LITMIR.BIZ

Скачать книгу

act, but to the sign of such an act, or to the act of the intellect from which the said sign is proximately derived.

      24.21 The assertion that law is an act of the will, is better understood and upheld. Wherefore, and thirdly, I add that, with regard to the essence of the matter, a more intelligible and more easily defensible assertion is this: law in its mental aspect (so to speak), as it exists in the lawmaker himself, is the act of a just and upright will, the act whereby a superior wills to bind an inferior to the performance of a particular deed. I find a proof of this assertion in the arguments advanced in support of the second opinion. For though such an act of the will cannot take effect in the subject unless it be sufficiently propounded to him, nevertheless this act of propounding is an application of the cause that creates obligation, rather than the true cause and basis of obligation.

      25. With respect to the application of the term, ‘law’ (lex) signifies primarily the external rule, and the sign [thereof], of the person commanding. Lastly,

      [print edition page 82]

      however, I assert, with respect to the application of the term ‘law’ (lex), that it seems to have been used primarily to denote the external rule of the person commanding, and the sign making manifest his will. For it was in this sense that Aristotle (Ethics, Bk. X [, chap. ix, § 12]) declared law to be a rule emanating from a certain wisdom [etc.]; and that he elsewhere (Rhetoric to Alexander) speaks of it as the common wish of the people, set down in writing. Isidore, too, assumes this to be the case, when he says that lex is derived from legendum (that which is to be read, &c.), and should be in written form.

      According to this acceptation of the term, then, one may well defend the view that law, as it exists within the prince, is that act of the intellect whereby he proximately dictates the external law, or that act which is by its very nature suitable for the dictation and manifestation of this [external law].

      For, just as the external law is in a sense a proximate rule for the will of the subjects, even so, in due proportion, the law which is written (as it were) in the intellect of the prince, is a rule for this same will of the subject, one from which the rule of external law is proximately derived when it is set forth to the subject. However, it is derived, as the saying goes, in the form of another intimation or impelling force; yet this intimation is nothing more nor less than the external locution that is directed and (so to speak) dictated by the intellect of the prince, through that judgment which his will has already approved, or in so far as that locution is derived from the said [intellectual] act as already defined and decreed through the volitional act of the same prince; a point which is made sufficiently clear by what we have said above.

CHAPTER VI

      Is It Inherent in the Nature of Law That It Should Be Instituted for Some Community?

      1. Having discussed the question of the general class in which law is to be placed, we should inquire into the distinguishing marks by virtue of which it acquires the [particular] nature of law. What these distinguishing marks are, we shall ascertain while explaining certain characteristic conditions

      [print edition page 83]

      which are necessary to the true nature of law. And at the same time, we shall explain the causes of law, since the true and intrinsic conditions characterizing law can have no better source than those causes; neither can the said distinguishing marks be understood or explained, without reference to the subject-matter, object and end of law.

      It is inherent in the nature of law that it should be instituted for certain beings. In the first place, then, as to the essential nature of law, it is clear that law is instituted for a certain being or certain beings; for, in the words of Paul (Romans, Chap. iii [, v. 19]): ‘Now we know, that what things soever the law speaketh, it speaketh to them that are in the law.’ Thus, law essentially implies a certain habitual relation (habitudo) to those upon whom it is imposed; and consequently, in order to explain the essential nature of law, it is necessary to make clear the terms of this relationship.

      Human beings alone are capable of [subjection to] these laws. We assume, moreover, that law should be instituted for human beings, since inferior creatures are not capable of [subjection to] true law (which is the topic under consideration), as has often been remarked; for they are not capable of moral acts. And the angels, although they are capable of [subjection to] the divine law, are nevertheless not included within the range of our present discussion, as I said in the Preface. However, the statements which we shall make with respect to natural and divine law may easily be applied, in due proportion, to the angels.

      Law as we are treating of it must, then, be imposed upon human beings; and accordingly, every law may in this sense be called human, as I have remarked above,1 even though, to avoid ambiguity, it is not so called.

      2. Is it inherent in the nature of law that it should be instituted for some community? These statements having been assumed to be true, there arises a doubt as to whether law can be instituted for one individual only, or whether it is inherent in the nature of law that it should be instituted for a multitude of men, or a community.

      For we presume it to be a manifest fact that a human community is capable of [subjection to] laws and even stands in special need of them,

      [print edition page 84]

      since the arguments advanced in the preceding Chapter offer convincing proof of this assertion. Accordingly, it is also clear that, as a matter of regular and ordinary procedure, law is indeed instituted for some community, or multitude of men; a fact which is sufficiently evident through usage itself, and which will become still more manifest from what we have yet to say. The difficulty, then, consists in the question of whether or not the said fact is inherent in the nature of law.

      The first and affirmative opinion. The first opinion as to this question is affirmative, namely, that only that precept is law which is instituted in general for all the persons included within a given community; whereas that precept which is imposed upon a single individual is not law. The foundation customarily adduced for this opinion is a passage in the Decretum (Pt. I, dist. IV, can. ii), taken from the Etymologies (Bk. I, chap. xxi [Bk. II, chap. x and Bk. V, chap. xxi]) of Isidore. In this passage, Isidore lays down various conditions for law and the last condition is, ‘that it shall have been written for no private benefit, but for the common advantage of the citizens’. This text, however, does not provide a compelling argument, since it is one thing that a law should be imposed upon a community, and quite another, that it should be imposed for the good or the advantage of that community. For it may be that a precept is imposed upon a particular individual and is nevertheless imposed with a view to the common good. Thus, Isidore, in the passage cited, is laying down a necessary condition, not with respect to the person on whom the law is to be imposed, but with respect to the end on account of which it is to be imposed, namely, the common good. This condition I shall explain in the next Chapter.

      3. It may be objected that the condition in question, if so interpreted, had already been included under another, laid down by Isidore in the same Chapter, the condition ‘that law be just and righteous’; for law will not have these qualities, unless it is ordered for the common good.

      But that objection is not valid; first of all, because many of the conditions that Isidore lays down in this Chapter are so related that one is included within another or inferred therefrom, and nevertheless all are added to the list for the sake of a more complete explanation. Thus, in the mere condition that law should be just, there are included the conditions that law should be [such that obedience] is possible and that it should be

      [print edition page 85]

      useful. For how will law be just, if [obedience thereto] is impossible, or useless? And nevertheless, these three conditions are separately enumerated.

      Accordingly, with still more reason could this last condition have been added, in order to explain clearly the particular justice and rectitude which are required of law. For an act may be just and righteous, even if it be not directed to the common good; and it will suffice if such an act is not [positively] opposed to that good. But with respect to law, the additional requirement is made that, in order to be just, law must be ordered for the common good.

      4.

Скачать книгу