Part II (Pars Prima Secundae) Part 149 (2/2)
Whether Human Law Should Be Framed for the Community Rather Than for the Individual?
Objection 1: It would seem that human law should be framed not for the community, but rather for the individual. For the Philosopher says (Ethic. v, 7) that ”the legal just ... includes all particular acts of legislation ... and all those matters which are the subject of decrees,” which are also individual matters, since decrees are framed about individual actions. Therefore law is framed not only for the community, but also for the individual.
Obj. 2: Further, law is the director of human acts, as stated above (Q. 90, AA. 1, 2). But human acts are about individual matters.
Therefore human laws should be framed, not for the community, but rather for the individual.
Obj. 3: Further, law is a rule and measure of human acts, as stated above (Q. 90, AA. 1, 2). But a measure should be most certain, as stated in _Metaph._ x. Since therefore in human acts no general proposition can be so certain as not to fail in some individual cases, it seems that laws should be framed not in general but for individual cases.
_On the contrary,_ The Jurist says (Pandect. Justin. lib. i, t.i.t.
iii, art. ii; De legibus, etc.) that ”laws should be made to suit the majority of instances; and they are not framed according to what may possibly happen in an individual case.”
_I answer that,_ Whatever is for an end should be proportionate to that end. Now the end of law is the common good; because, as Isidore says (Etym. v, 21) that ”law should be framed, not for any private benefit, but for the common good of all the citizens.” Hence human laws should be proportionate to the common good. Now the common good comprises many things. Wherefore law should take account of many things, as to persons, as to matters, and as to times. Because the community of the state is composed of many persons; and its good is procured by many actions; nor is it established to endure for only a short time, but to last for all time by the citizens succeeding one another, as Augustine says (De Civ. Dei ii, 21; xxii, 6).
Reply Obj. 1: The Philosopher (Ethic. v, 7) divides the legal just, i.e. positive law, into three parts. For some things are laid down simply in a general way: and these are the general laws. Of these he says that ”the legal is that which originally was a matter of indifference, but which, when enacted, is so no longer”: as the fixing of the ransom of a captive. Some things affect the community in one respect, and individuals in another. These are called ”privileges,” i.e. ”private laws,” as it were, because they regard private persons, although their power extends to many matters; and in regard to these, he adds, ”and further, all particular acts of legislation.” Other matters are legal, not through being laws, but through being applications of general laws to particular cases: such are decrees which have the force of law; and in regard to these, he adds ”all matters subject to decrees.”
Reply Obj. 2: A principle of direction should be applicable to many; wherefore (Metaph. x, text. 4) the Philosopher says that all things belonging to one genus, are measured by one, which is the principle in that genus. For if there were as many rules or measures as there are things measured or ruled, they would cease to be of use, since their use consists in being applicable to many things. Hence law would be of no use, if it did not extend further than to one single act. Because the decrees of prudent men are made for the purpose of directing individual actions; whereas law is a general precept, as stated above (Q. 92, A. 2, Obj. 2).
Reply Obj. 3: ”We must not seek the same degree of certainty in all things” (Ethic. i, 3). Consequently in contingent matters, such as natural and human things, it is enough for a thing to be certain, as being true in the greater number of instances, though at times and less frequently it fail.
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SECOND ARTICLE [I-II, Q. 96, Art. 2]
Whether It Belongs to the Human Law to Repress All Vices?
Objection 1: It would seem that it belongs to human law to repress all vices. For Isidore says (Etym. v, 20) that ”laws were made in order that, in fear thereof, man's audacity might be held in check.”
But it would not be held in check sufficiently, unless all evils were repressed by law. Therefore human laws should repress all evils.
Obj. 2: Further, the intention of the lawgiver is to make the citizens virtuous. But a man cannot be virtuous unless he forbear from all kinds of vice. Therefore it belongs to human law to repress all vices.
Obj. 3: Further, human law is derived from the natural law, as stated above (Q. 95, A. 2). But all vices are contrary to the law of nature.
Therefore human law should repress all vices.
_On the contrary,_ We read in _De Lib. Arb._ i, 5: ”It seems to me that the law which is written for the governing of the people rightly permits these things, and that Divine providence punishes them.” But Divine providence punishes nothing but vices. Therefore human law rightly allows some vices, by not repressing them.
_I answer that,_ As stated above (Q. 90, AA. 1, 2), law is framed as a rule or measure of human acts. Now a measure should be h.o.m.ogeneous with that which it measures, as stated in _Metaph._ x, text. 3, 4, since different things are measured by different measures. Wherefore laws imposed on men should also be in keeping with their condition, for, as Isidore says (Etym. v, 21), law should be ”possible both according to nature, and according to the customs of the country.”
Now possibility or faculty of action is due to an interior habit or disposition: since the same thing is not possible to one who has not a virtuous habit, as is possible to one who has. Thus the same is not possible to a child as to a full-grown man: for which reason the law for children is not the same as for adults, since many things are permitted to children, which in an adult are punished by law or at any rate are open to blame. In like manner many things are permissible to men not perfect in virtue, which would be intolerable in a virtuous man.
Now human law is framed for a number of human beings, the majority of whom are not perfect in virtue. Wherefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft and such like.
Reply Obj. 1: Audacity seems to refer to the a.s.sailing of others.
Consequently it belongs to those sins chiefly whereby one's neighbor is injured: and these sins are forbidden by human law, as stated.
Reply Obj. 2: The purpose of human law is to lead men to virtue, not suddenly, but gradually. Wherefore it does not lay upon the mult.i.tude of imperfect men the burdens of those who are already virtuous, viz.
that they should abstain from all evil. Otherwise these imperfect ones, being unable to bear such precepts, would break out into yet greater evils: thus it is written (Ps. 30:33): ”He that violently bloweth his nose, bringeth out blood”; and (Matt. 9:17) that if ”new wine,” i.e. precepts of a perfect life, ”is put into old bottles,”
i.e. into imperfect men, ”the bottles break, and the wine runneth out,” i.e. the precepts are despised, and those men, from contempt, break into evils worse still.
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