Summa Theologiae Moralis, vol. I: De Principiis

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.