Part II (Pars Prima Secundae) Part 150 (2/2)
Wherefore in such matters human law should not be obeyed.
Reply Obj. 3: This argument is true of a law that inflicts unjust hurt on its subjects. The power that man holds from G.o.d does not extend to this: wherefore neither in such matters is man bound to obey the law, provided he avoid giving scandal or inflicting a more grievous hurt.
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FIFTH ARTICLE [I-II, Q. 96, Art. 5]
Whether All Are Subject to the Law?
Objection 1: It would seem that not all are subject to the law. For those alone are subject to a law for whom a law is made. But the Apostle says (1 Tim. 1:9): ”The law is not made for the just man.”
Therefore the just are not subject to the law.
Obj. 2: Further, Pope Urban says [*Decretals. caus. xix, qu. 2]: ”He that is guided by a private law need not for any reason be bound by the public law.” Now all spiritual men are led by the private law of the Holy Ghost, for they are the sons of G.o.d, of whom it is said (Rom. 8:14): ”Whosoever are led by the Spirit of G.o.d, they are the sons of G.o.d.” Therefore not all men are subject to human law.
Obj. 3: Further, the jurist says [*Pandect. Justin. i, ff., t.i.t. 3, De Leg. et Senat.] that ”the sovereign is exempt from the laws.” But he that is exempt from the law is not bound thereby. Therefore not all are subject to the law.
_On the contrary,_ The Apostle says (Rom. 13:1): ”Let every soul be subject to the higher powers.” But subjection to a power seems to imply subjection to the laws framed by that power. Therefore all men should be subject to human law.
_I answer that,_ As stated above (Q. 90, AA. 1, 2; A. 3, ad 2), the notion of law contains two things: first, that it is a rule of human acts; secondly, that it has coercive power. Wherefore a man may be subject to law in two ways. First, as the regulated is subject to the regulator: and, in this way, whoever is subject to a power, is subject to the law framed by that power. But it may happen in two ways that one is not subject to a power. In one way, by being altogether free from its authority: hence the subjects of one city or kingdom are not bound by the laws of the sovereign of another city or kingdom, since they are not subject to his authority. In another way, by being under a yet higher law; thus the subject of a proconsul should be ruled by his command, but not in those matters in which the subject receives his orders from the emperor: for in these matters, he is not bound by the mandate of the lower authority, since he is directed by that of a higher. In this way, one who is simply subject to a law, may not be subject thereto in certain matters, in respect of which he is ruled by a higher law.
Secondly, a man is said to be subject to a law as the coerced is subject to the coercer. In this way the virtuous and righteous are not subject to the law, but only the wicked. Because coercion and violence are contrary to the will: but the will of the good is in harmony with the law, whereas the will of the wicked is discordant from it. Wherefore in this sense the good are not subject to the law, but only the wicked.
Reply Obj. 1: This argument is true of subjection by way of coercion: for, in this way, ”the law is not made for the just men”: because ”they are a law to themselves,” since they ”show the work of the law written in their hearts,” as the Apostle says (Rom. 2:14, 15).
Consequently the law does not enforce itself upon them as it does on the wicked.
Reply Obj. 2: The law of the Holy Ghost is above all law framed by man: and therefore spiritual men, in so far as they are led by the law of the Holy Ghost, are not subject to the law in those matters that are inconsistent with the guidance of the Holy Ghost.
Nevertheless the very fact that spiritual men are subject to law, is due to the leading of the Holy Ghost, according to 1 Pet. 2:13: ”Be ye subject ... to every human creature for G.o.d's sake.”
Reply Obj. 3: The sovereign is said to be ”exempt from the law,” as to its coercive power; since, properly speaking, no man is coerced by himself, and law has no coercive power save from the authority of the sovereign. Thus then is the sovereign said to be exempt from the law, because none is competent to pa.s.s sentence on him, if he acts against the law. Wherefore on Ps. 50:6: ”To Thee only have I sinned,” a gloss says that ”there is no man who can judge the deeds of a king.” But as to the directive force of law, the sovereign is subject to the law by his own will, according to the statement (Extra, De Const.i.t. cap. c.u.m omnes) that ”whatever law a man makes for another, he should keep himself. And a wise authority [*Dionysius Cato, Dist. de Moribus]
says: 'Obey the law that thou makest thyself.'” Moreover the Lord reproaches those who ”say and do not”; and who ”bind heavy burdens and lay them on men's shoulders, but with a finger of their own they will not move them” (Matt. 23:3, 4). Hence, in the judgment of G.o.d, the sovereign is not exempt from the law, as to its directive force; but he should fulfil it to his own free-will and not of constraint.
Again the sovereign is above the law, in so far as, when it is expedient, he can change the law, and dispense in it according to time and place.
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SIXTH ARTICLE [I-II, Q. 96, Art. 6]
Whether He Who Is Under a Law May Act Beside the Letter of the Law?
Objection 1: It seems that he who is subject to a law may not act beside the letter of the law. For Augustine says (De Vera Relig. 31): ”Although men judge about temporal laws when they make them, yet when once they are made they must pa.s.s judgment not on them, but according to them.” But if anyone disregard the letter of the law, saying that he observes the intention of the lawgiver, he seems to pa.s.s judgment on the law. Therefore it is not right for one who is under the law to disregard the letter of the law, in order to observe the intention of the lawgiver.
Obj. 2: Further, he alone is competent to interpret the law who can make the law. But those who are subject to the law cannot make the law. Therefore they have no right to interpret the intention of the lawgiver, but should always act according to the letter of the law.
Obj. 3: Further, every wise man knows how to explain his intention by words. But those who framed the laws should be reckoned wise: for Wisdom says (Prov. 8:15): ”By Me kings reign, and lawgivers decree just things.” Therefore we should not judge of the intention of the lawgiver otherwise than by the words of the law.
_On the contrary,_ Hilary says (De Trin. iv): ”The meaning of what is said is according to the motive for saying it: because things are not subject to speech, but speech to things.” Therefore we should take account of the motive of the lawgiver, rather than of his very words.
_I answer that,_ As stated above (A. 4), every law is directed to the common weal of men, and derives the force and nature of law accordingly. Hence the jurist says [*Pandect. Justin. lib. i, ff., t.i.t. 3, De Leg. et Senat.]: ”By no reason of law, or favor of equity, is it allowable for us to interpret harshly, and render burdensome, those useful measures which have been enacted for the welfare of man.” Now it happens often that the observance of some point of law conduces to the common weal in the majority of instances, and yet, in some cases, is very hurtful. Since then the lawgiver cannot have in view every single case, he shapes the law according to what happens most frequently, by directing his attention to the common good.
Wherefore if a case arise wherein the observance of that law would be hurtful to the general welfare, it should not be observed. For instance, suppose that in a besieged city it be an established law that the gates of the city are to be kept closed, this is good for public welfare as a general rule: but, it were to happen that the enemy are in pursuit of certain citizens, who are defenders of the city, it would be a great loss to the city, if the gates were not opened to them: and so in that case the gates ought to be opened, contrary to the letter of the law, in order to maintain the common weal, which the lawgiver had in view.
Nevertheless it must be noted, that if the observance of the law according to the letter does not involve any sudden risk needing instant remedy, it is not competent for everyone to expound what is useful and what is not useful to the state: those alone can do this who are in authority, and who, on account of such like cases, have the power to dispense from the laws. If, however, the peril be so sudden as not to allow of the delay involved by referring the matter to authority, the mere necessity brings with it a dispensation, since necessity knows no law.
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