A. 4. Does Isidore Appropriately Designate Kinds of Human Law?
We thus proceed to the first inquiry. It seems that it was not beneficial that human beings establish laws, for the following reasons:
Obj. 1. The purpose of every law is to make human beings good, as I have said before.1 But admonitions induce human beings willingly to live rightly more than laws do coercively. Therefore, there was no need to establish laws.
Obj. 2. The Philosopher says in the Ethics: “Human beings have recourse to judges as justice-in-the-flesh.”2 But justice-in-the-flesh is better than the inanimate justice contained in laws. Therefore, it would have been better to commit the execution of justice to the decisions of judges than to establish laws to supplement their decisions.
Obj. 3. Every law directs human actions, as is evident from what I have said before.3 But since human acts regard particular things, which are potentially infinite, only the wise, who regard particulars, can sufficiently contemplate the things that belong to the direction of human acts. Therefore, it would have been better that the decisions of wise persons direct human actions than that any established law should. Therefore, there was no need to establish human laws.
On the contrary, Isidore says in his Etymologies: “Laws were established so that fear of them curb human audacity, and that innocence be safe in {52} the midst of the wicked, and that the fear of punishment restrain the ability of the wicked to inflict harm.”4 But the human race most needs such things. Therefore, it was necessary to establish human laws.
I answer that, as is evident from what I have said before,5 human beings by nature have a capacity for virtue, but they need to arrive at the very perfection of virtue by some training.6 Just so, we perceive that industriousness helps them regarding their necessities (e.g., food and clothing). And nature gives them the sources to provide these necessities, namely, reason and hands, not the full complement of the necessities that nature gives other animals, for whom nature has sufficiently provided covering and food.
But human beings are not readily self-sufficient in regard to this training, since the perfection of virtue consists chiefly of human beings’ restraint from excessive pleasures, toward which they are most prone. And this is especially true of youths, for whom training is more efficacious. And so human beings receive such training, whereby they arrive at virtue, from others. And indeed regarding youths prone to virtuous acts by good natural disposition or habituation (or, rather, a gift from God), paternal training, which consists of admonitions, suffices. But some persons are wicked and prone to vices, and cannot be easily persuaded by words. Therefore, force and fear were needed to restrain them from evil. Consequently, at least desisting from evil deeds, they would both leave others in peace and be themselves at length brought by such habituation to do voluntarily what they hitherto did out of fear, and so become virtuous. But such training, which compels by fear of punishment, is the training administered by laws. And so it was necessary to establish laws in order that human beings live in peace and have virtue. For, as the Philosopher says in the Politics: “As human beings, if perfect in virtue, are the best of animals, so are they, if cut off from law and justice, the worst of all animals.”7 This is because human beings, unlike other animals, have the defensive armor of reason to complement their disordered desires and beastly rages.
Reply Obj. 1. Voluntary admonitions induce well-disposed human beings to virtue better than compulsion does, but there are some who are not induced to virtue unless they be compelled.
{53} Reply Obj. 2. The Philosopher says in the Rhetoric: “It is better that law direct all things than that they be left to the decisions of judges.”8 And this is so for three reasons. First, indeed, it is easier to find the few wise persons sufficient to establish right laws than the many wise persons necessary to judge rightly about particular matters. Second, lawmakers consider over a long time what to impose by law, but judges reach decisions about particular deeds as cases spontaneously arise. And human beings can more easily perceive what is right by considering many instances than they can by considering only one deed. Third, lawmakers decide in general and about future events, but presiding judges decide current cases, and love or hatred or covetousness affects such decisions. And so their decisions are perverted.
Therefore, since few embody the justice required of a judge, and since that justice can be perverted, it was necessary that law determine, whenever possible, what judges should decide, and commit very few matters to the decisions of human beings.
Reply Obj. 3. “We need to commit to judges” certain particular details, which laws cannot encompass, as the Philosopher also says in the Rhetoric,9 such as, “whether alleged deeds have or have not been done,” and the like.
We thus proceed to the second inquiry. It seems that not every human law is derived from the natural law, for the following reasons:
Obj. 1. The Philosopher says in the Ethics that “it does not at all matter originally whether one effects legal justice in this or that way.”10 But regarding obligations to which the natural law gives rise, it does matter whether one effects justice in this or that way. Therefore, not all the things established by human laws are derived from the natural law.
