Selections from Three Works. Francisco Suárez
xvi. 1, § 4) declares: ‘Grandsons7 succeed to the position of sons, by natural equity’; and again (ibid., XLVIII. xvii. 1): ‘The very nature of equity suffers no one to be condemned unheard.’8 To this kind of equity, ‘the equitable’, in the general sense of the term, corresponds. Thus it is that the Digest (XII. vi. 14) says: ‘This is naturally equitable: that no person be enriched to the hurt of another.’9 Moreover, equity so interpreted, is not an emendation of [legal] justice (ius), but rather the source or rule thereof, as the Digest (L. xvii. 91 [90]) indicates in the statement: ‘In all matters, but especially in law (ius), equity must be considered.’
10. Aequitas may be taken in another sense, however, as being a prudent moderation of the written law (lex scripta), transcending the exact literal interpretation of the latter; and, in this sense, aequitas is spoken of in the Digest (XXXIX. iii. 2, § 5) as being opposed to ius in its strict meaning.
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So, also, Terentius Clemens has said: ‘Between ius and aequitas, there is this distinction: ius is that which exacts that all things be strict and inflexible; whereas aequitas to a great extent abates the rigour of ius.’ Furthermore, in view of this interpretation of ‘equity’, the terms ‘equitable’ (aequum) and ‘good’ (bonum) are applied—by antonomasia so to speak—to that which does indeed of itself possess these qualities, even though it may appear to be at variance with the letter of the law (lex). Aristotle, too, understood ‘equity’ in this sense, when he spoke of it as the emendation of that which is just, that is to say, legal, and gave to the virtue from which it springs the name of epieikeia (equitable interpretation).10 St. Thomas also (II.–II, qu. 120) enters into a discussion of this virtue. For to this [form of equity] does it pertain to act, in particular cases, in opposition to the words of human law (lex), when the observance of that law would be contrary to natural equity. Under such circumstances, indeed, the judge is said to act, not according to law (iure)—not at least, according to the letter of the law as it stands—but in accordance with what is equitable and good; and this, in turn, is to observe the law (ius) itself, with respect to its intention, while the contrary mode of action would be to violate the law. Such is the view expressed in the Code of Justinian (Code, I. xiv. 5): ‘There is no doubt but that he attacks the law (lex) who, while accepting its words, labours against its spirit.’ And therefore, it is possible that jurisprudence has been called the art of the good and the equitable because, in the interpretation of the laws, the good and the equitable should always be regarded; even if it be needful at times to temper the rigour of the words, in order not to depart from what is naturally equitable and good. For a further discussion of this matter, see Covarruvias (on Sext, De Regulis Iuris, rule possessor Pt. II, § 6, no. 3).
11. Concerning the distinction between ius and fas. Another point should be made clear, namely, the question of what fas is and how it may be
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compared with ius and lex. For Isidore (Etymologies, Bk. V; chap. ii) says: ‘Fas is divine law; ius is human law.’ The same distinction is brought out in the Decretum (Pt. I, dist. I, can. i), where it is expounded with the aid of this example: ‘[The right] to pass through another’s field is fas; it is not ius.’ But it would seem that all this should be interpreted in accordance with the passage immediately following; for, in that passage, ius is understood strictly in the sense of ‘written law’ (lex), and fas, in the sense of ‘equity’ and as a just exception—so to speak—[from the letter of the law]. Thus, in the example above-mentioned, passing through another’s field is spoken of as not being ius, for the reason that it is in general prohibited rather [than permitted] by human law (lex); and nevertheless, if this act of transit is performed for reasonable cause and without consequent damage, it is fas, that is to say, it is permissible. Moreover, this is the explanation contained in the Gloss with respect to the passage in question; as it is also the explanation given by Henry of Ghent (Quodlibeta, IX, qu. 2 [qu. 26]).
St. Thomas (II.–II, qu. 57, art. 1, ad ult.), however, offers a different explanation of the words above quoted. For he maintains that the term ius, in accordance with a certain exclusive signification, befits the laws (legibus) which are ordained for men in their mutual relationships rather than those laws which govern men in their relation to God; because we cannot render our account to God on a basis of equality, and therefore (according to St. Thomas) fas rather than ius is the term for law (lex) in so far as the latter has regard to [man’s relationship with] God.
But, whatever the fact may be with respect to this exclusive significance of the word ius—a significance that is not alien to Latin usage—fas is called divine law by Isidore, not because it regulates the rendering of [man’s] debt to God, but because it is based upon natural equity and consequently upon natural reason, which is divine law.
However, leaving aside the metaphorical connotations and the distinctions which are not pertinent to our present purpose, we shall deal here, in a general sense, with ius in its second and proper connotation; and accordingly, the term will become synonymous with lex, in so far as we shall now be speaking of lex, too, in its general aspect.
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CHAPTER III
The Extent of the Necessity for Laws, and of Their Variety
1. Having treated of the terms ius and lex, we must first demonstrate, before we inquire into the nature of lex, that it actually exists.
This demonstration will best be effected by explaining the necessity for lex; since, in these matters which relate to the moulding of moral conduct (mores), nothing superfluous should be allowed, nor may anything necessary be lacking. Necessity, however, is usually divided into two kinds. One is the absolute necessity in accordance with which a given thing is said to be necessary of itself and for itself, in an absolute sense. Thus, there is attributed to God a necessity for His existence in accordance with His actual existence; and it is of this necessity that we are now speaking. The second kind is a relative necessity, having respect to some particular end or effect. This kind is subdivided into two phases: one phase is that of simple necessity; the other, that of necessity for the attainment of the better state, this latter phase being, in stricter parlance, utility.
2. Law, in an absolute sense, was not necessary. Accordingly, two points seem, generally speaking, to be certain. The first point is this: absolute necessity does not pertain to law as such. The proof of this assertion is as follows: such necessity is an attribute proper to God, Who alone is a Being existent per se and necessary in an absolute sense; whereas every law is either a created thing or at least one which presupposes the existence of some creature on whose account it is established; for God cannot be subjected to law; and therefore, inasmuch as a created thing is not absolutely necessary, law in like manner lacks the attribute of absolute necessity. In addition, I shall state that, if one is speaking of law in the strict sense of the term (as we are now doing), it can [be considered to] exist only in view of some rational creature; for law is imposed only upon a nature that is free, and has for its subject-matter free acts alone, a point which we shall note below; accordingly, law cannot be more necessary than a rational or intellectual creature; and rational creatures are not characterized by an absolute necessity for their existence; therefore, neither is law itself characterized by this sort of necessity.
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The sole doubt that could occur in this connexion would be one relating to the eternal law, which we shall for the present assume to exist. For that law is God Himself; therefore, it is as immutable and eternal as He, and consequently, as necessary. However, I shall reply briefly that what constitutes eternal law is indeed absolutely necessary, as the argument proves, but that it does not possess this attribute in its character as law, since it embraces a connotation of freedom, a point that I shall demonstrate below.1
3. If the creation of a rational creature is assumed to have taken place, law has become useful, and absolutely necessary in the necessity of its purpose. Secondly, I make the following assertion: if the creation of rational creatures is assumed to have taken place, law, both absolutely and with a view to attaining the better state, has become necessary in the necessity of its purpose. This truth is (so to speak), in connexion with the subject under discussion, a self-evident principle.
Moreover,