Should human law in any way be
changed?
It seems that human law should not in
any way be changed:
Objection 1: As was
explained above (q. 95, a. 2), human law stems from
the natural law. But the natural law persists
unchanged. Therefore, human law should likewise
remain unchanged.
Objection 2:
As the Philosopher says in Ethics 5, a measure must
be especially permanent. But as was explained above (q.
90, a. 1-2), human law is a measure of human acts.
Therefore, it should remain unchanged.
Objection 3:
As was explained above (q. 95, a. 2), it is part of the
nature of law that it is just and right. But what is once
right is always right. Therefore, what is once the law
should always be the law.
But contrary to this:
In De Libero Arbitrio 1 Augustine says, “Even if a
temporal law is just, it can nonetheless be justifiably
modified through time.”
I respond:
As was explained above (q. 91, a. 3), human law is a
certain type of dictate of reason by which human acts
are directed. Accordingly, there are two possible
reasons why human law might justifiably be changed,
one on the side of reason and the other on the
side of the men whose acts are regulated by the
law.
On the side of reason, it seems natural to human
reason that it should gradually move from what is imperfect
toward what is perfect. Hence, we see in the speculative
sciences that those who first philosophized handed down
what was imperfect and this was later made more perfect
by their successors. The same thing holds true
in the practical sciences. For those who first
intended to discover something useful for the human
community were unable to take everything into consideration
on their own and so instituted certain imperfect practices,
deficient in many ways, which their successors changed
by instituting practices such that there were fewer
ways in which they could fail the common welfare. On
the side of the men whose acts are regulated
by the law, law can rightly be changed because of changes
in the situations of men, for whom different things
are expedient in different situations. In De
Libero Arbitrio 1 Augustine presents an example:
“If the people are mature and serious and and diligently
guard the common welfare, then it is right to adopt
a law by which such people are permitted to appoint
for themselves magistrates to administer the republic.
However, if the same people, having been depraved little
by little, hold a rigged election and entrust the government
to dissolute and profligate men, then it is justifiable
to deprive such people of the power of conferring public
offices and to return to the choice of a few good men.”
Reply to objection 1:
As was explained above (q. 91, a. 2), the natural law
is a type of participation in the eternal law, and so
it persists unchanged—a feature it has from the unchangeability
and perfection of God’s reason insofar as it institutes
nature. By contrast, human reason is changeable
and imperfect, and so its law is changeable. Moreover,
the natural law contains certain general precepts which
always remain in force, whereas the law made by man
contains certain particular precepts corresponding to
the differenct situations that arise.
Reply to objection 2:
A measure should be as permanent as possible. But among
changeable entities there cannot be anything that persists
altogether unchangeably. And so human law cannot be
altogether unchangeable.
Reply to objection 3:
Among corporeal things ‘right’ (rectum) is
predicated absolutely, and so, as far as it itself is
concerned, what is right always remains right. However,
rightness (rectitudo) is predicated of the law in
relation to the common welfare, which, as was explained
above, is not such that one and the same thing is always
proportioned to it. And so this sort of rightness
changes. |