Chapter VI: The Author of Law

— It is manifest first that to him who has set forth the end and is master of those who are to be ordered to the end belongs the very ordination to the end, so that he is, before all others, legislator. Then, subordinately to him, the ordination belongs to him who must attain the end. Wherefore in a more universal way that holds which St. Thomas seems to have said concerning human power alone: "To order to the end belongs to him to whom that end is proper" ¹.

The end of the whole universe is God. Therefore God himself is demonstrated to be the first Legislator, before whom there is none; supreme, against whom no one can do anything legitimately or validly; universal, from whose command nothing is withdrawn.

Legislators next are those who preside over a community or social multitude.

These are said to represent the multitude, at least in this respect, insofar as they act for it and on account of its good. For the multitude to which the end belongs cannot, as such, act or ordain: as such, it is to be ruled and ordered, so that provision must be made for it by persons distinct from it.

The authority necessary for making an ordination is communicated by God, whether by the very will by which he wills human societies to exist - that is, by the will of the Author of nature ² - or by positive will, by which in the Old Testament he constituted Moses, Judges, Kings; by which in the New Testament he constituted the Church and handed her over to be ruled by Peter and his successors.

Observe that not even in the most perfect democracy can the making of laws belong to the multitude as such. For even where recourse is had to the so-called universal suffrage, however many members of the multitude are kept from sharing in suffrages because of incapacities, whether natural, under which children and the insane labor, or legal, of age, sex, improbity, they have no part in making laws; and matters are decided by some determinate plurality (therefore not by all).

The legislative power itself is delegable; and everywhere, from the supreme authority, by some definite manner of communication or delegation, it passes to others.

¹ In 1, 2, q. 90 art. 3 c. Cf. the commentary of Cajetan.

² But we omit the question concerning the first subject in which civil authority itself inheres.

— There are true human laws. If every legislative power proceeds from God, if of itself it inheres in God alone, therefore this power does not belong univocally to the other legislators and to God; and for a certain true reason God can be praised as the sole legislator, just as he is celebrated by the Church in the chant "Glory in the highest" as the sole Lord.

Nevertheless, because true power of commanding is conferred by God upon men, and there are many things which he himself permits to be ordered and defined by men, laws, from the author from whom they proceed, are truly some divine, others human.

There have been those who would deny to men the true power of causing law, who then would merely posit a condition, on which being posited, an obligation would arise from divine law, so that every right would be divine, either absolutely or conditionately. But a condition, which is sometimes necessary so that a cause may operate, does not assimilate the effect to itself as positive laws made by human authority are assimilated to the will of the human legislator, whether as to that which is commanded, or as to the force by which it is commanded, or as to the time through which it is commanded ¹.

¹ Cf., for example, Schiffini, Principia, n. 608, where he distinguishes cause from condition by this, that condition influences nothing, so that, with an equivalent condition substituted, the causality can remain the same in number.

— Jurisdiction. Furthermore the power of making laws belongs to the power of a more universal character which is called jurisdiction. This is the power of ruling a multitude, or of directing it efficaciously, both through laws and through precepts, judgments, and penalties. And in truth, in all these ways, right is declared, that is, in a general or particular way there is established that which can be demanded under the title of some justice.

— Laws of one commanding illegitimately. Of themselves, laws and sentences ought to be brought forth by legitimate authority. Yet those brought forth also by usurpers will oblige, if these possess the realm peacefully and are tolerated by the commonwealth. The reason is the very necessity of the common good, which requires that the community be able to be efficaciously directed to its end by him who has care of it. The legitimate Prince is judged to have ratified this, or God himself supplies his consent.

Indeed by positive compact, before the most recent war, it had been sanctioned that an invader of territory could issue decrees which, while he occupies the region precariously, would seem necessary for preserving peace.

But beyond that necessity and the reason of his own security he cannot command. The facts themselves clearly demonstrate that abuses can easily be committed in this matter.

— In some true sense, God is the sole Legislator. Dependently upon him, by communicated power, human legislators are also true legislators: these represent the multitude, at least insofar as they act for it. Their will is a true cause of obligation, not a mere condition.

Legislative power is part of the power of jurisdiction, that is, of the power of efficaciously directing a subject community to its end through laws, judgments, and penalties.

Because of the necessity of the commonwealth, the commands of a usurper can also be efficacious, whether from the consent of the legitimate Prince or from God himself.