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. |