Scotus Academicus, Tomus sextus: De Legibus Divinis et Humanis

It is certain that preceptive or prohibitive laws do not oblige one to avoid or to do anything, except in subjects who are masters of reason: since the law is an act of jurisdiction and superiority, which cannot be exercised except toward a subject who ought to acknowledge the precept in order to fulfill it; hence it is evident that preceptive or prohibitive laws cannot bind anyone except those who are subject to the command of the legislator, and who can know his mandate, that they may be able to fulfill it. Whence it follows that whoever are bound by laws must be of such a condition and state that unless they obey, the transgression be imputed to them as fault: but those who are not capable of reason can admit nothing that would be imputed to them as fault: for nothing of this kind is imputed unless it be done in a human manner, that is, understandingly and rationally: wherefore infants, who have not yet come to the use of reason, are not bound by preceptive or prohibitive laws: hence they may use forbidden foods, and enter the enclosures of nuns, etc. Similarly catechumens, and infidels not yet baptized, are not bound by the preceptive and prohibitive laws of the Church, because they are not her subjects: wherefore they do not sin against an ecclesiastical precept if they neither keep the feasts nor abstain from flesh on fasting days. I have said preceptive or prohibitive laws, because laws simply constitutive, that something be or not be, are held to extend even to those who are not capable of reason: for instance, that no unbaptized person be capable of the other sacraments.

The reason of the distinction, however, is that those who lack the use of reason, although they are not capable of moral obligation, to which they would be held bound to obey under pain of sin, are nevertheless capable of an impediment that is quasi-natural, and does not depend upon the free use of their will.

Note 2. The present question is not raised against heretics, and certain Errors, some of whom, as the Lutherans, contend that Christian men are not bound by human laws, seeing that they have been made free through Christ: while others wish that at least the just are not bound by human laws: since, they say, the law is not laid down for the just. But others contend that at least those eminently perfect are not subject to human laws, as the Beguards at one time affirmed, as is gathered from the Clementine Ad nostrum, de haereticis. For all these errors were refuted by us above. Nor is the discourse equally about subjects of the authority of the legislator: for it is evident that every man having a ruler and superior can be bound by his laws, and accordingly human laws bind all the subjects to whom they are directed: For, says St. Paul to the Romans 3, We know that what things soever the law speaketh, it speaketh to them that are in the law. It is said. Therefore it binds all those to whom it speaks by commanding, for authority binds its subjects, according to that saying of St. Paul to the Romans 13, Let every soul be subject to higher powers. Whence a threefold difficulty especially remains here to be examined: First, whether princes and legislators are subject to their own laws, and bound to keep them. Second, whether ecclesiastical persons are obliged to keep the laws of secular princes. Third and last, whether travelers are bound by the laws of the place through which they pass.

Note 3. That the Prince and Legislator cannot be obliged to keep laws which by no means pertain equally to all, is certain indeed, since the Prince is not held by them: thus he is exempt from the law of tributes, which is prescribed only to subjects: equally exempt from the law whereby the manner is prescribed in banquets, garments, and furniture: for it would be unjust for the Prince to be restricted by these, no otherwise than subjects are held bound. The difficulty therefore is solely whether the Prince, both political and Ecclesiastical, is held to keep the laws which pertain equally to all: but this obligation can be conceived as twofold: either with respect to the directive force only; so that the Prince is held only to execute, or to provide for, that which the law commands or forbids, so that he may show the way to his subjects for the observance of those laws: or he can be considered obliged also with respect to the coercive, or punitive force, so that he lie subject to the penalties prescribed by the law, should he not fulfill what is commanded.

Again the difficulty can be raised, from what source either or either obligation could arise in the Prince to keep the laws: namely, whether from the virtue and efficacy of the law itself, and true obedience toward it, as most Theologians judge; or rather from the affection alone of that virtue which is commanded by the law itself: for instance from the affection of justice, if a price be appointed to be paid, of abstinence if fasting be prescribed, as other Theologians contend.

