ON HUMAN LAW IN ITSELF.

Article 1.

On the End of Human Law.

265. Human or civil law is rightly defined as an ordinance of human reason by which a society or State and its members, by him who has care of it, are directed immediately to temporal perfection and happiness, and mediately are aided to the ultimate end. The immediate and proximate end of law therefore is the common good of civil society and of its members, i.e. their preservation, perfection, and temporal happiness. This however imports the practice of virtue : for happiness in this life consists formally in the exercise of virtue, and instrumentally in the abundance of goods necessary for the exercise of virtue¹ (n. 44). Now virtue is ordered to eternal happiness. Therefore the remote and mediate end, to which the proximate is to be subordinated, is eternal happiness.

266. It is objected : thus with Machiavelli and other politicians, that public tranquility and temporal happiness are the end of political rule. But the precepts of honesty of rule and of religion are very much opposed to public tranquility and temporal happiness. Therefore a political prince is not bound by such rules and principles.

R. 1) I distinguish the major : Public tranquility and temporal happiness is the proximate end of society, I concede ; the ultimate, I deny. There is no rule which ought not to be referred to the glory of God and to eternal happiness, according to that of Augustine (De Civ. Dei, V, 24) : « We call those emperors happy if they command what is just (i.e. honest), if they make their power a handmaid of the divine majesty, especially for spreading the worship of God ». Nor does it follow therefrom that political rule does not differ from the rule of the Church : for there are two commonwealths adequately distinguished by reason of the proximate and immediate end, and of each one's proper matter ; which however does not prevent both from conspiring to the same spiritual end. — Although therefore the civil power, inasmuch as it directly prescribes, is restricted to its proper matter, in its proper matter nevertheless it rules subjects in order to the end of eternal salvation, as to the remote and ultimate end.

2. I deny the minor. For who, unless he is of a delirious mind, will say that the principles of religion and the rules of honesty are opposed to temporal happiness, when rather they are able to contribute to it, by directing and restraining wicked passions which overturn common tranquility and temporal happiness. Whence Aristotle says, III Pol., c. 6 : « They who have the care of well instituting a city think publicly about virtue and vice ».

On the Author of Civil Law.

267. Thesis. Legislative power originally is from God as from the author of nature. — It is clear a) from Scripture : Wis. VI, 2-4 ; Rom. XIII, 1-7 ; Prov. VIII, 15-16 ; Ecclus. XVII, 14 ; — b) from reason : for man is by nature a social animal ; but society needs a power by which it is ruled ; therefore this power is from the author of nature (Cf. Leo XIII, enc. Diuturnum, 29 June 1881 ; Immortale Dei, 1 Nov. 1885 ; and also Humanum genus, 20 April 1884).

268. Power is communicated by God as the principal cause, but through the multitude as the instrumental cause. — The community is bound to transmit that power of itself, not for a time and in a revocable manner, but in a stable manner in perpetuity, not to be exercised in its name but to be possessed as its own : for thus it is ordinarily necessary by the nature of things for the good government of society. It can however be transmitted to various subjects according to the various form or regime of society. If it resides entirely in one, the regime is monarchic ; if in a group of many of the best and most powerful, it is aristocratic or oligarchic ; if in the community itself or in a group elected from every condition, who are designated by all, it is democratic ; — finally if simultaneously but partially it resides in many, it is a mixed regime which prevails in present-day nations : thus in Belgium it resides partially in a twofold group of electors who enact the laws and in the king who can sanction or not sanction and promulgate them (Const. Belg., art. 26).

Power exists full in the supreme authority ; from it is sometimes derived a restricted [power] to certain subordinates, as happens in fiefs, confederated states, etc.

269. Power does not depend of itself on faith, uprightness of life, good morals, nor therefore on sex, age, and other conditions of the subject in whom it resides.

It is clear a) from the Council of Constance, sess. 8, condemning prop. 15 of Wyclif ;

b) from Scripture : both from the words of Christ commanding tribute to be paid to an ethnic prince (Mt. XXII, 21) and to obey the wicked and evil Pharisees (XXIII, 3) ; and from the words of the Apostles who teach that infidel princes are ministers of God who are to be obeyed in conscience (Rom. XIII, 5-7 ; Tit. III, 1 ; I Pet. II, 13-15) ;

c) by reason : a man cannot command because he is good but because he is superior.

Accidentally however power can depend on the aforesaid conditions, if it is so determined specially in Law.

On the Quality of Human Law.

S. Th. I-II, q. 95, a. 2 and 3.

270. Principle I. Human law is a derivation of natural law.

It is proved : Law, since it is an ordinance of reason, must be conformed to the rule of reason : for it is not true law unless it be just ; just is the same as right according to the rule of reason ; therefore, inasmuch as law has of justice or of the rectitude of reason, so much does it have of the virtue of law. But the first rule of reason is natural law. Therefore human law, inasmuch as it has of the virtue of law, has it insofar as it is derived from natural law. — If however in anything it disagrees with it, it will no longer be law but a corruption of law (Greg. XVI, enc. Qui pluribus, 9 Nov. 1846 ; Pius IX, enc. Quanta Cura, 8 Dec. 1864).

