Chapter XV: Part I: General Moral Theology (8)

509. A custom can introduce or abrogate any kind of ecclesiastical law or other custom--penal, prohibitive, irritant--if it is reasonable and has lasted the prescribed time (Canons 27, 28). Examples: A law that forbids contrary customs can be abrogated, according to the Code, by such customs when they are immemorial, or a century old (Canon 27, Sec. 1). The impediment of disparity of worship became diriment through custom; it was custom that introduced the obligation of the Divine Office, and that mitigated the early law of fast.

510. A custom expressly disapproved of in law is not reasonable or legitimate, and cannot derogate from an existing law, nor establish a new law (Canons 27, 28).

511. The time prescribed by the Code of Canon Law for the acquisition of legal force by customs that have not the personal consent of the lawgiver is as follows: (a) forty continuous and complete years are required to unmake an ordinary law; one hundred years to unmake a law that forbids future contrary custom (Canon 27, Sec. 1); (b) forty continuous and complete years are likewise required to make a new law (Canon 28).

512. The effect of the Code on customs previously existing was considered above under 421.

513. Like the written law, custom ceases: (a) from within, when its purpose has ceased entirely; (b) from without, when it is abrogated by desuetude, or by a contrary law or custom (Canon 30).

514. Laws in a Wide Sense.--In addition to laws strictly so-called, there are laws in a wide sense, commands or provisions made by ecclesiastical superiors that have not all the conditions given above (see 285) for law. Such are: (a) precepts, which differ from law, because they are given not to the community or permanently, but to individuals or temporarily; (b) rescripts, which are given with regard to particular cases and without the solemnity of law; (c) privileges, which are not obligatory; (d) dispensations, which are relaxations of law granted to individuals.

515. A precept is a command given to individuals, or for an individual case, by a competent superior.

(a) It is a command obliging in conscience, and so differs from counsel, desire, exhortation.

(b) It is given to individuals, and thus differs from law, which has the character of universality and stability. A precept may be imposed on a community, but even then it is particular, as being given only for an individual case or for a certain length of time--for a month or a year, or during the lifetime of the superior.

(c) It is given by a competent superior. Even here precept differs from law, since laws can be made only by one who has jurisdictional or public authority (see above, 285), while precepts may be given also by those who have only dominative or private authority (as parents, heads of families, husbands, employers, abbesses). In canonical matters precepts may be given by religious superiors, parish priests, rectors of seminaries, and for the court of conscience by the confessor.

516. Precept is similar to law: (a) as to its object, which must be just, good, and possible of observance; (b) as to its binding force, since it can be imposed even on those who are unwilling.

517. Precepts are personal (i.e., they affect the person to whom they are given wherever he may be), unless they are given as territorial (Canon 24). Hence: (a) a precept given by one who has no territorial authority (e.g., a religious superior) is personal; (b) a precept given by the Pope, whose authority includes every territory, is also personal; (c) a precept given by the bishop is personal, if given to an individual; it is personal or territorial if given to a community, according to the nature of the case or the wording of the precept. Example: The precept not to go to theatres during a journey, imposed by a bishop under pain of suspension, obliges everywhere, both as to fault and as to penalty.

518. As to the force of precepts: (a) morally or as to fault, they oblige, so that the violator is guilty of disobedience and of sin against any particular virtue the superior willed to impose under precept; (b) juridically or as to the penalty prescribed, they do not oblige, unless the precept was given legally--i.e., by a written document, or in the presence of two witnesses, etc. (Canon 24). Example: If a precept was given under the penalty of loss of office, but without the legal formalities, the canonical process and sentence of deprivation could not be resorted to.

519. A precept expires of itself with the expiration of the authority that gave it (e.g., at the death or cessation of office of the superior), unless the precept was given by document or before witnesses (Canon 24).

520. A rescript is a written reply made by the Holy See or the Ordinary to a request, statement, or consultation. Replies of this kind are employed in reference to the concession of benefices and to dispositions to be made concerning litigation and judicial procedure. Usually they grant favors, either transitory--e.g., a dispensation--or permanent--e.g., a privilege (Canons 36-62).

521. A privilege is a special and permanent right granted by a ruler to an individual or community to act contrary to or beyond the law.

(a) It is a permanent right, and so resembles law, which is also stable and forbids interference with what it grants.

(b) It is a special right, and so it differs from law, which is general and imposes obligation. It is sometimes styled “private law.” Moreover, law requires promulgation, privilege requires only acceptance.

(c) It is granted by the ruler (i.e., by the Pope, bishop, or other legislator), and thus it differs from permission granted by a simple superior.

(d) It is granted to a person, that is, to an individual (Titus, Caius, Balbus, etc.) or to a congregation or community; for, if granted to all, it would not be special.

(e) A privilege gives the right to act contrary to the general law (e.g., by exempting from a tax) or beyond the general law (e.g., by granting the power to dispense). Thus, a privilege differs also from prerogatives that are set down in the Code itself (e.g., the special rights and faculties of Cardinals, bishops, regulars, etc.), all of which are laws and not privileges in the strict sense.

