one to recede from baser things; and consequently, no person in his senses will contradict the laws or the lawmakers.’ Positive laws, then, were both useful and necessary. Accordingly, in former times, when inanimate laws had not been established, the princes were (so to speak) animate laws, by whose will the peoples were ruled; as St. Augustine records (On the City of God, Bk. IV, chap. vi), citing Justin Martyr.
20. The last division of law: into civil and ecclesiastical. What is the civil law? And lastly, this positive law is divided into civil and ecclesiastical; a division which was not recognized by the philosophers, since they knew nothing of the supernatural end, or of the special power [relating thereto]. For this reason, the human law, in their writings, is the same as the civil law, which Augustine is accustomed to call the temporal; for it is that law which is devoted to the political government of the state, the guarding of temporal rights, and the preservation of the commonwealth in peace and justice. Accordingly, civil laws are concerned with these temporal or bodily goods.
Again, what are the ecclesiastical laws? In addition to such laws, however, the Christian religion recognizes certain ecclesiastical or canon laws which are contained in the sacred canons and in the pontifical decrees. Some persons call these not human but divine, for the reason that they are derived from a special power, especially conferred by God, and relate chiefly to a supernatural end, to divine worship and to the salvation of souls. Nevertheless, in point of fact, they are human laws; as has been well taught by Giovanni d’Andrea, whom Panormitanus (on Decretals, Bk. II, tit. VII, chap. i, no. 7) cites and follows, and as one may clearly infer from the Decretals (Bk. IV, tit. XIV, chap. viii). The reason for this is that the said laws are proximately established by the human will, although they differ from civil laws with regard to the power that is their immediate source, and with regard to their end and to their subject-matter, as we shall see below. However, the reason or necessity for such laws was, in due proportion, the same. For (so we assume) God founded a special congregation of the faithful, which should be one body, and which we now call the Church; and He did not make specific provision, through the law which He Himself had established, for everything that might be fitting in the spiritual direction of the Church, but simply laid down certain essential
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bases for this spiritual commonwealth. The other matters, however, He left to be provided for, through His ministers and ecclesiastical pastors, partly with the purpose that all points might be ordered agreeably and in a manner adapted to mankind, and partly because it was not possible to determine every point specifically in such a way that it would be immutable. Therefore, this process of determining took place through canonical laws, so that such laws were as necessary in the spiritual commonwealth of the Church as civil laws, in the temporal commonwealth.
21. From the foregoing divisions, then, the variety, necessity, and manifold constitution of law become sufficiently evident.
To these divisions, there are frequently added others, which are either doubtful or of [only] apparent importance, and over which, therefore, we need not for the present linger, since they will be better touched upon in their proper places. Of such sort is the division of law into instructive (ostendens) and mandatory (praecipiens), of which we shall speak in a subsequent Book, and one which may perhaps be an unnecessary classification. Again, there is another general division of law, into affirmative and negative, the former prescribing what should be done, the latter opposing or prohibiting what should be avoided. These two forms of law are manifested in all those which we have enumerated; for they differ only in the subject-matter of what is prescribed, which is to do or not to do, so that there is consequently a certain difference in their modes of binding. Of this difference, we shall treat more properly in Chapter Thirteen.21 Next, one may add the divisions of human law into penal and non-penal, and into the merely prohibitory, and that which annuls; terms which are familiar enough. Concerning the actual concepts involved, however, special discussions will be undertaken in the later pages of the work. Finally, it may seem that the ius gentium has been omitted from the number of the divisions mentioned; but in Chapter Eight of the next Book,22 we shall explain how that body of law is included within the forms above-mentioned.
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CHAPTER IV
What Acts in the Mind of the Lawmaker Are Necessary for the Making of a Law?
1. The points with which we have so far dealt relate only to the determination of the question of whether or not law exists. Moreover, we have demonstrated the necessity as well as the existence, not of one law only, but of various kinds or species of laws. We have explained the names of these species, and their rational bases, in order that our discussion of the subject may be clear and expeditious.
We should examine next the question, ‘What is law?’ Of this question, we shall treat in an abstract and general manner, postponing for the appropriate places, the difficulties arising in the case of particular laws. Moreover, we shall speak always from a human standpoint and in accordance with our own [human] mode of conception; yet we shall have to apply certain expressions to the divine law, or mind, excluding imperfections.
In this Chapter, then, and in the Chapter that follows, we shall discuss the genus under which law is comprehended; and later we shall inquire into the specific differences within that genus.
2. Law pertains to the intellectual nature. Thus we assume, first, that law is a thing which pertains to the intellectual nature as such, and accordingly, to the mind thereof; both intellect and will being included under the term ‘mind’, for it is with that understanding that I am now speaking. The truth of this assumption is sufficiently evident in itself, since law implies a moral relation to the performance of a given action, and since no aspect of nature save the intellectual is capable of such a relation. Moreover, properly speaking, only those who have the use of intellect and reason are governed by law, or are capable of being so governed; and therefore, it is still far more necessary that there be a mind in one who is to govern by means of laws. Law, then, is a thing that pertains to the mind. Furthermore, if it is said, by an extension of terms, that God conceives a given law for natural or irrational things, that is the case only in so far as things lacking intellect are in need of a superior governing mind, in order that the work of nature may be a work of intelligence; and thus from every standpoint, law must be related to mind. Such has been the concept of law entertained by all
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the wise, even by the philosophers, as is evident from the passages cited in our preceding Chapters from the works of Plato, Aristotle, and Cicero.
3. Law is based, not upon a habit, but upon an act. Secondly, I assume that law—properly speaking, and especially in so far as it exists in the lawgiver—is based upon a concrete act, and not upon a habit or power. This is clearly true, because that which is called law has the virtue of proximately moving its subjects and imposing an obligation upon them; but this virtue does not exist in potency or habit, save basically and remotely; therefore, it must exist in some act. Moreover, commanding, ordering and similar functions imply an act; and such functions are discharged through law, either formally, or (as it were) through a moral activity; hence, law consists in an act.
However, in order that we may explain what this act is, it will first be necessary to enumerate all the acts which may concur to make laws, and to describe the sequence or order of these acts. For they may be either interior, and elicited by the intellect or the will; or exterior, and prescribed; and all of them are necessary for the ultimate effectiveness of the law.1
4. Concerning the subject [or state] with respect to which the law may exist. For the clarification of this point, I shall note, thirdly, that law may be considered from a threefold standpoint, with respect to its state or subject. First, it may be considered as it is in the lawmaker himself; in which sense, as we were saying above,2 law is conceived in the mind of God from eternity. Secondly, law may be considered as it exists in the subjects on
