Whether Isidore's Description of the Quality of Positive Law Is
Appropriate?
Objection 1: It would seem that Isidore's description of the quality
of positive law is not appropriate, when he says (Etym. v, 21): "Law
shall be virtuous, just, possible to nature, according to the custom
of the country, suitable to place and time, necessary, useful;
clearly expressed, lest by its obscurity it lead to misunderstanding;
framed for no private benefit, but for the common good." Because he
had previously expressed the quality of law in three conditions,
saying that "law is anything founded on reason, provided that it
foster religion, be helpful to discipline, and further the common
weal." Therefore it was needless to add any further conditions to
these.
Obj. 2: Further, Justice is included in honesty, as Tully says (De
Offic. vii). Therefore after saying "honest" it was superfluous to
add "just."
Obj. 3: Further, written law is condivided with custom, according to
Isidore (Etym. ii, 10). Therefore it should not be stated in the
definition of law that it is "according to the custom of the country."
Obj. 4: Further, a thing may be necessary in two ways. It may be
necessary simply, because it cannot be otherwise: and that which is
necessary in this way, is not subject to human judgment, wherefore
human law is not concerned with necessity of this kind. Again a thing
may be necessary for an end: and this necessity is the same as
usefulness. Therefore it is superfluous to say both "necessary" and
"useful."
_On the contrary,_ stands the authority of Isidore.
_I answer that,_ Whenever a thing is for an end, its form must be
determined proportionately to that end; as the form of a saw is such
as to be suitable for cutting (Phys. ii, text. 88). Again, everything
that is ruled and measured must have a form proportionate to its rule
and measure. Now both these conditions are verified of human law:
since it is both something ordained to an end; and is a rule or
measure ruled or measured by a higher measure. And this higher
measure is twofold, viz. the Divine law and the natural law, as
explained above (A. 2; Q. 93, A. 3). Now the end of human law is to
be useful to man, as the Jurist states [*Pandect. Justin. lib. xxv,
ff., tit. iii; De Leg. et Senat.]. Wherefore Isidore in determining
the nature of law, lays down, at first, three conditions; viz. that
it "foster religion," inasmuch as it is proportionate to the Divine
law; that it be "helpful to discipline," inasmuch as it is
proportionate to the nature law; and that it "further the common
weal," inasmuch as it is proportionate to the utility of mankind.
All the other conditions mentioned by him are reduced to these three.
For it is called virtuous because it fosters religion. And when he
goes on to say that it should be "just, possible to nature, according
to the customs of the country, adapted to place and time," he implies
that it should be helpful to discipline. For human discipline depends
first on the order of reason, to which he refers by saying "just":
secondly, it depends on the ability of the agent; because discipline
should be adapted to each one according to his ability, taking also
into account the ability of nature (for the same burdens should not
be laid on children as adults); and should be according to human
customs; since man cannot live alone in society, paying no heed to
others: thirdly, it depends on certain circumstances, in respect of
which he says, "adapted to place and time." The remaining words,
"necessary, useful," etc. mean that law should further the common
weal: so that "necessity" refers to the removal of evils;
"usefulness" to the attainment of good; "clearness of expression," to
the need of preventing any harm ensuing from the law itself. And
since, as stated above (Q. 90, A. 2), law is ordained to the common
good, this is expressed in the last part of the description.
This suffices for the Replies to the Objections.
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