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Monday, November 15, 2010

Whether someone subject to the law can act outside the letter of the law

A dose of sanity from the great Medieval thinker, Thomas Aquinas.

“All law is ordered to the common well-being of men and gains the force of law from precisely that fact. To the degree that it fails in accomplishing this end, it loses its binding force. Thus the Jurist says, "No reason of law or advantage of equity allows us to interpret harshly and render burdensome those healthy measures which were originally enacted for man s welfare."

It often happens that a law aimed at the general welfare is useful in most cases and yet on occasion is very harmful. Because a legislator cannot foresee all possible individual cases, he promulgates a law which fits the majority of cases, having the common good in mind. If a case emerges in which the law is harmful to the common good, it should not be observed. For example, if a law says that the gates of a certain besieged city should remain closed, such a law is beneficial to the city in most cases; yet if the enemy is pursuing some of the very citizens by whom the city is defended, refusal to open the gates and let them in would be harmful to the city. In such cases, the gates should be opened despite the letter of the law, in order to attain the common good intended by the legislator.

“Note, though, that if obedience to the letter of the law involves no immediate danger calling for instant remedy, not everyone is competent to decide what is good or bad for the city, but only the leaders, who have authority to dispense with the law in such cases. If it is indeed a matter of immediate danger allowing no time to consult a superior, such necessity carries its own dispensation, for necessity knows no law.”

Translated by D. Burr.


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