ARTICLE I: ON PENAL LAW

178. • A penal law is that which does not oblige to an act or to an omission except under a temporal penalty, that is, to accepting the penalty as just.

Principles. - I. There cannot be a purely penal law which in no way obliges in conscience, because every precept of a Superior ought to oblige in some way; otherwise it would not be a true precept.

II. But there can be a merely penal law, obliging in conscience to one of two things, namely either to fulfilling the law, or, if the law has been violated, to undergoing the penalty. The reason is 1° because for the essence of law it suffices that it impose some obligation in conscience, nor is it necessary that the obligation determinately regard an act or omission; 2° because law does not have force except from the will of the legislator; but the legislator can oblige to the penalty alone, if this suffices for procuring the common good.²

But the question whether some merely penal laws are given can by no means be resolved speculatively, since they can be given here and not elsewhere. Therefore only learned and experienced persons in their own region or nation can judge concerning this.

Yet perhaps someone would not undeservedly contend that today in most regions all civil laws are merely penal, and therefore that their violation is done generally without sin, unless by violating them you at the same time violate divine or ecclesiastical law; for this is the most sad condition of our age almost everywhere among nations, that legislative assemblies, as such, not only do not care about binding conscience, but, worse than pagans, do not even acknowledge God, the author of every obligation, and establish all authority of making laws in the sum of number.¹

Nor should you say: 1) that law obliges in conscience by its own force, for this is false; for just now with St. Alphonsus² we said that it has no force except from the will of the legislator.

2. That the common good demands that it oblige in conscience. For where the common good demands this, by violating it you will at the same time violate the divine natural law forbidding you to harm the common good; therefore I added: "unless by violating them," etc.

3. That this principle is subversive of the social order; for I do not approve it when I mention it, or I do not praise the legislator acting in this way, but from the fact of the legislator not binding conscience, I conclude that it is not bound. Cf. Acta.³ (J) p. 484.

179. Questions. - Quaer. 1° How many kinds of penalty are there, - and does a law decreeing a penalty oblige in conscience to undergoing it before sentence?

Resp. to the 1st. 1) One is active, which cannot be given to execution without some act of ours or of another, as imprisonment; another privative, which consists in the mere privation of some thing, as suspension. This again is either conditional,⁴ taking something away from someone when the condition [or sometimes the mode (n. 868)] under which it had been conceded has not been observed, or inhabilitating, which takes away the capacity, whether canonical, or civil, or natural, of doing, acquiring, contracting.

2. One is latae sententiae, which is incurred by the fact itself, as the Schools speak, that is, by the perpetration of the crime alone, through the words of the law; another ferendae sententiae, which the law does not inflict, but decrees is to be inflicted by the sentence of a judge.

3. One is not incurred except through a condemnatory sentence of the judge; another not except through a declaratory sentence, namely of the crime; for by it the judge declares that someone has fallen into that crime, on account of which a penalty already established by law is incurred by the fact itself.

Resp. to the 2nd. 1° Negatively, if it is ferendae sententiae, as is plain of itself. 2° If latae sententiae, a distinction must be made. - Negatively, if it is active, and this although in the law it is said: no declaration (of the crime committed) having followed;¹ for this would be too difficult. Make exception if it is either lighter, or is not accustomed to be imposed by the office of a judge, as prayers. - Affirmatively, if it is privative, unless it either deprives of a right acquired, as of an office, or cannot be undergone without infamy. Yet censures, irregularities, and those penalties (for example, that of which we shall treat at n. 1589. III), which by their nature are regularly not imposed by the office of a judge, do not need a declaratory sentence (at least if someone can execute them upon himself without infamy), lest, namely, the law seem useless. No one is held to undergo a temporal penalty which civil law, whether mixed or merely penal, establishes against transgressors, for example, a fine, unless, after the sentence of the judge has been made known to him, it has been demanded.

180. Quaer. 2° Does ignorance excuse from a penalty brought by law?

Resp. 1° Affirmatively, for the internal forum, if ignorance excuses from fault; but in the external forum it does not excuse, because law is presumed not to be ignored, Reg. Jur. 13 in 6°.

Resp. 2° Negatively, if ignorance does not excuse from fault or is concerned with the penalty alone.² For natural reason itself dictates that evil is to be punished according to its nature.

Make exception: 1) if the penalty is disproportionate, namely most grave, exceeding the merit of the crime; 2) if the penalty is some ecclesiastical censure, which he who is not grossly ignorant of it does not incur;³ 3) if the superior requires knowledge, contumacy, audacity, or temerity for contracting the penalty. For then affected ignorance indeed does not excuse, which in law is equated with knowledge; but gross and supine ignorance nevertheless does.⁴ See however n. 1664, q. 3°, compared with n. 1704, q. 7°, R. 2°.