QUESTION 96: OF THE POWER OF HUMAN LAW
We must now consider the power of human law. Under this head there are
six points of inquiry:
(1) Whether human law should be framed for the community?
(2) Whether human law should repress all vices?
(3) Whether human law is competent to direct all acts of virtue?
(4) Whether it binds man in conscience?
(5) Whether all men are subject to human law?
(6) Whether those who are under the law may act beside the letter of the
Article 1: Whether human law should be framed for the community rather than for the individual?
Objection 1: It would seem that human law should be framed not for the
community, but rather for the individual. For the Philosopher says
(Ethic. v, 7) that "the legal just . . . includes all particular acts of
legislation . . . and all those matters which are the subject of
decrees," which are also individual matters, since decrees are framed
about individual actions. Therefore law is framed not only for the
community, but also for the individual.
Objection 2: Further, law is the director of human acts, as stated above
(Question , Articles ,2). But human acts are about individual matters. Therefore
human laws should be framed, not for the community, but rather for the
Objection 3: Further, law is a rule and measure of human acts, as stated above
(Question , Articles ,2). But a measure should be most certain, as stated in
Metaph. x. Since therefore in human acts no general proposition can be so
certain as not to fail in some individual cases, it seems that laws
should be framed not in general but for individual cases.
On the contrary, The jurist says (Pandect. Justin. lib. i, tit. iii,
art. ii; De legibus, etc.) that "laws should be made to suit the majority
of instances; and they are not framed according to what may possibly
happen in an individual case."
I answer that, Whatever is for an end should be proportionate to that
end. Now the end of law is the common good; because, as Isidore says
(Etym. v, 21) that "law should be framed, not for any private benefit,
but for the common good of all the citizens." Hence human laws should be
proportionate to the common good. Now the common good comprises many
things. Wherefore law should take account of many things, as to persons,
as to matters, and as to times. Because the community of the state is
composed of many persons; and its good is procured by many actions; nor
is it established to endure for only a short time, but to last for all
time by the citizens succeeding one another, as Augustine says (De Civ.
Dei ii, 21; xxii, 6).
Reply to Objection 1: The Philosopher (Ethic. v, 7) divides the legal just, i.e.
positive law, into three parts. For some things are laid down simply in a
general way: and these are the general laws. Of these he says that "the
legal is that which originally was a matter of indifference, but which,
when enacted, is so no longer": as the fixing of the ransom of a captive.
Some things affect the community in one respect, and individuals in
another. These are called "privileges," i.e. "private laws," as it were,
because they regard private persons, although their power extends to many
matters; and in regard to these, he adds, "and further, all particular
acts of legislation." Other matters are legal, not through being laws,
but through being applications of general laws to particular cases: such
are decrees which have the force of law; and in regard to these, he adds
"all matters subject to decrees."
Reply to Objection 2: A principle of direction should be applicable to many;
wherefore (Metaph. x, text. 4) the Philosopher says that all things
belonging to one genus, are measured by one, which is the principle in
that genus. For if there were as many rules or measures as there are
things measured or ruled, they would cease to be of use, since their use
consists in being applicable to many things. Hence law would be of no
use, if it did not extend further than to one single act. Because the
decrees than to one single act. Because the decrees of prudent men are
made for the purpose of directing individual actions; whereas law is a
general precept, as stated above (Question , Article , Objection ).
Reply to Objection 3: "We must not seek the same degree of certainty in all
things" (Ethic. i, 3). Consequently in contingent matters, such as
natural and human things, it is enough for a thing to be certain, as
being true in the greater number of instances, though at times and less
frequently it fail.
Article 2: Whether it belongs to the human law to repress all vices?
Objection 1: It would seem that it belongs to human law to repress all vices.
For Isidore says (Etym. v, 20) that "laws were made in order that, in
fear thereof, man's audacity might be held in check." But it would not be
held in check sufficiently, unless all evils were repressed by law.
Therefore human laws should repress all evils.
Objection 2: Further, the intention of the lawgiver is to make the citizens
virtuous. But a man cannot be virtuous unless he forbear from all kinds
of vice. Therefore it belongs to human law to repress all vices.
