ST I-II, QQ. 98–108: Note
We thus proceed to the first inquiry. It seems that human law should be revised in no way, for the following reasons:
Obj. 1. Human law is derived from the natural law, as I have said before.1 But the natural law remains immutable. Therefore, human law ought to remain immutable.
Obj. 2. Measures ought to be most permanent, as the Philosopher says {70} in the Ethics.2 But human law is the measure of human actions, as I have said before.3 Therefore, human law ought to remain without change.
Obj. 3. It belongs to the nature of law to be just and upright, as I have said before.4 But things once upright are always upright. Therefore, things once law ought always to be law.
On the contrary, Augustine says in his work On Free Choice: “Temporal law, although just, can be justly revised over time.”5
I answer that, as I have said before,6 human law is a dictate of reason directing human actions. And so there can be two reasons why laws may be rightly revised: one, indeed, regarding reason; the second regarding human beings, whose actions laws regulate. One reason indeed regards reason, since it seems to be natural for reason to advance step-by-step from the imperfect to the perfect. And so we perceive, regarding theoretical sciences, that the first philosophers transmitted imperfect doctrines that later philosophers corrected. So also is this the case in practical matters. For the first lawmakers, who strove to discover things useful for the human community but were unable of themselves to consider everything, instituted imperfect laws that were deficient in many respects. And later lawmakers revised those laws, establishing laws that could fail to serve the commonweal in fewer cases.
And regarding human beings, whose actions laws regulate, laws can be rightly revised to suit the changed conditions of human beings, and different things are expedient for human beings according to their different circumstances. Just so, Augustine in his work On Free Choice poses this example:
If a people should be well-tempered and serious and most diligently mindful of the commonweal, a law is rightly framed that permits such a people to choose magistrates to administer the commonwealth. Then, if the same people, corrupted over time, sell their votes and entrust their governance to scoundrels and criminals, the power to bestow offices is rightly taken away from such a people, and the power to bestow the offices falls to the choice of a few good persons.7
Reply Obj. 1. The natural law is a participation in the eternal law, as I have said before,8 and so the natural law remains immutable. And the natural law has this immutability from the immutability and perfection of {71} the divine reason that establishes human nature. But human reason is mutable and imperfect.
And besides, the natural law consists of universal precepts that always abide, while laws established by human beings consist of particular precepts that regard different situations that arise.
Reply Obj. 2. Measures ought to be as permanent as possible. But there cannot be anything altogether immutably permanent in mutable things. And so human laws cannot be altogether immutable.
Reply Obj. 3. We predicate upright of material things in an absolute sense, and so they stay upright as far as it is in their power. But we speak of the rectitude of laws in relation to the commonweal, to which the same things are not always duly proportionate, as I have said before.9 And so such rectitude changes.
We thus proceed to the second article. It seems that human laws should always be revised for something better, for the following reasons:
Obj. 1. Human reason devises human laws, just as it devises human skills. But prior rules regarding other skills are modified for better rules. Therefore, we should also do the same regarding human laws.
Obj. 2. We can provide for the future from things of the past. But many unsuitable things would result if human laws were not revised by adding better provisions, since the laws of antiquity were unsophisticated in many respects. Therefore, it seems that laws should be revised as often as something better presents itself to be made law.
Obj. 3. Human laws are framed for the particular actions of human beings. But regarding such actions, we can gain complete knowledge only by experience, which “takes time,” as the Ethics says.10 Therefore, it seems that better things can occur over time and should be enacted as laws.
On the contrary, the Decretum says: “It is foolish and rather detestably shameful to allow the traditions of our forefathers to be modified.”11
I answer that, as I have said,12 human laws are revised insofar as their revision serves the commonweal. But the very revision of laws, considered as such, involves some detriment to the commonweal. For custom avails very much for the observance of laws, since we regard things done contrary to common custom, even if those things be in themselves slight, as rather serious. And so the binding force of law is diminished when laws {72} are revised, since custom is removed. And so human laws should never be revised unless the commonweal gains in one respect as much as it loses in the other. And such indeed is the case either because a very great and very clear benefit results from the new law, or because there is a very great necessity due either to the fact that the existing law is clearly unjust, or to the fact that observance of the existing law is most harmful. And so the Jurist says that “in establishing new laws, the benefit of departing from laws long perceived as just ought to be evident.”13
Reply Obj. 1. The rules relating to skills derive their efficacy only from reason, and so prior rules should be revised whenever a better reason presents itself. But “laws have their greatest power from custom,” as the Philosopher says in the Politics.14 And so we should not rush to revise laws.
