QUESTION 95: OF HUMAN LAW
We must now consider human law; and (1) this law considered in itself;
(2) its power; (3) its mutability. Under the first head there are four
points of inquiry:
(1) Its utility.
(2) Its origin.
(3) Its quality.
(4) Its division.
Article 1: Whether it was useful for laws to be framed by men?
Objection 1: It would seem that it was not useful for laws to be framed by
men. Because the purpose of every law is that man be made good thereby,
as stated above (Question , Article ). But men are more to be induced to be good
willingly by means of admonitions, than against their will, by means of
laws. Therefore there was no need to frame laws.
Objection 2: Further, As the Philosopher says (Ethic. v, 4), "men have
recourse to a judge as to animate justice." But animate justice is better
than inanimate justice, which contained in laws. Therefore it would have
been better for the execution of justice to be entrusted to the decision
of judges, than to frame laws in addition.
Objection 3: Further, every law is framed for the direction of human actions,
as is evident from what has been stated above (Question , Articles ,2). But since
human actions are about singulars, which are infinite in number, matter
pertaining to the direction of human actions cannot be taken into
sufficient consideration except by a wise man, who looks into each one of
them. Therefore it would have been better for human acts to be directed
by the judgment of wise men, than by the framing of laws. Therefore there
was no need of human laws.
On the contrary, Isidore says (Etym. v, 20): "Laws were made that in
fear thereof human audacity might be held in check, that innocence might
be safeguarded in the midst of wickedness, and that the dread of
punishment might prevent the wicked from doing harm." But these things
are most necessary to mankind. Therefore it was necessary that human laws
should be made.
I answer that, As stated above (Question , Article ; Question , Article ), man has a
natural aptitude for virtue; but the perfection of virtue must be
acquired by man by means of some kind of training. Thus we observe that
man is helped by industry in his necessities, for instance, in food and
clothing. Certain beginnings of these he has from nature, viz. his reason
and his hands; but he has not the full complement, as other animals have,
to whom nature has given sufficiency of clothing and food. Now it is
difficult to see how man could suffice for himself in the matter of this
training: since the perfection of virtue consists chiefly in withdrawing
man from undue pleasures, to which above all man is inclined, and
especially the young, who are more capable of being trained. Consequently
a man needs to receive this training from another, whereby to arrive at
the perfection of virtue. And as to those young people who are inclined
to acts of virtue, by their good natural disposition, or by custom, or
rather by the gift of God, paternal training suffices, which is by
admonitions. But since some are found to be depraved, and prone to vice,
and not easily amenable to words, it was necessary for such to be
restrained from evil by force and fear, in order that, at least, they
might desist from evil-doing, and leave others in peace, and that they
themselves, by being habituated in this way, might be brought to do
willingly what hitherto they did from fear, and thus become virtuous. Now
this kind of training, which compels through fear of punishment, is the
discipline of laws. Therefore in order that man might have peace and
virtue, it was necessary for laws to be framed: for, as the Philosopher
says (Polit. i, 2), "as man is the most noble of animals if he be perfect
in virtue, so is he the lowest of all, if he be severed from law and
righteousness"; because man can use his reason to devise means of
satisfying his lusts and evil passions, which other animals are unable to
Reply to Objection 1: Men who are well disposed are led willingly to virtue by
being admonished better than by coercion: but men who are evilly disposed
are not led to virtue unless they are compelled.
Reply to Objection 2: As the Philosopher says (Rhet. i, 1), "it is better that
all things be regulated by law, than left to be decided by judges": and
this for three reasons. First, because it is easier to find a few wise
men competent to frame right laws, than to find the many who would be
necessary to judge aright of each single case. Secondly, because those
who make laws consider long beforehand what laws to make; whereas
judgment on each single case has to be pronounced as soon as it arises:
and it is easier for man to see what is right, by taking many instances
into consideration, than by considering one solitary fact. Thirdly,
because lawgivers judge in the abstract and of future events; whereas
those who sit in judgment of things present, towards which they are
affected by love, hatred, or some kind of cupidity; wherefore their
judgment is perverted.
