Treatise On Law

Posted: September 2, 2012 in Category - Works of Influence, Treatise On Law (1265-1274)

Thomas Aquinas is one of 33 Doctors of the Roman Catholic church. The Treatise on Law is a part of a larger work called Summa Theologica. In On Law, Aquinas touches upon many of the subjects which the founding fathers incorporated into the Declaration and Constitution.

Treatise On Laws

 

THOMAS AQUINAS 

Treatise on Law 

(Summa Theologica, Questions 90-97) 

With an Introduction by Stanley Parry 

A GATEWAY EDITION 



Chicago HENRY REGNERY COMPANY 



Reprinted from the Summa Theologica 

with the permission of Benziger Brothers, 

Inc., publishers and copyright owners. 

Manufactured in the U.S.A., 12-59. 



CONTENTS 

INTRODUCTION V 

QUESTION 90: Of the Essence of Law i 

QUESTION 9 1 : Of the Various Kinds of Law 1 1 

QUESTION 92: Of the Effects of Law 30 

QUESTION 93: Of the Eternal Law 35 

QUESTION 94: Of the Natural Law 54 

QUESTION 95: Of Human Law 73 

QUESTION 96: Of the Power of Human Law 87 

QUESTION 97: Of Change in Laws 105 



Aquinas' Philosophy of Law 



IN THE Treatise on Law, Aquinas offers a philo- 
sophical analysis of the structure of law. The deeper 
significance of this analysis lies in its struggle with 
the problem of moral obligation in the political order, 
a problem which Aquinas approaches with an observa- 
tion of fact and an interpretation of that fact. The 
observation of fact is that men in society live under 
law; the interpretation of the fact is that law 
achieves its results by imposing moral obligation 
rather than outright force on those subject to it. 
Out of such an interpretation the problem arises: 
what is the source of this obligation? Aquinas does 
not ask why men live under law, nor is he formally 
concerned with proving that law imposes moral ob- 
ligation. His concern focuses almost exclusively on 
one problem, that of the roots of obligation. The 
problem is basic because it asks, in effect, by what 
warrant the human legislator binds the consciences 
of men. Is not this a power that belongs to God alone? 
If men possess it, what are the limits within which 
they may exercise it? 

The answer Aquinas gives to these questions is a 
simple one: "Laws framed by men are either just or 



VI INTRODUCTION 

unjust. If they be just, they have the power of bind- 
ing in conscience, from the eternal law whence they 
are derived. . . ." (Quest. 96, art. 4). The thought 
leading to this conclusion, though complex in its full 
expression, advances through three simple and basic 
propositions: (i) obligation is a property that inheres 
in the nature of things (Quest. 95, art. 2), (2) since 
man has no control over the nature of things, he has 
no power to determine the basic outlines of obliga- 
tion (Quest. 93, art. 5), and (3) since the nature 
of finite things is not self-explanatory, the ultimate 
source of obligation must be found in the infinite 
Being who does determine the nature of things 
(Quest. 93, art. 4). Thus the source of obligation is 
in the divine conception of the order proper to the 
universe. As Aquinas concludes: ". . . the plan of 
government is derived by secondary governors from 
the governor in chief. . . . Since then the eternal law 
is the plan of government in the Chief Governor, all 
the plans of government in the inferior governors 
must be derived from the eternal law" (Quest. 93, 
art. 3). 

Even this brief outline of his answer distinguishes 
Aquinas from those whose theories are based on the 
Hobbesian hypothesis that human will,, whether indir , 
vidual or corporate, can originate law. The great 
truth stressed is that law, insofar as it is morally 
obligating, must be rooted in God. Although there 
is a human authority residing in the people by force 
of nature (Quest. 90, art. 3), not even the people 
are the original possessors of this power to impose 



INTRODUCTION Vll 

obligation. Aquinas rejects the Divine Right theory 
because it explains the power of law to bind con- 
science by attributing a divine quality to political 
authority. No political authority, not even the sover- 
eign authority, can impose an obligation on the 
citizen where it is not already latent in the nature of 
things. 

Granted that human law must conform to eternal 
law, the human legislator still must have some way 
of discovering what the directives of eternal law are. 
The Romanticist solves the problem by his direct ac- 
ceptance of primitive nature. But this acceptance 
rests on an emotional or instinctive basis which 
Aquinas cannot admit. His own solution is an intel- 
lectualist one which begins with the premise: "Now 
the rule and measure of human acts is the reason, 
which is the first principal of human acts. . . . Con- 
sequently it follows that law is something pertaining 
to reason" (Quest. 90, art. i). Therefore, just as 
human law does not impose obligation until it is 
known to the subject, so also eternal law cannot 
guide the human legislator until its directives are 
made evident to him in some way. The use of the 
terms "right reason" and "natural law," which is 
sometimes confusing to the reader, becomes clear 
when one keeps in mind that man must know the 
law of nature before it can become a guide to action. 
Obligation lies in the nature of things, but it orig- 
inates in the mind of God and terminates in the 
mind of man. Natural law is the objective link be- 
tween the mind of man and the mind of God. Right 



Vlii INTRODUCTION 

eternal law through its understanding of the moral 
reason is human reason acting in harmony with 
imperatives inherent in the nature of things. 

By creation God sets finite beings in existence apart 
from Himself. Each of these beings has a nature. Na- 
tures or natural things, as Aristotle defines them, are 
those things which "have within [themselves] a 
principle of motion and of stationariness." Now for 
our purposes, the most relevant aspect of this princi- 
ple has to do with growth. In the case of man, growth 
is achieved most obviously in the physical order. But 
man "grows" in other ways: his intellect develops, his 
will stabilizes on morally good objects. Such growth, 
however, is not automatic as in the physical order, 
but the result of a consciously organized plan of 
action. The general outlines of this plan of action are 
pre-determined by the tendencies of man's nature, 
just as the growth of man's body is pre-determined by 
tendencies inherent in the physical parts of his nature. 
Man must therefore read nature in order to discover 
the type of action by which human nature -is per- 
fected. Since eternal law is promulgated in the 
natural order by the very creation of natures, it 
follows that natural law is not something different 
from eternal law but rather a "participation thereof" 
(Quest. 91, art. 2) which the human legislator must 
study to discover the mind of God (Quest. 92, art. 
2 and 3 ) . 

This idea of the way eternal law is promulgated is 
fundamental to Aquinas 's theory of how obligation is 
transmitted from God to human legislator to citizen. 



INTRODUCTION ix 

It keeps before our minds that the issue is not the 
transfer of a right to rule but the source of the 
authority which a rightful ruler exercises. 

Thus, Aquinas' explanation of the origins of obli- 
gation depends on his conception of natural law. It 
is through the mind's ability to recognize the impera- 
tives of nature that God communicates to man the 
basic patterns of action proper to him. Moreover, in 
this process man does not play the part of an autom- 
aton. He does not dangle at the end of cosmic pup- 
pet strings. Both eternal and natural law are gen- 
eralized patterns of action, and man, therefore, in 
determining action in the concrete circumstances of 
life, contributes something to the determination of 
right action. The three laws eternal, natural and 
human are not three independent rules of action 
but one rule progressively specified (Quest. 95, art. 

*) 

With regard to such political problems as the form 
of government and the wisdom of particular public 
policies, the Treatise has nothing to say. Basic to it, 
however, is an implied position on the relationship be- 
tween law and freedom which, if accepted, will pro- 
foundly influence one's conception of the problem of 
politics. In the Thomistic philosophy of law, human 
liberty is not an absolute condition. Man exists in the 
midst of realities which he must recognize and respect 
if he is to live a human life. He is inherently limited, 
both morally and physically, by laws that determine the 
total order of which he is a part. Freedom, or free will, 
consequently, is the faculty of judging for oneself the 



X INTRODUCTION 

demands of reality. As Laversin says: "The autonomy 
of the individual will can be understood only as an 
abstraction, that is to say, only by considering man's 
power to act as existing independently of his being 
and the conditions of actual existence." Law, insofar 
as it puts into concrete terms the general imperatives 
of nature, is not an adventitious limiting of action. 
Rather it is a conscious recognition and corporate 
specification of the natural boundaries of action in 
the real conditions of life. Thus law is perfectly 
compatible with the freedom proper to man. 

This is not to deny that problems arise with regard 
to the government that makes the law. For it does 
not follow from this harmony between law and free- 
dom that a just law cannot also be oppressive. But it 
does mean that a political philosophy based on the 
premise of harmony will be radically different from 
philosophies that begin with a premise of conflict. 
Utilitarian thought, for instance, begins with the 
premise that action under law is not free. Behind this 
premise is the idea that spontaneity is the essential 
element in freedom. Law, by imposing a rule of 
action on the citizen in the name of the group, de- 
stroys this element of spontaneity and so freedom. 

From these two positions there follow two different 
conceptions of the problem of politics. The problem 
for the Thomist is to work out a system of govern- 
ment that will realize in fact the theoretical harmony 
between law and freedom. The problem for the Utili- 
tarian is to work out a system that will sacrifice as 
little freedom as is compatible with the preservation 



INTRODUCTION XI 

of order. The one philosophy supports the theory that 
all men can conceivably achieve complete freedom; 
the other begins by supposing that a sacrifice of free- 
dom is inevitable. 

STANLEY PARRY 
University of Notre Dame 



QUESTION 90 

OF THE ESSENCE OF LAW 
(In Four Articles) 

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 First Part (Q. CXIV.) . 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 ( i ) Law itself 
in general; (2) Its parts. Concerning law in general 
three points offer themselves for our consideration: 
(i) Its essence; (2) The different kinds of law; (3) 
The effects of law. 

Under the first head there are four points of in- 
quiry: (r) Whether law is something pertaining to 
reason? (2) Concerning the end of law. (3) Its 
cause. (4) The promulgation of law. 



TREATISE ON LAW 



FIRST ARTICLE 

WHETHER LAW IS SOMETHING PERTAINING 
TO REASON 

We proceed thus to the First Article: 

Objection i. It would seem that law is not some- 
thing pertaining to reason. For the Apostle says 
(Rom. vii. 23): Z see another law in my members, 
etc. But nothing pertaining to reason is in the mem- 
bers; since the reason does not make use of a bodily 
organ. Therefore law is not something pertaining to 
reason. 

Ob}. 2. Further, in the reason there is nothing else 
but power, habit, and act. But law is not the power 
itself of reason. In like manner, neither is it a habit 
of reason: because the habits of reason are the intel- 
lectual virtues of which we have spoken above (Q. 
LVII. ) . Nor again is it an act of reason : because then 
law would cease, when the act of reason ceases, for in- 
stance, while we are asleep. Therefore law is nothing 
pertaining to reason. 

Obj. 3. Further, the law moves those who are sub- 
ject to it to act aright. But it belongs properly to the 
will to move to act, as is evident from what has been 
said above (Q. IX., A. i). Therefore law pertains, 
not to the reason, but to the will; according to the 
words of the Jurist (Lib. i. ff., De Const. Prin. leg. 
i.) : Whatsoever please th the sovereign, has force of 
law. 



OF THE ESSENCE OF LAW 3 

On the contrary, It belongs to the law to command 
and to forbid. But it belongs to reason to command, 
as stated above (Q. XVII., A. i). Therefore law is 
something pertaining to reason. 

I answer that, 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 (Q. I., A. i ad 3); 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 (Pbys. 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 per- 
taining to reason. 

Reply Obj. i. Since law is a kind of rule and meas- 
ure, it may be in something in two ways. First, as 
in that which measures and rules: and since this is 
proper to reason, it follows that, in this way, law is 
in the reason alone. Secondly, as in that which is 
measured and ruled. In this way, law is in all those 
things that are inclined to something by reason of 
some law: so that any inclination arising from a law, 
may be called a law, not essentially but by participa- 
tion as it were. And thus the inclination of the mem- 
bers to concupiscence is called the law of the 
members. 

Reply Obj. 2. Just as, in external action, we may 



4 TREATISE ON LAW 

consider the work and the work done, for instance 
the work of building and the house built; so in the 
acts of reason, we may consider the act itself of rea- 
son, i.e., to understand and to reason, and something 
produced by this act. With regard to the speculative 
reason, this is first of all the definition; secondly, the 
proposition; thirdly, the syllogism or argument. And 
since also the practical reason makes use of a syllo- 
gism in respect of the work to be done, as stated above 
(Q. XIII., A. 3; Q. LXXVL, A. i) and as the Phi- 
losopher teaches (Ethic, vii. 3); hence we find in 
the practical reason something that holds the same 
position in regard to operations, as, in the speculative 
intellect, the proposition holds in regard to conclu- 
sions. Suchlike universal propositions of the practical 
intellect that are directed to actions have the nature 
of law. And these propositions are sometimes under 
our actual consideration, while sometimes they are 
retained in the reason by means of a habit. 

Reply Ob}. 3. Reason has its power of moving 
from the will, as stated above (Q. XVIL, A. i) : for 
it is due to the fact that one wills the end, that the 
reason issues its commands as regards things ordained 
to the end. But in order that the volition of what is 
commanded may have the nature of law, it needs to 
be in accord with some rule of reason. And in this 
sense is to be understood the saying that the will of 
the sovereign has the force of law; otherwise the 
sovereign's will would savour of lawlessness rather 
than of law. 



OF THE ESSENCE OF LAW- 



ARTICLE 

WHETHER THE LAW IS ALWAYS DIRECTED TO THE 
COMMON GOOD? 



We proceed thus to the Second Article: 

Objection i. It would seem that the law is not 
always directed to the common good as to its end. 
For it belongs to law to command and to forbid. But 
commands are directed to certain individual goods. 
Therefore the end of the law is not always the com- 
mon good. 

Obj. 2. Further, the law directs man in his actions. 
But human actions are concerned with particular 
matters. Therefore the law is directed to some partic- 
ular good. 

Obj. 3. Further, Isidore says (Etym. v. 3): If the 
law is based on reason, whatever is based on reason 
will be a law. But reason is the foundation not only 
of what is ordained to the common good, but also of 
that which is directed to private good. Therefore the 
law is not only directed to the good of all, but also to 
the private good of an individual. 

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

I answer that, As stated above (A. i ) , the law be- 
longs to that which is a principle of human acts, 
because it is their rule and measure. Now as reason 



6 TREATISE ON LAW 

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 
(Q. II., A. 7; Q. III., A. i). Consequently the law 
must needs regard principally the relationship to hap- 
piness. 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. i) 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. i. 

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. 



OF THE ESSENCE OF LAW / 

Reply Obj. i. A command denotes an application 
of a law to matters regulated by the law. Now the 
order to the common good, at which the law aims, is 
applicable to particular ends. And in this way com- 
mands are given even concerning particular matters. 

Reply Obj. 2. Actions are indeed concerned with 
particular matters: but those particular matters are 
referable to the common good, not as to a common 
genus or species, but as to a common final cause, ac- 
cording as the common good is said to be the com- 
mon end. 

Reply Obj. 3. Just as nothing stands firm with 
regard to the speculative reason except that which is 
traced back to the first indemonstrable principles, so 
nothing stands firm with regard to the practical rea- 
son, unless it be directed to the last end which is the 
common good: and whatever stands to reason in this 
sense, has the nature of a law. 



THIRD ARTICLE 

WHETHER THE REASON OF ANY MAN IS 
COMPETENT TO MAKE LAWS? 



We proceed thus to the Third Article: 
Objection i. It would seem that the reason of any 
man is competent to make laws. For the Apostle says 
(Rom. ii. 14) that when the Gentiles, who have not 
the law, do by nature those things that are of the 
law, . . . they are a law to themselves. Now he says 



8 TREATISE ON LAW 

this of all in general. Therefore anyone can make a 
law for himself. 

Ob}. 2. Further, as the Philosopher says (Ethic, ii. 
i), the intention of the lawgiver is to lead men to 
virtue. But every man can lead another to virtue. 
Therefore the reason of any man is competent to make 
laws. 

Obj. 3. Further, just as the sovereign of a state 
governs the state, so every father of a family governs 
his household. But the sovereign of a state can make 
laws for the state. Therefore every father of a family 
can make laws for his household. 

On the contrary, Isidore says (Etym. v. 10): A 
law is an ordinance of the people whereby something 
is sanctioned by the Elders together with the Com- 
monalty. 

I answer that, 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 
vicegerent 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. 

Reply Obj. i. As stated above (A. i ad i), a law 
is in a person not only as in one that rules, but also 
by participation as in one that is ruled. In the latter 
way each one is a law to himself, in so far as he 
shares the direction that he receives from one who 



OF THE ESSENCE OF LAW 9 

rules him. Hence the same text goes on: Who show 
the work of the law written in their hearts. 

Reply Ob}. 2. A private person cannot lead another 
to virtue efficaciously: for he can only advise, and 
if his advice be not taken, it has no coercive power, 
such as the law should have, in order to prove an 
efficacious inducement to virtue, as the Philosopher 
says (Ethic, x. 9). But this coercive power is vested 
in the whole people or in some public personage, to 
whom it belongs to inflict penalties, as we shall state 
further on (Q. XCIL, A. 2 ad 3; II-IL, Q. LXIV., A. 
3). Wherefore the framing of laws belongs to him 
alone. 

Reply Obj. 3. As one man is a part of the house- 
hold, so a household is a part of the state: and the 
state is a perfect community, according to Polit. i. 
i. And therefore, as the good of one man is not the 
last end, but is ordained to the common good; so too 
the good of one household is ordained to the good 
of a single state, which is a perfect community. 
Consequently he that governs a family, can indeed 
make certain commands or ordinances, but not such 
as to have properly the force of law. 

FOURTH ARTICLE 
WHETHER PROMULGATION IS ESSENTIAL 

TO A LAW? 

We proceed thus to the Fourth Article: 
Objection i. It would seem that promulgation is 



10 TREATISE ON LAW 

not essential to a law. For the natural law above all 
has the character of law. But the natural law needs 
no promulgation. Therefore it is not essential to a law 
that it be promulgated. 

Ob]. 2. Further, it belongs properly to a law to 
bind one to do or not to do something. But the 
obligation of fulfilling a law touches not only those 
in whose presence it is promulgated, but also others. 
Therefore promulgation is not essential to a law. 

Obj. 3. Further, the binding force of a law extends 
even to the future, since laws are binding in matters 
of the future, as the jurists say (Cod. I., tit. De lege 
et cons tit. leg. vii. ) . But promulgation concerns those 
who are present. Therefore it is not essential to a 
law. 

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

1 answer that, As stated above (A. i), 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 defini- 
tion of law may be gathered; and it is nothing else 
than an ordinance of reason for the common good, 



OF THE VARIOUS KINDS OF LAW n 

made by him who has care of the community, and 
promulgated. 

