A. 4. Is Promulgation an Essential Component of Law?
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In ST I–II, Q. 90, Thomas defines law: law is an ordinance of reason for the common good by one competent to make it, and promulgated. In Q. 91, he distinguishes four kinds of law: eternal, natural, human, and divine. The effect of law is to make human beings good (Q. 92). The eternal law is God’s plan of creation, which directs the actions of creatures to their appointed ends (Q. 93). The natural law is God’s plan for human beings as communicated to them by reason, and the law includes primary and secondary precepts (Q. 94). Human laws are ordinances of rulers for their subjects, beneficial to human beings, and derived from the natural law in two ways (Q. 95). Only just human laws impose moral obligation on subjects, and the laws need not prohibit all vices (Q. 96). Customs help to interpret human laws, and the laws should be revised cautiously (Q. 97). There was one divine law of the Old Testament, and there is now a divine law of the New Testament (Q. 91, A. 5).
Q. 100 examines the relationship of the moral precepts of the Old Law, especially the Ten Commandments, to the natural law, in the course of which Thomas makes an important distinction between proximate and remote secondary precepts of the natural law (A. 3).
In Q. 105, A. 1, Thomas describes different forms of government and defends the “mixed” regime under Moses and the Judges as the best. For more on the topic of human governance, see .
We thus proceed to the first inquiry. It seems that law does not belong to reason, for the following reasons:
Obj. 1. The Apostle in Rom. 7:23 says: “I perceive another law in my bodily members,” etc. But nothing belonging to reason belongs to bodily members, since reason does not use bodily organs. Therefore, law does not belong to reason.
Obj. 2. Only power, habits, and acts belong to reason. But law is not the very power of reason. Likewise, law is not a habit of reason, since habits {11} of reason are intellectual virtues, about which I have spoken before.1 Nor is law an act of reason, since law would cease when the lawmaker ceased to reason (e.g., when he is sleeping). Therefore, law does not belong to reason.
Obj. 3. Law induces those subject to the law to act rightly. But inducing to act rightly belongs in the strict sense to the will, as is evident from what I have said before.2 Therefore, law belongs to the will rather than to reason, as the Jurist also says: “The pleasure of the ruler has the force of law.”3
On the contrary, it belongs to law to command and forbid. But to command belongs to reason, as I have maintained before.4 Therefore, law belongs to reason.
I answer that law is a rule and measure of acts that induces persons to act or refrain from acting. For law [Lat.: lex] is derived from binding [Lat.: ligare] because law obliges persons to act. And the rule and measure of human acts is reason, which is the primary source of human acts, as is evident from what I have said before.5 For it belongs to reason to order us to our end, which is the primary source regarding our prospective action, as the Philosopher says.6 And the source in any kind of thing is the measure and rule of that kind of thing (e.g., units in numbers and first movements in movements). And so we conclude that law belongs to reason.
Reply Obj. 1. We say that law, since it is a rule or measure, belongs to something in two ways. It belongs in one way as to what measures and rules. And law in this way belongs only to reason, since measuring and ruling belong to reason. Law belongs to something in a second way as to what is ruled and measured. And then law applies to everything that a law induces to something, so that we can call every inclination resulting from a law law by participation, as it were, not essentially. And we in this way call the very inclination of bodily members to concupiscence the law of the bodily members.
Reply Obj. 2. Regarding external acts, we can consider the activity and the product of the activity (e.g., building and the work built). Just so, regarding acts of reason, we can consider the very acts of reason (i.e., acts of understanding and reasoning) and the things produced by such acts. And regarding theoretical reason, definitions are indeed the first product. Propositions are the second product. And syllogisms and arguments the third product. And practical reason also uses a kind of syllogism regarding prospective actions, as I have maintained before,7 and as the {12} Philosopher teaches in the Ethics.8 Therefore, there are things in practical reason that are related to actions as propositions in theoretical reason are related to conclusions. And such universal propositions of practical reason related to actions have the nature9 of law. And reason indeed sometimes actually considers and sometimes only habitually retains these propositions.
Reply Obj. 3. Reason has from the will the power to induce activity, as I have said before,10 since reason commands means because one wills one’s end. But an act of reason needs to rule the will regarding the means commanded in order that the willing have the nature of law. And we in this way understand that the will of a ruler has the force of law. Otherwise, the willing of the ruler would be injustice rather than law.
