Section 6: Human Law

1. To collect and digest the precepts of the natural as well as those of positive divine law is the business of human authority, which is partly ecclesiastical and partly civil.

A human law may be defined as a rule of conduct made for the common good and properly promulgated by legitimate authority.¹ A human law may be merely a more definite statement of the principles contained in the natural or positive divine law (determinatio principiorum), or it may embody a deduction from those principles (conclusio ex principiis). St. Thomas explains this distinction with his wonted lucidity as follows: "There are two modes of derivation from the law of nature. Some enactments are derived by way of conclusion from the common principles of the law; as the prohibition of killing may be derived from the prohibition of doing harm to any man. Other enactments are derived by way of determination of what was in the vague. For instance, the law of nature ordains that he who does wrong should be punished; but that he should receive this or that punishment is a determination of the law. Both sorts of enactment are found in human law. However, the former are not mere legal enactments, but have some force also of natural law. The latter have force of human law only." ² That man should fast is clearly prescribed by the law of nature and by positive divine law; but the time and manner of fasting is determined by the Church.³

¹ St. Thomas, Summa Theol., 1a 2ae, qu. 90, art. 4: "Law is nothing other than a certain ordinance of reason for the common good, promulgated by him who has care of the community."

² Summa Theol., 1a 2ae, qu. 95, art. 2 (Rickaby, Aquinas Ethicus, Vol. I, p. 288).

³ Cfr. St. Augustine, Epist., 36 (al. 86), c. 11, n. 25: "Turning this over in my mind in the evangelical and apostolic writings and in the whole instrument which is called the New Testament, I see that fasting has been commanded. But on which days one ought not to fast and on which one ought to fast, I do not find determined by a command of the Lord or of the Apostles." (Migne, P. L., XXXIII, 147).—Cfr. St. Thomas, Summa Theol., 2a 2ae, qu. 147, art. 3.

Human law, therefore, is in every respect subordinate to the natural and to positive divine law, and its precepts have binding force only if they agree with both.⁴

⁴ Cfr. St. Thomas, Summa Theol., 1a 2ae, qu. 95, art. 2. —The Syllabus of Pius IX condemns this proposition (no. 57): "The science of philosophical matters and morals, and likewise civil laws, can and ought to depart from divine and ecclesiastical authority." (Denzinger-Bannwart, n. 1757).

2. Pointing to such texts as James IV, 12, "There is one lawgiver," ⁵ some authors assert that no man has a right to make laws for his fellowmen. But Christ expressly bestowed legislative power on His Church,⁶ and furthermore Himself acknowledged the laws of the State and exhorted His disciples to obey them.⁷ St. Paul says that all power is from God and that the ordinances of legitimate authority bind in conscience.⁸

⁵ Jac. IV, 12: εἷς ὁ νομοθέτης.

⁶ Matth. XVI, 19; XVIII, 17; Luke X, 16.

⁷ Luke XX, 25; Acts XV, 28; XX, 28.

⁸ Rom. XIII, 1 sqq.; cfr. John XIX, 11.

Broadly speaking, both the natural and the positive divine law consist of general principles, which have to be interpreted and applied to concrete conditions by human authority. The fact that human authority adds precepts of its own to those given by God, proves nothing against St. James' statement that God is the "one lawgiver," because human lawgivers act in His name and by His authority. Thus every human law is mediately and by derivation a divine law. Christ, in censuring human laws, did not deny the legislative power of the Synagogue, but protested against the making of such human ordinances as conflicted with the natural and the positive divine law, and incidentally condemned the quibbling of the Pharisees.⁹ Nor do human (particularly ecclesiastical) laws encroach upon the freedom of the Gospel. On the contrary, they are a means of that discipline which makes man free, a guide for the individual, and an essential requisite for the welfare of society.

⁹ Matth. XV, 9; XXIII, 3 sqq., 16 sqq.

Note that the laws of the Church as a rule do not mark the acme of perfection, but merely the bare minimum of what is absolutely required for salvation.

3. Like the Church, civil society or the State is divinely instituted. God created man as a social being. The desire for intercourse and cooperation with his fellowmen is ingrained in his very nature.¹⁰ The State is organized society. Whatever the form of organization, authority is necessary to make and execute laws, and this authority is always derived from God. Every ruler exercises his power directly or indirectly by the grace of God, "for there is no power but from God, and those that are, are ordained of God."¹¹

¹⁰ Cfr. Gen. II, 20-24.

¹¹ Rom. XIII, 1; cfr. Prov. VIII, 15-16; Wisd. VI, 3-4; 1 Pet. II, 13-17. —Cfr. St. Augustine, De Divers. Quaest., 83, qu. 69, n. 4: "Let it be known to all that no principality and power, whether of heavenly or earthly things, has of itself possessed any principality and power, but has it from Him from whom all things are, not only that they may exist, but also that they may be ordered." (Migne, P. L., XL, 76).—Cfr. Leo XIII's Encyclical “Immortale Dei,” Nov. 1, 1885 (Denzinger-Bannwart, n. 1866 sqq.). On the origin and extent of civil authority see Jos. Rickaby, S.J., Political and Moral Essays, London 1902, pp. 1-174. A. Vermeersch, S.J., Theol. Mor., Vol. I, pp. 221 sq.

The purpose of civil authority is to regulate the social affairs of men, to settle their differences, and, in general, to advance their temporal welfare. "Suprema lex salus publica."

"There are two sharply distinct societies ruled by different supreme powers with different aims and means. Both derive their origin from God, but in a different way: the supreme authority of the one [the Church] was immediately instituted by Him and its form once for all determined as universal and constant; the supreme authority of the other [the State] is from God also, but through the will of the people, who give it its form and determine its specific duties. This latter power is neither universal nor constant, but subject to the vicissitudes of human society." ¹² READINGS. —St. Thomas, Summa Theol, 1a 2ae, qu. 95-97. —Suarez, De Legibus, III-VIII (Opera Omnia, Vol. V, pp. 175 sqq.; Vol. VI, pp. 1 sqq.) —V. Cathrein, S.J., Moralphilosophie, Vol. I, 4th ed., pp. 406 sqq. —Th. Slater, S.J., A Manual of Moral Theology, Vol. I, pp. 119 sqq. —R. I. Holaind, S.J., Natural Law and Legal Practice, pp. 315 sqq. —A. Tanquerey, S.S., Synopsis Theologiae Moralis, Vol. II, pp. 147 sqq. —A. Sweens, Theologia Moralis Fundamentalis, 2nd ed., pp. 151 sqq.

¹² Bonomelli-Holzer, Die Kirche, Freiburg 1905, p. 369.