Does every humanly made law stem
from the natural law?
It seems that not every humanly made
law stems from the natural law:
Objection 1: In
Ethics 5 the Philosopher says, “What is legally
just is such that at the beginning it did not matter
whether it was done this way or some other way.”
But in things that arise from the natural law it does
matter whether they are done this way or some other
way. Therefore, not everything established by
human laws stems from the law of nature.
As is clear both from Isidore in Etymologia and
from the Philosopher in Ethics 5, positive law (ius
positivum) is opposed to natural law (ius naturale).
But as was explained above (q. 94, a. 4), what stems in
the manner of a conclusion from the principles of the law
of nature belongs to the law of nature. Therefore, what
belongs to human law does not stem from the law of nature.
The law of nature is the same for everyone; for the
Philosopher says in Ethics 5, “What is naturally
just is such that it has the same force everywhere.”
Therefore, if human laws stemmed from the natural law, it
would follow that these human laws are likewise the same
for everyone. But this is clearly false.
A reason can be given for things that stem from the
natural law. But as the Legal Expert points out, it is
not the case that a reason can be given for everything
that those in charge (maiores) have established as
law. Therefore, not every human law stems from the
But contrary to this:
In his Rhetorica Tully says, “Fear and reverence
sanctioned both what had come from nature and what had
been approved by custom.”
As Augustine says in De Libero Arbitrio 1, “A
law which is not just does not seem to be a law at all.”
Hence, something has the force of law to the extent
that it shares in justice.
Now in human affairs something is called just by virtue
of its being right (rectum) according to the
rule of reason. But as is clear from what was
said above (q. 91, a. 2), the first rule of reason is
the law of nature. Hence, every humanly made law
has the character of law to the extent that it stems
from the law of nature. On the other hand, if
a humanly made law conflicts with the natural law, then
it is no longer a law, but the corruption of law.
Note, however, that there are two possible modes in
which things can stem (derivari) from the natural
law: first, (a) as conclusions from principles,
and, second, (b) as specifications (determinationes)
of what is general. The first mode is similar
to the way in which demonstrative conclusions are produced
from principles in the sciences. By contrast,
in the second mode there is a similarity to the way
in which general forms are narrowed down to something
more specific in the arts—for instance, a craftsman
must narrow down the general form house to this
or that specific shape for a house.
Thus, some things stem from the universal principles
of the law of nature in the manner of a conclusion;
for instance, One should not kill can be derived
as a conclusion from One should not do evil to anyone.
On the other hand, some things are derived in the manner
of a specification; for instance, the law of nature
says Let him who does evil be punished, but it
is a specification of the law of nature that an evildoer
should be punished by this specific punishment.
both sorts of things are found posited in human law.
However, what stems from the natural law in the first
mode is not contained in human law in such a way that
it is posited by that law alone; rather, it also has
some of its force from the natural law. By contrast,
what stems from the natural law in the second mode has
its force from human law alone.
Reply to objection 1:
In this passage the Philosopher is talking about what is
posited by the law through a determination or
specification of the precepts of the law of nature.
Reply to objection 2:
This argument goes through for the case of those things
that stem from the law of nature as conclusions.
Reply to objection 3:
Because of the great variety in human affairs, the general
principles of the law of
nature cannot be applied in the same
way to everyone. This is the source of the diversity of
positive law for diverse people.
Reply to objection 4:
This passage from the Legal Expert should be understood as
applying to what is introduced by those in charge
concerning particular specifications of the natural law.
The judgment of men who are experienced and prudent bears
the same relation to these specifications as it does to
the principles—viz., that they see directly what
particular specifications are appropriate. Hence, the
Philosopher says in Ethics 6 that in such matters
“one should give no less respect to the indemonstrable
pronouncements and opinions of experienced and older and
prudent men than to demonstrations.”