Reply Obj. i. The natural law is promulgated by 
the very fact that God instilled it into man's mind 
so as to be known by him naturally. 

Reply Obj. 2. Those who are not present when a 
law is promulgated, are bound to observe the law, 
in so far as it is notified or can be notified to them 
by others, after it has been promulgated. 

Reply Obj. 3. The promulgation that takes place 
now, extends to future time by reason of the dura- 
bility of written characters, by which means it is 
continually promulgated. Hence Isidore says (Etym. 
v. 3; ii. 10) that lex (law) is derived from legere 
(to read) because it is written. 



QUESTION 91 

OF THE VARIOUS KINDS OF LAW 
(In Six Articles) 

must now consider the various kinds of law: 
under which head there are six points of inquiry : ( i ) 
Whether there is an eternal law? (2) Whether there 
is a natural law? (3) Whether there is a human law? 
(4) Whether there is a Divine law? (5) Whether 
there is, one Divine law, or several? (6) Whether there 
is a law of sin? 



12 TREATISE ON LAW 

FIRST ARTICLE 
WHETHER THERE IS AN ETERNAL LAW? 

We proceed thus to the First Article: 

Objection i. It would seem that there is no 
eternal law. Because every law is imposed on some- 
one. But there was not someone from eternity on 
whom a law could be imposed: since God alone was 
from eternity. Therefore no law is eternal. 

Ob}. 2. Further, promulgation is essential to law. 
But promulgation could not be from eternity: be- 
cause there was no one to whom it could be pro- 
mulgated from eternity. Therefore no law can be 
eternal. 

Ob}. 3. Further, a law implies order to an end. 
But nothing ordained to an end is eternal: for the 
last end alone is eternal. Therefore no law is eternal. 

On the contrary, Augustine says (De Lib. Arb. 
i. 6) : That Law which is the Supreme Reason cannot 
be understood to be otherwise than unchangeable and 
eternal. 

I answer that, As stated above (Q. XC., A. i ad 
2; AA. 3, 4), a law is nothing else but a dictate of 
practical reason emanating from the ruler who 
governs a perfect community. Now it is evident, 
granted that the world is ruled by Divine Provi- 
dence, as was stated in the- First Part (Q. XXIL, AA. 
i, 2), that the whole community of the universe is 



OF THE VARIOUS KINDS OF LAW 13 

governed by Divine Reason. Wherefore the very 
Idea of the government of things in God the Ruler 
of the universe, has the nature of a law. And since 
the Divine Reason's conception of things is not sub- 
ject to time but is eternal, according to Prov. viii. 
23, therefore it is that this kind of law must be called 
eternal. 

Reply Obj. i. Those things that are not in them- 
selves, exist with God, inasmuch as they are fore- 
known and pre-ordained by Him, according to Rom. 
iv. 17: Who calls those things that are not, as those 
that are. Accordingly the eternal concept of the 
Divine law bears the character of an eternal law, in 
so far as it is ordained by God to the government of 
things foreknown by Him. 

Reply Obj. 2. Promulgation is made by word of 
mouth or in writing; and in both ways the eternal 
law is promulgated: because both the Divine Word 
and the writing of the Book of Life are eternal. But 
the promulgation cannot be from eternity on the 
part of the creature that hears or reads. 

Reply Obj. 3. The law implies order to the end 
actively, in so far as it directs certain things to the 
end; but not passively, that is to say, the law itself 
is not ordained to the end, except accidentally, in a 
governor whose end is extrinsic to him, and to which 
end his law must needs be ordained. But the end 
of the Divine government is God Himself, and His 
law is not distinct from Himself. Wherefore the 
eternal law is not ordained to another end. 



14 TREATISE ON LAW 

SECOND ARTICLE 

WHETHER THERE IS A NATURAL LAW? 

We proceed thus to the Second Article: 

Objection i. It would seem that there is no natural 
law in us. Because man is governed sufficiently by the 
eternal law: for Augustine says (De Lib. Arb. i) 
that the eternal law is that by which it is right that 
all things should be most orderly. But nature does 
not abound in superfluities as neither does she fail 
in necessaries. Therefore no law is natural to man. 

Obj. 2. Further, by the law man is directed, in 
his acts, to the end, as stated above (Q. XC., A. 2). 
But the directing of human acts to their end is not 
a function of nature, as is the case in irrational 
creatures, which act for an end solely by their natural 
appetite; whereas man acts for an end by his reason 
and will. Therefore no law is natural to man. 

Obj. 3. Further, the more a man is free, the less 
is he under the law. But man is freer than all the 
animals, on account of his free-will, with which he 
is endowed above all other animals. Since therefore 
other animals are not subject to a natural law, neither 
is man subject to a natural law. 

On the contrary, A gloss on Rom. ii. 14: "When 
the Gentiles, who have not the law, do by nature 
those things that are of the law, comments as fol- 
lows: Although they have no written law, yet they 



OF THE VARIOUS KINDS OF LAW 1$ 

have the natural law, whereby each one knows, and 
is conscious of, what is good and what is evil. 

I answer that, As stated above (Q. XC., A. r ad 
i ) , law, being a rule and measure, can be in a person 
in two ways: in one way, as in him that rules and 
measures; in another way, as in that which is ruled 
and measured, since a thing is ruled and measured, in 
so far as it partakes of the rule or measure. Where- 
fore, since all things subject to Divine providence 
are ruled and measured by the eternal law, as was 
stated above (A. i ) ; it is evident that all things 
partake somewhat of the eternal law, in so far as, 
namely, from its being imprinted on them, they 
derive their respective inclinations to their proper 
acts and ends. Now among all others, the rational 
creature is subject to Divine providence in the most 
excellent way, in so far as it partakes of a share of 
providence, by being provident both for itself and 
for others. "Wherefore it has a share of the Eternal 
Reason, whereby it has a natural inclination to its 
proper act and end: and this participation of the 
eternal law in the rational creature is called the 
natural law. Hence the Psalmist after saying (Ps. iv. 
6) : Offer up the sacrifice of justice, as though some- 
one asked what the works of justice are, adds: Many 
say, Who showeth us good things? in answer to 
which question he says: The light of Thy counten- 
ance, O Lord, is signed upon us: thus implying that 
the light of natural reason, whereby we discern what 
is good and what is evil, which is the function of the 
natural law, is nothing else than an imprint on us of 



1 6 TREATISE ON LAW 

the Divine light. It is therefore evident that the 
natural hw is nothing else than the rational crea- 
ture's participation of the eternal law. 

Reply Ob}, i. This argument would hold, if the 
natural law were something different from the eternal 
law: whereas it is nothing but a participation thereof, 
as stated above. 

Reply Ob}. 2. Every act of reason and will in us 
is based on that which is according to nature, as 
stated above (Q. X., A. i): for every act of reason- 
ing is based on principles that are known naturally, 
and every act of appetite in respect of the means is 
derived from the natural appetite in respect of the 
last end. Accordingly the first direction of our acts 
to their end must needs be in virtue of the natural 
law. 

Reply Ob]. 3. Even irrational animals partake in 
their own way of the Eternal Reason, just as the 
rational creature does. But because the rational 
creature partakes thereof in an intellectual and ra- 
tional manner, therefore the participation of the 
eternal law in the rational creature is properly called 
a law, since a law is something pertaining to reason, 
as stated above (Q. XC., A. i). Irrational creatures, 
however, do not partake thereof in a rational man- 
ner, wherefore there is no participation of the eternal 
law in them, except by way of similitude. 



OF THE VARIOUS KINDS OF LAW 17 

THIRD ARTICLE 
WHETHER THERE IS A HUMAN LAW? 

We proceed thus to the Third Article: 

Objection i. It would seem that there is not a 
human law. For the natural law is a participation of 
the eternal law, as stated above (A. 2). Now through 
the eternal law all things are most orderly, as Augus- 
tine states (De Lib. Arb. i. 6). Therefore the natural 
law suffices for the ordering of all human affairs. 
Consequently there is no need for a human law. 

Obj. 2. Further, a law bears the character of a 
measure, as stated above (Q. XC., A. i). But human 
reason is not a measure of things, but vice versa, as 
stated in Metapb. x., text 5. Therefore no law can 
emanate from human reason. 

Obj. 3. Further a measure should be most certain, 
as stated in Metapb. x., text. 3. But the dictates of 
human reason in matters of conduct are uncertain, 
according to Wis. ix. 14: The thoughts of mortal 
men are fearful, and our counsels uncertain. There- 
fore no law can emanate from human reason. 

On the contrary, Augustine (De Lib. Arb. i. 6), 
distinguishes two kinds of law, the one eternal, the 
other temporal, which he calls human. 

I answer that, As stated above (Q. XC., A. i ad 
2), a law is a dictate of the practical reason. Now 
it is to be observed that the same procedure takes 



1 8 TREATISE ON LAW 

place in the practical and in the speculative reason: 
for each proceeds from principles to conclusions, as 
stated above (ibid.). Accordingly we conclude that 
just as, in the speculative reason, from naturally 
known indemonstrable principles, we draw the con- 
clusions of the various sciences, the knowledge of 
which is not imparted to us by nature, but acquired 
by the efforts of reason, so too it is from the precepts 
of the natural law, as from general and indemon- 
strable principles, that the human reason needs to 
proceed to the more particular determination of cer- 
tain matters. These particular determinations, devised 
by human reason, are called human laws, provided 
the other essential conditions of law be observed, as 
stated above (Q. XC, AA. 2, 3, 4). Wherefore 
Tully says in his Rhetoric (De Invent. Rhet. ii.) 
that justice has its source in nature; thence certain 
things came into custom by reason of their utility; 
afterwards these things which emanated from nature 
and were approved by custom, were sanctioned by 
fear and reverence for the law. 

Reply Ob), i. The human reason cannot have a 
full participation of the dictate of the Divine Reason, 
but according to its own mode, and imperfectly. 
Consequently, as on the part of the speculative rea- 
son, by a natural participation of Divine Wisdom, 
there is in us the knowledge of certain general prin- 
ciples, but not proper knowledge of each single truth, 
such as that contained in the Divine Wisdom; so too, 
on the part of the practical reason, man has a natural 
participation of the eternal law, according to certain 



OF THE VARIOUS KINDS OF LAW 19 

general principles, but not as regards the particular 
determinations of individual cases, which are, how- 
ever, contained in the eternal law. Hence the need 
for human reason to proceed further to sanction them 
by law. 

Reply Obj. 2. Human reason is not, of itself, the 
rule of things: but the principles impressed on it by 
nature, are general rules and measures of all things 
relating to human conduct, whereof the natural rea- 
son is the rule and measure, although it is not the 
measure of things that are from nature. 

Reply Obj. 3. The practical reason is concerned 
with practical matters, which are singular and con- 
tingent: but not with necessary things, with which 
the speculative reason is concerned. Wherefore human 
laws cannot have that inerrancy that belongs to the 
demonstrated conclusions of sciences. Nor is it neces- 
sary for every measure to be altogether unerring and 
certain, but according as it is possible in its own 
particular genus. 



FOURTH ARTICLE 

WHETHER THERE WAS ANY NEED FOR A 
DIVINE LAW? 



We proceed thus to the Fourth Article: 
Objection i. It would seem that there was no need 
for a Divine law. Because, as stated above (A. 2), 
the natural law is a participation in us of the eternal 



20 TREATISE ON LAW 

law. But the eternal law is a Divine law, as stated 
above (A. i ) . Therefore there is no need for a Divine 
law in addition to the natural law, and human laws 
derived therefrom. 

Ob}, z. Further, it is written (Ecclus. xv. 14) 
that God left man in the hand of his own counsel. 
Now counsel is an act of reason, as stated above (Q. 
XIV., A. i ) . Therefore man was left to the direction 
of his reason. But a dictate of human reason is a 
human law, as stated above (A. 3). Therefore there 
is no need for man to be governed also by a Divine 
law. 

Ob}. 3. Further, human nature is more self- 
sufficing than irrational creatures. But irrational crea- 
tures have no Divine law besides the natural in- 
clination impressed on them. Much less, therefore, 
should the rational creature have a Divine law in 
addition to the natural law. 

On the contrary, David prayed God to set His 
law before him, saying (Ps. cxviii. 33): Set before 
me for a law the way of Thy justifications, O Lord. 

I answer that, Besides the natural and the human 
law it was necessary for the directing of human con- 
duct to have a Divine law. And this for four reasons. 
First, because it is by law that man is directed how 
to perform his proper acts in view of his last end. 
And indeed if man were ordained to no other end 
than that which is proportionate to his natural 
faculty, there would be no need for man to have 
any further direction on the part of his reason, be- 
sides the natural law and human law which is 



OF THE VARIOUS KINDS OF LAW 21 

derived from it. But since man is ordained to an end 
of eternal happiness which is inproportionate to man's 
natural faculty, as stated above (Q. V., A. 5), there- 
fore it was necessary that, besides the natural and 
the human law, man should be directed to his end 
by a law given by God. 

Secondly, because, on account of the uncertainty 
of human judgment, especially on contingent and 
particular matters, different people form different 
judgments on human acts; whence also different and 
contrary laws result. In order, therefore, that man 
may know without any doubt what he ought to do 
and what he ought to avoid, it was necessary for man 
to be directed in his proper acts by a law given by 
God, for it is certain that such a law cannot err. 

Thirdly, because man can make laws in those 
matters of which he is competent to judge. But 
man is not competent to judge of interior move- 
ments, that are hidden, but only of exterior acts 
which appear: and yet for the perfection of virtue 
it is necessary for man to conduct himself aright in 
both kinds of acts. Consequently human law could 
not sufficiently curb and direct interior acts; and 
it was necessary for this purpose that a Divine law 
should supervene. 

Fourthly, because, as Augustine says (De Lib. Arb. 
i. 5, 6), human law cannot punish or forbid all evil 
deeds: since while aiming at doing away with all 
evils, it would do away with many good things, and 
would hinder the advance of the common good, 
which is necessary for human intercourse. In order 



22 TREATISE ON LAW 

therefore, that no evil might remain unforbidden 
and unpunished, it was necessary for the Divine law 
to supervene, whereby all sins are forbidden. 

And these four causes are touched upon in Ps. 
cxviii. 8, where it is said: The law of the Lord is 
unspotted, i.e., allowing no foulness of sin; con- 
verting souls, because it directs not only exterior, but 
also interior acts; the testimony of the Lord is faith- 
ful, because of the certainty of what is true and 
right; giving u-'isdom to little ones, by directing man 
to an end supernatural and Divine. 

Reply Obj. i. By the natural law the eternal law 
is participated proportionately to the capacity of 
human nature. But to his supernatural end man needs 
to be directed in a yet higher way. Hence the ad- 
ditional law given by God, whereby man shares more 
perfectly in the eternal law. 

Reply Obj. 2. Counsel is a kind of inquiry: hence 
it must proceed from some principles. Nor is it 
enough for it to proceed from principles imparted 
by nature, which are the precepts of the natural law, 
for the reasons given above: but there is need for 
certain additional principles, namely, the precepts of 
the Divine law. 

Reply Obj. 3. Irrational creatures are not ordained 
to an end higher than that which is proportionate 
to their natural powers: consequently the comparison 
fails. 



OF THE VARIOUS KINDS OF LAW- 
FIFTH ARTICLE 

WHETHER THERE IS BUT ONE DIVINE LAW? 



We proceed thus to the Fifth Article: 

Objection i. It would seem that there is but one 
Divine law. Because, where there is one king in one 
kingdom there is but one law. Now the whole of 
mankind is compared to God as to one king, accord- 
ing to Ps. xlvi. 8 : God is King of all the earth. There- 
fore there is but one Divine law. 

Ob}. 2. Further, every law is directed to the end 
which the lawgiver intends for those for whom he 
makes the law. But God intends one and the same 
thing for all men; since according to i Tim. ii. 4: 
He will have all men to be saved, and to come to the 
knowledge of the truth. Therefore there is but one 
Divine law. 

Ob}. 3. Further, the Divine law seems to be more 
akin to the eternal law, which is one, than the natural 
law, according as the revelation of grace is of a higher 
order than natural knowledge. Therefore much more 
is the Divine law but one. 

On the contrary. The Apostle says (Heb. vii. 12) : 
The priesthood being translated, it is necessary that 
a translation also be made of the law. But the priest- 
hood is twofold, as stated in the same passage, viz., 



24 TREATISE ON LAW 

the levitical priesthood, and the priesthood of Christ. 
Therefore the Divine law is twofold, namely, the 
Old Law and the New Law. 

/ answer that, As stated in the First Part (Q. 
XXX., A. 3), distinction is the cause of number. 
Now things may be distinguished in two ways. First, 
as those things that are altogether specifically dif- 
ferent, e.g.) a horse and an ox. Secondly, as per- 
fect and imperfect in the same species, e.g., a boy 
and a man: and in this way the Divine law is divided 
into Old and New. Hence the Apostle (Gal. iii. 24, 
25) compares the state of man under the Old Law 
to that of a child under a pedagogue; but the state 
under the New Law, to that of a full grown man, 
who is no longer under a pedagogue. 

Now the perfection and imperfection of these two 
laws is to be taken in connection with the three 
conditions pertaining to law, as stated above. For, 
in the first place, it belongs to law to be directed to 
the common good as to its end, as stated above (Q. 
XC., A. 2 ) . This good may be twofold. It may be a 
sensible and earthly good; and to this, man was 
directly ordained by the Old Law: wherefore, at the 
very outset of the law, the people were invited to 
the earthly kingdom of the Chananaeans (Exod. iii. 
8, 17). Again it may be an intelligible and- heavenly 
good: and to this, man is ordained by the New Law. 
Wherefore, at the very beginning of His preaching, 
Christ invited men to the kingdom of heaven, saying 
(Matth. iv. 17) : Do penance, for the kingdom of 
heaven is at hand. Hence Augustine says (Contra 



OF THE VARIOUS KINDS OF LAW 25 

Faust, iv.) that promises of temporal goods are con- 
tained in the Old Testament, for which reason it is 
called old; but the promise of eternal life belongs 
to the New Testament. 

Secondly, it belongs to the law to direct human 
acts according to the order of righteousness (A. 4) : 
wherein also the New Law surpasses the Old Law, 
since it directs our internal acts, according to Matth. 
v. 20: Unless your justice abound more than that of 
the Scribes and Pharisees, you shall not enter into 
the kingdom of heaven. Hence the saying that the 
Old Law restrains the hand, but the New Law con- 
trols the mind (3 Sentent., D. xl.). 

