Article IV: On the Fulfillment and Interpretation of Human Law

St. Thomas, I-II, q. 96, a. 6; q. 97, a. 3, ad 2; II-II, q. 60, a. 5, ad 2; q. 120.

293. In what way law is to be fulfilled. - The human legislator does not directly prescribe the internal mode of virtue, but the conservation of social order; whence he prescribes only the substance of the act commanded and is content with physical or external fulfillment, although he can intend the good of virtue. For the end of a precept does not fall under the precept; nor therefore, per se, does the (extrinsic) mode of fulfilling the precept, unless the mode is of the substance of the precept (intrinsic).

These things will be declared more where there is discussion of ecclesiastical law.

294. In what way law is to be interpreted. - But in order that it be rightly fulfilled as it ought, law often needs interpretation. Namely, human law cannot be so perfectly set forth that it excludes every doubt about its meaning, and therefore it often needs interpretation, either on account of the weakness of human talent, or on account of change of circumstances and morals.

Interpretation is a clearer determination of the mind or words of the legislator. By reason of value or efficacy it is twofold: authoritative, which is imposed with authority, and merely directive, which can also be made by private persons. But by reason of cause or author it is fourfold:

1. Authentic or legal, which is made authoritatively by the ruler of the community himself as such, who is deservedly judged to know the sense of the law better and therefore enjoys authority of interpreting: it is made by the legislator himself, or by his successor or superior, or also by another specially designated for this (as happens in France, by the Council of State), and it has the same force as the law itself.

In our country, art. 28 of the Belgian Constitution has force: "L'interpretation des lois par voie d'autorite n'appartient qu'au pouvoir legislatif."

2. Usual, which is made by general observance of the community, or by the use and custom of the people, which is therefore called the best interpreter of laws. Moreover one custom is antecedent to the law, and this can have force for detecting the sense of a law which is usually borne according to custom; another concomitant is the mode of observing the law, and this has force as a sign and witness for recognizing the mind of the legislator, because it displays the common sense of subjects, which, although it is not authentic, nevertheless has more force than doctrinal interpretation because several agree in it; another subsequent custom, given the conditions, can define or extend a preexisting obligation, just as it can introduce or remove it (as we said in n. 273): then it is authoritative. Nevertheless in present-day civil law the force of custom for interpreting law authoritatively is not admitted, just as neither for introducing or abrogating it.

3. Judicial, which is made authoritatively by judicial power in order to a special cause, namely, by applying law to a particular fact: it is authoritative as to the litigants; as to others it has only the private authority of the judge, so much the greater as he excels in greater knowledge and the interpretation is more often repeated, yet, other things being equal, greater than if it is given by a private doctor.

4. Doctrinal, which is not authoritative and therefore of itself not obligatory, but is supported by science and directive, and is made by private doctors or jurists according to the rules of critical art. It is so much greater as their number, excellence, and arguments are greater; but if all agree in the interpretation, it would be rash to spurn it.

295. How many kinds interpretation is.

By reason of character or of the mode by which it is made, interpretation is simply declarative or comprehensive, which merely declares the words and sense of the law and adds or subtracts nothing, whether it declares more or less clear things, or even elucidates more obscure things: this can be made by all, even private persons; or supplementary, which adds what is lacking to the sense and words of the law, and is either extensive, which adds an obligation previously not expressed or intended, and therefore needs promulgation, or restrictive, which removes either one: this, like the law itself, can be made by the authority of the legislator, and by custom when the consent of the legislator can be presumed.

296. Interpretation by epikeia. - Even a subject of the law, in rare particular cases, can make a certain quasi-restrictive interpretation and licitly act beyond the words of the law, when these, namely, would be harmful to the common good. For law obligates insofar as it is ordered to the common good, and does not obligate if it departs from this. But it happens that something is useful generally and in the greater number of cases, and in certain cases is harmful; but because the legislator cannot foresee all cases (nor can law enumerate all cases, because it would become more obscure), law is proposed according to that which happens in the greater number of cases, for the sake of the common good.

Therefore, in a case in which observance of the law is harmful to the common good, it is not to be observed; for the legislator is rightly judged not to have willed to include that case in the law, just as a law concerning the gates of a town to be closed would not be applied to a citizen who would be very useful for defending the city, and a law which prohibits carrying arms does not obligate him who is sought by an enemy for death.

A right judgment concerning the circumstances in which law does not obligate, and a moral virtue inclining (under the direction of prudence) to acting rightly according to such a prudent judgment (which pertains to legal justice), is called epikeia, that is, equity, kindness, moderation, which interprets and judges and applies laws according to the equitable and good, that is, according as the reason of justice and the common utility demand. "In theological usage it designates a certain explanation of law which is made from equity, a benign interpretation and prudent moderation of law beyond the rigor of the words, by which it is judged that the law does not extend to some particular case on account of its special circumstances, although the legislator's words, as they sound, contain even that case." It can be defined: an equitable and benign interpretation of law, or a prudent moderation and restriction, by which against the words or sense of the law we follow the habitual mind of the legislator.

1. Thus Leroux in Revue Ecclesiastique de Liege VII, n. 4 (January 1901).

It is twofold: one broadly so called does not exceed the limits of simple interpretation drawn from circumstances, and has place not only in positive law but also in natural law (for example, deposits are to be returned); another strictly so called contains an emendation of law and has place in human law alone. And this differs: a) from simple interpretation, which explains obscure words and inquires whether in this or that sense those words are to be taken, so that they comprehend these or those cases: this follows the literal sense of the law and the mind which the legislator had; that departs from the words and the clear literal sense of the law and follows the mind which the legislator would have had, or reasonably ought to have had, if he had foreseen the case; b) from simple cessation of the end: for by this the law ceases universally and indeed negatively or contradictorily because its end is lacking; but by epikeia it does not obligate in a particular case and indeed contrarily because the law is rendered harmful or too burdensome; c) from dispensation: for this is an act of jurisdiction by which the legislator dissolves the bond of the law in a special case to which otherwise the law would be applicable; but epikeia pronounces that such a case was never comprehended in the law, although it is comprehended in the words.

297. Epikeia strictly so called has place whenever the law is 1) harmful or evil, for example, if it cannot be observed without sin; or 2) so impeditious of good or very burdensome and too difficult that it could scarcely be imposed by an equitable legislator; or 3) not so burdensome and difficult that it could not be imposed, but nevertheless, the circumstances being inspected and especially the ordinary mode of commanding with moderation, it is presumed that such was not the mind of the legislator. But ordinarily it is not given in invalidating laws on account of the common good.

The interpretation of epikeia can be made by any private person if the cause is evident; if it is doubtful, the superior is to be approached, because it pertains to him to interpret what is useful or useless to the community, whence on account of such cases he has the power of dispensing: for it is disordered to pass beyond the words of the law where the will of the legislator can certainly be known, and in doubt concerning the liceity of an act, we must, insofar as we morally can, arrive at certitude (n. 213 and 214, 4). But if there is a cause which does not allow the delay of recourse to the superior and is sufficiently founded (so that there is positive doubt whether the law still obligates), necessity itself dispenses, which has no law: then, namely, it suffices that probably the law has ceased to obligate.

By present-day civil law, however, epikeia is admitted with difficulty, except in a case in which it would evidently harm the common good directly. Namely, the legislator restricts it to the least possible, and judges it better to observe the law, even if it is burdensome to one or another, on account of the example of others.