from the four preceding articles, the definition of law may be gathered; and it is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.