Article II: On the Obligation of Human Law

St. Thomas, I-II, q. 96, a. 4.

283. Principle I. Civil law, as such, not only coerces but obligates in conscience and before God, even under grave obligation. It is certain.

It is proved: a) Natural law and divine law obligate in conscience. But these laws dictate that superiors legitimately commanding are to be obeyed, and indeed even under grave obligation. Therefore. For legislative power is necessary for obtaining the end of society; but the legislative power of a superior imports for subjects an obligation in conscience of obeying just laws; otherwise the power of the superior could be frustrated, and it would not be true power but a semblance of power. Therefore. Now those things which are necessary to human society obligate of themselves under grave obligation (cf. on natural law, n. 251, C).

b) From the Scriptures, according to which 1) civil law is borne by power granted by God (Rom. XIII, 1; Wis. VI, 4), imposed in the name of God by His ministers (Rom. XIII, 4, 6; Wis. VI, 5; I Pet. II, 13), and sanctioned by God (I Pet. II, 13); therefore 2) they are to be obeyed by necessity (Rom. XIII, 1, 5), not on account of wrath and contention but on account of God and conscience (I Pet. II, 13; Rom. XIII, 5). For he who resists the minister, in that in which he is minister, is judged to resist the king; whence 3) he who resists the power of the prince resists the ordinance of God itself and acquires for himself a just penalty (Rom. XIII, 2).

284. Corollary. - Civil law obligates in conscience, even if the legislator does not think of such obligation or does not care about it (even if he is an unbeliever, as is clear from the instruction of the Congregation for the Propagation of the Faith to the vicar apostolic of Siam), or should wish to abstract from it, provided he does not altogether exclude obligation and commands a true law. For he who commands implicitly wills to obligate in conscience, both because once the precept has been posited, obligation follows spontaneously and naturally from natural law and the will of God, which command obedience toward superiors, and because he often wills observance in a better and more efficacious mode, especially when there is question of things necessary for the common good.

Hence 1) in a case in which the legislator intends truly to use his legislative power but does not admit obligation in conscience or wills to exclude it, of two contrary wills the predominant will has force (p. 55), which must be presumed and ordinarily is the will of establishing a law and obligating, just as the nature of the thing demands;

2. even a legislator who does not care about God or obligation of conscience is not to be presumed to urge by coercion of penalty alone, unless the contrary is clear or a case is present in which the common good altogether demands obligation in conscience; but on the contrary, unless the contrary is clear, he must be presumed truly to obligate, at least in matters of greater moment.

285. Principle II. Human law, in order that it obligate, must be just, that is, must establish just acts:

1. on the part of the matter, because it must be concerned with just things; and therefore the prescribed acts must be just, both generally with justice broadly so called, or honorable (as all virtues require), that is, not contrary to a superior law (natural, divine, ecclesiastical), and with justice strictly so called, specifically just, that is, opposed to the right of no one;

2. also on the part of the one bearing it or of the mode, because it is prescribed justly:

a) by reason of the end, the prescribed acts must be useful not for one's own good but for the common good, as legal justice requires;

b) by reason of the author, they must be contained within the scope of his power, as commutative justice requires: for subjects are bound to obey superiors in those things in which they are superiors, as a soldier obeys the commander in those things which pertain to war, and a servant obeys the master in works which regard service, etc.;

c) by reason of the form or prescription: they must be duly proportioned to the powers and faculties of all, so that in the distribution of honors and burdens the proportion of equality is preserved, as distributive justice requires.

But if one of these is lacking, according to this the law does not obligate.

286. An unjust law 1) on the part of matter obligates in no way, so that it cannot be fulfilled even to avoid death, because it is contrary to the divine good: for it is necessary to obey God rather than men (Acts V, 29. Cf. Exod. I, 17-21; enc. Qui pluribus, November 9, 1846; Quanta Cura, December 8, 1864); nevertheless per accidens it can be fulfilled if God or the Church yields its right and no longer urges its law, for example, concerning hearing Mass if soldiers were prohibited by civil law;

2. a law unjust on the part of the one bearing it, as being contrary only to a human good, can be fulfilled but of itself does not obligate, because it is not true law; nevertheless per accidens it must be observed by force of natural law on account of some grave motive, namely, to obtain a greater good or avoid a greater evil.

