Scotus Academicus, Tomus sextus: De Legibus Divinis et Humanis

Every human law is derived from the natural law: for there is no law unless it be just; but among human affairs something is judged just insofar as it is judged conformable to the rules of reason; and the first rule of reason is the law of nature. Whence every law posited by man has the character of law insofar as it is derived from the law of nature; if, however, it disagree from the law of nature in anything, it will no longer be a law, but a corruption of law. Now something can be derived from the law of nature in a twofold way, namely either by way of conclusions drawn from the common principles of the natural law: as that one must not kill is derived from the principle that evil must be done to no one; or by way of determination, as the law of nature has it that the malefactor must be punished, but that he be punished with such or such a penalty is a certain determination of human law: both kinds therefore are found posited in human law: but those things which are of the former kind are contained in human law not as though posited by it alone, but they also have some force from the natural law; those truly of the latter kind have their force from human law alone.

Note 2. That human law, according to its various consideration, can be divided variously. First indeed, inasmuch as it is derived from the natural law, it is divided into the positive right of nations, and civil law. To the right of nations belong those things which are derived from the natural law as conclusions from principles: to civil law, however, pertain those things which flow from the natural law by way of particular determination, according as each city, or each kingdom judges something to be established and observed for its own tranquillity and security. Secondly, since it belongs to the nature of human law that it be ordered to the common good of the city and kingdom, according to this consideration it can be divided according to the varied state of men who are engaged in procuring, establishing, and administering the common good, by which reason other laws are prescribed for Priests, others for governors, others for soldiers, etc. Thirdly, because it belongs to the nature of human law that it be instituted by the One Governing the community and society of men: thence it comes about that human laws are distinguished according to the diverse regimes into monarchic, aristocratic, and democratic. Fourthly, since human law is entirely directed to the direction of human acts; on this account laws are distinguished according to the matters upon which they bear. Hence there is the Julian law concerning adulteries, the Cornelian law concerning assassins, and so of others. Fifthly, finally, since the law can be considered according to the distinct authority of the Legislator, namely political and ecclesiastical, hence it comes about that some laws are called Ecclesiastical, which are otherwise called canons, or rules prescribed by those who hold from Christ the Lord the care and authority of administering and governing the Church: others are Civil, or Political laws, which are prescribed by Princes, and by those who are charged with governing the Republic.

Note 3. That around the times of the nativity of Christ the Lord there arose an error of certain men asserting that it was not lawful for the faithful to acknowledge any superior other than God: and thence that neither was obedience to be rendered to secular Princes, nor their laws to be obeyed. The standard-bearer of these errors was Judas the Galilean in the days of the enrolment, as we read Acts 5, that is, around the nativity of Christ, when namely the edict went out from Caesar Augustus that the whole world should be described, and all were going to be enrolled, as we read Luke 2. It is added moreover of that Juda that he drew away the people after himself. But what that man preached the sacred text does not say: however St. Jerome relates it, saying in chapter 3 of the Epistle to Titus: At the beginning, among other things he put forward this as quasi-probable from the law, that no Lord ought to be called except God alone, and that those who brought tithes to the temple ought not render tributes to Caesar. And this heresy spread far and wide up to the times of the preaching of Christ, and on his occasion the Pharisees sent their Disciples to Christ to ask whether it were lawful to give tribute to Caesar. Anastasius of Nyssa adds moreover in book 7 upon Scripture, that the followers of this Judas the Galilean were called Galileans, who forbade sacrifices to be offered for the Emperor, and for the Roman people, and that the same were killed by Pilate: for he believes these to be those Galileans whose blood Pilate mingled with their sacrifices. This error, long since lulled to sleep, Luther again raised up in the book On Christian Liberty, where he says: No work, no law does the Christian man need, since through faith he is free from every law. And in the Commentary on the Epistle to the Galatians: Faith alone, he says, is necessary, that we may be just: all other things most free, neither does he command further, nor forbid. And there he adds this: If conscience dictates, you have sinned. Answer, sin is committed: will God punish and damn? no. But the law says this? yet I have nothing to do with the law. Why? because I have liberty: and he adds there that no law can be imposed upon Christians, whether by men, or by Angels, except insofar as they themselves wish. Nor is Calvin far from this error: for in book 1. of the Institutes, chapter 10. n. 8. he affirms that God is the only Legislator: that men are not permitted to take to themselves such honor, and at n. 5. he had said before that human laws spoken and approved either by the Church, or by the magistracy, do not bind per se the conscience. Against which errors let

First Conclusion. — The faithful are not exempted through the Evangelical law from the obligation of obeying human laws, and of obedience toward superiors both ecclesiastical and temporal: consequently the necessity and utility of human laws still persists.

