Fourth Part: On Human and Civil Law

St. Thomas, I-II, q. 91, a. 3; q. 95, a. 1.

262. Human law in the broader sense is that which has been borne by the positive will of any human legislator for directing society and its members to their end; but in the present matter it is taken in the stricter sense for civil law, because this is borne by a power which naturally belongs to man, as being destined to society, and which by its nature is human, and thus is distinguished from Christian and ecclesiastical law, which is borne by man, but by a power positively granted to him by the free will of God.

1. Yet originarily it is from the author of nature, just as nature itself. Cf. n. 267.

263. Human law is necessary for supplying what is lacking to natural law, both 1) according to its directive force: for inculcating natural law, which in many is unknown, for determining it more, and for completing it with other things useful for living rightly; and 2) according to its coercive force: for obtaining its observance from the wicked, by restraining them. For:

1. The principles of natural law are unknown in many, are somewhat abstract, universal, indeterminate as to mode, time, and place, and do not contain all things by which man is usefully moved to good; whence it is not sufficient for directing society, but needs practical determination and sanction. And this determination, that society may be ordered, does not suffice as casual and particular, but must be common and stable, by which all, with united forces, tend in the same way to good. But such a stable and common determination, supplying the defect of natural law and completing it, is human law.

2. Inclination or aptitude to virtue is in man naturally, but the very perfection and consummation of virtue does not come to man except by industry and discipline. Men ordinarily are not sufficient for themselves for this discipline, because the perfection of virtue chiefly consists in withdrawing men from undue pleasures to which they are most inclined; therefore it is necessary that men be ruled by others. These things being supposed, one can argue thus:

Man, that he may decline from evil and learn virtue, needs the rule of others. And indeed for those who by disposition of nature, or custom, or the gift of God are inclined to virtue, paternal discipline suffices, which is done by admonitions; but many are corrupt or prone to vices who are not easily moved by words and admonitions. Therefore it was necessary that they be restrained from evil by force or fear, says St. Thomas, q. 95, a. 1, "so that at least thus, ceasing from evil-doing, they might render a quiet life to others, and they themselves at length through this sort of habituation might be led to this, that they would voluntarily do the good things which before they fulfilled from fear, and thus would become virtuous." But human law does this.

264. Objection.

Nor should you say that the decisions of judges suffice. "First, indeed, because it is easier to find a few wise men sufficient for laying down right laws than many who would be required for judging rightly about individual cases. Secondly, because those who lay down laws consider over much time what is to be borne by law; but judgments about singular deeds are made from suddenly arisen cases. But from many things considered a man can more easily see what is right than from some one deed alone. Thirdly, because legislators judge universally and about future things; but men presiding over judgments judge about present things, toward which they are affected by love or hatred, or some desire, and thus their judgment is depraved. Therefore, because the animated justice of the judge is not found in many, and because it is flexible, it was necessary, in whatever matters it is possible, for law to determine what is to be judged, and to commit very few things to the discretion of men." Ibid., ad 2.