Whether Every Human Law Is Derived from the Natural Law?
Objection 1: It would seem that not every human law is derived from
the natural law. For the Philosopher says (Ethic. v, 7) that "the
legal just is that which originally was a matter of indifference."
But those things which arise from the natural law are not matters of
indifference. Therefore the enactments of human laws are not derived
from the natural law.
Obj. 2: Further, positive law is contrasted with natural law, as
stated by Isidore (Etym. v, 4) and the Philosopher (Ethic. v, 7). But
those things which flow as conclusions from the general principles of
the natural law belong to the natural law, as stated above (Q. 94, A.
4). Therefore that which is established by human law does not belong
to the natural law.
Obj. 3: Further, the law of nature is the same for all; since the
Philosopher says (Ethic. v, 7) that "the natural just is that which
is equally valid everywhere." If therefore human laws were derived
from the natural law, it would follow that they too are the same for
all: which is clearly false.
Obj. 4: Further, it is possible to give a reason for things which are
derived from the natural law. But "it is not possible to give the
reason for all the legal enactments of the lawgivers," as the jurist
says [*Pandect. Justin. lib. i, ff, tit. iii, v; De Leg. et Senat.].
Therefore not all human laws are derived from the natural law.
_On the contrary,_ Tully says (Rhet. ii): "Things which emanated from
nature and were approved by custom, were sanctioned by fear and
reverence for the laws."
_I answer that,_ As Augustine says (De Lib. Arb. i, 5) "that which is
not just seems to be no law at all": wherefore the force of a law
depends on the extent of its justice. Now in human affairs a thing is
said to be just, from being right, according to the rule of reason.
But the first rule of reason is the law of nature, as is clear from
what has been stated above (Q. 91, A. 2, ad 2). Consequently every
human law has just so much of the nature of law, as it is derived
from the law of nature. But if in any point it deflects from the law
of nature, it is no longer a law but a perversion of law.
But it must be noted that something may be derived from the natural
law in two ways: first, as a conclusion from premises, secondly, by
way of determination of certain generalities. The first way is like
to that by which, in sciences, demonstrated conclusions are drawn
from the principles: while the second mode is likened to that
whereby, in the arts, general forms are particularized as to details:
thus the craftsman needs to determine the general form of a house to
some particular shape. Some things are therefore derived from the
general principles of the natural law, by way of conclusions; e.g.
that "one must not kill" may be derived as a conclusion from the
principle that "one should do harm to no man": while some are derived
therefrom by way of determination; e.g. the law of nature has it that
the evil-doer should be punished; but that he be punished in this or
that way, is a determination of the law of nature.
Accordingly both modes of derivation are found in the human law. But
those things which are derived in the first way, are contained in
human law not as emanating therefrom exclusively, but have some force
from the natural law also. But those things which are derived in the
second way, have no other force than that of human law.
Reply Obj. 1: The Philosopher is speaking of those enactments which
are by way of determination or specification of the precepts of the
natural law.
Reply Obj. 2: This argument avails for those things that are derived
from the natural law, by way of conclusions.
Reply Obj. 3: The general principles of the natural law cannot be
applied to all men in the same way on account of the great variety of
human affairs: and hence arises the diversity of positive laws among
various people.
Reply Obj. 4: These words of the Jurist are to be understood as
referring to decisions of rulers in determining particular points of
the natural law: on which determinations the judgment of expert and
prudent men is based as on its principles; in so far, to wit, as they
see at once what is the best thing to decide.
Hence the Philosopher says (Ethic. vi, 11) that in such matters, "we
ought to pay as much attention to the undemonstrated sayings and
opinions of persons who surpass us in experience, age and prudence,
as to their demonstrations."
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