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(Trans. Alfred J. Freddoso)


Human Law



Does Isidore appropriately describe the characteristics of positive law?


It seems that Isidore does not appropriately describe the characteristics (qualitatem) of positive law when he says, “The law will be (a) morally upright (honesta), (b) just (justa), (c) possible according to nature, (d) in keeping with the customs of the country, (e) appropriate for the time and place, (f) necessary, (g) useful, (h) clear as well, lest it contain anything deceptive because of its obscurity, (I) written for no one’s private advantage, but for the common advantage of the citizens.”


Objection 1:  He had previously explained the characteristics of law by listing [just] three conditions:  “The law will be everything that builds upon reason, as long as it (a) agrees with religion, (b) contributes to discipline, and (c) promotes welfare (salus).”  Therefore, it was unnecessary for him to multiply the conditions later on.


Objection 2:  As Tully explains in De Officiis, justice (iustitia) is a part of moral uprightness (honestas).  Therefore, once Isidore had said “morally upright,” it was unnecessary to add “just.”


Objection 3:  According to Isidore, the written law is opposed to custom.  Therefore, he should not have put

“in keeping with the customs of the country” in the definition of law.


Objection 4:  There are two types of necessary things.  The first is what is necessary absolutely speaking, i.e., such that it is impossible for it to be otherwise; this type of necessary thing is not subject to human judgment and so this sort of necessity is irrelevant to human law.  Something can also be necessary for the sake of an end, and this sort of necessity is the same as usefulness.  Therefore, it is superfluous to posit both “necessary” and “useful.”


But contrary to this is the authority of Isidore himself.


I respond:  As Physics 2 makes clear, everything that exists for the sake of an end must be such that its form is proportioned to that end—in the way that the form of a saw is such that is appropriate for cutting.  In addition, everything that is rectified and measured must have a form proportioned to its rule and measure.
Now human law has both these features, since (a) it is something ordered toward an end and (b) it is a rule or measure that is itself ruled or measured by a higher measure—where, as is clear from what was said above (q. 93, a. 3), this higher measure is twofold, viz., divine law and the law of nature.  Moreover, the end of human law is its usefulness for men, as the Legal Expert likewise points out.
And this is why, in giving the conditions for law, Isidore first lays down these three:  that (a) law agrees with religion, viz., insofar as it is proportioned to the divine law, that (b) it contributes to discipline, insofar as it is proportioned to the law of nature, and that (c) it promotes welfare, insofar as it is proportioned to human usefulness.  All the other characteristics that he posits later on are traced back to these three.
For the law’s being morally upright is traced back to its being agreement with religion.
And what he then adds—viz., “just, possible according to nature, in keeping with the customs of the country, appropriate for the time and place”—is added because it contributes to discipline.  For human discipline is concerned in the first place with the order of reason, which is implied by is saying “just.”  Second, it has to do with the ability of the agents, since discipline should be appropriate for each one in accord with what is possible for him, likewise keeping in mind what is possible for nature (for the same discipline imposed on grown men should not be imposed on children), and in accord with human custom, since a man cannot live by himself in society and fail to defer to others.  Third, as far as fitting circumstances are concerned, he says, “appropriate to the time and place.”
Now what he then adds, viz., “necessary, useful, etc.,” is traced back to the fact that law expedites human welfare, so that “necessity” refers to the removal of evils, “usefulness” to the pursuit of goods, and “clear” to the prevention of the harm that could come from the law itself.
And since, as was explained above (q. 90, a. 2), law is ordered toward the common good, this point itself is made clear in the last part of the definition.


Reply to objection 1 and objection 2 and objection 3 and objection 4:  The replies to the objections are clear from what has been said.





I-II, q. 90, The Essence of Law

I-II, q. 91, The Different Kinds of Law

I-II, q. 92, The Effects of Law


Eternal law

I-II, q. 93, Eternal Law

Natural law

I-II, q. 94, The Natural Law

Human law

I-II, q. 95, Human Law

I-II, q. 96, The Force of Human Law

I-II, q. 97, Changes in Human Law

The old law

I-II, q. 98, The Old Law

I-II, q. 99, The Precepts of the Old Law

I-II, q. 100, The Moral Precepts of the Old Law

I-II, q. 101, The Ceremonial Precepts of the Old Law in Themselves

I-II, q. 102, The Causes of the Ceremonial Precepts

I-II, q. 103, The Duration of the Ceremonial Precepts

I-II, q. 104, The Judicial Precepts of the Old Law

I-II, q. 105, The Nature of the Judicial Precepts

The new law

I-II, q. 106, The Law of the Gospel, called the New Law, in Itself

I-II, q. 107, The Relation between the Old Law and the New Law

I-II, q. 108, The Contents of the New Law