Question — Noldin, Summa of Moral Theology
First Question. On The Nature Of Law
106. Definition. Law is defined by St. Thomas: an ordinance of reason for the common good, promulgated by him who has care of the community.1 Whatever be the true etymology of the name, law manifestly contains the notion of obligation or of a bond by which the subject of the law is bound, and at the same time the notion of a norm and rule of acting. For law regulates operations by the fact that it induces obligation.
a. Law is called an ordinance, because it consists in a norm or disposition, and one obliging, by which actions are directed to the end. Therefore law is distinguished from counsel, which induces no obligation and need not necessarily proceed from a superior who has authority.
b. Of reason: by this word practical reason is signified, which comprises intellect and will. For although law consists essentially in an act of the will, insofar as it induces obligation, nevertheless the intellect also must concur in establishing it, since it belongs to the intellect to consider whether the law to be made conduces to the end.
c. For the common good: for the end of law is the good of the whole community, which the law directly and immediately regards, and through the common good it is directed mediately to the good of individuals. This good is both spiritual and temporal, namely the whole good of the community.
d. By him who has care of the community: for to make law is an act of superiority and jurisdiction; therefore only he who has the power of ruling a community can impose upon the whole community a norm by which it is to be directed.
e. Promulgated, that is, so published or intimated that it can be known by the subjects. For the will of the subject can be induced only through knowledge to conform itself to the will of the legislator. Hence a law not promulgated, just as a law not known, cannot oblige.
They dispute whether promulgation is more truly said to belong to the essence of law or rather to be its necessary condition, without which it cannot have external efficacy. For the rest, this dispute is more speculative than practical: for each opinion concedes that a law which has not been promulgated does not oblige.
1 Cf. Summa I-II, q. 90, a. 4.
107. The distinction between law and precept. A twofold precept is distinguished, common and particular. Moreover, between law and a common precept, which by the ancients is called a statute, there is only this distinction: that law is a stable ordinance, while a common precept is transitory. For a common precept is from a prince for the whole community unto the common good, but for a time. But law and a particular precept differ from one another in several ways.
They differ by reason of the author: for public authority and the power of jurisdiction are required for establishing a law; for a precept private authority and dominative power suffice: that of a father, husband, master.
By reason of the subject: for law is a common ordinance which is given to a community, namely either to all its members or to those who are of the same condition in some community, whether they are many or few in number, as clerics, merchants, etc.; but a precept is given to a private person or to a family.
By reason of the end: for law is borne immediately toward the common good; but a precept immediately toward the good of a private person.
By reason of place: because law directly affects territory, but a precept directly affects the person; therefore a precept obliges even outside the territory of the one commanding, but law (ordinarily) does not oblige subjects who are outside the territory of the legislator.
By reason of duration: for law is a stable ordinance which is not made for a determinate time, but either always endures or at least endures so long until it is revoked; but a precept per se is made for a time.
a. Therefore a law is not extinguished together with the legislator, but endures beyond his death; but a precept per se ceases by the death of the one commanding. Per se, because it can happen that the legislator attributes special stability to the precept of a superior, as sometimes happens in religious orders.
b. Nevertheless the names law, precept, and statute are customarily used indiscriminately in law. Hence, to discern whether some ordinance is a law or a precept, attention must be given not so much to the name as rather to its conditions.
108. On the sanction of law. 1. The sanction of law considered actively is the decree of the legislator by which he proposes good things (rewards) to be obtained for the observance of the law, and evil things (punishments) to be undergone for its violation; considered passively, it signifies the good things themselves proposed for observance of the law and the evil things proposed for violation of the law. Sanction is the complement of law and obligation.
There is distinguished an internal sanction, which signifies good or evil things which from the nature of the thing follow the observance or violation of law (tranquillity and remorse of conscience, good or bad reputation, etc.); and an external sanction, which signifies good or evil things which are connected with the observance or violation of law from the disposition of the legislator.
Its end is threefold: a. that subjects be efficaciously moved to observance of the law; for the very knowledge of the law and consciousness of obligation (Pflichtbewusstsein) do not sufficiently induce man, as he now is, subject to the allurements of concupiscence, to keeping the law. b. That the moral order be completed by the retribution of reward and restored by the retribution of punishment; for the order of justice requires that reward be repaid to the merit of law observed, and punishment to the demerit of law violated. c. That subjects rebellious against the will of the legislator be subjected to his authority, by the fact that those who refused voluntarily to subject themselves to the law are forced against their will to undergo evil.
