Scotus Academicus, Tomus sextus: De Legibus Divinis et Humanis

Something can be said to be of the natural law in two ways: First, positively, and properly, insofar as nature directly commands it, or forbids it, and inclines us to its fulfillment, as that God is to be worshipped, and that one is not to do to another what he would not have done to himself. Second, permissively, negatively, and improperly: insofar as the law of nature does not introduce the contrary. In which sense St. Thomas, I-II, qu. 95, art. 5, ad 3, says that man being naked is of the natural law: because nature did not give him clothing: but art discovered it. Likewise for this reason all things are said to be common by the law of nature, and liberty to be one for all, since evidently the distinction of possessions, and servitude, are not introduced by nature, but by the law of nations, and by the authority of men, for the greater utility of human society.

Note 2. The law can be changed in two ways: First, by addition, if evidently something be added to the precepts of the law, whereby its obligation extends to more things than it previously reached. Second, by subtraction, if evidently something ceases to belong to the law which previously truly pertained to the law.

Note 3. The law can be changed by subtraction in six ways: First, by abrogation, when it is taken away entirely, whether by the will and connivance of the Legislator, or by contrary custom, or by the authority of him who is superior to the Legislator; or finally when the time expires for which alone it was constituted, for that time being completed the law is not taken away, but fulfilled: whence Christ the Lord said of the Mosaic Law: I am not come to destroy the law, but to fulfil; since indeed that law was instituted only for a determined time, and until the advent of the Messiah. Second, by derogation, when the law is taken away in part: whence the Gloss on the caput in istis, d.t., says: To abrogate is to take away a law entirely: but to derogate is to detract from the law in part. Third, by irritation, when the obligation of the law ceases through defect of consent, or of other things necessary to its vigor, and firmness. Fourth, by subtraction of the matter which underlies the disposition of the law, while evidently the thing itself ceases to be the matter of the law, and to lie under its obligation; which change takes place chiefly in those things which depend upon human consent, and mutable will: as in vows, oaths, marriages, and the like. Fifth, by interpretation, and epieikeia; while evidently it is determined by some superior that the general prescription of the law does not oblige in a particular matter: for since the law must be universal, and the Legislator cannot foresee every individual case, it is necessary that through Epieikeia the will of the Legislator be expounded, even against the tenor of the law; with this intention evidently, that if the Legislator were present, he would not enact the law in such a case. Sixth and finally, by dispensation, or privilege; which two differ: for dispensation is a certain partial abrogation of the law; but privilege is as it were a subtraction of the matter of the law, and is granted as a private right, which belongs to certain persons so as to act against the common law. Whence in dispensation the change occurs on the part of the law, whose bond is relaxed, the circumstances remaining with which otherwise the law would oblige all were there not that relaxation with respect to the particular person. In privilege, however, the change occurs on the part of the subjects, or of the matter of the law. Of all these changes of the law, we undertake to explain the four former ones in the present Question.

First Conclusion. — THE NATURAL LAW CAN BE CHANGED BY ADDITION, BUT NOT BY ABROGATION. This conclusion embraces two parts; of which:

Proof of the first. The law is then changed by addition, when some new precepts are added to it, by reason of which its obligation becomes broader, and extends itself further: but certain laws can be superadded to the natural law; for many precepts useful to human life have been superadded, both by the divine law, and also by human laws. Second, the precepts of the natural law are not so expounded, and known to us, but that it lies in the power of God from those precepts known to us to infer some conclusion unknown to us: and then indeed the natural law would be changed by the addition of this conclusion, which would have the character of

Proof of the second part, namely, that the natural law as regards its general precepts cannot be changed by abrogation. The first principles of the natural law are altogether immutable; because they are founded in the very nature of man, nor can nature be changed: and if the law of nature were changed as regards principles of this kind, God himself would be changed: wherefore these most general natural laws cannot by any means be abrogated, Good is to be pursued, evil is to be shunned: What you would not have done to yourself, do not do to another.

It is confirmed, because therefore Isaias 21 calls the law of nature an everlasting covenant. And dist. 5: Natural right holds the primacy among all things in time, and dignity; for it existed from the beginning of rational creature; for neither is it altered by time, but remains always: whence Cicero, book 2, De Legibus, calls the natural law something eternal which would govern the whole world, the wisdom of commanding, and forbidding.

