The Binding Nature of Law
The rational creature’s and community’s self-legislation most of all reflects what is to Suarez the absolute distinguishing and exclusive feature of law, namely its binding nature.4≡ The inner necessity of the law fuses with its per se obligatory nature that matches a rational being’s capacity to be obliged.
Again, various examples can be mentioned. Laws cannot just show what is good and evil; they can never bejust indicative. If, as in the case of complete ethical objectivism, actions that are inherently good or evil would cause us to do or omit them, laws would not command or prohibit anything. Going against this line of thought, Suarez states at various instances that for the good to be an obligation and the bad to be prohibited, an act of will of a commanding supeÂrior is fundamental. In the first chapter, on the definition of law, Suarez argues that â€?properly speaking about law, like here, law is only law when it imposes some obligation’^6 Therein also resides the difference between law and counÂsel. â€?Counsel falls outside the description of law, because it is not, properly speaking, the rule and the measure of the goodness of the act’. Viewed morally, it does not efficiently oblige to act, that is to say, by imposing â€?a moral necessity to act’.[457] â€?When we say that the law obliges to act, it has to be understood in that sense’[458]Very typical of this deductive approach is furthermore the ahistorical nature of law, that is explicitly set in a context that is not factual, but conceptual, not concrete, empirical or historical, but abstract. The ahistorical nature of the law, is more generally part and parcel of its acontextual nature, and is organically embedded in Suarez’s semiology of the law, that comes among others forward in Book vi, â€?De interpretatione, cessatione et mutatione legis humanae’. Michel Bastit in this respect points out that the ratio of a law is not â€?a sign situated beyond the text’ but is a sign of the will of the legislator that is therefore selfÂsufficient. As explained elsewhere, the very understanding of the historical nature of things seems to change in the context of a deductive approach to law. In the process, a distinction seems to be made between the absolute nature of law on the one hand and the level of mere historical facts on the other. The latter level seems ex negativo to constitute a level of reality in its own right[459]
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