522. The rules for interpretation of privileges are similar to those for the interpretation of law (see 483 sqq.). They should be neither extended nor restricted, but should be understood according to the meaning of the words themselves (Canon 67), yet so that the party receiving the privilege will seem to have obtained a favor (Canon 68). If the meaning intended is doubtful, the following rules of the Code (Canons 50, 68) should be followed: (a) wide interpretation is to be given to the privileges that are beyond or outside of the law and that are not prejudicial to others, as well as to privileges that were given as a reward of merit; (b) strict interpretation is to be given to privileges that are contrary to law (saving the cases of privileges granted to pious causes or in favor of a community), to privileges granted because of an agreement made, and to privileges that are prejudicial to third parties.

523. A privilege is a favor, and hence does not as such impose the duty of acceptance or use; but obligations owed to others often make it necessary to avail oneself of a privilege (Canon 69).

(a) Prerogatives granted in the law cannot be renounced by individuals, since their preservation is required by the common good. Example: A cleric has no right to abandon an immunity which the law gives to his state.

(b) Privileges granted to a community can be renounced by the community, but not by its individual members. An individual member is not bound, however, to use the privilege, unless there be accidental reasons, such as the command of a superior, that require him to do so.

(c) Privileges granted to individuals need not be used by them, unless there be accidental reasons that call on one to use a privilege. Example: A priest who has the privilege of a private oratory is not bound to establish such an oratory; but a priest who has the privilege of absolving from reserved cases is bound in charity to use it, if a penitent would otherwise suffer.

524. Dispensation differs from privilege: (a) because the former from its nature is temporary, the latter permanent; (b) because the former is always contrary to the law, whereas the latter may be only beyond the law.

525. The Pope can dispense as follows: (a) in all ecclesiastical laws he can grant a dispensation strictly so-called (Canon 81); (b) in divine laws in which the obligation depends on an act of the human will (such as the laws of oaths, vows, contracts, etc.), he can grant a dispensation improperly so-called (see above, 313 sqq., 357), In other divine laws, he can interpret or declare, but he cannot dispense.

526. The Ordinary can dispense as follows: (a) in the general law of the Church when he has an explicit or implicit faculty from the Pope or from the law (Canon 81); (b) in diocesan laws and, in particular cases, also in laws of provincial and plenary councils, when there is just reason (Canon 82); (c) in papal laws made for a particular territory, when faculty has been given explicitly or implicitly, or recourse to the Holy See is difficult (Canon 82); (d) in all ecclesiastical laws that are dispensable, when there is doubt of fact (Canon 15).

527. The pastor can dispense as follows: (a) from the general law concerning feasts of obligation and from the laws of fast and abstinence. The dispensation can be granted either to his own subjects or to strangers, but only for a just reason, in individual instances and for particular individuals or families. The bishop may dispense the whole diocese, but the pastor cannot dispense the whole parish (Canon 1245). (b) When there is danger of death, the pastor can dispense from matrimonial impediments as provided in Canon 1044.

528. Religious superiors, local superiors included, can dispense in the laws and statutes of their own institutes, except where this is forbidden. In clerical and exempt institutes the superiors can also dispense the subjects and all who live day and night in the religious house (such as students, guests and servants) from the general laws of the Church, as follows:

(a) The higher superiors, such as abbots, generals, provincials, have the same authority in this respect as the bishop has with reference to his own diocese. Hence, they can dispense in all ecclesiastical laws in which the Pope dispenses, when there is doubt of fact, or recourse to the Holy See is difficult (Canons 15, 81); in case of necessity, they can dispense from the laws of abstinence individuals, or an entire convent, or an entire province (Canon 1245, Sec. 2); they can dispense in irregularities as provided in Canon 990, Sec. 1.

(b) The other superiors, local superiors included, can dispense their subjects from the laws of fast and abstinence in the same manner as pastors are able to dispense their parishioners (Canon 1245, Sec. 3), Religious superiors are also able to dispense the private non-reserved vows of their subjects (Canons 1313, Sec. 2, 1314).

529. Confessors, when delegated, can dispense as follows: (a) with ordinary faculties, from impediments, irregularities and penalties, as provided in Canons 1044, 1045, 985, 990, 2290; (b) with privileged faculties, from simple vows not reserved to the Pope, if no injury is done to the rights of a third party; and from occult irregularity produced by delinquency, that from homicide excepted. (In the internal sacramental forum the confessor can dispense from the impediments indicated in Canons 1043-1045.)

530. Priests that assist at marriages can dispense from impediments as provided in Canons 1043-1045.

531. The manner of seeking dispensations is as follows: (a) for the usual dispensations (e.g., those from fast, abstinence, observance of feasts, and the vows that may be dispensed by confessors) no particular procedure is required; (b) for the dispensation that must be sought from the Holy See, if the matter belongs to the internal forum, the petition is sent to the Sacred Penitentiary through the Confessor or Ordinary; if it belongs to the external forum, it is sent to the competent Congregation through the parish priest or Ordinary. Dispensation from public marriage impediments must be sent through the Ordinary.

