Article — Noldin, Summa of Moral Theology
Second Article. On The Object Of Human Law
The object of law is whatever the law can command or prohibit; and since law is the means by which public power procures the end of the community, the object of law can be whatever is necessary or useful for obtaining the end of the community. From this general principle it follows that for the validity of a law it is required that its object be marked by these four properties: it must be honorable, just, possible, and useful.
136. Honorable: for every legislative power is from God; but God cannot give the power of obliging to that which is dishonorable.
a. From this it follows that a law which commands a dishonorable thing is not to be obeyed; but in doubt whether that which is commanded by law is good, generally it must be presumed to be honorable and licit.
b. Nevertheless even actions indifferent in themselves can be the matter of law: for even indifferent actions can be useful or harmful to the good of the community. Actions of this kind, by the fact that they are the matter of law, are ordered to the good of subjects and, because of the motive from which they are commanded or prohibited, become the object of some virtue; for example, to abstain from meats on a certain day becomes an exercise of mortification, to stand while praying an exercise of religion.
137. Just; law is called just from a threefold head: a. by reason of the end, because it is referred to the common good; b. by reason of the matter, because burdens are imposed upon subjects while the proportion of equality is preserved between the burdens and their faculties; c. but chiefly by reason of the author, because it does not exceed the power of the legislator. But if that is commanded which in some way is repugnant to justice, the subject per se is not held to obey.
Just and unjust law are ordinarily taken in a broader sense, so that both that law which exceeds the competence of the legislator and that law which does not exceed competence but commands what is illicit are called unjust. Therefore unjust laws are of two kinds: some which exceed the competence of the legislator, although that which is commanded is licit; others which command that which is illicit. A subject is sometimes held per accidens to obey laws of the former kind, namely when disobedience brings greater evils either to a particular person or to the community, as if political power establishes impediments of marriage or imposes unjust taxes. It is not licit to obey laws of the second kind. Concerning these are the words of Sacred Scripture: "It is necessary to obey God rather than men,"1 and "it is better to die than to be defiled."2
1 Acts 5:29.
2 2 Macc. 7:2.
138. Whether human law can command merely internal acts:
a. Merely internal acts are called both internal acts which have no external act joined to them, and internal acts which per accidens are joined with an external or rather mixed act. For mixed acts are of two kinds: some in which the internal act, either per se and by its nature or certainly by moral law, is required for the external act to be duly performed, for example the intention of invoking God as witness in an oath, of sorrow in confession, of attention in prayer; others in which the internal act is joined with the mixed act only per accidens, which would be duly done even without it, as a determinate intention in reciting prayer. Internal acts joined per accidens with external acts are to be referred to merely internal acts.
b. Internal acts which pertain to mixed acts either essentially or morally, not only per accidens, can be commanded in two ways: directly, if the internal act itself is commanded in itself; and indirectly, if only the external act is commanded in itself and the internal act because of its conjunction with the external act, which by another law must be duly done.
- It is certain that human law (even civil law) can command mixed acts, namely internal acts which are so joined with external acts that the external acts would not be duly done without them. And indeed the Church commands worthy Paschal communion and fruitful reception of penance, and civil power commands an oath.
These internal acts necessarily joined with external acts are commanded, according to some, even by ecclesiastical law, only indirectly; but according to others, not only by ecclesiastical law but also by civil law, directly.
It is certain that civil power cannot command merely internal acts: for these directly contribute nothing to the end of civil society, since this can be sufficiently obtained even without them.
They dispute whether the Church can command merely internal acts. The opinion of many authors indeed teaches that merely internal acts cannot be commanded by human law, but that internal acts necessarily joined with external acts are commanded only indirectly. Nevertheless the affirmative opinion is altogether to be preferred, namely that the ecclesiastical legislator can directly command not only mixed acts, but even merely internal acts.
a. St. Thomas, Suarez, St. Alphonsus, to whom the negative is more probable (n. 100), and most others with them hold the negative opinion; Cardenas, Elbel (n. 332), Holzmann (n. 314), Ballerini-Palmieri (n. 308), Bouquillon (n. 114), to whom some others join themselves, defend the affirmative. Practically this question is not of great moment, because it rarely happens that it is expedient to command merely internal acts; but the Church, with all conceding, can command mixed acts at least indirectly. But if an ecclesiastical superior commands merely internal acts, even if his power is said to be doubtful, nevertheless one must presume for the validity of the precept and obey it. Hence if spiritual exercises are enjoined, the one upon whom they are enjoined cannot excuse himself from performing them integrally under the pretext that the superior cannot command merely internal acts.
