LITMIR.BIZ

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I, chap. iii [Bk. III, chap. xi]).

      Thus he has said (Ethics, Bk. X, chap. ix) that law is ‘a rule, emanating from a certain wisdom and intelligence’. We have also cited above many of the words of Cicero, in which he indicates that law is in the reason: that first, indeed, it is in the Mind of God; and that, through participation in this [Mind, by the human reason], the said reason contains the natural law and prudence, from which source the laws of states should be derived. This point is fully dealt with, in the Laws (Bks. I and II, shortly after the beginning [Bk. I, chap. vii and Bk. II, chap. iv]) where, among other remarks, Cicero lays down the conclusion that, ‘Law is right reason in commanding and forbidding’. And in fine, it is in like vein that Papinian (in Digest, I. iii. 1) calls law ‘a common precept’, declaring it to be ‘the decree of prudent men’. Marcianus, too (ibid., 2), says, quoting Chrysippus: ‘Law is the queen, princess and leader of human and divine affairs.’ These, indeed, are the functions of reason, to which the rule and direction of actions pertain.

      3. The first opinion is confirmed by reasoning. Various arguments are advanced for the confirmation of this first opinion.

      The first argument is as follows: it is the function of law to regulate, wherefore it is customary to define law as a ‘regulation by the reason’; yet regulation pertains not to the will, but to the intellect, since it involves a certain ratiocination, so that those things which lack reason cannot regulate; therefore, law is an act of the intellect.

      Secondly, it is the function of law to enlighten and instruct in accordance with the words [of the Psalms, cxviii, v. 105], ‘Thy word is a lamp to my feet, […]’ and of this passage, also [ibid., xviii, v. 8]: ‘The law of the Lord is unspotted, converting souls: [the testimony of the Lord is faithful,] giving wisdom to little ones’; and the act of enlightenment pertains to the intellect.

      Thirdly, law is a rule, as we said at the beginning, in accordance with a

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      passage of Basil (on Isaias, Chap. i, in v. 9)3 where he calls it ‘a rule of the just and the unjust’. This view is also supported by the Digest (I. iii. 2). Thus it is that the laws of the Church are called canons—that is to say, rules—as Isidore (Etymologies, Bk. II [, chap. x]) remarks. But the will is not a rule; rather should it be regulated by the reason itself. Therefore, law dwells in the reason.

      4. Fourthly, we have the argument that no act of the will can be designated as law. For [such an act would fall into one of two classes.]

      First, it might be the will of a prince or of a superior that a particular act shall be performed by the subject; which is not the case, since such a will is neither necessary nor sufficient; for God imposed upon Abraham a true precept concerning the sacrifice of Abraham’s son, yet God did not will that this sacrifice should be executed; and conversely, however much a superior may will and desire that a given act be performed by a subject, he imposes no obligation if he issues no precept. Thus the theologians say that we are not bound to conform to the divine will, even the efficacious divine will, unless there is added to it a precept concerning the execution of the will in question. Therefore, law does not consist in such an act of the will.

      Secondly, [the act] might consist in the will to bind the subject; a will which is also insufficient, unless it is made known. Indeed, some persons add that a will of this sort in the prince is not necessary to his establishment of the law, for if the prince wills to command, by the very act of commanding, he makes law, even though he reflects not at all upon the binding obligation involved. Bartholomew Medina goes further and says (on I.–II, qu. 90, art. 1) that, even though [the prince] may be [definitely] unwilling to impose the obligation, nevertheless, if he wills to command, he does impose it, and makes law. Just as one who makes a vow without willing to bind himself, nevertheless vows truly (says Medina) and becomes bound; and just as he who makes a deceitful promise under oath, without intent to lay himself under a binding obligation, is bound by the sanctity of the oath, to fulfil the promise; even so, he who wills to

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      command, imposes a binding obligation, by the efficacy of the command, even though he be unwilling to do so.

      Accordingly, no other act of the will than the will to command, is necessary to law; and the will to command does not constitute law, unless it is followed by the command itself, which pertains to the intellect; therefore, law dwells in the intellect.

      5. In what act of the intellect does law dwell? However, there exists among those persons who have advanced this opinion, a controversy as to what act of the intellect contains the essential principle of law; that is to say, a controversy as to whether this act is the judgment of the reason which precedes the willing, or the command which is said to follow after. For certain of these authorities declare that the act in question is the judgment of the reason. William of Paris held this view; and he was followed by Conrad Koellin (on I.–II, qu. 91, art. 1). St. Thomas, also (I.–II, qu. 91, art. 2 [art. 1]), clearly says that law is a dictate [of practical reason] in the prince. Moreover, if we take into consideration the testimony cited, especially that of the philosophers, it would appear to have reference to this judgment of the reason. Again, the properties which consist in enlightening, and in serving as a rule and a measure, are appropriate to such a judgment of the reason, and not to the command in question, for the latter is said to be of a quality that merely impels and does not make manifest any truth.

      Nevertheless, in opposition to this opinion, we have the fact that this judgment does not possess any efficacious force for binding, or for moving in a moral sense; yet such a force is essential in law. Moreover, in so far as concerns the judgment involved, a precept would seem to be in nowise different from a counsel; since even one who gives counsel passes similar judgment in regard to the action whose performance he counsels. Accordingly, if God should make manifest to us nothing more than this judgment, He would be giving us not a law, but a counsel, in connexion with those acts, to be sure, the contraries of which are not intrinsically wicked.

      6. Some say that law is the act of the intellect which is called ‘command’ (imperium).4 Other authors therefore, assert that law resides in the act of the intellect subsequent to willing, an act to which they give the name

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      of ‘command’ (imperium). However, this act, if it is not in the form of a locution, is certainly a fiction, as we have remarked above.5 And if it is in that form, then it will have the nature of a sign, so that it will be not so much law, as the sign of law; or, at the most, it will be called law, even as written law or that promulgated orally is so called. But this external or written law has the force of law only in that it stands for something else, something in which there dwells the virtue of law; therefore, it necessarily presupposes the existence of another thing which is law in its essence;6 and this is the very object of our inquiries. Nor may it even be said that the internal locution, as we conceive it in the mind of the prince, constitutes law; for this locution, too, has force and efficacy only in that it is a sign, so that it necessarily presupposes the existence of that which is law in its essence.7

      7. Furthermore, with respect to God, there is a special reason on account of which it would seem that the said act [of the intellect] is not to be attributed to Him as necessary for the establishment of law. For either this act is in the form of an externally active impulse, as some persons hold it to be, distinct even in God from His proper judgment and cognition; or else it is in the form of a mental locution; yet neither of these alternative assertions is acceptable; therefore, …

      The minor premiss can be proved, in so far as concerns its first part, by demonstrating that no such act exists, since its existence is vainly posited, and the act is inconceivable; but we have treated of this point, elsewhere (De Religione, Pt. I, tr. II, bk. 1, chap. x).8 Here, however, we shall provide a brief demonstration, as follows: on the part of God, such an impulse cannot be necessary for the establishment of law; for God, in establishing law, does not impel one physically toward the act prescribed by the law, but merely imposes an obligation which is of a moral nature and cannot be thus physically brought about, a fact which would seem to be self-evident.

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      The other part of the

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