Thirdly, it belongs to the law to induce men to 
observe its commandments. This the Old Law did by 
the fear of punishment: but the New Law, by love, 
which is poured into our hearts by the grace of 
Christ, bestowed in the New Law, but foreshadowed 
in the Old. Hence Augustine says (Contra Adimant. 
Manicb. disci p. xvii.) that there is little difference* 
between the Law and the Gospel fear and love. 

Reply Obj. i. As the father of a family issues 
different commands to the children and to the adults, 
so also the one King, God, in his one kingdom, gave 
one law to men, while they were yet imperfect, and 
another more perfect law, when, by the preceding 
law, they had been led to a greater capacity for 
Divine things. 

Reply Obj. 2. The salvation of man could not be 

* The little difference refers to the Latin words thttor and 
amor, fear and love. 



26 TREATISE ON LAW 

achieved otherwise than through Christ, according to 
Acts iv. 12: There is no other name . . . given to 
-men, whereby we must be saved. Consequently the 
law that brings all to salvation could not be given 
until after the coming of Christ. But before His 
coming it was necessary to give to the people, of 
whom Christ was to be born, a law containing cer- 
tain rudiments of righteousness unto salvation, in 
order to prepare them to receive Him. 

Reply Ob}. 3. The natural law directs man by way 
of certain general precepts, common to both the per- 
fect and the imperfect: wherefore it is one and the 
same for all. But the Divine law directs man also in 
certain particular matters, to which the perfect and 
imperfect do not stand in the same relation. Hence 
the necessity for the Divine law to be twofold, as 
already explained. 



SIXTH ARTICLE 
WHETHER THERE IS A LAW IN THE FOMES 

OF SIN? 



We proceed thus to the Sixth Article: 
Objection i . It would seem that there is no law of 
the 'fomes' of sin. For Isidore says (Etym. v.) that 
the law is based on reason. But the 'fomes' of sin is 
not based on reason, but deviates from it. Therefore 
the 'f omes* has not the nature of a law. 

Obj. 2. Further, every law is binding, so that those 



OF THE VARIOUS KINDS OF LAW 27 

who do not obey it are called transgressors. But man 
is not called a transgressor, from not following the 
instigations of the 'fomes'; but rather from his 
following them. Therefore the Domes' has not the 
nature of a law. 

Obj. 3. Further, the law is ordained to the com- 
mon good, as stated above (Q. XC., A. 2). But the 
'femes' inclines us, not to the common, but to our 
own private good. Therefore the 'fomes' has not the 
nature of sin. 

On the contrary, The Apostle says (Rom. vii. 23) : 
I see another law in my members, fighting against the 
law of my mind. 

I answer that, As stated above (A. 2; Q. XC., A. 
i ad i ) , the law, as to its essence, resides in him that 
rules and measures; but, by way of participation, in 
that which is ruled and measured; so that every in- 
clination or ordination which may be found in things 
subject to the law, is called a law by participation, as 
stated above (ibid.). Now those who are subject to 
a law may receive a twofold inclination from the 
lawgiver. First, in so far as he directly inclines his 
subjects to something; sometimes indeed different sub- 
jects to different acts; in this way we may say that 
there is a military law and a mercantile law. Secondly, 
indirectly; thus by the very fact that a lawgiver 
deprives a subject of some dignity, the latter passes 
into another order, so as to be under another law, as 
it were: thus if a soldier be turned out of the army, 
he becomes a subject of rural or of mercantile legisla- 
tion* 



28 TREATISE ON LAW 

Accordingly under the Divine Lawgiver various 
creatures have various natural inclinations, so that 
what is, as it were, a law for one, is against the law 
for another: thus I might say that fierceness is, in a 
way, the law of a dog, but against the law of a sheep 
or another meek animal. And so the law of man, 
which, by the Divine ordinance, is alloted to him, 
according to his proper natural condition, is that he 
should act in accordance with reason: and this law 
was so effective in the primitive state, that nothing 
either beside or against reason could take man un- 
awares. But when man turned his back on God, he 
fell under the influence of his sensual impulses: in 
fact this happens to each one individually, the more 
he deviates from the path of reason, so that, after 
a fashion, he is likened to the beasts that are led by 
the impulse of sensuality, according to Ps. xlviii. 21: 
Man, when he was in honour, did not understand: 
he hath been compared to senseless beasts, and made 
like to them. 

So, then, this very inclination of sensuality which 
is called the 'fomes,' in other animals has simply the 
nature of a law, (yet only in so far as a law may be 
said to be in such things), by reason of a direct 
inclination. But in man, it has not the nature of law 
in this way, rather is it a deviation from the law 
of reason. But since, by the just sentence of God, 
man is destitute of original justice, and his reason 
bereft of its vigour, this impulse of sensuality, 
whereby he is led, in so far as it is a penalty follow- 



OF THE VARIOUS KINDS OF LAW 29 

ing from the Divine law depriving man of his proper 
dignity, has the nature of a law. 

Reply Ob), i. This argument considers the *fomes' 
in itself, as an incentive to evil. It is not thus that 
it has the nature of a law, as stated above, but 
according as it results from the justice of the Divine 
law: it is as though we were to say that the law 
allows a nobleman to be condemned to hard labour 
for some misdeed. 

Reply Ob]. 2. This argument considers law in the 
light of a rule or measure: for it is in this sense that 
those who deviate from the law become transgres- 
sors. But the 'fomes' is not a law in this respect, but 
by a kind of participation, as stated above. 

Reply Ob}. 3. This argument considers the 'femes' 
as to its proper inclination, and not as to its origin. 
And yet if the inclination of sensuality be con- 
sidered as it is in other animals, thus it is ordained 
to the common good, namely, to the preservation of 
nature in the species or in the individual. And this 
is in man also, in so far as sensuality is subject to 
reason. But it is called the 'femes' in so far as it 
strays from the order of reason. 



30 TREATISE ON LAW 

QUESTION 92 

OF THE EFFECTS OF LAW 
(In Two Articles) 

WE must now consider the effects of law; under 
which head there are two points of inquiry: (i) 
Whether an effect of law is to make men good? (2) 
Whether the effects of law are to command, to for- 
bid, to permit, and to punish, as the Jurist states? 

FIRST ARTICLE 
WHETHER AN EFFECT OF LAW IS TO MAKE MEN GOOD? 

We proceed thus to the First Article: 
Objection i. It seems that it is not an effect of 
law to make men good. For men are good through 
virtue, since virtue, as stated in Ethic, ii. 6 is that 
which makes its subject good. But virtue is in man 
from God alone, because He it is Who works it in 
us without us, as we stated above (Q. LV., A. 4) 
in giving the definition of virtue. Therefore the law 
does not make men good. 

Qbj. 2. Further, Law does not profit a man unless 
he obeys it. But the very fact that a man obeys a 
law is due to his being good. Therefore in man good- 



OF THE EFFECTS OF LAW 31 

ness is presupposed to the law. Therefore the law does 
not make men good. 

Obj. 3. Further, Law is ordained to the common 
good, as stated above (Q. XC., A. 2). But some be- 
have well in things regarding the community, who 
behave ill in things regarding themselves. Therefore 
it is not the business of the law to make men good. 

Ob}. 4. Further, some laws are tyrannical, as the 
Philosopher says (Polit. iii. 6). But a tyrant does not 
intend the good of his subjects, but considers only 
his own profit. Therefore law does not make men- 
good. 

On the contrary, The Philosopher says (Ethic, ii. 
i) that the intention of every lawgiver is to make 
good citizens. 

I answer that, As stated above (Q. XC., A. i ad z; 
AA. 3, 4), a law is nothing else than a dictate of 
reason in the ruler by whom his subjects are governed. 
Now the virtue of any subordinate thing consists in 
its being well subordinated to that by which it is 
regulated: thus we see that the virtue of the iras- 
cible and concupiscible faculties consists in their 
being obedient to reason; and accordingly the virtue 
of every subject consists in his being well subjected 
to his ruler, as the Philosopher says (Polit. i.). But 
every law aims at being obeyed by those who are 
subject to it. Consequently it is evident that the 
proper effect of law is to lead its subjects to their 
proper virtue: and since virtue is that which makes 
its subject good, it follows that the proper effect of 
law is to make those to whom it is given, good, 



32 TREATISE ON LAW 

either simply or in some particular respect. For if 
the intention of the lawgiver is fixed on true good, 
which is the common good regulated according to 
Divine justice, it follows that the effect of the law is 
to make men good simply. If, however, the intention 
of the lawgiver is fixed on that which is not simply 
good, but useful or pleasurable to himself, or in 
opposition to Divine justice; then the law does not 
make men good simply, but in respect to that particu- 
lar government. In this way good is found even in 
things that are bad of themselves: thus a man is 
called a good robber, because he works in a way that 
is adapted to his end. 

Reply Obj. i. Virtue is twofold, as explained above 
(Q. LXIIL, A. 2), viz., acquired and infused. Now 
the fact of being accustomed to an action contrib- 
utes to both, but in different ways; for it causes 
the acquired virtue; while it disposes to infused virtue, 
and preserves and fosters it when it already exists. 
And since law is given for the purpose of directing 
human acts; as far as human acts conduce to virtue, 
so far does law make men good. Wherefore the 
Philosopher says in the second book of the Politics 
(Ethic, ii.) that lawgivers make -men good by habit- 
uating them to good works. 

Reply Obj. 2. It is not always through perfect 
goodness of virtue that one obeys the law, but some- 
times it is through fear of punishment, and some- 
times from the mere dictate of reason, which is a 
beginning of virtue, as stated above (Q. LXIIL, A. 

0- 



OF THE EFFECTS OF LAW 33 

Reply Obj. 3. The goodness of any part is con- 
sidered in comparison with the whole; hence Au- 
gustine says (Conf. iii.) that unseemly is the part 
that harmonizes not with the whole. Since then every 
man is a part of the state, it is impossible that a man 
be good, unless he be well proportionate to the com- 
mon good: nor can the whole be well consistent 
unless its parts be proportionate to it. Consequently 
the common good of the state cannot flourish, unless 
the citizens be virtuous, at least those whose business 
it is to govern. But it is enough for the good of the 
community, that the other citizens be so far virtuous 
that they obey the commands of their rulers. Hence 
the Philosopher says (Pol it. iii. 2) that the virtue of 
a sovereign is the same as that of a good man y but 
the virtue of any common citizen is not the same as 
that of a good man. 

Reply Obj. 4. A tyrannical law, through not being 
according to reason, is not a law, absolutely speaking, 
but rather a perversion of law; and yet in so far as it 
is something in the nature of a law, it aims at the 
citizens being good. For all it has in the nature of a 
law consists in its being an ordinance made by a 
superior to his subjects, and aims at being obeyed by 
them, which is to make them good, not simply, but 
with respect to that particular government. 



34 TREATISE ON LAW 



SECOND ARTICLE 

WHETHER THE ACTS OF LAW ARE SUITABLY 
ASSIGNED? 



We proceed thus to the Second Article: 

Objection i. It would seem that the acts of law 
are not suitably assigned as consisting in command, 
prohibition, permission and punishment. For every 
law is a general precept, as the jurist states (ibid.) 
But command and precept are the same. Therefore 
the other three are superfluous. 

Obj. 2. Further, the effect of a law is to induce its 
subjects to be good, as stated above (A. i). But 
counsel aims at a higher good than a command does. 
Therefore it belongs to law to counsel rather than 
to command. 

Obj. 3. Further, just as punishment stirs a man to 
good deeds, so does reward. Therefore if to punish 
is reckoned an effect of law, so also is to reward. 

Obj. 4. Further, the intention of a lawgiver is to 
make men good, as stated above (A. i ) . But he that 
obeys the law, merely through fear of being punished, 
is not good: because although a good deed may be 
done through servile fear, i.e., fear of punishment, it 
is not done well, as Augustine says (Contra duas 
Epist. Pelag. ii.) . Therefore punishment is not a proper 
effect of law. 

On the contrary, Isidore says (Etym. v. 19) : Every 



OF THE EFFECTS OF LAW 35 

law either permits something, as: ( A brave man may 
demand his reward 3 : or forbids something, as: 'No 
man may ask a consecrated virgin in marriage 9 : or 
punishes, as: f Let him that commits a murder be put 
to death. 9 

I answer that, Just as an assertion is a dictate of 
reason asserting something, so is a law a dictate of 
reason, commanding something. Now it is proper to 
reason to lead from one thing to another. Wherefore 
just as, in demonstrative sciences, the reason leads us 
from certain principles to assent to the conclusion, 
so it induces us by some means to assent to the pre- 
cept of the law. 

Now the precepts of law are concerned with hu- 
man acts, in which the law directs, as stated above 
(Q. XC, AA. i, 2; Q. XCL, A. 4). Again, there 
are three kinds of human acts: for, as stated above 
(Q. XVIIL, A. 8), some acts are good generically, 
viz., acts of virtue; and in respect of these the 
act of the law is a precept or command, for the law 
commands all acts of virtue (Ethic, v. i). Some acts 
are evil generically, viz., acts of vice, and in respect 
of these the law forbids. Some acts are generically 
indifferent, and in respect of these the law permits; 
and all acts that are either not distinctly good or not 
distinctly bad may be called indifferent. And it is 
the fear of punishment that law makes use of in 
order to ensure obedience: in which respect punish- 
ment is an effect of law. 

Reply Obj. i. Just as to cease from evil is a kind 
of good, so a prohibition is a kind of precept: and 



3 6 TREATISE ON LAW 

accordingly, taking precept in a wide sense, every 
law is a kind of precept. 

Reply Obj. 2. To advise is not a proper act of law, 
but may be within the competency even of a private 
person, who cannot make a law. Wherefore too the 
Apostle, after giving a certain counsel (i Cor. vii. 
12) says: I speak, not the Lord. Consequently it is 
not reckoned as an effect of law. 

Reply Obj. 3. To reward may also pertain to any- 
one: but to punish pertains to none but the framer of 
the law, by whose authority the pain is inflicted. 
Wherefore to reward is not reckoned an effect of law, 
but only to punish. 

Reply Obj. 4. From becoming accustomed to avoid 
evil and fulfil what is good, through fear of punish- 
ment, one is sometimes led on to do so likewise, with 
delight and of one's own accord. Accordingly, law, 
even by punishing, leads men on to being good. 



QUESTION 93 
OF THE ETERNAL LAW 

(In Six Articles) 

WE must now consider each law by itself; and (i) 
The eternal law: (2) The natural law: (3) The 
human law: (4) The old law: (5) The new law, 
which is the law of the Gospel. Of the sixth law 
which is the law of the 'fomes,' suffice what we have 
said when treating of original sin. 



OF THE ETERNAL LAW 37 

Concerning the first there are six points o in- 
quiry: (i) What is the eternal law? (2) Whether it 
is known to all? (3) Whether every law is derived 
from it? (4) Whether necessary things are subject 
to the eternal law? (5) Whether natural contingen- 
cies are subject to the eternal law? (6) Whether all 
human things are subject to it? 



FIRST ARTICLE 
WHETHER THE ETERNAL LAW IS A SOVEREIGN TYPE* 

EXISTING IN GOD? 

We proceed thus to the First Article: 

Objection i. It would seem that the eternal law 
is not a sovereign type existing in God. For there is 
only one eternal law. But there are many types of 
things in the Divine mind; for Augustine says (Q#. 
Ixxxiii., qu. 46) that God made each thing according 
to its type. Therefore the eternal law does not seem 
to be a type existing in the Divine mind. 

Obj. 2. Further, it is essential to a law that it be 
promulgated by word, as stated above (Q. XQ, A. 
4) . But Word is a Personal name in God, as stated in 
the First Part (Q. XXXIV., A. i): whereas type 
refers to the Essence. Therefore the eternal law is not 
the same as a Divine type. 

Ob}. 3. Further, Augustine says (De Vera Relig. 
xxx.) : We see a law above our minds, which is 

* Ratio. 



38 TREATISE ON LAW 

called truth. But the law which is above our minds 
is the eternal law. Therefore truth is the eternal law. 
But the idea of truth is not the same as the idea of 
a type. Therefore the eternal law is not the same as 
the sovereign type. 

On the contrary, Augustine says (De Lib. Arb. i. 
6) that the eternal law is the sovereign type, to 
which we must always conform. 

1 ansiver that, Just as in every artificer there pre- 
exists a type of the things that are made by his art, 
so too in every governor there must pre-exist the type 
of the order of those things that are to be done by 
those who are subject to his government. And just 
as the type of the things yet to be made by an art is 
called the art or exemplar of the products of that 
art, so too the type in him who governs the acts of 
his subjects, bears the character of a law, provided 
the other conditions be present which we have men- 
tioned above (Q. XC.). Now God, by His wisdom, 
is the Creator of all things, in relation to which He 
stands as the artificer to the products of his art, as 
stated in the First Part (Q. XIV., A. 8). Moreover 
He governs all the acts and movements that are to 
be found in each single creature, as was also stated 
in the First Part (Q. GUI., A. 5). Wherefore as the 
type of the Divine Wisdom, inasmuch as by It all 
things are created, has the character of art, exemplar 
or idea; so the type of Divine Wisdom, as moving all 
things to their due end, bears the character of law. 
Accordingly the eternal law is nothing else than the 



OF THE ETERNAL LAW 39 

type of Divine Wisdom, as directing all actions and 
movements. 

Reply Obj. i. Augustine is speaking in that passage 
of the ideal types which regard the proper nature of 
each single thing; and consequently in them there is 
a certain distinction and plurality, according to their 
different relations to things, as stated in the First 
Part (Q. XV., A. 2). But law is said to direct hu- 
man acts by ordaining them to the common good, 
as stated above (Q. XC., A. 2). And things, which 
are in themselves different, may be considered as one, 
according as they are ordained to one common thing. 
Wherefore the eternal law is one since it is the type 
of this order. 

Reply Obj. 2. With regard to any sort of word, 
two points may be considered: viz., the word itself, 
and that which is expressed by the word. For the 
spoken word is something uttered by the mouth of 
man, and expresses that which is signified by the 
human word. The same applies to the human mental 
word, which is nothing else than something conceived 
by the mind, by which man expresses his thoughts 
mentally. So then in God the Word conceived by the 
intellect of the Father is the name of a Person: but 
all things that are in the Father's knowledge, whether 
they refer to the Essence or to the Persons, or to the 
works of God, are expressed by this Word, as Au- 
gustine declares (De Trin. xv. 14) . And among other 
things expressed by this Word, the eternal law itself 
is expressed thereby. Nor does it follow that the 



40 TREATISE ON LAW 

eternal law is a Personal name in God: yet it is 
appropriated to the Son, on account of the kinship 
between type and word. 

