246. The Mutability of Human Law and Custom

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Lecture Notes

Main Topics #

The Mutability of Human Law #

• Central Question: Can human law be justly changed?
• Thomas distinguishes between natural law (immutable, proceeding from divine reason) and human law (mutable, proceeding from human reason)
• Human law is a dictate of reason (dictamen rationis) directed toward the common good
• Because human reason is imperfect and proceeds gradually (paulatim) from imperfect to perfect understanding, human law necessarily differs from natural law in its capacity for change

Conditions for Changing Law #

Laws may be changed rightly when:

• Reason discovers something better or more perfect (evolution on the side of reason itself)
• Conditions of men change, making different things expedient for the common utility
• Change serves the common good (communis salus, communis utilitas)

Important Caveat: Change itself carries detriment to law’s force, since observance depends on custom. Therefore, change should not occur for minor improvements but only when very great and evident utility comes from the new law.

Acting Outside the Letter of Law #

• In cases of necessity, one may act contrary to the words of law when observation would be harmful to common salvation
• The legislator cannot foresee all singular cases and proposes laws according to things that happen in pluribus (in most cases)
• Example: City gates should remain closed during siege for common salvation, but should be opened if enemy pursues civilians through whom the city is conserved
• However, only princes (those with authority) may dispense from laws in cases not involving sudden necessity
• Private persons cannot interpret what is useful to the city

Custom and the Force of Law #

• Custom can obtain the force of law through repeated acts that manifest deliberate judgment of reason
• Custom can both establish new law and abolish existing law
• If the multitude is free (has power to make law), its consent to custom has more force than princely authority
• If the multitude is not free, custom obtains force through toleration by those with authority
• Custom cannot obtain strength against divine law or natural law, but only against human law

Key Arguments #

Argument Against Mutability of Human Law #

1. Human law derives from natural law, which is immutable
2. Natural law proceeds from divine will (eternal, immobile)
3. Therefore, human law should remain immutable

Response: Natural law’s immobility comes from God’s perfect reason; human law’s mutability comes from human reason being imperfect and changeable. Natural law contains universal precepts (always binding), while human law contains particular precepts (varying with cases).

The Permanence of Measures #

1. A measure should be permanent (Aristotle, Ethics V)
2. Human law is the measure of human acts
3. Therefore, human law should remain permanent

Response: In changeable things, permanent measures cannot be altogether maintained. Human law cannot be entirely permanent but must be quantum est possibile (as much as is possible).

What Is Right Is Always Right #

1. That which is once right is always right (in absolute terms)
2. That which is once law ought always to be law

Response: Rightness of law is not absolute but in order to common utility (ordine ad communem utilitatem). When conditions change, what is suitable for common utility changes, and thus the rectitude of law changes.

Important Definitions #

Human Law (lex humana) #

A rule and measure of human acts ordered to the common good, proceeding from human reason ruled by reason. It is changeable because human reason is imperfect and proceeds gradually.

Natural Law (lex naturalis) #

A partaking of eternal law (participatio legis aeternae) that remains immobile and derives its perfection from divine reason. It contains universal precepts that are always binding.

Custom (consuetudo) #

Repeated acts that manifest the interior motion and conception of human reason through their multiplication. When acts are multiplied, they declare deliberate judgment of reason and can obtain the force of law.

Common Utility/Salvation (communis utilitas, communis salus) #

The end to which law is ordered. Laws must serve the common good, and when observation of a law would be harmful to common salvation, the law should not be observed in that case.

Necessity (necessitas) #

A condition that is not subject to law but annexed to dispensation from law, permitting one to act outside the letter of law when sudden danger requires immediate action.

Examples & Illustrations #

Speed Limit Enforcement #

A law sets speed limit at 60 mph, but police policy tolerates 65 mph. Through repeated toleration and custom, this 65 mph standard obtains the force of law in practice, distinct from the written law.

City Gates During Siege #

Law: Gates should remain closed for common salvation of the city. Exception: If enemy pursues civilians through whom the city is conserved, the gates should be opened. Observation of the written law would harm the common salvation; therefore the law should not be observed, preserving the legislator’s true intention.

Missouri Compromise #

John Quincy Adams opposed slavery but believed the Constitution did not permit federal prohibition of slavery in Missouri. The solution divided Maine from Massachusetts and established a geographic line—an example of how law operates within constitutional authority and how even good men must work within the limits of legal authority.

Federal Government Authority #

Jefferson’s purchase of Louisiana: When the President had authority to act, John Quincy Adams later justified it. The example illustrates how those with authority may exercise discretion in cases where the legislator’s original words do not explicitly cover the situation.

Notable Quotes #

“Human law is a certain dictate of reason by which human acts are directed; and according to this there is a twofold cause that human law be justly changed.” (Thomas Aquinas, on the two causes of change: reason itself and the conditions of men)

“The legislator cannot look upon all singular cases; he proposes a law according to those things which happen in pluribus.” (Thomas, explaining why laws stated universally must admit exception)

“Necessity is not subject to the law.” (Principle establishing that necessity is annexed to dispensation)

“The rectitude or rightness of the law is said in order to the common utility, to which is not always suitable one and the same thing.” (Thomas, explaining why laws may change as conditions change)

Questions Addressed #

Can human law be justly changed? #

Resolution: Yes, justly, because human reason is imperfect and proceeds gradually toward perfection, and because conditions of men change, requiring different particular precepts for the common good. However, change carries detriment to law’s force through loss of custom, so change should only occur for very great and evident utility.

What is the relationship between the letter of law and the legislator’s intention? #

Resolution: One should act according to the legislator’s intention (common utility) when it manifests that observation of the letter would be harmful to common salvation. However, this is limited: if the harm is not manifest, one should either act according to the words or consult the legislator (if time permits).