Article — Marc, Institutiones Morales
Article II: On Abrogation and Derogation of Law
- I. ABROGATION of law is the total abolition of that law which is perfectly obliging. This can be done either through the express revocation of a Superior, or through a later law which is repugnant to the former law.
It differs from invalidation or annulment, which is the abolition of a law not yet perfectly obliging, made by him whose part it is to have it ratified. Thus, for example, when the Pope does not approve Councils proposed for his approval, he invalidates them (Bened. XIV, de Syn., l. 5, c. 4, n. 3).
II. DEROGATION is the partial abolition of a law perfectly obliging.
- Concerning each cessation of laws of this kind, three rules are established:
Abrogation or derogation of ecclesiastical laws is ordinarily accustomed to be done through new laws incompatible with previous laws, without those previous laws being expressly revoked. But it must be diligently observed that previous laws are never judged to have been abrogated through later laws, unless they are altogether contrary to these later laws; for whenever contrariety can in some way be explained, correction of laws, insofar as it can be done, is to be avoided.
Through a general law the particular law of some place is never abrogated, unless it is expressly said: notwithstanding any particular law whatever, or: from our certain knowledge. The reason is, because the legislator is judged to be ignorant of particular laws, but not of common laws (I, 199; H. Ap., II, 71).
In order that a law be validly abrogated by the legislator or by his successor, no cause is required; since the whole force of the law depends on the will of the legislator. But so that it be licitly revoked, a just cause is necessary, regarding the common good.
Indeed, according to St. Thomas (1.2, q. 97, a. 2), laws are not to be changed for any improvement whatever, but for great utility or necessity. The reason is, "because custom avails very much for the observance of laws, so much so that those things which are done against common custom, even if they are in themselves lighter, seem graver: whence when law is changed, the constrictive force of law is diminished insofar as custom is taken away; and therefore human law ought never to be changed, unless from some part there is compensated to the common welfare as much as from this part is derogated."