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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
Is. 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.
Objection 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.
Objection 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 (Article 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
(Question 57, Article 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 to Objection 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 (Question 57,
Article 2, ad 2). Wherefore such documents are to be called, not
laws, but rather corruptions of law, as stated above (FS,
Question 95, Article 2): and consequently judgment should not be
delivered according to them.
Reply to Objection 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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