Scotus Academicus, Tomus sextus: De Legibus Divinis et Humanis

We devote ourselves to establishing and asserting the necessity and existence of law: for the very defectibility and exigency of the intellectual creature sufficiently makes this plain. For since it very often deflects and wanders from the end of honesty toward which it ought to tend, it has need of some rule by which it may be led as by the hand to the attainment of that end. And if these things are true of the natural end, they must be far more certain concerning the supernatural end, which since it altogether exceeds the understanding and powers of the rational creature itself, and is naturally unknown to the human mind, no one can reach unless he be directed by a higher law and assisted by supernatural aids. — The very great utility of laws for the institution and preservation of the commonwealth proves this same point, whose salvation Aristotle rightly said was constituted in laws, book 5 of his Rhetoric: for if anyone should take away the laws from the republic, he would wrench the soul itself from the body; indeed where laws are lacking, thefts, homicides, and every other crime rage with impunity; whence that well-known saying of Augustine: Justice removed, which is established above all by laws, what are kingdoms but great robberies! To this also accords that saying of Isidore, book 2 Etymologies, chapter 20: Laws were made so that through fear of them human daring might cease, and innocence be safe among the impious, and in the impious themselves, dreading punishment, the faculty of doing harm be broken.

Therefore we undertake here only to expound the nature of law; wherefore

Note 1. Law, according to the etymology of the name, is said either from ligando, binding, because it binds and obliges men to its observance: on which account God complains of the rebellious Jews in Jeremiah 2: You have broken my yoke, you have burst my bands, and you said: I will not serve. And in Matthew 23 Christ, pointing out the hypocrisy and hardness of the Pharisees, says: They bind heavy burdens etc. Secondly, law is said from legendo, reading: because laws, especially positive ones, must be read and promulgated after they have been instituted, so as to bind subjects; or because man reads in the law itself what is to be done and what omitted; or finally, because laws were once handed down in writing so that they might be read and understood by all. Hence Isidore, book 2 Etymologies, chapter 10: This is the difference, he says, between law and custom, that law is written, while custom is a usage approved by antiquity. Cicero confirms this, book 1 On the Laws, where he says the word lex is derived from the verb lego, because it is recited from public tablets so as to become known to all; or it is said from eligendo, choosing, because in it there is a selection of things to be done or avoided: for every law dictates what things are to be chosen and what rejected. This latter usage of lex seems more apt and fitting to our present undertaking. Among the Hebrews, moreover, law is called thorah, from a verb which in the hiphil means to teach, because every law admonishes individual men of their duty and informs them concerning things to be done or avoided. Among the Greeks it is called nomos, from the verb nemеin, which signifies both to rule and to distribute, because according to its precept men ought to be ruled, and to render to each what is his own. Hence St. Augustine, Commentary on Psalm 59 after the middle, observes that although lex in the Latin tongue is of the feminine gender, nomos in Greek is masculine: for it has, he says, rather a masculine force, since it rules and is not ruled.

Note 2. That although law may not absurdly be judged to derive from legendo, reading, nevertheless the principal ground of law must not be placed in written or spoken discourse, but in the things themselves which are commanded or prohibited.

For it belongs only to things themselves to be done or not done, not properly to commands or words, says William of Paris in the treatise De legibus, chapter 1; for he who commands one to run does not command the word, but the running itself; nor does he who obey make the word of running, but the running itself properly; therefore as things are properly said to be done or omitted, so they are properly commanded and prohibited; wherefore also things are properly commanded and prohibited, words figuratively. Therefore precepts, and commandments, and law are first and properly read even as they are understood; for things are properly those whose understanding is properly and first sought. Which indeed he further confirms there, saying: The rules of honesty are such as these, that God is to be honored, that God is to be feared, that God is to be adored, that every man is to be loved, that provision is to be made for every man; whether those rules are written without or not, and whether they are heard without or not, they are true and to be held. And each one is bound by the debt of honoring God and by the debt of fearing him, whether he read it written abroad or not, and whether he hear these things abroad or not. And after this manner it stands with other things which are debts per se; although it be true that greater knowledge of the height and power of God augments the debt of honor and fear owed him, and increases the obligation. It is manifest, therefore, both that the rules of honesty and the debts, that is obligations, of doing certain things and avoiding certain others exist with all speech and writing set aside, and that transgression and sin likewise are without these; wherefore some law exists of necessity beyond this. Furthermore: all honesty is undoubtedly in the soul — I say the honesty of human life and of morals; but honesty of life regulated, ordered, and moderated: yet it is not regulated, or moderated, or ordered except by honesty, nor comely except by honesty. Wherefore the whole of that which orders, regulates, moderates, and adorns human life is in the soul: it is therefore beyond speech and writing, since these are external. Since, then, law is that which orders, regulates, moderates, and adorns human life, it is manifest that true law is in the soul. Furthermore: what is true law, unless a certain art or wisdom of living rightly and honestly? But every art and every wisdom is in the soul; wherefore if it has been truly said that true law is the art and wisdom of living rightly and honestly, truly law is, and by its true nature law is, in the soul.

