The Nature of Law

281 Pages·1951·62.315 MB·English

by  Thomas E. Davitt

THE NATURE OF LAW
BY
Thomas E. Davitt, SJ., Ph.D.
School of Law
St. Louis University
B. HERDER BOOK CO.
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Printed in U.S.A.
Copyright 1951
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YaH-Ballou Press, Inc., Binghamton and New York
It belongs to the reason
to direct to the end,
which is the first principle
in matters of action.
St, Thomas, Summa theoL, la Ilae,
q. 90, a. 1, c.

CONTENTS
PAGE
Introduction.i
Part I
THE PRIMACY OF THE WILL IN THE
CONCEPT OF LAW
CHAPTER
L Henry of Ghent.9
II. John Duns Scotus.24
III. William Ockham.39
IV. Gabriel Biel.55
V. Alphonse de Castro.69
VI. Francis Suarez.86
Part H
THE PRIMACY OF THE INTELLECT IN THE
CONCEPT OF LAW
VII. Albert the Great.111
VIII. Thomas Aquinas.125
IX. Thomas de Vio (Cajetan).148
X. Dominic Soto.161
XI. Bartholomew Medina.178
XII. Robert Bellarmine.195
Consequences.219
Bibliography.230
Index.255
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INTRODUCTION
This book is a historical introduction to a problem. The
problem is the nature of law, that is, the relation between
the concept of law and the philosophy of intellect and will.
It is an introduction, first, because it does not pretend
to consider all the authors who may have contributed to
the development of this problem and, secondly, because it
does not profess to treat everything that the authors who
are considered may have said on the subject.
What the work does propose to do, however, is primarily
to consider those texts of certain authors which convey
their main thought on this subject,^ and secondarily to
indicate which of the two solutions that will be encoun¬
tered seems preferable and the reason why. As occasion
offers, related questions that still need further investiga¬
tion will also be pointed out.
The problem that concerns us here has its roots deep in
the history of the philosophy of intellect and will. Without
a knowledge of this history the problem itself cannot be
fully understood, and unless it is, it will be approached
with a cast of mind that precludes seeing the direction in
1 Because of the fact that, for those interested, the original Latin texts are
available, it has been considered unnecessary to reprint them here. Exact refer¬
ences will be given for every statement attributed to an author; statements are
either close paraphrases or translations. (All translations, from whatever lan¬
guage, are the present author’s and will be indicated by quotation marks.)
2 THE NATURE OF LAW
which the solution lies.^ There is, therefore, a necessity for
examining the period in which this philosophy grew and
matured. This period, in general, extends from the thir¬
teenth to the early seventeenth century. The philosophiz¬
ing about law before this period (for instance, of Plato,
Aristotle, Cicero, Gains, Ulpian) was more of a general
nature, lacking as it did a well worked out philosophy of
man’s intellect and will that could serve as a means of re¬
fining the concept of law. The thinking about law that
followed this period even until today (as found, for in¬
stance, in Grotius, Hobbes, Pufendorf, Savigny, Wolff,
Kant, Bentham, Holmes, and many others) either drew
directly upon the riches amassed during this period or
gradually fell away from the heights then attained accord¬
ing as the philosophy of man’s nature was lost sight of. The
sociological notion of law so prevalent today, based as it
is on no definite philosophy of man, is a prime example of
this. It is to authors, therefore, of the vital middle period
that we must give our attention.
Since the thirteenth century two philosophies of intel¬
lect and will have developed: the one based on the primacy
of the will, the other founded upon the primacy of the in¬
tellect.
The proponents of the primacy of the will vindicate the
will’s freedom of election by a complete causal independ¬
ence of the will from the intellect. The cause of the free¬
dom of election is solely in the will. The function of the
intellect is only that of a conditio sine qua non. The dear-
2 Cf. below, p. 220, notes 3 and 4.
INTRODUCTION
3
est aim of this group is to keep the will autonomous, to
keep it completely independent of any physical necessity
that might be imposed upon it by the intellect. Man is
essentially a free creature.
Those who hold the primacy of the intellect, on the
other hand, explain the freedom of election by a causal
dependence of the will upon the intellect. Freedom of
election has its metaphysical source in the intellect. The
interaction of the intellect and will is one of mutual causal¬
ity. Man is essentially a knowing creature.
In other words, the question is: What is the nature of
the will? Is the will, in the act of choice, of such a nature
that the action of the intellect with it is only that of a pre¬
requisite condition? Or is the nature of the will such that
it depends causally upon the intellect in the very act of
choice? To express the problem in its metaphysical impli¬
cations: Is the will the principle not only of motus but also
of ordo, or is the will the source of motion, while the intel¬
lect alone is the principle of order?
These are radical divergencies and their results on the
practical level are enormous. If the will is conceived as
autonomous, then it alone can direct and command; and
since command is law, law becomes an act of the will.
Further, because the will can be put under no physical
necessity by the intellect, neither can it be subjected to
moral necessity by the intellect presenting means as neces¬
sary for an end. Hence the source of moral necessity, of
obligation, is subjective—the will itself! In this system of
thought, order and finality are to be found within the will.
4 THE NATURE OF LAW
On the other hand, if the will is conceived as having its
metaphysical root in the intellect, then, of course, direc¬
tion and command can pertain only to the intellect. Hence
law is an act of the intellect. And since the intellect is al¬
lowed a causal interaction with the will, it can impose
upon the will the moral necessity of acting according to
the relation of means to an end that it might propose. The
source of obligation is, then, for this group the objective
relation of means necessary to attain an end.^ Here objec¬
tive order and finality, attained by the intellect, are outside
the will.^
In the first of these positions where obligation depends
upon the will of the lawgiver, a law that would not oblige
directly in regard to the thing commanded but only to
the payment of the penalty if the lawgiver so willed, is
quite conceivable; and civil life is, in large part, not di¬
rectly a matter of conscience. In the second position where
obligation does not depend upon the wdl of the lawgiver
but upon the objective nature of means necessary to attain
an end, a law that would not oblige directly in regard to
the thing commanded is wholly illogical and unthinkable;
and every act of civil life has immediately some moral con¬
notation, great or small. Of importance also is the fact
that the relation between the concept of law and its foun¬
dation in psychology is basically the same as that of con-
This necessity, of course, includes means that are both absolutely and rela-
tively necessary to attain an end. Even such a contingent thing as, for instance
a traffic law is somehow necessary for the attainment of the common good. ’
of finality in determining the nature of the intelLt and
Tf T R h *hown in the specification of the moral act. See the excellent work
sJ;
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