Proof: the Conclusion is proved by all those texts of Scripture in which Christ the Lord and the Apostles command the faithful to render due observance and obedience to Superiors, both Ecclesiastical and political. Thus Matt. 22. Render therefore to Caesar the things that are Caesar's; and to God, the things that are God's, from which words Justin Martyr in the second Apology for Christians gathers the precept of paying tributes to Princes: and there he professes in the name of all Christians subjection and obedience toward the Roman Emperors then still Ethnic. Similarly Luke 10. Christ the Lord addressing the Apostles says: He that despiseth you, despiseth me: and that successors are to render due obedience by divine precept.

Hence St. Paul to the Romans 13. prescribes generally v. 1. Let every soul be subject to higher powers: for there is no power but from God: and those that are, are ordained of God: and v. 2. Therefore he that resisteth the power, resisteth the ordinance of God. And they that resist, purchase to themselves damnation: and v. 5. Wherefore be subject of necessity, not only for wrath, but also for conscience. The former words of this last testimony, be subject of necessity, directly fight against what Luther said, that the faithful are not subjects unless they wish. The latter truly, not only for wrath, but also for conscience, are contrary to what Calvin says, that human laws do not bind per se the conscience. And to Titus 3. v. 1. Admonish them to be subject to princes and powers. And Heb. 13. v. 17. Obey your prelates, and be subject to them. For they watch as being to render an account of your souls. And 1 Peter 2. v. 13. Be ye subject therefore to every human creature for God's sake: whether it be to the king as excelling; or to governors as sent by him for the punishment of evildoers, and for the praise of the good: for so is the will of God, that by doing well you may put to silence the ignorance of foolish men, namely of those who accused the Christians at the very beginning of the preaching of the Gospel that they overturned human principality, and introduced disobedience toward Princes and toward human laws, as St. Jerome testifies in chapter 3 of the Epistle to Titus, at the beginning; and Chrysostom homily 23. on the Epistle to Timothy in these words: At that time many rumors were circulating traducing the Apostles as seditious, that they would overthrow the kingdom, and were saying so: who note also that for this reason the Apostles Peter and Paul said so many things in their Epistles concerning obedience toward Princes and Superiors, that they might oppose themselves to this error.

It is confirmed from the deed of the Apostles, who prescribed various precepts and various laws to the faithful in the very dawning origin of the nascent Church. Thus Acts 15. they decreed, that you abstain from things sacrificed to idols, and from blood, and from things strangled, and from fornication. Commanding them to keep the precepts of the Apostles and the Elders. And from the fact that the Apostle used this power 1. to Timothy 3. These things I write to thee, that thou mayest know how thou oughtest to behave thyself in the house of God. There he decrees that Bigamists and Neophytes are not to be assumed to the Episcopate; 1. to Corinthians 14. let women keep silence in the churches; and from the practice of the ancient Church, as appears from the Canons of the most ancient Councils convoked in the 3rd and 4th century. Reason also lends support; because the Evangelical law does not defraud and despoil secular Princes and Ecclesiastical Prelates of their authority, nay rather it commends it, establishes it, and confirms it, as derived from God, according to that John 19. Thou shouldst not have any power against me, says Christ, unless it were given thee from above: and Rom. 13. There is no power but from God. Nor does being deprive of the use of that power in enacting laws necessary or useful for the good governance of the Church or Republic; for as before the Evangelical law, so also under it many things can occur conducing to the worship of God, the direction of morals, the tranquillity and peace of the Republic, which are not determined and expressed by the divine laws of the New Testament, as appears not only in the laws pertaining to the administration and reception of the Sacraments, ecclesiastical censures, impediments of matrimony, but also in those things which pertain to the right governance of an empire, kingdom, and any community whatsoever: for a perfect civil community cannot be governed without laws. Hence with such zeal did the faithful of the nascent Church observe the imperial laws, which were not contrary to divine worship, that Pliny writing to Trajan concerning the Christians deservedly signified that he had found nothing whereby they could be blameworthy, as regards things not observed, religion excepted, under the imperial laws and edicts. Of this observance indeed St. Augustine in book De catechizandis rudibus chapter 21. says there was a figure in the Old Testament, when the Jews, Jerusalem having been captured and led away to Babylon, were commanded to pray for those by whom they were held captive, and to hope for their own peace in their peace: and they accomplished this so that at length some of those Kings acknowledged and worshipped the true God. In similar manner the faithful of Christ, exactly observing the decrees of the Emperors, brought it about that they themselves at length believed in Christ.