532. The manner of preparing a petition for dispensation is as follows: (a) the name of the penitent must not be given in petitions to the Sacred Penitentiary, but the name and address of the party to whom the reply is to be sent should be clearly given; (b) the petition should be sent by letter. It may be written in any language, and should state the case with its circumstances, the favor that is asked, and the true reason for asking it.

533. A dispensation is invalidated as follows: (a) through defect of the petition, if it contains a substantial error, and the dispensation is given on condition of substantial truth (Canon 40); (b) through defect of the petitioner, if he is incapable of receiving the favor asked (Canon 46); (c) through defect of the dispensation, as when the requisite signature or seal is omitted; (d) through defect of the dispenser, as when he lacks jurisdiction, or grants without a just and proportionate reason a dispensation for which he has only delegated power (Canon 84).

534. If a dispensation is unjustly refused, note the following: (a) ordinarily, the subject has not the right to hold himself free from the law; (b) in extraordinary circumstances, when the law ceases, or no longer obliges (see 487 sqq.), the subject is free.

535. The faculty of dispensing should be interpreted as follows: (a) widely, when it was granted for cases in general (Canon 200, Sec.1); (b) strictly, when it is granted for a particular case (Canon 85).

536. A dispensation itself should be interpreted strictly in the following cases: (a) when the dispensation has an odious side, as when it is contrary to law and advantageous to private interest or is detrimental to a third party; (b) when wide interpretation is dangerous, as favoring injustice, promoting ambition, etc. (Canons 50, 85).

537. A dispensation ceases intrinsically in the following ways: (a) by the lapse of the period of time for which it was granted; (b) by the entire and certain cessation of the motive of the dispensation, if the effect of the dispensation is divisible--that is, if the motive for dispensation has to be existent each time that the law calls for an act or omission (Canon 86). Example: If one is dispensed from the fast or Office on account of ill-health, and later recovers, the dispensation ceases.

538. A dispensation ceases extrinsically in the following ways: (a) by the act of the one who dispensed, if he validly recalls the dispensation, or by his cessation from office, if he limited the dispensation to his own term of authority (Canons 86, 73); (b) by the act of the one who was dispensed, if he renounces the dispensation without detriment to any third party, and with the consent of the superior (Canons 86, 72).

539. A dispensation does not cease in the following cases through the cessation of the motive for which it was given:

(a) If the motive ceases only partially or doubtfully, even though the effect of the dispensation be divisible--that is, requiring the existence of the motive for the grant each time the dispensation is used. For, if the dispensation ceased in such cases, its benefit would frequently be in great part lost on account of the worry and scruple to which the persons dispensed would be exposed. Example: Balbus has been dispensed from fast on account of poor health. Later on he improves, but has not recovered his strength entirely, or at least is not certain of his recovery. He may continue still to use the dispensation.

(b) A dispensation does not cease if the motive ceases entirely and certainly, but the effect of the dispensation is indivisible--that is, removing the entire obligation once for all.

Example: Titus is a widower with several young children. He wishes to marry in order to have a home for the children, and this wish is the motive of a dispensation given him from an impediment of affinity to the marriage he contemplates. But before the marriage takes place, the children die, The dispensation still holds good.

540. A dispensation does not cease by reason of the grantor in the following cases:

(a) It does not cease through the grantor’s cessation from authority, if it was given independently of his term of office. Example: Sempronius received a dispensation “valid until recall,” but never made use of it. Although now the grantor has died, the dispensation continues in force.

(b) It does not cease, if the grantor invalidly recalls the dispensation, as when he dispenses from delegated power and his authority ceases with the act of dispensation. Example: Balbus, a confessor, dispensed Caius from the law of abstinence, but now wishes to recall the dispensation. The dispensation remains.

541. A dispensation does not cease on account of the person dispensed in the following cases:

(a) It does not cease when he leaves the territory of the dispenser, if the dispensation was personal. Example: A person dispensed from the general law of fast by indult granted to his diocese cannot use that dispensation outside the diocese; but if he has a personal dispensation, he is dispensed everywhere.

(b) It does not cease when the grantee fails to use it, or acts contrary to it, if there is no renunciation on his part. Examples: Sempronius has been dispensed from the fast of Lent, but he fasts on some days. This non-use of the dispensation on some days does not renew the obligation. Balbus has received a dispensation to marry Sempronia, but he changes his mind and marries Claudia. This act contrary to the dispensation does not take away its force, and, if Claudia dies, he will be free to marry Sempronia.

Art. 6: CIVIL LAW

542. Meaning.--Just as the Church has the right and duty to make laws which will promote the spiritual welfare of her members, so has the State the power and obligation to legislate for the temporal happiness of its citizens: “There is no power but from God and those that are, are ordained of God. He (the ruler) is God’s minister to thee for good” (Rom., xiii. 1, 4).

543. Origin.--The authority to make civil laws resides in that person or body to whom according to the constitution of the State the legislative function belongs. (a) In an absolute monarchy, the legislative authority is vested in the prince; (b) in a state that has an appointed or hereditary aristocracy, the legislative power may be entrusted, at least in part, to a body of nobles; (c) in a limited monarchy or republic the lawmaking function belongs to the people, who exercise it either directly or (as is the case in most modern states) indirectly through elected representatives.