Objection 3: Further, human law is derived from the natural law, as stated
above (Question , Article ). But all vices are contrary to the law of nature.
Therefore human law should repress all vices.
On the contrary, We read in De Lib. Arb. i, 5: "It seems to me that the
law which is written for the governing of the people rightly permits
these things, and that Divine providence punishes them." But Divine
providence punishes nothing but vices. Therefore human law rightly allows
some vices, by not repressing them.
I answer that, As stated above (Question , Articles ,2), law is framed as a rule
or measure of human acts. Now a measure should be homogeneous with that
which it measures, as stated in Metaph. x, text. 3,4, since different
things are measured by different measures. Wherefore laws imposed on men
should also be in keeping with their condition, for, as Isidore says
(Etym. v, 21), law should be "possible both according to nature, and
according to the customs of the country." Now possibility or faculty of
action is due to an interior habit or disposition: since the same thing
is not possible to one who has not a virtuous habit, as is possible to
one who has. Thus the same is not possible to a child as to a full-grown
man: for which reason the law for children is not the same as for adults,
since many things are permitted to children, which in an adult are
punished by law or at any rate are open to blame. In like manner many
things are permissible to men not perfect in virtue, which would be
intolerable in a virtuous man.
Now human law is framed for a number of human beings, the majority of
whom are not perfect in virtue. Wherefore human laws do not forbid all
vices, from which the virtuous abstain, but only the more grievous vices,
from which it is possible for the majority to abstain; and chiefly those
that are to the hurt of others, without the prohibition of which human
society could not be maintained: thus human law prohibits murder, theft
and such like.
Reply to Objection 1: Audacity seems to refer to the assailing of others.
Consequently it belongs to those sins chiefly whereby one's neighbor is
injured: and these sins are forbidden by human law, as stated.
Reply to Objection 2: The purpose of human law is to lead men to virtue, not
suddenly, but gradually. Wherefore it does not lay upon the multitude of
imperfect men the burdens of those who are already virtuous, viz. that
they should abstain from all evil. Otherwise these imperfect ones, being
unable to bear such precepts, would break out into yet greater evils:
thus it is written (Ps. 30:33): "He that violently bloweth his nose,
bringeth out blood"; and (Mt. 9:17) that if "new wine," i.e. precepts of
a perfect life, "is put into old bottles," i.e. into imperfect men, "the
bottles break, and the wine runneth out," i.e. the precepts are
despised, and those men, from contempt, break into evils worse still.
Reply to Objection 3: The natural law is a participation in us of the eternal
law: while human law falls short of the eternal law. Now Augustine says
(De Lib. Arb. i, 5): "The law which is framed for the government of
states, allows and leaves unpunished many things that are punished by
Divine providence. Nor, if this law does not attempt to do everything, is
this a reason why it should be blamed for what it does." Wherefore, too,
human law does not prohibit everything that is forbidden by the natural
Article 3: Whether human law prescribes acts of all the virtues?
Objection 1: It would seem that human law does not prescribe acts of all the
virtues. For vicious acts are contrary to acts of virtue. But human law
does not prohibit all vices, as stated above (Article ). Therefore neither
does it prescribe all acts of virtue.
Objection 2: Further, a virtuous act proceeds from a virtue. But virtue is the
end of law; so that whatever is from a virtue, cannot come under a
precept of law. Therefore human law does not prescribe all acts of virtue.
Objection 3: Further, law is ordained to the common good, as stated above
(Question , Article ). But some acts of virtue are ordained, not to the common
good, but to private good. Therefore the law does not prescribe all acts
On the contrary, The Philosopher says (Ethic. v, 1) that the law
"prescribes the performance of the acts of a brave man . . . and the acts
of the temperate man . . . and the acts of the meek man: and in like
manner as regards the other virtues and vices, prescribing the former,
forbidding the latter."
I answer that, The species of virtues are distinguished by their
objects, as explained above (Question , Article ; Question , Article ; Question , Article ). Now
all the objects of virtues can be referred either to the private good of
an individual, or to the common good of the multitude: thus matters of
fortitude may be achieved either for the safety of the state, or for
upholding the rights of a friend, and in like manner with the other
virtues. But law, as stated above (Question , Article ) is ordained to the common
good. Wherefore there is no virtue whose acts cannot be prescribed by the
law. Nevertheless human law does not prescribe concerning all the acts of
every virtue: but only in regard to those that are ordainable to the
common good---either immediately, as when certain things are done
directly for the common good---or mediately, as when a lawgiver
prescribes certain things pertaining to good order, whereby the citizens
are directed in the upholding of the common good of justice and peace.
