TREATISE ON LAWS

St. Thomas, Ia IIae, from q. 90 to 109.

DISSERTATION I

ON LAW IN GENERAL

St. Thomas, qq. 90, 91, 92.

I say: Law is rightly defined: « An ordination of reason to the common good, promulgated by him who has the care of the community ¹ ». So commonly with the Author. It is explained.

It is said 1° an ordination of reason, namely practical: by which is understood the act of command or rather its term or dictate produced by it, by which the superior prescribes something to be done or omitted. It is also understood an efficacious ordination, indeed not with respect to the work prescribed, since laws are continually violated, but with respect to the obligation which affects subjects, by which it is distinguished from counsel. Likewise it is understood a firm, stable and perpetual ordination, in this sense that it does not cease through the death of the legislator, by which it is distinguished from a precept, nor is it borne to the present alone, but also to those to come, although it could cease absolutely either through revocation, or through change of the matter, or through cessation of the adequate end.

It is said 2° to the common good. For the end of law is the common good: both because law is borne for the community, so to speak, which it directs to a good and honest end, and that end is the good of the whole; and because the end ought to answer to the principle, but the principle of law is public authority. Therefore the end of law ought to be the public and common good. And by this are excluded the mandates of tyrants and others that would be made for proper and private advantage.

It is said 3° by him who has the care of the community: because law is borne for the whole community; for thus the common sense apprehends it, and herein it distinguishes law from precept, which regards one or another, and this is evident by induction. The natural law regards all men; the old law the whole Jewish people; the new law the whole human race; all human laws, both civil and ecclesiastical, are directed to communities. Therefore law must be from him who has the care of the community. Understand a perfect community, which is a multitude of men under the governance of a president having political jurisdiction.

It is said promulgated: because it cannot direct nor oblige unless it becomes known through promulgation. Whether promulgation is of the essence of law, I will say presently.

From what has been said you will infer that law is something of reason ², presupposing however an act of the will. The reason of the first part is 1° because, as was said, it is defined as an ordination of reason; 2° because it belongs to law to command and to direct, but imperium is essentially of reason, as we proved in dissert. III, on Human Acts, art. 4; 3° because law is a certain rule and measure of human acts, but the rule and measure of human acts is reason: whence in Psal. CXVIII divine judgments, words, utterances are called, all of which pertain to the intellect. The reason of the second part is, because law pertains to practical reason and consists in the act of command. But imperium, although elicited by the intellect, nevertheless supposes an act of the will, namely election, from which it has the power and efficacy of moving to exercise. Therefore. Confer dissert. cit. And this is the reason why in Scripture and in law law is sometimes set forth under the name of will.

I suppose that some promulgation is necessary for the law in order that it oblige in act: because, as was said, law is the rule of human acts, and these cannot be regulated by it unless it become known; but it becomes known through promulgation.

I said, some promulgation, because it is different according to the diversity of laws. The eternal law¹ and the natural law is promulgated to each one through the dictate of reason. The positive divine law is promulgated either by internal revelation, as in the prophets, or solemnly, as the old law on Mount Sinai, the new law on the day of Pentecost. Usage, however, has prevailed that human law be always promulgated with some solemnity, and thus reason requires. For since the human legislator bears a double person, private and public, he ought to propose the law in such a way that he signify that he proposes it as a public person, which is done by employing some solemnity.

If you say that promulgation is not required for the revocation of a law, I reply that the revocation of a law is not a law, but the destruction of a law. More is required, however, to constitute a thing than to destroy it. For the reply to the question

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I say: It seems more probable that promulgation is not of the essence of law, but is only a condition required irreplaceably in order that it oblige in act, just as, e.g., the proposal of the object is a condition required irreplaceably in order that it be loved.

It is proved. To the essence of law it suffices that it have an aptitude to direct and to oblige; for the essences of things are defined by first act or aptitude, not by second act, as the philosophers teach. But law before promulgation has an aptitude to direct and to oblige; for it has not this aptitude from promulgation, but its actual direction and obligation as from a condition. Therefore.