544. The acceptance of civil law by the people is not necessary for its obligation, for obedience to higher powers is commanded (Rom., xiii, 5), and, if law has no authority, the common welfare is defeated. Several points must, however, be noted.

(a) The foregoing principle is to be understood of law in itself, for, if there is question of the form of government or of him who exercises the powers of sovereignty, acceptance by the people may be said to be necessary in the sense that the multitude may set up the particular system of rule which it prefers, and may designate the individuals who are to wield authority under the constitution adopted.

(b) The principle given above is to be accepted regularly speaking, for there may be cases in which the acceptance of the people is required by law itself. Example: Under former civil constitutions, if in a certain place a lawful custom was in force, a contrary law which did not expressly abolish the custom did not oblige unless accepted. But this example is theoretical, for modern civil codes do not recognize the derogatory force of custom. If the constitution of the state calls for a referendum or plebiscite (i.e., submission to the electors for ratification), then the bill passed by the legislature or a measure proposed by the initiative body lacks force until accepted. This illustrates acceptance of a proposed law, but the acceptance is supplemented by some ministerial act.

(c) The principle given above is to be understood of the taking effect of a law, for the continuance of a law may depend on the acceptance of the people in the sense that a contrary custom of the people is able to abrogate law, if the superior consents (see 500 sqq.). Few codes of modern states give legal force to popular custom; they suppose that, if a law is not satisfactory to the people, the way is open to its repeal through exercise of the suffrage. But, morally speaking, there is no obligation to obey a law that has fallen into desuetude.

545. As to laws made by one who has no lawful authority, we should note: (a) of themselves, they have no binding force, since law is an act of authority; (b) from the necessities of the case, they are obligatory, if, being otherwise just, they are accepted by the great body of the people; for to resist them then would be prejudicial to public order.

546. Subject-Matter.--The objects or classes of temporal goods that fall under the regulation of civil law are many:

(a) external goods, or goods of fortune, which should have the protection of the State; and the laws regarding them should promote agriculture, commerce, industry, the arts, etc.;

(b) the goods of the body, which are more important still, and hence the law should favor the family and the increase of its members, and should provide for the health and well-being of the citizens by sanitary regulations and measures of relief for the needy, the unemployed, the orphans, and the aged;

(c) the goods of the mind, which are necessary for progress and happiness, and hence the law should provide the means for instruction in the secular arts and sciences and for the general diffusion of useful knowledge;

(d) the goods of the will (i.e., virtue and morality), which are most important both to the individual and the community, and hence the law must safeguard public decency and sobriety, and restrain and punish the opposite crimes and vices;

(e) the social goods of the people, which are promoted by wise legislation concerning the form and administration of government, the mutual duties and rights of citizens, the protection of the State and of its members, etc.

547. The relation of civil law to natural law is as follows:

(a) The State has no power to make laws that are opposed to nature, for, since law is an ordinance according to reason, any human command that is contrary to nature and therefore to reason is not law, but the corruption of law. No sin, not even a venial sin, can be made obligatory by law. Example: The rule of Sparta that sickly infants were to be put to death was not law but legalized murder.

(b) The State has the power to declare and enforce by suitable sanctions the conclusions that are derived from the general principles of the law of nature; for many people might be ignorant of these conclusions or inclined to disregard them, unless they were promulgated and confirmed by human law. Example: The natural law requires that parents provide for their young children, and that children assist their needy parents; the civil law adopts these natural principles, compels their observance, and punishes transgressors.

(c) The State has the power to make concrete and to determine the provisions of the natural law that are abstract or general. Example: The natural law decrees that some form of government be set up, that the people contribute to the support of the government, that crimes be punished, that the general welfare be served, etc.; the civil law determines the special form of government, the manner in which the revenues are to be obtained, the specific penalties for each crime, the public measures that are best suited to the circumstances, etc.

548. The relation of the civil law to divine and ecclesiastical law is as follows:

(a) In matters purely spiritual the State has no power to legislate, since its end and authority are confined to things temporal; and hence the State has no right to interfere with the faith, worship and government of the Church. But, since morality promotes the prosperity of the State, and since the end of the individual is spiritual, the civil law should respect and favor religion.

(b) In matters that are partly spiritual, partly temporal, the State has the power to legislate on those aspects that are temporal, yet so as not to infringe on divine or ecclesiastical right. Example: Civil laws on education have the right to regulate non-religious subjects, courses, standards, etc.; but they have no right to proscribe religious training, or to prescribe the teaching of irreligion or immorality, State laws on marriage may require registration, settle the civil effects of marriage, etc., but they have no right to interfere with the unity of marriage or the sanctity of the marriage bond.

549. The State is for the individual, and not the individual for the State; hence, civil law should not interfere with human liberties, except where this is necessary for the common peace and safety or the lawful opportunity of the people as a whole. Hence:

(a) Human liberties that are not inalienable may be limited by the law, when the public good or the welfare of individuals requires this (see 292). Examples: The State has the right to regulate the acts of those who are unable to take care of themselves in matters of importance; to forbid what is detrimental to the common interest (such as hunting and fishing at certain seasons), to protect the public when it neglects to protect itself, etc. Uncalled-for interference by government with the personal and private affairs of individuals--paternalism in government--is of course to be avoided, for restriction of liberty is something disagreeable and should not be resorted to without necessity.

