FOURTH ARTICLE [I-II, Q. 95, Art. 4]

Whether Isidore's Division of Human Laws Is Appropriate?

Objection 1: It would seem that Isidore wrongly divided human

statutes or human law (Etym. v, 4, seqq.). For under this law he

includes the "law of nations," so called, because, as he says,

"nearly all nations use it." But as he says, "natural law is that

which is common to all nations." Therefore the law of nations is not

contained under positive human law, but rather under natural law.

Obj. 2: Further, those laws which have the same force, seem to differ

not formally but only materially. But "statutes, decrees of the

commonalty, senatorial decrees," and the like which he mentions

(Etym. v, 9), all have the same force. Therefore they do not differ,

except materially. But art takes no notice of such a distinction:

since it may go on to infinity. Therefore this division of human laws

is not appropriate.

Obj. 3: Further, just as, in the state, there are princes, priests

and soldiers, so are there other human offices. Therefore it seems

that, as this division includes _military law,_ and _public law,_

referring to priests and magistrates; so also it should include other

laws pertaining to other offices of the state.

Obj. 4: Further, those things that are accidental should be passed

over. But it is accidental to law that it be framed by this or that

man. Therefore it is unreasonable to divide laws according to the

names of lawgivers, so that one be called the "Cornelian" law,

another the "Falcidian" law, etc.

_On the contrary,_ The authority of Isidore (Obj. 1) suffices.

_I answer that,_ A thing can of itself be divided in respect of

something contained in the notion of that thing. Thus a soul either

rational or irrational is contained in the notion of animal: and

therefore animal is divided properly and of itself in respect of its

being rational or irrational; but not in the point of its being white

or black, which are entirely beside the notion of animal. Now, in the

notion of human law, many things are contained, in respect of any of

which human law can be divided properly and of itself. For in the

first place it belongs to the notion of human law, to be derived from

the law of nature, as explained above (A. 2). In this respect

positive law is divided into the _law of nations_ and _civil law,_

according to the two ways in which something may be derived from the

law of nature, as stated above (A. 2). Because, to the law of nations

belong those things which are derived from the law of nature, as

conclusions from premises, e.g. just buyings and sellings, and the

like, without which men cannot live together, which is a point of the

law of nature, since man is by nature a social animal, as is proved

in _Polit._ i, 2. But those things which are derived from the law of

nature by way of particular determination, belong to the civil law,

according as each state decides on what is best for itself.

Secondly, it belongs to the notion of human law, to be ordained to

the common good of the state. In this respect human law may be

divided according to the different kinds of men who work in a special

way for the common good: e.g. priests, by praying to God for the

people; princes, by governing the people; soldiers, by fighting for

the safety of the people. Wherefore certain special kinds of law are

adapted to these men.

Thirdly, it belongs to the notion of human law, to be framed by that

one who governs the community of the state, as shown above (Q. 90, A.

3). In this respect, there are various human laws according to the

various forms of government. Of these, according to the Philosopher

(Polit. iii, 10) one is _monarchy,_ i.e. when the state is governed

by one; and then we have _Royal Ordinances._ Another form is

_aristocracy,_ i.e. government by the best men or men of highest

rank; and then we have the _Authoritative legal opinions_ (_Responsa

Prudentum_) and _Decrees of the Senate_ (_Senatus consulta_). Another

form is _oligarchy,_ i.e. government by a few rich and powerful men;

and then we have _Praetorian,_ also called _Honorary,_ law. Another

form of government is that of the people, which is called

_democracy,_ and there we have _Decrees of the commonalty_

(_Plebiscita_). There is also tyrannical government, which is

altogether corrupt, which, therefore, has no corresponding law.

Finally, there is a form of government made up of all these, and

which is the best: and in this respect we have law sanctioned by the

_Lords and Commons,_ as stated by Isidore (Etym. v, 4, seqq.).

Fourthly, it belongs to the notion of human law to direct human

actions. In this respect, according to the various matters of which

the law treats, there are various kinds of laws, which are sometimes

named after their authors: thus we have the _Lex Julia_ about

adultery, the _Lex Cornelia_ concerning assassins, and so on,

differentiated in this way, not on account of the authors, but on

account of the matters to which they refer.

Reply Obj. 1: The law of nations is indeed, in some way, natural to

man, in so far as he is a reasonable being, because it is derived

from the natural law by way of a conclusion that is not very remote

from its premises. Wherefore men easily agreed thereto. Nevertheless

it is distinct from the natural law, especially it is distinct from

the natural law which is common to all animals.

The Replies to the other Objections are evident from what has been

said.

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Summa Theologica, Part I-II (Pars Prima Secundae) From the Complete American Edition · 第 615 / 746 题