Article I: On the Essence of Law

St. Thomas, I-II, q. 90, a. 1, 2, 3.

221. Notion of law. - Law, according to some, is said from binding (ligare) (q. 90, a. 1), because it is a rule which binds and necessitates to acting; according to others from reading (legere), because it is usually written on public tablets and read, and this is usually done because it is a rule of things to be chosen (Cicero, De Legibus I, 19). Hence:

a) in the broadest sense it is a rule and measure according to which something ought to be done, that is, according to which something is inclined to some end and induced to acting or withdrawn from it; in this sense even for all irrational things a law has been fixed beforehand (physical law: Job XXVIII, 26; Prov. VIII, 27; Rom. VII, 23);

b) in a less broad sense, law, because it is an ordination of reason, regards only the rational creature, which alone participates in it rationally; and therefore it is the rule and measure of whatever acts are done dependently upon reason, even of arts, sciences, etc., prescribing either good or evil (Is. X, 1; St. Thomas, q. 92, a. 1);

c) in a stricter sense it is the norm of human or moral acts, that they be right, remote and material; and thus every precept is called law (for example, the precept of a father, of a syndicate, of a master);

d) in the strictest sense it is the rule of human acts given to a community, prescribing to it what is right (Rom. II, 12 sq.; Prov. VIII, 15).

Now in each sense it can be considered both subjectively: 1) according as it is essentially in the legislator as in the one regulating, and thus it is taken altogether properly; 2) according as it is participatively in the subjects as in those regulated (Rom. VII, 23; II, 14); and 3) according as it is in the exterior sign (word, writing, book) expressing it (Lk. X, 26; Jn. XV, 25; I Cor. XIV, 21); and objectively, for the object of the law and the thing itself prescribed, for example, a condition of a contract (Jn. VII, 19; Rom. II, 13). In these last modes it is taken in a less proper sense and one derived from the first.

222. Definition of law. - Law taken most strictly and properly is usually defined: an ordination of reason for the common good, promulgated by him who has care of the community (q. 90, a. 4).

In this definition there is indicated:

1. The genus: ordination or disposition to an end through proportionate means, that is, not so much the ordering act itself as its term or the dictate constituted by it; but ordination is to be understood as strictly so called and perfect, that is, a) not merely directive but imperative and efficacious of obligation, and thus law differs from counsel, permission, prayer, etc.; b) of itself firm, stable, and perpetual.

2. The subject in which law essentially and originally inheres: reason, both because it belongs to reason to order or dispose and direct to an end, and to command; and because law is the rule of human acts, but the rule and measure of these is reason, because they are human insofar as they proceed from it, and good insofar as they are conformable to it; therefore law is something constituted by reason, and for this reason in the Scriptures it is called a lamp, light, illuminating precept, judgment, word, utterance (Prov. VI, 23; Ps. XVIII, 9; CXVIII, 105; CXLVII, 20).

1. Reason, namely, is the first principle of human acts; the first principle is the measure of the other things which pertain to this genus: "Law is a certain rule and measure of acts, according to which someone is induced to acting or is withdrawn from it. But the rule and measure of human acts is reason, which is the first principle of human acts; for it belongs to reason to order to the end, which is the first principle in things to be done. But in each genus that which is the first principle is the measure and rule of that genus... Whence it remains that law is something pertaining to reason" (q. 90, a. 1).

Yet, since the act belongs to practical reason, it presupposes a will regulated by that reason, which it intimates and expresses, and therefore it is everywhere called in the Scriptures the will of God (Ps. XXIX, 6, 8; XXXIX, 9; CII, 7; CXLII, 10; II Macc. I, 3; Mt. VII, 21).

Hence a) the essence of law can be conceived even if the will of the legislator is not known, as we shall see must be said of natural law; and conversely b) the will of a superior, in order to be able to be law, must be regulated by reason or conformable to reason; otherwise it would be rather iniquity than law, as happens in a positive law prescribing evil.

1. Precept is the continuation of judgment; therefore it must be conformable to the prior judgment. A precept not conformable to judgment is not of reason; whence law must be conformable to reason: "Reason has the power of moving from the will... For from this, that someone wills the end, reason commands concerning those things which are for the end (behold law). But the will concerning those things which are commanded, in order that it have the notion of law, must be regulated by some reason, and in this way it is understood that the will of the prince has the notion of law; otherwise the will of the prince would rather be iniquity than law" (a. 1, ad 3).