(b) Human rights that are fundamental (such as the rights to live, to marry, to rear a family, to be free, to pursue happiness) should not be trespassed on by civil law. Thus, the State has no right to forbid marriage to the poor, but on the contrary it has the duty to remove conditions that cause poverty. But, when the common welfare demands the sacrifice, the State has the right to call on citizens to expose even life and fortune in its defense.

550. Those Subject to Civil Law.--Civil laws oblige all those who are in any way subject to their authority.

(a) Citizens, when in the country, are bound by all the laws that pertain to them; when outside the country, they are bound by some laws, such as those that regulate their personal status and office, but not by others, in particular such as are of a territorial character.

(b) Aliens are bound by the laws of the country that include them, such as those that regulate public order and the making of contracts.

551. The Obligation of Civil Law.--Civil law, when it has all the conditions of valid law, even if the legislator is non-religious or anti-religious, is obligatory not only before the State, but also before God (i.e., in conscience). This is; (a) by reason of the natural law, of which it is a derivation (see above, 313); (b) by reason of divine positive law, for it is frequently declared in scripture and in the Church’s teaching and practice that lawful authority represents God and must be obeyed for conscience’ sake: “Render to Caesar the things that are Caesar’s” (Matt, xxii 21), “Be subject of necessity, not only for wrath, but also for conscience’ sake” (Rom, xiii. 5).

552. Are subjects obliged to offer themselves for punishment prescribed by law?

(a) If the fault committed was merely juridical (i.e., before the law), the penalty is certainly not obligatory before sentence. Example: Balbus through sheer accident, and without design or negligence, kills a man. If involuntary homicide is punished by imprisonment, Balbus is not bound to give himself up. English common law, it should be noted, presumes a man innocent until proved guilty, and a man cannot be convicted of any degree of homicide on his own confession alone. But he may plead guilty to minor offenses.

(b) If the fault committed was theological (i.e., before God) and the penalty is primitive (i.e., the loss of some right or privilege), the penalty is obligatory in conscience. In Canon Law such penalties are sometimes _ipso facto_, that is, before sentence (e.g., suspension of a cleric); but the civil law, it seems, imposes penalties only after judicial declaration. Example: Titus on account of bribery has forfeited the right to vote; but he has not been declared guilty by court, and hence may continue to use the right of suffrage.

(c) If the fault was theological and the penalty incurred is active (e.g., exile, imprisonment, fine), the penalty is not obligatory before sentence; for it would demand too much of human nature to require that one deliver oneself up to exile, accept confiscation, etc. The apprehension and detention of the guilty is imposed by law as a duty on the police and other officers, not on the guilty.

553. The kind of obligation imposed depends on the will of the lawgiver: (a) he can oblige under pain of sin, or under pain of nullity or punishment; (b) he can oblige under pain of grave sin, or under pain of venial sin.

554. Generally speaking, the legislator is held to oblige under pain of sin in the following cases: (a) when the law is a just determination of the natural law (e.g., the laws that determine ownership); (b) when the law is directly concerned with and necessary to the public good (e.g., laws on national defense in time of war, laws that impose necessary taxation, etc.; see above, 379).

555. The legislator is held not to oblige under sin in the following cases: (a) when the law is enacted as penal, or is prudently regarded as such--as is the case with laws that are of minor importance or that can be enforced without a moral obligation--laws useful rather than necessary; (b) when the law is merely irritant or inhabilitating, the subject is not obliged to omit the act invalidated, but only to suffer the consequence of nullity before the law.

556. In doubt as to the obligation of a law, what is the duty of the subject? (a) If there is doubt concerning its justice, the subject can always observe it with a safe conscience. One may obey an unjust law, until it is judicially declared unjust, if it is not manifestly opposed to divine or human rights. (b) If there is doubt whether a law obliges under sin or not, the subject does not sin directly by non-observance (see 375, 376, 377, 561).

557. Special Kinds of Laws.--Laws that determine ownership are those that define in distinct and explicit terms the rights of citizens as to property, in such matters as goods lost or found, prescription, inheritance, copyright, distribution of property of intestates, rights of wives, capacity of minors, contracts, etc. It is commonly held that these laws are obligatory under sin, even before judicial decision: (a) because they are determinations of the natural law made by the authority that represents God in matters temporal; (b) because they are necessary for the peaceful existence of society.

558. Irritant or voiding laws are those that deprive certain acts of legal value. The common welfare requires that certain acts, even if valid naturally, may be made invalid by the State (e.g., contracts entered into by minors, donations made under fear, wills devised irregularly), and hence there is no doubt that the effect of invalidation can be imposed under pain of sin.

(a) This holds even before judicial decision, if it is clear that the lawgiver ought to intend and does intend to deprive an act of its moral validity from the beginning. Example: If a lawsuit would put one party (e.g., a minor) under great disadvantage, the law can irritate a contract in conscience and before judgment is rendered.