Since then the animated justice of the judge is not found in every man,
and since it can be deflected, therefore it was necessary, whenever
possible, for the law to determine how to judge, and for very few matters
to be left to the decision of men.
Reply to Objection 3: Certain individual facts which cannot be covered by the law
"have necessarily to be committed to judges," as the Philosopher says in
the same passage: for instance, "concerning something that has happened
or not happened," and the like.
Article 2: Whether every human law is derived from the natural law?
Objection 1: It would seem that not every human law is derived from the
natural law. For the Philosopher says (Ethic. v, 7) that "the legal just
is that which originally was a matter of indifference." But those things
which arise from the natural law are not matters of indifference.
Therefore the enactments of human laws are not derived from the natural
Objection 2: Further, positive law is contrasted with natural law, as stated
by Isidore (Etym. v, 4) and the Philosopher (Ethic. v, 7). But those
things which flow as conclusions from the general principles of the
natural law belong to the natural law, as stated above (Question , Article ).
Therefore that which is established by human law does not belong to the
Objection 3: Further, the law of nature is the same for all; since the
Philosopher says (Ethic. v, 7) that "the natural just is that which is
equally valid everywhere." If therefore human laws were derived from the
natural law, it would follow that they too are the same for all: which is
Objection 4: Further, it is possible to give a reason for things which are
derived from the natural law. But "it is not possible to give the reason
for all the legal enactments of the lawgivers," as the jurist says
[*Pandect. Justin. lib. i, ff, tit. iii, v; De Leg. et Senat.]. Therefore
not all human laws are derived from the natural law.
On the contrary, Tully says (Rhet. ii): "Things which emanated from
nature and were approved by custom, were sanctioned by fear and reverence
for the laws."
I answer that, As Augustine says (De Lib. Arb. i, 5) "that which is not
just seems to be no law at all": wherefore the force of a law depends on
the extent of its justice. Now in human affairs a thing is said to be
just, from being right, according to the rule of reason. But the first
rule of reason is the law of nature, as is clear from what has been
stated above (Question , Article , ad 2). Consequently every human law has just
so much of the nature of law, as it is derived from the law of nature.
But if in any point it deflects from the law of nature, it is no longer
a law but a perversion of law.
But it must be noted that something may be derived from the natural law
in two ways: first, as a conclusion from premises, secondly, by way of
determination of certain generalities. The first way is like to that by
which, in sciences, demonstrated conclusions are drawn from the
principles: while the second mode is likened to that whereby, in the
arts, general forms are particularized as to details: thus the craftsman
needs to determine the general form of a house to some particular shape.
Some things are therefore derived from the general principles of the
natural law, by way of conclusions; e.g. that "one must not kill" may be
derived as a conclusion from the principle that "one should do harm to no
man": while some are derived therefrom by way of determination; e.g. the
law of nature has it that the evil-doer should be punished; but that he
be punished in this or that way, is a determination of the law of nature.
Accordingly both modes of derivation are found in the human law. But
those things which are derived in the first way, are contained in human
law not as emanating therefrom exclusively, but have some force from the
natural law also. But those things which are derived in the second way,
have no other force than that of human law.
Reply to Objection 1: The Philosopher is speaking of those enactments which are
by way of determination or specification of the precepts of the natural
Reply to Objection 2: This argument avails for those things that are derived from
the natural law, by way of conclusions.
Reply to Objection 3: The general principles of the natural law cannot be applied
to all men in the same way on account of the great variety of human
affairs: and hence arises the diversity of positive laws among various
Reply to Objection 4: These words of the Jurist are to be understood as referring
to decisions of rulers in determining particular points of the natural
law: on which determinations the judgment of expert and prudent men is
based as on its principles; in so far, to wit, as they see at once what
is the best thing to decide.