Reply Ob]. 3. The types of the Divine intellect do 
not stand in the same relation to things, as the types 
of the human intellect. For the human intellect is 
measured by things, so that a human concept is not 
true by reason of itself, but by reason of its being 
consonant with things, since an opinion is true or 
false according as it ansivers to the reality. But the 
Divine intellect is the measure of things: since each 
thing has so far truth in it, as it represents the 
Divine intellect, as was stated in the First Part (Q. 
XVI., A. i). Consequently the Divine intellect is 
true in itself; and its type is truth itself. 



SECOND ARTICLE 
WHETHER THE ETERNAL LAW IS KNOWN TO ALL? 

We proceed thus to the Second Article: 
Objection i. It would seem that the eternal law 
is not known to all. Because, as the Apostle says (i 
Cor. ii. n), the things that are of God no man 
knowethy but the Spirit of God. But the eternal law 
is a type existing in the Divine mind. Therefore it 
is unknown to all save God alone. 

Ob}. 2. Further, as Augustine says (De Lib. Arb. 
i. 6) the eternal law is that by which it is right that 
all things should be most orderly. But all do not 



OF THE ETERNAL LAW 41 

know how all things are most orderly. Therefore all 
do not know the eternal law. 

Ob}. 3. Further, Augustine says (De Vera Relig. 
xxxi.) that the eternal law is not subject to the 
judgment of man. But according to Ethic, i. any man 
can jiidge well of what he knows. Therefore the 
eternal law is not known to us. 

On the contrary } Augustine says (De Lib. Arb. i. 
6) that knowledge of the eternal law is imprinted on 
us. 

I answer that, A thing may be known in two ways: 
first, in itself; secondly, in its effect, wherein some 
likeness of that thing is found: thus someone not 
seeing the sun in its substance, may know it by its 
rays. So then no one can know the eternal law, as it 
is in itself, except the blessed who see God in His 
Essence. But every rational creature knows it in its 
reflection, greater or less. For every knowledge of 
truth is a kind of reflection and participation of the 
eternal law, which is the unchangeable truth, as 
Augustine says (De Vera Relig. xxxi.). Now all men 
know the truth to a certain extent, at least as to 
the common principles of the natural law: and as to 
the others, they partake of the knowledge of truth, 
some more, some less; and in this respect are more or 
less cognizant of the eternal law. 

Reply Obj. i. We cannot know the things that are 
of God, as they are in themselves; but they are made 
known to us in their effects, according to Rom. i. 
20: The invisible things of God . . . a re clearly seen, 
being understood by the things that are made. 



42 TREATISE ON LAW 

Reply Obj. 2. Although each one knows the eternal 
law according to his own capacity, in the way ex- 
plained above, yet none can comprehend it: for it 
cannot be made perfectly known by its effects. 
Therefore it does not follow that anyone who knows 
the eternal law in the way aforesaid, knows also 
the whole order of things, whereby they are most 
orderly. 

Reply Ob}. 3. To judge of a thing may be under- 
stood in two ways. First, as when a cognitive power 
judges of its proper object, according to Job xii. n: 
Doth not the ear discern words, and the palate of 
him that eateth, the taste? It is to this kind of 
judgment that the Philosopher alludes when he says 
that anyone can judge well of what he knows, by 
judging, namely, whether what is put forward is true. 
In another way we speak of a superior judging of a 
subordinate by a kind of practical judgment, as to 
whether he should be such and such or not. And thus 
none can judge of the eternal law. 



THIRD ARTICLE 

WHETHER EVERY LAW IS DERIVED FROM THE 
ETERNAL LAW? 



We proceed thus to the Third Article: 
Objection i. It would seem that not every law is 
derived from the eternal law. For there is a law of 
the 'fomes,' as stated above (Q. XCL, A. 6), which 



OF THE ETERNAL LAW 43 

is not derived from that Divine law which is the 
eternal law, since thereunto pertains the prudence of 
the flesh) of which the Apostle says (Rom. viii. 7), 
that it cannot be subject to the laiv of God. There- 
fore not every law is derived from the eternal law. 

Obj. 2. Further, nothing unjust can be derived 
from the external law, because, as stated above (A. 
2, Obj. 2), the eternal laiv is that, according to 
which it is right that all things should be most 
orderly. But some laws are unjust, according to Isa. 
x. i : Woe to them that make wicked laws. Therefore 
not every law is derived from the eternal law. 

Obj. 3. Further, Augustine says (De Lib. Arb. 
i. 5) that the law which is framed for ruling the 
people, rightly permits many things which are pun- 
ished by Divine providence. But the type of Divine 
providence is the eternal law, as stated above (A. i). 
Therefore not even every good law is derived from 
the eternal law. 

On the contrary, Divine Wisdom says (Prov. viii. 
15): By Me kings reign, and lawgivers decree just 
things. But the type of Divine Wisdom is the eternal 
law, as stated above (A. i). Therefore all laws pro- 
ceed from the eternal law. 

/ answer that, As stated above (Q. XC., A A. i, 
2), law denotes a kind of plan directing acts towards 
an end. Now wherever there are movers ordained to 
one another, the power of the second mover must 
needs be derived from the power of the first mover; 
since the second mover does not move except in so 
far as it is moved by the first. Wherefore we observe 



44 TREATISE ON LAW 

the same in all those who govern, so that the plan 
of government is derived by secondary governors 
from the governor in chief: thus the plan of what 
is to be done in a state flows from the king's com- 
mand to his inferior administrators: and again in 
things of art the plan of whatever is to be done by 
art flows from the chief craftsman to the under- 
craftsmen who work with their hands. Since then 
the eternal law is the plan of government in the Chief 
Governor, all the plans of government in the inferior 
governors must be derived from the eternal law. But 
these plans of inferior governors are all other laws 
besides the eternal law. Therefore all laws, in so far 
as they partake of right reason, are derived from the 
eternal law. Hence Augustine says (De Lib. Arb. i. 
6) that in temporal law there is nothing just and 
lawful, but what man has drawn from the eternal 
law. 

Reply Ob}, i. The 'fomes* has the nature of law 
in man, in so far as it is a punishment resulting from 
Divine justice; and in this respect it is evident that 
it is derived from the eternal law. But 'in so far as it 
denotes a proneness to sin, it is contrary to the Divine 
law, and has not the nature of law, as stated above 
(Q. XCL, A. 6). 

Reply Obj. 2. Human law has the nature of law 
in so far as it partakes of right reason; and it is 
clear that, in this respect, it is derived from the 
eternal law. But in so far as it deviates from reason, 
it is called an unjust law, and has the nature, not 
of law but of violence. Nevertheless even an unjust 



OF THE ETERNAL LAW 45 

law, in so far as it retains some appearance of law, 
though being framed by one who is in power, is 
derived from the eternal law; since all power is from 
the Lord God, according to Rom. xiii. i. 

Reply Obj. 3. Human law is said to permit certain 
things, not as approving of them, but as being un- 
able to direct them. And many things are directed 
by the Divine law, which human law is unable to 
direct, because more things are subject to a higher 
than to a lower cause. Hence the very fact that 
human law does not meddle with matters it cannot 
direct, comes under the ordination of the eternal law. 
It would be different, were human law to sanction 
what the eternal law condemns. Consequently it does 
not follow that human law is not derived from the 
eternal law, but that it is not on a perfect equality 
with it. 



FOURTH ARTICLE 

WHETHER NECESSARY AND ETERNAL THINGS ARE 
SUBJECT TO THE ETERNAL LAW? 

We proceed thus to the fourth Article: 
Objection i. It would seem that necessary and 
eternal things are subject to the eternal law. For 
whatever is reasonable is subject to reason. But the 
Divine will is reasonable, for it is just. Therefore it 
is subject to (the Divine) reason. But the eternal law 
is the Divine reason. Therefore God's will is sub- 



4$ TREATISE ON LAW 

ject to the eternal law. But God's will is eternal. 
Therefore eternal and necessary things are subject to 
the eternal law. 

Ob). 2. Further, whatever is subject to the King, 
is subject to the King's law. Now the Son, according 
to i Cor. xv. 28, 24, shall be subject . . . to God and 
the Father) . . . when He shall have delivered up the 
Kingdom to Him. Therefore the Son, Who is eternal, 
is subject to the eternal law. 

Ob). 3. Further, the eternal law is Divine provi- 
dence as a type. But many necessary things are sub- 
ject to Divine providence: for instance, the stability 
of incorporeal substances and of the heavenly bodies. 
Therefore even necessary things are subject to the 
eternal law. 

On the contrary) Things that are necessary cannot 
be otherwise, and consequently need no restraining. 
But laws are imposed on men, in order to restrain 
them from evil, as explained above (Q. XCIL, A. 
2). Therefore necessary things are not subject to the 
eternal law. 

I answer that. As stated above (A. i), the eternal 
law is the type of the Divine government. Con- 
sequently whatever is subject to the Divine govern- 
ment, is subject to the eternal law: while if anything 
is not subject to the Divine government, neither is it 
subject to the eternal law. The application of this 
distinction may be gathered by looking around us. 
For those things are subject to human government, 
which can be done by man; but what pertains to the 
nature of man is not subject to human government; 



OF THE ETERNAL LAW 47 

for instance, that he should have a soul, hands, or 
feet. Accordingly all that is in things created by 
God, whether it be contingent or necessary, is subject 
to the eternal law: while things pertaining to the 
Divine Nature or Essence are not subject to the 
eternal law, but are the eternal law itself. 

Reply Obj. i. We may speak of God's will in two 
ways. First, as to the will itself: and thus, since God's 
will is His very Essence, it is subject neither to the 
Divine government, nor to the eternal law, but is 
the same thing as the eternal law. Secondly, we may 
speak of God's will, as to the things themselves that 
God wills about creatures; which things are subject 
to the eternal law, in so far as they are planned by 
Divine Wisdom. In reference to these things God's 
will is said to be reasonable (rationalis) : though re- 
garded in itself it should rather be called their type 
(ratio) . 

Reply Obj. 2. God the Son was not made by God, 
but was naturally born of God. Consequently He is 
not subject to Divine providence or to the eternal 
law: but rather is Himself the eternal law by a kind 
of appropriation, as Augustine explains (De Vera 
Relig. xxxi.). But He is said to be subject to the 
Father by reason of His human nature, in respect of 
which also the Father is said to be greater than He. 

The third objection we grant, because it deals with 
those necessary things that are created. 

Reply Obj. 4. As the Philosopher says (Metaph. v., 
text. 6), some necessary things have a cause of their 
necessity: and thus they derive from something else 



48 TREATISE ON LAW 

the fact that they cannot be otherwise. And this is 
in itself a most effective restraint; for whatever is 
restrained, is said to be restrained in so far as it cannot 
do otherwise than it is allowed to. 



FIFTH ARTICLE 

WHETHER NATURAL CONTINGENTS ARE SUBJECT 
TO THE ETERNAL LAW? 



We proceed thus to the Fifth Article: 

Objection i. It would seem that natural contin- 
gents are not subject to the eternal law. Because pro- 
mulgation is essential to law, as stated above (Q. XC., 
A. 4). But a law cannot be promulgated except to 
rational creatures, to whom it is possible to make an 
announcement. Therefore none but rational creatures 
are subject to the eternal law; and consequently na- 
tural contingents are not. 

Ob}. 2. Further, "Whatever obeys reason partakes 
somewhat of reason, as stated in Ethic, i. But the 
eternal law is the supreme type, as stated above (A. 
i ) . Since then natural contingents do not partake of 
reason in any way, but are altogether void of reason, 
it seems that they are not subject to the eternal law. 

Ob}. 3. Further, the eternal law is most efficient. 
But in natural contingents defects occur. Therefore 
they are not subject to the eternal law. 

On the contrary 9 It is written (Prov. viii. 29): 
When He compassed the sea with its bounds, and set 



OF THE ETERNAL LAW 49 

a law to the waters, that they should not pass their 
limits. 

I answer that, We must speak otherwise of the law 
of man, than of the eternal law which is the law of 
God. For the law of man extends only to rational 
creatures subject to man. The reason of this is because 
law directs the actions of those that are subject to 
the government of someone; wherefore, properly 
speaking, none imposes a law on his own actions. 
Now whatever is done regarding the use of irrational 
things subject to man, is done by the act of man 
himself moving those things, for these irrational crea- 
tures do not move themselves, but are moved by 
others, as stated above (Q. I., A. 2). Consequently 
man cannot impose laws on irrational beings, how- 
ever much they may be subject to him. But he can 
impose laws on rational beings subject to him, in so 
far as by his command or pronouncement of any 
kind, he imprints on their minds a rule which is a 
principle of action. 

Now just as man, by such pronouncements, im- 
presses a kind of inward principle of action on the 
man that is subject to him, so God imprints on the 
whole of nature the principles of its proper actions. 
And so, in this way, God is said to command the 
whole of nature, according to Ps. cxlviii. 6: He hath 
made a decree, and it shall not pass away. And thus 
all actions and movements of the whole of nature are 
subject to the eternal law. Consequently irrational 
creatures are subject to the eternal law, through 
being moved by Divine providence; but not, as ra- 



50 TREATISE ON LAW 

tional creatures are, through understanding the 
Divine commandment. 

Reply Ofy. i. The impression of an inward active 
principle is to natural things, what the promulgation 
of law is to men: because law, by being promulgated, 
imprints on man a directive principle of human 
actions, as stated above. 

Reply Ob}. 2. Irrational creatures neither partake 
of nor are obedient to human reason: whereas they do 
partake of the Divine Reason by obeying it; because 
the power of Divine Reason extends over more things 
than human reason does. And as the members of the 
human body are moved at the command of reason, 
and yet do not partake of reason, since they have no 
apprehension subordinate to reason; so too irrational 
creatures are moved by God, without, on that ac- 
count, being rational. 

Reply Obj. 3. Although the defects which occur 
in natural things are outside the order of particular 
causes, they are not outside the order of universal 
causes, especially of the First Cause, i.e., God, from 
Whose providence nothing can escape, as stated in 
the First Part (Q. XXII., A. 2). And since the 
eternal law is the type of Divine providence, as stated 
above (A. i), hence the defects of natural things are 
subject to the eternal law. 



OF THE ETERNAL LAW 51 



SIXTH ARTICLE 

WHETHER ALL HUMAN AFFAIRS ARE SUBJECT 
TO THE ETERNAL LAW? 

We proceed thus to the Sixth Article: 

Objection i. It would seem that not all human 
affairs are subject to the eternal law. For the Apostle 
says (Gal. v. 18): If you are led by the spirit you 
are not under the law. But the righteous who are the 
sons of God by adoption, are led by the spirit of God, 
according to Rom. viii. 14: Whosoever are led by 
the Spirit of God, they are the sons of God. Therefore 
not all men are under the eternal law. 

Ob}. 2. Further, the Apostle says (Rom. viii. 7) : 
The prudence (Vulg., wisdom) of the flesh is an 
enemy to God: for it is not subject to the law of 
God. But many are those in whom the prudence of 
the flesh dominates. Therefore all men are not sub- 
ject to the eternal law which is the law of God. 

Ob}. 3. Further, Augustine says (De Lib. Arb. i. 6) 
that the eternal law is that by which the wicked 
deserve misery, the good, a life of blessedness. But 
those who are already blessed, and those who are al- 
ready lost, are not in the state of merit. Therefore 
they are not under the eternal law. 

On the contrary, Augustine says (De Civ. Dei, xix. 
12) : Nothing evades the laws of the most high Crea- 
tor and Governor, for by Him the peace of the uni- 
verse is administered. 



52 TREATISE ON LAW 

I ansiver that, There are two ways in which a 
thing is subject to the eternal law, as explained above 
(A. 5 ) : first, by partaking of the eternal law by way 
of knowledge; secondly, by way of action and pas- 
sion, i.e., by partaking of the eternal law by way of 
an inward motive principle: and in this second way, 
irrational creatures are subject to the eternal law, as 
stated above (ibid.). But since the rational nature, 
together with that which it has in common with all 
creatures, has something proper to itself inasmuch as 
it is rational, consequently it is subject to the eternal 
law in both ways; because while each rational crea- 
ture has some knowledge of the eternal law, as stated 
above (A. 2 ) , it also has a natural inclination to that 
which is in harmony with the eternal law; for we are 
naturally adapted to be the recipients of virtue 
(Ethic, ii. i). 

Both ways, however, are imperfect, and to a certain 
extent destroyed, in the wicked; because in them the 
natural inclination to virtue is corrupted by vicious 
habits, and, moreover, the natural knowledge of good 
is darkened by passions and habits of sin. But in the 
good both ways are found more perfect: because in 
them, besides the natural knowledge of good, there 
is the added knowledge of faith and wisdom; and 
again, besides the natural inclination to good, there 
is the added interior motive of grace and virtue. 

Accordingly, the good are perfectly subject to the 
eternal law, as always acting according to it: whereas 
the wicked are subject to the eternal law, imperfectly 
as to their actions, indeed, since both their knowledge 



OF THE ETERNAL LAW 53 

of good, and their inclination thereto, are imperfect: 
but this imperfection on the part of action is supplied 
on the part of passion, in so far as they suffer what 
the eternal law decrees concerning them, according as 
they fail to act in harmony with that law. Hence 
Augustine says (De Lib. Arb. i. i5): 7 esteem that 
the righteous act according to the eternal law; and 
(De Catech. Rud. xviii.) : Out of the just mhery of 
the souls which deserted Mm, God knew how to fur- 
nish the inferior parts of His creation with most 
suitable laws. 

Reply Obj. i. This saying of the Apostle may be 
understood in two ways. First, so that a man is said 
to be under the law, through being pinned down 
thereby, against his will, as by a load. Hence, on the 
same passage a gloss says that he is under the law, 
who refrains fram evil deeds, through fear of the 
pimishment threatened by the law, and not from love 
of virtue. In this way the spiritual man is not under 
the law, because he fulfils the law willingly, through 
charity which is poured into his heart by the Holy 
Ghost. Secondly, it can be understood as meaning that 
the works of a man, who is led by the Holy Ghost, 
are the works of the Holy Ghost rather than his own. 
Therefore, since the Holy Ghost is not under the law, 
as neither is the Son, as stated above (A. 4 ad 2) ; it 
follows that such works, in so far as they are of the 
Holy Ghost, are not under the law. The Apostle 
witnesses to this when he says (2 Cor. iii. 17) : Where 
the Spirit of the Lord is, there is liberty. 

Reply Ob}. 2. The prudence of the flesh cannot be 



54 TREATISE ON LAW 

subject to the law of God as regards action; since it 
inclines to actions contrary to the Divine law: yet 
it is subject to the law of God, as regards passion; 
since it deserves to suffer punishment according to 
the law of Divine justice. Nevertheless in no man 
does the prudence of the flesh dominate so far as to 
destroy the whole good of his nature; and con- 
sequently there remains in man the inclination to act 
in accordance with the eternal law. For we have seen 
above (Q. LXXXV., A. 2) that sin does not destroy 
entirely the good of nature. 