We thus proceed to the second article. It seems that law is not ordered to the common good as its end, for the following reasons:
Obj. 1. It belongs to law to command and forbid. But precepts are ordered to particular goods. Therefore, the end of law is not always the common good.
Obj. 2. Law directs the actions of human beings. But human acts regard particulars. Therefore, law is likewise ordered to particular goods.
Obj. 3. Isidore says in his Etymologies: “If law is based on reason, everything founded on reason will be law.”11 But both things ordered to the common good and things ordered to private good are based on reason. Therefore, law is ordered both to the common good and to the private good of individuals.
On the contrary, Isidore says in his Etymologies that laws are “enacted for no private convenience but for the common benefit of citizens.”12
I answer that, as I have said,13 law belongs to the source of human acts, since law is their rule and measure. And as reason is the source of human acts, so also is there in reason itself something that is the source of all other kinds of acts. And so law needs chiefly and especially to belong to this source.
{13} And the first source in practical matters, with which practical reason is concerned, is the ultimate end. But the ultimate end of human life is happiness or blessedness, as I have maintained before.14 And so law especially needs to regard the order of things to blessedness.
Moreover, law in the strict sense needs to concern the order of things to happiness in general, since every part is related to a whole as something imperfect to something perfect. And so also the Philosopher, regarding the cited definition of law,15 speaks of both happiness and political community. For he says in the Ethics that “we call those laws just that constitute and preserve happiness and its particulars by citizens’ sharing in a political community.”16 For the political community is the perfect community, as he says in the Politics.17
And regarding any kind of thing, the one we call most such is the source of the others, and we call the others such by their relation to that one. For example, fire, which is hottest, causes heat in composite material substances, which we call hot insofar as they share in fire. And so, since we chiefly call something law because it orders things to the common good, every other precept regarding particular acts has the nature of law only because it orders things to the common good. And so every law is ordered to the common good.
Reply Obj. 1. Precepts signify the application of laws to things regulated by the laws. And the order of things to the common good, which belongs to law, can be applied to particular ends. And so there can be precepts even regarding particular matters.
Reply Obj. 2. Actions indeed concern particular matters, but such particulars can be related to the common good by sharing in the final cause, insofar as we call the common good the common end, not by sharing in a genus or species.
Reply Obj. 3. As theoretical reason firmly establishes nothing except by tracing things back to first indemonstrable principles, so practical reason firmly establishes nothing except by ordering things to our ultimate end, that is, our common good. And what reason so establishes has the nature of law.
We thus proceed to the third article. It seems that any person’s reason is competent to make law, for the following reasons:
{14} Obj. 1. The Apostle says in Rom. 2:14 that “when the Gentiles, who do not have the law, by nature do the things the law prescribes, they make law for themselves.” But we say the same about everybody. Therefore, anyone can make law for oneself.
Obj. 2. As the Philosopher says in the Ethics,18 “lawmakers aim to induce human beings to virtue.” But any human being can lead others to virtue. Therefore, the reason of any human being is competent to make law.
Obj. 3. As the ruler of a political community governs that community, so the head of a household governs his household. But the ruler of a political community can make laws regarding the political community. Therefore, any head of a household can make laws regarding his household.
On the contrary, Isidore says in his Etymologies,19 and the Decretum20 maintains: “Law is an ordinance of the people whereby elders and commoners together prescribe things.” Therefore, not every person’s reason is competent to make law.
I answer that law in the strict sense primarily and chiefly regards the order of things to the common good. But ordering things to the common good belongs either to the whole people21 or to persons acting in the name of the whole people. And so lawmaking belongs either to the whole people or to a public personage who has the care of the whole people. For also in all other matters, ordering things to ends belongs to those to whom the ends belong.
Reply Obj. 1. As I have said before,22 law belongs both to those who rule and, by participation, to those who are ruled. And it is in the latter way that everyone makes law for oneself, as one participates in the ordinances of the ruler. And so also the Apostle adds in Rom. 2:15: “And they manifest the law’s operation written in their hearts.”
Reply Obj. 2. Private persons cannot effectively induce others to virtue. For private persons can only offer advice and have no coercive power if their advice should not be accepted. And law should have coercive power in order to induce others effectively to virtue, as the Philosopher says in the Ethics.23 But the people or a public personage has such coercive power {15} and the right to inflict punishment, as I shall explain later.24 And so it belongs only to the people or a public personage to make law.