First conclusion. — PRINCES BOTH POLITICAL AND ECCLESIASTICAL ARE BOUND BY THEIR OWN LAWS WITH RESPECT TO THE DIRECTIVE FORCE, BUT NOT WITH RESPECT TO THE COERCIVE FORCE, AND THIS FROM THE MOTIVE OF VIRTUE ALONE, WHICH IS COMMANDED BY THE LAW.

Proof 1. from authority: for l. digna vox, cap. de legibus, is thus expressed: It is a word worthy of the majesty of the ruler for the Prince to profess himself bound by the laws, and l. Princeps ff. de legibus: Obey the law, whosoever thou shalt have enacted the law. Similar things are found in Canon law cap. Iustum dist. 9, in these words: It is just for the Prince to obey his own laws, for then he judges that his rights are to be kept by all, when he himself also shows reverence to them. And lest this seem said merely by way of counsel, it is added: That Princes are held by their own laws, nor can they in themselves condemn the rights which they establish in their subjects, is a just authority of their voice, for if what they forbid to peoples they permit to themselves, they suffer it not. Finally St. Ambrose to the Emperor Valentinian, Epist. 32, thus speaks: What thou hast decreed for others, thou hast decreed also for thyself. For the Emperor enacts the laws which he himself first established. — These things, however, are true not only of the Political Prince, but also of the Ecclesiastical: for the supreme Pontiff is at times held by the laws prescribed by himself, as appears from Decretum 2. part of cause 12. q. 2. c. 20. where Pope Symmachus enacted a law which comprehends even the Pope himself in these words: Let it not be lawful for the Pope in any manner to alienate the estate of the Church on account of any necessity, nor to give it in usufruct; except only houses, which in whatever cities are maintained at no small expense, etc.

Proof of the same by reason: No assignable reason exists why the Prince should be exempted from a law pertaining to all: because human laws are ordained to the common good, and that they may make good those who are of the community: but the Prince no less than any one of the subjects is held to procure the common good, and to labor that he himself become good through the observance of the law: therefore, etc. Moreover natural law dictates that the head cohere with and conform to the other members, else there would be the greatest deformity in the political body, as also in the natural body, if the members did not cohere among themselves and conspire in their offices toward the common good; for, says St. Augustine, 3. confess. c. 8. Every part that accords not with its whole is unsightly: therefore since the Prince is the head of the political body, whose subjects are the members, he ought together with his subjects to conspire toward the common good, which is established and confirmed only through the observance of the laws.

Proof also of the second part, namely that the legislator is not subjected to his own laws with respect to the coercive force, but only with respect to the directive force. The coercive, or constraining force is the infliction of punishment on account of the non-observance of the law: but the Prince cannot be compelled or punished with an inflicted penalty to the observance of the law; since he has no superior by whom he may be compelled, and no one can properly be compelled by himself; seeing that these against the order of nature ought to keep the laws, because they have no corrector on earth, but shall therefore be more severely punished by the supreme judge God, according to that Wisdom 6. Terribly and swiftly shall he come to us, for the judgment most severe shall be upon those who rule. Wherefore David penitent said to God, To thee only have I sinned: as if to say according to the gloss: I acknowledge no superior on earth who can judge or vindicate my sin, save thee alone; and therefore to thee alone, as to him who is to prescribe the condign punishment, I submit my sin.

Proof is finally given of the third part, namely, that the Prince is most bound to keep his own laws by the directive force of the law itself, and likewise from the affection of that virtue which the law itself commands. First, this follows from what has been said; for since the Prince is bound to keep his laws not by coercive force, he must at least be bound to that observance in respect of the directive force. Second, it also follows; for since the Prince is the head of the commonwealth, he is bound to conform himself to the members in those things which by natural law are held bound to obey superiors and to conform themselves to their precepts; otherwise there would be a great discrepancy in the mystical body of the commonwealth with its head; so the Prince is bound in life and morals to accord with the rest of the body in those things which befit equally himself and the people; hence he is bound to keep his laws; otherwise he would live under another law than the people, would differ much from the rest of the body, and would not hold to the rule of right reason: which certainly would redound to the greatest detriment of the commonwealth.