It is confirmed. Law is the rule by which we are induced to act, or withheld from acting, with some obligation. But promulgation is not a rule, nor part of the rule, nor does the force of obliging, or actual obligation, proceed from it as from a cause, since this ought to be from a superior as from a cause, but only as from a condition: just as heating is not from approximation as from a cause, but from fire, although it depends upon approximation as upon a condition.

As to St. Thomas, whose mind is disputed, he teaches here a. 4, that promulgation is related to law as the application of the rule to the thing ruled; but the application of the rule is not of its essence, but supposes it constituted. Whence, when he there says that, in order that the law obtain the virtue of obliging, it must be promulgated, he understands the virtue of obliging in second act, not in first act.

[Thus Billuart. But proceeding further and restricting the question to positive law, whether divine or human,

I say: Promulgation is of the essence of law.

It is proved. 1° That without which a thing has not its own being pertains to its essence. But before promulgation the law has not its own being. Therefore promulgation pertains to the essence of law. — The minor is proved. What is only in potency has no being. But so long as the law is not promulgated, it is only in potency. Therefore then it has not its own being. — The minor is evident; for so long as the law is not promulgated, whether it remain hidden in the mind of the legislator, or the legislator have externally manifested his intention of enacting such a law, nothing is perceived except a mere proposal. But this proposal is not law, but only the preparation of the law; and preparation indeed leads a thing toward being, but, until the last act be posited, leaves it in potency. Therefore, so long as the law is not promulgated, it is only in potency.

2° The law is not fully constituted, that is, it is not true law, unless it have the force of obliging. But the law obtains the force of obliging through promulgation, and not otherwise. Therefore, until it be promulgated, it is not true law. — I subjoin. That without which the law is not true law pertains to its essence. But the law is not true law before promulgation. Therefore promulgation is of the essence of law.

3° Law is an ordinance of reason for the common good. But it is not such unless it be made known to the community; and this making known is promulgation made by him who has the care of the community: whence promulgation is contained in the definition of law. Therefore promulgation is of the essence of law; for the definition expresses the very essence.

4° The same is proved by the authority of St. Thomas, here q. 90, a. 4.

The mind of the Master in this place was disputed. Some say with our Billuart: St. Thomas says that promulgation is related to law as the application of the rule to the thing ruled. But the application of the rule is not of its essence, but supposes it already constituted. Therefore the holy Doctor does not place promulgation in the essence of law, but declares only that it is a condition without which the law does not oblige. — If the words of the Angelic Doctor be rightly weighed, his contrary mind will clearly be perceived. In the place cited he solves the following question: « Whether promulgation is of the notion of law? » In the head of the objections the negative proposition is read: « It seems that promulgation is not of the notion of law; » whence whoever has understood the method of the author must straightway conclude that he champions the contradictory proposition, which is equivalent to our proposition; thus he proceeds in the body of the article: « Law is imposed on others by way of rule and measure. But rule and measure are imposed by the fact that they are applied to those things that are ruled and measured. Wherefore, in order that law obtain the force of obliging, which is proper to law, it must needs be applied to men who ought to be regulated according to it. Such application is made by its being brought to their knowledge through promulgation itself. Wherefore promulgation itself is necessary in order that law have its force. And thus from the four things premised may be gathered the definition of law, which is nothing else than a certain ordinance of reason for the common good, promulgated by him who has the care of the community. » This definition is the conclusion of the whole article; and after describing the law in itself and with regard to subjects whose actions he cannot rule and measure unless he reach them through promulgation, St. Thomas places this promulgation in the definition of law. But he would not have assigned this place to promulgation had he not held it essential to law. Therefore he held it as such.