Hence he concludes that law is said more properly and more truthfully to be that which is in the mind than that which is in writing or voice. But of what faculty the act should be law, whether of intellect or rather of will, that it may appear

Note 3. That law is properly used in two ways: First, indeed, for an act, and that either as it is in the legislator, or as it is in the subject. Secondly, for that which remains by way of habit; namely ever preserving its vigor from that time when it was promulgated, until it is either revoked by the Prince, or abrogated by contrary and long-continued custom; on account of which is current that saying of the Jurists: lex semper loquitur, the law always speaks. Now law insofar as it is an act in the legislator connotes and involves several acts specifically distinct, both on the part of the intellect and on the part of the will. First indeed it includes the intention of procuring the common good. Secondly a speculative judgment, by which it is judged that some means are convenient or inconvenient to the common good. Thirdly a practical judgment dictating that these things are to be avoided by subjects, those embraced. Fourthly the will by which the legislator wills certain things to be done or not done. Fifthly the very act of will whereby the same legislator wills to oblige subjects to the observance of his law. Sixthly finally the act of imperium by which he commands such observance.

But insofar as law is taken for the act which is in subjects, it includes, first, the act of the intellect judging that it is necessary and fitting for itself to observe the law. Secondly, the act of the will, whereby it freely wills and accepts the observance of the law.

Hence a controversy is moved among theologians, in which of all these acts the nature of law properly consists: for there are those who teach with St. Thomas that law consists essentially in the act of intellect alone. Some judge with Gerson, book 2 De potestate Ecclesiastica, consideration 13, that the nature of law is to be constituted in both acts, of intellect and of will. Common, however, among the disciples of the Subtle Doctor is the opinion that it must be placed precisely in the act of will alone. Which opinion, before it be confirmed, let

First Conclusion. — Law in general is rightly described as a persevering rule of human actions, implanted or prescribed, for the sake of the common good, by him who bears the care of the community and holds supreme authority over it, implanted, obliging to something to be done or omitted which is consonant with right reason.

It is called, 1. a Rule: because law formally and per se indicates what is to be done and omitted, in which respect generically it agrees as it were with synderesis and conscience; for these too are rules. — 2. Persevering, that law may be distinguished from a simple mandate and precept, which at the pleasure and will of the one commanding is taken away; for since law draws its origin from the first rectitude and truth, which is God, and since the first truth and rectitude is by its nature immutable, law likewise ought by reason of itself to involve a certain immutability and perpetuity, although sometimes it may be subject to change, whether by reason of the matter to which it is applied, or by reason of the end on whose account it is enacted: thus the ceremonial and judicial laws of the Old Law ceased and were revoked upon the advent of the New Law: the former indeed, because since they were shadows and figures of things to come, upon the advent of the truth they ceased; the latter, however, because since they had been prescribed for a people still enslaved to servitude, they ought to cease at the presence of the Evangelical Law, whose yoke is sweet and burden light: especially since it was prescribed and promulgated out of love, and out of love is to be fulfilled. — 3. Of human actions: for although Angels can be bound by law and precept, and constrained to something to be done or omitted, still we do not here institute discourse about angelic actions, any more than about the natural and necessary actions of man, since those cannot be directed to honesty. — 4. Implanted or prescribed: that both natural law and positive, divine,