Obj. 2. Positive law differs from natural law, as Isidore makes clear in his Etymologies,11 and the Philosopher makes clear in the Ethics.12 But things derived as conclusions from the general principles of the natural law belong to the natural law, as I have said before.13 Therefore, things proper to human law are not derived from the natural law.
Obj. 3. The natural law is the same for all persons. For the Philosopher says in the Ethics that “natural justice has the same force everywhere.”14 {54} Therefore, if human laws were to be derived from the natural law, human laws would likewise be the same for all persons. But such a conclusion is evidently false.
Obj. 4. We can assign reasons for things derived from the natural law. But “one cannot assign reasons for all the statutes rulers have decreed,” as the Jurist says.15 Therefore, some human laws are not derived from the natural law.
On the contrary, Cicero says in his Rhetoric: “Fear and reverence for the laws have prescribed things derived from nature and approved by custom.”16
I answer that Augustine says in his work On Free Choice: “Unjust laws do not seem to be laws.”17 And so laws have binding force insofar as they have justice. And we say regarding human affairs that things are just because they are right according to the rule of reason. But the primary rule of reason is the natural law, as is evident from what I have said before.18 And so every human law has as much of the nature of law as it is derived from the natural law. And a human law diverging in any way from the natural law will be a perversion of law and no longer a law.
But we should note that we can derive things from the natural law in two ways: in one way as conclusions from its first principles; in a second way as specifications of certain general principles. Indeed, the first way is like the way in which we draw conclusions from first principles in theoretical sciences. And the second way is like the way that craftsmen in the course of exercising their skill adapt general forms to specific things. For example, a builder needs to adapt the general form of a house to this or that shape of a house. Therefore, some things are derived from general principles of the natural law as conclusions. For example, one can derive the prohibition against homicide from the general principle that one should do no evil to anyone. And some things are derived from general principles of the natural law as specifications. For example, the natural law ordains that criminals should be punished, but that criminals be punished in this or that way is a specification of the natural law.
Therefore, human laws are derived from the natural law in both ways. Things derived from the natural law in the first way are not only contained in human laws as established by those laws, but they also have part of their binding force from the natural law. But things derived from the natural law in the second way have all of their binding force from human law.
{55} Reply Obj. 1. The Philosopher is speaking about the things laws decreed by determining or specifying one of the precepts of the natural law.
Reply Obj. 2. The argument of this objection is valid regarding things derived from the natural law as conclusions.
Reply Obj. 3. The general principles of the natural law cannot be applied to all peoples in the same way because of the great variety of human affairs. And so there are different positive laws for different peoples.
Reply Obj. 4. We should understand the Jurist’s statement to regard things decreed by rulers about particular specifications of the natural law. And the judgments of experienced and prudent persons are indeed related to such specifications as certain principles underlying their judgments, namely, inasmuch as they immediately perceive what is the most fitting particular specification. And so the Philosopher says in the Ethics that “we should” in such matters “attend to the intuitive statements and opinions of the experienced and the mature or prudent no less than to their arguments.”19
We thus proceed to the third inquiry. Isidore says: “Laws should be virtuous, just, possible by nature, in accord with a country’s customs, suitable to time and place, necessary, useful, so clear that they contain nothing obscure to cause deception, and decreed for the common benefit of all citizens, not the private benefit of some.”20 It seems that he in this way inappropriately describes the characteristics of positive law, for the following reasons:
Obj. 1. Isidore previously had explained the characteristics of law in terms of three conditions: “Laws should be everything constituted by reason if befitting religion, suitable for training, and useful for the common-weal.”21 Therefore, he later unnecessarily added further conditions of law.
Obj. 2. Justice is a virtue, as Cicero says in his work On Duties.22 Therefore, Isidore needlessly adds “just” after he mentioned “virtuous.”
Obj. 3. Isidore contradistinguished written laws from customs.23 Therefore, he ought not to have posited in the definition of law that laws be “in accord with a country’s customs.”
Obj. 4. We call things necessary in two ways. Things that cannot be otherwise, are absolutely necessary, and such necessary things are not {56} subject to human judgment. And so such necessity does not belong to human law. Other things are necessary for ends, and such necessity is the same as usefulness. Therefore, Isidore needlessly posits both “necessary” and “useful” as characteristics of law.