They object, the heretics: It is forbidden to the Jews to add certain laws over and above the divine law: therefore equally it is not permitted to Christians to enact new laws, which determine the divine law set forth in the New Testament, and promote its fulfilment. The antecedent is proved from Deut. 4. where it is said: You shall not add to the word that I speak to you, neither shall you take away from it, etc. and what I command thee this only shalt thou do, neither add thou anything nor diminish. It is clear also from congruence, both from parity of reason, and because St. John in the last chapter of the Apocalypse thus prescribes: For I testify to every one that heareth the words of the prophecy of this book: If any man shall add to these things, God shall add unto him the plagues written in this book: and if any man shall take away from the words of the book of this prophecy, God shall take away his part out of the book of life, etc.

I answer 1. I distinguish the antecedent: it is forbidden to the Jews to add something to the laws sanctified by God, as though laws issued by them were divine, I concede: otherwise, I deny. For from the very Old Testament it is established that several things sanctified by most holy men were to be kept by all Israelites in perpetuity: for Esther 9., Judith at the end, and 1 Machabees 1. new feasts were instituted to be kept in perpetuity: and 1 Kings 30. David ordained that there should be an equal portion for those going down to battle and those remaining with the baggage.

I answer 2. Denying the consequence: for the difference between the New Law and the Old is that in the old law, besides the moral precepts, judicial and ceremonial prescriptions were also laid down even in the smallest details, which looked either to the worship of God, or to peace among the Jews to be established or preserved: wherefore it is no wonder if then it was not in the power of men to enact human ecclesiastical laws, since God provided for everything by himself: but in the New law it happens otherwise: since nothing was prescribed by Christ the Lord concerning judicial and ceremonial matters, because these were not ordered per se, nor did they confer anything toward grace, in which the new law primarily consists, therefore these ought to be prescribed by men. Whence to the text of the Apocalypse I say that St. John forbids only detraction from, or addition to, those things which he had prophesied and written in that book: not truly does he take away from Christian Prelates and Princes the faculty of establishing new decrees, which concern the right administration either of the Church, or of the civil community.

They object 2. Christ the Lord Mark 7. condemns human precepts, citing that of Isaiah chapter 29. In vain do they worship me, teaching doctrines and precepts of men. And Matt. 23. he accuses the Pharisees because they laid heavy burdens upon men's shoulders, but with their own finger would not move them. Therefore he judged that no regard was to be paid to precepts and human laws.

I deny the consequence, and to the text of St. Mark I answer that Christ the Lord rebuked the Pharisees because they superstitiously imposed many vain and useless observances upon their followers, while they made little account of the observance of the divine commandments, as is clear from the reason which Christ himself subjoins, saying: For leaving the commandment of God, you hold the tradition of men, the washing of pots and of cups; and many other things you do like to these. He adds: Well do you make void the commandment of God, that you may keep your own tradition. And of this matter he subjoins an example, namely that they ought rather to offer gifts in the temple than come to the aid of the necessity of their parents. But to the text of Matthew I say that Christ partly reproaches the Pharisees because with their finger they were unwilling to move the burdens laid upon others, which nevertheless they urged the people to carry, saying: Therefore all things whatsoever they shall say to you, observe and do: and partly because in certain lesser observances, such as paying tithes of mint and anise, etc., they were exact, while they neglected things of greater weight: whence he subjoins: These things you ought to have done, and not to leave those undone.

You will object 3. Christians in the New Testament are called lawless, and altogether free: therefore they are bound by no human laws, whether Ecclesiastical or civil. The antecedent is proved from that passage of Matthew 17, where Christ says: The children are free, namely from paying tribute. Similarly, to the Galatians 2, the Apostle complains that false brethren crept in to spy our liberty, which we have in Christ Jesus: that they might bring us into servitude. And chapter 4: So now, brethren, we are not the children of the bondwoman, but free, by whose freedom Christ has freed us. And chapter 5: You are called unto liberty. And in the same place: If you be led by the spirit, you are not under the law. And 1 Timothy 1: The law is not made for the just. And 2 Corinthians 3: Where the Spirit of the Lord is, there is liberty.