You will say. Men for the most part have altered the natural law and the innate law, and have themselves derogated from it as regards its general precepts: therefore the preceding assertion is null. The antecedent is proved: by the natural law all goods were granted in common; yet upon the intervention of the will of men and the command of the powerful there was introduced the division of goods and property, as well as servitude: therefore in very truth the natural law can undergo mutation. Moreover, the Gloss on chapter 17 of Ecclesiasticus expressly pronounces that the natural law is at times amended and corrected by the written law: but this emendation introduces a true and essential mutation: therefore the natural law can truly be changed. Finally, as the Prince stands to the positive and civil law, so God stands to the natural law: for God is no less the author of the natural law than the Prince is of the human: but the Prince can abrogate and rescind any civil law whatsoever: therefore likewise God can abrogate the natural law, and consequently it is not absolutely immutable.

I answer to the first by denying the antecedent; and to its proof I say that the community and liberty of goods are not of themselves of the natural law in such a way that the law itself absolutely forbids men to make certain goods their own, or to subject their liberty to another if they so wish: for the law itself permits men to divide their goods among themselves and to dispose of their liberty, of which they are masters, and to sell it or subject it to another; wherefore the division of things or the introduction of servitude is neither against the law of nature nor does it change it, but only accomplishes what that law permits to be done. Accordingly the community and liberty of goods are said to be of the natural law insofar as nature confers a right of dominion over all goods and over one's own liberty: so that men could not be despoiled of that right against their will, or without just cause, or be hindered from its use.

Secondly, I say that the written law is said to be given for the correction of the natural law either because by the written law what was wanting to the law of nature was supplied and made up; or because the native law, by reason of the corruption and depravation of morals, had been so worn away in the hearts of some as regards certain precepts, that they judged certain things to be licit which are naturally evil; wherefore there was need of the written law for the supplement of the native law itself and for its clearer explication. To the third I deny the major: for God does not stand to the natural law in the same way that the prince stands to the positive law: for the prince attributes to the law its whole force and virtue of binding by his sole will and authority promulgated through external command; but God supposes some obligation on the part of things themselves, which seems essential to those things, because they are honest and good by nature: for, as we said above, this is the distinction between the natural law and the positive law, that the natural law commands those things which are of themselves honest and good, and forbids those which are of themselves evil; but the civil law makes honest only those things which it commands, and evil those which it forbids; and consequently there is no parity between the two laws.

Second conclusion. — THE NATURAL LAW CAN BE CHANGED BY SUBTRACTION OF THE MATTER WHICH UNDERLIES ITS DISPOSITION; BUT IT CANNOT BE CHANGED BY FRUSTRATION.

Proof of the first part: Then the law is changed by subtraction of matter when the matter into which the obligation of the law fell ceases to be the matter of the law: but this can happen. It is proved: the natural law enacts that the goods of another are not to be withheld against the will of the owner, but are to be restored. Now this prescription of the native law binds only so long as the thing remains the goods of another: but that which was the goods of another can become one's own, namely if he who had a right in that good cedes his right. So also the obligation of restitution is removed by the law of prescription, whereby it comes about that what was the goods of another is no longer deemed such. So likewise it is of the law of nature that a deposit is to be returned when the thing deposited is not demanded to the harm of another: but since it can happen that the deposit is demanded for someone's ruin, suppose if a madman should demand a sword deposited, whereby he might slaughter whomsoever he meets: in these cases, I say, the matter of the law concerning restoring the deposit is changed; and accordingly the law itself is deemed materially changed. Yet it is not changed formally, because the law itself, formally considered, does not bear upon the thing considered absolutely and apart from its due circumstances, but according as it is subject to them; for it requires the deposit to be restored, not simply and absolutely, but so long as it is not demanded to the harm of another; but this prescription is never varied, nor can it be varied, since it is simply honest and good.

I deny also the second part, namely that the law can be changed through defect of the consent required for its obligation, or through contrary custom: but neither can be affirmed. Not indeed the first: because for the native law to have the force of binding, it does not require the consent of men, but, as we have said, it is inscribed by the Author of nature upon our hearts from the first beginnings of our formation. The second likewise cannot be said: for as Gratian teaches in distinction 5, chapter 1, Natural right obtains the primacy among all things in time and dignity, for it existed from the beginning of rational creature, and it is not varied by time, but remaining immutable endures forever; and thus it is held in chapter Quo iure, distinction 8: The right of nature prevails over custom and constitution: for whatever things are received by custom or comprehended in writing, if they are adverse to natural right, are to be held vain and void: and we read in chapter Veritate: Let no one prefer custom to reason and truth, because reason and truth always prevail over custom. From which it is manifest that the natural law cannot be frustrated by contrary custom or law.