You will say 1: …rior's law binds. An equal has no authority over an equal. No one can command or forbid himself. The Prince is exempt from his own laws. Therefore, etc. — I answer to the three first propositions, that the prince has a twofold relation: he is indeed superior, and inferior: superior, inasmuch as he is the head of the community: but inferior, inasmuch as he is a member, as it were, in respect of himself as superior. To the fourth proposition I answer that the sense is, that the Prince is exempt from his laws as regards their coercive force, because there is no one by whom he can be punished if he depart from the common law.

You will say 2: The Prince can dispense, and exempt whomever he wills from the observance of the laws: therefore, as soon as he has enacted a law, he can dispense with it for himself, and exempt himself from the observance of those which he has enacted: and so it will come about that he is never bound, at least by human law in conscience, to keep his own laws. — I answer, that the Prince is able to dispense and exempt whomever he wills from the observance of the laws for a just cause: otherwise not at all: but that what he is bound to observe in respect of any one of his subjects, that very thing he is bound to observe in respect of himself: nay, more so, because to exempt and dispense with a private man does not turn so much to the ruin and destruction of the commonwealth as for a prince to dispense with himself, seeing that upon him, as upon a model, the eyes of all are fixed.

You will say 3: Against the latter part, nothing stands in the way of the Prince being punished by a penalty inflicted by the law itself, which does not require the sentence of a judge, but is incurred by the very fact: although perhaps it conflicts with his being punished by a penalty which ought to be inflicted by a man.

— I answer, that something does stand in the way, because he who inflicts a penalty in virtue of the law ought to be a person distinct from the one upon whom it is inflicted.

Second Conclusion. — CLERICS, OR ECCLESIASTICS, ARE NOT SUBJECT TO CIVIL LAWS WHICH ARE UNBECOMING TO THEIR STATE AND ORDER: BUT THEY ARE SUBJECT TO THOSE WHICH CONFLICT NEITHER WITH THEIR STATE NOR THEIR ORDER. This Conclusion has two parts,

The first part is proved by all those constitutions whereby Clerics are exempted from the jurisdiction of secular Princes. Thus in the constitutions, chapter Ecclesia sancta Mariae, it is laid down: We, attending to the fact that no power has been attributed to laymen over Churches and over ecclesiastical persons, whose duty it is to obey out of necessity, not out of an authority of commanding; and that if anything has been decreed by them of their own motion which touches even the advantage and favor of Churches, it exists with no firmness unless it shall have been approved by the Church. And in the chapter Decernimus, on Judgments: We decree that the lay power and laymen presume not to handle ecclesiastical affairs, but that Bishops, Abbots, Archbishops, and other Prelates dispose not of ecclesiastical affairs (especially those which are known to be spiritual) by the judgment of laymen: nor on account of their prohibition abandon the exercise of justice in ecclesiastical matters. And in the chapter Nullus iudicum, Title On the competent forum: Let none of the judges presume of himself to distrain or condemn either a Priest, or a Deacon, or any Cleric, or the lesser ministers of the Church without the permission of the Pontiff. But if he shall have done so, let him be sequestered from the Church of God, to which he is acknowledged to have done injury, for such time as until he acknowledge and amend his guilt.

This same is clear by reason: A law which is not honest and consonant with religion has no force or efficacy: but laws which would be adverse to the state and order of Clerics would be neither honest nor congruous to religion; and therefore they would be of no value, nor would anyone be bound to obey them.

The second part is also clear: both from that saying of the Apostle, Rom. 13: Let every soul be subject to higher powers: then from the practice of the primitive Church, wherein it is established that Clerics obeyed the laws of the Emperors; and finally from this, that since they are members of the commonwealth, they ought to study the common good, and to concur in procuring it inasmuch as their sacred state and order permit.

Third conclusion. — SUBJECTS DWELLING OUTSIDE THE KINGDOM ARE BOUND BY THOSE LAWS WHICH IT CONCERNS THEM TO OBSERVE FOR THE GOOD OF THAT COMMUNITY OF WHICH THEY ARE PARTS: BUT IT IS OTHERWISE WITH OTHER LAWS, WHICH ARE NOT ORDERED TO THE COMMON GOOD IN THAT WAY.