Reply to Objection 1: Human law does not forbid all vicious acts, by the
obligation of a precept, as neither does it prescribe all acts of
virtue. But it forbids certain acts of each vice, just as it prescribes
some acts of each virtue.
Reply to Objection 2: An act is said to be an act of virtue in two ways. First,
from the fact that a man does something virtuous; thus the act of justice
is to do what is right, and an act of fortitude is to do brave things:
and in this way law prescribes certain acts of virtue. Secondly an act of
virtue is when a man does a virtuous thing in a way in which a virtuous
man does it. Such an act always proceeds from virtue: and it does not
come under a precept of law, but is the end at which every lawgiver aims.
Reply to Objection 3: There is no virtue whose act is not ordainable to the
common good, as stated above, either mediately or immediately.
Article 4: Whether human law binds a man in conscience?
Objection 1: It would seem that human law does not bind man in conscience. For
an inferior power has no jurisdiction in a court of higher power. But the
power of man, which frames human law, is beneath the Divine power.
Therefore human law cannot impose its precept in a Divine court, such as
is the court of conscience.
Objection 2: Further, the judgment of conscience depends chiefly on the
commandments of God. But sometimes God's commandments are made void by
human laws, according to Mt. 15:6: "You have made void the commandment of
God for your tradition." Therefore human law does not bind a man in
Objection 3: Further, human laws often bring loss of character and injury on
man, according to Is. 10:1 et seqq.: "Woe to them that make wicked laws,
and when they write, write injustice; to oppress the poor in judgment,
and do violence to the cause of the humble of My people." But it is
lawful for anyone to avoid oppression and violence. Therefore human laws
do not bind man in conscience.
On the contrary, It is written (1 Pt. 2:19): "This is thankworthy, if
the conscience . . . a man endure sorrows, suffering wrongfully."
I answer that, Laws framed by man are either just or unjust. If they be
just, they have the power of binding in conscience, from the eternal law
whence they are derived, according to Prov. 8:15: "By Me kings reign, and
lawgivers decree just things." Now laws are said to be just, both from
the end, when, to wit, they are ordained to the common good---and from
their author, that is to say, when the law that is made does not exceed
the power of the lawgiver---and from their form, when, to wit, burdens
are laid on the subjects, according to an equality of proportion and with
a view to the common good. For, since one man is a part of the community,
each man in all that he is and has, belongs to the community; just as a
part, in all that it is, belongs to the whole; wherefore nature inflicts
a loss on the part, in order to save the whole: so that on this account,
such laws as these, which impose proportionate burdens, are just and
binding in conscience, and are legal laws.
On the other hand laws may be unjust in two ways: first, by being
contrary to human good, through being opposed to the things mentioned
above---either in respect of the end, as when an authority imposes on his
subjects burdensome laws, conducive, not to the common good, but rather
to his own cupidity or vainglory---or in respect of the author, as when a
man makes a law that goes beyond the power committed to him---or in
respect of the form, as when burdens are imposed unequally on the
community, although with a view to the common good. The like are acts of
violence rather than laws; because, as Augustine says (De Lib. Arb. i,
5), "a law that is not just, seems to be no law at all." Wherefore such
laws do not bind in conscience, except perhaps in order to avoid scandal
or disturbance, for which cause a man should even yield his right,
according to Mt. 5:40,41: "If a man . . . take away thy coat, let go thy
cloak also unto him; and whosoever will force thee one mile, go with him
Secondly, laws may be unjust through being opposed to the Divine good:
such are the laws of tyrants inducing to idolatry, or to anything else
contrary to the Divine law: and laws of this kind must nowise be
observed, because, as stated in Acts 5:29, "we ought to obey God rather
Reply to Objection 1: As the Apostle says (Rm. 13:1,2), all human power is from
God . . . "therefore he that resisteth the power," in matters that are
within its scope, "resisteth the ordinance of God"; so that he becomes
guilty according to his conscience.
