A. 6. Are Those Subject to the Law Permitted to Act Contrary to the Letter of the Law?
We thus proceed to the first inquiry. It seems that human laws should be framed in particular rather than general terms, for the following reasons:
Obj. 1. The Philosopher says in the Ethics that “things of the legal order consist of everything laws decree about individual matters, and likewise of judicial decisions,”1 which also concern particular matters, since judges hand down decisions on particular cases. Therefore, laws are framed both in general and in particular terms.
Obj. 2. Laws direct human actions, as I have said before.2 But human actions consist of particular things. Therefore, laws should be framed in particular rather than general terms.
Obj. 3. Laws are the rules and measures of human actions, as I have said before.3 But measures should be most certain, as the Metaphysics {60} says.4 Therefore, since nothing about human actions can be so universally certain as not to be wanting in particular cases, it seems that laws need to be framed in particular rather than general terms.
On the contrary, the Jurist says: “Laws need to be framed to suit things that more frequently happen, and laws are not framed to suit things that can happen once in a while.”5
I answer that everything for an end needs to be proportioned to the end. But the end of law is the common good, since “laws should be framed for the common benefit of citizens, not for any private benefit,” as Isidore says in his Etymologies.6 And so human laws need to be proportioned to the common good. But the common good consists of many things. And so laws need to regard many things, both persons, matters, and times. For the political community consists of many persons, and its good is procured by many actions. Nor is it instituted to endure only for a short time but to last for all time through successive generations of citizens, as Augustine says in The City of God.7
Reply Obj. 1. The Philosopher in the Ethics posits three parts of legal justice (i.e., positive law).8 For there are certain prescriptions framed only in general terms, and these are general laws. And regarding such laws, he says that “legal justice indeed does not originally differentiate in particulars but does once established.”9 For example, captives are ransomed at a fixed price.
And there are some laws that are general in one respect and particular in another. And we call such laws privileges, that is, private laws, since they regard particular persons, and yet the power of these laws extends to many matters. And it is regarding these that the Philosopher adds: “And, further, everything laws decree in particular cases.”10
And we call some things legal because general laws are applied to particular cases, not because the applications are laws. For example, judges hand down decisions that we consider legally binding. And it is regarding such that the Philosopher adds: “And judicial decisions.”11
Reply Obj. 2. Something directive needs to direct several things, and so the Philosopher says in the Metaphysics that all the things belonging to a genus are measured by the one of them that primarily belongs to the genus.12 For if there were to be as many rules or measures as things {61} measured or ruled, a rule or measure, which is that one thing enable many things to be known, would cease to be of any use. And so a law would have no usefulness if it were to cover only a single action. For wise persons give individual commands to direct individual actions, but law is a general command, as I have said.13
Reply Obj. 3. “One should not look for the same certainty in all things,” as the Ethics says.14 And so in the case of contingent things like natural events and human affairs, there is sufficient certainty if things are true for the most part, even though they sometimes fail to happen in relatively few cases.
We thus proceed to the second inquiry. It seems that it belongs to human laws to prohibit all vices, for the following reasons:
Obj. 1. Isidore says in his Etymologies that “laws have been established in order to curb human audacity out of fear of them.”15 But human audacity would not be sufficiently curbed unless laws were to prohibit everything evil. Therefore, human laws ought to prohibit everything evil.
Obj. 2. The aim of lawmakers is to make citizens virtuous. But citizens can be virtuous only if they are curbed of all vices. Therefore, it belongs to human law to curb all vices.
Obj. 3. Human law is derived from natural law, as I have said before.16 But all vices are contrary to the natural law. Therefore, human law ought to prohibit all vices.
On the contrary, Augustine says in his work On Free Choice: “It seems to me that laws written for the people’s governance rightly permit such things, and that God’s providence punishes them.”17 But God’s providence punishes only vices. Therefore, human laws, by not prohibiting some vices, rightly permit them.
I answer that laws are established as certain rules or measures of human actions, as I have already said.18 But measures should be homogeneous with what they measure, as the Metaphysics says,19 since different kinds of things are measured by different kinds of measures. And so laws need also to be imposed on human beings according to their condition, since laws ought to be “possible regarding both nature and a country’s customs,” as {62} Isidore says.20 And the power or ability to act results from internal habituation or disposition, since the virtuous and those without virtuous habits do not have the same power to act. Just so, children and adults do not have the same power to act, and so the law is not the same for children and adults. For example, many things are permitted children that the law punishes in adults, or even that public opinion censures. And likewise, many things are tolerated in persons of imperfect virtue that would not be tolerated in virtuous persons.