Hence a) a law which is not useful to the common good can obligate per accidens, for example, to avoid scandal, disturbance, etc.

b) A law which is borne against commutative justice by one who does not have power but usurps it, and invades the republic without right but holds it oppressed: if he does not yet possess the kingdom peacefully, it does not obligate by defect of power; but if he possesses the kingdom, laws which promote the common good obligate, because society cannot stand without a power of rule, which therefore it is judged to confer upon the usurper, nor without laws, to which therefore for the common good the people tacitly acquiesces; but laws directly borne against the legitimate prince do not obligate, because they injure a certain right.

1. Thus natural right: in practice positive human laws must also be considered, for example, the Hague Convention in the case of war. Thus, for example, it has been sanctioned that an invader of a territory can issue decrees which, while he precariously occupies the region, seem necessary for maintaining peace. But he cannot command beyond this necessity and the securing of his own safety. Vermeersch, Theologia Moralis I, n. 189.

c) A law injuring distributive justice (for example, in taxes) does not obligate for the unjust and excessive part, unless per accidens by reason of scandal, disturbance, etc.; nevertheless it obligates for the just part, unless the excess of proportion in distributing burdens were so great that the law itself yielded to common detriment.

Nevertheless it must be noted that it is necessary that the injustice be morally certain; otherwise presumption stands for the legislator, both because he has and possesses the faculty of commanding, which cannot be taken from him on account of doubt, and because he can have reasons hidden from subjects, and because otherwise subjects would take excessive license for transgressing laws, which scarcely can be so just that by apparent reasons of injustice they cannot easily be called into doubt by some.

287. Some laws are moral, others penal. - Certain civil laws are moral or preceptive, which strictly obligate in conscience to doing what is established by law, sometimes even under penalty, in which case they are also penal and are called mixed; certain laws are merely penal, which obligate in conscience not to doing what is established by law, but only to not resisting, in the case of transgression, the infliction of penalty and to undergoing the penalty inflicted.

Merely penal laws can certainly or probably be recognized: a) from the will of the legislator openly declaring this; b) from the tenor or form of the law, if it prescribes only the penalty: He who has done this shall pay such a fine; on the contrary, rather if it commands and at the same time imposes a penalty; c) from the matter of the law: if it is light and having no regard to good morals, or if the end can easily be sufficiently obtained by obligating under penalty alone; for then the legislator is presumed to obligate in that way unless he has declared otherwise. On the contrary, if the matter is of great moment, pertaining to good morals and to restraining vices, or if it is necessary for the peace or good of the republic or for avoiding a great inconvenience to it, especially if obligation in conscience is necessary or expedient for obtaining observance of the law; for then the legislator is presumed to obligate in a mode more efficacious and more suitable to the republic; d) somewhat from the nature or quantity of the established penalty, if it is not merely coercive but is able to compensate the defect of the act, as a fine, or if it is too great and not proportioned to the delict: for then the legislator is judged to increase the penalty because he obligates under penalty alone; on the contrary, if the penalty supposes fault or is merely coercive, as imprisonment; e) from common estimation, the interpretation of the wise, custom, etc.

According to the aforesaid rules, the following laws are to be judged moral: a) those which confirm natural or divine law, for example, those which prohibit vices; b) those which immediately contribute to the common good, for example, those which refer to contracts or prescribe offices pertaining to public functions, likewise the law of military service unless it is certainly unjust (cf. treatise on Justice); c) those which define rights, for example, laws which determine property concerning things found and lost, prescription of goods, rights of writers, the law which attributes to the father usufruct from the goods of children or from paternal goods attributes a legitimate part to children (at least ordinarily); d) also per se laws of taxes, because these are necessary for the governance of the republic, and moreover the Scriptures teach thus (Mt. XXII, 15-22; Rom. XIII, 1-7), whence, unless the contrary is clear, at least direct taxes obligate in conscience, which are imposed immediately and directly upon persons at established times on account of goods, income, faculties, the exercise of an art or commerce, and which also are usually exacted by coercive penalties; but according to present-day law they do not obligate before they are defined and exacted (cf. treatise on Justice).