On the contrary, there stands the authority of Isidore himself.
I answer that we need to determine the form of any means in relation to the end desired. For example, the form of a saw is such as to be suitable for cutting wood, as the Physics makes clear.24 Likewise, everything ruled and measured needs to have a form apportioned to its rule or measure. And human law has both, since it is both something ordered to an end and a rule or measure ruled or measured by a higher measure. And the higher measure is indeed of two kinds, namely, the divine law and the natural law, as is evident from what I have said before.25 But the end of human law is the benefit of human beings, as the Jurist also says.26 And so indeed Isidore first posited three things as conditions of human law, namely, that human law benefit religion (i.e., as human law is properly related to the divine law), that human law be suitable for training (i.e., as human law is properly related to the natural law), and that human law be useful for the commonweal (i.e., as human law is properly related to human usefulness).
And all the other conditions that he later mentions are traceable to these three things. For what he calls virtuous is a reference to what befits religion. And by adding that human laws be “just, possible by nature, in accord with a country’s customs, suitable to the place and time,” he indicates that the laws should be suitable for training. For we indeed first consider human training in relation to the order of reason, which order is implied in what he calls just. Second, we consider human training in relation to the capacity of human agents. For training ought to be suitable to each according to the capacity of each, including natural capacity. (For example, one should not impose the same training on children that one imposes on adults.) And training ought to be suitable according to human customs, since human beings do not live in society by themselves, not manifesting their behavior to others. Third, in relation to requisite circumstances, he says: “suitable to the place and time.”
And the additional words, “necessary,” “useful,” and so forth, refer to what facilitates the commonweal. For example, necessity refers to removing evils, usefulness to acquiring benefits, and clarification to preventing harm that could arise from the laws themselves.
{57} And he indicates that human laws are ordered to the common good, as I have previously affirmed,27 in the last part of the definition.
Reply Objs. 1–4. The answer makes clear the replies to the objections.
We thus proceed to the fourth inquiry. It seems that Isidore does not appropriately designate kinds of human law, for the following reasons:
Obj. 1. Isidore includes in human law “the common law of peoples,” which he so names, as he says, because “almost every people possesses it.”29 But “natural law is common to all peoples,” as he himself says.30 Therefore, “the common law of peoples is contained in the natural law rather than positive human law.
Obj. 2. Things that have the same binding force seem to differ only materially, not formally. But “statutes, plebiscites, decrees of the senate,” and the other like things Isidore describes31 all have the same binding force. Therefore, they seem to differ only materially. But artisans should pay no attention to such differences, since there can be an endless number of them. Therefore, Isidore inappropriately introduces such divisions.
Obj. 3. As there are rulers and priests and soldiers in political communities, so human beings also have other public duties. Therefore, as Isidore posits “military law” and “public law” (which govern priests and magistrates),32 so he should also posit other laws pertaining to other public duties.
Obj. 4. We should ignore accidental things. But it is accidental to laws whether they are framed by this or that human being. Therefore, Isidore inappropriately posits a division of laws by the names of their framers,33 namely, that one is called the Cornelian law, another the Falcidian law, and so forth.
On the contrary, the authority of Isidore suffices.
I answer that we can intrinsically distinguish each thing by what belongs to its nature. For example, the nature of animal includes a soul that is rational or nonrational. And so we properly and intrinsically distinguish animals by whether they are rational or irrational, and not by whether they are black or white, which are characteristics altogether outside the nature of animals.
And many characteristics belong to the nature of human laws, and we can properly and intrinsically distinguish human laws by any of those {58} things. For example, it first of all belongs to the nature of human laws that they be derived from the natural law, as is evident from what I have said before.34 And we in this respect divide positive laws into the common law of peoples and the laws of particular commonwealths by the two ways in which things may be derived from the natural law, as I have said before.35 For precepts derived from the natural law as conclusions from its general principles belong to the common law of peoples (e.g., just buying and selling, and the like, without which human beings cannot live sociably with one another). And living sociably with others belongs to the natural law, since human beings are by nature social animals, as the Politics proves.36 But precepts derived from the natural law by way of particular specifications belong to the laws of particular commonwealths, whereby each commonwealth specifies things suitable for itself.