And human law is established for the collectivity of human beings, most of whom have imperfect virtue. And so human law does not prohibit every kind of vice, from which the virtuous abstain. Rather, human law prohibits only the more serious kinds of vice, from which most persons can abstain, and especially those vices that inflict harm on others, without the prohibition of which human society could not be preserved. For example, human laws prohibit murders, thefts, and the like.
Reply Obj. 1. Audacity seems to belong to attacks on others. And so audacity belongs chiefly to the sins that inflict injury on neighbors, and human law prohibits such sins, as I have said.21
Reply Obj. 2. Human laws aim to induce human beings to virtue little by little, not all at once. And so the laws do not immediately impose on the many imperfect citizens what already belongs to virtuous citizens, namely, that citizens abstain from everything evil. Otherwise, the imperfect citizens, unable to endure those commands, would erupt into worse evil things. Just so, Prov. 30:33 says: “Those who blow their nose too strongly, emit blood.” And Mt. 9:17 says: “If one should put new wine,” that is, the precepts of a perfect life, “into old wineskins,” that is, imperfect human beings, “the wineskins burst, and the wine is spilled,” that is, the precepts are despised, and human beings burst into worse evil things out of contempt.
Reply Obj. 3. The natural law is our participation in the eternal law, but human law falls short of the eternal law. For Augustine says in his work On Free Choice: “The laws framed for the governance of political communities permit and leave unpunished many things that God’s providence punishes. Nor, indeed, should we criticize what the laws do do because of the fact that they do not do everything.”22 And so also human laws cannot prohibit everything that the natural law prohibits.
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We thus proceed to the third article. It seems that human laws do not command every virtuous action, for the following reasons:
Obj. 1. Vicious actions are the contrary of virtuous actions. But human laws do not prohibit all vices, as I have said.23 Therefore, human laws also do not command every virtuous action.
Obj. 2. Virtuous actions come from virtue. But virtue is the aim of laws, and so what comes from virtue cannot fall within legal precepts. Therefore, human laws do not command every virtuous action.
Obj. 3. Laws are ordered to the common good, as I have said.24 But some virtuous actions are ordered to private, not the common, good. Therefore, laws do not command every virtuous action.
On the contrary, the Philosopher says in the Ethics: “Laws command courageous and moderate and kind behavior, and likewise regarding other virtues and vices, commanding the former and forbidding the latter.”25
I answer that we distinguish specific virtues by their objects, as is evident from what I have said before.26 But we can relate all the objects of virtues either to the private good of a person or to the common good of the people. For example, one can perform courageous acts either to preserve the political community or to uphold the rights of one’s friends, and similarly with other virtuous acts. And laws are ordered to the common good, as I have said.27 And so there are no virtues regarding whose actions laws could not command. But laws do not command regarding every action of every virtue. Rather, they only command things that can be ordered to the common good, whether immediately, as when things are done directly for that good, or mediately, as when lawmakers ordain things belonging to good training, which trains citizens to preserve the common good of justice and peace.
Reply Obj. 1. Human laws do not by strict command prohibit every vicious action, just as they do not command every virtuous action. But human laws prohibit some acts of particular vices, just as they command some acts of particular virtues.
Reply Obj. 2. We call actions virtuous in two ways. We call them virtuous in one way because persons perform virtuous deeds. For example, just actions consist of doing just things, brave actions consist of doing brave things. And human laws command virtuous acts in this way. We call {64} actions virtuous in a second way because persons perform virtuous deeds as virtuous persons do. And the actions of virtuous persons always come from virtue and do not fall within legal precepts, although lawmakers aim to induce such behavior.
Reply Obj. 3. There are no virtues whose actions cannot be ordered to the common good, either directly or indirectly, as I have said.28
We thus proceed to the fourth article. It seems that human law does not impose obligation on human beings in the court of conscience, for the following reasons:
Obj. 1. Lower powers cannot impose laws on the courts of higher powers. But the power of human beings, which establishes human laws, is inferior to God’s power. Therefore, human law cannot impose laws on the court of God, that is, the court of conscience.