(b) An irritant law does not oblige under sin before declaration of nullity, if it is not clear that the legislator intended this; for it can be presumed that the State is content with external means as long as these are sufficient for its ends; and, since invalidation of acts is odious, it calls for certain expression of his intention by the lawgiver. But after sentence has been given, that which is civilly null is also null morally. Hence, if the courts declare a will to be of no effect, because it was not drawn legally, the decision is binding under sin.

559. Civil lawgivers in modern times do not, as a rule, concern themselves with moral or natural obligation as such, but rather consider only what regulations will best promote the peaceful intercourse of society. Hence, the question whether a civil irritation obliges in conscience ipso facto (i.e., before judicial declaration of a case) has to be decided generally, not from the words, but from the purpose of the law.

(a) An irritant law should be regarded as obligatory _ipso facto_, when the general purpose of law (viz., the common good) or the specific purpose of this law requires that there should be obligation in conscience even before a court decision. Examples are laws irritating agreements to do what is illegal, laws whose purpose is to protect minors or others who would be at a disadvantage in case of litigation, or to lessen the number of cases before the courts.

(b) An irritant law should be regarded as not obligatory _ipso facto_, when the end of the law does not clearly demand obligation before judicial declaration; for, as remarked above, the invalidation of an act is something odious, and hence not to be taken for granted. Thus, laws that void an act, contract or instrument on account of lack of some legal form, do not affect the natural rights or obligations before sentence.

560. Though the civil lawgiver has the right to annul certain acts, and thus to extinguish moral rights or obligations that would otherwise exist, laws seemingly irritant frequently have a different intention.

(a) Laws that make a claim unenforceable in court do not destroy the natural right of the claimant. Example: The Statute of Limitations in modern states generally bars the right to pursue a debtor in court after six years; nevertheless, the moral obligation of the debtor remains.

(b) Laws that make an act or contract voidable do not nullify, but only grant to the person concerned the right to attack validity before the courts. Hence, if the conditions for valid contract required by natural law are present (knowledge, consent, etc.), moral rights and obligations are not voided. Example: Under the civil law some contracts made by minors may be retracted by them. But, as long as such a contract is not disavowed, the other party has a moral right to insist on its execution; if it has been ratified after majority, the former minor has no moral right to seek the benefit of the law by asking for rescindment.

561. With reference to penalty, four kinds of laws can be distinguished.

(a) Purely preceptive laws are such as oblige under pain of sin, but not under pain of punishment. There are church laws of this kind (such as the command to assist at Mass on Sunday), and there are also some civil laws that do not oblige under penalty (e.g., statutes governing the age for legal marriage, for, if a couple misrepresented their age, they might be prosecuted for the misrepresentation, but not for the act of marriage).

(b) Purely penal laws are such as oblige under pain of juridical fault and punishment, but not under pain of sin (e.g., a law that punishes negligence in driving as defined by itself, even though there be no moral culpability involved).

(c) Mixed laws disjunctively are such as oblige under sin either to obey the law or to suffer the penalty (e.g., a law that commands one either to get a license before fishing or hunting, or to pay a fine if caught doing these things without a license).

(d) Mixed laws conjunctively are such as oblige under pain of both sin and punishment (e.g., the laws that forbid injustice and command the punishment of transgressors).

562. There is no question about the existence of laws of the first and fourth classes just described, but some authorities argue against the existence of the other two classes, maintaining that a law that does not oblige in conscience is an impossibility. They argue: (a) the teaching of scripture and of the Church supposes that all just laws oblige in conscience; (b) the lawgiver holds the place of God, and hence one cannot offend against the law of man without offending God; (c) human law, being only a reaffirmation or determination of the higher law, obliges in conscience like the law on which it is based; (d) directions of a superior that do not oblige under sin are counsels rather than laws.

563. To these and similar arguments the defenders of the existence of penal laws reply: (a) such laws do not oblige in conscience, under pain of sin and of offense to God, to do or to omit as the law prescribes, just as a vow which gives one the option of not playing cards, or else of giving each time an alms, does not bind one in conscience not to play cards; (b) but those laws do oblige one in conscience to respect their juridical value, not to resist their enforcement, and to pay the penalty of violation, just as the vow mentioned obliges one in conscience to give an alms each time one plays cards. The Church recognizes penal laws (see 450), and there is no reason why civil law may not be penal.

564. Even when the transgression of a purely penal law is not sinful by reason of the civil law, it will frequently, if not usually, be sinful by reason of repugnance to the law of God. Thus: (a) the transgression will be sinful, if there is a wrong intention (such as contempt for the law) or wrong circumstances (such as culpable neglect or some inordinate passion); (b) the transgression will be sinful, if one foresees or should foresee evil consequences, such as scandal (see 96).

565. It is generally admitted that some civil laws are purely penal, since they impose penalties for fault, negligence, or responsibility that is only juridical at times. Examples: A law that imposes a fine on all motorists caught driving over a certain speed limit, even though they be free of moral guilt; or that makes the owner of a car pay damages for injuries caused while it was used by his chauffeur.