b. Those who deny argue in this way: that cannot be commanded or prohibited by human law whose execution cannot be urged by human means and whose omission cannot be punished; for such a law would be imposed in vain. Besides this, the Church is a visible community; but the matter of laws by which a visible community is governed is only external and sensible acts. Finally, the Church never commands merely internal acts; but what the Church never does, she is judged unable to do. But those who affirm say thus: a. the Church can command whatever conduces to her end; but although the Church is a visible society, she is nevertheless also a spiritual society intending a supernatural end, to which merely internal acts are well consonant. b. Legislative power was granted to blessed Peter without limitation ("whatever you shall bind"); therefore it is not to be restricted to external acts unless this is proved by manifest arguments. c. The first argument of the prior opinion proves too much: for from it would follow that neither mixed acts nor hidden external acts can be the matter of ecclesiastical law. Besides this, merely directive power and power both directive and coercive at the same time must be distinguished. But it is not necessary that the Church command merely internal acts by power directive and coercive (external) at the same time; it suffices that she command them by directive power, even if she cannot punish their transgression. For the rest, she can punish even merely internal acts, namely by a penalty to be incurred by the very fact. Finally, d. the Church not only exercises power concerning merely internal acts, as is clear from those things which are said soon (under c.), but in fact commands merely internal acts. For example, priests celebrating Mass are commanded, after the reception of the body of Christ, to rest somewhat in meditation on the most holy sacrament, and this meditation certainly is a merely internal act; and the supreme pontiff under penalty of suspension commands that clerics to be ordained at Rome perform spiritual exercises, which are composed of mixed acts and merely internal acts (meditations, examinations).1 The same power of prescribing spiritual exercises to the clergy of his diocese belongs also to the bishop.2
c. In the following cases all concede this power:
a. A confessor in the sacramental forum can impose merely internal acts, for example pious meditation.
b. The Church can interpret natural and divine law, which is concerned with merely internal acts; thus she can determine how often an act of faith or charity is to be elicited; how often the sacrifice of the Mass is to be applied for the people by pastors of souls.
c. She can prescribe merely internal acts as a condition for obtaining a grace; thus she prescribes meditation on the mysteries of the life and passion of the Lord for gaining the indulgence of the Way of the Cross.
d. Regular superiors can enjoin internal acts upon their subjects by reason of the vow of obedience, by which they have subjected themselves to superiors also in relation to these acts, for example mental prayer, examination of conscience.
1 Constitution Apostolicae Sedis, V, 7.
2 S.C.C., September 20, 1878. Cf. Acta Sanctae Sedis XII, p. 609 ff.
139. Possible, not only physically, but also morally: for no one is held to the impossible. Certainly, law must redound to the common good; but it would not redound to the common good if it were not morally possible. For a law which exceeds the ordinary powers of subjects is not observed by the greater part of the community; but a law which is not observed by most redounds rather to the detriment of the community. Therefore by common consent the principle is admitted: an affirmative law does not oblige with a proportionately grave inconvenience which per accidens is joined with the observance of the law.
a. That is called morally impossible which can be done only with great difficulty, namely one which in the judgment of prudent persons surpasses human powers. But since precepts, both divine and human, are of diverse necessity and gravity, the same difficulty does not excuse from observing a precept in all cases; rather, the graver the precept is, the greater must be the inconvenience to be undergone in its observance in order that one be excused from the precept.
b. The shame to be undergone in confessing one's own sin and one's own defamation to be incurred before the confessor from the accusation of sin are per se and intrinsically joined with confession of sin; therefore they do not excuse from confession. But defamation to be incurred before others because of the confession of sins is joined with confession per accidens and extrinsically; therefore it can excuse from confession.
140. Whether law can command heroic acts, namely acts which are of extraordinary difficulty.
a. Positive divine law can command heroic acts: for on the one hand God is the absolute lord of men, and on the other He can increase the powers of men, by which the observance even of a most difficult law becomes morally possible. Nevertheless, since it is not to be presumed that God wills to oblige Himself to performing miracles in the moral order, positive divine law is not judged to command heroic acts; therefore in a case of great difficulty the law is rather said to cease.
b. Human law per se cannot command heroic acts, unless either the common good demands this, or acts of this kind are enjoined upon a determinate group, because it would command what is morally impossible and therefore would furnish occasion for innumerable transgressions.
Nevertheless sometimes even human law can command very difficult acts. a. If the law is imposed upon a determinate group of men, which each one freely enters; thus nuns are obliged to perpetual enclosure, priests to perfect chastity, some religious to the service of the sick who are infected with plague. b. If the common good demands this: for the common good prevails over private good; thus soldiers are commanded, even with danger of life, to attack the enemy and not desert their station, and pastors in time of contagious disease are commanded to remain in the parish. There are, however, those who say that in this case natural law rather than positive law commands the difficult act, namely the law that the common good is to be preferred to private good.
141. Useful to the community, which must be understood in such a way that not only the matter of the law, but also the mode in which the law is commanded (whether merely penal or preceptive, prohibiting or also invalidating, obliging under grave or under light obligation), must be useful to the community: for the power of making laws has been granted for the common good.
Hence a law which was not useful to the community or which redounded only to the utility of the prince or of a few would not be a valid law, since it regards only a private good. And therefore a law loses the force of obliging when it begins to become useless or harmful to the community.
Whether law extends itself to past acts.
This must be denied: for since law is the rule of things to be done, by its nature it regards future acts. Therefore the axiom arose: law does not look backward. Nevertheless, if a new law contained a (comprehensive) declaration of a prior law, it without doubt would affect all acts placed from the time when the prior law was issued.