Chapter X: The Diminished Character of Law

— I. Notion. The common good itself demands that provision be able to be made for accidental necessities by commands either particular or less stable. I call particular commands those which are given to one or to relatively few. Less stable commands also occur as needing to be given by accident even to some whole order of citizens, indeed to the whole state: for example, public prayers which are enjoined when a plague is raging.

Moreover, by particular commands many persons are by their nature to be ruled who are subject by age, by infirm mind, or by voluntary subjection, as are private households and lesser communities.

Commands of this kind are precepts.

In public society they occur because of an accidental cause. Wherefore not every public society has precepts, although every one has laws. Laws, as we have seen, can be temporal, although of themselves they are rather perpetual; with attention to their cause, or with attention to their subject, precepts are of themselves temporal or precarious.

— II. Division. Precepts can proceed from dominative power and from the power of jurisdiction. Those which are given from the former power necessarily cease by the death of the one commanding; for they are founded in the mutual relation of persons, which is removed by the death of either. But nothing of itself prevents precepts given from the power of jurisdiction from persevering after the death of the one commanding. Cf. Wernz, Ius Decr., I, 135. Positive law, therefore, must be approached.

The general chapters of exempt clerical religious institutes (c. 601, § 1) have legislative power by which they can prolong by their decrees any precepts whatsoever of Superiors: those also which have been given from dominative power. If therefore they establish that the precepts of Superiors remain in force until they have been revoked by a successor, those precepts, after the Superior has departed from his life or his office, will persevere insofar as they have been confirmed by jurisdiction or virtually assumed by a moral person which does not die. Cf. Wernz, l. c., note 235.

With respect to the persons to whom they are given, some precepts are given to individual persons, others to some class of persons, others to the community itself, whether dependently or independently of territory.

— I. Notions. 1. This is the difference between counsel and precept, that precept imports necessity, but counsel is placed in the option of him to whom it is given (St. Th. 1, 2, q. 118 art. 4).

2. But counsel is not given concerning the end, but concerning the means to the end (1, 2, q. 14 art. 2). For it denotes inquiry concerning things to be done, and reasons are taken from the end.

Therefore, because good, as such, has the character of an end, counsel properly is not given concerning an action as good, but concerning an action as useful for good. Yet the action itself which is good can be ordered to a greater good. And thus counsel concerning a good action can be given.

And so the object of counsel properly so called is an action as useful for the end; which action in itself can be indifferent or good.

3. By a broader usage, the object of counsel is said to be a good action which, with attention to its objective character, is not prescribed, or a good work not prescribed, better than its opposite or than its negation which is not evil. Cf. Passerini, De hominum statibus, on q. 184, n. 25-26; Palmieri, Op. th., IV, tr. 9, c. 1, n. 4.

Hence also good works, in circumstances where they are not prescribed, are called counsels in a qualified sense, while works which by their kind are not of some virtue but conduce to the perfect exercise of the virtues are counsels simply. Cf. Passerini, l. c., n. 56.

— II. Division. Counsels are distinguished into some general and some particular; and this in three ways: a) with attention to their power, insofar as some counsels are of general or universal utility for every exercise of the virtues, especially for obtaining charity, while others possess a utility circumscribed by a particular good ¹; b) with attention to their subject, some befit men of themselves, as the three evangelical counsels, others because of particular circumstances, as the counsel concerning marriage ²; c) with attention to their promulgation or intimation, some are contained in law (thus the evangelical counsels), others are proposed by particular speech.

¹ Suarez, Rel., tr. 7, l. 1, c. 8, n. 2; Molitor, O.S.B., Religiosi iuris capita selecta, c. 1, n. 1.

² Otherwise Suarez, l. c., n. 6; Passerini, l. c., n. 58.

— I. Under the name of precept come particular or less stable commands which provide for accidental necessities of society or of persons. Some precepts proceed from dominative power, others from the power of jurisdiction: the former necessarily fall with the death of the one commanding, unless they are prolonged by the power of jurisdiction. Precepts are given either to individual persons or to the community.

II. Counsel, by which a persuasive dictate is communicated, is made properly concerning a means, not concerning an end, and therefore strictly concerning an action not insofar as it is good, but insofar as it is useful either for good simply or for a better good. By a broader usage, the object of counsel is a good work not prescribed. Counsels are particular and they are general, with attention to their power, subject, or intimation.