Article V: On the Division of Human Law

St. Thomas, I-II, q. 95, a. 4.

277. Manifold division.

Each thing can be divided per se according to that which is contained in its notion. But there are many things in the notion of human law, according to each of which human law can properly and per se be divided.

1. For it belongs to the notion of human law that it be derived from the law of nature; and according to this positive right is divided into the law of nations and civil law, according to the two modes by which something is derived from natural law (n. 271). For to the law of nations pertain those things which are derived from natural law as conclusions from principles, such as just purchases, sales, and other things of this kind, without which men cannot live together with one another; this is of natural law because man is naturally a social animal. But those things which are derived from natural law by way of particular determination pertain to civil law, according as any city determines something accommodated to itself.

2. It belongs to the notion of human law that it be ordered to the common good of the city; and according to this human law can be divided according to the diversity of those who give special work to the common good, as priests, princes, and soldiers; and therefore certain special rights are adapted to those men.

3. It belongs to the notion of human law that it be instituted by one governing the community of the city; and according to this human laws are distinguished according to the diverse regimes of cities. One of these is kingdom, when, namely, a city is governed by one, and according to this the constitutions of princes are taken. Another regime is aristocracy, that is, the principate of the best or of the nobles, and according to this are taken the responses of the prudent and also senatus-consults. Another regime is oligarchy, that is, the principate of the rich and powerful, and according to this praetorian right is taken. Another regime is of the people, which is called democracy, and according to this plebiscites are taken. Another is tyrannical, which is altogether corrupt; whence from this no law is taken. There is also a certain regime mixed from these, which is best, and according to this is taken the law "which the elders together with the people have sanctioned" (or the deputies of the people together with the prince) (cf. q. 105, a. 1).

4. It belongs to the notion of human law that it be directive of human acts; and according to this, according to the diverse things about which laws are borne, laws are distinguished on account of the matters about which they are. Thus St. Thomas, q. 95, a. 4.

278. Division of present-day law.

Present-day human laws, according to jurists, are divided according to the diverse persons and things about which they act, and are reduced to a threefold genus:

a) Some constitute public right (the law of the state), which is also called political and administrative right: they chiefly regard the state of the republic, social functions and institutes, and relations between the republic, or its institutes, and citizens.

Thus the Constitution or fundamental law, laws which rule municipalities, provinces, the organization and administration of justice, worship, the army, elections of deputies, the public treasury, tributary and fiscal laws.

1. In Belgium they are called: la constitution; les lois provinciale, communale, de bienfaisance publique, des cimetieres, des cultes et fabriques d'eglise, d'organisation judiciaire et d'administration de la justice, de la force publique (armee, gendarmerie), des notariats, des consulats; les lois de comptabilite, des contributions, douanes et accises, les lois fiscales (d'enregistrement, de greffe, du timbre, sur la succession, la transmission, etc.), les lois sur le tresor public, la dette publique, les monnaies, la banque nationale, etc.; les lois sur les chemins de fer, postes, telegraphes, telephones, etc.; les lois sur les droits politiques, for example, les lois electorales, et de naturalisation; les lois sur l'enseignement et les langues, etc.

b) Some constitute private right, or civil right more strictly so called: they are chiefly concerned with those things which pertain to the utility of individuals, and with rights and relations of citizens to one another. Thus the civil code, the commercial or business code, and various laws concerning dominion of property, even literary and industrial.

2. In Belgium they are: le Code civil (elaborated in the years 1803-04, but modified several times, for example, in 1854, 1859, 1887, 1891, and still more recently; it contains the theory of ordinary right), le Code de commerce (promulgated in the year 1807, but in Belgium almost totally changed in the years 1851, 1867, 1872, 1873, 1874, 1877, 1879, 1883, 1891, 1913, 1919; it contains the theory of the special right of merchants and of acts of maritime and terrestrial commerce); to these are added les lois sur la propriete litteraire et industrielle, sur les mines, les vices redhibitoires, les brevets d'invention, marques de fabrique et de commerce, warrants, etc. To the civil code, which is theoretical, there is added the practical code concerning the mode of pursuing civil and commercial rights: le Code de procedure civile (in the year 1806).

c) Some constitute penal right, which chiefly regard crimes, delicts, transgressions, or contraventions. Thus the penal code, and various penal and disciplinary laws.

3. In Belgium they are: le Code penal (in the year 1810, but in Belgium changed in the year 1867; it determines delicts and penalties theoretically), to which are added le Code penal militaire, le Code disciplinaire et penal pour la marine marchande et la peche maritime, les lois sur la provocation, l'hypnotisme, les offenses et les attentats contre les souverains etrangers, la protection des enfants, le vagabondage, la mendicite, les falsifications, les armes de guerre non prohibees, etc. To the penal code, which is theoretical, there is added the practical code concerning the path to be followed for obtaining the punishment of someone: le Code d'instruction criminelle (1808).

To civil right rather than to penal right pertain the laws which are called social and sometimes are called new right, which, namely, are concerned with the utilities and rights of some class of citizens and with relations between diverse classes.

1. In Belgium they are: les lois sur les livrets de travail (1883), les salaires (1887), le travail des femmes et des enfants (1889), les reglements d'atelier (1896), les unions professionnelles (1898), la securite et la sante des ouvriers (1899), le contrat de travail (1900), le mesurage du travail (1901), les accidents du travail (1903), le repos du dimanche (1905), le conseil des prud'hommes (1910), la journee de 8 heures (1921), les associations sans but lucratif (1921), le contrat d'emploi (1922), etc.

To penal right rather than to civil or administrative right pertain the codes or laws which rule fields and rural estates, forests, hunting and fishing, or the sale of certain things.

2. Thus in Belgium: le Code forestier (1854), le Code rural (1886), les lois sur la chasse et la peche (1882, 1883, 1887, 1891, 1900), la vente des marchandises neuves et les objets mobiliers.