Hence the Philosopher says (Ethic. vi, 11) that in such matters, "we
ought to pay as much attention to the undemonstrated sayings and opinions
of persons who surpass us in experience, age and prudence, as to their
Article 3: Whether Isidore's description of the quality of positive law is appropriate?
Objection 1: It would seem that Isidore's description of the quality of
positive law is not appropriate, when he says (Etym. v, 21): "Law shall
be virtuous, just, possible to nature, according to the custom of the
country, suitable to place and time, necessary, useful; clearly
expressed, lest by its obscurity it lead to misunderstanding; framed for
no private benefit, but for the common good." Because he had previously
expressed the quality of law in three conditions, saying that "law is
anything founded on reason, provided that it foster religion, be helpful
to discipline, and further the common weal." Therefore it was needless to
add any further conditions to these.
Objection 2: Further, Justice is included in honesty, as Tully says (De Offic.
vii). Therefore after saying "honest" it was superfluous to add "just."
Objection 3: Further, written law is condivided with custom, according to
Isidore (Etym. ii, 10). Therefore it should not be stated in the
definition of law that it is "according to the custom of the country."
Objection 4: Further, a thing may be necessary in two ways. It may be
necessary simply, because it cannot be otherwise: and that which is
necessary in this way, is not subject to human judgment, wherefore human
law is not concerned with necessity of this kind. Again a thing may be
necessary for an end: and this necessity is the same as usefulness.
Therefore it is superfluous to say both "necessary" and "useful."
On the contrary, stands the authority of Isidore.
I answer that, Whenever a thing is for an end, its form must be
determined proportionately to that end; as the form of a saw is such as
to be suitable for cutting (Phys. ii, text. 88). Again, everything that
is ruled and measured must have a form proportionate to its rule and
measure. Now both these conditions are verified of human law: since it is
both something ordained to an end; and is a rule or measure ruled or
measured by a higher measure. And this higher measure is twofold, viz.
the Divine law and the natural law, as explained above (Article ; Question , Article ). Now the end of human law is to be useful to man, as the jurist states
[*Pandect. Justin. lib. xxv, ff., tit. iii; De Leg. et Senat.]. Wherefore
Isidore in determining the nature of law, lays down, at first, three
conditions; viz. that it "foster religion," inasmuch as it is
proportionate to the Divine law; that it be "helpful to discipline,"
inasmuch as it is proportionate to the nature law; and that it "further
the common weal," inasmuch as it is proportionate to the utility of
All the other conditions mentioned by him are reduced to these three.
For it is called virtuous because it fosters religion. And when he goes
on to say that it should be "just, possible to nature, according to the
customs of the country, adapted to place and time," he implies that it
should be helpful to discipline. For human discipline depends on first on
the order of reason, to which he refers by saying "just": secondly, it
depends on the ability of the agent; because discipline should be adapted
to each one according to his ability, taking also into account the
ability of nature (for the same burdens should be not laid on children as
adults); and should be according to human customs; since man cannot live
alone in society, paying no heed to others: thirdly, it depends on
certain circumstances, in respect of which he says, "adapted to place and
time." The remaining words, "necessary, useful," etc. mean that law
should further the common weal: so that "necessity" refers to the removal
of evils; "usefulness" to the attainment of good; "clearness of
expression," to the need of preventing any harm ensuing from the law
itself. And since, as stated above (Question , Article ), law is ordained to the
common good, this is expressed in the last part of the description.
This suffices for the Replies to the Objections.
Article 4: Whether Isidore's division of human laws is appropriate?
Objection 1: It would seem that Isidore wrongly divided human statutes or
human law (Etym. v, 4, seqq.). For under this law he includes the "law of
nations," so called, because, as he says, "nearly all nations use it."
But as he says, "natural law is that which is common to all nations."
Therefore the law of nations is not contained under positive human law,
but rather under natural law.
