Of Human Law

Of Human Law — St. Thomas Aquinas asks: Whether it was useful for laws to be framed by men?; Whether every human law is derived from the natural law?; Whether Isidore's description of the quality of positive law is appropriate?; Whether Isidore's division of human laws is appropriate?.

We must now consider human law; and (1) this law considered in itself; (2) its power; (3) its mutability. Under the first head there are four points of inquiry:

Article 1: Whether it was useful for laws to be framed by men?

Isidore says (Etym. v, 20): "Laws were made that in fear thereof human audacity might be held in check, that innocence might be safeguarded in the midst of wickedness, and that the dread of punishment might prevent the wicked from doing harm." But these things are most necessary to mankind. Therefore it was necessary that human laws should be made.

As stated above (; ), man has a natural aptitude for virtue; but the perfection of virtue must be acquired by man by means of some kind of training. Thus we observe that man is helped by industry in his necessities, for instance, in food and clothing. Certain beginnings of these he has from nature, viz. his reason and his hands; but he has not the full complement, as other animals have, to whom nature has given sufficiency of clothing and food. Now it is difficult to see how man could suffice for himself in the matter of this training: since the perfection of virtue consists chiefly in withdrawing man from undue pleasures, to which above all man is inclined, and especially the young, who are more capable of being trained. Consequently a man needs to receive this training from another, whereby to arrive at the perfection of virtue. And as to those young people who are inclined to acts of virtue, by their good natural disposition, or by custom, or rather by the gift of God, paternal training suffices, which is by admonitions. But since some are found to be depraved, and prone to vice, and not easily amenable to words, it was necessary for such to be restrained from evil by force and fear, in order that, at least, they might desist from evil-doing, and leave others in peace, and that they themselves, by being habituated in this way, might be brought to do willingly what hitherto they did from fear, and thus become virtuous. Now this kind of training, which compels through fear of punishment, is the discipline of laws. Therefore in order that man might have peace and virtue, it was necessary for laws to be framed: for, as the Philosopher says (Polit. i, 2), "as man is the most noble of animals if he be perfect in virtue, so is he the lowest of all, if he be severed from law and righteousness"; because man can use his reason to devise means of satisfying his lusts and evil passions, which other animals are unable to do.

Article 2: Whether every human law is derived from the natural law?

Tully says (Rhet. ii): "Things which emanated from nature and were approved by custom, were sanctioned by fear and reverence for the laws."

As Augustine says (De Lib. Arb. i, 5) "that which is not just seems to be no law at all": wherefore the force of a law depends on the extent of its justice. Now in human affairs a thing is said to be just, from being right, according to the rule of reason. But the first rule of reason is the law of nature, as is clear from what has been stated above (). Consequently every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law.

But it must be noted that something may be derived from the natural law in two ways: first, as a conclusion from premises, secondly, by way of determination of certain generalities. The first way is like to that by which, in sciences, demonstrated conclusions are drawn from the principles: while the second mode is likened to that whereby, in the arts, general forms are particularized as to details: thus the craftsman needs to determine the general form of a house to some particular shape. Some things are therefore derived from the general principles of the natural law, by way of conclusions; e.g. that "one must not kill" may be derived as a conclusion from the principle that "one should do harm to no man": while some are derived therefrom by way of determination; e.g. the law of nature has it that the evil-doer should be punished; but that he be punished in this or that way, is a determination of the law of nature.

Accordingly both modes of derivation are found in the human law. But those things which are derived in the first way, are contained in human law not as emanating therefrom exclusively, but have some force from the natural law also. But those things which are derived in the second way, have no other force than that of human law.

Article 3: Whether Isidore's description of the quality of positive law is appropriate?

stands the authority of Isidore.