The first part is evident: For citizens and subjects are bound to obey the laws of the City and the Kingdom insofar as that observance contributes to procuring and establishing the common good: therefore, where the common good can be procured by those subjects even while dwelling outside the Kingdom and City through observance of the sanctions of the laws, those subjects are bound to keep the laws.

The latter part is also evident: for where the observance of laws by subjects in no way pertains to the good of that community, there is no doubt they are not bound to that observance when they find themselves in foreign territory, whether passing through or sojourning. The reason is, because the jurisdiction of each city, or of a particular Prince, does not extend as regards enacting laws beyond the city or its territory: as Berthold teaches on the first law C. de summa Trinit. number 17. And it is gathered from the law, Omnes populi, ff. de iustitia, et iure: where the law is called the proper Law of a city: therefore just as natural agents do not act beyond the sphere of their activity, through defect of power, so because the activity of jurisdiction is limited within its own territory, the law does not bind beyond it: whence it is gathered, that even if the Legislator should will this most earnestly, and should express it in these very words, he cannot bind a subject existing outside his territory.

Fourth conclusion. — IT IS PROBABLE THAT PILGRIMS AND STRANGERS ARE BOUND TO THE OBSERVANCE OF THE LAWS PRESCRIBED IN THOSE PLACES IN WHICH THEY ARE, EVEN ONLY IN PASSING THROUGH.

Proof 1. From the authority of St. Augustine, Epistle 119, which is written to Januarius, in which he relates how St. Monica, coming to Milan with the intention of migrating and not of lingering, began to be troubled because fasting was not observed there on Saturday; she had however consulted St. Ambrose for the sake of his mother, who answered that he had nothing to teach or could teach, except what he himself did, for if he knew better, he would rather observe that. "While I thought that they wished to admonish us without any reason given, by their authority alone, not to fast on Saturday, he followed me and said to me: When I come to Rome, I fast on Saturday; when I am here, I do not fast: so do you likewise, to whatever Church you may come, keep its custom, if you would not be a scandal to anyone, nor take any to yourself." When I had reported this to my mother, she gladly embraced it; but I, pondering this sentence again and again, always held it as if I had received it from a heavenly miracle. For I have often felt, grieving and groaning, that many disturbances of the weak arise from the contentious obstruction, or superstitious timidity, of certain brethren, who in matters of this kind, which can arrive at no fixed term either by the authority of holy Scripture, nor by the tradition of the universal Church, nor by the usefulness of correcting rites, merely because some sort of reasoning of a thinker underlies them, or because he has himself been accustomed thus in his own country, or because he saw it there, where he thought his journey made him both more welcome to his own people and more learned. Then the quarrelsome stir up questions, so that unless others do what they themselves do, they judge nothing right.

Proof 2. Then because that observance of laws by pilgrims tends to the common good, namely, that strangers conform their manners to those among whom they live, hindering dissensions from arising between strangers and inhabitants, lest scandals and offenses occur; and lest any law come into contempt by reason of non-observance. Then also because it seems equitable that strangers dwelling in a region should be subject to its laws, according to that rule of law in 6. Qui sentit commodum, sentire debet et onus.

It is confirmed by the inconvenience; for if Pilgrims and Strangers, as we said above, were not bound to keep the laws of their own territory from which they departed, and were not bound by the laws of the place through which they pass, they would be bound by no particular laws; and thus if there were any particular law which was observed both in their own territory and in the place through which they pass, they would become wholly immune from it, which is absurd.

FROM these GATHER 1. That strangers and pilgrims passing through places in which some feast is celebrated, if they are there for the whole morning of the feast day, are bound to hear Mass, yet not to linger there in order to hear it.

GATHER 2. That one departing in the morning from his own domicile, in which the fast binds, and arriving at night at a place where the fast does not bind, may sup at night, and eat meat; since in departing he is not bound to observe the laws of his domicile, but may follow the favorable laws of the place through which he passes.