Section — Koch–Preuss
Section 8: The Obligation of Law
- KINDS OF OBLIGATION. —Every human law, ecclesiastical or civil, which has the properties described in the preceding section of this treatise, binds not only externally, under pain of punishment, but also internally, i. e., in the court of conscience. This proposition is evident from the very nature of things, for the provisions of a just law are simply the will of God applied to some special condition.1 St. Paul says: "Let every soul be subject to higher powers: for there is no power but from God, and those that are, are ordained of God. Therefore he that resisteth the power, resisteth the ordinance of God.... Wherefore be subject of necessity, not only for wrath, but also for conscience' sake. For therefore also 2 you pay tribute. For they are the ministers of God, serving unto this purpose. Render therefore to all men their dues: tribute, to whom tribute is due, custom, to whom custom; fear, to whom fear; honor, to whom honor.”3
1 Cfr. St. Thomas, Summa Theol., 1a 2ae, qu. 95, art. 2; qu. 96, art. 4.
2 διὰ τοῦτο γὰρ καί. (Rom. XIII, 6).
And St. Peter: "Be ye subject therefore to every human creature for God's sake: whether it be to the king as excelling, or to the governors as sent by him for the punishment of evildoers, and for the praise of the good: for so is the will of God, that by doing good you may put to silence the ignorance of foolish men: as free, and not as making liberty a cloak for malice, but as the servants of God." 4 "SS. Peter and Paul insisted that men owe obedience to civil authority for conscience' sake and by virtue of a divine command. This doctrine at that time was utterly new in the world.... According to Apostolic teaching, the ruling power of the State, or public authority, no matter what its form or composition, is ordained for the purpose of administering the divine law on earth. Hence every Christian is in duty bound to recognize those constituted in authority, without regard to their moral or religious qualifications, and to obey them for conscience' sake, not merely for fear of punishment. All power, civil as well as paternal, is from God. Obedience to authority is a necessary duty deeply ingrained in the soul of every man." 5 The teaching of Tradition is in perfect harmony with that of Scripture. Thus we read in the Epistle to Diognetus: "Christians differ from other men neither in country nor language nor customs.... They share all things as citizens.... They obey the appointed laws, and go beyond the laws in their own lives."6 Tertullian writes: "We venerate in the emperors the decisions of God, for God has placed them over the nations."7 St. Augustine says that the Christian soldiers of Rome "distinguished between their eternal and their temporal lord, and obeyed the latter for the sake of the former."8
5 Döllinger, Christentum und Kirche, Ratisbon 1868, pp. 14 sq.
6 Epist. ad Diognet., c. 5 (Lake, The Apostolic Fathers, Vol. II, London 1913, pp. 359 sq.).
7 Apol., c. 32.
8 Enarrat. in Ps., 124, n. 7. —Many other Patristic passages of similar tenor will be found collected in F. Hamm, Zur Grundlegung und Geschichte der Steuermoral, Treves 1908, pp. 138 sqq.
Hence there can be no doubt that every just law obliges in conscience, i. e., under pain of sin (sub culpa morali s. theologica). However, not all laws bind always and in every case. An affirmative law binds "always" but not "for always" (semper, sed non pro semper, i. e., at every moment, in all circumstances), whereas a negative law binds "always" and "for always" (semper et pro semper). Thus a person is not bound to profess his faith under all circumstances, but he is never allowed to deny it.
The rule, "Lex positiva obligat semper, sed non pro semper" has one exception: the law of charity, which binds always and for all time because the obligation of loving and serving God is the foundation of all other precepts, negative as well as positive.9
9 Cfr. J. Ernst, Ueber die Notwendigkeit der guten Meinung, Freiburg 1905, p. 201.
Unjust laws do not bind in conscience because they "are acts of violence rather than laws," as St. Thomas says.10 In regard to the above the following principles should be borne in mind: a) No one is obliged to obey a precept which it is morally impossible for him to fulfill (ultra posse nemo tenetur). However, when the whole of an obligation cannot be fulfilled, and the matter is susceptible of division, we are not excused from fulfilling a part. Innocent XI condemned the proposition that a priest who is unable to say the whole of his daily office is therefore excused from saying any portion of it.11 b) A law which runs counter to the moral law of nature not only does not oblige in conscience,12 but must be resisted passively.13
10 Summa Theol., 1a 2ae, qu. 96, art. 4. —Cfr. St. Augustine, De Lib. Arbitr., I, c. 5, n. 11: "That which has not been just does not seem to me to be a law." (Migne, P. L., XXXII, 1227). —Cfr. also the Syllabus of Pius IX, prop. 56 and 57 (Denzinger-Bannwart, n. 1756 sq.). V. supra, Sect. 3, note 3.