Note. Ethics and dogmatics teach of what kind the sanction of divine law is and must be in order that it be sufficient for obtaining the end, and whether it must be of eternal reward and eternal punishment.
109. On moral obligation, the effect of law. 1. Obligation taken broadly is the necessity by which created beings strive through their operations toward their proper ends. This necessity is essentially diverse in rational creatures and in creatures lacking reason: for the latter are led to their ends by determination of nature, but the former must lead themselves to their ends according to norms imposed upon them by law. The former necessity is called physical obligation, the latter moral obligation. Therefore moral obligation is a necessity imposed by law upon rational creatures of doing or omitting something. By this obligation rational creatures are truly bound, yet in such a way that they are not deprived of liberty, but the power is left to them even of departing from the obligation.
- The supreme principle and source of every obligation which arises from law is God Himself, whence the force of a law truly obliging must proceed either immediately or mediately from God. For the will of a rational creature, independent from other creatures in the pursuit of its end, can be bound efficaciously only by God, the absolute lord of creatures. Therefore Sacred Scripture testifies that every legislative power is from God: "Let every soul be subject to higher powers; for there is no power except from God, and those that are, are ordained by God."1 It testifies the same concerning individual legislators.2
1 Rom. 13:1.
2 Cf. Matt. 16:19; Prov. 8:15; Eph. 6:1; Eph. 6:5.
110. The chief divisions of law. 1. By reason of state, law is divided into eternal law, which is from eternity in God the legislator alone, and temporal law, which in time is also outside God in creatures.
Law can be considered in a threefold state: in the legislator, in whom it exists through the act of the intellect by which he judges that an action is necessary or useful for the end, and through the act of the will by which he wills it to be observed by subjects; in the subjects, in whom it exists through the act of the intellect by which the command of the superior is received and proposed to the will; in a sign, of which kind are writing or the living voice by which law is exhibited.
- By reason of the author, law is divided into divine and human law, according as it proceeds immediately from God or from a human legislator.
a. Divine law is divided into natural and positive law; the former is necessarily made by God and promulgated by the light of reason; the latter is freely made by God and promulgated in diverse ways, though externally.
Positive divine law is divided into Mosaic, which God gave through Moses to the Israelite people, and evangelical, which Christ, author of the New Testament, made.
b. Human law is one kind ecclesiastical, another civil, according as it is made by an ecclesiastical legislator or by a secular legislator.
- According to the diverse matter of the law, there is distinguished a commanding or affirmative law, if it is referred to a good act and to placing it; a prohibiting or negative law, if it is referred to an evil act and to omitting it; a permitting law, if it is referred to an act which is neither commanded nor prohibited but licit; and a penal law, if it sanctions a penalty.
a. Although the force of obliging of affirmative and negative law is the same, nevertheless they have diverse efficacy according to the celebrated axiom: affirmative law obliges always but not for always; but negative law always and for always. For the evil act which negative law prohibits must be omitted at any time; but the good act which affirmative law commands is indeed always commanded, yet it need not be exercised at any moment, but only at the appointed time.
b. It is clear that a permitting law is not properly a law, because it induces no obligation, which is required for the notion of law properly so called. But if it is said to oblige insofar as it prohibits anyone from impeding one who wishes to exercise an act permitted by law, it must be noted that in this sense it pertains to negative and prohibiting law.
- By reason of obligation it is divided: a. into moral or preceptive law, which obliges only to its own observance; purely penal law, which obliges only to undergoing the penalty; and mixed law, which obliges to both; b. into personal law, which follows the person wandering outside the territory, and local law, which does not follow the person outside the territory.
It is clear that all laws of a particular superior are local, because he himself cannot exercise power outside the territory; therefore his laws cannot follow a subject outside the territory. On the contrary, all laws of a universal superior are personal in this sense, that they oblige subjects everywhere, unless by his will they have been promulgated only in certain places: for law does not oblige where it has not been promulgated.
- Negative law by reason of effect is either simply prohibiting, which renders the act evil and illicit, or prohibiting and at the same time irritating, which renders the act not only illicit, but also invalid.