Moral Theology Part 21

(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 mult.i.tude may set up the particular system of rule which it prefers, and may designate the individuals who are to wield authority under the const.i.tution 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 const.i.tutions, 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 const.i.tution of the state calls for a referendum or plebiscite (i.e., submission to the electors for ratification), then the bill pa.s.sed by the legislature or a measure proposed by the initiative body lacks force until accepted. This ill.u.s.trates 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 cla.s.ses 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 a.s.sist 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 circ.u.mstances, 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 sanct.i.ty 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 trespa.s.sed 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 G.o.d (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 G.o.d 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 G.o.d) 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: t.i.tus 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 G.o.d 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 a.s.sist at Ma.s.s 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 cla.s.ses just described, but some authorities argue against the existence of the other two cla.s.ses, 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 G.o.d, and hence one cannot offend against the law of man without offending G.o.d; (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 G.o.d, 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 G.o.d. Thus: (a) the transgression will be sinful, if there is a wrong intention (such as contempt for the law) or wrong circ.u.mstances (such as culpable neglect or some inordinate pa.s.sion); (b) the transgression will be sinful, if one foresees or should foresee evil consequences, such as scandal (see 96).