human law be made in a general way or for particular
It seems that human law should not
be made in a general way (non debeat poni in communi),
but should be made for particular cases instead (sed
magis in particulari):
Objection 1: In Ethics
5 the Philosopher says, “Legal justice consists in everything
that is posited by law for individual cases, as well
as decrees,” which are likewise particular, since decrees
are issued for particular actions. Therefore,
law is made not only in a general way, but also for
As was explained above (q. 90, a. 1‑2), the law
directs human acts. But human acts are particulars.
Therefore, human laws should not be made in a general
way, but should be made for particular cases instead.
As was explained above (q. 90, a. 1-2), law is
a rule and measure of human acts. But as Metaphysics
10 puts it, a measure should be fixed with certitude
(certissima). Therefore, since in human
acts there is nothing general that is fixed to such
an extent that it does not fail in some particular instances,
it seems necessary for laws to be made for particular
instances instead of being formulated in a general way.
But contrary to this:
The Legal Expert says, “Laws have to be made for situations
that come up very frequently, but laws are not made
for situations that can come up perhaps only once.”
If something exists for the sake of an end, then it
must be proportioned to that end. Now the end
of law is the common good, since, as Isidore says in
Etymologia, “Law must be written for no one’s
private advantage, but for the general welfare of the
citizens.” But the common good is built up out
of many things. And so the law must take into
consideration a multiplicity of persons, actions, and
times. For a civil community is composed of many
persons, and its good is procured through a multiplicity
of actions, and it is instituted not just to endure
for a brief time, but to last for all time through a
succession of citizens, as Augustine puts it in De
Civitate Dei 12.
Reply to objection 1:
In Ethics 5 the Philosopher posits three parts
of legal justice, i.e., positive law.
Some laws are made in an absolutely general way, and
these are the general laws (leges communes).
It is with respect to laws of this sort that he says
that what is legally just is such that at the beginning
it does not matter whether it is this way or some other
way, but that it does matter once the law is made—e.g.,
that prisoners should be ransomed for such‑and‑such
a mandated price.
On the other hand, there are certain laws that are general
in one respect and particular in another respect.
Laws of this sort are called privileges (privilegia)—private
laws (privatae leges), as it were—since they
have to do with particular persons; and yet they are
such that their force extends to many actions.
It is in this connection that he adds, “..... everything
that is posited by law for particular cases.”
Again, certain things are called legal not because they
are laws but because they involve the application of
general laws to particular cases—for instance, decrees
(sententiae), which are treated as laws.
It is in this connection that he adds, “and also decrees.”
Reply to objection 2:
That which directs must direct a plurality of things.
This is why in Metaphysics 10 the Philosopher
says that everything belonging to a given genus is measured
by some one thing that is first in that genus.
For if there were as many rules and measures as there
are things ruled and measured, then rules and measures
would cease to be useful, since their usefulness consists
in making it possible for many things to be understood
on the basis of some one thing. Likewise, a law
would not be useful if it did not extend beyond some
one particular act. For as was explained above
(q. 92, a. 2), it is the particular precepts of
prudent men that are given for the purpose of
directing particular acts, whereas a law
is a general precept.
Reply to objection 3:
As Ethics 1 says, we should not seek the same
sort of certitude in all things. Hence, in contingent
matters such as natural and human affairs, the certitude
that something is true in most cases is sufficient,
even if there if a few exceptions occur now and then.