Liber III, Pars II — Quod diversa sunt genera legum, et diveris sunt modi iustitiae: et quod in ius naturale et positivum caetera alia reducuntur. Cap. XXIV.

Liber III, Pars II — Quod diversa sunt genera legum, et diveris sunt modi iustitiae: et quod in ius naturale et positivum caetera alia reducuntur. Cap. XXIV.

Since laws are certain rules of justice through which we are governed in matters that can be acted upon, the gods judge through them what is just and what is unjust in our actions: it is clear that in the same way we distinguish between law and justice, we can also distinguish the laws themselves, and vice versa. However, we can make five distinctions regarding both law and justice, two of which pertain to the first. Rhet. The third is stated in 5. Ethic. The fourth is handed down by the jurists; we ourselves can add the fifth. For the law is distinguished because some of it is written and some is unwritten: some is common, some is particular; some is natural, and some is legal or positive. These three distinctions of law are noted by Phil. He handed down: but the jurists distinguished the law in the fourth way, saying that there is a certain natural law, and a certain law of nations, and a certain civil law. Therefore, in the way that justice separates natural law from the law of nations, we could separate natural law from the law of animals: and we could give a fifth distinction of law, saying that there is a fourfold law. Namely, natural, animal, national, and civil. Thus, we can make five distinctions, which we have made regarding law or justice, concerning the law itself. So that all these things may be better understood, and so that we may reduce these diversities to harmony, it must be understood that there are two kinds of justice, or two kinds of law, natural and positive. Indeed, just laws are those that are natural, which are adequate and proportionate according to their nature, or they are said to be just naturally, which reason dictates should be such, or to which we have a natural impulse and inclination. However, positive laws are those that are not based on their own nature, but are judged to be just based on human agreement or legal institution. Therefore, since the nature of things is the same everywhere, because what is fire in one place, like in France, is fire in another place, like in Italy: the things themselves are the same for everyone; although they may not be named with the same term. But the laws of the people, the agreements of citizens, and the edicts of rulers are not the same everywhere. Hence, natural law is said to differ from positive law because natural law is as it is traditionally understood. Ethicor. Everywhere it has the same power. However, positive law, established from the beginning, does not differ in essence from one form or another; once it has been enacted, it begins to have binding efficacy. The reason, then, why positive law must be added to natural law is that many things are just by nature, just as it is natural for humans to speak: we have a natural impulse and inclination to speak and to express to others what we have conceived in our minds; but the fact that we speak this language or another is not natural, but a matter of convention. Hence, it is true that all humans speak, but not all express the same language. Thus, it is also true that the philosopher I. The concept of 'perihermenias' suggests that words and speeches are meant to be interpreted according to custom, as the first book of the Politics states, that speech is given to us by nature. Just as speaking is natural, so speaking in this way or that is positive and based on custom. Thus, punishing thieves, not allowing wrongdoers to live, and other similar actions are dictated by natural law, because natural reason dictates that these things should be done for the good of society, and we have a natural impulse to ensure they happen. These arise from the very nature of things; it is natural that the good of a part should be exposed to danger for the sake of the good of the whole, just as a putrid member should be cut off so that the whole body does not perish: similarly, because a thief and a wrongdoer, and any malefactor disturb the peace of the citizens by threatening the common good, therefore natural law demands that they be cut off like a putrid member and exterminated, so that they do not expose the common good to danger. Therefore, it is natural to punish such actions. However, punishing these actions in this way or that is positive and based on custom. Therefore, among all who wish to live civilly, wrongdoings are punished, but the same wrongdoings are not corrected with the same penalties everywhere. Where natural law ends, positive law begins: because whatever is invented by human skill is always based on what has been established by nature; indeed, positive law presupposes natural law, just as what is of art presupposes what is of nature. Therefore, if natural law dictates that thieves and wrongdoers should be punished, then positive law proceeds further, determining what penalty should be applied to such offenses. Now, considering the present context, we can assign a twofold distinction between natural law and positive law. The first is that natural law presents itself to the intellect at first glance, while positive law does not reveal itself immediately but is discovered through human effort. And because natural laws present themselves to our intellect in this way, they are simply said to be written in our hearts. For the nations that do not have the law naturally do what is in accordance with the law, and they show the work of the law written in their hearts. Positive law, however, is not written in the heart in this way, so it must be recorded in some external substance to prevent it from being forgotten. Thus, both types of law can be written in some external substance, both natural and positive; however, natural law does not require this in the same way that positive law does, for it cannot be forgotten as easily. The second distinction is that natural law is the same for all, which is why it is called common law; but positive law varies among different states, which is why it is called proper law. Therefore, it is said that Empedocles. As the philosopher recites. I. Rhet. He calls natural law ether or fire, which continues to extend through an incomprehensible clarity. For fire, in its own sphere, diffuses itself more than other elements and is more distant from them all, is likened to natural law, which is more diffuse and common than positive law, and is more known and clearer than that. From this, it can be seen that all the distinctions made by the philosopher are evident. Regarding law or justice, they are reduced to positive law and natural law; for, as is evident from the discussions, natural law is said to be unwritten, common, and according to nature. Positive law is said to be written, and it is proper and legal. What should be understood about the law of nations and the law of animals will be made clear in the next chapter.