On the contrary, the following are probably merely penal: a) laws and statutes which refer to the external order of the community (lois et arretes de police); b) laws concerning the cutting of wood or pasturing of animals in common forests or pastures; likewise laws concerning hunting and fishing, except insofar as they establish the right of a third party; c) laws which forbid certain goods to be exported or imported (unless it is altogether necessary for the public good, for example, in time of war); d) laws which impose certain indirect taxes, which primarily and immediately touch goods and are paid occasionally for the transmission and change of rights or the intervention of a tribunal (droits d'enregistrement, de mutation, de timbre, d'hypotheque, de greffe), whether for goods being transported (droits de douane: d'entree, de sortie, de transit), or for the manufacture of certain things (droits d'accises) or the cultivation of certain fruits (for example, tobacco); e) laws which prohibit games of chance and games, except for the part by which they forbid establishing games of chance by design, since this is vicious and also harmful to others.

Nevertheless it is better not to teach these things publicly to the people, but to lead them to observance of the law, especially because violation of a merely penal law, chiefly if habitual, can be culpable per accidens, either because on the occasion of this the right of a third party is injured or scandal is given, or because charity toward oneself and one's own is injured, while one imprudently exposes oneself and one's family to graver penalties and great dangers, infamy and damages, or because one would exercise violent resistance against those who by office are bound to apply the law, or would be prepared for it.

288. There are also invalidating civil laws which render acts invalid, whether as a penalty for a delict, or for the protection of the agent or a third party, or for the common good, for example, on account of the danger of frauds, and to avoid lawsuits, and so that contracts may be made with greater protection.

And indeed: a) sometimes acts are invalidated by law alone without any sentence of the judge, if conditions are lacking which are altogether required for the nature, object, or existence of the act and therefore as quasi-essential for validity, so that without them it cannot even be conceived, for example, if there is radical incapacity or inability for placing acts, or if forms required for the solemnity of a donation inter vivos or of a testament are lacking; then in French law it is said: nul par le fait meme, radicalement nul, inexistant, non avenu; b) sometimes invalidation is decreed by law, yet in such a way that for the invalidation itself a declaratory sentence of the judge is necessary, if conditions simply required for validity are lacking; in which case the act before the sentence of the judge remains valid, after the sentence is invalid not only from the moment of the sentence but is judged never to have been placed: for the judge does not render it null but only declares it to be null by the law itself. Then in French law it is said: nul de droit, nul de plein droit, simplement nul; c) sometimes it is not annulled by the law, but it is decreed that it can be annulled by the judge, if it is valid in itself but certain conditions required for liceity are lacking; in which case before the sentence of the judge it remains valid, after the sentence it is judged null but only from that moment, because it is annulled not by the law but by the judge himself. Thus it happens in French law when the act is injurious to rights, whether of the agent or of a third party (acte lesionnaire): it is called rescindable (rescindable par action en rescision); or when it is fraudulent (frauduleux), and this is called revocable (par action revocatoire).

These laws render acts void in conscience (as determining rights), also more probably in the first case before the sentence of the judge.

But it should be noted that invalidating laws are not necessarily prohibiting laws (as a law invalidating a testament without the forms required for solemnity), but only if the act cannot be good unless it is valid, or if the motive which demands invalidation also demands prohibition (for example, donations of parents beyond the legitimate portion), or if it is expressly or implicitly prohibited, through the addition of a special penalty besides invalidation.

289. Corollary.

From what has been said it follows that civil law per se obligates gravely in grave matter, namely, whenever it greatly conduces to an end of great moment, unless, however, the legislator wills only to obligate lightly, or under penalty alone.