566. Even these laws oblige under sin to some extent. (a) The transgressor is morally bound to the penalty prescribed by law, after sentence has been passed; and such penalties are just, for the common good requires them. Example: The speed violator is held to pay the lawful fine when it has been imposed. He may have been guiltless of sin, but the fine makes him more careful the next time. (b) The officers of the law are morally bound to apprehend and convict transgressors.

567. Many civil laws are commonly regarded nowadays as disjunctively preceptive or penal; and, since the custom of the prudent affords a good norm of interpretation (see above, 484 sqq., 506 sqq.), this common view is a safe guide, Example: Even conscientious persons do not feel that they have committed a sin if now and then they run a car without a license, or fish in a government reservation without the permit required by law, when there is no danger or damage to anyone.

568. Whether most modern legislatures intend practically all or the great majority of their laws that are not declarations of natural law or provisions essential to public welfare to be purely penal or only disjunctively preceptive, is a disputed question. For the affirmative view it is argued:

(a) Moral obligation is not necessary, since the enforcement of the law is well taken care of by the judiciary and the police;

(b) Moral obligation would be harmful, for the laws that are put on the statute books every year, along with those already there, are so numerous that, if all these obliged in conscience, an intolerable burden would be placed on the people;

(c) Moral obligation is not intended, for legislatures as bodies either despise or disregard religious motives when framing laws; and so many jurists today believe that the danger of incurring the penalty prescribed by the law is the only obligation the lawgiver intends to impose, or that moral obligation must come from conscience (i.e., be self-imposed);

(d) Moral obligation is not admitted by custom, the best interpreter of law, for most citizens today regard civil legislation as not binding under sin.

569. Opponents of the view just explained answer:

(a) The prevalence of crime and the ineffectiveness of the courts in so many places prove the need of moral obligation of civil laws; and, even if the laws are well enforced, this will scarcely continue, if respect for them is lowered;

(b) Though there is an excess of legislation, it is not generally true that the individual citizen is burdened in his daily life by a multitude of laws;

(c) Lawmakers today are not more irreligious than the pagan rulers to whom the scriptures commanded obedience; and, even though they do not themselves believe in religion or the obligation of conscience, they do intend to give their laws every sanction that the common good requires, and thus implicitly they impose a moral obligation wherever the contrary is not manifest;

(d) The statement that the majority of the people in modern states regard the civil legislation as a whole as not obligatory in conscience may be passed over, as there is no proof for it. Moreover, the customary interpretation of the citizens does not make penal the laws which the elected representatives intended as preceptive, without the consent of the latter (see 394).

570. Signs that a law is merely penal are the following:

(a) The express declaration of the lawgiver that it obliges only under penalty. Examples: In the Dominican Constitutions it is declared that they oblige, not under fault, but only under penalty (No. 32). The same is true of the Franciscan, Redemptorist and most recent religious Constitutions. Some civil laws, it is said, are formulated thus: “Either do this, or pay the penalty on conviction.” Other laws define punishable negligence in such a way that it does not ultimately suppose sin.

(b) Another sign of a penal law is the implicit declaration of the lawgiver. If a heavy penalty is prescribed for a transgression regarded by all as very slight proportionately, the government implicitly declares that it imposes no other obligation than that of penalty. Blackstone, in his “Commentary on the Laws of England” (1769), considers as purely penal all those laws in which the penalty inflicted is an adequate compensation for the civil inconvenience supposed to arise from the offense, such as the statutes for preserving game and those forbidding the exercise of trades without serving an apprenticeship thereto (Vol. I, Sect. 58).

(c) A third sign is the interpretation of competent authorities. Example: Practically all Catholic moralists, and the opinion of the people generally, consider as penal some laws that are merely useful, but not necessary (e.g., prohibitions against smoking or spitting in certain public places, laws on permits for fishing, hunting, etc.).

571. Whatever may be said about legislatures in general, it cannot be argued that in the United States they are indifferent or contemptuous as regards the moral obligation of law; the public acts and speeches of Congress and of the State Assemblies show that the elected representatives of the people respect religion, and do not wish to deprive themselves of its help in their deliberations and decisions. Nevertheless, the opinion is very prevalent among lawyers that purely positive law in the United States is not intended to oblige under sin.

572. In practice, the attitude of the citizen to civil law should be one of respect and loyalty.

(a) If a law is good, even though the legislator did not impose a moral obligation, it should be obeyed; for reason and experience show that disregard for law is a source of scandal and of many public and private evils.

(b) If a law is not good, every lawful means should be used to have it repealed as soon as possible. But the principle that a bad law is always best overcome by being rigidly enforced, is not borne out by history, and sometimes the public good demands disregard for unreasonable ordinances. The so-called “Blue Laws” are a case in point.

573. Other questions pertaining to civil law that will be found elsewhere are: (a) the obligation of customs, taxation and military duty; (b) the power of the State to inflict capital punishment.

Question IV

CONSCIENCE

574. In order that man many tend to his Last End, it is not sufficient that the way be pointed out in a general manner (as is done by the natural and positive laws), but these laws must be applied to each act in particular by the practical reason or conscience, as it passes judgment on the right or wrong of an action in the light of all the circumstances.

Art. 1: THE LAW OF CONSCIENCE

(_Summa Theologica_, I, q. 79, aa. 11-13.)

