Yet another proof, if another one was required, to prove that the nation is not and can never be the state. Contemplate Summa Theologica Question 95. Human Law Article 4.
Article 4. Whether Isidore’s division of human laws is appropriate?
Objection 1. It would seem that
Isidore wrongly divided
human statutes or
human law (Etym. v, 4, seqq.). For under this
law he includes the “
law of
nations,” so called, because, as he says, “nearly all nations use it.” But as he says, “
natural law is that which is common to all
nations.” Therefore the
law of nations is not contained under positive
human law, but rather under
natural law.
Objection 2. Further, those laws which have the same force, seem to differ not formally but only materially. But “statutes, decrees of the commonalty, senatorial decrees,” and the like which he mentions (Etym. v, 9), all have the same force. Therefore they do not differ, except materially. But art takes no notice of such a distinction: since it may go on to
infinity. Therefore this division of
human laws is not appropriate.
Objection 3. Further, just as, in the state, there are princes,
priests and soldiers, so are there other
human offices. Therefore it seems that, as this division includes “military
law,” and “public
law,” referring to
priests and magistrates; so also it should include other laws pertaining to other offices of the state.
Objection 4. Further, those things that are
accidental should be passed over. But it is
accidental to
law that it be framed by this or that
man. Therefore it is unreasonable to divide laws according to the names of lawgivers, so that one be called the “Cornelian”
law, another the “Falcidian”
law, etc.
On the contrary, The authority of
Isidore (Objection 1) suffices.
I answer that, A thing can of itself be divided in respect of something contained in the notion of that thing. Thus a
soul either rational or irrational is contained in the notion of animal: and therefore animal is divided properly and of itself in respect of its being rational or irrational; but not in the point of its being white or black, which are entirely beside the notion of animal. Now, in the notion of
human law, many things are contained, in respect of any of which
human law can be divided properly and of itself. For in the first place it belongs to the notion of
human law, to be derived from the
law of nature, as explained above (
Article 2). In this respect positive
law is divided into the “
law of
nations” and
“civil law”, according to the two ways in which something may be derived from the
law of nature, as stated above (
Article 2). Because, to the
law of nations belong those things which are derived from the
law of nature, as conclusions from premises, e.g. just buyings and sellings, and the like, without which men cannot live together, which is a point of the
law of nature, since
man is by
nature a social animal, as is
proved in Polit. i, 2. But those things which are derived from the
law of nature by way of particular determination, belong to the
civil law, according as each state decides on what is best for itself.
Secondly, it belongs to the notion of
human law, to be ordained to the common
good of the state. In this respect
human law may be divided according to the different kinds of
men who work in a special way for the common
good: e.g.
priests, by
praying to
God for the people; princes, by governing the people; soldiers, by fighting for the safety of the people. Wherefore certain special kinds of
law are adapted to these men.
Thirdly, it belongs to the notion of
human law, to be framed by that one who governs the community of the state, as shown above (
I-II:90:3). In this respect, there are various
humanlaws according to the various forms of government. Of these, according to the
Philosopher (Polit. iii, 10) one is “monarchy,” i.e. when the state is governed by one; and then we have “Royal Ordinances.” Another form is “aristocracy,” i.e. government by the best men or men of highest rank; and then we have the “Authoritative legal opinions” [Responsa Prudentum] and “Decrees of the Senate” [Senatus consulta]. Another form is “oligarchy,” i.e. government by a few rich and powerful men; and then we have “Praetorian,” also called “Honorary,”
law. Another form of government is that of the people, which is called “democracy,” and there we have “Decrees of the commonalty” [Plebiscita]. There is also tyrannical government, which is altogether corrupt, which, therefore, has no corresponding
law. Finally, there is a form of government made up of all these, and which is the best: and in this respect we have
lawsanctioned by the “Lords and Commons,” as stated by
Isidore (Etym. v, 4, seqq.).
Fourthly, it belongs to the notion of
human law to direct
human actions. In this respect, according to the various matters of which the
law treats, there are various kinds of laws, which are sometimes named after their authors: thus we have the “Lex Julia” about
adultery, the “Lex Cornelia” concerning assassins, and so on, differentiated in this way, not on account of the authors, but on account of the matters to which they refer.
Reply to Objection 1. The
law of nations is indeed, in some way,
natural to
man, in so far as he is a reasonable being, because it is derived from the
natural law by way of a conclusion that is not very remote from its premises. Wherefore men easily agreed thereto. Nevertheless it is distinct from the
natural law, especially it is distinct from the
natural law which is common to all animals.
The Replies to the other Objections are evident from what has been said.
Consider this: if the nation was the state, there would be no need for the construction “nation-state” to ever have been created. Furthermore, there would have been no need for economists to make the change from “Gross National Product”, which sums the economic activity of an entire nation regardless of the geographic location of the nationals, to “Gross Domestic Product”, which sums the economic activity of all the people within a specified geographic location.