Objection 2: Further, those laws which have the same force, seem to differ not
formally but only materially. But "statutes, decrees of the commonalty,
senatorial decrees," and the like which he mentions (Etym. v, 9), all
have the same force. Therefore they do not differ, except materially. But
art takes no notice of such a distinction: since it may go on to
infinity. Therefore this division of human laws is not appropriate.
Objection 3: Further, just as, in the state, there are princes, priests and
soldiers, so are there other human offices. Therefore it seems that, as
this division includes "military law," and "public law," referring to
priests and magistrates; so also it should include other laws pertaining
to other offices of the state.
Objection 4: Further, those things that are accidental should be passed over.
But it is accidental to law that it be framed by this or that man.
Therefore it is unreasonable to divide laws according to the names of
lawgivers, so that one be called the "Cornelian" law, another the
"Falcidian" law, etc.
On the contrary, The authority of Isidore (Objection ) suffices.
I answer that, A thing can of itself be divided in respect of something
contained in the notion of that thing. Thus a soul either rational or
irrational is contained in the notion of animal: and therefore animal is
divided properly and of itself in respect of its being rational or
irrational; but not in the point of its being white or black, which are
entirely beside the notion of animal. Now, in the notion of human law,
many things are contained, in respect of any of which human law can be
divided properly and of itself. For in the first place it belongs to the
notion of human law, to be derived from the law of nature, as explained
above (Article ). In this respect positive law is divided into the "law of
nations" and "civil law," according to the two ways in which something
may be derived from the law of nature, as stated above (Article ). Because,
to the law of nations belong those things which are derived from the law
of nature, as conclusions from premises, e.g. just buyings and sellings,
and the like, without which men cannot live together, which is a point of
the law of nature, since man is by nature a social animal, as is proved
in Polit. i, 2. But those things which are derived from the law of nature
by way of particular determination, belong to the civil law, according as
each state decides on what is best for itself.
Secondly, it belongs to the notion of human law, to be ordained to the
common good of the state. In this respect human law may be divided
according to the different kinds of men who work in a special way for the
common good: e.g. priests, by praying to God for the people; princes, by
governing the people; soldiers, by fighting for the safety of the people.
Wherefore certain special kinds of law are adapted to these men.
Thirdly, it belongs to the notion of human law, to be framed by that one
who governs the community of the state, as shown above (Question , Article ). In
this respect, there are various human laws according to the various forms
of government. Of these, according to the Philosopher (Polit. iii, 10)
one is "monarchy," i.e. when the state is governed by one; and then we
have "Royal Ordinances." Another form is "aristocracy," i.e. government
by the best men or men of highest rank; and then we have the
"Authoritative legal opinions" [Responsa Prudentum] and "Decrees of the
Senate" [Senatus consulta]. Another form is "oligarchy," i.e. government
by a few rich and powerful men; and then we have "Praetorian," also
called "Honorary," law. Another form of government is that of the people,
which is called "democracy," and there we have "Decrees of the
commonalty" [Plebiscita]. There is also tyrannical government, which is
altogether corrupt, which, therefore, has no corresponding law. Finally,
there is a form of government made up of all these, and which is the
best: and in this respect we have law sanctioned by the "Lords and
Commons," as stated by Isidore (Etym. v, 4, seqq.).
Fourthly, it belongs to the notion of human law to direct human actions.
In this respect, according to the various matters of which the law
treats, there are various kinds of laws, which are sometimes named after
their authors: thus we have the "Lex Julia" about adultery, the "Lex
Cornelia" concerning assassins, and so on, differentiated in this way,
not on account of the authors, but on account of the matters to which
Reply to Objection 1: The law of nations is indeed, in some way, natural to man,
in so far as he is a reasonable being, because it is derived from the
natural law by way of a conclusion that is not very remote from its
premises. Wherefore men easily agreed thereto. Nevertheless it is
distinct from the natural law, especially it is distinct from the natural
law which is common to all animals.
The Replies to the other Objections are evident from what has been said.