Reply Obj. 2. The argument of this objection rightly concludes that laws should be revised. But they should be revised for the sake of a great benefit or necessity, not for the sake of any betterment, as I have said.15
Reply Obj. 3. The same reply applies to this objection.
We thus proceed to the third article. It seems that customs cannot obtain the force of law or abolish laws, for the following reasons:
Obj. 1. Human law is derived from the natural law and the divine law, as is evident from what I have said before.16 But human customs cannot alter the natural law or the divine law. Therefore, they also cannot alter human law.
Obj. 2. Moral good cannot come out of many wicked acts. But those who first begin to act contrary to a law act wickedly. Therefore, many such acts do not produce something morally good. But law is something morally good, since law regulates human actions. Therefore, customs cannot abolish laws so that the customs obtain the force of law.
Obj. 3. Framing laws belongs to public persons, whose business it is to govern a community, and so private persons cannot make law. But customs flourish through the acts of private persons. Therefore, customs cannot obtain the force of law so as to abolish laws.
On the contrary, Augustine says in a letter: “We should consider the customs of God’s people and the prescriptions of our ancestors as laws. And as those who disobey God’s laws should be punished, so also should {73} those who contemn ecclesiastical customs.”17
I answer that all laws come from the reason and will of lawmakers: the divine and natural laws, indeed, from the reasonable will of God, and human laws from human wills regulated by reason. But the deeds of human beings as much as their words indicate their reason and will regarding things to be done. For example, everyone seems to desire as good what one carries out in deed. And human words evidently alter and also explain laws insofar as the words explain the internal movements and thoughts of human reason. And so also even acts, especially when repeated so as to constitute custom, can alter and explain laws, and cause things to obtain the force of law, namely, insofar as repeated external acts most effectively manifest internal movements of the will and the thoughts of reason. For things done repeatedly seem to proceed from deliberate judgments of reason. And so custom has the force of law and abolishes law and interprets law.
Reply Obj. 1. The natural law and the divine law come from the divine will, as I have said.18 And so only divine authority, not customs that come from the wills of human beings, can alter those laws. And so no custom can obtain the force of law in opposition to the divine and natural laws, as Isidore says in his Synonyms: “Let custom yield to authority; let law and reason prevail over wicked customs.”19
Reply Obj. 2. Human laws are wanting in particular cases, as I have said before.20 And so one can sometimes act outside the law, namely, in cases in which the laws are wanting, and yet the actions will not be morally evil. And when such instances are repeated because of alterations in human beings, then customs indicate that laws are no longer useful, just as it would be evident that laws are no longer useful if expressly contrary laws were to be promulgated. But if the same reason for which the original law was useful still persists, the law prevails over the custom, not the custom over the law. There may be an exception if the law seems useless simply because it is not “possible according to a country’s customs,” which was one of the conditions of law.21 For it is difficult to destroy a people’s customs.
Reply Obj. 3. The people among whom a custom is introduced can be in two situations. For if a people is free, that is, self-governing, the consent of the whole people, which custom indicates, counts more in favor of a particular legal observance than the authority of its ruler, who only has the power to frame laws insofar as the ruler acts in the name of the {74} people. And so the whole people can establish laws, but individual persons cannot.
But if a people should not have the free disposition to frame laws for itself or to abolish laws imposed by a higher power, the very customs prevailing in such a people still obtain the force of law insofar as those who have the power to impose laws on the people tolerate the customs. For rulers thereby seem to approve what the customs introduce.
We thus proceed to the fourth article. It seems that the people’s rulers cannot dispense subjects from human laws, for the following reasons:
Obj. 1. Laws are established “for the commonweal,” as Isidore says.22 But the common good should not be cast aside for the private convenience of a particular person, since “the good of the people is more godlike than the good of one human being,” as the Philosopher says in the Ethics.23 Therefore, it seems that no one should be dispensed to act contrary to the people’s common law.
