243. The Qualities and Divisions of Human Law

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Lecture Notes

Main Topics #

The Qualities of Human Law #

• Isidore’s enumeration: Law must be honest, just, possible according to nature, according to custom of one’s country, suitable to place and time, necessary, useful, and manifest
• Thomas’s reduction: All these conditions reduce to three fundamental ones:
  • Proportioned to divine law (religion or honestum)
  • Proportioned to natural law (discipline)
  • Proportioned to human usefulness (salvation)
• The principle of form and end: Just as a knife’s form must suit its cutting function, law’s form must suit its proper end

The Method of Division (Per Se Division) #

• Essential vs. accidental division: A thing should be divided according to something essential to its nature, not according to accidental properties
• Example: Animals properly divide into rational and irrational (both in the notion of animal), not into white and black (accidental properties)
• Geometric example: Quadrilaterals divide per se by side length and angles, not by color
• Importance of definition before division: One must define something (e.g., “quadrilateral”) before seeing how to divide it properly

Four Divisions of Human Law #

First Division (by derivation from natural law):

• Laws derived as conclusions from natural law (e.g., just buying and selling)
  • These are common to all nations (jus gentium)
  • Follow necessarily from natural law principles
• Laws derived by particular determination of natural law (e.g., driving on the right vs. left side)
  • These are specific to each city (jus civile)
  • Vary according to circumstances and custom

Second Division (by ordering to the common good):

• Laws for priests: concerned with prayer and religious observance
• Laws for princes: concerned with governance of the whole population
• Laws for soldiers: concerned with defense and salvation of the people
• Note: These persons especially work toward the common good; others (e.g., carpenters) do not work toward it in the same way

Third Division (by regime type):

• Monarchy: rule by one man for the common good (constitutions of princes)
• Aristocracy: rule by the best/virtuous (responses of the prudent and senate)
• Oligarchy: rule by the few/rich (jus praetorium)
• Democracy: rule by the people (plebiscites)
• Tyranny: rule by one man for private good (produces no true law)
• Mixed regime: combination of elements from multiple forms (optimal)

Fourth Division (by subject matter):

• Laws named from their authors (e.g., Julian law, Cornelian law)
• Laws named from their subject matter (what they regulate)

Key Arguments #

Against Isidore’s Enumeration (Article 3) #

• Objection 1: Some conditions seem redundant; justice appears to be part of honesty, so adding both multiplies terms unnecessarily
• Objection 2: Necessary and useful seem to mean the same thing
• Thomas’s response: All conditions reduce to three fundamental ones that correspond to law’s essential relationships:
  • To divine law (via the quality of honestum)
  • To natural law (via the quality of just and conditions of discipline)
  • To human utility (via necessity and usefulness for salvation)

Against Isidore’s Division of Laws (Article 4) #

• Objection 1: The jus gentium is common to all nations and therefore natural, not positive law
• Thomas’s response: The jus gentium is natural in its derivation (as conclusions from natural law) but distinguished from natural law that is common to all animals; it is natural to man as rational
• Objection 2: Laws should not be divided by the names of legislators, as this multiplication is infinite and accidental
• Thomas’s response: Laws are properly divided by differences found in their notion or essence (derivation, ordering to common good, regime type, subject matter), not by accidental features like legislator’s names

Important Definitions #

• Jus gentium (Law of Nations): Laws derived from natural law as conclusions; common to all nations because they follow necessarily from natural law principles (e.g., just buying and selling)
• Jus civile (Civil Law): Laws derived from natural law by particular determination; vary by city and circumstance
• Jus positivum (Positive Law): Law laid down by human authority; includes both jus gentium and jus civile
• Per se division: Division according to something essential to the thing divided, not according to accidents; proper logical method
• Honestum: The quality of being suitable to honor or religion; what is fitting
• Ratio (notion/essence): The essential meaning or definition of a thing; what makes something what it is

Examples & Illustrations #

On Form and End #

• The form of a chair goes up (not down) because its end is to sit, not to lie down
• A reclining chair’s form changes gradually from sitting position to horizontal lying position
• A knife’s form (sharp edge) must suit its end (cutting)

On Particular Determinations #

• Driving on the left vs. right side: No natural reason determines this; purely a particular determination for order and safety
• Different regimes determine different laws based on their structure

On Offices and Common Good #

• Priests work toward common good through prayer for the people
• Princes govern the whole population
• Soldiers fight for the salvation/defense of the people
• Carpenters work for private good (the chair they make), not directly for common good

On the Variability of Prudence #

• Individual prudence (prudentia): directing oneself
• Paternal prudence: directing a family (more universal than individual; requires adapting to each child’s differences)
• General prudence: governing a city
• State prudence: governing the entire commonwealth
• Each level requires greater foresight and adaptation

Questions Addressed #

Article 3: Do Isidore’s Conditions Multiply Unnecessarily? #

• Answer: No. All conditions reduce to three essential ones corresponding to law’s three essential relationships: to divine law, to natural law, and to human usefulness. The apparent redundancy is resolved through proper reduction.

Article 4: Is Human Law Properly Divided as Isidore Proposes? #

• Answer: Yes, if the division is per se (according to essential characteristics, not accidents). Laws are properly divided by: (1) derivation from natural law, (2) ordering to common good, (3) regime type, and (4) subject matter. They should not be divided by legislator’s names, as this is accidental and infinite.