Selections from Three Works. Francisco Suárez
12. Privileges are true laws.11 Nevertheless, I am of the opinion that the said condition was not laid down by Isidore, to the exclusion of privilege from the essential realm of law. For in the first place, this same Gloss (on Decretum, Pt. I, dist. III, can. iii) declares that a privilege is law, and requires of it a compliance with certain other conditions which are laid down by Isidore as he is quoted in a different passage (Decretum, Pt. I, dist. IV, can. ii). Another reason for my opinion is the fact that the clause in question was framed for the immediate purpose of excluding tyrannical laws, or those which do not tend toward the common good, even though it may be that they do not look to any private good, either; so that evil laws are necessarily excluded through the said condition, even if they are not privileges. Finally, my opinion is supported by the fact that it was perhaps not needful to exclude privileges. This is a point which I shall discuss in the proper context. For the present, I shall merely assert that, in so far as relates to the common good, it is not unreasonable that a privilege should have the character of law. For even though its proximate subject-matter may be the private good of a particular family or household, or that of particular individuals—this being, perhaps, the reason that Isidore gave privileges the name of ‘private law’, in the Chapter12 of the Decretum above cited (Pt. I, dist. III,
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can. iii)—nevertheless, from a formal standpoint, [a privilege] should look also to the common good. In this connexion, one may consult the Decretum (Pt. II, causa I, qu. vii, can. v, argument, and Section Nisi rigor [same canon]; also Pt. II, causa I, qu. vii, can. xvi) and the remarks of St. Thomas (I.–II, qu. 97, art. 4, ad 1). For the good conceded by the privilege should be a private good [only] in such a way as to redound to the common welfare, in the fashion explained above. Moreover, the particular grant of privilege should be of so rational a nature, that it will work to the common advantage if [other, and] similar privileges are granted for similar causes. Privileges, then, are not excluded from the strict and essential character of law, under this head. And as to the question of whether they are excluded on the ground that they relate to private individuals, or whether they may [in spite of this fact] be laws in the true sense of the term—especially if they are of a perpetual nature—that is a matter which we shall discuss in Book Ten.13
13. The question is less difficult in regard to laws of taxation. For these laws are imposed upon a community (a fact which is self-evident) and relate directly to the common good; since, as I have said, though they may seem to be directed to the advantage of the prince, nevertheless, if they are to be true laws, they must have in view the common welfare; because such taxes are granted to the king only to the extent that he is a public personage pertaining to the whole community,14 and on condition that he shall use them for the good of the community. Thus a canon of the Council of Toledo (Eighth Council, Chap. X, De Regibus)15 contains the qualification: ‘Not having respect to those rights which concern private advantage, but taking counsel for the country and the people.’
14. As to the other part of the objections, we may make the general reply that it is a natural characteristic of human affairs that they are not uniform in every way. And thus it frequently happens that what is expedient for the whole community, will be harmful to this
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or that individual; but, since the common good is preferred to private good whenever the two cannot exist simultaneously, therefore, laws are made in absolute form, for the sake of the common good, and take no account of individual cases. This point is brought out in a number of laws (Digest, I. iii and ibid., i; Decretals, Bk. III, tit. XXXI, chap. xviii and Decretum, Pt. II, causa VII, qu. i, can. xxxv). However, it is sometimes the case that several kingdoms, or several communities, are gathered together under one king; externally (so to speak) since, in actual fact, they do not form among themselves a single political body, but have come under the power of that king through various titles, and as the result of external accidents. In such cases, it would be unjust to bind the different kingdoms by the same laws, if those laws were advantageous to one kingdom, and not advantageous to another. For under these circumstances, the comparison would be made, not as between the common and the private good, but as between one common good and another, also common, each of which requires, per se and separately, that provision be made for it through its own laws just as if it were still under a separate king; even after the manner adopted by the Pope, when he lays down [separate] rules for different religious orders, in so far as they are distinct communities, each in need of its own laws. On the other hand, when the various communities are [in reality] parts of one and the same kingdom, or political body, then the welfare of each individual part is to be regarded as private in relation to the welfare of the whole, for which the laws are essentially and primarily made.
Two precautions, however, should be taken. For one thing, the harm to private individuals should not be so multiplied as to outweigh the advantages accruing to other persons. Again, dispensations or exceptions should when needed be annexed [to laws]; for in such cases of necessity, this is in the highest degree permissible, and sometimes even a matter of obligation.
15. From the foregoing we readily perceive what statements should be made regarding harm to private persons. For harm of this sort is accorded less consideration and consequently is sometimes permitted, as in the case of prescription, which regards the common good; that is to say, it regards peace, the avoidance of litigation, &c. At times, such harm is actually [one
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of the ends] sought [by legislation]; for example, by punitive laws, which are at the same time necessary to the common good.
Thus we have the explanation of the two other conditions of law laid down by Isidore, in the same passage [cited in Decretum, Pt. I, dist. IV, can. ii], namely, that law must be necessary, and that it must be useful. These conditions are explained by St. Thomas (I.–II, qu. 95, art. 3) in such a way that he connects necessity with the removal of evil (as when a law is made in order to avert some evil from the state) and utility, with the promotion of good; a distinction which is well made, in that it prevents either of the two conditions from seeming to be redundant. Nevertheless, in both cases, the promotion of the common welfare should be borne in mind. For a given evil must be removed in such a way that no other greater evil will afflict the state in consequence; since otherwise, the law in question would be, not necessary, but pernicious. And again, a given useful result must be attained in such fashion as not to impede thereby the attainment of a result still more useful, nor to afflict the community in consequence with evils greater [than those from which it would otherwise have suffered]. All these terms, then, serve to explain one and the same property in law, although they explain it in diverse aspects, for the purpose of a fuller exposition, a fact which suffices to prevent the said terms from being superfluous.
16. Is a general law, established with the intention of injuring a particular individual, unjust and invalid? At this point, it is customary to inquire whether a law established in general terms, but with the intention or fraudulent design of having it work harm to a single individual, is unjust, or invalid.
For the jurists are wont to say that such a law is so unjust that it is permissible to appeal therefrom, or to take exception to it on the ground of fraud. Statements to this effect may be found in the comments of Bartolus on the Digest, (I. i. 9, qu. 5, no. 53), Panormitanus (on Rubric of Decretals, Bk. I, tit. II, no. 2), Felinus (on Decretals, Bk. I, tit. II, chap. vi, no. 5), Jason [on Digest, I. iii. 1, no. 4] and Gregory López, as cited above [on Las Siete Partidas, Pt. I, tit. i, law 9].
Nevertheless, these authors do not hold that laws of this kind are always invalid, or unjust. For doubtless they may sometimes be enacted for a
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reasonable cause, permitting harm to a private individual for the sake of the common good, rather than [deliberately] seeking to inflict such harm, or even seeking to do so as a just penalty. Again, if it so chances that the lawmaker was moved by an unjust intention owing to private hatred, that fact (as has been said above) will not be detrimental to the law itself, nor to the justice thereof, if in other respects this law is necessary to the common good. So Felinus has declared at length, in the passage already cited [on Decretals, Bk. I, tit. II, chap. vi, concl. 1]. Moreover, he adds (ibid., concl. 3) that the same