Reply Obj. 3. A thing is maintained in the end 
and moved towards the end by one and the same 
cause: thus gravity which makes a heavy body rest 
in the lower place is also the cause of its being moved 
thither. "We therefore reply that as it is according to 
the eternal law that some deserve happiness, others 
unhappiness, so it is by the eternal law that some are 
maintained in a happy state, others in an unhappy 
state. Accordingly both the blessed and the damned 
are under the eternal law. 



QUESTION 94 

OF THE NATURAL LAW 

(In Six Articles) 



must now consider the natural law; concerning 
which there are six points of inquiry: (r) What is 



OF THE NATURAL LAW 55 

the natural law? (2) What are the precepts of the 
natural law? (3) Whether all acts of virtue are pre- 
scribed by the natural law? (4) Whether the natural 
law is the same in all? (5) Whether it is changeable? 
(6) Whether it can be abolished from the heart of 
man? 



FIRST ARTICLE 
WHETHER THE NATURAL LAW IS A HABIT? 

We proceed thus to the First Article: 

Objection i. It would seem that the natural law 
is a habit. Because, as the Philosopher says (Ethic. 
ii. 5 ) , there are three things in the soul, power, habit, 
and passion. But the natural law is not one of the 
soul's powers: nor is it one of the passions; as we may 
see by going through them one by one. Therefore the 
natural law is a habit. 

Obj. 2. Further, Basil says that the conscience or 
synderesis is the law of our mind; which can only 
apply to the natural law. But the synderesis is a habit, 
as was shown in the First Part (Q. LXXIX., A. 12). 
Therefore the natural law is a habit. 

Ob}. 3. Further, the natural law abides in man al- 
ways, as will be shown further on (A. 6). But man's 
reason, which the law regards, does not always think 
about the natural law. Therefore the natural law is 
not an act, but a habit. 

On the contrary, Augustine says (De Bono Conjug. 



5 6 TREATISE ON LAW 

xxi) that a habit ;s that whereby something is done 
when necessary. But such is not the natural law: since 
it is in infants and in the damned who cannot 
act by it. Therefore the natural law is not a habit. 

I aimvcr that, A thing may be called a habit in 
two ways. First, properly and essentially: and thus the 
natural law is not a habit. For it has been stated 
above (Q. XC., A. i ad 2) that the natural law is 
something appointed by reason, just as a proposition 
is a work of reason. Now that which a man does is not 
the same as that whereby he does it: for he makes a 
becoming speech by the habit of grammar. Since then 
a habit is that by which we act, a law cannot be a 
habit properly and essentially. 

Secondly, the term habit may be applied to that 
which we hold by a habit: thus faith may mean that 
which we hold by faith. And accordingly, since the 
precepts of the natural law are sometimes considered 
by reason actually, while sometimes they are in the 
reason only habitually, in this way the natural law 
may be called a habit. Thus, in speculative matters, 
the indemonstrable principles are not the habit itself 
whereby we hold those principles, but are the princi- 
ples the habit of which we possess. 

Reply Qb). r. The Philosopher proposes there to 
discover the genus of virtue; and since it is evident 
that virtue is a principle of action, he mentions only 
those things which are principles of human acts, viz., 
powers, habits and passions. But there are other things 
in the soul besides these three: there are acts; thus to 
will is in the one that wills; again, things known are 



OF THE NATURAL LAW 57 

in the knower; moreover its own natural properties 
are in the soul, such as immortality and the like. 

Reply Ob}. 2. Synderesis is said to be the law of 
our mind, because it is a habit containing the precepts 
of the natural law, which are the first principles of 
human actions. 

Reply Obj. 3. This argument proves that the nat- 
ural law is held habitually: and this is granted. 

To the argument advanced in the contrary sense 
we reply that sometimes a man is unable to make use 
of that which is in him habitually, on account of 
some impediment; thus, on account of sleep, a man 
is unable to use the habit of science. In like manner, 
through the deficiency of his age, a child cannot use 
the habit of understanding of principles, or the nat- 
ural law, which is in him habitually. 



SECOND ARTICLE 

WHETHER THE NATURAL LAW CONTAINS SEVERAL 
PRECEPTS, OR ONE ONLY? 

We proceed thus to the Second Article: 
Objection i. It would seem that the natural law 
contains, not several precepts, but one only. For law 
is a kind of precept, as stated above (Q. XCIL, A. 
2). If therefore there were many precepts of the 
natural law, it would follow that there are also many 
natural laws. 

Obj. 2. Further, the natural law is consequent to 



58 TREATISE ON LAW 

human nature. But human nature, as a whole, is one; 
though, as to its parts, it is manifold. Therefore, 
either there is but one precept of the law of nature, 
on account of the unity of nature as a whole; or 
there are many, by reason of the number of parts of 
human nature. The result would be that even things 
relating to the inclination of the concupiscible faculty 
belong to the natural law. 

Obj. 3. Further, law is something pertaining to 
reason, as stated above (Q. XC., A. i). Now reason 
is but one in man. Therefore there is only one precept 
of the natural law. 

On the contrary } The precepts of the natural law 
in man stand in relation to practical matters, as the 
first principles to matters of demonstration. But there 
are several first indemonstrable principles. Therefore 
there are also several precepts of the natural law. 

I answer that, As stated above (Q. XCL, A. 3), 
the precepts of the natural law are to the practical 
reason, what the first principles of demonstrations 
are to the speculative reason; because both are self- 
evident principles. Now a thing is said to be self- 
evident in two ways: first, in itself; secondly, in re- 
lation to us. Any proposition is said to be self-evident 
in itself, if its predicate is contained in the notion of 
the subject: although, to one who knows not the 
definition of the subject, it happens that such a 
proposition is not self-evident. For instance, this 
proposition, Man is a rational being, is, in its very 
nature, self-evident, since who says man, says a ra- 
tional being: and yet to one who knows not what a 



OF THE NATURAL LAW 59 

man is, this proposition is not self-evident. Hence it 
is that, as Boethius says (De Hebdom.), certain 
axioms or propositions are universally self-evident to 
all; and such are those propositions whose terms are 
known to all, as, Every whole is greater than its part, 
and, Things equal to one and the same are equal to 
one another. But some propositions are self-evident 
only to the wise, who understand the meaning of the 
terms of such propositions: thus to one who under- 
stands that an angel is not a body, it is self-evident 
that an angel is not circumscriptively in a place: but 
this is not evident to the unlearned, for they cannot 
grasp it. 

Now a certain order is to be found in those things 
that are apprehended universally. For that which, be- 
fore aught else, falls under apprehension, is being, the 
notion of which is included in all things whatsoever 
a man apprehends. Wherefore the first indemonstrable 
principle is that the same thing cannot be affirmed 
and denied at the same time, which is based on the 
notion of being and not-being: and on this principle 
all others are based, as is stated in Metapb. iv., text. 
9. Now as being is the first thing that falls under 
the apprehension simply, so good is the first thing 
that falls under the apprehension of the practical 
reason, which is directed to action: since every agent 
acts for an end under the aspect of good. Conse- 
quently the first principle in the practical reason is 
one founded on the notion of good, viz., that good is 
that which all things seek after. Hence this is the 
first precept of law, that good is to be done and en- 



60 TREATISE ON LAW 

sued, and evil Is to be avoided. All other precepts of 
the natural law are based upon this: so that whatever 
the practical reason naturally apprehends as man's 
good (or evil) belongs to the precepts of the natural 
law as something to be done or avoided. 

Since, however, good has the nature of an end, and 
evil, the nature of a contrary, hence it is that all 
those things to which man has a natural inclination, 
are naturally apprehended by reason as being good, 
and consequently as objects of pursuit, and their con- 
traries as evil, and objects of avoidance. Wherefore 
according to the order of natural inclinations, is the 
order of the precepts of the natural law. Because in 
man there is first of all an inclination to good in ac- 
cordance with the nature which he has in common 
with all substances: inasmuch as every substance seeks 
the preservation of its own being, according to its 
nature: and by reason of this inclination, whatever 
is a means of preserving human life, and of warding 
off its obstacles, belongs to the natural law. Secondly, 
there is in man an inclination to things that pertain to 
him more specially, according to that nature which 
he has in common with other animals: and in virtue 
of this inclination, those things are said to belong to 
the natural law, which nature has taught to all ani- 
mals* such as sexual intercourse, education of off- 
spring and so forth. Thirdly, there is in man an in- 
clination to good, according to the nature of his rea- 
son, which nature is proper to him: thus man has a 
natural inclination to know the truth about God, and 



OF THE NATURAL LAW 6 1 

to live in society: and in this respect, whatever per- 
tains to this inclination belongs to the natural law; 
for instance, to shun ignorance, to avoid offending 
those among whom one has to live, and other such 
things regarding the above inclination. 

Reply Ob}, i. All these precepts of the law of nature 
have the character of one natural law, inasmuch as 
they flow from one first precept. 

Reply Obj. 2. All the inclinations of any parts what- 
soever of human nature, e.g., of the concupiscible 
and irascible parts, in so far as they are ruled by rea- 
son, belong to the natural law, and are reduced to one 
first precept, as stated above: so that the precepts of 
the natural law are many in themselves, but are based 
on one common foundation. 

Reply Obj. 3. Although reason is one in itself, yet 
it directs all things regarding man; so that whatever 
can be ruled by reason, is contained under the law of 
reason. 



THIRD ARTICLE 

WHETHER ALL ACTS OF VIRTUE ARE PRESCRIBED 
BY THE NATURAL LAW? 



We proceed thus to the Third Article: 

Objection i. It would seem that not all acts of 

virtue are prescribed by the natural law. Because, as 

stated above (Q. XC., A. 2) it is essential to a law 

that it be ordained to the common good. But some 



6 2 TREATISE ON LAW 

acts of virtue are ordained to the private good of the 
individual, as is evident especially in regard to acts 
of temperance. Therefore not all acts of virtue are 
the subject of natural law. 

Ob}. 2. Further, every sin is opposed to some vir- 
tuous act. If therefore all acts of virtue are pre- 
scribed by the natural law, it seems to follow that all 
sins are against nature: whereas this applies to certain 
special sins. 

Ob}. 3. Further, those things which are according 
to nature are common to all. But acts of virtue are 
not common to all: since a thing is virtuous in one, 
and vicious in another. Therefore not all acts of vir- 
tue are prescribed by the natural law. 

On the contrary, Damascene says (De Fide Or- 
thod. iii. 4) that virtues are natural. Therefore vir- 
tuous acts also are a subject of the natural law. 

I answer that, We may speak of virtuous acts in 
two ways: first, under the aspect of virtuous; sec- 
ondly, as such and such acts considered in their 
proper species. If then we speak of acts of virtue, 
considered as virtuous, thus all virtuous acts belong 
to the natural law. For it has been stated (A. 2) that 
to the natural law belongs everything to which a 
man is inclined according to his nature. Now each 
thing is inclined naturally to an operation that is 
suitable to it according to its form: thus fire is in- 
clined to give heat. Wherefore, since the rational soul 
is the proper form of man, there is in every man a 
natural inclination to act according to reason: and 
this is to act according to virtue. Consequently, con- 



OF THE NATURAL LAW 63 

sidered thus, all acts of virtue are prescribed by the 
natural law: since each one's reason naturally dic- 
tates to him to act virtuously. But if we speak of 
virtuous acts, considered in themselves, i.e., in their 
proper species, thus not all virtuous acts are pre- 
scribed by the natural law: for many things are done 
virtuously, to which nature does not incline at first; 
but which, through the inquiry of reason, have been 
found by men to be conducive to well-living. 

Reply Ob), i. Temperance is about the natural 
concupiscenses of food, drink and sexual matters, 
which are indeed ordained to the natural common 
good, just as other matters of law are ordained to the 
moral common good. 

Reply Obj. 2. By human nature we may mean 
either that which is proper to man and in this sense 
all sins, as being against reason, are also against na- 
ture, as Damascene states (De Fide Or t bod. ii. 30) : 
or we may mean that nature which is common to 
man and other animals; and in this sense, certain 
special sins are said to be against nature; thus con- 
trary to sexual intercourse, which is natural to all 
animals, is unisexual lust, which has received the 
special name of the unnatural crime. 

Reply Obj. 3. This argument considers acts in 
themselves. For it is owing to the various conditions 
of men, that certain acts are virtuous for some, as 
being proportionate and becoming to them, while 
they are vicious for others, as being out of propor- 
tion to them. 



64 TREATISE ON LAW 



FOURTH ARTICLE 

WHETHER THE NATURAL LAW IS THE SAME 

IN ALL MEN? 



We proceed thus to the Fourth Article: 

Objection i. It would seem that the natural law 
is not the same in all. For it is stated in the Decretals 
(Dist. i.) that the natural law is that which is con- 
tained in the Law and the Gospel. But this is not 
common to all men; because, as it is written (Rom. 
x. 1 6), all do not obey the gospel. Therefore the nat- 
ural law is not the same in all men. 

Ob}. 2. Further, Things which are according to the 
law are said to be just, as stated in Ethic, v. But it 
is stated in the same book that nothing is so univer- 
sally just as not to be subject to change in regard to 
some men. Therefore even the natural law is not the 
same in all men. 

Ob}. 3. Further, as stated above (AA. 2, 3), to the 
natural law belongs everything to which a man is 
inclined according to his nature. Now different men 
are naturally inclined to different things; some to the 
desire of pleasures, others to the desire of honours, 
and other men to other things. Therefore there is not 
one natural law for all. 

On the contrary, Isidore says (Etym. v. 4) : The 
natural law is common to all nations. 

I answer that, As stated above ( AA. 2, 3 ) , to the 



OF THE NATURAL LAV 65 

natural law belongs those things to which a man is 
inclined naturally: and among these it is proper to 
man to be inclined to act according to reason. Now 
the process of reason is from the common to the 
proper, as stated in Pkys. i. The speculative reason, 
however, is differently situated in this matter, from 
the practical reason. For, since the speculative reason 
is busied chiefly with necessary things, which cannot 
be otherwise than they are, its proper conclusions, 
like the universal principles, contain the truth with- 
out fail. The practical reason, on the other hand, is 
busied with contingent matters, about which human 
actions are concerned: and consequently, although 
there is necessity in the general principles, the more 
we descend to matters of detail, the more frequently 
we encounter defects. Accordingly then in specula- 
tive matters truth is the same in all men, both as to 
principles and as to conclusions: although the truth 
is not known to all as regards the conclusions, but 
only as regards the principles which are called common 
notions. But in matters of action, truth or practical 
rectitude is not the same for all, as to matters of 
detail, but only as to the general principles: and 
where there is the same rectitude in matters of detail, 
it is not equally known to all. 

It is therefore evident that, as regards the general 
principles whether of speculative or of practical rea- 
son, truth or rectitude is the same for all, and is 
equally known by all. As to the proper conclusions 
of the speculative reason, the truth is the same for 
all, but is not equally known to all: thus it is true 



66 TREATISE ON LAW 

for all that the three angles of a triangle are together 
equal to two right angles, although it is not known 
to all. But as to the proper conclusions of the prac- 
tical reason, neither is the truth or rectitude the same 
for all, nor, where it is the same, is it equally known 
by all. Thus it is right and true for all to act accord- 
ing to reason: and from this principle it follows as 
a proper conclusion, that goods entrusted to another 
should be restored to their owner. Now this is true 
for the majority of cases: but it may happen in a 
particular case that it would be injurious, and there- 
fore unreasonable, to restore goods held in trust; for 
instance if they are claimed for the purpose of fight- 
ing against one's country. And this principle will be 
found to fail the more, according as we descend 
further into detail, e.g., if one were to say that goods 
held in trust should be restored with such and such 
a guarantee, or in such and such a way; because the 
greater the number of conditions added, the greater 
the number of ways in which the principle may fail, 
so that it be not right to restore or not to restore. 

Consequently we must say that the natural law, 
as to general principles, is the same for all, both as 
to rectitude and as to knowledge. But as to certain 
matters of detail, which are conclusions, as it were, 
of those general principles, it is the same for all in 
the majority of cases, both as to rectitude and as to 
knowledge; and yet in some few cases it may fail, 
both as to rectitude, by reason of certain obstacles 
(just as natures subject to generation and corruption 
fail in some few cases on account of some obstacle), 



OF THE NATURAL LAW 67 

and as to knowledge, since in some the reason is per- 
verted by passion, or evil habit, or an evil disposition 
of nature; thus formerly, theft, although it is ex- 
pressly contrary to the natural law, was not consid- 
ered wrong among the Germans, as Julius Caesar 
relates (De Bello Gall. vi.). 

Reply Obj. i. The meaning of the sentence quoted 
is not that whatever is contained in the Law and the 
Gospel belongs to the natural law, since they contain 
many things that are above nature; but that what- 
ever belongs to the natural law is fully contained in 
them. Wherefore Gratian, after saying that the nat- 
ural law is what is contained in the Law and the 
Gospel, adds at once, by way of example, by which 
everyone is commanded to do to others as he would 
be done by. 

Reply Obj. 2. The saying of the Philosopher is to 
be understood of things that are naturally just, not 
as general principles, but as conclusions drawn from 
them, having rectitude in the majority of cases, but 
failing in a few. 

Reply Obj. 3. As, in man, reason rules and com- 
mands the other powers, so all the natural inclina- 
tions belonging to the other powers must needs be 
directed according to reason. "Wherefore it is univer- 
sally right for all men, that all their inclinations 
should be directed according to reason. 



6$ TREATISE ON LAW 

FIFTH ARTICLE 
WHETHER THE NATURAL LAW CAN BE CHANGED? 

We proceed this to the Fifth Article: 

Objection i. It would seem that the natural law 
can be changed. Because on Ecclus. xvii. 9, He gave 
them instructions, and the law of life, the gloss says: 
He wished the law of the letter to be written, in 
order to correct the law of nature. But that which 
is corrected is changed. Therefore the natural law can 
be changed. 

Obj. 2. Further, the slaying of the innocent, adul- 
tery, and theft are against the natural law. But we 
find these things changed by God: as when God com- 
manded Abraham to slay his innocent son (Gen. xxii. 
2) ; and when He ordered the Jews to borrow and 
purloin the vessels of the Egyptians (Exod. xii. 35); 
and when He commanded Osee to take to himself 
a wife of fornications (Osee i. 2). Therefore the 
natural law can be changed* 

Obj. 3. Further, Isidore says (Etym. v. 4) that 
the possession of all things in common, and universal 
freedom, are matters of natural law. But these things 
are seen to be changed by human laws. Therefore it 
seems that the natural law is subject to change. 