Obj. 2. The judgment of conscience depends most of all on God’s commandments. But human laws sometimes nullify God’s commandments, as Mt. 15:6 says: “You have nullified God’s commandment for the sake of your traditions.” Therefore, human laws do not impose obligation regarding conscience.
Obj. 3. Human laws often bring defamation and injury to human beings. Just so, Is. 10:1–2 says: “Woe to those who establish wicked laws and inscribe injustices when they write laws, in order to oppress the poor in the courts and do violence in cases involving the lowly of my people.” But all are permitted to avoid oppression and violence. Therefore, human laws do not impose obligation on human beings regarding conscience.
On the contrary, 1 Pet. 2:19 says: “It is a blessing if one, suffering unjustly, endures sorrows for the sake of conscience.”
I answer that laws established by human beings are either just or unjust. If just, they indeed have obligatory force in the court of conscience from the eternal law, from which they are derived. Just so, Prov. 8:15 says: “Kings rule through me, and lawmakers decree justice.” And we call laws just from three perspectives: (1) from their end, namely, when they are ordained for the common good; (2) from their authority, namely, when the laws enacted do not surpass the power of the lawmakers; (3) from their form, namely, when they impose proportionately equal burdens on citizens for the common good.
{65} And laws are unjust in two ways. They are unjust in one way by being contrary to the human good in the foregoing respects. Laws may be unjust regarding their end, as when authorities impose burdensome laws on citizens to satisfy the authorities’ covetousness or vainglory rather than to benefit the community. Or laws may be unjust regarding the authority to make them, as when persons enact laws that exceed the power committed to them. Or laws may be unjust regarding their form, as when burdens, even if ordered to the common good, are disproportionately imposed on the people. And such laws are acts of violence rather than laws, since “unjust laws do not seem to be laws,” as Augustine says in his work On Free Choice.29 And so such laws do not oblige in the court of conscience, except perhaps to avoid scandal or civil unrest, to avoid which human beings ought to yield even their rights. Just so, Mt. 5:40–1 says: “If someone has taken your coat from you, give the person your cloak as well, and if someone has forced you to go one mile, go with the person another two.”
Laws can be unjust in a second way by being contrary to the divine good (e.g., the laws of tyrants inducing their subjects to worship idols or to do anything else contrary to the divine law). And it is never permissible to obey such laws, since “we ought to obey God rather than human beings,” as Acts 5:29 says.
Reply Obj. 1. The Apostle says in Rom. 13:1–2: “All human power is from God, and so those who resist the power” in matters belonging to its scope “resist God’s ordinance.” And so such persons become guilty in respect to their conscience.
Reply Obj. 2. The argument of this objection is valid about human laws ordained contrary to God’s commandments. And the scope of human power does not extend to such laws. And so one should not obey human laws in such matters.
Reply Obj. 3. The argument of this objection is valid about laws that inflict unjust burdens on citizens, and also the scope of power granted by God does not extend to such laws. And so human beings are not obliged in such cases to obey the laws if it be possible to resist them without giving scandal or causing greater harm.
We thus proceed to the fifth article. It seems that not everyone is subject to the law, for the following reasons:
{66} Obj. 1. Only those for whom laws are established are subject to the law. But the Apostle says in 1 Tim. 1:9 that “laws are not established for the righteous.” Therefore, the righteous are not subject to human law.
Obj. 2. Pope Urban says, and the Decretum maintains: “No reason demands that those guided by private law be constrained by public law.”30 But all spiritual persons, who are sons and daughters of God, are guided by the private law of the Holy Spirit. Just so, Rom. 8:14 says: “Those moved by the Spirit of God are God’s children.” Therefore, not everyone is subject to human law.
Obj. 3. The Jurist says that “rulers are exempt from the laws.”31 But those exempt from the law are not subject to it. Therefore, not everyone is subject to the law.
On the contrary, the Apostle says in Rom. 13:1: “Let every soul be subject to higher powers.” But any persons not subject to the law that higher powers establish seem not to be subject to the powers. Therefore, all persons should be subject to human law.