Obj. 2. Dt. 1:17 commands those with authority over others: “You shall listen to the lowly as well as the mighty, nor shall you regard who anyone is, since your judgment is God’s.” But to grant to one what is denied to all seems to be regard for who the person is. Therefore, the people’s rulers cannot give such dispensations, since this is contrary to a precept of the divine law.
Obj. 3. Human law, if just, needs to be in accord with the natural and divine laws; otherwise, it would not “be fitting for religion” or “be suitable for training,” which are prerequisites of law, as Isidore says.24 But no human being can dispense anyone from the divine and natural laws. Therefore, neither can any human being dispense someone from a human law.
On the contrary, the Apostle says in 1 Cor. 9:17: “Dispensation has been entrusted to me.”
I answer that dispensing, properly speaking, signifies allotting common goods to individuals. And so we also call the heads of households dispensers, since they with due weight and in due measure distribute to each member of their households both duties and things necessary for living. Therefore, we also say regarding any political community that one dispenses, since that one in a way ordains how individuals should fulfill a general precept. And a precept generally for the convenience of the {75} community may sometimes be unsuitable for a particular person or in a particular case, either because it would prevent something better, or because it would even bring about some evil, as is evident from what I have said before.25 But it would be most dangerous to commit this to the discretion of each individual, except, perhaps, when there is a clear and present danger, as I have said before.26 And so those empowered to rule a people have the power to dispense from human laws that rest on the rulers’ authority, namely, as regards persons or situations in which the law is wanting, to grant permission not to observe precepts of the law.
But if rulers should grant this permission at their mere whim, without the persons or situations warranting it, they will be unfaithful or unwise dispensers. Rulers will be unfaithful dispensers if they do not aim at the common good, and they will be unwise dispensers if they ignore the reason for granting dispensations. And so the Lord says in Lk. 12:42: “Who, do you think, is the faithful and wise dispenser that a master sets over his household?”
Reply Obj. 1. One ought not to be dispensed from observing general laws at the prejudice of the common good. Rather, dispensations should be granted for the purpose of benefiting the common good.
Reply Obj. 2. There is no regard for who persons are if unequal things are dispensed to persons who are unequal. And so when the condition of persons requires that special things be reasonably accorded them, there is no regard for who the persons are if special favors are granted them.
Reply Obj. 3. The natural law as consisting of general precepts, which are never wanting, cannot be dispensed. But human beings sometimes dispense from other precepts of the natural law, which are conclusions, as it were, from the general precepts (e.g., dispensing from the obligation to repay loans owed to traitors, or the like).
But every human being is subject to the divine law as private persons are subject to public law. And so, as only rulers or their representatives can dispense from human laws, so only God or his special representatives can dispense from precepts of the divine law.
[Questions 98–105 deal with the Old Law. Questions 106–8 deal with the New Law and its relation to the Old Law. Only AA. 1–3, 8–12 of Q. 100, and A. 1 of Q. 105 are translated here.]
1ST I–II, Q. 95, A. 2.
2EthicsV, 5 (1133a25).
3ST I–II, Q. 90, AA. 1, 2.
4ST I–II, Q. 90, A. 2.
5On Free Choice I, 6, n. 14 (PL 32:1229).
6ST I–II, Q. 91, A. 3.
7On Free Choice I, 6, n. 14 (PL 32:1229).
8ST I–II: Q. 91, A. 2; Q. 96, A. 2, ad 3.
9In the body of the article.
10Ethics II, 1 (1103a16).
11Gratian, Decretum I, dist. 12, c. 5.
12ST I–II, Q. 97, A. 1.
13Digest I, title 4, law 2.
14Politics II, 5 (1269a20–4).
15In the body of the article.
16ST I–II: Q. 93, A. 3; Q. 95, A. 2.
17Letter 36, to Casulanus (PL 33:136).
18In the body of the article.
19Synonyms II, n. 80 (PL 83:863).
20ST I–II, Q. 96, A. 6.
21ST I–II, Q. 95, A. 3.
22Etymologies II, 10 (PL 82:131); V, 3 (PL 82:199).
23Ethics I, 2 (1094b9-10).
24Etymologies II, 10 (PL 82:131); V, 3 (PL 82:199).
25ST I–II, Q. 96, A. 6.
26Ibid.