11 Cfr. the 54th of the propositions condemned by Innocent XI: “He who cannot recite Matins and Lauds, but can recite the remaining Hours, is bound to nothing, because the greater part draws the lesser to itself." (Denzinger-Bannwart, n. 1204).
12 Cfr. Acts IV, 18-19; V, 29. — St. Augustine, Epist., 105, c. 2, n. 7: "If emperors were in error—which God forbid—they would enact laws in accord with their error against the truth, through which the just would both be proved and crowned by not doing what those emperors commanded, because God forbade it. Thus Nebuchadnezzar had commanded that a golden statue be adored; those who refused to do this pleased God, who forbade such things." (Migne, P. L., XXXIII, 398). —St. Thomas, Summa Theol., 1a 2ae, qu. 96, art. 4: "Laws can be unjust through opposition to the divine good, as are the laws of tyrants inducing men to idolatry or to anything else contrary to the divine law; and such laws may in no way be observed, because, as is said in Acts V, 29: We ought to obey God rather than men.”
13 Cfr. Ph. Hergenröther, Der Gehorsam gegen die weltliche Obrigkeit, Freiburg 1877.
Authority, be it civil or ecclesiastical, can never oblige a man to commit even a venial sin, for we must obey God more than men. Such has always been and always will be the teaching of the Church. Wiclif and Hus held that no one is obliged to obey a superior if the latter is in the state of mortal sin. The Church teaches that one must not obey a sinful command.14 When a command is clearly contrary to the law of God, obedience would be sinful.15
14 Cfr. Prop. Damnat. Wiclif., n. 15; Huss., n. 30 (Denzinger-Bannwart, n. 595, 656).
15 Cfr. St. Thomas, Summa Theol, 2a 2ae, qu. 104, art. 5, where the question, Utrum subditi teneantur suis superioribus in omnibus obedire, is treated exhaustively.
The oft-quoted dictum of Gregory VII, "Sententia pastoris, sive iusta sive iniusta fuerit, timenda est," means not that an unjust command must be obeyed, but that it should not be transgressed lightly and in a spirit of contempt. The phrase "ad peccatum obligare," which is found in the constitutions of some religious orders, signifies an obligation which binds under pain of sin (sub peccato), not a command to sin.16
16 Cfr. Bishop von Ketteler, Kann ein Jesuit von einem Obern zu einer Sünde verpflichtet werden? Mayence 1874, pp. 10 sqq.; B. Duhr, S.J., Jesuitenfabeln, 4th ed., pp. 515 sqq.
"Active resistance to authority," says a non-Catholic writer, "is not unreservedly condemned by Christian ethics. Those who maintain that it is, are inspired by absolutistic notions. When persons in authority are faithless and violate the constitution, even a Christian subject is justified in resisting them." 17 c) An indubitably unjust law does not bind. If, however, a law is just in its object (lex honesta), and unjust only in its origin or purpose, it may be obeyed, provided obedience does not involve the violation of some other moral duty. Obedience may even be a strict duty, namely, when some higher moral good would be jeopardized by disobedience, as in the case of public scandal or revolt, provided always that no just law is violated. In the words of the Angelic Doctor, "[unjust] laws are not binding in the court of conscience, except perhaps to avoid scandal or turmoil, for which cause a man ought to abate something of his right...." 18 Laws which imperil higher rights or interests may be resisted by all legal means, such as remonstrances, appeals, petitions, agitation in the public press. To employ illegal means is tantamount to sedition. No matter what the provocation, revolution against a legitimate government is forbidden, because revolution by its very concept is an attack upon actually existing and divinely sanctioned rights. Pius IX solemnly condemned the proposition that "It is permitted to withhold obedience from legitimate rulers, nay even to rebel against them."19
17 Theologische Literaturseitung, Leipsic 1902, p. 617.
18 Summa Theol., 1a 2ae, qu. 96, art. 4: "Laws are called just from their end, namely when they are ordered to the common good; from their author, namely when the enacted law does not exceed the power of the one enacting it; and from their form, namely when burdens are imposed upon subjects according to proportional equality in order to the common good. ... Hence such [unjust] laws do not bind in the court of conscience, except perhaps for avoiding scandal or disturbance, for which reason a man ought even to yield his own right, according to Matthew V, 40-41."
19 Syllabus Errorum, n. 63: "It is permitted to withhold obedience from legitimate rulers, and even to rebel against them. (Denzinger-Bannwart, n. 1763). Cfr. Fr. Heiner, Der Syllabus, Mayence 1905, pp. 283 sqq. —Cfr. Rom. XIII, 2; Sophocles, Antigone, 672 sqq.
So far as obligation is concerned, laws may be divided into moral, penal, and mixed.
(1) A moral law (lex moralis) binds in conscience and under pain of sin (ad culpam).
(2) A purely penal law (lex mere sive pure poenalis) binds only under pain of suffering the penalty imposed for its infraction.
