Whether Right Is Fittingly Divided into Natural Right and Positive
Right?
Objection 1: It would seem that right is not fittingly divided into
natural right and positive right. For that which is natural is
unchangeable, and is the same for all. Now nothing of the kind is to
be found in human affairs, since all the rules of human right fail in
certain cases, nor do they obtain force everywhere. Therefore there
is no such thing as natural right.
Obj. 2: Further, a thing is called "positive" when it proceeds from
the human will. But a thing is not just, simply because it proceeds
from the human will, else a man's will could not be unjust. Since
then the "just" and the "right" are the same, it seems that there is
no positive right.
Obj. 3: Further, Divine right is not natural right, since it
transcends human nature. In like manner, neither is it positive
right, since it is based not on human, but on Divine authority.
Therefore right is unfittingly divided into natural and positive.
_On the contrary,_ The Philosopher says (Ethic. v, 7) that "political
justice is partly natural and partly legal," i.e. established by law.
_I answer that,_ As stated above (A. 1) the "right" or the "just" is
a work that is adjusted to another person according to some kind of
equality. Now a thing can be adjusted to a man in two ways: first by
its very nature, as when a man gives so much that he may receive
equal value in return, and this is called "natural right." In another
way a thing is adjusted or commensurated to another person, by
agreement, or by common consent, when, to wit, a man deems himself
satisfied, if he receive so much. This can be done in two ways: first
by private agreement, as that which is confirmed by an agreement
between private individuals; secondly, by public agreement, as when
the whole community agrees that something should be deemed as though
it were adjusted and commensurated to another person, or when this is
decreed by the prince who is placed over the people, and acts in its
stead, and this is called "positive right."
Reply Obj. 1: That which is natural to one whose nature is
unchangeable, must needs be such always and everywhere. But man's
nature is changeable, wherefore that which is natural to man may
sometimes fail. Thus the restitution of a deposit to the depositor is
in accordance with natural equality, and if human nature were always
right, this would always have to be observed; but since it happens
sometimes that man's will is unrighteous there are cases in which a
deposit should not be restored, lest a man of unrighteous will make
evil use of the thing deposited: as when a madman or an enemy of the
common weal demands the return of his weapons.
Reply Obj. 2: The human will can, by common agreement, make a thing
to be just provided it be not, of itself, contrary to natural
justice, and it is in such matters that positive right has its place.
Hence the Philosopher says (Ethic. v, 7) that "in the case of the
legal just, it does not matter in the first instance whether it takes
one form or another, it only matters when once it is laid down." If,
however, a thing is, of itself, contrary to natural right, the human
will cannot make it just, for instance by decreeing that it is lawful
to steal or to commit adultery. Hence it is written (Isa. 10:1): "Woe
to them that make wicked laws."
Reply Obj. 3: The Divine right is that which is promulgated by God.
Such things are partly those that are naturally just, yet their
justice is hidden to man, and partly are made just by God's decree.
Hence also Divine right may be divided in respect of these two
things, even as human right is. For the Divine law commands certain
things because they are good, and forbids others, because they are
evil, while others are good because they are prescribed, and others
evil because they are forbidden.
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