Reply Obj. 3. As human beings are parts of a household, so households are parts of a political community, as the Politics says.25 And so, as the good of a human being is not the ultimate end of that individual but ordered to the common good, so also the good of a household is ordered to the good of a political community, which is a perfect community. And so those who govern households can indeed make precepts and rules, but such precepts and rules do not have the nature of law in the strict sense.
We thus proceed to the fourth article. It seems that promulgation is not an essential component of law, for the following reasons:
Obj. 1. The natural law most has the nature of law. But the natural law does not need to be promulgated. Therefore, promulgation is not an essential component of law.
Obj. 2. Obligation to do or not to do things belongs in the strict sense to law. But both those to whom laws have been promulgated and those to whom laws have not are obliged to obey laws. Therefore, promulgation is not an essential component of law.
Obj. 3. The obligation to obey laws also extends to the future, since “laws impose obligation regarding future affairs,” as the Code says.26 But laws are promulgated to those present at their promulgation. Therefore, promulgation is not an essential component of law.
On the contrary, the Decretum says that “laws are established when they are promulgated.”27
I answer that laws are imposed on others as rules and measures, as I have said.28 But rules and measures are imposed by being applied to those ruled and measured. And so laws, in order to oblige persons, as is proper to law, need to be applied to those who are to be ruled by the laws. But the promulgation leading them to knowledge achieves such application. And so promulgation is necessary for laws to be in force.
And so we can compose the definition of law from the four characteristics I have mentioned: law is an order of reason for the common good by one who has the care of the community, and promulgated.
{16} Reply Obj. 1. The natural law is promulgated by God when he implants it in the minds of human beings so that they know it by nature.
Reply Obj. 2. Those to whom a law is not promulgated are obliged to observe it insofar as others make it known to them, or it can become known to them after it has been promulgated.
Reply Obj. 3. The present promulgation of a law reaches into the future through the durability of written words, which in a way are always promulgating it. And so Isidore says in his Etymologies that “we derive law [Lat.: lex] from reading [Lat.: legere], since law is written.”29
1ST I–II, Q. 57.
2ST I–II, Q. 9, A. 1.
3Digest I, title 4, law 1.
4ST I–II, Q. 17, A. 1.
5ST I–II, Q. 1, A. 1, ad 3
6Physics II, 9 (200a22–4).
7ST I–II: Q. 13, A. 3; Q. 76, A. 1; Q. 77, A. 2, ad 4.
8Ethics VII, 3 (1147a24–31).
9Ratio in this and like contexts (e.g., ST I–II, Q. 94, AA. 2 and 4) signifies the character or essential element of some class of thing, the objective content of the idea of the class. We use the word “nature” here and elsewhere to convey this sense where appropriate.
10ST I–II, Q. 17, A. 1.
11Etymologies II, 10 (PL 82:130); V, 3 (PL 82:199).
12Ibid., V, 21 (Pl 82:203).
13ST I–II, Q. 90, A. 1.
14ST I–II: Q. 2, A. 7; Q. 3, A. 1; Q. 69, A. 1.
15In the section On the contrary.
16Ethics V, 1 (1129b17–9).
17Politics I, 1 (1252a5–7).
18Ethics II, 1 (1103b3-4).
19EtymologiesV, 10 (PL 82:200).
20Gratian, Decretum I, dist. 2, c. 1.
21The Latin word multitudo literally signifies ordinary people, the many as opposed to the few (usually the rulers). But Thomas here uses the word in the same sense as the Latin word populus, the people as a political unit. The modifying adjective “whole” makes this usage clear. Cf. ST I–II, Q. 97, A. 3, ad 3, where he uses multitudo and populus interchangeably.
22ST I–II, Q. 90, A. 1, ad 1.
23Ethics X, 9 (1180a20).
24ST I–II, Q. 92, A. 2, ad 3; II–II, Q. 64, A. 3.
25Aristotle, Politics I, 1 (1252a5–7).
26Justinian, Code I, title 14, law 7.
27Gratian, Decretum I, dist. 4, c. 3.
28ST I–II, Q. 90, A. 1.
29Etymologies II, 10 (PL 82:130); V, 3 (PL 82:199).