Selections from Three Works. Francisco Suárez
The foregoing satisfies the reasons for doubt, with regard to the first two heads.18 For in the sense in which the term is here used, law is the measure, not of all acts whatsoever, but of moral acts, with respect to their absolute goodness and rectitude, by reason of which rectitude, law impels one to perform these actions. It is in this sense that Clement of Alexandria has said (Stromata, Bk. I [, chap. xxvi]): ‘Law is the rule of the just and the unjust.’
The last objection,19 however, postulates a distinction between counsel and law, a matter which is a cause of prolonged dispute with the heretics, although that dispute is not pertinent to the present context. Some persons hold, then, that ‘law’ is to be taken in two senses: in one sense, as a binding precept, and thus distinct from counsels; and in another sense, as any dictate of reason with regard to the righteousness of an act; according to which latter interpretation (so they maintain), the term ‘law’ includes counsels. For St. Thomas says (I.–II, qu. 19, art. 4) that every good act depends, in its goodness, upon the eternal law; and the acts enjoined by counsels are good in the highest degree; hence, such acts are included under the eternal law. However, if one is speaking (as we now are) of law in the strict sense of the term, only that is law which imposes an obligation of some sort; a point that we shall discuss more fully below.
8. Nevertheless, one should take into consideration the fact that sometimes there is laid down a law which relates to the performance of an act, so that it renders the act itself obligatory, as is the case, for instance, with the law of almsgiving; whereas at other times a law is made which deals only with the special quality of the action, or its mode of performance, a law which, although it does not require the performance of the act, does nevertheless require that, if the said act is performed, a particular mode of execution shall be observed. Of this nature, for example, is the law of attentive prayer. This precept, although it does not render obligatory the
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act of praying, nevertheless does impose the obligation to pray with attention if one prays at all. With respect to laws of this second class, then, it is, in a universal sense, true that (as St. Thomas has stated in the passage cited immediately above) every act, to the extent that it is a good act, must be in conformity with the eternal law; that is to say, with the eternal law as it prescribes a due method of performance. This conclusion applies also to the acts performed under counsel. Nevertheless, these acts, viewed as such, are not said to come under ‘acts of counsel’; rather, they are thus classified to the extent that their practice or performance is counselled, not prescribed.20 And, speaking in this sense, we must absolutely deny that counsel is included within the field of law.
The difference between law and counsel. Moreover, counsel is excluded from the description of law given above, either because counsel is not, properly speaking, a rule or measure of the goodness of an action, since [such rules] consist rather in the laws which prescribe a given mode of action; or else because, morally speaking, counsel does not induce to action effectually, that is to say, by imposing a moral necessity of action, whereas, when it is said that law induces to action, the statement must be understood in this sense [namely, as involving moral necessity].
9. The etymology of the term ‘law’. From these considerations, St. Thomas, in the article cited (I.–II, qu. 90, art. 1) drew his conclusion as to the etymology of law. For he held that the term was derived from ligandum (binding), since the true effect of law is to bind, or place under a binding obligation. This view was adopted by Gabriel (on the Sentences of Peter Lombard, Bk. III, dist. xxxvii, art. 1). Clichtove (on Joannes Damascenus’, De Fide Orthodoxa, Bk. IV, chap. xxiii) quoted the same explanation of the etymology of law, from Cassiodorus, and approved it. Moreover, the opinion in question is in agreement with Scripture, which speaks of laws as bands, in a passage from Jeremias (Chap. ii [, v. 20]): ‘Thou hast broken my yoke, thou hast burst my bands.…’
But Isidore (Etymologies, Bk. II, chap. x and Bk. V, chap. iii) believes that law (lex) is so called from legendum (that which is to be read), a
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conclusion which he deduces from the fact that law ought to be written, and therefore is something to be read. However, since we are now dealing with law in a rather broad sense, the word legendum should be extended to include internal reading or reflection, as Alexander of Hales has noted ([Summa Universae Theologiae,] Pt. III, qu. xxvi, memb. 1), in order that this etymology may be suited to every law. For, just as the natural law is said by Paul (Romans, Chap. ii [, v. 15]) to be written in the heart, so it can and should also be read there by the mind; that is, it can and should be meditated and reflected upon, so that one’s conduct may be guided in conformity therewith, according to the passage in the Psalms, cxviii [, v. 105]: ‘Thy word is a lamp to my feet.’ Moreover, in harmony with this same etymology is the Hebrew name for law (Tora), which signifies ‘instruction’.
Finally, others hold that law is so called from eligendum (that which is to be selected), either because it ought to be enacted after an extensive and prudent process of choosing, or else because it points out to each individual the course which he should choose. Thus St. Augustine says, in his Questions on the Old and New Testament ([Pt. II,] qu. 15), if that is, indeed, his work: ‘Law (lex) is derived from lectio (a collection), that is, from electio (a choosing); [for it is made] in order that you may know what course to select from among many.’21
Cicero, indeed, declares (On Laws, Bk. I [, chap. vi, § 19]) that the name is derived from legendum (in the [primary] sense of ‘selecting’). ‘For’ (so Cicero says) ‘we give to the term “law” the force of “selection”, just as the Greeks call law νόμος, that is to say, [drawing the term] from the idea of granting’ to each man that which is his own,22 since law ought to be just. Accordingly, still other authorities derive the word lex from the fact that law legitimately moderates human actions, a derivation cited by Torquemada (on Decretum, Pt. I, dist. I, can. iii).
All these derivations, then, involve some explanation truly pertinent to law. The source from which the word is derived, however, is doubtful, and a matter of slight importance.
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CHAPTER II
What Ius Means and How It Is to Be Compared with Lex
1. This word [i.e. ius] is frequently used in connexion with the subject under discussion and is sometimes taken as a synonym for lex, a fact that is made evident by the Institutes (II. i, § 11) and the Digest (I. iii. 16), although at other times ius is taken in other senses also. Accordingly, it is necessary to explain the word ius, and to compare it with lex.
Various derivations for the term ius. First, however, we should note that three etymologies are wont to be ascribed to the former term.
The first. The first explanation is that ius is so called because it is close (iuxta). As to this explanation Connan (Commentary on the Civil Law, Bk. I [, chap. ii]) may be consulted. For I am passing it over, since it is not convincing to me; because, if we are considering the external form of the respective terms, there is no relation between them, iuxta being written not with an ‘s’ as is ius but with an ‘x’, and if, on the other hand, it is the meaning that claims our attention, iuxta esse does not mean ‘to be equal’, but simply, ‘to be close at hand’. Moreover, though the phrase does at times imply similitude or equality in some function or action, nevertheless, such an implication is made in a sense far removed from that of equity, which ius suggests. Consequently, this first derivation seems to me unlikely and far-fetched.
The second derivation. The second explanation, and one more widely accepted among Latin peoples, is that which derives the name ius from iubere (to command). For iussum is a participle of the verb iubeo; and if we take the second syllable from the participle iussum, ius is left; or, indeed, if one divides these two syllables, a sentence will be constructed in which iussum itself, or [the personification of] authority, will assert that it is ius, saying, ius sum (I am ius).
2. The third derivation. The third etymological explanation derives the term ius from iustitia. For Ulpian has said (in Digest, I. i. 1), in accordance with this explanation: ‘ius, indeed, is so called from iustitia.’ Some persons assail this derivation on the ground that iustitia is derived