Reply to Objection 2: This argument is true of laws that are contrary to the
commandments of God, which is beyond the scope of (human) power.
Wherefore in such matters human law should not be obeyed.
Reply to Objection 3: This argument is true of a law that inflicts unjust hurt on
its subjects. The power that man holds from God does not extend to this:
wherefore neither in such matters is man bound to obey the law, provided
he avoid giving scandal or inflicting a more grievous hurt.
Article 5: Whether all are subject to the law?
Objection 1: It would seem that not all are subject to the law. For those
alone are subject to a law for whom a law is made. But the Apostle says
(1 Tim. 1:9): "The law is not made for the just man." Therefore the just
are not subject to the law.
Objection 2: Further, Pope Urban says [*Decretals. caus. xix, qu. 2]: "He that
is guided by a private law need not for any reason be bound by the public
law." Now all spiritual men are led by the private law of the Holy Ghost,
for they are the sons of God, of whom it is said (Rm. 8:14): "Whosoever
are led by the Spirit of God, they are the sons of God." Therefore not
all men are subject to human law.
Objection 3: Further, the jurist says [*Pandect. Justin. i, ff., tit. 3, De
Leg. et Senat.] that "the sovereign is exempt from the laws." But he that
is exempt from the law is not bound thereby. Therefore not all are
subject to the law.
On the contrary, The Apostle says (Rm. 13:1): "Let every soul be subject
to the higher powers." But subjection to a power seems to imply
subjection to the laws framed by that power. Therefore all men should be
subject to human law.
I answer that, As stated above (Question , Articles ,2; Article , ad 2), the notion
of law contains two things: first, that it is a rule of human acts;
secondly, that it has coercive power. Wherefore a man may be subject to
law in two ways. First, as the regulated is subject to the regulator:
and, in this way, whoever is subject to a power, is subject to the law
framed by that power. But it may happen in two ways that one is not
subject to a power. In one way, by being altogether free from its
authority: hence the subjects of one city or kingdom are not bound by the
laws of the sovereign of another city or kingdom, since they are not
subject to his authority. In another way, by being under a yet higher
law; thus the subject of a proconsul should be ruled by his command, but
not in those matters in which the subject receives his orders from the
emperor: for in these matters, he is not bound by the mandate of the
lower authority, since he is directed by that of a higher. In this way,
one who is simply subject to a law, may not be a subject thereto in
certain matters, in respect of which he is ruled by a higher law.
Secondly, a man is said to be subject to a law as the coerced is subject
to the coercer. In this way the virtuous and righteous are not subject to
the law, but only the wicked. Because coercion and violence are contrary
to the will: but the will of the good is in harmony with the law, whereas
the will of the wicked is discordant from it. Wherefore in this sense the
good are not subject to the law, but only the wicked.
Reply to Objection 1: This argument is true of subjection by way of coercion:
for, in this way, "the law is not made for the just men": because "they
are a law to themselves," since they "show the work of the law written in
their hearts," as the Apostle says (Rm. 2:14,15). Consequently the law
does not enforce itself upon them as it does on the wicked.
Reply to Objection 2: The law of the Holy Ghost is above all law framed by man:
and therefore spiritual men, in so far as they are led by the law of the
Holy Ghost, are not subject to the law in those matters that are
inconsistent with the guidance of the Holy Ghost. Nevertheless the very
fact that spiritual men are subject to law, is due to the leading of the
Holy Ghost, according to 1 Pt. 2:13: "Be ye subject . . . to every human
creature for God's sake."