I answer that, as is evident from what I have said before,32 two things belong to the nature of law: first, indeed, that law be the rule of human actions; second, that law have coercive power. Therefore, human beings can be subject to the law in two ways. They can be subject to law in one way as the ones regulated by the rule. And in this regard, all those subject to a power are subject to the laws the power establishes. But one may not be subject to a power in two ways. One may not be subject to a power in one way because one is absolutely free from subjection to the power. And so those belonging to one political community or kingdom are not subject to the laws of the ruler of another political community or kingdom, since such persons are not subject to that ruler’s dominion. One may not be subject to a power in a second way insofar as one is ruled by a higher law. For example, a person subject to a proconsul ought to be ruled by the proconsul’s commands but not regarding matters from which the emperor exempted the person. For regarding the latter, a person directed by a higher command is not bound by the command of an inferior power. And so those absolutely subject to the law may not be bound by the law regarding matters about which they are ruled by a higher law.
We say in a second way that some are subject to the law as the coerced to the power coercing. And in this respect, only the wicked, not the virtuous and righteous, are subject to the law. For what is coerced and forced is contrary to the will. But the will of the virtuous is in accord, and the {67} will of the wicked in discord, with the law. And so only the wicked, not the virtuous, are subject to the law in this respect.
Reply Obj. 1. The argument of this objection is valid about being subject to the law by way of coercion. For then “the law is not established for the righteous,” since “they are a law unto themselves” because “they manifest what the law requires written in their hearts,” as the Apostle says in Rom. 2:14–5. And so the law does not have the coercive force in their regard that the law has regarding the wicked.
Reply Obj. 2. The law of the Holy Spirit is superior to every human law. And so spiritual persons, insofar as they are guided by the law of the Holy Spirit, are not subject to human law regarding things contrary to the Holy Spirit’s guidance. But it belongs to the Holy Spirit’s guidance that spiritual persons be subject to human laws, as 1 Pet. 2:13 says: “Be subject to every human creature for God’s sake.”
Reply Obj. 3. We say that rulers are exempt from the law regarding its coercive force, since, properly speaking, one is not coerced by oneself, and law has coercive force only by the power of a ruler. Therefore, we say that rulers are exempt from the law because no one can pass sentence on them if they act contrary to the law. And so a gloss on Ps. 51:4, “I have sinned against you alone,” etc., says that “there is no one who is competent to judge the deeds of a king.”33
But regarding the directive power of law, rulers are subject to the law by their own will. Just so, the Decretals say: “Rulers should follow the law that they decree for others. And the authority of a wise man says: ‘Obey the law you yourself decreed.’34”35 Also, the Lord reproves “those who preach and do not practice” and “those who impose heavy burdens on others but do not themselves want to lift a finger to move them,” as Mt. 23:3–4 relates. And so, regarding God’s judgment, rulers are not exempt from the law regarding its directive power, and they should willingly, not by coercion, fulfill the law.
Also, rulers are above the law insofar as they can, if it be expedient, alter the law and dispense from it at certain times and places.
We thus proceed to the sixth article. It seems that those subject to the law are not permitted to act contrary to the letter of the law, for the following reasons:
{68} Obj. 1. Augustine says in his work On True Religion: “Although human beings judge about temporal laws when they decree them, the subjects will not be permitted to judge about them after they have been decreed and established. Rather, subjects should judge according to the laws.”36 But if one disregards the letter of the law, claiming that one preserves the lawmaker’s aim, such a one seems to judge about the law. Therefore, those subject to the law are not permitted to disregard the letter of the law in order to preserve the lawmaker’s aim.
Obj. 2. Only those who frame laws are competent to interpret them. But human beings subject to the law are not competent to frame them. Therefore, such human beings are not competent to interpret them. Rather, such human beings ought always to act according to the letter of the law.
Obj. 3. Every wise person knows how to explain the person’s aim in words. But we ought to esteem wise those who frame laws, since wisdom says in Prov. 8:15: “Kings rule through me, and the framers of laws decree justice.” Therefore, we should judge about the lawmaker’s aim only by the words of the law.
On the contrary, Hilary says in his work On the Trinity: “We should understand the meaning of statements from the reasons for making them, since speech ought to be governed by things, not things by speech.”37 Therefore, we ought to pay more attention to the lawmaker’s aim than to the very words of the law.
