from which standpoint, it is customarily said that the law of nature has been instilled into the minds of men. Thirdly, it may be considered as it is in some different symbolic manifestation (signum), or some other external materialization (materia exterior); for example, in writing or even in a spoken word that declares the will of a superior.
As to law when considered with respect to the two latter states, no difficulty can arise. For law, taken in the third sense, consists formally in some external act, by means of which the lawgiver makes known his thought;
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such an act as speech is among men, or writing. Thus Aristotle (Ethics, Bk. X, chap. ix [, no. 12]) has said that, ‘law […] is a rule, emanating from a certain wisdom and intelligence’. Gabriel, too (on the Sentences, Bk. III, dist. xxxvii), defines law as a sign making sufficiently manifest the will or the thought of the prince. I have said, indeed, that this sign is an activity or act, including the term of duration of the said act, when the latter is permanent and embodies perfectly the character of a sign. For written law is accordingly called law, not only when it is at the time put into writing, but in so far as the term of that writing is permanent and indicates always the thought of the prince. Similarly, if a law is handed down merely by [the spoken] word, and even though the audible word passes away, then, in so far as this word endures in human memory, the law is said to be sufficiently enduring. For it is thus that unwritten law is sometimes preserved through tradition. In like manner, custom, too, may at times attain the force of law, as we shall see below.3
No other difficulty arises with regard to this category of law, except in connexion with the promulgation of law, a point of which we shall treat later.4
5. Law in the subject resides solely in an act of the mind. Furthermore, with respect to law as it may exist in its human subject, such law unquestionably consists in an act of the mind, and of itself requires only a judgment by the intellect and not an act of the will, since an act of the will is necessary to the observance or execution of the law but not to its existence. For law precedes the will of the subject and is binding upon that will; whereas an act of the intellect is necessary in order that the law itself may thereby be brought before and into direct contact with the will; and consequently, a judgment by the reason is required. It is in this sense, indeed, that the natural law is commonly spoken of as the natural judgment of the human reason; in so far, that is, as the said law exists in man as in one who is subject to it. Joannes Damascenus, too, speaks in this same manner, saying (De Fide Orthodoxa, Bk. IV, chap. iii [chap. xxii]): ‘The law of God, as it
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draws near to us, enkindling our minds, attracts them to itself and arouses our consciences, which are themselves said to be the law of our minds.’ The same is true, in due proportion, with respect to positive laws. For after they have been enacted, they are applied to each individual through a judgment of the reason, to the extent that what was not necessary per se is judged necessary by virtue of the law, so that this act of judgment is now the law (so to speak) as it exists in the subject himself.
In this connexion, to be sure, there has occurred a question as to whether in the case of these positive laws, there is sometimes required on the part of the subjects an act of the will that accepts the law. However, this point should be discussed in relation to human laws, to which it is pertinent. For the present, let us consider it a certainty that such an act is not a requisite for the essential principle of the law as such, and possibly not for any law, unless it be on account of some defect of power in the lawmaker. Accordingly, with regard to this aspect of law, nothing further of a general nature need be said. For the special difficulty which may arise from it, in connexion with natural law, will be better dealt with, in the following Book.
6. Acts of the intellect and of the will are necessary for the making of law. There remains, then, the matter of the law as it exists in the lawmaker himself. With respect to this phase of the question, it is certain, to begin with, that both the intellect and the will intervene in the making of law. But it is necessary to explain what acts are involved in connexion with that process.
In the first place, law, in so far as it is externally imposed upon the subjects, is a species of means for securing their welfare and peace or happiness. And therefore, one may assume first of all that the will of the lawmaker includes the purpose of promoting the common welfare, or the good government of the subjects. From this purpose there follows forthwith in the intellect a consideration of this or that [possible] law, as to which of them is just, or suitable for the commonwealth. These two acts are seen to occur successively and with ratiocination, in men; but in God, without imperfection, as a simple act in the order of reason.
How many acts are proximately necessary in the intellect and the will for the making of law? However, the said acts intervene only remotely in the making of law, and therefore it would seem clear that the essence of the law is not found in them.
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It appears, then, that after these acts are performed, there is direct intervention, on the part of the intellect, by an act of judgment through which the lawmaker decides and decrees that a given provision is advisable for the commonwealth, and that it is expedient that this provision should be observed by all. This fact is manifest since, without such an act of judgment, the law could not be prudently and rationally enacted; and it is part of the character of law that it shall be just and, consequently, prudent. For prudence5 commands, as St. Thomas (II.–II, qu. 47, art. 8) teaches, citing Aristotle (Ethics, Bk. VI, chaps. x et seq. [chaps. v et seq.]). Wherefore, just as in the case of each private person there is required a prudence that serves for the right direction of individual acts, whether with respect to himself or with respect to another private person, so, in the case of a prince, there is required a prudence that is political; that is to say, one that is constructive in relation to the building of laws, in accordance with the passage in Proverbs (Chap. viii [, v. 15]) where Wisdom says: ‘By me kings reign, and lawgivers decree just things.’ The teaching of St. Thomas (II.–II, qu. 50, art. 1), together with that of Aristotle (Politics, Bk. III, chap. iii [chap. vii]), on this point, is also excellent.
7. Secondly, it is certain that there is required, in addition to this act of judgment, an act on the part of the will, by which the prince agrees, chooses, and wills that his subjects shall be obedient to that which his intellect has judged expedient. On this point all the Doctors, too, are in agreement, at least with regard to positive laws; a fact which we shall demonstrate in the next Chapter. Moreover, the reason in support of the point is, briefly, this: law does not merely enlighten, but also provides motive force and impels; and, in intellectual processes, the primary faculty for moving to action is the will.
Some one, to be sure, may ask: ‘And what is this act of will?’ There is, indeed, cause for doubt since simple or inefficacious willing6 is insufficient. For God possesses such a will with regard even to those things which He counsels but does not prescribe; and among men, although a superior
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might in this sense desire that something should be done by a subject, and might inform the latter of this desire, that would not suffice to constitute a command. On the other hand, an efficacious will would not seem to be necessary; for God does not possess this sort of will with respect to all things prescribed by Him. If He did, all these precepts would be executed, since His efficacious will would infallibly be fulfilled.
8. What efficacy of act is requisite in willing, in order to set up a law. The reply [to the doubt above set forth] is that there is a necessity for some act of an efficacious will, a will which in God is that of His good pleasure,7 as is proved by the argument first set forth; but it is not necessary that this willing should relate to the observance or execution of a law, since execution is a thing which follows later, as is also proved by the last argument adduced. Accordingly, it is inherently necessary that [the said act of will] should relate to an