On the contrary, It is said in the Decretals (Dist. 
v.): The natural law dates from the creation of the 
rational creatiire. It does not vary according to time, 
but remains unchangeable. 



OF THE NATURAL LAW 69 

I answer that, A change in the natural law may be 
understood in two ways. First, by way of addition. 
In this sense nothing hinders the natural law from 
being changed: since many things for the benefit of 
human life have been added over and above the nat- 
ural law, both by the Divine law and by human 
laws. 

Secondly, a change in the natural law may be un- 
derstood by way of subtraction, so that what pre- 
viously was according to the natural law, ceases to 
be so. In this sense, the natural law is altogether 
unchangeable in its first principles: but in its sec- 
ondary principles, which, as we have said (A. 4), are 
certain detailed proximate conclusions drawn from 
the first principles, the natural law is not changed so 
that what it prescribes be not right in most cases. 
But it may be changed in some particular cases of 
rare occurrence, through some special causes hinder- 
ing the observance of such precepts, as stated above 
(A. 4). 

Reply Ohj. i. The written law is said to be given 
for the correction of the natural law, either because 
it supplies what was wanting to the natural law; or 
because the natural law was perverted in the hearts 
of some men, as to certain matters, so that they es- 
teemed those things good which are naturally evil; 
which perversion stood in need of correction. 

Reply Ob}. 2. All men alike, both guilty and in- 
nocent, die the death of nature: which death of na- 
ture is inflicted by the power of God on account of 
original sin, according to i Kings ii. 6: The Lord 



70 TREATISE ON LAW 

killeth and maketh alive. Consequently, by the com- 
mand of God, death can be inflicted on any man, 
guilty or innocent, without any injustice whatever. 
In like manner adultery is intercourse with another's 
wife; who is allotted to him by the law emanating 
from God. Consequently intercourse with any 
woman, by the command of God, is neither adultery 
nor fornication. The same applies to theft, which 
is the taking of another's property. For whatever is 
taken by the command of God, to Whom all things 
belong, is not taken against the will of its owner, 
whereas it is in this that theft consists. Nor is it 
only in human things, that whatever is commanded 
by God is right; but also in natural things, whatever 
is done by God, is, in some way, natural, as stated 
in the First Part (Q. CV., A. 6 ad i). 

Reply Obj. 3. A thing is said to belong to the 
natural law in two ways. First, because nature in- 
clines thereto: e.g., that one should not do harm to 
another. Secondly, because nature did not bring in 
the contrary: thus we might say that for man to be 
naked is of the natural law, because nature did not 
give him clothes, but art invented them. In this sense, 
the possession of all things in common and universal 
freedom are said to be of the natural law, because, to 
wit, the distinction of possessions and slavery were not 
brought in by nature, but devised by human reason 
for the benefit of human life. Accordingly the law of 
nature was not changed in this respect, except by 
addition. 



OF THE NATURAL LAW 71 



SIXTH ARTICLE 

WHETHER THE LAW OF NATURE CAN BE 
ABOLISHED FROM THE HEART OF MAN? 



We proceed thus to the Sixth Article: 

Objection i. It would seem that the natural law 
can be abolished from the heart of man. Because on 
Rom. ii. 14, When the Gentiles who have not the 
law, etc., a gloss says that the law of righteousness) 
which sin had blotted out, is graven on the heart of 
man when he is restored by grace. But the law of 
righteousness is the law of nature. Therefore the law 
of nature can be blotted out. 

Obj. 2. Further, the law of grace is more effica- 
cious than the law of nature. But the law of grace 
is blotted out by sin. Much more therefore can the 
law of nature be blotted out. 

Obj. 3. Further, that which is established by law 
is made just. But many things are enacted by men, 
which are contrary to the law of nature. Therefore 
the law of nature can be abolished from the heart of 
man. 

On the contrary, Augustine says (Conf. ii.) : Thy 
law is written in the hearts of men, which iniquity 
itself effaces not. But the law which is written in 
men's hearts is the natural law. Therefore the nat- 
ural law cannot be blotted out. 

I answer that, As stated above (AA. 4, 5), there 



72 TREATISE ON LAW 

belong to the natural law, first, certain most general 
precepts, that are known to all; and secondly, certain 
secondary and more detailed precepts, which are, as 
it were, conclusions following closely from first prin- 
ciples. As to those general principles, the natural law, 
in the abstract, can nowise be blotted out from men's 
hearts. But it is blotted out in the case of a particular 
action, in so far as reason is hindered from applying 
the general principle to a particular point of practice, 
on account of concupiscence or some other passion, 
as stated above (Q. LXXVIL, A. 2). But as to the 
other, i.e., the secondary precepts, the natural law 
can be blotted out from the human heart, either by 
evil persuasions, just as in speculative matters errors 
occur in respect of necessary conclusions; or by vi- 
cious customs and corrupt habits, as among some 
men, theft, and even unnatural vices, as the Apostle 
states (Rom. i.), were not esteemed sinful. 

Reply Obj. i. Sin blots out the law of nature in 
particular cases, not universally, except perchance in 
regard to the secondary precepts of the natural law, 
in the way stated above. 

Reply Ob}. 2. Although grace is more efficacious 
than nature, yet nature is more essential to man, and 
therefore more enduring. 

Reply Ob]. 3. This argument is true of the second- 
ary precepts of the natural law, against which some 
legislators have framed certain enactments which are 
unjust. 



OF HUMAN LAW 73 

QUESTION 95 

OF HUMAN LAW 
(In Four Articles) 

must now consider human law; and (i) this law 
considered in itself; (2) its power; (3) its mutabil- 
ity. Under the first head there are four points of 
inquiry: (i) Its utility. (2) Its origin (3) Its qual- 
ity. (4) Its division. 

FIRST ARTICLE 

WHETHER IT WAS USEFUL FOR LAWS TO BE 
FRAMED BY MEN? 

We proceed thus to the First Article: 
Objection i. It would seem that it was not useful 
for laws to be framed by men. Because the purpose 
of every law is that man be made good thereby, as 
stated above (Q. XCIL, A. i). But men are more to 
be induced to be good willingly by means of admoni- 
tions, than against their will, by means of laws. 
Therefore there was no need to frame laws. 

Obj. 2. Further, as the Philosopher says (Ethic. 
v. 4), men have recourse to a judge as to animate 



74 TREATISE ON LAW 

justice. But animate justice is better than inanimate 
justice, which is contained in laws. Therefore it 
would have been better for the execution of justice 
to be entrusted to the decision of judges, than to 
frame laws in addition. 

Obj. 3. Further, every law is framed for the direc- 
tion of human actions, as is evident from what has 
been stated above (Q. XC., AA. i, 2). But since 
human actions are about singulars, which are infinite 
in number, matters pertaining to the direction of 
human actions cannot be taken into sufficient con- 
sideration except by a wise man, who looks into each 
one of them. Therefore it would have been better for 
human acts to be directed by the judgment of wise 
men, than by the framing of laws. Therefore there 
was no need of human laws. 

On the contrary, Isidore says (Etym. v, 20) : Laws 
were made that in fear thereof human audacity might 
be held in cheeky 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. 

I answer that, As stated above (Q. LXIIL, A. i; 
Q. XCIV., A. 3), 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 neces- 
sities, for instance, in food and clothing. Certain 



OF HUMAN LAW 75 

beginnings of these he has from nature, viz., his rea- 
son and his hands; but he has not the full compli- 
ment, 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 un- 
due 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 evildoing, 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 right- 



7 6 TREATISE ON LAW 

cousness; because man can use his reason to devise 
means of satisfying his lusts and evil passions, which 
other animals are unable to do. 

Reply Ob}, i. Men who are well disposed are led 
willingly to virtue by being admonished better than 
by coercion: but men who are evilly disposed are not 
led to virtue unless they are compelled. 

Reply Ob}. 2. As the Philosopher says (Rhet. i. i ) , 
// is better that all things be regulated by law, than 
left to be decided by judges: and this for three rea- 
sons. First, because it is easier to find a few wise men 
competent to frame right laws, than to find the 
many who would be necessary to judge aright of 
each single case. Secondly, because those who make 
laws consider long beforehand what laws to make; 
whereas judgment on each single case has to be pro- 
nounced as soon as it arises: and it is easier for man 
to see what is right, by taking many instances into 
consideration, than by considering one solitary fact. 
Thirdly, because lawgivers judge in the abstract 
and of future events; whereas those who sit in judg- 
ment judge of things present, towards which they 
are affected by love, hatred, or some kind of cupidity; 
wherefore their judgment is perverted. 

Since then the animated justice of the judge is not 
found in every man, and singe it can be deflected, it 
was necessary, whenever possible, for the law to de- 
termine how to judge, and for very few matters to be 
left to the decision of men. 

Reply Ob}. 3. Certain individual facts which can- 
not be covered by the law have necessarily to be 



OF HUMAN LAW 77 

committed to judges, as the Philosopher says in the 
same passage: for instance, concerning something that 
has happened or not happened) and the like. 



SECOND ARTICLE 

WHETHER EVERY HUMAN LAW IS DERIVED FROM 
THE NATURAL LAW? 

We proceed tJms to the Second Article: 

Objection i. It would seem that not every human 
law is derived from the natural law. For the Philos- 
opher says (Ethic, v. 7) that the legal just is that 
which originally was a matter of indifference. But 
those things which arise from the natural law are not 
matters of indifference. Therefore the enactments o 
human laws are not all derived from the natural law. 

Obj. 2. Further, positive law is contrasted with 
natural law, as stated by Isidore (Etym. v. 4) and 
the Philosopher (Ethic, v,, loc. cit.). But those things 
which flow as conclusions from the general princi- 
ples of the natural law belong to the natural law, as 
stated above (Q. XCIV., A. 4). Therefore that 
which is established by human law does not belong 
to the natural law. 

Obj. 3. Further, the law of nature is the same for 
all; since the Philosopher says (Ethic, v. 7) that the 
natural just is that which is equally -valid everywhere. 
If therefore human laws were derived from the nat- 



78 TREATISE ON LAW 

ural laws, it would follow that they too are the same 
for all: which is clearly false. 

Ob}. 4. Further, it is possible to give a reason for 
things which are derived from the natural law. But 
it h not possible to give the reason for all the legal 
enactments of the lawgivers, as the jurist says.* 
Therefore not all human laws are derived from the 
natural law. 

On the contrary, Tully says (Rhetor, ii.) : Things 
which emanated from natiire and were approved by 
custom, were sanctioned by fear and reverence for 
the laws. 

I answer that, 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 na- 
ture, as is clear from what has been stated above 
(Q. XCL, A. 2 ad 2). 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 de- 
rived from the natural law in two ways: first, as a 
conclusion from premisses, secondly, by way of de- 
termination of certain generalities. The first way is 
like to that by which, in sciences, demonstrated con- 
clusions are drawn from the principles: while the 

* Pandect. Jmtin, lib. i. ff., tit. iii., art. v., De Leg. et Senat. 



OF HUMAN LAW 79 

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 there- 
fore derived from the general principles of the nat- 
ural 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 deter- 
mination; 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 de- 
rived 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. 

Reply Obj. i. The Philosopher is speaking of those 
enactments which are by way of determination or 
specification of the precepts of the natural law. 

Reply Obj. 2. This argument avails for those 
things that are derived from the natural law, by 
way of conclusions. 

Reply Obj. 3. The general principles of the natural 
law cannot be applied to all men in the same way on 
account of the great variety of human affairs: and 
hence arises the diversity of positive laws among 
various people. 



So TREATISE ON LAW 

Reply Obj. 4. These words of the Jurist are to be 
understood as referring to decisions of rulers in de- 
termining particular points of the natural law: on 
which determinations the judgment of expert and 
prudent men is based as on its principles; in so far, 
to wit, as they see at once what is the best thing to 
decide. 

Hence the Philosopher says (Ethic, vi. n) that 
in such matters, we ought to pay as much attention 
to the undemonstrated sayings and opinions of per- 
sons who surpass us in experience, age and prudence, 
as to their demonstrations. 



THIRD ARTICLE 

WHETHER ISIDORE'S DESCRIPTION OF THE QUALITY 
OF POSITIVE LAW IS APPROPRIATE? 

We proceed thus to the Third Article: 
Objection i. It would seem that Isidore's descrip- 
tion of the quality of positive law is not appropriate, 
when he says (Etym. v. 21) : Law shall be virtuous, 
just, possible to nature, according to the custom of 
the country, suitable to place and time, necessary, 
useful; clearly expressed, lest by its obscurity it lead 
to misunderstanding; framed for no private benefit, 
but for the common good. Because he had previously 
expressed the quality of law in three conditions, say- 
ing that law is anything founded on reason, provided 
that it foster religion, be helpful to discipline, and 



OF HUMAN LAW 8 1 

further the common weal. Therefore it was needless 
to add any further conditions to these. 

Obj. z. Further, Justice is included in honesty, as 
Tully says (De Offic. vii.). Therefore after saying 
honest it was superfluous to add just. 

Ob}. 3. Further, written law is condivided with 
custom, according to Isidore (Etym, ii. 10). There- 
fore it should not be stated in the definition of law 
that it is according to the custom of the country. 

Obj. 4. Further, a thing may be necessary in two 
ways. It may be necessary simply, because it cannot 
be otherwise: and that which is necessary in this way, 
is not subject to human judgment, wherefore human 
law is not concerned with necessity of this kind. 
Again a thing may be necessary for an end: and this 
necessity is the same as usefulness. Therefore it is 
superfluous to say both necessary and useful. 

On the contrary stands the authority of Isidore. 

7 answer that, 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 pro- 
portionate 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 meas- 
ure ruled or measured by a higher measure. And this 
higher measure is twofold, viz., the Divine law and 
the natural law, as explained above (A. 2; Q. XCIIL, 
A. 3 ) . Now the end of human law is to be useful to 
man, as the Jurist states.* 'WTierefore Isidore in de- 

* Pandect. Just. lib. xxv. ?., tit. iii., De Leg. et Senat. 



82 TREATISE ON LAW 

termining 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 help- 
ful to discipline, inasmuch as it is proportionate to 
the natural 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 be- 
cause 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 disci- 
pline. For human discipline depends first on the order 
of reason, to which he refers by saying just: 
secondly, it depends on the ability of the agent; be- 
cause discipline should be adapted to each one ac- 
cording to his ability, taking also into account the 
ability of nature (for the same burdens should be not 
laid on children as on adults) ; and should be accord- 
ing 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 prevent- 
ing any harm ensuing from the law itself. And 
since, as stated above (Q. XC, A. 2), law is ordained 



OF HUMAN LAW 83 

to the common good, this is expressed in the last part 
of the description. 

This suffices for the Replies to the Objections. 



FOURTH ARTICLE 

WHETHER ISIDORE'S DIVISION OF HUMAN LAWS 
IS APPROPRIATE? 



We proceed tlms to the Fourth Article: 

Objection i. It would seem that Isidore wrongly 
divided human statutes or human law (Etym. v. 4 
seqq.). For under this law he includes the law of na- 
tions, so called, because, as he says, nearly all nations use 
it. But as he says, natural law is that -which is common 
to all nations. Therefore the law of nations is not con- 
tained under positive human law, but rather under 
natural law. 

Ob}. 2. Further, those laws which have the same 
force, seem to differ not formally but only materially. 
But statutes, decrees of the commonalty, senatorial 
decrees, and the like which he mentions (ibid., 9), 
all have the same force. Therefore they do not differ, 
except materially. But art takes no notice of such a 
distinction: since it may go on to infinity. Therefore 
this division of human laws is not appropriate. 

Ob}. 3. Further, just as, in the state, there are 
princes, priests and soldiers, so are there other human 
offices. Therefore it seems that, as this division in- 
cludes military law, and public law, referring to 



84 TREATISE ON LAW 

priests and magistrates; so also it should include other 
laws pertaining to other offices of the state. 

Obj. 4. Further, those things that are accidental 
should be passed over. But it is accidental to law that 
it be framed by this or that man. Therefore it is un- 
reasonable to divide laws according to the names of 
lawgivers, so that one be called the Cornelian law, 
another the Falcidian law, etc, 

On the contrary, The authority of Isidore (Obj. 
i) suffices. 

7 answer that, 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 con- 
tained 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 be- 
ing white or black, which are entirely beside the no- 
tion 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 ex- 
plained above (A. 2). In this respect positive law is 
divided into the law of nations and civil law, accord- 
ing to the two ways in which something may be de- 
rived from the law of nature, as stated above (A. 2). 
Because, to the law of nations belong those things 
which are derived from the law of nature, as conclu- 
sions from premisses, 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 



OF HUMAN LAW 85 

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 (Q. XC., A. 3 ) . 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 consult a). 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 tyran- 



86 TREATISE ON LAW 

nical 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 sane- 
tioned by the Lords and Commons, as stated by 
Isidore (/or. cit.). 

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 assasins, and 
so on, differentiated in this way, not on account of 
the authors, but on account of the matters to which 
they refer. 

Reply Obj. i. The law of nations is indeed, in some 
way, natural to man, in so far as he is a reasonable 
being, because it is derived from the natural law by 
way of a conclusion that is not very remote from its 
premisses. Wherefore men easily agreed thereto. 
Nevertheless it is distinct from the natural law, es- 
pecially from that natural law which is common to 
all animals. 

The Replies to the other Objections are evident 
from what has been said. 



OF THE POWER OF HUMAN LAW 87 

QUESTION 96 

OF THE POWER OF HUMAN LAW 
(In Six Articles) 

must now consider the power of human law. 
Under this head there are six points of inquiry: (i) 
Whether human law should be framed for the com- 
munity? (2) Whether human law should repress all 
vices? (3) Whether human law is competent to direct 
all acts of virtue? (4) Whether it binds man in 
conscience? (j) Whether all men are subject to hu- 
man law? (6) Whether those who are under the law 
may act beside the letter of the law? 

FIRST ARTICLE 

WHETHER HUMAN LAW SHOULD BE FRAMED FOR 

THE COMMUNITY RATHER THAN FOR THE 
INDIVIDUAL? 

We proceed thus to the First Article: 
Objection i. It would seem that human law should 
be framed not for the community, but rather for the 
individual. For the Philosopher says (Ethic, v. 7) that 
the legal just . . . includes all particular acts of legis- 
lation . . . and all those matters which are the subject 
of decrees, which are also individual matters, since 



88 TREATISE ON LAW 

decrees are framed about individual actions. There- 
fore law is framed not only for the community, but 
also for the individual. 