(3) If a law binds under pain of sin, and, in addition, imposes a penalty, it is called mixed (lex mixta).
The Schoolmen teach that if one transgresses a purely penal law, he is bound in conscience to pay the penalty imposed, but incurs no moral guilt (culpa theologica) and therefore commits no sin. His transgression is merely a technical violation of the law (culpa iuridica).
As examples of purely penal laws Catholic moralists are wont to cite (1) the statutes of certain associations, institutes or seminaries, especially the constitutions of religious orders which distinguish between the rules of ordinary and those of stricter observance,20 and (2) such civil ordinances as regard taxes, permits, licenses, etc. Some writers include in the category of leges mere poenales police regulations, nay all laws made by "infidel or unchristian" States.21 Scholastic theology as a system merely teaches the possibility of purely penal laws; whether such laws actually exist is a question in dispute.22 When it is certain that the civil authorities do not intend to bind their subjects in conscience, a law may be considered penal only.
20 Cfr. St. Thomas, Summa Theol., 2a 2ae, qu. 186, art. 1-2.
21 Cfr. K. Wagner, Die sittlichen Grundsätze bezüglich der Steuerpflicht, Ratisbon 1906, pp. 50 sqq.; A. Müller, Die staatlichen Gesetze in ihrer Beziehung zur sittlichen Weltordnung, Treves 1906, pp. 11 sqq.
22 Cfr. Ballerini-Palmieri, Opus Theol. Mor., tr. 3 de Leg., n. 107: "This is the very celebrated question: whether merely penal laws are given." —A. Vermeersch, S.J., Quaestiones de Iustitia, 2nd ed., Bruges 1904, p. 134: "In truth, more recent authors have gone off into various and diverse opinions; in this variety of opinions it is permissible to suspect the influence of climate or region."—W. McDonald, The Principles of Moral Science, pp. 98 sqq. —Thomas a Kempis says of the rules of religious orders: "Every religious discipline holds out two goods: that the statutes be diligently observed and that the negligent be corrected for their faults." (De Disciplina Claustralium, c. 1; Op. Omnia, ed. Pohl, Vol. II, p. 269).
- DEGREES OF OBLIGATION. —Unlike divine laws, human laws never bind absolutely. The obligation they impose depends in each case primarily on the will of the lawgiver and secondarily on the matter involved. a) When the matter is light and trivial (materia levis), i. e., when the precept is of no importance for the common good, either in itself or by reason of attendant circumstances, the obligation is slight. When, on the other hand, the matter is grave (materia gravis), i. e., when the law or its object is in itself important or rendered so by circumstances, the resulting obligation is serious. b) The intention of the lawgiver may either be gathered from the purpose of the law or inferred from the wording chosen or the penalty imposed. c) A human law ordinarily does not bind cum gravi incommodo, and hence may be disregarded if its observance involves any serious inconvenience, such as danger to life and limb, loss of honor, health or fortune, etc. The reasons for this exemption are: (i) A law, to be binding, must be physically and morally capable of fulfilment; (2) No human legislator has power over the life, health, or property of his subjects, unless higher interests are at stake.
In matter of fact, even positive divine laws do not bind where life is in danger,23 and the Church does not enforce even such important precepts as the sanctification of the Lord's Day, fasting, or the recitation of the Breviary as obligatory on those who cannot observe them without grave inconvenience.
23 Cfr. 1 Kings XXI, 6; Matth. XII, 1-5.
There are, however, circumstances in which human laws bind even at the risk of life or death, e. g., (1) When the common good or the eternal salvation of one's fellowmen are involved, as often happens in the case of priests and soldiers; (2) When disobedience involves formal contempt of authority or the danger of grave scandal.
In all such cases a law binds even at the risk of life or health, for the reason that the common good (bonum commune) is superior to that of the individual.
That all men are bound under pain of grievous sin to obey the "higher powers," appears from the passage we have quoted 24 from St. Paul's Epistle to the Romans. This is not, however, tantamount to saying that all human laws bind sub gravi. The question whether a human lawgiver can impose a serious obligation when the matter at issue is slight (materia levis), is answered negatively by most theologians. The reasons given are two: (1) Even the divine law binds but slightly in matters of no importance, and a human lawgiver cannot impose a heavier obligation than God, from whom his jurisdiction is derived; (2) To impose a serious obligation in matters of small importance would be contrary to the common good, give cause for scandal, and work mischief.
24 Rom. XIII, 1-6 (supra, p. 163).
Note, however, that a matter small in itself may become important by virtue of its purpose or outward circumstances, and thus involve a serious obligation. This was the case with the command God gave to our first parents in Paradise.25 Though the matter involved was slight, the law itself possessed great importance on account of the purpose for which it had been given and the severe punishment threatened.
25 Gen. II, 16 sq.