247. The Mutability of Human Law and the Force of Custom

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Lecture Notes

Main Topics #

The Mutability of Human Law #

• Human law, unlike natural and divine law, can be changed when circumstances warrant
• Change is justified only when great utility (magna utilitate) or necessity (necessitate) appears
• Not every improvement justifies change; the act of changing law itself has a detriment to observance
• The power of law derives primarily from custom (constituto) rather than mere written words

The Nature and Power of Custom #

• Custom manifests the interior motion and conception of human reason through repeated external acts
• When law is changed, the restraining power of the law is diminished because custom is taken away
• Custom can establish law and can abolish existing law
• Custom can also interpret or explain law
• The force of custom operates through tacit consent of the multitude

Distinction Between Natural/Divine Law and Human Law #

• Natural law and divine law proceed from the divine will and cannot be changed by custom
• Human law proceeds from human reason ruled by reason and can be changed by custom
• The difference: natural and divine law have their being from God’s eternal will; human law has its being from human will
• No custom can obtain strength against divine or natural law

Custom Obtaining the Force of Law #

• Objection: Only public persons can make law; custom comes from private acts; therefore custom cannot have the force of law
• Response: If the multitude is free, the consent of the whole multitude through custom has more authority than the prince’s authority
• If the multitude is not free (under a higher power), custom obtains force through toleration by those with proper authority
• The distinction between written law and customary policy: police may tolerate speeds above written limit (e.g., 65 mph though limit is 60 mph)

An Extended Excursus on the Immateriality of Reason #

Berquist pivots to demonstrate reason’s immateriality through three arguments from Thomas Aquinas’s commentary on the Sentences (Distinction 19, Book II):

First Argument: From Reception (via Aristotle) #

• A knowing power must lack the object it receives
• Sensory example: The tongue cannot taste if already sweet; the ear cannot hear if filled with sound; the eye cannot see if fixed with one color
• Principle: Whatever is in matter is necessarily singular; reason knows all material bodies
• Conclusion: Therefore reason must lack any bodily nature—it cannot be immersed in matter like a submarine; it must be like a ship partially above water
• This argument proceeds from the more known (senses) to the less known (intellect)

Second Argument: From Universality (via Thomas) #

• Things in matter are singular by the very fact of being in matter
• Reason knows things universally, not singularly
• Example: One can imagine a black man, white man, yellow man, handsome man, ugly man—but reason grasps “man” universally
• Conclusion: If reason knows universally and not singularly, it does not know them in the body

Third Argument: From Self-Knowledge (via Avicenna) #

• A knowing power that is a bodily organ cannot know itself
• Reason: A bodily knowing power receives objects only through the body; the body/organ comes before the object; but the power cannot come before itself
• Examples: The ear knows sound but not the ear itself; the eye knows color but not the eye itself
• Counterproof: Shakespeare defines reason as “the ability for large discourse, looking before and after”
• Reason knows that it is this ability; therefore reason knows itself
• Conclusion: If reason knows itself and a bodily power cannot know itself, then reason is not a body

Structural Significance #

• The three arguments build progressively: from general principle about knowing, to universal knowledge specifically, to reason’s self-knowledge
• Each argument implicitly involves themes from the others (universality touches on the first argument’s principle; self-knowledge involves reception)

Key Arguments #

On Why Human Law Should Not Be Changed Easily #

1. The Arts Analogy (Objection)

   • Human laws are derived through human reason like other arts
   • In arts (e.g., medicine), what was held before is changed when something better occurs
   • Therefore, human laws should always be changed when better things come along

2. The Utility Argument (Objection)

   • From experience of past things we can provide for future things
   • Unless human laws were changed when better things come along, many inconveniences would follow
   • Ancient laws contained many harmful things (e.g., prohibition was observed until observation failed, then became harmful through gang activity)

3. The Experience Argument (Objection)

   • Human laws concern singular acts of men
   • Perfect knowledge of singular things comes only through experience, which requires time
   • Senate is named from senatus (from being old) because old men have experience
   • Therefore, through succession of time, something better ought to be established

4. Thomas’s Response

   • Human law’s power comes most of all from custom (grace/constituto), not reason alone
   • Contrast with arts: arts have efficacy from reason alone, so change them when better reason appears
   • But laws should not be changed easily; change diminishes the law’s restraining power
   • Change is justified only when great utility or necessity appears—not for every amelioration
   • Example: Drinking laws—one must show great utility from ceasing an old, just law