I answer that, as I have said before,38 every law is ordered to the commonweal and has the force and nature of law insofar as it is so ordered. But a law has no power to bind morally insofar as it falls short being so ordered. And so the Jurist says: “No aspect of law or favor of equity allows us to render severe by a harsher interpretation contrary to the benefit of human beings things wholesomely introduced for their benefit.”39 And it often happens that observing the law is generally beneficial to the commonweal but most harmful to it in particular cases. Therefore, since lawmakers cannot envision all particular cases, they direct their aim at the common benefit and establish laws regarding things that generally happen. And so one should not observe a law if a case happens to arise in which observance of the law would be harmful to the commonweal. For example, if a law should decree that the gates of a besieged city remain shut, this is for the most part for the benefit of the commonweal. But if a situation should arise in which enemy soldiers are pursuing some citizens defending the city, it would be most harmful to the community if the gates {69} were not to be opened to admit the defenders. And so, contrary to the letter of the law, the city gates should be opened in such a situation in order to preserve the commonweal, which is the lawmaker’s intention.
And yet we should note that not everyone is competent to interpret what may be useful or not useful for the community if observance of the letter of the law does not risk a sudden danger that needs to be immediately resolved. Rather, only rulers are competent to make such interpretations, and they have authority in such cases to dispense citizens from laws. On the other hand, if there be a sudden danger that does not allow enough time to be able to have recourse to a superior, the very necessity includes an implicit dispensation, since necessity is not subject to the law.
Reply Obj. 1. Those who in cases of necessity act contrary to the letter of the law do not judge about the law itself. Rather, they judge about particular cases, in which they perceive that they should not observe the letter of the law.
Reply Obj. 2. Those who follow the lawmaker’s aim do not, absolutely speaking, interpret the law. Rather, they interpret the law regarding particular cases in which evidence of harm makes it clear that the lawmaker intended otherwise than the letter of the law. For if they have any doubt, they ought to act according to the letter of the law or consult superiors.
Reply Obj. 3. No human being’s wisdom is so great as to be able to contemplate every single case. And so one cannot adequately express in words the things suitable for an intended end. And if a lawmaker could contemplate all cases, the lawmaker, to avoid confusing citizens, need not express all of them. Rather, the lawmaker should establish laws regarding what generally happens.
1EthicsV, 7 (1134b23–4).
2ST I–II, Q. 90, AA. 1, 2.
3Ibid.
4Metaphysics X, 1 (1053a1–8).
5Digest I, title 3, laws 3, 4.
6Etymologies II, 10 (PL 82:131); V, 21 (PL 82:203).
7The City of God XXII, 6 (PL 41:759).
8EthicsV, 7 (1134b20–4).
9Ibid., 7 (1134b20–1).
10Ibid., 7 (1134b23).
11Ibid., 7 (1134b24).
12Metaphysics X, 1 (1052b18–22).
13ST I–II, Q. 92, A. 2, obj. 1 (citing Justinian).
14Aristotle, Ethics I, 3 (1094b13–22).
15EtymologiesV, 20 (PL 82:202).
16ST I–II, Q. 95, A. 2.
17On Free Choice I, 5, n. 13 (PL 32:1228).
18ST I–II, Q. 90, AA. 1, 2.
19Metaphysics X, 1 (1053a24–30).
20Etymologies II, 10 (PL 82:131); V, 21 (PL 82:203).
21In the body of the article.
22On Free Choice I, 5, n. 13 (PL 32:1228).
23ST I–II, Q. 96, A. 2.
24ST I–II, Q. 90, A. 2.
25EthicsV, 1 (1129b19–25).
26ST I–II: Q. 54, A. 2; Q. 60, A. 1; Q. 62, A. 2.
27ST I–II, Q. 90, A. 2.
28In the body of the article.
29On Free Choice I, 5, n. 11 (PL 32:1227).
30Gratian, Decretum II, cause 19, q. 2, c. 2.
31Digest I, title 3, law 31.
32ST I–II, Q. 90: AA. 1, 2; A. 3, ad 2.
33Glossa ordinaria, on Ps. 51:4 (PL 113:919); Peter Lombard, Glossa, on Ps. 51:4 (PL 191:486).
34Denis Cato, Concise Opinions and Distichs on Morals, preliminary opinion 53.
35Gregory IX, Decretals I, title 2, c. 6.
36On True Religion 31 (PL 34:148).
37On the Trinity IV, n. 14 (PL 10:107).
38ST I–II, Q. 96, A. 4.
39Digest I, title 3, law 25.