3. The object or end, by which it is distinguished from every other ordination:

a) to the good, because law is the rule and measure of human acts, but human acts ought to tend to the ultimate end, which is the happiness of human life and beatitude;

b) to the common good: for man is part of a perfect community, by which he can arrive at happiness; but every part is ordered to the whole, as the imperfect to the perfect. Therefore law regards order to common happiness, or to the ultimate end as a good to be obtained commonly.

Thus it is distinguished from the precept of a tyrant, who commands only for his own advantage, or from a simple precept and mandate, which can also be borne toward the good of one person or of some; for by law man is ordered as a part to the perfect community; but it would be disordered to order the good of the whole to the good of a part, since the part is for the sake of the whole and not conversely (III Kings XIII; Ezek. XXXIV, 8; Council of Toledo VIII, can. 10).

Hence a law has force:

a) which was borne from an evil end (of the one acting), provided it really tends to the common good (the end of the work);

b) which is harmful to some, for example, to one province, so long as, namely, it tends to the good of the community, because a part is subject to the whole and the common good is to be preferred to private good, if they cannot be obtained together;

c) which immediately fosters the good of one class of citizens, such as wards, clerics, soldiers, etc., but ultimately is ordered to the common good, insofar as this requires that such persons be defended with special care and favor or be kept in office.

4. The author and at the same time the subject upon which law is imposed: by him who has care of the community.

Thus it is distinguished from a mere precept, which can be imposed upon one person or even by a private person: for to order and procure the common good and to command the community belongs only to the community itself or to him who presides over it. But community is understood as perfect, that is, a society complete of itself, which has in its own order a complete end and sufficient means for pursuing it (the whole human race under God, the Church or the State with respect to the faithful or citizens). Hence laws are established by those who have the public and political power of jurisdiction for governing subjects (by declaring right, making laws, and punishing transgressors even with graver penalties), whether supreme over the whole community, or derived, or over only part of the community (for example, the Roman Pontiff and bishops); not, however, by those who have only private dominative power or economic power in an imperfect society, such as father, husband, master, superior of a religious house, pastor.

5. The essential condition: promulgated, that is, announced to the community.

223. Law differs from precept. - Every law is a precept, but not conversely; whence, as species differs from genus, so law differs from precept, and indeed:

a) in end: law is borne directly and primarily to the common good; precept can also be ordered only to the private good alone of the one commanding or the one commanded;

b) in author: a legislator is a public person enjoying public power of jurisdiction; one commanding can be a private person having only private power;

c) in the subject upon whom it is imposed: law is borne upon the community as such (whether the whole community, or a certain group, that is, determined persons taken collectively, for example, all minors, by reason of the common good); precept can also be imposed upon private persons taken individually;

d) in stability or duration: for although law can also be borne for a time and be abrogated, nevertheless from its nature, like the community itself, it is perpetual, and indeed in three ways: on the part of the law, because it endures until it is abrogated; on the part of the legislator, because it endures after he has died or been removed; on the part of the subjects, because it obligates not only those present but also those future. But a precept can from its nature be transitory, for example, given for one or another day or act, and obligate only those present, and, unless otherwise noted, it expires with the death or departure of the one commanding;

e) in extension or place: for law, since it is borne for the community, if this is local, does not obligate outside its territory; a precept can also be given to a person, and then it accompanies him everywhere.

Among moralists, however, precept is often taken in a restricted sense and as opposed to law, for that which is a mere precept and not law, namely, for a particular or temporary obligating rule.

224. Causes of law.

The cause of law is fourfold: 1) final: the common good; 2) efficient: the legislator himself; 3) material, namely, the object or matter about which it is concerned and concerning which it prescribes; 4) formal, that is, the essence, namely, the ordination or prescription itself and the mode in which it is made, in which can be considered formation, promulgation, acceptance, and interpretation.

225. Observation.

Since laws are the rule of justice or of the just in general, and ought to establish just things, it has been received in usage that the complex of them is called Right; hence we speak of natural, divine, human right, etc.