271. Principle II. Human law is the complement of natural law.

It is proved : From natural law something can be derived 1) as a necessary conclusion from the principles, e.g. one is not to kill from this, that evil is to be done to no one, and this pertains not to human law alone but also from the law of nature has the force of obliging ; 2) as a fitting conclusion or particular determination of a common and indeterminate principle, either for directing men or for compelling them, and this immediately has force from human law alone. Thus e.g. that a contract is to be made in such a way that better provision be made for justice, is a determination of the directive principle : contracts are to be entered into according to justice ; and that thieves are to be punished by prison rather than another penalty, is a determination of the coercive principle : thieves are to be punished.

It is said : immediately, because all just human laws oblige mediately by the force of this natural principle, that inferiors ought to obey superiors.

272. Principle III. Human law must be proportioned both to the end, and to natural and divine law.

It is proved : For human law is a means to an end, and is a rule and measure regulated and measured by the superior natural and eternal law of God ; therefore it must be proportioned to these three. Hence :

1. inasmuch as it is proportioned to the law of God, it must be congruous ;

2. and consequently honest, not contradicting the eternal law ; to religion inasmuch as it is conformed to natural law, it must be fitting to discipline, i.e. a) as to object : just, i.e. establishing what is right according to reason ; b) as to the faculty of acting or the power of the subjects : possible and according to nature, because impossible things are not to be imposed on men, and according to the custom of the country, because in living in society a man follows the manner of others, not bearing their burden ; c) as to due circumstances : fitting to place and time ;

3. inasmuch as it is proportioned to the end, it must be expedient for salvation or for the utility of men, and therefore a) necessary for removing evil or useful for obtaining good ; b) manifest, i.e. clear so that it can be understood, lest it be harmful to men ; c) handed down for the benefit of the commonwealth, i.e. ordered to the common good.

On the Formation of Human Law.

273. Human laws can be formed either by an imperative act of the legislator demanding observance from the subjects : these are constituted or statute law, which ordinarily is written ; or by the observance of the subjects to which the consent of the legislator is added : these are customary law.

1. Custom by the nature of the thing is a legitimate source of law. For it is conformed to reason that customs introduce law : for those things which are voluntarily observed by the members of society and are born of social evolution, are to be regarded (unless something prevents) as accommodated to the disposition of the subjects and conformed to the common good ; whence they cannot not be sanctioned by a prudent superior. Hence custom, which is usually defined as « a statute law introduced by the long-standing customs of the community with some consent of the legislator », was generally admitted in Roman Law ; — but not so in present-day Civil Law, neither for introducing, nor for abrogating, nor for extending or restricting a law ; unless exceptionally, if it is expressly indicated in the law, as happens in the matter of contracts and negotiation.

2. Written law can be issued in various and any forms, of decree, letter, codex or collection ; also of response and sentence, although these two are more suited to interpreting a law already enacted than to introducing a new one. Likewise by various procedures for various times among various peoples it is formed ; today the accepted procedure is the following : it is proposed by ministers of state or by members of the legislative body, in the body it is publicly discussed and accepted by vote, sanctioned by the supreme authority¹.

It is fitting to the nature of constituted law : a) that the superior not enact a law without the counsel of the prudent ; b) that it be expressed in clear and brief words in the language of the society to which it is directed ; c) that it be proposed in writing : for it could indeed be handed down by word of mouth, but by writing better provision is made for the clearness and integrity of the law. All these however are not strictly required in order that the law oblige.

274. Promulgation has been done in various ways at various times and among various nations. In Roman Law, from the year 538, under the emperor Justinian, it was to be done in each province or metropolitan city.

Today, in civilized regions, it is usually done by the act of the king, or of the supreme magistrate of the republic, by which he testifies to the law having been enacted and makes it public right by denouncement in the official gazette ; it begins however to oblige after the time which has been appointed.

Thus in Belgium, according to the law of 28 Feb. 1845, art. 2, confirmed by the law of 18 April 1898 modified 28 Dec. 1909, art. 4 (conformably to Const. Belg. art. 129), it is done by authentic testimony of the existence of the law made by the king and public insertion by him enjoined in the official State gazette : le Moniteur ; and the laws oblige throughout the whole kingdom, on the 10th day after the day of publication, unless however otherwise appointed in the law, or unless it was accidentally impossible for citizens to know it, e.g. because of war, great flooding, etc., or for subjects who are abroad : for the law clearly supposes the possibility of their knowing it (art. 1 of the law of 2 Aug. 1822). — In France, by decree of 5 Nov. 1870, the law obliges one full day having revolved after the official gazette has arrived at the capital of each district. — In Italy the laws oblige on the 15th day from the day of publication.

275. Thesis. For the value or obligating force of human law, of itself the approbative acceptance of the subjects is not required, or acceptance of law, i.e. consent to the observance of the law enacted.

It is proved : 1) The Apostle, Rom. XIII, 2, says without restriction or exception : He who resists the power, resists the ordinance of God ; but he resists the power who does not accept the law enacted by it.