Second, it belongs to the nature of human laws that they be ordered to the common good of a political community. And we can in this respect distinguish human laws by the different kinds of persons who perform particular tasks for the common good (e.g., priests, who pray to God for the people; rulers, who govern the people; soldiers, who fight for the safety of the people). And so special laws are adapted for such persons.
Third, it belongs to the nature of human laws that they be established by those who govern the political community, as I have said before.37 And we in this respect distinguish human laws by the different forms of governing political communities. And as the Philosopher says in the Politics,38 one of these forms is monarchy (i.e., rule by one person). And we understand the laws of monarchical regimes as royal decrees. And aristocracy (i.e., rule by the best persons or aristocrats) is another form of government. And we understand the laws of aristocratic regimes as the authoritative legal opinions of the wise, and also as the decrees of the senate. And oligarchy (i.e., rule by a few rich and powerful persons) is another form of government. And we understand the laws of oligarchical regimes as magisterial law, also called law by dignitaries. And another form of government is by the people, which form we call democracy. And we understand the laws of democratic regimes as laws by the people. (Tyranny is another form of government, an altogether corrupt form, and so we do not understand the laws of tyrannical regimes as any law.) There is also a form of government that is a mixture of the good forms, and this mixed form of government is the best. And we {59} understand the laws of such regimes as law “prescribed by elders and the people,” as Isidore says.39
Fourth, it belongs to the nature of human laws that they direct human actions. And we in this respect distinguish laws, which we sometimes designate by their authors, by the laws’ different subject matter. For example, we distinguish the Julian Law on adultery,40 the Cornelian Law on assas-sination,41 and the like, because of their subject matter, not because of their authors.
Reply Obj. 1. The common law of peoples is indeed natural for human beings in one respect, insofar as it is rational, since it is derived from the natural law as conclusions not very remote from general principles of the natural law. And so human beings easily agree about such matters. But we distinguish the common law of peoples from the natural law, especially from what is common to all animals.
Reply Objs. 2–4. The replies to these objections are evident from what I have said.42
1ST I–II, Q. 92, A. 1.
2EthicsV, 4 (1132a22).
3ST I–II, Q. 90, AA. 1, 2.
4EtymologiesV, 20 (PL 82:202).
5ST I–II: Q. 63, A. 1; Q. 94, A. 3.
6Thomas generally uses the word disciplina to mean instruction. But the instruction at issue here is practical in the fullest sense, with coercion the punishment for noncompliance. Therefore, we translate disciplina in this and like contexts as “training.”
7Politics I, 1 (1253a31–3).
8Rhetoric I, 1 (1354a31–4).
9Ibid., (1354b13).
10EthicsV, 7 (1134b20).
11EtymologiesV, 4 (PL 82:199).
12EthicsV, 7 (1134b18–9).
13ST I–II, Q. 94, A. 4.
14EthicsV, 7 (1134b19–20).
15Digest I, title 3, law 20.
16Rhetoric II, 53.
17On Free Choice I, 5, n. 11 (PL 32:1227).
18ST I–II, Q. 91, A. 2, ad 2.
19Ethics VI, 11 (1143b11–13).
20Etymologies V, 21 (PL 82:203).
21Ibid., 3 (PL 82:199).
22On Duties I, 7
23Etymologies II, 10 (PL 82:131); V, 3 (PL 82:199).
24Aristotle, Physics II, 9 (200a10–3, b5–9).
25ST I–II, Q. 95, A. 1; ST I–II, Q. 93, A. 3.
26Digest I, title 3, law 25.
27ST I–II, Q. 90, A. 2.
28EtymologiesV, 4 (PL 82:199ff.).
29Ibid., 6 (PL 82:200).
30Ibid., 4 (PL 82:199).
31Ibid., 9 (PL 82:200).
32Ibid., 7 and 8 (PL 82:200).
33Ibid., 15 (PL 82:201).
34ST I–II, Q. 95, A. 2.
35Ibid.
36Aristotle, Politics I, 1 (1253a2–3).
37ST I–II, Q. 90, A. 3.
38Politics III, 7 (1279a23—b10).
39Etymologies II, 10 (Pl 82:130); V, 10 (PL 82:200).
40Justinian, Digest XLVIII, title 5.
41Ibid., title 8.
42In the body of the article.