575. Definition.--Conscience is an act of judgment on the part of the practical reason deciding by inference from general principles the moral goodness or malice of a particular act.

(a) It is an act, and as such it differs from moral knowledge and intellectual virtues, which are not transitory but enduring. Moral understanding (synderesis), by which everyone naturally perceives the truth of general and self-evident principles of morality; moral science, by which the theologian or ethician knows the body of conclusions drawn from moral principles; prudence, by which the virtuous man is able to make right applications of moral rules to individual cases--all these are permanent states and are preparatory to the act of conscience, in which one makes use of one’s knowledge to judge of the lawfulness or unlawfulness of an action in the concrete, as attended by all its circumstances.

(b) Conscience is an act of judgment, and thus it differs from the other acts employed by prudence--from counsel about the right means or ways of action, and from command as to their use. Counsel inquires what is the right thing to do, conscience gives the dictate or decision, the moral command moves to action.

(c) Conscience is in the reason--that is, it is a subjective guide, and thus it differs from law, which is objective.

(d) Conscience is in the practical reason. Unlike other judgments, which are speculative and deal not with action or only with theoretical aspects of action (e.g., the judgment that God is perfect, that the active faculties are distinct from the soul, etc.), conscience is concerned with action from the view-point of its moral exercise.

(e) Conscience is the inference from general principles, and thus it differs from moral understanding (synderesis). This latter is a habit by which everyone who is mentally developed is able to perceive without argument that certain more general propositions of morality must be true, such as the axioms of the natural law (see above, 319 sqq.); conscience draws conclusions from those axioms.

(f) Conscience judges concerning the morality of an act. Here lies the difference between consciousness and conscience; consciousness is a psychological faculty whose function is to perceive one’s own states and acts; conscience is a moral judgment concerning the lawfulness or unlawfulness of those states or acts. Thus, consciousness testifies that one is considering the performance of a certain act, conscience judges the morality, and permits or forbids; or consciousness testifies that a certain thing was done or not done in the past, conscience declares the morality--condemning, excusing, or approving what took place.

(g) Conscience judges concerning a particular act--that is, it considers an act that is to be done here and now (or was done), with all the attendant circumstances. Conscience, thus, differs from moral science, which, though it systematizes the body of conclusions drawn from the natural and positive laws, is not able to make the applications for the innumerable cases that arise. Even works containing moral cases, which give solutions for concrete instances, do not take the place of conscience in such instances, for it is still the individual who judges about those solutions or about their applicability to his particular circumstances.

576. Division.-Conscience is variously divided. (a) According as the act judged is in the future or in the past, conscience is antecedent or consequent. The antecedent conscience is a monitor which decides that a future act will be lawful or unlawful; the consequent conscience is a judge which causes peace or remorse for what has been done in the past. (b) According to the kind of direction or decision it gives, antecedent conscience is commanding, forbidding, permitting or counselling; while consequent conscience is excusing, approving, or condemning (Rom., ii. 15).

577. According as it agrees or disagrees with the external divine or human law, conscience is true or false. (a) A true conscience judges that to be good and commanded which is really good and commanded. Example: According to law, one may use money of which one has the disposal. A sum of money before Balbus is really at his disposal. Hence, his conscience is true if it decides that he may use this money.

(b) A false conscience judges the lawful to be unlawful, or vice versa: “The hour cometh that whosoever killeth you will think that he doth a service to God” (John, xvi. 2). Example: Balbus would have a false conscience, if he decided that he had no right to use the money before him. This would happen if he was mistaken about the general principle, or about the fact that the money was at his disposal, or if he drew a wrong inference from the premises.

578. According to its qualities and suitability as a guide of conduct, conscience may be viewed either with reference to the will or to the intellect. (a) With reference to the will, conscience is either good (right) or bad (wrong), according as it does or does not proceed from a well-meaning intention and a right disposition towards one’s end and duties. Example: If the Balbus mentioned above decided that the money was at his disposal because he wished to know the truth and had investigated to the best of his ability, his conscience would be good. But, if he decided this without sufficient investigation and only because he was prejudiced in his own favor, his conscience would be bad.

(b) With reference to the intellect, conscience is either certain or uncertain, according as the mind assents to its judgment without or with fear of error. Examples: If Balbus decides that he has the right to use the money, and is so firmly convinced that his judgment is true that he has no fears or doubts, his conscience is certain. But, if there remain solid difficulties or objections against his judgment which he cannot satisfactorily answer so that he assents to his view only with the fear that he may be wrong, his conscience is uncertain.

579. A conscience may have some and lack others of the qualities just mentioned.

(a) The same conscience may be true and bad, or false and good--that is, the judgment of the intellect may be in agreement with objective facts, but at the same time it may be directed by a wrong will and intention, or vice versa. Examples: Caius, through no fault of his own, is convinced that he is bound to tell a lie to help Sempronius, because Sempronius once helped him by lying. His conscience is false, but good. Titus is really not bound to pay a sum of money demanded of him. But the arguments by which he persuades himself that he is not bound are not honest, since he has recourse to what he knows are hair-splitting distinctions, quibbles and sophistical reasonings. His conscience is true, but bad.