I deny the consequence: for although Christians have been called unto liberty, this liberty is not an exemption from obedience owed to superiors, but either from the dominion of sin, or from a servile spirit and fear, or from the burden of the Mosaic law. Whence St. Peter admonishes them, 1 Peter 2: As free, and as having liberty for a cloak of malice, but as the servants of God. Therefore I answer each text singly: To the first indeed I say that those words of Christ from Matthew are not to the purpose: for their sense is, Kings and Princes are not accustomed to exact tribute from their own sons, but these are free from all tribute; and accordingly tribute ought not truly to have been exacted from Christ, who was the Son of the supreme King, and the Lord of all.

But to the texts

of the Apostle to the Galatians I say that he there treats of the liberty of Christians, and of their exemption from the burden of the Mosaic law, which he shows was a law of servitude, and that the Jewish people, to whom it was given, was prefigured by Ismael the son of the bondwoman: but Christians by Isaac the son of the free woman; whereby he signifies that we are free from the Mosaic law, but not from every other; on account of which he adds: Only be not (from the Mosaic Law) this liberty an occasion to the flesh: but by charity of the spirit serve one another. Hence in the same place St. Chrysostom rightly observes that the Apostle, when he had drawn away the yoke of the law, lest they should leap beyond measure, lays upon them another yoke, namely of charity, stronger indeed than the former, but far lighter and more pleasant. The Apostle therefore wills that Christians be free from the yoke of the Mosaic law, but not from the law of charity toward one another and toward God, which law of charity contains all the other moral precepts, as the Apostle signifies in the same place, saying: For all the law is fulfilled in one word: Thou shalt love thy neighbour as thyself.

To that passage of the Epistle to Timothy I say that the law is not made for the just, inasmuch as it threatens punishments and terrors: since the just man fulfills the law not from fear of punishment but from love of what is honorable and just: but in that way it is made for the unjust and for murderers, as the Apostle teaches in the same place.

To the passage of 2 Corinthians I say that the Apostle only wishes that the faithful be free from the obscurity and thickness of the old law, and from the blindness and hardness of heart of the Jews; insofar as they serve God freely, and attend to truth and divine things: whence a little before he had said: Until this present day, when Moses is read, the veil is upon the heart of the Jews. But when they shall be converted to the Lord, the veil shall be taken away: Now the Lord is a Spirit, and where the Spirit of the Lord is, there is liberty, But we all beholding the glory of the Lord with unveiled face, etc.

They object 4. Christ the Lord, addressing the Apostles, Luke 22, says: The kings of the Gentiles lord it over them: but you not so: therefore Christ holds that no dominion prevails among the faithful; and consequently that there is among them no legislative power. Similarly, 1 Corinthians 7, the Apostle says: You are bought with a price; be not made the bondservants of men.

I answer first, that by those words Christ only admonishes his disciples that they neither affect dominion nor titles of honor and excellence, but rather desire to serve others. But if they be compelled to preside over others, let them not do so as domineering, but as ministering, and let them imitate his example, who, although he was their Lord and Master, was in the midst of them as one who serves.

To the Apostle I say that he forbids us to become the servants of men in those things which offend God, namely by so accommodating ourselves to them that, bestowing compliance upon them, we forsake what belongs to God: for otherwise elsewhere the Apostle admonishes servants to obey their temporal masters. Thus to the Ephesians 6: Servants, be obedient to them that are your lords according to the flesh, with fear and trembling, in the simplicity of your heart, as to Christ: knowing that whatsoever good thing any man shall do, the same shall he receive from the Lord, whether he be bond or free. The same he repeats to the Colossians 3; the same likewise St. Peter teaches, 1 Peter 2, saying: Servants, be subject to your masters in all fear, not only to the good and gentle, but also to the froward.

Second Conclusion. — Human law is not incongruously described: the dictate of practical reason directed to the common good, promulgated by him who has care of the true community, and who possesses authority over it, sufficiently notified to his subjects.

The truth of this description is clear from an explanation of its parts.