Reply to Objection 3: The sovereign is said to be "exempt from the law," as to
its coercive power; since, properly speaking, no man is coerced by
himself, and law has no coercive power save from the authority of the
sovereign. Thus then is the sovereign said to be exempt from the law,
because none is competent to pass sentence on him, if he acts against the
law. Wherefore on Ps. 50:6: "To Thee only have I sinned," a gloss says
that "there is no man who can judge the deeds of a king." But as to the
directive force of law, the sovereign is subject to the law by his own
will, according to the statement (Extra, De Constit. cap. Cum omnes) that
"whatever law a man makes for another, he should keep himself. And a wise
authority [*Dionysius Cato, Dist. de Moribus] says: 'Obey the law that
thou makest thyself.'" Moreover the Lord reproaches those who "say and do
not"; and who "bind heavy burdens and lay them on men's shoulders, but
with a finger of their own they will not move them" (Mt. 23:3,4). Hence,
in the judgment of God, the sovereign is not exempt from the law, as to
its directive force; but he should fulfil it to his own free-will and not
of constraint. Again the sovereign is above the law, in so far as, when
it is expedient, he can change the law, and dispense in it according to
time and place.
Article 6: Whether he who is under a law may act beside the letter of the law?
Objection 1: It seems that he who is subject to a law may not act beside the
letter of the law. For Augustine says (De Vera Relig. 31): "Although men
judge about temporal laws when they make them, yet when once they are
made they must pass judgment not on them, but according to them." But if
anyone disregard the letter of the law, saying that he observes the
intention of the lawgiver, he seems to pass judgment on the law.
Therefore it is not right for one who is under the law to disregard the
letter of the law, in order to observe the intention of the lawgiver.
Objection 2: Further, he alone is competent to interpret the law who can make
the law. But those who are subject to the law cannot make the law.
Therefore they have no right to interpret the intention of the lawgiver,
but should always act according to the letter of the law.
Objection 3: Further, every wise man knows how to explain his intention by
words. But those who framed the laws should be reckoned wise: for Wisdom
says (Prov. 8:15): "By Me kings reign, and lawgivers decree just things."
Therefore we should not judge of the intention of the lawgiver otherwise
than by the words of the law.
On the contrary, Hilary says (De Trin. iv): "The meaning of what is said is according to the motive for saying it: because things are not subject to speech, but speech to things." Therefore we should take account of the motive of the lawgiver, rather than of his very words.
I answer that, As stated above (Article ), every law is directed to the
common weal of men, and derives the force and nature of law accordingly.
Hence the jurist says [*Pandect. Justin. lib. i, ff., tit. 3, De Leg. et
Senat.]: "By no reason of law, or favor of equity, is it allowable for us
to interpret harshly, and render burdensome, those useful measures which
have been enacted for the welfare of man." Now it happens often that the
observance of some point of law conduces to the common weal in the
majority of instances, and yet, in some cases, is very hurtful. Since
then the lawgiver cannot have in view every single case, he shapes the
law according to what happens most frequently, by directing his attention
to the common good. Wherefore if a case arise wherein the observance of
that law would be hurtful to the general welfare, it should not be
observed. For instance, suppose that in a besieged city it be an
established law that the gates of the city are to be kept closed, this is
good for public welfare as a general rule: but, it were to happen that
the enemy are in pursuit of certain citizens, who are defenders of the
city, it would be a great loss to the city, if the gates were not opened
to them: and so in that case the gates ought to be opened, contrary to
the letter of the law, in order to maintain the common weal, which the
lawgiver had in view.
Nevertheless it must be noted, that if the observance of the law
according to the letter does not involve any sudden risk needing instant
remedy, it is not competent for everyone to expound what is useful and
what is not useful to the state: those alone can do this who are in
authority, and who, on account of such like cases, have the power to
dispense from the laws. If, however, the peril be so sudden as not to
allow of the delay involved by referring the matter to authority, the
mere necessity brings with it a dispensation, since necessity knows no
Reply to Objection 1: He who in a case of necessity acts beside the letter of the
law, does not judge the law; but of a particular case in which he sees
that the letter of the law is not to be observed.
Reply to Objection 2: He who follows the intention of the lawgiver, does not
interpret the law simply; but in a case in which it is evident, by reason
of the manifest harm, that the lawgiver intended otherwise. For if it be
a matter of doubt, he must either act according to the letter of the law,
or consult those in power.
Reply to Objection 3: No man is so wise as to be able to take account of every
single case; wherefore he is not able sufficiently to express in words
all those things that are suitable for the end he has in view. And even
if a lawgiver were able to take all the cases into consideration, he
ought not to mention them all, in order to avoid confusion: but should
frame the law according to that which is of most common occurrence.