Whenever a thing is for an end, its form must be determined proportionately to that end; as the form of a saw is such as to be suitable for cutting (Phys. ii, text. 88). Again, everything that is ruled and measured must have a form proportionate to its rule and measure. Now both these conditions are verified of human law: since it is both something ordained to an end; and is a rule or measure ruled or measured by a higher measure. And this higher measure is twofold, viz. the Divine law and the natural law, as explained above (; ). Now the end of human law is to be useful to man, as the jurist states [*Pandect. Justin. lib. xxv, ff., tit. iii; De Leg. et Senat.]. Wherefore Isidore in determining the nature of law, lays down, at first, three conditions; viz. that it "foster religion," inasmuch as it is proportionate to the Divine law; that it be "helpful to discipline," inasmuch as it is proportionate to the nature law; and that it "further the common weal," inasmuch as it is proportionate to the utility of mankind.

All the other conditions mentioned by him are reduced to these three. For it is called virtuous because it fosters religion. And when he goes on to say that it should be "just, possible to nature, according to the customs of the country, adapted to place and time," he implies that it should be helpful to discipline. For human discipline depends on first on the order of reason, to which he refers by saying "just": secondly, it depends on the ability of the agent; because discipline should be adapted to each one according to his ability, taking also into account the ability of nature (for the same burdens should be not laid on children as adults); and should be according to human customs; since man cannot live alone in society, paying no heed to others: thirdly, it depends on certain circumstances, in respect of which he says, "adapted to place and time." The remaining words, "necessary, useful," etc. mean that law should further the common weal: so that "necessity" refers to the removal of evils; "usefulness" to the attainment of good; "clearness of expression," to the need of preventing any harm ensuing from the law itself. And since, as stated above (), law is ordained to the common good, this is expressed in the last part of the description.

This suffices for the Replies to the Objections.

Article 4: Whether Isidore's division of human laws is appropriate?

The authority of Isidore () suffices.

A thing can of itself be divided in respect of something contained in the notion of that thing. Thus a soul either rational or irrational is contained in the notion of animal: and therefore animal is divided properly and of itself in respect of its being rational or irrational; but not in the point of its being white or black, which are entirely beside the notion of animal. Now, in the notion of human law, many things are contained, in respect of any of which human law can be divided properly and of itself. For in the first place it belongs to the notion of human law, to be derived from the law of nature, as explained above (). In this respect positive law is divided into the "law of nations" and "civil law," according to the two ways in which something may be derived from the law of nature, as stated above (). Because, to the law of nations belong those things which are derived from the law of nature, as conclusions from premises, e.g. just buyings and sellings, and the like, without which men cannot live together, which is a point of the law of nature, since man is by nature a social animal, as is proved in Polit. i, 2. But those things which are derived from the law of nature by way of particular determination, belong to the civil law, according as each state decides on what is best for itself.

Secondly, it belongs to the notion of human law, to be ordained to the common good of the state. In this respect human law may be divided according to the different kinds of men who work in a special way for the common good: e.g. priests, by praying to God for the people; princes, by governing the people; soldiers, by fighting for the safety of the people. Wherefore certain special kinds of law are adapted to these men.

Thirdly, it belongs to the notion of human law, to be framed by that one who governs the community of the state, as shown above (). In this respect, there are various human laws according to the various forms of government. Of these, according to the Philosopher (Polit. iii, 10) one is "monarchy," i.e. when the state is governed by one; and then we have "Royal Ordinances." Another form is "aristocracy," i.e. government by the best men or men of highest rank; and then we have the "Authoritative legal opinions" [Responsa Prudentum] and "Decrees of the Senate" [Senatus consulta]. Another form is "oligarchy," i.e. government by a few rich and powerful men; and then we have "Praetorian," also called "Honorary," law. Another form of government is that of the people, which is called "democracy," and there we have "Decrees of the commonalty" [Plebiscita]. There is also tyrannical government, which is altogether corrupt, which, therefore, has no corresponding law. Finally, there is a form of government made up of all these, and which is the best: and in this respect we have law sanctioned by the "Lords and Commons," as stated by Isidore (Etym. v, 4, seqq.).

Fourthly, it belongs to the notion of human law to direct human actions. In this respect, according to the various matters of which the law treats, there are various kinds of laws, which are sometimes named after their authors: thus we have the "Lex Julia" about adultery, the "Lex Cornelia" concerning assassins, and so on, differentiated in this way, not on account of the authors, but on account of the matters to which they refer.