First, then, human law is called the dictate of practical reason, in which respect it agrees generically not only with the natural law, from which it is derived as from a fountain, but also with counsel and with the simple command prescribed by one who exercises power; but when it is further defined as directed to the common good, privilege is excluded, which is granted only for the private good of some particular person. The remaining elements are added, partly to exclude counsel, which does not require the authority of one over another; partly to set forth the coercive force and efficacy of law, which can belong to a superior having supreme power over subjects to whom he has prescribed and made known the law.

It must nevertheless be observed that other definitions of human law are given by the jurists. Gratian, cap. Lex, distinct. 2, says that Law is the constitution of the people, which the elders together with the commons have sanctioned. Papinian, in Law 1. ff. de legibus, describes it thus: Law is a common precept, the deliberation of prudent men, the prohibition of offenses, and the common pledge of the commonwealth. Finally Rebuffus, in the Proemium of the constitutiones regales, Gloss 1, num. 1, hands down this description of human law: Law is the common Good, without which nothing good can ever be done. And although all these, and other similar descriptions of human law, can in truth be approved, nevertheless the one we have given seems more exact and more worthy of approval, since it sets forth the genus and the difference more perspicuously.

It must be observed besides that various conditions are required for the integrity and perfection of human law, all of which Isidore embraces in lib. Etymol. cap. 2, and Gratian, dist. 4, in these words:

Now a law shall be honest, just, possible, according to nature, according to the custom of the country, suitable to place and time, necessary, useful, and manifest too, lest it contain anything obscure through which one may be ensnared: written for no private advantage, but for the common utility of the citizens.

First it is said that a law ought to be honest and just: since law is ordained to compose the morals of men, who cannot be upright and virtuous unless they are imbued with the honesty of virtue and with justice; hence with good reason Saint Augustine says, lib. 1. De libero arbitrio cap. 5: That does not seem to me to be a law which is not just. But there is a distinction between these two qualities of human law, honest and just: it is called honest insofar as it prescribes what is honest and congruent to right reason; just, however, inasmuch as it compels all subjects equally, and without any exception, to observe or avoid its prescription.

Secondly it is said that a law ought to be possible, and that not only by physical possibility but also by moral possibility, namely, that it be tempered to the strength of the subjects: for human law ought to direct the multitude to which it is prescribed toward the common good; but it would not direct them in such a manner if it commanded something difficult of accomplishment, since this would rather tend to the detriment of the common good, and would be a snare to the subjects, since scarcely would it be observed by the very few, on account of the difficulty of the thing commanded and human frailty. Wherefore Princes and prelates must above all take care not to oppress and overwhelm their subjects with a multitude of laws and with difficulty. Hence Seneca rightly said, Epist. 94: A law ought to be brief, so that it may the more easily be grasped by the unskilled; or as the voice divinely uttered has it: let it command, not dispute. Hence Saint Augustine, Epistle 119, which is to Januarius on the various ecclesiastical rites, where he had recalled the diverse precepts of the Church, says cap. 19:

All such things, therefore, as are not contained in the authority of the holy Scriptures, nor are found decreed in the councils of bishops, nor confirmed by the custom of the universal Church, but are varied innumerably in diverse places by diverse customs, so that scarcely, or indeed never at all, can the reasons be found which men followed in instituting them — wherever liberty is given, I judge they should without any doubt be cut away. For although it cannot be found how they are against the faith, still they burden that religion itself which the mercy of God willed to be free with the fewest and most manifest sacraments of celebration, with slavish burdens, so that the condition of the Jews is more tolerable, who, even though they have not recognized the time of freedom, are subjected yet to legal burdens, not to human presumptions. But the Church of God, established amid much chaff and many tares, tolerates many things, and yet neither approves nor does those things which are against the faith or a good life.

The third condition is that human law be framed according to the custom of the country: since according to the variety of regions and peoples there are also various customs; and therefore laws ought to vary. It is added that they ought to be congruent to place and time. Thence it has come about that there is such variation of laws; for those which were fitting at one time seem hostile at another. It follows that it ought to be necessary and useful: necessary, I say, for the proscription of evils: for if all things in a commonwealth stand aright, law is altogether superfluous. Useful, however, for if it brings no utility to the common good, it must altogether be dismissed as futile and empty. It is added that a law ought to be manifest: hence Justinian, lib. De legibus: The most sacred laws, he says, ought to be understood by all, so that all, more clearly understanding their prescription, may decline what is forbidden and do what is prescribed. The rest are added so that from them it may be evident how all laws ought to conduce to the common good, as was said in the first Disp.