CHAPTER I: ON THE NATURE AND PROPERTIES OF LAW

97. • Definition. Law is defined by St. Thomas:¹ "A certain ordinance of reason" (stable) "for the common good, promulgated by him who has care of the community."

It is called: 1) an ordinance, that is, a prescription, and in this law differs from counsel; 2) stable, because law is not extinguished with the legislator; 3) of reason, that is, according to right reason; otherwise it would not be worthy of man, as being deficient from rectitude. Hence law must be possible, honest, just. See n. 100, 1°, 2°, 4°; 4) for the common good, for example, the preservation of society, public peace, the coercion of crimes, the extinction of lawsuits, and similar things. Namely, the common good is the direct and immediate end of law; but a particular good is (at least generally or ordinarily) the end of a precept, although mediately and indirectly law tends to the private good of each one, and a precept tends to the common good, insofar namely as both the common good of all redounds to the good of individuals, and conversely; 5) by him who has care of the community; for since to make laws is an act of jurisdiction, they cannot be made except by him who possesses such authority, or by the superior of the community; 6) promulgated, because promulgation pertains to the nature of law, or at least is its necessary condition; otherwise law would be constituted in vain, since what in no way becomes known cannot be fulfilled.

98. • Hence a multiple distinction intervenes between law and precept, although they are everywhere used indistinctly, as when we call the divine laws handed down to Moses on the mountain the precepts of the Decalogue. They differ namely:

1° By reason of the end, because the end of law is the common good; of a precept, the private good, in the sense however declared above.

2° By reason of the one commanding; for law is made by a public person for the whole community; but a precept is made by a person who indeed is superior, but either a private person over private persons, as by a master over a servant; or even a public person, but acting with private and singular persons, as a Prince with some one of his subjects, or with some particular assembly.

3° By reason of the subject; for law is extended even to future persons; a precept, on the contrary, comprehends only those present. The reason is that law is made for the community, which always endures, although its members are changed; hence it is clear that future persons also are obliged by law, namely as soon as they begin to be parts of the community. But since a precept adheres to a singularly determined person, when the person is extinguished, the precept also must be extinguished.

4° By reason of stability; for law of itself is perpetual, and lives even when the legislator is dead; but a precept expires by the death of the one commanding. This follows from the things said under 3°. Hence if a superior had prohibited some particular person from going out of the diocese without license, when the superior died this prohibition made against him would cease for the future. On the contrary, if by a general law he had prohibited this to all subjects, even when the superior was dead the law would remain in its first force.

5° By reason of extension; because law, since it is made for a community as such, if that community is local, does not oblige outside its territory; but a precept, since it is given to a person, accompanies him everywhere and adheres firmly to him wherever he has departed. Thus, if a priest has been suspended by his superior, this penalty accompanies him even into another diocese, and he cannot celebrate there. On the contrary, if by a general edict in his Synod a Bishop had prohibited his clergy from entering liquor shops under pain of suspension latae sententiae, a cleric who enters them outside his own diocese would not incur this penalty.

99. • Division. Law is distinguished:

Into divine or human, according as it has God or man as its immediate author. I say: immediate; for human law, although it is made immediately by man, is nevertheless made by authority from God, communicated either immediately or mediately. L. I, 104 init.

Divine law is subdivided into eternal, natural, and divine positive, of which in their place. Human law, which is also called simply positive, is divided:

1° by reason of origin, into ecclesiastical, which is made by ecclesiastical power, and civil, which is made by civil power.

2° by reason of the mode by which it commands or prohibits: a) into preceptive, which is also called moral by some, and commands or prohibits, without inflicting penalties on transgressors; and penal. The latter either imposes only a penalty, without commanding or prohibiting anything, and is called merely penal or penal without addition, as if it should say: "he who has imported such merchandise will pay a penalty of thirty scuta"; or it imposes a penalty while at the same time commanding or prohibiting something, as if it should say: "the importation of such merchandise is prohibited under a penalty of twenty scuta," and is named mixed penal or even mixed law. b) Into prohibiting, which renders an act illicit only, and invalidating, which renders it invalid (n. 2, 4°). c) Into affirmative and negative (n. 125, IV).

3° By reason of the mode by which it is made, into written and introduced by custom.

100. • The properties or conditions of human law, in order that it may oblige, as is clear from the definition of law, are these: namely, it must be possible, honest, useful, just, permanent or stable, and promulgated. - Thus from Dist. 4, cap. 2.

1° Possible, not only physically, but also morally, so that it is not too difficult to observe, and therefore "according to nature, the custom of the country, fitting to place and time." St. Isidore. Otherwise it would not be an ordinance of reason.

2° Honest, namely establishing nothing repugnant to divine right, whether natural or positive. Otherwise it would not be for good, but for evil.

3° Useful, namely to the common good, and that notably: 1° because the common good of the community is the essential and primary end of law; 2° because law is an act of public power, which was instituted for the common good alone.

4° Just, that is, according to the norm of distributive justice, so that some are not burdened more than the others, but burdens are imposed on subjects with equality of proportion, their strengths and faculties being considered; otherwise it does not oblige in conscience.

5° Permanent or stable, so that once it has been made, unless it is abrogated or becomes harmful or useless, it endures as long as the community stands to which it is imposed, or as long as the circumstances persist for which it was made; therefore it must be negatively permanent.

6° Promulgated, because law is a general and public rule of actions, directing and obliging the community. But a rule cannot direct and oblige the community which it rules, unless it has been applied to it through promulgation.