Ob). 2. Further, law is the director of human acts, 
as stated above (Q. XC., A A. i, 2). But human acts 
are about individual matters. Therefore human laws 
should be framed, not for the community, but rather 
for the individual. 

Ob). 3. Further, law is a rule and measure of hu- 
man acts, as stated above (Q. XC., AA. i, 2). But 
a measure should be most certain, as stated in Metaph. 
x. Since therefore in human acts no general proposi- 
tion can be so certain as not to fail in some individual 
cases, it seems that laws should be framed not in 
general but for individual cases. 

On the contrary, The jurist says ("Pandect, ]^lstin, 
lib. i., tit. iii., art. ii., De le gibus, etc.) that laws 
should be made to suit the majority of instances; and 
they are not framed according to what may possibly 
happen in an individual case. 

I answer that, Whatever is for an end should be 
proportionate to that end. Now the end of law is the 
common good; because, as Isidore says (Etym. v. 21) 
that law should be framed, not for any private bene- 
fit, but for the common good of all the citizens. 
Hence human laws should be proportionate to the 
common good. Now the common good comprises 
many things. Wherefore laws should take account of 
many things, as to persons, as to matters, and as to 
times. Because the community of the state is com- 
posed of many persons; and its good is procured by 



OF THE POWER OF HUMAN LAW 89 

many actions; nor is it established to endure for only 
a short time, but to last for all time by the citizens 
succeeding one another, as Augustine says (De Civ. 
Dei ii. 21; xxii. 6). 

Reply Ob}, i. The Philosopher (Ettic. v.j) divides 
the legal just, i.e., positive law, into three parts. For 
some things are laid down simply in a general way: 
and these are the general laws. Of these he says that the 
legal is that which originally was a matter of indiffer- 
ence, but ^vhich, ivhen enacted, is so no longer: as the 
fixing of the ransom of a captive. Some things affect 
the community in one respect, and individuals in an- 
other. These are called privileges, i.e., private laws, as 
it were, because they regard private persons, although 
their power extends to many matters; and in regard 
to these, he adds, and further, all particular acts of 
legislation. Other matters are legal, not through be- 
ing laws, but through being applications of general 
laws to particular cases: such are decrees which have 
the force of law; and in regard to these, he adds all 
matters subject to decrees. 

Reply Ob}. 2. A principle of direction should be 
applicable to many; wherefore (Metaph. x., text. 4) 
the Philosopher says that all things belonging to one 
genus, are measured by one, which is the principle in 
that genus. For if there were as many rules or meas- 
ures as there are things measured or ruled, they would 
cease to be of use, since their use consists in being 
applicable to many things. Hence law would be of no 
use, if it did not extend further than to one single 
act. Because the decrees of prudent men are made for 



90 TREATISE ON LAW 

the purpose of directing individual actions; whereas 
law is a general precept, as stated above (Q. XCIL, 
A. 2, Obj. 2). 

Reply Obj. 3. We must not seek the same degree 
of certainty in all things (Ethic, i. 3). Consequently 
in contingent matters, such as natural and human 
things, it is enough for a thing to be certain, as being 
true in the greater number of instances, though at 
times and less frequently it fail. 



SECOND ARTICLE 

WHETHER IT BELONGS TO HUMAN LAW TO 
REPRESS ALL VICES? 

We proceed thus to the Second Article: 

Objection i. It would seem that it belongs to hu- 
man law to repress all vices. For Isidore says (Etym. 
v. 20) that laws were made in order that, in fear 
thereof) man's audacity might be held in check. But 
it would not be held in check sufficiently, unless all 
evils were repressed by law. Therefore human law 
should repress all evils. 

Ob]. 2. Further, the intention of the lawgiver is to 
make the citizens virtuous. But a man cannot be 
virtuous unless he forbear from all kinds of vice. 
Therefore it belongs to human law to repress all vices. 

Obj. 3. Further, human law is derived from the 
natural law, as stated above (Q. XCV., A. 2). But 



OF THE POWER OF HUMAN LAV 91 

all vices are contrary to the law of nature. Therefore 
human law should repress all vices. 

On the contrary, We read in De Lib. Arb. i. 5 : // 
seems to me that the law which is -written for the 
governing of the people rightly permits these things, 
and that Divine providence punishes them. But Divine 
providence punishes nothing but vices. Therefore hu- 
man law rightly allows some vices, by not repressing 
them. 

I answer that, As stated above (Q. XC., AA. 1,2), 
law is framed as a rule or measure of human acts. 
Now a measure should be homogeneous with that 
which it measures, as stated in Metaph. x., text. 3, 4, 
since different things are measured by different meas- 
ures. Wherefore laws imposed on men should also be 
in keeping with their condition, for, as Isidore says 
(Etym. v. 21 ), law should be possible both according 
to nature t and according to the customs of the conn- 
try. Now possibility or faculty of action is due to an 
interior habit or disposition: since the same thing is 
not possible to one who has not a virtuous habit, as is 
possible to one who has. Thus the same is not possible 
to a child as to a full-grown man: for which reason 
the law for children is not the same as for adults, 
since many things are permitted to children, which in 
an adult are punished by law or at any rate are 
open to blame. In like manner many things are per- 
missible to men not perfect in virtue, which would be 
intolerable in a virtuous man. 

Now human law is framed for a number of human 
beings, the majority of whom are not perfect in vir- 



92 TREATISE ON LAW 

tue. Wherefore human laws do not forbid all vices, 
from which the virtuous abstain, but only the more 
grievous vices, from which it is possible for the ma- 
jority to abstain; and chiefly those that are to the hurt 
of others, without the prohibition of which human 
society could not be maintained: thus human law 
prohibits murder, theft and suchlike. 

Reply Ob}, i. Audacity seems to refer to the as- 
sailing of others. Consequently it belongs to those 
sins chiefly whereby one's neighbour is injured: and 
these sins are forbidden by human law, as stated. 

Reply Ob). 2. The purpose of human law is to lead 
men to virtue, not suddenly, but gradually. Where- 
fore it does not lay upon the multitude of imperfect 
men the burdens of those who are already virtuous, 
viz., that they should abstain from all evil. Otherwise 
these imperfect ones, being unable to bear such pre- 
cepts, would break out into yet greater evils: thus it 
is written (Prov. xxx. 33) : He that violently bloweth 
bis nose y bringeth out bloody and (Matth. ix. 17) 
that if new wine> i.e., precepts of a perfect life, is 
put into old bottles, i.e., into imperfect men, the 
bottles break, and the wine runneth out, i.e., the 
precepts are despised, and those men, from contempt, 
break out into evils worse still. 

Reply Ob]. 3. The natural law is a participation 
in us of the eternal law: while human law falls short 
of the eternal law. Now Augustine says (De Lib. 
Arb. i. 5 ) : The law which is framed for the govern- 
went of states, allows and leaves unpunished many 
things that are punished by Divine providence. Nor, 



OF THE POWER OF HUMAN LAW 93 

if this law does not attempt to do everything, is this 
a reason why it should be blamed for what it does. 
Wherefore, too, human law does not prohibit every- 
thing that is forbidden by the natural law. 



THIRD ARTICLE 

WHETHER HUMAN LAW PRESCRIBES ACTS OF ALL 
THE VIRTUES? 



We proceed thus to the Tlnrd Article: 

Objection i. It would seem that human law does 
not prescribe acts of all the virtues. For vicious acts 
are contrary to acts of virtue. But human law does 
not prohibit all vices, as stated above (A. 2). There- 
fore neither does it prescribe all acts of virtue. 

Ob}. 2. Further, a virtuous act proceeds from a 
virtue. But virtue is the end of law; so that whatever 
is from a virtue, cannot come under a precept of law. 
Therefore human law does not prescribe all acts of 
virtue. 

Ob}. 3. Further, law is ordained to the common 
good, as stated above (Q. XC., A. 2). But some acts 
of virtue are ordained, not to the common good, but 
to private good. Therefore the law does not prescribe 
all acts of virtue. 

On the contrary, The Philosopher says (Ethic, v. 
i) that the law prescribes the performance of the 
acts of a brave man, . . . and the acts of the temperate 
man, . . . and the acts of the meek man: and in like 



94 TREATISE ON LAW 

manner as regards the other virtues and vices, pre- 
scribing the former, forbidding the latter. 

I answer that, The species of virtues are distin- 
guished by their objects, as explained above (Q. LIV., 
A. 2; Q. LX., A. i; Q. LXIL, A. 2). Now all the 
objects of virtues can be referred either to the private 
good of an individual, or to the common good of the 
multitude: thus matters of fortitude may be achieved 
either for the safety of the state, or for upholding 
the rights of a friend, and in like manner with the 
other virtues. But law, as stated above (Q. XC., A. 
2) is ordained to the common good. Wherefore there 
is no virtue whose acts cannot be prescribed by the 
law. Nevertheless human law does not prescribe con- 
cerning all the acts of every virtue: but only in re- 
gard to those that are ordainable to the common good, 
either immediately, as when certain things are done 
directly for the common good, or mediately, as when 
a lawgiver prescribes certain things pertaining to 
good order, whereby the citizens are directed in the 
upholding of the common good of justice and peace. 

Reply Obj. i. Human law does not forbid all 
vicious acts, by the obligation of a precept, as neither 
does it prescribe all acts of virtue. But it forbids certain 
acts of each vice, just as it prescribes some acts of each 
virtue. 

Reply Obj. 2. An act is said to be an act of virtue 
in two ways. First, from the fact that a man does 
something virtuous; thus the act of justice is to do 
what is right, and an act of fortitude is to do brave 
things: and in this way law prescribes certain acts of 



OF THE POWER OF HUMAN LAW 9^ 

virtue. Secondly an act of virtue is when a man 
does a virtuous thing in a way in which a virtuous man 
does it. Such an act always proceeds from virtue: and 
it does not come under a precept of law, but is the 
end at which every lawgiver aims. 

Reply Ob]. 3. There is no virtue whose act is not 
ordainable to the common good, as stated above, 
either mediately or immediately. 



FOURTH ARTICLE 

WHETHER HUMAN LAW BINDS A MAN IN 
CONSCIENCE? 



We proceed thus to the fourth Article: 

Objection i. It would seem that human law does 
not bind a man in conscience. For an inferior power 
has no jurisdiction in a court of higher power. But 
the power of a man, which frames human law, is 
beneath the Divine power. Therefore human law can- 
not impose its precept in a Divine court, such as is 
the court of conscience. 

Ob}. 2. Further, the judgment of conscience de- 
pends chiefly on the commandments of God. But 
sometimes God's commandments are made void by hu- 
man laws, according to Matth. xv. 6: You have made 
void the commandment of God for your tradition. 
Therefore human law does not bind a man in 
conscience. 

Ob}. 3. Further, human laws often bring loss of 



9 6 TREATISE ON LAW 

character and injury on man, according to Isa. x. i 
et seq.: Woe to them that make wicked laws, and 
when they write, write injustice; to oppress the poor 
in judgment, and do violence to the cause of the 
humble of My people. But it is lawful for anyone to 
avoid oppression and violence. Therefore human laws 
do not bind man in conscience. 

On the contrary, It is written (i Pet. ii. 19) : This 
is thanksworthy, if for conscience . . . a man endure 
sorrows, suffering wrongfully. 

I answer that, Laws framed by man are either just 
or unjust. If they be just, they have the power of 
binding in conscience, from the eternal law whence 
they are derived, according to Prov. viii. 15: By Me 
kings reign, and lawgivers decree just things. Now 
laws are said to be just, both from the end, when, 
to wit, they are ordained to the common good, and 
from their author, that is to say, when the law that is 
made does not exceed the power of the lawgiver, 
and from their form, when, to wit, burdens are laid 
on the subjects, according to an equality of propor- 
tion and with a view to the common good. For, since 
one man is a part of the community, each man, in all 
that he is and has, belongs to the community; just as 
a part, in all that it is, belongs to the whole; wherefore 
nature inflicts a loss on the part, in order to save the 
whole: so that on this account, such laws as these, 
which impose proportionate burdens, are just and 
binding in conscience, and are legal laws. 

On the other hand laws may be unjust in two ways: 
first, by being contrary to human good, through 



OF THE POWER OF HUMAN LAW 97 

being opposed to the things mentioned above: either 
in respect of the end, as when an authority imposes 
on his subjects burdensome laws, conducive, not to 
the common good, but rather to his own cupidity or 
vainglory;- or in respect of the author, as when a 
man makes a law that goes beyond the power com- 
mitted to him; or in respect of the form, as when 
burdens are imposed unequally on the community, al- 
though with a view to the common good. The like 
are acts of violence rather than laws; because as 
Augustine says (De Lib. Arb. i. 5), a law that is not 
just) seems to be no law at all. Wherefore such laws 
do not bind in conscience, except perhaps in order to 
avoid scandal or disturbance, for which cause a man 
should even yield his right, according to Matth. v. 40, 
41: If a -man . . . take away thy coat, let go thy cloak 
also unto him; and whosoever will force thee one mile, 
go with him other two. 

Secondly, laws may be unjust through being op- 
posed to the Divine good: such are the laws of tyrants 
inducing to idolatry, or to anything else contrary to 
the Divine law: and laws of this kind must nowise 
be observed, because, as stated in Acts v. 29, we 
ought to obey God rather than men. 

Reply Obj. i. As the Apostle says (Rom. xiii. i, 
2), all human power is from God . . . therefore he 
that resisteth the power, in matters that are within its 
scope, resisteth the ordinance of God; so that he be- 
comes guilty according to his conscience. 

Reply Obj. 2. This argument is true of laws that 
are contrary to the commandments of God, which is 



98 TREATISE ON LAW 

beyond the scope of (human) power. Wherefore in 
such matters human law should not be obeyed. 

Reply Obj. 3. This argument is true of a law that 
inflicts unjust hurt on its subjects. The power that 
man holds from God does not extend to this: where- 
fore neither in such matters is man bound to obey the 
law, provided he avoid giving scandal or inflicting a 
more grievous hurt. 



FIFTH ARTICLE 
WHETHER ALL ARE SUBJECT TO THE LAW? 

We proceed thus to the Fifth Article: 
Objection i. It would seem that not all are subject 
to the law. For those alone are subject to a law for 
whom a law is made. But the Apostle says (i Tim. 
i. 9 ) : The law is not made for the just man. There- 
fore the just are not subject to the law. 

Ob}. 2. Further, Pope Urban says:* He that is 
guided by a private law need not for any reason be 
bound by the public law. Now all spiritual men are 
led by the private law of the Holy Ghost, for they 
are the sons of God, of whom it is said (Rom. viii. 
14) : Whosoever are led by the Spirit of God, they are 
the sons of God. Therefore not all men are subject to 
human law. 

* Decret. caus. xix., qu. 2. 



OF THE POWER OF HUMAN LAW 99 

Obj. 3. Further, the jurist says* that the sovereign 
is exempt from the laws. But he that is exempt from 
the law is not bound thereby. Therefore not all are 
subject to the law. 

On the contrary) The Apostle says (Rom. xiii. i) : 
Let every soul be subject to the higher powers. But 
subjection to a power seems to imply subjection to the 
laws framed by that power. Therefore all men should 
be subject to human law. 

Z answer that, As stated above (Q. XC, AA. i, 
2; A. 3 ad 2), the notion of law contains two things; 
first, that it is a rule of human acts; secondly, that it 
has coercive power. Wherefore a man may be subject to 
law in two ways. First, as the regulated is subject 
to the regulator: and, in this way, whoever is subject 
to a power, is subject to the law framed by that 
power. But it may happen in two ways that one is 
not subject to a power. In one way, by being altogether 
free from its authority: hence the subjects of one 
city or kingdom are not bound by the laws of the 
sovereign of another city or kingdom, since they are 
not subject to his authority. In another way, by be- 
ing under a yet higher law; thus the subject of a 
proconsul should be ruled by his command, but not 
in those matters in which the subject receives his 
orders from the emperor: for in these matters, he is 
not bound by the mandate of the lower authority, 
since he is directed by that of a higher. In this way, 
one who is simply subject to a law, may not be sub- 

* Pandect. Justin, i. ff., tit. 3, De Leg. et Senat. 



100 TREATISE ON LAW 

ject thereto in certain matters, in respect of which he 
is ruled by a higher law. 

Secondly, a man is said to be subject to a law as 
the coerced is subject to the coercer. In this way the 
virtuous and righteous are not subject to the law, but 
only the wicked. Because coercion and violence are 
contrary to the will: but the will of the good is in 
harmony with the law, whereas the will of the wicked 
is discordant from it. Wherefore in this sense the 
good are not subject to the law, but only the wicked. 

Reply Obj. i. This argument is true of subjection 
by way of coercion: for, in this way, the law is not 
made for the just men: because they are a law to 
themselves, since they shew the work of the law 
written in their hearts, as the Apostle says (Rom. ii. 
14, 15). Consequently the law does not enforce itself 
upon them as it does on the wicked. 

Reply Obj. 2. The law of the Holy Ghost is above 
all law framed by man: and therefore spiritual men, 
in so far as they are led by the law of the Holy 
Ghost, are not subject to the law in those matters 
that are inconsistent with the guidance of the Holy 
Ghost. Nevertheless the very fact that spiritual men 
are subject to law, is due to the leading of the Holy 
Ghost, according to i Pet. ii. 13: Be ye subject . . . 
to every human creature for God's sake. 

Reply Obj. 3. The sovereign is said to be exempt 
from the law, as to its coercive power; since, properly 
speaking, no man is coerced by himself, and law has 
no coercive power save from the authority of the 
sovereign. Thus then is the sovereign said to be ex- 



OF THE POWER OF HUMAN LAW IOI 

empt from the law, because none is competent to pass 
sentence on him, if he acts against the law. "Where- 
fore on Ps. L. 6: To Thee only have I sinned, a gloss 
says that there is no man who can judge the deeds of 
a king. But as to the directive force of law, the 
sovereign is subject to the law by his own will, ac- 
cording to the statement (Extra, De Cons tit. cap. 
Cum omnes) that whatever law a man makes for an- 
other, he should keep himself. And a wise authority* 
says: 'Obey the law that thou makes t thyself. 3 More- 
over the Lord reproaches those who say and do not; 
and who bind heavy burdens and lay them on men's 
shoidders, but with a finger of their own they will 
not move them (Matth. xxiii. 3, 4). Hence, in the 
judgment of God, the sovereign is not exempt from 
the law, as to its directive force; but he should fulfil 
it of his own free-will and not of constraint. 
Again the sovereign is above the law, in so far as, 
when it is expedient, he can change the law, and dis- 
pense in it according to time and place. 



