the need to add another and positive law sprang from the particular institution of the mystical spiritual body, so to speak. The existence of this institution being granted, the reasons adduced by St. Thomas may very well be applied, in due proportion, to this positive divine law.
The said law is wont to be further subdivided into the Old and the New Laws, a division which we shall explain more fully in Books Nine and Ten.17
17. It remains to discuss positive human law, which is so named because of the proximate source from which it flows.
For this law is called human, not because it was imposed by men, nor because it exists in them as in those persons who are to be governed by it; since these facts, although they do apply to the law in question, are not characteristics peculiar to it, but are shared in common with all [the divisions of] law of which we treat, whether divine or natural. Thus, according to such a derivation, human law would be distinguished rather from angelic law, that is, from the law imposed on the angels, with which we are not dealing. Again, the said law is not called human from its subject-matter; that is to say, it is not so called on the ground that it is established with regard to human, and not to divine affairs. For although this derivation may perhaps be suitable with reference to the law which the philosophers have called ‘human’, nevertheless, it does not actually
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represent their meaning nor is it adequate, since human law covers a wider field, as we shall see.
What is human law; and why is it so called? This law, then, is called human for the reason that it was devised and established proximately by men. But I say ‘proximately’, because the original derivation of every human law is in a certain sense traced back to the eternal law, according to the Scriptural passage (Proverbs, Chap. viii [, v. 16]): ‘By me princes rule, and the mighty decree justice’; and furthermore, as to the binding force18 [of such law], that flows from the power given by God, since, ‘There is no power but from God’ (Romans, Chap. xiii [, v. 1]). However, that law itself which is called human is an act of man, and accordingly, it is proximately established by him; for which reason it is given this epithet of ‘human’. Thus Plutarch (Comment. [Ad Principem Ineruditum]) said that learning was a requisite in the prince. For, ‘justice is the end of law; law is the work of the prince; and the prince is the image of God governing the universe.’ Augustine, too (On the True Religion, Chap. xxxi), says: ‘The founder of temporal laws, if he is a good and wise man, consults the eternal law in order to discern […] in accordance with its immutable rules, what temporal commands and prohibitions should be laid down.’ Elsewhere (On the Gospel of John, Treatise VI [, chap. i, no. 25]), Augustine says that God has apportioned human laws to mankind through its rulers.
Human law is therefore the work of man, derived proximately from his power and wisdom, and ordained for its subjects as a rule and measure of their actions.
18. What is the necessity for human law? From the preceding statements, the necessity, or the utility, of this human law is also readily to be seen. For as St. Thomas ([I.–II,] qu. 91, art. 3) has noted, its necessity springs from the fact that the natural, or the divine law, is of a general nature, and includes only certain self-evident principles of conduct, extending, at most, to those points which follow necessarily and by a process of obvious inference from the said principles; whereas, in addition to such points, many others are necessarily involved in the case of a human commonwealth in
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order that it may be preserved and rightly governed, so that it was necessary for human reason to determine more particularly certain points relating to those matters which cannot be defined through the natural reason alone, a determination that is effected by means of human law; and therefore, such law was most necessary. Accordingly, Plato (Laws, Bk. IX, not far from the end [875]) says: ‘It is necessary for men to lay down laws in order that they may live accordingly; for if they lived without laws, they would in nowise differ from the most savage beasts.’ Similarly, Aristotle (Politics, Bk. I, chap. ii [chap. i, no. 12, 1253 A]) has declared: ‘Even as man, when perfected, is the best of all animals, so, when separated from law and justice, he is the worst of all.’19
19. Moreover, relying upon both authors, it is possible to explain more fully the necessity involved. For that necessity is founded on the fact that man is a social animal, requiring by his very nature a civil life and intercourse with other men; therefore, it is necessary that he should live rightly, not only as a private person, but also as a part of a community; and this is a matter which depends to a large extent upon the laws of the individual community. It is furthermore necessary that each person should take counsel not only for himself, but also for others, preserving peace and justice, a condition that could not be brought about in the absence of appropriate laws. Again, it is necessary that those points which relate to the common good of men, or of the state, should be accorded particular care and observance; yet, men as individuals have difficulty in ascertaining what is expedient for the common good, and moreover, rarely strive for that good as a primary object; so that, in consequence, there was a necessity for human laws that would have regard for the common good by pointing out what should be done for its sake and by compelling the performance of such acts. Accordingly, Aristotle ([Ethics,] Bk. X, chap. ix [, no. 14]) says: ‘Public regulations and provisions must clearly be established by law, and the good ones are established by laws zealous20 of good.’ Wherefore Cyril (Against Julian, Bk. III, not far from the beginning [Migne, Patrologia Graeca, loc. cit., no. 81]) remarks: ‘Nor is there
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any doubt but that laws direct one toward what is good and compel one to recede from baser things; and consequently, no person in his senses will contradict the laws or the lawmakers.’ Positive laws, then, were both useful and necessary. Accordingly, in former times, when inanimate laws had not been established, the princes were (so to speak) animate laws, by whose will the peoples were ruled; as St. Augustine records (On the City of God, Bk. IV, chap. vi), citing Justin Martyr.
20. The last division of law: into civil and ecclesiastical. What is the civil law? And lastly, this positive law is divided into civil and ecclesiastical; a division which was not recognized by the philosophers, since they knew nothing of the supernatural end, or of the special power [relating thereto]. For this reason, the human law, in their writings, is the same as the civil law, which Augustine is accustomed to call the temporal; for it is that law which is devoted to the political government of the state, the guarding of temporal rights, and the preservation of the commonwealth in peace and justice. Accordingly, civil laws are concerned with these temporal or bodily goods.
Again, what are the ecclesiastical laws? In addition to such laws, however, the Christian religion recognizes certain ecclesiastical or canon laws which are contained in the sacred canons and in the pontifical decrees. Some persons call these not human but divine, for the reason that they are derived from a special power, especially conferred by God, and relate chiefly to a supernatural end, to divine worship and to the salvation of souls. Nevertheless, in point of fact, they are human laws; as has been well taught by Giovanni d’Andrea, whom Panormitanus (on Decretals, Bk. II, tit. VII, chap. i, no. 7) cites and follows, and as one may clearly infer from the Decretals (Bk. IV, tit. XIV, chap. viii). The reason for this is that the said laws are proximately established by the human will, although they differ from civil laws with regard to the power that is their immediate source, and with regard to their end and to their subject-matter, as we shall see below. However, the reason or necessity for such laws was, in due proportion, the same. For (so we assume) God founded a special congregation of the faithful, which should be one body, and which we now call the Church; and He did not make specific provision, through the law which He Himself had established, for everything that might be fitting in the spiritual direction of the Church, but simply laid down certain essential
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bases for this spiritual commonwealth. The other matters, however, He left to be provided for, through His ministers and ecclesiastical pastors, partly with the purpose that all points might be ordered agreeably and in a manner adapted to mankind, and partly because it was not possible to determine every point specifically in such a way that it would be immutable. Therefore, this process of determining took place through canonical laws, so that such laws were