Ecclesiastical or political laws are included under this definition. — 2. It is added on account of the common good: since the end of law is the felicity of the commonwealth, it is not lawful to bend it to private advantage. Hence it has rightly been laid down that the scope of laws is honorable utility: for neither God nor the commonwealth has conferred power upon superiors for any other end than that by enacting laws they may procure the common good. Hence this is the difference between a king and a tyrant, that the former seeks the public, the latter private advantage in his administration and governance. — 3. It is implied that it belongs to him who has the care of a community and obtains authority and jurisdiction over it: for he who compels others to comply and obey must necessarily exercise supreme power over them; which power, namely, in the Legislator is ordered to the governance of the community, and is distinguished from private and economic power, which resides in the head of a private family, e. g. in a father with respect to his sons, a master with respect to his servants, to whom he can give domestic precepts, but not prescribe Laws. Therefore that legislative power must extend to some community. It is also necessary that it be supreme: for jurisdiction within a community does not suffice for enacting and prescribing Laws: for it is found limited in most cases for the external forum, e. g. in ordinary judges and subordinate superiors, to whom indeed the authority of political governance belongs, yet not legislative power. — 4. Finally there is subjoined obliging or to do something, etc., so that Law may be distinguished from admonitions, exhortations, counsels, instructions, etc., which induce no obligation but only direction; Law, however, not only directs but also obliges to what is right or consonant with right reason; not indeed solely and simply to the just, because law pertains not to the matter of justice alone, but of other virtues as well. It is likewise distinguished from permission, because permission properly is not an action of law, but the negation of action, except insofar as it binds and restrains others from placing an impediment to the thing permitted.

All these, or at least the principal parts of the definition, will be examined more thoroughly below, so that the nature of Law may appear more clearly.

Second Conclusion. — Law is formally an act of the will, presupposing an act of the intellect whereby the legislator judges the matter of the law to be suitable to be decreed under obligation. This is the teaching of the Doctor in 1. d. 11. n. 2, where he says: I say that certain general right laws dictating things to be done are fixed by the divine will, and not indeed by the divine intellect, so as to precede the act of the divine will. By these words the Doctor plainly signifies that divine Law is to be formally placed not in the act of the divine intellect, but of the divine will: but the same must be said in like manner of human Law, Civil, and Ecclesiastical, on account of the parity of reason: therefore the Doctor holds that every Law must be constituted in an act of the will.

Proof First. In that act must the ratio of law be formally constituted which Sacred Scripture customarily uses to signify and express law: but Sacred Scripture ordinarily signifies Law by an act of the will: therefore in that act the ratio of Law is to be placed. The major stands: the minor is proved from that verse of Psalm 39. In the head of the book it is written of me that I should do thy will: O my God, I have desired it, and thy law in the midst of my heart. And Ps. 102. He made known his ways to Moses, his wills to the children of Israel, that is, his Laws and precepts. And 2 Machab. 1. May he give you all a heart to serve him, and to do his will, that is, that you keep and fulfill his Law. — It is confirmed from the fact that civil laws are said to be the pleasure of Princes: for in lib. 1. ff. De Constit. Princip. it is said: What has pleased the Prince has the force of law. Hence St. August. De Civit. Dei, lib. 6. The pleasure, he says, of Princes served instead of laws. Moreover Aristotle in the Rhetorica, c. 1. affirms that law is the common consent of the city: and Cicero, lib. 1. De Legibus teaches that lex was so called from election: but pleasure approved by consent, and what proceeds from election, implies an act of the will: therefore it is to be placed in an act of the will.

Nor does it avail to reply, with the Thomists, that the aforementioned testimonies intimate indeed that Law is an act of the will; not elicitive indeed, but only connotative and presuppositive; such that there is no Law which does not suppose or connote some act in the will of the legislator; yet that it is not to be formally placed in that act of the will. — This reply, I say, appears utterly groundless: both because the aforementioned testimonies simply and absolutely call Law an act of the will, while they name it either will, or pleasure, or consent, or election; and because the will rather presupposes an act of the intellect than the intellect an act of the will, especially in those operations which must be formed not only inwardly but also brought forth outwardly through the application of the exterior faculties, which certainly pertains to the will, not to the intellect.