It is confirmed by the axiom of law related above, dist. 4, cap. 3: « Laws are instituted when they are promulgated, » where the promulgation of the law is given as its very institution. Therefore from promulgation the law receives that it is true law. Therefore promulgation is of the essence of law. And this is intimated by Justinian, saying, c. de Legib., in leg.: « The most sacred laws ought to be understood by all, that all, their precept being more clearly understood, may decline what is forbidden and do what is commanded. »

You will say: The law obliges not only those to whom it has already become known, but also those who are ignorant of it, as appears in laws irritating contracts, which produce their effect even toward those to whom they are wholly unknown. Therefore promulgation is not necessary in order that the law oblige. Therefore consequently it is not of the essence of law.

I answer. I deny the consequence. For it is one thing the divulgation of a law, another its promulgation, as the Salmanticenses note, cap. 1, n. 74. For divulgation there is required that the law become personally known to each subject; for promulgation indeed it suffices that it have been notified generally to the community, so that any private person can easily come to know it. Further, the law does not receive its intrinsic virtue of obliging from divulgation, but from promulgation, so that as soon as it has been intimated to the community it binds all subjects at least in the external forum, since all are juridically presumed not to be ignorant of it. A distinction must be made between irritating laws, by which subjects, even though unknowing, are rendered unfit in either forum for determinate acts, on account of the motive of the public good, and laws which render certain acts illicit and bind conscience.

Laws of the latter kind are true laws once they have been intimated to the community, and toward all they hold their obligatory force. But if they have been insufficiently divulged, so that they have not become known to some, although even toward subjects of this kind they rejoice in all the marks of true law, nevertheless they do not bind them in the internal forum, because these are laboring in invincible ignorance, which excuses from formal sin; and respectively toward them such laws ought to be regarded as not promulgated. And in this sense we understood the principle: « A doubtful law is no law, » in our dissertation on moderate Probabilism.

You will ask whether a sufficiently promulgated law obliges all, even those who invincibly are ignorant of it.

I answer. More probably affirmatively: because 1° the law in promulgation is directed not only to those present, but also to the absent. Therefore it comprehends them also. 2° Because, if a credible private person denounce to an absent person a sufficiently promulgated law, he will be bound to observe the law, and will sin by transgressing it. But this obligation does not arise from that private denouncer. Therefore from the promulgated law. Therefore before the denunciation it obliged.

Nevertheless all concede that those who invincibly are ignorant are excused from fault and from punishment for transgressing the law; but if the law were not only prohibitory but also irritative of some act, the act would be invalid even in one invincibly ignorant, as, e.g., clandestine marriage in places in which the Tridentine [decree] is sufficiently promulgated.

I say 1°: Legislative power belongs to the community, or to him who bears the care of the community ¹.

It is proved. To found law belongs to him whose it is to provide for the common good; because, as was said, laws are enacted on account of the common good. Yet to provide for the common good belongs to the community, or to him who has the care of the community; for as particular good is an end proportioned to a particular agent, so the common good is an end proportioned to the community, or to him exercising its functions. Ergo.

But true, because this governing and legislative power cannot easily be exercised by the whole multitude — for it would be difficult for all and singular to assemble at once as often as provision must be made for things necessary to the common good and for enacting laws — therefore the multitude is wont to transfer its right, or governing power, either into certain men from every condition of the people, and it is called democracy; or into few optimates, and it is called aristocracy; or into one only, whether for himself alone or for successors by hereditary right, and it is called monarchy.

This legislative power over Christians, especially the just, the Lutherans and Calvinists deny to the Church, herein following the Waldenses, Wiclif and John Hus condemned in the council of Constance. Against whom

I say 2º: There exists in the Church of Christ legislative power.

It is proved 1° by tradition. The Apostles themselves, Act., XV, 28 et 29,

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enacted the law of abstaining from things strangled and from things sacrificed to idols. And ibid., 41, it is said of Paul: He went about..., commanding them to keep the precepts of the Apostles. From which it is understood that this law of the Apostles was not directive only, as heretics feign, but also preceptive. From the Apostles until now, the Church through holy Pontiffs and councils has founded laws which all the faithful have venerated.

