Article II: On the Object or Matter of Law

The object of law is that which law prescribes or prohibits, and which is to be performed or omitted by the subject.

153. PRINCIPLES. I. The object or matter of human law is all actions which can conduce to the common good or oppose it. The reason is that legislative power has been granted by God as a means by which the good of society may be promoted. St. Thomas, 2.2, q. 105, a. 5.

154. II. The object of human law ought to be honest, just, morally possible, and useful. This follows from what was said concerning the nature of law (n. 109 ff.).

It ought to be 1. Honest; because any law whatever ought to be consonant with right reason.

Hence those things which are against divine law cannot be prescribed, for example, a duel; nor can those things which are prescribed by divine law be prohibited, for example, the religious education of children. In these things this has force: It is necessary to obey God rather than men (Acts 5:25). Cf. the Encyclical of Leo XIII (in Denz., 1850-1857).

2. Just, that is, such that it does not exceed the power of the legislator.

Hence, if the legislator makes a law for persons who are not subject to his rule, or concerning things to which his jurisdiction does not extend, he sins against justice, at least legal justice, nor does such a law induce any obligation. Except if from another head, for example, avoiding scandal, avoiding public disturbance, an obligation urges (Sweens, n. 369).

Hence: a) By civil law nothing can be established which is against ecclesiastical law; nothing by the law of an inferior legislator which is against the law of a legislator of a higher grade.

b) Nor can unjust things be prescribed with respect to subjects, namely such things as would injure equality of proportion in the distribution of burdens: for example, if the poor were burdened equally with the rich (cf. n. 400, 2).

c) But the legislator would not exceed his power if he prescribed or prohibited external occult acts. For it belongs to human law to direct whatever is external; but that the act (for example, external heresy) remains occult, happens per accidens. Therefore such acts are rightly prohibited.

d) But law, precisely because it ought to be confined within just limits, cannot extend itself to past acts. This cannot be done either by reason of fault, since there is no transgression where there is no law; nor by reason of true penalty, since this is imposed only in vindication of fault; nor by reason of rescission of acts, except in some case expressed by law. Hence that common saying: Law does not look backward (VI, n. 555; Suarez, de Leg., l. 3, c. 14, n. 8).

But if a law established certain incapacities, for example by pronouncing those who have done this or that to be irregular, incapable of contracting matrimony, etc., the law would justly extend itself to past acts; because then it would establish not a penalty for past fault, but a condition, or quality required for the future. The same must be said if a new law urged the execution of an old law, or interpreted a law (Gousset, Cod. civ., a. 2).

But whether law extends itself to internal acts, see n. 155.

3. Morally possible; both because a law concerning an impossible thing would turn to the ruin of the community, and because no one is held to impossibilities.

Hence: a) Acts of any virtue whatever cannot be prescribed, but only those which the public good demands, and which do not exceed the ordinary faculty of the community. b) Nor can all vices be prohibited by human law; but only the graver ones, from which, as St. Thomas speaks (1.2, q. 96, a. 2), it is possible for the greater part of the multitude to abstain, and chiefly those which are to the harm of others, without whose prohibition human society could not be preserved (cf. n. 446).

Therefore acts very arduous and heroic regularly cannot be prescribed to the unwilling: for this would be more unto ruin than unto edification. But if someone has freely undertaken a particular kind of life, arduous things which are proper to that kind of life can certainly be prescribed to him: thus enclosure is prescribed to nuns, and perpetual chastity to those initiated into sacred Order. Two cases are excepted, in which things especially arduous and heroic can be imposed on all by human precept: 1. When the common good demands this. Thus a Bishop in time of plague can prescribe to priests, even non-parish priests, that they not desert the city; similarly a military leader can prescribe to a soldier that he not desert his station. And the reason is that the common good prevails over the private good. 2. When the omission of some act would yield to the contempt of God or of religion (cf. n. 428 and 483); and the reason is that in that case the matter cannot be omitted without the law of nature itself being violated (I, n. 175; II, n. 26).