SIXTH ARTICLE 

WHETHER HE WHO IS UNDER A LAW MAY ACT 
BESIDE THE LETTER OF THE LAW? 

We proceed thus to the Sixth Article: 
Objection i. It seems that he who is subject to a 
law may not act beside the letter of the law. For 

* Dionysius Cato, Dist. de Moribus. 



102 TREATISE ON LAW 

Augustine says (De Vera Relig. xxxi) : Although 
men judge about temporal laws when they make 
them, yet when once they are made they imist pass 
judgment not on them, but according to them. But if 
anyone disregard the letter of the law, saying that he 
observes the intention of the lawgiver, he seems to 
pass judgment on the law. Therefore it is not right 
for one who is under a law to disregard the letter of 
the law, in order to observe the intention of the law- 
giver. 

Obj. 2. Further, he alone is competent to interpret 
the law who can make the law. But those who are 
subject to the law cannot make the law. Therefore 
they have no right to interpret the intention of the 
lawgiver, but should always act according to the 
letter of the law. 

Obj. 3 . Further, every wise man knows how to ex- 
plain his intention by words. But those who framed the 
laws should be reckoned wise: for Wisdom says (Prov. 
viii. 15): By Me kings reign, and lawgivers decree just 
things. Therefore we should not judge of the inten- 
tion of the lawgiver otherwise than by the words of 
the law. 

On the contrary, Hilary says (De Trin. iv.): The 
meaning of what is said is according to the motive 
for saying it: because things are not subject to speech, 
but speech to things. Therefore we should take ac- 
count of the motive of the lawgiver, rather than of 
his very words. 

f answer that, As stated above (A. 4), every law 
is directed to the common weal of men, and derives 



OF THE POWER OF HUMAN LAW 103 

the force and nature of law accordingly. Hence the 
jurist says:* By no reason of law, or favoiir of equity, 
is it allowable for us to interpret harshly, and render 
burdensome, those useful measures which have been 
enacted for the welfare of man. Now it happens often 
that the observance of some point of law conduces to 
the common weal in the majority of instances, and 
yet, in some cases, is very hurtful. Since then the law- 
giver cannot have in view every single case, he shapes 
the law according to what happens most frequently, 
by directing his attention to the common good. 
Wherefore if a case arise wherein the observance of 
that law would be hurtful to the general welfare, it 
should not be observed. For instance, suppose that in 
a beseiged city it be an established law that the gates 
of the city are to be kept closed, this is good for 
public welfare as a general rule: but, if it were to 
happen that the enemy are in pursuit of certain citi- 
zens, who are defenders of the city, it would be a 
great loss to the city, if the gates were not opened 
to them: and so in that case the gates ought to be 
opened, contrary to the letter of the law, in order to 
maintain the common weal, which the lawgiver had 
in view. 

Nevertheless it must be noted, that if the observ- 
ance of the law according to the letter does not in- 
volve any sudden risk needing instant remedy, it is 
not competent for everyone to expound what is use- 
ful and what is not useful to the state: those alone 
can do this who are in authority, and who, on account 

* Pandect. Justin, lib. i. ff., tit. 3, De Leg. et Senat. 



104 TREATISE ON LAW 

of suchlike cases, have the power to dispense from the 
laws. If, however, the peril be so sudden as not to al- 
low of the delay involved by referring the matter to 
authority, the mere necessity brings with it a dispensa- 
tion, since necessity knows no law. 

Reply Ob), i. He who in case of necessity acts 
beside the letter of the law, does not judge of the law; 
but of a particular case in which he sees that the 
letter of the law is not to be observed. 

Reply Obj. 2. He who follows the intention of the 
lawgiver, does not interpret the law simply; but in a 
case in which it is evident, by reason of the manifest 
harm, that the lawgiver intended otherwise. For if it 
be a matter of doubt, he must either act according to 
the letter of the law, or consult those in power. 

Reply Obj. 3. No man is so wise as to be able to 
take account of every single case; wherefore he is not 
able sufficiently to express in words all those things 
that are suitable for the end he has in view. And even 
if a lawgiver were able to take all the cases into con- 
sideration, he ought not to mention them all, in order 
to avoid confusion: but should frame the law accord- 
ing to that which is of most common occurrence. 



OF CHANGE IN LAWS IOJ 

QUESTION 97 

OF CHANGE IN LAWS 
(In Four Articles) 

must now consider change in laws: under which 
head there are four points of inquiry: (i) Whether 
human law is changeable? (2) Whether it should be 
always changed, whenever anything better occurs? 
(3) Whether it is abolished by custom, and whether 
custom obtains the force of law? (4) Whether the 
application of human law should be changed by dis- 
pensation of those in authority? 

FIRST ARTICLE 

WHETHER HUMAN LAW SHOULD BE CHANGED 
IN ANY WAY? 

We proceed thus to the First Article: 
Objection i. It would seem that human law should 
not be changed in any way at all. Because human law is 
derived from the natural law, as stated above (Q. 
XCV., A. 2) . But the natural law endures unchange- 
ably. Therefore human law should also remain with- 
out any change. 

Obj. 2. Further, as the Philosopher says (Ethic, v. 



106 TREATISE ON LAW 

5 ) , a measure should be absolutely stable. But human 
law is the measure of human acts, as stated above 
(Q. XC, AA. i, 2). Therefore it should remain 
without change. 

Qbj. 3. Further, it is of the essence of law to be 
just and right, as stated above (Q. XCV., A. 2). 
But that which is right once is right always. There- 
fore that which is law once, should be always law. 

On the contrary y Augustine says (De Lib. Arb. i. 
6) : A temporal law, however just, may be justly 
changed in course of time. 

I answer that) As stated above (Q. XCL, A. 3), 
human law is a dictate of reason, whereby human acts 
are directed. Thus there may be two causes for the 
just change of human law: one on the part of reason; 
the other on the part of man whose acts are regulated 
by law. The cause on the part of reason is that it 
seems natural to human reason to advance gradually 
from the imperfect to the perfect. Hence, in specula- 
tive sciences, we see that the teaching of the early 
philosophers was imperfect, and that it was after- 
wards perfected by those who succeeded them. So also 
in practical matters: for those who first endeavoured 
to discover something useful for the human commun- 
ity, not being able by themselves to take everything 
into consideration, set up certain institutions which 
were deficient in many ways; and these were changed 
by subsequent lawgivers who made institutions that 
might prove less frequently deficient in respect of the 
common weal. 

On the part of man, whose acts are regulated by 



OF CHANGE IN LAWS IO/ 

law, the law can be rightly changed on account of 
the changed condition of man, to whom different 
things are expedient according to the difference of his 
condition. An example is proposed by Augustine (De 
Lib. Arb. i. 6) : If the people have a sense of modera- 
tion and responsibility, and are most careful guardians 
of the common weal, it is right to enact a law allow- 
ing such a people to choose their own magistrates for 
the government of the commonwealth. But if, as time 
goes on, the same people become so corrupt as to sell 
their votes, and entrust the government to scoundrels 
and criminals; then the right of appointing their 
public officials is rightly forfeit to such a people, and 
the choice devolves to a few good men. 

Reply obj. i. The natural law is a participation of 
the eternal law, as stated above (Q. XCL, A. 2), and 
therefore endures without change, owing to the un- 
changeableness and perfection of the Divine Reason, 
the Author of nature. But the reason of man is 
changeable and imperfect: wherefore his law is sub- 
ject to change. Moreover the natural law contains 
certain universal precepts, which are everlasting: 
whereas human law contains certain particular pre- 
cepts, according to various emergencies. 

Reply Obj. 2. A measure should be as enduring as 
possible. But nothing can be absolutely unchangeable 
in things that are subject to change. And therefore 
human law cannot be altogether unchangeable. 

Reply Obj. 3. In corporal things, right is predicated 
absolutely: and therefore, as far as itself is concerned, 
always remains right. But right is predicated of law 



108 TREATISE ON LAW 

with reference to the common weal, to which one and 
the same thing is not always adapted, as stated above: 
wherefore rectitude of this kind is subject to change. 



SECOND ARTICLE 

WHETHER HUMAN LAW SHOULD ALWAYS BE 

CHANGED, WHENEVER SOMETHING BETTER 

OCCURS? 



We proceed thus to the Second Article: 

Objection i. It would seem that human law should 
be changed, whenever something better occurs. Be- 
cause human laws are devised by human reason, like 
other arts. But in the other arts, the tenets of for- 
mer times give place to others, if something better 
occurs. Therefore the same should apply to human 
laws. 

Qbj. 2. Further, by taking note of the past we can 
provide for the future. Now unless human laws had 
been changed when it was found possible to improve 
them, considerable inconvenience would have ensued; 
because the laws of old were crude in many points. 
Therefore it seems that laws should be changed, when- 
ever anything better occurs to be enacted. 

Obj. 3. Further, human laws are enacted about sin- 
gle acts of man. But we cannot acquire perfect knowl- 
edge in singular matters, except by experience, which 
requires time, as stated in Ethic, ii. Therefore it seems 



OF CHANGE IN LAWS 10^ 

that as time goes on it is possible for something better 
to occur for legislation. 

On the contrary 9 It is stated in the Decretals (Dist. 
xii. 5 ) : It is absurd, and a detestable shame, that -we 
should suffer those traditions to be changed which we 
have received from the fathers of old. 

I answer that, As stated above (A. i), human law 
is rightly changed, in so far as such change is con- 
ducive to the common weal. But, to a certain extent, 
the mere change of law is of itself prejudicial to the 
common good: because custom avails much for the 
observance of laws, seeing that what is done contrary 
to general custom, even in slight matters, is looked 
upon as grave. Consequently, when a law is changed, 
the binding power of the law is diminished, in so far 
as custom is abolished. Wherefore human law should 
never be changed, unless, in some way or other, the 
common weal be compensated according to the extent 
of the harm done in this respect. Such compensation 
may arise either from some very great and very evi- 
dent benefit conferred by the new enactment; or 
from the extreme urgency of the case, due to the fact 
that either the existing law is clearly unjust, or its 
observance extremely harmful. Wherefore the jurist 
says* that in establishing new laws, there should be 
evidence of the benefit to be derived, before departing 
from a law which has long been considered just. 

Reply Ob}, i. Rules of art derive their force from 
reason alone: and therefore whenever something better 

* Pandect. Justin, lib. i. tf., tit. 4, De Constit. Princip. 



110 TREATISE ON LAW 

occurs, the rule followed hitherto should be changed. 
But laws derive very great force from custom, as the 
Philosopher states (Polit. ii. 5): consequently they 
should not be quickly changed. 

Reply Obj. 2. This argument proves that laws 
ought to be changed: not in view of any improve- 
ment, but for the sake of a great benefit or in a case 
of great urgency, as stated above. This answer applies 
also to the Third Objection. 



THIRD ARTICLE 
WHETHER CUSTOM CAN OBTAIN FORCE OF LAV? 

We proceed thus to the Third Article: 
Objection i . It would seem that custom cannot ob- 
tain force of law, nor abolish a law. Because human 
law is derived from the natural law and from the 
Divine law, as stated above (Q. XCIIL, A. 3; Q. 
XCV.j A. 2). But human custom cannot change 
either the law of nature or the Divine law. Therefore 
neither can it change human law. 

Obj. 2. Further, many evils cannot make one good. 
But he who first acted against the law, did evil. 
Therefore by multiplying such acts, nothing good is 
the result. Now a law is something good; since it is a 
rule of human acts. Therefore law is not abolished by 
custom, so that the mere custom should obtain force 
of law. 



OF CHANGE IN LAWS III 

Obj. 3. Further, the framing of laws belongs to 
those public men whose business it is to govern the 
community; wherefore private individuals cannot 
make laws. But custom grows by the acts of private in- 
dividuals. Therefore custom cannot obtain force of 
law, so as to abolish the law. 

On the contrary, Augustine says (Ep. ad Casulan, 
xxxvi.) : The customs of God's people and the institu- 
tions of our ancestors are to be considered as laws. 
And those who throw contempt on the customs of 
the Church ought to be punished as those who disobey 
the law of God. 

I answer that 9 All law proceeds from the reason and 
will of the lawgiver; the Divine and natural laws 
from the reasonable will of God; the human law 
from the will of man, regulated by reason. Now just 
as human reason and will, in practical matters, may 
be made manifest by speech, so may they be made 
known by deeds: since seemingly a man chooses as 
good that which he carries into execution. But it is 
evident that by human speech, law can be both 
changed and expounded, in so far as it manifests the 
interior movement and thought of human reason. 
Wherefore by actions also, especially if they be re- 
peated, so as to make a custom, law can be changed 
and expounded; and also something can be established 
which obtains force of law, in so far as by repeated 
external actions, the inward movement of the will, 
and concepts of reason are most effectually declared; 
for when a thing is done again and again, it seems to 



112 TREATISE ON LAW 

proceed from a deliberate judgment of reason. Ac- 
cordingly, custom has the force of a law, abolishes 
law, and is the interpreter of law. 

Reply Obj. i. The natural and Divine laws proceed 
from the Divine will, as stated above. Wherefore they 
cannot be changed by a custom proceeding from the 
will of man, but only by Divine authority. Hence it 
is that no custom can prevail over the Divine or 
natural laws: for Isidore says (Synon. ii. 16). Let 
custom yield to authority: evil customs should be 
eradicated by law and reason. 

Reply Ob}. 2. As stated above (Q. XCVL, A. 6), 
human laws fail in some cases: wherefore it is possible 
sometimes to act beside the law; namely, in a case where 
the law fails; yet the act will not be evil. And when 
such cases are multiplied, by reason of some change in 
man, then custom shows that the law is no longer use- 
ful: just as it might be declared by the verbal promul- 
gation of a law to the contrary. If, however, the same 
reason remains, for which the law was useful hitherto, 
then it is not the custom that prevails against the law, 
but the law that overcomes the custom: unless perhaps 
the sole reason for the law seeming useless, be that it 
is not possible according to the custom of the coun- 
try* which has been stated to be one of the condi- 
tions of law. For it is not easy to set aside the cus- 
tom of a whole people. 

Reply Obj. 3. The people among whom a custom 
is introduced may be of two conditions. For if they 
are free, and able to make their own laws, the consent 

* C/. Q. XCV., A. 3. 



OF CHANGE IN LAWS 113 

of the whole people expressed by a custom counts far 
more in favour of a particular observance, than does 
the authority of the sovereign, who has not the power 
to frame laws, except as representing the people. 
"Wherefore although each individual cannot make 
laws, yet the whole people can. If however the peo- 
ple have not the free power to make their own laws, 
or to abolish a law made by a higher authority; never- 
theless with such a people a prevailing custom ob- 
tains force of law, in so far as it is tolerated by those 
to whom it belongs to make laws for that people: be- 
cause by the very fact that they tolerate it they seem 
to approve of that which is introduced by custom. 



FOURTH ARTICLE 

WHETHER THE RULERS OF THE PEOPLE CAN 
DISPENSE FROM HUMAN LAWS? 

We proceed thus to the "Fourth Article: 
Objection i. It would seem that the rulers of the 
people cannot dispense from human laws. For the 
law is established for the common weal, as Isidore 
says (Etym. v. 21). But the common good should 
not be set aside for the private convenience of an 
individual: because, as the Philosopher says (Ethic. 
i. 2), the good of the nation is more godlike than the 
good of one man. Therefore it seems that a man. 
should not be dispensed from acting in compliance 
with the general law. 



114 TREATISE ON LAW 

Obj. 2. Further, those who are placed over others 
are commanded as follows (Deut. i. 17): You shall 
hear the little as well as the great; neither shall you 
respect any man's person, because it is the judgment 
of God. But to allow one man to do that which is 
equally forbidden to all, seems to be respect of per- 
sons. Therefore the rulers of a community cannot 
grant such dispensations, since this is against a precept 
of the Divine law. 

Obj. 3. Further, human law, in order to be just, 
should accord with the natural and Divine laws: else 
it would not foster religion, nor be helpful to disci- 
pline, which is requisite to the nature of law, as laid 
down by Isidore (Etym. v. 3). But no man can dis- 
pense from the Divine and natural laws. Neither, 
therefore, can he dispense from the human law. 

On the contrary, The Apostle says (i Cor. ix. 17) : 
A dispensation is committed to me. 

1 answer that, Dispensation, properly speaking, de- 
notes a measuring out to individuals of some common 
goods: thus the head of a household is called a dispen- 
ser, because to each member of the household he dis- 
tributes work and necessaries of life in due weight 
and measure. Accordingly in every community a 
man is said to dispense, from the very fact that he 
directs how some general precept is to be fulfilled by 
each individual. Now it happens at times that a pre- 
cept, which is conducive to the common weal as a 
general rule, is not good for a particular individual, or 
in some particular case, either because it would hinder 
some greater good, or because it would be the occasion 



OF CHANGE IN LAWS 115 

of some evil, as explained above (Q. XCVL, A. 6). 
But it would be dangerous to leave this to the discre- 
tion of each individual, except perhaps by reason of 
an evident and sudden emergency, as stated above 
(ibid.). Consequently he who is placed over a com- 
munity is empowered to dispense in a human law that 
rests upon his authority, so that, when the law fails 
in its application to persons or circumstances, he may 
allow the precept of the law not to be observed. If 
however he grant this permission without any such 
reason, and of his mere will, he will be an unfaithful 
or an imprudent dispenser: unfaithful, if he has not 
the common good in view; imprudent, if he ignores 
the reasons for granting dispensations. Hence Our 
Lord says (Luke xii. 42): Who, thinkest thou, is the 
faithful and whe dispenser (Douay, steivard) , whom 
his lord setteth over his family? 

Reply Obj. i . "When a person is dispensed from ob- 
serving the general law, this should not be done to 
the prejudice of, but with the intention of benefiting, 
the common good. 

Reply Obj. 2. It is not respect of persons if unequal 
measures are served out to those who are themselves 
unequal. Wherefore when the condition of any per- 
son requires that he should reasonably receive special 
treatment, it is not respect of persons if he be the 
object of special favour. 

Reply Obj. 3. Natural law, so far as it contains 
general precepts, which never fail, does not allow of 
dispensation. In the other precepts, however, which 
are as conclusions of the general precepts, man some- 



II 6 TREATISE ON LAW 

times grants a dispensation: for instance, that a loan 
should not be paid back to the betrayer of his coun- 
try, or something similar. But to the Divine law each 
man stands as a private person to the public law to 
which he is subject. Wherefore just as none can 
dispense from public human law, except the man 
from whom the law derives its authority, or his dele- 
gate; so, in the precepts of the Divine law, which are 
from God, none can dispense but God, or the man 
to whom He may give special power for that purpose. 



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