Selections from Three Works. Francisco Suárez
divine laws; since the latter have always been laid down in a manner eminently in harmony with divine worship and religion, for given times and given peoples, as we shall see later when we treat of such laws, and as one may well infer from the words of the Apostle to the Hebrews (Chap. vii [, v. 12]): ‘the priesthood being translated, it is necessary that a translation also be made of the law.’ For even though that statement was made with special reference to the Old Law, it may rightly be based upon this condition of law, namely, that law should be in harmony with religion, so that a change in the former is consequently necessary when religious rites have undergone change. Thus Augustine is wont to explain on this basis the consonance and character of the two kinds of law; a matter on which he touches in the Confessions (Bk. III, chap. xxxvii [chap. vii]), and which he pursues at length in his work Against Faustus, and in numerous other passages.
Again, human laws, if they are canonical, are by their very nature directed primarily to the ends of divine worship and religion; and accordingly, almost every one of them deals with this subject-matter. A few [individual precepts], indeed, may be concerned with other subjects; but even in these cases, there is always the greatest regard for that which befits and harmonizes with religion.
Finally, with respect to civil laws, while these do not per se serve such an end, they are nevertheless subordinate to it, and consequently should not
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be incompatible therewith; if they are incompatible, they cannot be just; and in this sense, civil laws should be in harmony with religion.
For the condition in question may be expounded from either a positive or a negative standpoint; and even though the former standpoint is applicable in the case of certain laws, in regard to other laws the latter suffices, that is to say, it suffices that such laws shall be not incompatible with the true religion; all of which is a matter pertaining to their righteousness.
10.12 Thirdly, Isidore [Etymologies, Bk. V, chap. iii] requires of law ‘that it shall be agreeable to [moral] discipline’; a condition which is explained by St. Thomas [I.–II, qu. 95, art. 3, with the comment,] ‘because it should be in due proportion to the law of nature’.13 This proportion must consist in nothing more nor less than the quality of not deviating from the precepts and rules of the law of nature; since a human lawgiver ought to conduct himself in his legislative acts as a disciple of natural law (so to speak), and ought to prescribe those things which are in harmony with its teaching.
These assertions are, to be sure, correct. Nevertheless, if we interpret this condition as referring to discipline in relation to the subjects [upon whom laws are imposed], we may well say that every law lays down suitable doctrines for its subjects, and is thus agreeable to discipline;14 since every law is a species of instruction for the subjects, in accordance with the words [of the Psalmist (Psalms, xviii, v. 8)]: ‘The law of the Lord is unspotted, … giving wisdom to little ones.’15 For every just law is, in a sense, a law of the Lord, and gives wisdom to little ones; accordingly, it is, with respect to those little ones, a species of doctrine; and therefore, it is rightly asserted of all law, that it should be agreeable to discipline. But the instruction in habits of conduct (for it is of such instruction that
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we are speaking) which is said to be in consonance with discipline, is that which promotes virtue, or that which promotes other ends in such a way as to do no injury to righteous habits, being, rather—to the extent of its influence—advantageous to such habits. For this [third] condition, also, may be interpreted either positively or negatively; and both modes of interpretation are adequate, each in due proportion. To be sure, it is hardly possible that there should exist any law not repugnant to righteous habits of conduct, which would not be in some way agreeable to righteous discipline, assuming—as is indicated in the last of the [three] conditions mentioned—that with respect to its remaining qualifications, the said law is beneficial to the state.
For Isidore [Etymologies, Bk. V, ch. iii] adds [another requirement for law], namely, ‘that it shall be conducive to welfare’.16 St. Thomas I.–II, qu. 95, art. 3, interprets this condition, saying, ‘in so far as it is adapted to the advantage of mankind’, whereby he relates this requirement to the one mentioned above, the utility of law in promoting the common good. And in this sense, the said condition may be applied to every law, as we have already explained. However, it is possible to interpret the phrase in question theologically, as referring to the salvation of the soul, in preference [to the interpretation first suggested]. This spiritual welfare may have been what Isidore had in mind. For the Holy Fathers are wont to refer to such welfare by the term salus. If a law is just, it will indeed conform to such a condition,17 since observance of a just law is essentially conducive to salvation.18
Thus all these [qualifying] remarks constitute [simply] an exposition of the righteousness of law, in so far as relates to the required observance thereof on the part of the subject. Nor are the said remarks superfluous for that reason. For the consideration of these diverse aspects [of law’s righteousness] leads to a clearer understanding of that quality of law, and of its relation to higher goods that pertain both to God and to the soul.
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11.19 The second corollary: A law devoid of righteousness not only has not the nature of [true] law, but furthermore is neither binding nor capable of being obeyed. Our second inference [from the first assertion], above set forth, is: a law not characterized by this justice or righteousness is not a law, nor does it possess any binding force; indeed, on the contrary, it cannot be obeyed.
This is clearly true, because justice that is opposed to this quality of righteousness in law, is in opposition to God Himself, since it involves guilt, and offence against Him; and therefore, it cannot licitly be obeyed, because it is not possible licitly to offend God. Furthermore, injustice of this sort is to be found only in laws laid down by men; but one must obey God rather than men; and therefore, such laws cannot be observed in opposition to the obedience due to God, just as one does not obey the praetor in defiance of a command issued by the king. So Augustine argues, a fortiori (De Verbis Domini, Bk. I, serm. vi, c. 8 [Sermons, lxii, no. 8, Migne ed.]).
In cases of doubt as to the righteousness of a law, it must be assumed to be righteous, and accordingly, must be obeyed. However, all the Doctors indicate that the evidence of injustice in the law must be such as to constitute a moral certainty. For if the matter is doubtful, a presumption must be made in favour of the lawgiver; partly because he has and is in permanent possession of a superior right; partly, also, because he is directed by superior counsel and may be moved by general reasons hidden from his subjects; and partly because the subjects, if this presumption in his favour did not exist,20 would assume an excessive licence to disregard the laws, since the latter can hardly be so just that it is impossible for them to be treated as doubtful, by some individuals, apparently for plausible reasons. Such, indeed, was the opinion upheld by Augustine (Against Faustus, Bk. XXII, chaps. [lxxiv and] lxxv), and quoted in the Decretum (Pt. II, causa XXIII, qu. i, can. iv).
The question, indeed, of the degree of certitude—regarding this injustice in a law—that is necessary in order to oblige men not to obey that law, is repeatedly dealt with in comments on I.–II [, qu. 96, art. 4],
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on conscience. Furthermore, we shall make some comments on this same point below,21 when we discuss the binding force of law, and especially that of human law. For doubts of the kind in question are particularly wont to occur with respect to law of this sort [i.e. human law], and they may take many diverse forms; so that this subject will be disposed of more fittingly and more fully in that [later] context. On the other hand, the question of how in a doubtful case a presumption is made in favour of the prince, is treated at length by Panormitanus (on Decretals, Bk. I, tit. II, chap. vii, no. 14), Felinus (ibid., nos. 60 et seq.) and Torquemada (on Decretum, Pt. II, causa XI, qu. iii, can. i, concls. 6 and 7, nos. 8 and 9, and ibid., can. xciii, at end).
12.22 The second assertion: it is inherent in the nature of law that it be justly established. My second assertion is as follows: it is inherent in the nature of law, that it be justly established; and if it is established in any other way, it will not be true law. The first part of this assertion is commonly accepted