Selections from Three Works. Francisco Suárez
men are able to command other men and bind them by human laws, 417; Affirmative conclusion: civil magistracy with temporal power for human government is just and in harmony with human nature, 418; This conclusion based upon the principle that man is a social animal and desires to live in a community, 419–421; And upon a second principle that a power of governing must exist in a community, 421–422; Necessity of some principle whose function is to provide for and seek after common good of community, 422; Second conclusion: supreme human magistracy has power to make laws proper to its sphere, 422–423; Corollary: power to make human laws is vested in supreme magistrate of state, 423; Relation of jurisdiction to the lawmaking power, 424–426; Political subjection is consistent with natural law and reason, and this is not disproved by existence of tyranny, 426; Human principates did not originate with nature but are not contrary to nature or to Scriptures, 427–428.
II. In What Men Does This Power to Make Human Laws Reside Directly, by the Very Nature of Things?
Power to make human laws dwells either in individual men or in whole body of mankind, 429; Opinion that legislative power resides in supreme
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prince by divine conferment is rejected, 430; Opinion of Suárez: since men are born free, this power must reside in the whole body of mankind, 430; Adam possessed domestic, not political power, 431; The non-political multitude contrasted with the political body which needs and possesses the power of government, 432; Suárez rejects the idea of a world state in view of the division of mankind into various states each with its ruler, 433; Introduction of precepts of ius gentium in relations of these states, 434.
III. Has the Power of Making Human Laws Been Given to Men Immediately by God as the Author of Nature?
Reason for doubt on this question, 435; True opinion: power is given immediately by God, 436; This power embraces acts and purposes which transcend human authority, 436–437; How this power is conferred upon men, 437; It manifests itself in duly constituted political bodies, 438–439; It is not immutably vested in such bodies, 439–441.
IV. Corollaries from the Doctrine Set Forth Above
First inference: the power in question is in an absolute sense an effect of natural law, but its specific form is dependent on human choice, 441; Of the three forms of political government Suárez favours monarchy, 442–443; Second inference: civil power, though residing in a prince, flows from people as a community, 443; Civil power is lodged immediately in community, 443; The various titles to monarchical power, 443–445; Relation of royal power to the divine will and to human law, 446–447; Third inference: no civil laws are established universally for the whole world and binding on all men, 447–448; Fourth inference: regarding ways in which the lawmaking power is imparted, 449–450; Ordinary or delegated power, 450; What power is capable of being delegated, 450; Distinction between delegation of power by community and by prince made by Bartolus, 451–452; What power is incapable of being delegated, 452.
[Chapters V–XXXI omitted from these Selections.]
XXXII. Are the Laws Peculiar to Some Kingdom or Domain Binding on the Men of That Domain, When They Are Dwelling outside Its Territorial Limits?
Various phases of residence and domicile, 453; Whether permanent inhabitant of a state dwelling abroad must obey its laws, 453–454; No
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law is binding outside the limits of the territory of a superior by whom it is decreed, 454–455; Prince cannot make laws which are valid outside his jurisdiction, 456–457; Punishment of extraterritorial crimes, 457–459; Status of subject resident abroad, 459; When a law may have effect outside the limits of a state, 459–460; Enclaves are ordinarily outside the jurisdiction of enclosing state, 460.
XXXIII. Are the Laws Peculiar to Some Domain Strictly Binding upon Aliens While They Are Living Within that Domain?
Three elements to be distinguished in every law: binding force with respect to conscience, coercive force, requirement of a definite form for legal acts, 461; Suárez rejects opinion that only those domiciled in a state are bound by its laws, 462; Another opinion: laws bind aliens who have established quasi-domicile but not transients, 462–463; The accepted opinion: while he remains in the state the alien is bound in conscience by its laws, 463; Laws made for general welfare and must therefore have general application, 463–464; Alien is held, by sojourning in state, to manifest submission to its laws, 464; This doctrine applicable to religious persons who are guests in alien provinces, 465; Why aliens in a state are bound by its laws, 466–467; Whether a state may frame laws binding only upon aliens, 467; Whether a law is binding, as to its coercive force, on aliens temporarily in the state, 467; Suárez replies in affirmative, with certain limitations, 469–470; Difference between law and precept—view of Panormitanus rejected, 470–472; Difference explained by Suárez, 472–473; Alien sojourning in a state must observe the forms prescribed by its laws for legal acts, 473–474; Alien’s obligation with respect to taxes, 474–475.
[Bk. III, chap. XXXIV; Bks. IV and V omitted from these Selections.]
BOOK VI: ON THE INTERPRETATION, CESSATION, AND CHANGE OF HUMAN LAWS
[Chapters I–VIII omitted from these Selections.]
IX. Are There Occasions When a Law, as a Whole, Automatically Ceases to Exist, with the Cessation of Its Cause?
Since law is essentially perpetual and enacted for the sake of the community, it can cease to exist only through a change in its object, 477; Contrary and
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negative cessation of law, 479; Validity of law destroyed by change giving it contrary effect, 479–480; Need for evidence of such change with contrary effect before law can lose its force, 480–481; Arguments that law does not lapse when reason for law ceases to exist in a negative sense, 481–482; General opinion that when reason for law disappears, even in a negative sense, the law also ceases, 482; Whether the prince is bound to formally abrogate such law, 483–484; Suárez’s view: proclamation of cessation of law necessary, 485; Subject-matter of human law is essentially either of a righteous or a neutral character, 485–486; Law prescribing an intrinsically virtuous act does not cease to exist on disappearance of merely extrinsic end, 486–488; Law ceases when adequate end of law, both extrinsic and intrinsic, ceases to exist, 488–489; Difference between precept and law in this respect, 489; Law prescribing act of a neutral character ceases upon cessation of extrinsic end, 489; No decree of prince necessary to publish cessation of such law, 491–492; A distinction between a law enacted to avoid ills that follow a given fact and a law enacted for the sake of positive good, 492–494; A further distinction regarding reasons for prohibiting certain acts, 494; When the obligation of fraternal correction lapses, 495–496; Difference between cessation of law in general and in particular, with answers to arguments previously cited on cessation of reason of law in a negative sense, 497–498; Cessation of part of a law, 498–499; Limited cause of cessation produces a limited effect, 499.
[Chapters X–XXVII omitted from these Selections.]
BOOK VII: OF UNWRITTEN LAW WHICH IS CALLED CUSTOM
INTRODUCTION
I. The Definition of Custom, Usage or General Conduct, Forum, and Stylus, and How Each Differs from Written Law
Isidore’s definition of custom, 502; Difficulties regarding this definition, 502; Usus, mos, consuetudo, 503; Definition of usus, 503; Definition of mos, 504; Mos found in free actions only, 504; Distinction between mos and usus, 505; Custom resides in frequency of acts, 505; Two elements of custom: frequency of acts (formal custom), after-effects of repeated acts (habit, consuetudinary law), 506; Definition of custom of law and custom of fact, 507; Various definitions of custom in its relation to law, 507–510; Difference between custom and prescription, 511–513.
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II. Does Custom Always Introduce Unwritten Law, and Is the Definition Given Complete?
A