Moral Theology Part 22

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 pa.s.sed; 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 mult.i.tude 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 pa.s.sed 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 Const.i.tutions 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 Const.i.tutions. 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 a.s.semblies 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 att.i.tude 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 pa.s.ses judgment on the right or wrong of an action in the light of all the circ.u.mstances.

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 circ.u.mstances.

(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 G.o.d 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 circ.u.mstances. 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 circ.u.mstances.

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 G.o.d" (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 a.s.sents 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 a.s.sents 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 Semp.r.o.nius, because Semp.r.o.nius once helped him by lying. His conscience is false, but good.

t.i.tus 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.

(b) The same conscience may be good and uncertain, or bad and certain.