2° By reason. The Church of Christ is a republic well ordered; for Christ did not fail her in anything. Yet in every well-ordered republic there ought to be, for emerging circumstances and necessities, legislative power: otherwise it will collapse. Ergo.

Now this power resides in the supreme Pontiff and general councils legitimately assembled, for the whole Church; in legates, for the provinces of their legation; in bishops, with counsel of chapter, for their diocese; in national and provincial councils, for the nation or province; in general assemblies of religious orders, for the whole order.

[Obj. 1°: Either Christ sufficiently provided for his Church, or not. Second alternative is wickedness of the day. If the first, ergo human laws are superfluous.

I answer. That Christ sufficiently provided for his Church by founding essential laws and leaving to the Church itself the power of founding those which ought to arise from the former, according as he should judge expedient for the common good by exigency of circumstances, persons and places. For it appears that this power is necessary to the Church, that she may be able to rule the Christian people fittingly.

Obj. 2º from heretics and especially Protestants: The Church is a certain college existing within an empire and under territorial power or superiority. Yet any college whatsoever has not the right of founding laws, but is subject to the laws of the empire; for it is repugnant that in the same republic there be two supreme legislators. Ergo.

I answer. I deny the major. 1º The Church is a society, city and kingdom perfect, as it is described in sacred letters and by the Fathers. This society is not confined within the limits of one civil empire, but embraces the whole world, because Christ came into the world that he might save all men, I Tim., II, 4. Whence he willed his Church diffused everywhere to be one, and this association to be bound and joined together with the same bonds in those things which pertain either to faith or to morals. He willed moreover that it be perpetual, and promised that it would endure unto the consummation of the world, Matth., XXVIII, 20. All which do not suffer the straits and instability of temporal empires. 2º Colleges cannot be instituted without permission of the prince, who can suppress them if their affairs and ends pertain to the genus of things committed to him. Yet the Church was instituted, not only without permission of princes, but while they contradicted and strove to destroy her, and the affairs which she has charge of do not pertain to the genus of things committed to the prince. Ergo she is not constituted under the authority of the prince. 3° Indeed two supreme legislators cannot coexist in the same republic, supposed that both powers be exercised in the same genus and have the administration of the same thing. But the genus of both civil and ecclesiastical power differs entirely, because the things committed to each differ entirely. This indeed has charge of sacred and divine things, and watches over spiritual and eternal goods of the faithful; that, governing civil society, studies earthly and temporal goods of citizens. Each therefore is supreme in its own things, each having its parts. Whence it is falsely asserted that a state within a state is constituted, if the Church vindicates to herself legislative power in her own order. Hence Jerome used to say, Ep. 77, ad Ocean., n. 2: « Other are the laws of the Caesars, other those of Christ; another thing Papinian commands, another our Paul. » And Pope Gelasius, in can. Duo sunt, dist. 96: « Two there are by which this world is principally ruled, the sacred authority of priests and the royal power. »]

I say 3°: Legislative power does not depend upon probity of life. Whence every prince holds it, as well secular as ecclesiastical, whether good or evil.

It is proved. Christ himself, Matth., XXII, 21, commanded tribute be paid to Caesar, an ethnic prince. Ibid., XXIII, 2 et 3, he commands obedience to Scribes and Pharisees commanding according to the law, though wicked and impious. The Apostle, ad Rom., XIII, 4 et 5, teaches that princes, even infidels, are ministers of God, and that they must be obeyed, not only because of wrath, but also for conscience' sake. The same, ad Tit., III, 1, and 1 Petr., II, 13-15. Whence the following propositions were justly condemned in the council of Constance, first session, 8: « No one is civil lord, no one prelate, no one bishop, while he is in mortal sin. » It is 13 of Wiclif. The other, session XV: « No one exercises the office of Christ or Peter unless he follow him in morals. » It is 12 of John Hus.

You will ask of how many kinds laws are.

I answer. that they are of fourfold kind ³. One is eternal; another natural; another divine positive, and this twofold, old and new; another human, and this again twofold, ecclesiastical and civil.