there takes place within the legislator, and subsequently to the aforesaid act of the will, a new act of the intellect, by which the legislator perceives his own will; just as we understand that there is in God, subsequently to His act of willing, that knowledge which is called the knowledge of vision.17 Thus it also results that the lawgiver, after having knowledge of his law, exercises judgment as to its subject-matter in yet another manner than that which he formerly employed; for at first, he judged18 it only as being suitable matter for his command, whereas afterwards he judged it as being necessary to moral rectitude, by virtue of his decree. All of which is so manifest that it requires no new proof. We shall speak in the following Chapter, however, of the way in which these elements concur to make law and, accordingly, of the act on which law is founded.
CHAPTER V
Is Law an Act of the Intellect or of the Will? And What Is the Nature of This Act?
1. The first opinion: law is held to be an act of the intellect. In the light of the assumptions which I have made in the previous Chapter, the question will turn almost entirely upon a manner of speaking. Nevertheless, it
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should be briefly discussed, because of the variety of opinions on this subject.
According to the first opinion, then, law is an act of the intellect. This is the view held by St. Thomas (I.–II, qu. 90, art. 1); and Vincent de Beauvais (Speculum Morale, Bk. V, pt. II, dist. 1), often speaks thus in his discussion of the matter. The same opinion is adopted by the Thomists, Cajetan, Conrad Koellin, and others (thereon and on I.–II, qu. 17; qu. 58, art. 4; qu. 60, art. 1). Mention should also be made of Soto (De Iustitia et Iure, Bk. I, qu. i, art. 1), Torquemada (on Decretum, Pt. I, dist. III, can. iii), Alexander of Hales ([Summa,] Pt. III, qu. xxvi, ad primum), Richard Middleton (on the Sentences, Bk. III, dist. xxxiii, art. 2, qu. 6, ad 3), Antoninus ([Summa,] Pt. II, tit. IV, chap. x [Pt. I, tit. xi, chap. ii]), William of Paris (Tr. De Legibus), and Corduba (Bk. II, Quaestionarium Theologicum, qu. 10). Moreover, the opinion in question is wont to be proved, first, by the argument that the Scriptures, as well as the Fathers, philosophers and jurisconsults, assign law to the reason, or to wisdom. For example, in Proverbs (Chap. viii [, v. 15]), Wisdom declares: ‘By me […] lawgivers decree just things.’ So, also, Clement of Alexandria (Stromata, Bk. I [, chap. xxv], not far from the end), declares that law is good opinion and that good opinion is that which is true. Moreover, he adds: ‘Consequently, certain persons have said law is right reason, which prescribes those things that should be done, and prohibits those that should not be done.’ Again, Basil (On Isaias, Chap. viii, in vv. 19–22) says: ‘Law is a teacher and instructress’ (doctrix & magistra).1 Joannes Damascenus (De Fide Orthodoxa, Bk. IV, chap. xxiii [chap. xxii]) has also attributed to law the function of teaching.
2. Furthermore, Plato (Dialogue, Minos, or On Law, at the beginning [314 C D]) calls law, ‘the upright opinion of the state’, that is to say, the true opinion. And later, he asserts that law is ‘the operation of truth’. Aristotle (De Sophisticis Elenchis, Bk. I, chap. xii, at the end) has likewise said that law is ‘the opinion of the multitude’. Again, in the Letter to Alexander, preceding the Rhetoric to Alexander,2 he defines law as the ‘utterance of a command, with the common consent of the state, etc.’ And in a closely
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following passage (Rhetoric, Chap. i), he says: ‘Law is the common consent of the state, a consent which prescribes in writing the way in which each act is to be performed.’ In this passage, Aristotle also embodies law as bidding and precept; although frequently, in other passages, he nevertheless attributes the function of commanding to reason and to prudence (Ethics, Bk. VI, chaps. ix et seq.; Politics, Bk. I, chap. iii [Bk. III, chap. xi]).
Thus he has said (Ethics, Bk. X, chap. ix) that law is ‘a rule, emanating from a certain wisdom and intelligence’. We have also cited above many of the words of Cicero, in which he indicates that law is in the reason: that first, indeed, it is in the Mind of God; and that, through participation in this [Mind, by the human reason], the said reason contains the natural law and prudence, from which source the laws of states should be derived. This point is fully dealt with, in the Laws (Bks. I and II, shortly after the beginning [Bk. I, chap. vii and Bk. II, chap. iv]) where, among other remarks, Cicero lays down the conclusion that, ‘Law is right reason in commanding and forbidding’. And in fine, it is in like vein that Papinian (in Digest, I. iii. 1) calls law ‘a common precept’, declaring it to be ‘the decree of prudent men’. Marcianus, too (ibid., 2), says, quoting Chrysippus: ‘Law is the queen, princess and leader of human and divine affairs.’ These, indeed, are the functions of reason, to which the rule and direction of actions pertain.
3. The first opinion is confirmed by reasoning. Various arguments are advanced for the confirmation of this first opinion.
The first argument is as follows: it is the function of law to regulate, wherefore it is customary to define law as a ‘regulation by the reason’; yet regulation pertains not to the will, but to the intellect, since it involves a certain ratiocination, so that those things which lack reason cannot regulate; therefore, law is an act of the intellect.
Secondly, it is the function of law to enlighten and instruct in accordance with the words [of the Psalms, cxviii, v. 105], ‘Thy word is a lamp to my feet, […]’ and of this passage, also [ibid., xviii, v. 8]: ‘The law of the Lord is unspotted, converting souls: [the testimony of the Lord is faithful,] giving wisdom to little ones’; and the act of enlightenment pertains to the intellect.
Thirdly, law is a rule, as we said at the beginning, in accordance with a
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passage of Basil (on Isaias, Chap. i, in v. 9)3 where he calls it ‘a rule of the just and the unjust’. This view is also supported by the Digest (I. iii. 2). Thus it is that the laws of the Church are called canons—that is to say, rules—as Isidore (Etymologies, Bk. II [, chap. x]) remarks. But the will is not a rule; rather should it be regulated by the reason itself. Therefore, law dwells in the reason.
4. Fourthly, we have the argument that no act of the will can be designated as law. For [such an act would fall into one of two classes.]
First, it might be the will of a prince or of a superior that a particular act shall be performed by the subject; which is not the case, since such a will is neither necessary nor sufficient; for God imposed upon Abraham a true precept concerning the sacrifice of Abraham’s son, yet God did not will that this sacrifice should be executed; and conversely, however much a superior may will and desire that a given act be performed by a subject, he imposes no obligation if he issues no precept. Thus the theologians say that we are not bound to conform to the divine will, even the efficacious divine will, unless there is added to it a precept concerning the execution of the will in question. Therefore, law does not consist in such an act of the will.
Secondly, [the act] might consist in the will to bind the subject; a will which is also insufficient, unless it is made known. Indeed, some persons add that a will of this sort in the prince is not necessary to his establishment of the law, for if the prince wills to command, by the very act of commanding, he makes law, even though he reflects not at all upon the binding obligation involved. Bartholomew Medina goes further and says (on I.–II, qu. 90, art. 1) that, even though [the prince] may be [definitely] unwilling to impose the obligation, nevertheless, if he wills to command, he does impose it, and makes law. Just as one who makes a vow without willing to bind himself, nevertheless vows truly (says Medina) and becomes bound; and just as he who makes a deceitful promise under oath, without intent to lay himself under a binding obligation, is bound by the sanctity of the oath, to fulfil the promise; even so, he who wills to
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command, imposes a binding obligation,
