Home About International University Project Conferences Courses Lectures Projects Publications Readings Contribute Contact      

home \ projects \ step \ on the law \ question 96 \ article 6

STEP home

Treatise on Law




Related links



STEP - St. Thomas Education Project
<<<   ARTICLE   >>>







(Trans. Alfred J. Freddoso)


The Force of Human Law



Is one who is subject to the law permitted to act outside the letter of the law?


It seems that one who is subject to the law is not permitted to act outside of the letter of the law (praeter verba legis agere):


Objection 1:  In De Vera Religione Augustine says, “In the case of temporal laws, even though men pass judgment on them before they institute them, still, once they have been instituted and confirmed, one is permitted not to pass judgment on them, but [only] to pass judgment in accordance with them.”  But if someone neglects the letter of the law, claiming that he is preserving the lawmaker’s intention, then he seems to be passing judgment on the law.  Therefore, one who is subject to the law is not permitted to neglect the letter of the law in order to preserve the lawmaker’s intention.


Objection 2:  Interpreting the laws is the role of the one who makes the laws.  But it is not the role of the men who are subject to the law to make the laws.  Therefore, it is not their role to interpret the lawmaker’s intention; instead, they should always act in accord with the letter of the law.


Objection 3:  Every wise man knows to explain his own intention in words.  But those who have made the laws should be considered wise, since in Proverbs 8:15 God’s wisdom says, “By me kings reign, and lawgivers decree just things.”  Therefore, one should pass judgment about a lawmaker’s intention only by reference to the letter of the law.


But contrary to this:  In De Trinitate 4 Hilary says, “The meaning of what is said should be taken from the reasons for saying it, since the words should be subject to the things and not the things to the words.”  Therefore, one should pay more attention to the reasons that move the lawmaker than to the words themselves of the law.


I respond:  As was explained above (a. 4), every law is ordered toward the common welfare of men, and this is how it gets its force and character as law; on the other hand, to the extent that it fails in this, it does not have the power to bind.  Hence, the Legal Expert says, “Neither a reason in law nor kind fairness permits us to induce severity by a stricter interpretation, contrary to the welfare of men, of what had been beneficially introduced to be useful to them.”
Now it often happens that even though the observance of a certain practice is useful for the common welfare most of the time, there are nonetheless some cases in which it is especially harmful.  Therefore, since a lawmaker cannot foresee all the individual cases, he makes the law with an eye toward what happens most of the time, while directing his intention to the common advantage.  Hence, if a case arises in which the observance of such a law is harmful to the common welfare, it should not be obeyed.  For instance, if in a city under siege it is mandated by law that the city gates should remain closed, this is useful to the common welfare most of the time.  However, if a situation arose in which the enemy were pursuing certain citizens who had important roles in preserving the city, then it would be extremely damaging to the city if the gates were not opened to them, and so in such a case the gates should be opened—in opposition to the letter of the law—in order to preserve the common welfare, which is what the lawgiver intends.
Notice, however, that if the observance of the letter of the law does not entail a sudden danger that has to occur immediately, then not just anyone has the role of interpreting what is advantageous or disadvantageous; rather, this is the role only of the ruler, who has the authority to give dispensations from the laws in light of cases of the sort in question.  On the other hand, if there is a sudden danger that does not permit enough time to have recourse to someone in charge, then the necessity itself has a dispensation attached to it, since necessity is not subject to the law.


Reply to objection 1:  Someone who acts outside the letter of the law in a case of necessity is not passing judgment on the law itself, but is rather passing judgment on a particular case, in which he sees that the words of the law should not be obeyed.


Reply to objection 2:  One who follows the lawmaker’s intention is not interpreting the law absolutely speaking; rather, he is interpreting the law with respect to a case in which it is obvious, because of the evidentness of the harm, that the lawmaker had intended something else.  For if there is a doubt, then he should either act in accord with the letter of the law or consult those in charge.


Reply to objection 3:  No man has wisdom to such a degree that he is able to think of all the individual cases, and so no one can adequately express by his words the things that are in keeping with his intended end.  Even if a lawmaker were able to take all the cases into consideration, then for the sake of avoiding confusion he should not express them all.  Instead, he should issue a law in keeping with what happens most of the time.





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