Origin

Origin.—The authority to make civil laws resides in that person or body to whom according to the constitution of the State the legislative function belongs. (a) In an absolute monarchy, the legislative authority is vested in the prince; (b) in a state that has an appointed or hereditary aristocracy, the legislative power may be entrusted, at least in part, to a body of nobles; (c) in a limited monarchy or republic the lawmaking function belongs to the people, who exercise it either directly or (as is the case in most modern states) indirectly through elected representatives.

The acceptance of civil law by the people is not necessary for its obligation, for obedience to higher powers is commanded (Rom., xiii, 5), and, if law has no authority, the common welfare is defeated. Several points must, however, be noted.

(a) The foregoing principle is to be understood of law in itself, for, if there is question of the form of government or of him who exercises the powers of sovereignty, acceptance by the people may be said to be necessary in the sense that the multitude may set up the particular system of rule which it prefers, and may designate the individuals who are to wield authority under the constitution adopted.

(b) The principle given above is to be accepted regularly speaking, for there may be cases in which the acceptance of the people is required by law itself. Example: Under former civil constitutions, if in a certain place a lawful custom was in force, a contrary law which did not expressly abolish the custom did not oblige unless accepted. But this example is theoretical, for modern civil codes do not recognize the derogatory force of custom. If the constitution of the state calls for a referendum or plebiscite (i.e., submission to the electors for ratification), then the bill passed by the legislature or a measure proposed by the initiative body lacks force until accepted. This illustrates acceptance of a proposed law, but the acceptance is supplemented by some ministerial act.

(c) The principle given above is to be understood of the taking effect of a law, for the continuance of a law may depend on the acceptance of the people in the sense that a contrary custom of the people is able to abrogate law, if the superior consents (see 500 sqq.). Few codes of modern states give legal force to popular custom; they suppose that, if a law is not satisfactory to the people, the way is open to its repeal through exercise of the suffrage. But, morally speaking, there is no obligation to obey a law that has fallen into desuetude.

As to laws made by one who has no lawful authority, we should note: (a) of themselves, they have no binding force, since law is an act of authority; (b) from the necessities of the case, they are obligatory, if, being otherwise just, they are accepted by the great body of the people; for to resist them then would be prejudicial to public order.