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ST. THOMAS AQUINAS

 

ON THE LAW

 

SUMMA THEOLOGIAE

FIRST PART OF THE SECOND PART (I-II)

(Trans. Alfred J. Freddoso)

QUESTION 96

The Force of Human Law

ARTICLE 5

 

Is everyone subject to human law?

 

It seems that not everyone is subject to human law:

 

Objection 1:  The only ones subject to the law are those for whom the law is made.  But in 1 Timothy 1:9 the Apostle says, “The law is not made for the just man.”  Therefore, the just are not subject to human law.

        

Objection 2:  Pope Urban says (and one finds the same thing in Decretals 19, q. 2), “If someone is led by a private law, then he in no way needs to be bound by a public law.”  But all men who are sons of God are lead by the private law of the Holy Spirit—this according to Romans 8:14 (“Those who are led by the Spirit of God are the sons of God”).  Therefore, not every man is subject to human law.

        

Objection 3:  The Legal Expert says, “The ruler is exempt from the law (solutus a lege).”  But one who is exempt from the law is not subject to the law.  Therefore, not everyone is subject to the law.

        

But contrary to this:  In Romans 13:1 the Apostle says, “Let every soul be subject to the higher authorities.”  But one who is not subject to a law laid down by a given authority does not seem to be subject to that authority.  Therefore, all men have to be subject to human law.

        

I respond:  As is clear from what was said above (q. 90, a. 1‑3), law by its nature has two characteristics:  first, it is a rule with respect to human acts; second, it has coercive force.  It follows that there are two senses in which a man can be subject to the law.
In the first sense, he is subject to the law in the way that what is ruled is subject to what is doing the ruling. And everyone who is subject to an authority is in this sense subject to the law which that authority gives.
Now it can happen in two ways that someone is not subject to a given authority:  (a) first, because he is absolutely free of subjection to it, and, hence, those who belong to one city or kingdom are not subject to the laws of the ruler of some other city or kingdom, just as they are not subject to his dominion; and (b) second, insofar as he is ruled by a higher law.  For instance, someone subject to a proconsul should be ruled by his command—and yet not in those matters in which he receives a dispensation from the emperor.  For with respect to those matters, since he is being directed by the command of someone higher, he is not bound by the command of someone lower.  Accordingly, it is possible for someone who is subject to the law absolutely speaking not to be bound by the law in certain matters with respect to which he is under the rule of a higher law.
On the other hand, in the second sense, someone is said to be subject to the law in the way that what is coerced is subject to what is doing the coercing.  In this sense it is only bad men, and not virtuous and just men, who are subject to the law.  For what is coerced and violent is contrary to one’s will.  And the will of good men is consonant with the law, whereas the will of bad men disagrees with the law.  Hence, in this respect only bad men, and not good men, are under the law.

        

Reply to objection 1:  This argument goes through for the type of subjection that exists in the mode of coercion.  For in this sense the law is not given for the just men, since, as the Apostle puts it in Romans 2:14-15, “they are a law unto themselves when they show the work of the law written in their hearts.”  Hence, the law does not exercise coercive power over them in the way it does over on the unjust.

        

Reply to objection 2:  The law of the Holy Spirit is higher than any law that is humanly given.  And so insofar as spiritual men are led by the law of the Holy Spirit, they are not subject to the law with respect to those things that are incompatible with the guidance of the Holy Spirit.  However, part of the Holy Spirit’s guidance is that spiritual men should be subject to human laws—this according to 1 Peter 2:13 (“Be subject to every human creature for the sake of God”).

        

Reply to objection 3:  The ruler is said to be exempt from the law as far as the law’s coercive force is concerned, since no one properly coerces himself and the law has its coercive force only from the ruler’s authority.  Thus, the ruler is said to be exempt from the law in the sense that no one can bring a judgment of condemnation against himself if he acts against the law.  Hence, the Gloss on Psalm 50:6 (“Against you alone have I sinned”) says, “The law has no man who is the judge of his own deeds.”
However, as far as the directive force of the law is concerned, the ruler is subject to the law by his own will.  Accordingly, Extra, De Constitutionibus, chapter beginning “Since everyone ....”, says, “If anyone establishes a law for another, then he himself should keep that same law.”  And the authority of a wise man says, “Obey yourself the law that you have given.”  Again, Our Lord rebukes those who “prescribe and do not do it” and who “impose grave burdens on others and do not themselves want to lift a finger to move them” (Matthew 23:3-4).  Hence, as far as God’s judgment is concerned, the ruler is not exempt from the directive force of the law, but instead should fulfill the law voluntarily and not under coercion.
In addition, the ruler is above the law in the sense that if it is expedient, he can change the law and give dispensations from it for given times and places.

 

 
     

ON THE LAW

ON THE LAW IN GENERAL

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

THE PARTS 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