Whether We Should Always Judge According to the Written Law?
Objection 1: It would seem that we ought not always to judge
according to the written law. For we ought always to avoid judging
unjustly. But written laws sometimes contain injustice, according to
Isa. 10:1, "Woe to them that make wicked laws, and when they write,
write injustice." Therefore we ought not always to judge according to
the written law.
Obj. 2: Further, judgment has to be formed about individual
happenings. But no written law can cover each and every individual
happening, as the Philosopher declares (Ethic. v, 10). Therefore it
seems that we are not always bound to judge according to the written
law.
Obj. 3: Further, a law is written in order that the lawgiver's
intention may be made clear. But it happens sometimes that even if
the lawgiver himself were present he would judge otherwise. Therefore
we ought not always to judge according to the written law.
_On the contrary,_ Augustine says (De Vera Relig. xxxi): "In these
earthly laws, though men judge about them when they are making them,
when once they are established and passed, the judges may judge no
longer of them, but according to them."
_I answer that,_ As stated above (A. 1), judgment is nothing else but
a decision or determination of what is just. Now a thing becomes just
in two ways: first by the very nature of the case, and this is called
"natural right," secondly by some agreement between men, and this is
called "positive right," as stated above (Q. 57, A. 2). Now laws are
written for the purpose of manifesting both these rights, but in
different ways. For the written law does indeed contain natural
right, but it does not establish it, for the latter derives its
force, not from the law but from nature: whereas the written law both
contains positive right, and establishes it by giving it force of
authority.
Hence it is necessary to judge according to the written law, else
judgment would fall short either of the natural or of the positive
right.
Reply Obj. 1: Just as the written law does not give force to the
natural right, so neither can it diminish or annul its force, because
neither can man's will change nature. Hence if the written law
contains anything contrary to the natural right, it is unjust and has
no binding force. For positive right has no place except where "it
matters not," according to the natural right, "whether a thing be
done in one way or in another"; as stated above (Q. 57, A. 2, ad 2).
Wherefore such documents are to be called, not laws, but rather
corruptions of law, as stated above (I-II, Q. 95, A. 2): and
consequently judgment should not be delivered according to them.
Reply Obj. 2: Even as unjust laws by their very nature are, either
always or for the most part, contrary to the natural right, so too
laws that are rightly established, fail in some cases, when if they
were observed they would be contrary to the natural right. Wherefore
in such cases judgment should be delivered, not according to the
letter of the law, but according to equity which the lawgiver has in
view. Hence the jurist says [*Digest. i, 3; De leg. senatusque
consult. 25]: "By no reason of law, or favor of equity, is it
allowable for us to interpret harshly, and render burdensome, those
useful measures which have been enacted for the welfare of man." In
such cases even the lawgiver himself would decide otherwise; and if
he had foreseen the case, he might have provided for it by law.
This suffices for the Reply to the Third Objection.
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