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the whole people or to a public personage who has care of the whole people: since in all other matters the directing of anything to the end concerns him to whom the end belongs.”23 If a private person – someone who does not have legitimate authority – tries to make or enforce a law this is null and void.24 The force of laws passed by legitimate authority is diminished – and perhaps made entirely null – if the laws they pass are contrary to the universal custom of a people: “to a certain extent, the mere change of law is of itself prejudicial to the common good: because custom avails much for the observance of laws, seeing that what is done contrary to general custom, even in slight matters, is looked upon as grave. Consequently, when a law is changed, the binding power of the law is diminished, in so far as custom is abolished. ST. THOMAS AQUINAS (1476). CARLO CRIVELLI. NATIONAL GALLERY, LONDON. PUBLIC DOMAIN
happiness; “the law must needs regard principally the relationship to happiness.”20 Those civil laws called “just” are those “which are adapted to produce and preserve happiness and its parts for the body politic”.21 It follows from this that any command which is contrary to the common good, does not have the nature of law: “Consequently, since the law is chiefly ordained to the common good, any other precept in regard to some individual work, must needs be devoid of the nature of a law, save in so far as it regards the common good.”22 A LAW IS MADE BY LEGITIMATE AUTHORITY
Laws are directed to the common good. Therefore, only the whole community, or those with legitimate authority over the whole community, can make laws. As Thomas teaches: “Now to order anything to the common good, belongs either to the whole people, or to someone who is the viceregent of the whole people. And therefore the making of a law belongs either to
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“Wherefore human law should never be changed, unless, in some way or other, the common weal be compensated according to the extent of the harm done in this respect. Such compensation may arise either from some very great and very evident benefit conferred by the new enactment; or from the extreme urgency of the case, due to the fact that either the existing law is clearly unjust, or its observance extremely harmful. Wherefore the jurist says that ‘in establishing new laws, there should be evidence of the benefit to be derived, before departing from a law which has long been considered just.’” Indeed, custom itself can have force of law: “Augustine says: ‘The customs of God’s people and the institutions of our ancestors are to be considered as laws. And those who throw contempt on the customs of the Church ought to be punished as those who disobey the law of God.’”25 Furthermore, if a people are: “free, and able to make their own laws, the consent of the whole people expressed by a custom counts far more in favour of a particular observance, that
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