Hence: 1. If, in contempt or injury of ecclesiastical power, you are directly compelled to communicate with one to be avoided, to work on a feast day, or to eat forbidden foods on a fast day, you must refuse, even with grave harm to yourself, unless by protesting you can avert contempt and scandal. 2. If a heretical or impious head of a family were to say to his Catholic children: I will that on Friday you eat meats, and this in contempt of the Pope and the Church; the children ought to respond: Father, know that we eat because you refuse to set other foods before us; for in this case it is lawful for us to eat them.

4. Useful, and a fortiori not harmful to the common good. The reason is that the legislator does not have the right of prescribing except for promoting the common good; nor can he, without a just cause, inflict any detriment on the liberty of subjects, which is the greatest of all natural goods.

155. Internal acts. Now the celebrated question concerning internal acts must be solved, namely whether the legislator can prescribe or prohibit such acts. The acts concerning which the discourse is held are either purely internal, not manifested outwardly, or mixed, joined with an exterior element.

In a threefold way an internal act is joined to an external act: either as a form constituting the external act in its moral being, for example, internal consent in matrimony, in entering upon a contract, contrition in annual confession, etc.; or as a cause with an effect: and thus he who prohibits homicide also prohibits the will of killing (I, 100; H. Ap., II, 17); or as a complement of an external act to be rightly completed, for example, the application of the Mass, meditations to be instituted in retreat (Lehmkuhl, Cas. Consc., I, n. 85).

These things having been posited, 1. It is certain that both the civil and the ecclesiastical legislator can prescribe mixed internal acts; for example, an oath also internally formed can be required by a judge, annual retreats can be imposed by a Bishop (A. S. S., vol. 12, p. 609-612). The reason: this is necessary for the common good.

2. As to merely internal acts, it is certain that the civil legislator cannot rule these. The reason: social life, the external tranquility of the republic, which are the ends of States, by no means demand this. The praetor does not judge concerning internal things.

But it is disputed whether the ecclesiastical legislator can impose merely internal acts. We must distinguish between the power coming to the ecclesiastical legislator insofar as he rules a merely human society, and insofar as he presides over a divine-human one. In the first case, he uses proper, ordinary power; in the second, vicarious power. Now indeed: The ecclesiastical legislator most certainly can have dominion over merely internal acts: a) in matters of faith to be imposed (cf. Billot, de Eccl., II, thesis XXII), indeed even in matters not directly touching faith but pertaining in a general way to instructing morals (pontifical directions); b) in sacramental judgment, where he can also recognize the innermost things; c) in the exercise of dominative power, which has much force in religious orders.¹ In all these things the ecclesiastical legislator uses vicarious power derived to him from another source.

To this can be reduced the condition of an internal act attached to gaining indulgences. Ordinarily, however, an internal act is not uniquely asked.

But can the ecclesiastical legislator, as a human legislator, using his own authority, rule internal acts? Some (Elbel, Ballerini) affirm, because the Church received unlimited power from Christ. But others more commonly and more probably deny, with St. Thomas (1.2, q. 91, a. 4). For since the Church cannot know merely internal acts, she cannot judicially urge their execution, nor punish omission; therefore neither can she prescribe or forbid them; for it belongs to the notion of a true society that the acts which it commands, it can of itself know, namely from the nature of the acts themselves, even if sometimes, per accidens, it can be impeded from such knowledge by some extrinsic cause (I, n. 100; ed. G., I, p. 79). Cf. Suarez, de Leg., l. 3, c. 13; Franzelin, de Trad., Th. XII; Lehmkuhl, I, n. 221; Noldin, I, n. 137; Genicot, I, n. 136.

Note. Suarez himself, although he holds the denying opinion, adds that a convincing reason is lacking why the Church cannot rule internal acts. As to St. Thomas, texts are cited by the adversaries which they explain in their own sense; cf. 1.2, q. 100, a. 9; 2.2, q. 105, a. 4.