On the Authority to Establish Custom as Law #

1. Objection: Private persons cannot make law; custom comes from private acts; therefore custom cannot become law

2. Response (Part One): If the multitude is free

   • The consent of the whole multitude through custom has more authority than the prince’s authority
   • The prince’s authority is legitimate only insofar as he carries the person of the multitude
   • Individual persons cannot change law, but the whole people can
   • Example: “No taxation without representation”

3. Response (Part Two): If the multitude is not free

   • Custom obtains the force of law through toleration by those with authority to impose law
   • Toleration manifests that the custom serves the common good
   • The authority figure’s tolerance is a form of tacit consent

Important Definitions #

• Custom (constituto): Repeated acts manifesting the interior motion and conception of human reason; becomes law when it embodies a collective judgment of reason about the common good
• Dispensation: The measurement and distribution of a common precept to individuals according to circumstances (treated in earlier parts of the lecture series)
• Natural Law: Law proceeding from divine will; unchangeable by human custom
• Divine Law: Law given by God; unchangeable by human custom
• Human Law: Law proceeding from human reason ruled by reason; changeable when custom or authority indicates change serves the common good
• Necessity: A condition justifying change in law when the law fails or becomes harmful
• Great Utility (magna utilitate): A condition justifying change in law when significant benefit to the common good appears

Examples & Illustrations #

Legal and Political Examples #

• Prohibition: Observed for years, then changed when custom showed widespread non-observance and harmful gang activity resulted; Elliot Ness, who enforced prohibition, said when it ended he would “go out and get a beer”
• Speed limits: Written law says 60 mph; customary police policy tolerates 65 mph; this distinction shows law versus policy
• Red lights: A malfunctioning traffic light that never turns green—one may proceed despite the sign when circumstances show the law fails
• City gates during siege: Laws require gates closed, but if enemies pursue citizens through whom the city is preserved, gates should open (necessity overrides)
• Bobby Jindal: Catholic governor who shrank Louisiana government while working effectively with bureaucracies; cited as example of effective administration respecting constitutional limits

Epistemological Examples (Immateriality of Reason) #

• The light bulb analogy: A blow to a light bulb interferes with seeing; this shows a connection to seeing, but not that the bulb is the organ of sight—it is rather the object’s condition. The object (colored wall) relates to the eye as does an image to reason.
• Joshua leaving the room: If Joshua leaves, I cannot see Joshua; but Joshua is not interfering with my organ (eye), he is the object. His absence removes the object, not the organ.
• Euclid’s square: The square is a continuous thing; but its definition (equilateral, right-angled quadrilateral) is non-continuous. This shows the mind receives continuous things in a non-continuous way—evidence the mind is not bodily.
• Definitions are non-continuous: Definitions begin with genus, then divide through differences to the species. If infinite steps were required, one could never reach the species to be defined (avoiding infinite regress in definition like in demonstration).

Philosophical Observations #

• The power of custom: If one is accustomed to hearing God spoken of and called upon from youth, God’s existence seems obvious—yet it is not. Custom makes things seem obvious that are not.
• Procedure differs by object: One should not proceed in the same way everywhere. Medicine differs from music; eyes suit painting, not music; ears suit music, not painting. Learning to appreciate is learning to engage objects according to their proper pleasure.
• Reading Homer: At first, Homer seems inaccessible; but reading all 24 books in succession eventually produces appreciation. Custom enables proper reception of the work.
• Vatican II as cautionary example: Changing things for the sake of change (not from necessity or great utility) diminishes authority and observance—contrasted with Jindal’s effective administration.

Questions Addressed #

Q: Should human law always be changed when something better occurs? #

A: No. While human law can be changed, change requires either great utility or necessity. Because law’s power derives from custom, changing law diminishes its force. Not every improvement justifies such diminishment.

Q: Can custom obtain the force of law? #

A: Yes, in two ways: (1) If the multitude is free, the collective consent through custom has authority over the prince; (2) If the multitude is not free, custom obtains force through toleration by legitimate authority. In both cases, custom manifests a judgment of reason about the common good.

Q: What distinguishes human law from natural and divine law regarding change? #

A: Natural and divine law proceed from God’s eternal will and cannot be changed by human custom. Human law proceeds from human reason and can be changed when custom or authority (exercised for common good) indicates change is warranted. The difference is in their origin and the kind of authority that governs them.

Q: How do we know reason is not a bodily organ? #

A: Three arguments: (1) Knowing powers must lack the object they receive; reason knows all bodies, so it lacks bodily nature; (2) What is in matter is singular; reason knows universally; therefore reason is not in matter; (3) Bodily organs cannot know themselves; reason knows itself; therefore reason is not bodily.