The same is proved by theological reasoning: To that faculty does the ratio of law essentially belong which pertains to ordaining to an end; but to ordain to an end belongs to that faculty to which the end itself belongs: yet the attainment of the end pertains only to the will: therefore, etc. The major stands, for law is nothing else than a kind of guidance whereby rational creatures are led to their end as it were by a straight path. The minor also is evident; since the object of the will is the end itself to be attained; for end and good are convertible with each other; but good pertains to the will, as truth to the intellect. — Furthermore, the office of Law, and its proper ratio whereby it is distinguished from other rules of human actions, consists in the obligatory decree whereby subjects are moved to act rightly, or to elicit an operation conformable to the Law: but to move to the exercise of an operation, in order to some end, pertains to the will; because, as was just said, the object of the will is the end, which is the first principle in things to be done: therefore law pertains to the will. — Finally, to that power does the act of law essentially belong to which pertains being the rule of human actions: but the will is itself the rule of human actions: therefore, etc. The major is evident; for Law is essentially a rule and measure of human acts. The minor also is evident: since the divine will is the first rule to which all the acts of rational creatures ought to converge, that they may be judged right and perfect: according to that oracle of Christ the Lord in Matthew 5. Be you therefore also perfect, as your heavenly Father is perfect: but the will of Prelates and Princes is the second rule of the rectitude of these same actions, and a certain participation of that divine will: therefore, etc.

What the Thomists bring forward against this assertion proves only the second part of our Conclusion; namely, that Law presupposes an act of the intellect whereby the Legislator judges the matter of the law to accord with the community, for which reason law is sometimes expressed in Sacred Scripture under the name of light; thus Psalm. 4. The light of thy countenance hath been signed upon us: Psal. 18. The commandment of the Lord is lightsome, enlightening the eyes. Prov. 6. The commandment is a lamp, and the law a light, but light and illumination pertain to the intellect; since illumination in spiritual things is nothing else than the manifestation of truth, according to that saying to the Ephes. 5. All that is made manifest is light: and accordingly law implies and presupposes an act of the intellect; wherefore St. August., lib. De libero arbitrio, c. 1. calls Law the highest reason, which must always be obeyed.

For reason is necessarily required for the enactment of law, that it itself may be just and prudent; and so it also in its own way directs subjects through the intimation and signification of the enacted law; yet the proper direction of law, whereby it takes effect through the imposition of obligation to do or omit something, must be traced back solely to the act of the will: whence the will itself also in a manner illuminates and instructs; for which reason St. Anselm, lib. De voluntate Dei, cap. 4. says, the will of God is the teacher of the human will, inasmuch namely as that divine will objectively set before creatures using reason shows them what their will ought to embrace and what to shun, just as the hand of a statue on the road points out which way one must go. — To these considerations is added Cicero, lib. 1. De legibus, where treating of the principles of right, and writing in accordance with the opinion of the Ancients on the definition of law, says: Law is the highest reason implanted in nature, which commands what should be done, and forbids the contrary. And although these words seem to be said of the natural law alone, nevertheless they can be adapted to the establishment of any other law. Whence he subjoins: That reason, when it is confirmed and completed in the mind of man, is law; and hence they judge prudence to be law, whose force is such that it commands right doing and forbids wrongdoing. Hence shortly afterwards he celebrates in splendid fashion the dignity of reason, and of man endowed with reason, in these words:

Animal hoc providum, sagax, multiplex, acutum, memor, plenum rationis et consilii, quem vocamus hominem, praeclara quadam conditione generatum esse a Supremo Deo. Solum est enim ex tot animantium generibus, atque naturis particeps rationis et cogitationis, cum coetera sint omnia expertia. Quid est autem, non dicam in homine, sed in omni coelo, atque terra, ratione divinius? Qua cum adolevit, atque perfecta est, nominatur rite sapientia. Est igitur, quoniam nihil est ratione melius, eaque et in homine et in Deo, prima homini cum Deo rationis societas. Inter quos autem ratio, inter eosdem etiam recta ratio communis est. Quae cum sit lex, lege quoque consociati homines cum Diis putandi sumus. Inter quos porro est communis legis, inter eos communis iuris est. Quibus autem haec sunt inter eos communia, eiusdemque civitatis habendi sunt. Si vero iisdem imperiis et potestatibus parent, multo etiam magis parent huic coelesti descriptioni, mentique divinae, et praepotenti Deo. Unde etiam universus hic mundus una civitas communis Deorum atque hominum est existimanda. Et quod in civitatibus, ratione quadam, de > qua dicetur idoneo loco, agnationibus familiarum distinguuntur status, id in rerum natura tanto est magnificentius, tantoque praeclarius ut homines Deorum agnatione et gente teneantur.

Haec Cicero.

From these considerations therefore it becomes manifest that although law consists principally in an act of the will, nevertheless it presupposes the act of the intellect illuminating and directing the will itself in establishing those things which are consonant with right reason and useful to the public good.