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Objection 1: It would seem that Isidore wrongly divided human
statutes or human law (Etym. v, 4, seqq.). For under this law
he includes the "law of nations," so called, because, as he says,
"nearly all nations use it." But as he says, "natural law is that
which is common to all nations." Therefore the law of nations is not
contained under positive human law, but rather under natural law.
Objection 2: Further, those laws which have the same force, seem
to differ not formally but only materially. But "statutes, decrees
of the commonalty, senatorial decrees," and the like which he
mentions (Etym. v, 9), all have the same force. Therefore they
do not differ, except materially. But art takes no notice of such a
distinction: since it may go on to infinity. Therefore this division
of human laws is not appropriate.
Objection 3: Further, just as, in the state, there are princes,
priests and soldiers, so are there other human offices. Therefore it
seems that, as this division includes "military law," and "public
law," referring to priests and magistrates; so also it should include
other laws pertaining to other offices of the state.
Objection 4: Further, those things that are accidental should be
passed over. But it is accidental to law that it be framed by this or
that man. Therefore it is unreasonable to divide laws according to the
names of lawgivers, so that one be called the "Cornelian" law,
another the "Falcidian" law, etc.
On the contrary, The authority of Isidore (Objection 1)
suffices.
I answer that, A thing can of itself be divided in respect of
something contained in the notion of that thing. Thus a soul either
rational or irrational is contained in the notion of animal: and
therefore animal is divided properly and of itself in respect of its
being rational or irrational; but not in the point of its being white
or black, which are entirely beside the notion of animal. Now, in
the notion of human law, many things are contained, in respect of any
of which human law can be divided properly and of itself. For in the
first place it belongs to the notion of human law, to be derived from
the law of nature, as explained above (Article 2). In this
respect positive law is divided into the "law of nations" and "civil
law," according to the two ways in which something may be derived from
the law of nature, as stated above (Article 2). Because, to the
law of nations belong those things which are derived from the law of
nature, as conclusions from premises, e.g. just buyings and
sellings, and the like, without which men cannot live together, which
is a point of the law of nature, since man is by nature a social
animal, as is proved in Polit. i, 2. But those things which are
derived from the law of nature by way of particular determination,
belong to the civil law, according as each state decides on what is
best for itself.
Secondly, it belongs to the notion of human law, to be ordained to
the common good of the state. In this respect human law may be divided
according to the different kinds of men who work in a special way for
the common good: e.g. priests, by praying to God for the people;
princes, by governing the people; soldiers, by fighting for the
safety of the people. Wherefore certain special kinds of law are
adapted to these men.
Thirdly, it belongs to the notion of human law, to be framed by that
one who governs the community of the state, as shown above (Question
90, Article 3). In this respect, there are various human laws
according to the various forms of government. Of these, according to
the Philosopher (Polit. iii, 10) one is "monarchy," i.e.
when the state is governed by one; and then we have "Royal
Ordinances." Another form is "aristocracy," i.e. government by
the best men or men of highest rank; and then we have the
"Authoritative legal opinions" [Responsa Prudentum] and
"Decrees of the Senate" [Senatus consulta]. Another form is
"oligarchy," i.e. government by a few rich and powerful men; and
then we have "Praetorian," also called "Honorary," law.
Another form of government is that of the people, which is called
"democracy," and there we have "Decrees of the commonalty"
[Plebiscita]. There is also tyrannical government, which is
altogether corrupt, which, therefore, has no corresponding law.
Finally, there is a form of government made up of all these, and
which is the best: and in this respect we have law sanctioned by the
"Lords and Commons," as stated by Isidore (Etym. v, 4,
seqq.).
Fourthly, it belongs to the notion of human law to direct human
actions. In this respect, according to the various matters of which
the law treats, there are various kinds of laws, which are sometimes
named after their authors: thus we have the "Lex Julia" about
adultery, the "Lex Cornelia" concerning assassins, and so on,
differentiated in this way, not on account of the authors, but on
account of the matters to which they refer.
Reply to Objection 1: The law of nations is indeed, in some way,
natural to man, in so far as he is a reasonable being, because it is
derived from the natural law by way of a conclusion that is not very
remote from its premises. Wherefore men easily agreed thereto.
Nevertheless it is distinct from the natural law, especially it is
distinct from the natural law which is common to all animals.
The Replies to the other Objections are evident from what has been
said.
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