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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