2. If acceptance were required, this would be either from a defect of will in the legislator, or from a defect of power. Not the first : for if he enacts the law with preceptive words and urges it with penalties, it is a clear sign that he wishes to oblige to it ; otherwise the common good can require that he break the resistances of subjects. Not the second, because power in its exercise is not restricted at the nod of the subjects, otherwise an efficacious direction of society would be impossible ; and otherwise it would not be a true power of commanding and prescribing, but a mere faculty of giving and proposing counsel, by which the common good cannot sufficiently be procured.

3. Whence Alexander VII condemned prop. (28) : « A people does not sin even if without any cause it does not receive a law promulgated by the prince » (cf. Syll. prop. 63).

Accidentally however acceptance is necessary, if the legislator is unwilling otherwise to oblige, or if that right is reserved to the people in the law (as in Switzerland for certain laws there is a referendum to the people) ; but then the acceptance is not of a law already constituted, but concurs to constituting it.

276. A fortiori for the value to be attributed to the law the executive acceptance of fact, or the very observance of the law, is not required.

It can however be necessary for preserving the force of law, not directly, but indirectly. For if the superior is not able to obtain the fulfillment of the law from the greater or healthier part of the community, it can be fitting that he not urge the observance of the law : for by urging it he could be an occasion of ruin to the subjects without fruit. In which case the obligation does not fail directly from the non-acceptance of the people, but indirectly from the tacit or presumed consent of the legislator, who is judged, if he does not urge the law, not to wish the ruin of souls. But when such a law is considered to be revoked cannot be determined generally, but is left to the judgment of the prudent.

In difference from Roman Law, present-day civil law, because it denies all force to custom, does not admit that after promulgation the law be suspended by recourse to the legislator, nor that it cease by non-reception or by not being brought into use ; whence a consent of the legislator cannot be supposed.

On the Division of Human Law.

S. Th. I-II, q. 95, a. 4.

277. Manifold division. — « Each thing can of itself be divided according to that which is contained in its notion... Now there are many things in the notion of human law, according to any one of which human law can properly and of itself be divided.

1° It is of the notion of human law that it is derived from natural law... and according to this positive law is divided into the law of nations and civil law, according to the two ways in which something is derived from natural law (n. 271). For to the law of nations pertain those things which are derived from natural law as conclusions from principles, as just purchases, sales, and other things of this kind without which men cannot live together ; which is of natural law because man is by nature a social animal... But those things which are derived from natural law by way of particular determination, pertain to civil law, inasmuch as each state determines something accommodated to itself.

2° It is of the notion of human law that it be ordered to the common good of the city ; and according to this human law can be divided according to the diversity of those who specially devote themselves to the common good, such as priests,... princes,... and soldiers,... and therefore to these men certain special laws are fitted.

3° It is of the notion of human law that it be instituted by the governor of the city community... and according to this human laws are distinguished according to the diverse regimes of cities. Of which one... is kingdom, when namely the city is governed by one, and according to this the constitutions of princes are taken. Another regime is aristocracy, i.e. the rule of the best or of the optimates, and according to this the responses of the prudent and also the senatusconsulta are taken. Another regime is oligarchy, i.e. the rule of the rich and powerful, and according to this the praetorian law is taken... Another is that of the people ; which is named democracy, and according to this the plebiscita are taken. Another is tyrannical, which is altogether corrupt ; whence from this no law is taken. There is also a regime mixed from these, which is the best, and according to this is taken the law « which the elders together with the people enacted » (or the deputies of the people together with the prince) (cf. q. 105, a. 1).

4° It is of the notion of human law that it be directive of human acts ; and according to this, according to the diverse things about which laws are enacted, laws are distinguished... because of the things about which they are ». So S. Thomas q. 95, a. 4.

278. Division of present-day law. — Present-day human laws, according to the jurists, are divided according to the diverse persons and things about which they treat, and are reduced to a threefold kind :

a) Some constitute public law (law of the state) which is also called political and administrative law : it regards principally the state of the commonwealth, the social functions and institutions, and the relations between the commonwealth, or its institutions, and the citizens.

Thus the Constitution or fundamental law, the laws which govern the municipalities, provinces, the organization and administration of justice, worship, the army, the elections of deputies, the public treasury, the laws of taxes and fiscal matters¹.

b) Some constitute private law or civil law in the stricter sense : it is principally concerned with those things which pertain to the utility of individuals, and with the rights and relations of citizens to one another. Thus the civil code, the commercial code or for business, and various laws about the dominion of property, including literary and industrial².

c) Some constitute penal law, which chiefly regards crimes, delicts and transgressions or contraventions. Thus the penal code, and various penal and disciplinary laws³.

To civil law rather than to penal pertain those laws which are called social and are sometimes named new law, which namely are concerned with the utilities and rights of some class of citizens and with the relations between diverse classes⁴.

To penal law rather than to civil or administrative law pertain the codes or laws which govern fields and rural estates, forests, hunting and fishing, or the sale of certain things⁵.