§ 1. On Penal Law.

164. What it is. 1. A penal law is that which does not oblige in conscience to doing or omitting something, but only to undergoing punishment if, in a case of transgression, it has been inflicted. And this indeed is called a merely penal law, so that it may be distinguished from a mixed law, which is preceptive and at the same time penal (n. 110. 4).

Therefore penal laws do not strictly oblige to doing or avoiding what is established through the law, but only to accepting the punishment as just, if the action or omission intended by the law has not taken place. A merely penal law is not a law which in no way obliges in conscience, but is a law which induces no other obligation of conscience except to undergoing punishment.

2. That the legislator can establish merely penal laws is not doubtful: for a merely penal law has the character of true law, equally as a preceptive law does; but it depends upon the will of the legislator what kind of law he wishes to establish. Besides, the common good sometimes does not require any law other than a penal one, because subjects are sufficiently impelled to observe the law from fear of punishment alone.

a. There are indeed some scholastic doctors who deny that there can be a merely penal law. One or another of the more recent theologians accedes to them.² Their arguments are these: a. It belongs to the nature of law that it oblige in conscience; but a merely penal law is an arbitrary law (ein blosses Willkurgesetz), namely one whose existence is attributed to the choice of the prince and whose observance is permitted to the choice of subjects. b. Punishment supposes fault; but he who transgresses a penal law does not commit fault, since it does not oblige in conscience.

b. But the common opinion of doctors, that there can be merely penal laws, must altogether be held. Certainly every law intends some act either to be placed or to be omitted; now, in order that a law may attain that which it intends, either it commands the act itself and obliges to it in conscience, or it proposes the act and hypothetically commands the punishment, namely if the act is not done or is not omitted. Therefore the proper object of a penal law is the punishment hypothetically to be undergone, which in this law is not the sanction of the law nor the vindication of fault, but the means by which the legislator urges subjects to the act proposed and intended by the law.

c. To the arguments of those who deny it, it must be noted: a. It does not belong to the nature of law that it oblige in conscience to the act which it intends, but it is enough that it oblige to punishment if the intended act is not done. b. Punishment supposes either moral or civil fault, but not always moral fault. Or better thus: punishment properly so called supposes fault, but not punishment broadly so called, which supposes only a just cause on account of which it is inflicted. For punishment broadly so called is any inconvenience whatever which is imposed by a superior from a just cause, which in this case is the omission of the act intended by the law.

¹ Suarez l. c. l. 5. c. 3 ss. Biederlack, Die Lehre von den Poenalgesetzen (Zeitschr. f. k. Theol. 1899. S. 155 ff.).

² Cf. Tubinger theol. Quartalschrift 1898 S. 655 ff. 1900 S. 204 ff. 1902 S. 575 ff.

165. Whether and what laws are penal. Therefore it is asked whether merely penal laws have in fact been established and exist.

1. Although the Church can issue merely penal laws, nevertheless in fact, if the rules and statutes of certain religious orders are excepted, scarcely any merely penal ecclesiastical laws exist;¹ but merely penal civil laws do exist.

2. Merely penal civil laws in general are all those whose end can be sufficiently obtained by the fact that subjects are compelled to their observance by fear of punishment alone, unless the legislator has declared otherwise. But specifically these are judged penal: a. statutes which refer to the external order of the community (die Polizeiverordnungen); b. laws concerning the cutting of wood, concerning hunting, fishing, grazing in the forests, pastures, or marshes of the community, where this is prohibited under punishment. Whether, besides these, there are other laws (laws of taxes and of military service) will be said in their places.

3. Universally, laws are preceptive whose end cannot be sufficiently obtained unless subjects are compelled to their observance also by fear of fault; of this kind are: a. laws which confirm the natural or positive divine law; b. laws which immediately contribute to the common good, such as laws which refer to contracts, to public offices, etc.; c. laws which define rights, such as a law which attributes to the father the usufruct of the goods of children, a law which from paternal goods attributes a legitimate portion to the children, etc.

This principle, that civil laws can be held as penal which by their nature do not require that they be preceptive, especially holds concerning laws which are established in great number by modern governments; a. because governments as they now are employ only external means for urging the observance of laws, but make little of the obligation of conscience, and therefore implicitly declare that they do not urge internal obligation; b. because the common persuasion of citizens, even of those who are of timorous conscience, has prevailed that these laws do not oblige in conscience.

¹ Cf. Wernz, Ius decretalium n. 112.