Article — Prümmer, Manuale Theologiae Moralis
Article III. On the Subject of Human Law
185. Preliminary Note. The subject of law is called those persons for whom the legislator has made the law. But St. Alphonsus wisely observes50 that it is one thing not to be held to a law, and another to be excused from a law. He who is not held to a law, or, what is the same thing, he who is not subject to a law, can act freely and absolutely, without in any way caring about the law. On the contrary, he who is only excused from a law ordinarily must observe the law, but on account of extraordinary circumstances here and now does not sin by acting against the precepts of the law. For example, a man lacking the actual use of reason is excused from the precept of any law, so that he cannot sin formally by transgressing it; but by no means does he cease to be the subject of natural, divine, or human law. Hence also it is licit to induce someone not subject to a law to an act prohibited by the law; for example, it is licit to give meat to be eaten on Friday to a child not yet seven years old. On the contrary, it is not licit to induce the same child to do something obscene, because, although he does not sin formally on account of the defect of the use of reason, nevertheless he sins materially by transgressing the natural law, to which he is subject.
It was said above, nn. 153 and 163, that the subject of the natural law and of the positive-divine law of the New Testament is absolutely every man. Concerning the subject of human civil law there is no reason for us to inquire specially. For to such law are subject all those who are legitimately designated by their legislator. Therefore there remains only the question: what is the subject of ecclesiastical law?
50 Theol. mor. l. 1, n. 153.
186. Principle. To merely ecclesiastical laws are subject all and only baptized men habitually enjoying the use of reason, and this after the seventh year of age.51
It is explained. It is said, 1. All baptized men are subject to ecclesiastical laws. For the Council of Trent52 defined: "If anyone says that the baptized are free from all the precepts of holy Church, whether written or handed down, so that they are not bound to observe them unless they have wished of their own accord to submit themselves to them, let him be anathema." But the reason is that man, through baptism validly received, becomes a member of the Church, and therefore is bound to obey her laws. - Since these things are so, even all heretics and schismatics validly baptized are subject to the laws of the Catholic Church (at least speaking in itself). Therefore in the Decretals53 there are several laws concerning heretics, schismatics, and apostates; therefore also it has been declared several times54 that heretics are bound by matrimonial impediments of ecclesiastical right (except now the impediment of disparity of cult). But I said: speaking in itself, heretics are bound by ecclesiastical laws; for accidentally they are sometimes not subject, namely, when the Catholic Church explicitly or implicitly does not will to oblige them. Thus, for example, the Code of Canon Law, c. 1099, § 2, expressly exempts heretics from the obligation of contracting marriage before the pastor as to the validity of the sacrament. There are not lacking grave authors55 who judge that in all matters which chiefly regard individual sanctification, for example, in fasting, abstinence, assistance at Mass, etc., the Church does not will to oblige heretics, at least those who were born and educated in a non-Catholic sect. Nevertheless it is not licit directly to induce heretics to the transgression of such ecclesiastical commands, for example, to eating meat on prohibited days; but from just causes it is licit materially to cooperate in a transgression of this kind of an ecclesiastical precept. Therefore, for example, it is licit on a forbidden day to place meat on the table, which it is foreseen a heretic will eat, provided that at the same table there are also other sufficient foods, so that the heretic who is going to eat is not compelled, but takes the meat of his own accord. But if the heretic from the beginning explicitly or implicitly demands meat to be eaten, it is no longer necessary to place fasting foods on the table.
51 Some, namely the Antinomians and Quietists, falsely understanding certain texts of Sacred Scripture, for example, that those who are led by the spirit are not under law (Gal. 5:18), that the law is not set down for the just man (1 Tim. 1:8), taught that perfect and spiritual men are not subject to ecclesiastical laws, indeed even to moral laws. Their opinions were condemned several times by the Church, for example, by Clement V, who condemned the propositions: "That a man ought not to fast, nor to pray, after he has attained the degree of perfection ..., that those who are in the aforesaid state of perfection and spirit of liberty are not subject to human obedience, nor are they obliged to any precepts of the Church; because, as they assert, where the spirit is, there is liberty" (c. 3, l. 5, tit. 3 in Clement.). Innocent XI condemned the Quietism of Michael de Molinos (Const. Coelestis Pastor; Denz., Enchir. n. 1221 sqq.). Cf. Wetzer and Welte, Kirchenlexikon, s. v. "Antinomismus" and "Quietismus."
52 Sess. 7, can. 8, on baptism (Denz. n. 864).
53 Cf. tit. 7 and tit. 21, l. 5, of the Decretals of Gregory IX.
54 Cf. Benedict XIV, const. Singulari nobis, § 14, February 9, 1749; Holy Office, March 30, 1860.
55 Cf. Bouquillon, Theol. mor. fund. n. 154, n. 4; Marc-Raus, Inst. mor. n. 198; Pruner, Moraltheol. n. 105; Noldin, De principiis n. 144; Lehmkuhl, Theol. mor. I, 228; Génicot, Casus conscientiae I, 22.
187. It is said, 2. Only baptized men are subject to ecclesiastical laws. For this reason the Council of Trent56 teaches that the Church exercises judgment over no one who has not first entered into her through the gate. Indeed the Pontiffs expressly acknowledge57 that those who have not received baptism are not held to merely ecclesiastical laws. But the reason is that the end of ecclesiastical laws is to lead the faithful to eternal salvation. But now no one can arrive at eternal salvation unless he first has been regenerated in Christ through baptism (of water, desire, or blood). Therefore the Church does not make laws for men not yet regenerated, or not yet baptized; and therefore unbelievers, Jews, Mohammedans, and others not baptized are by no means held to ecclesiastical laws (at least in itself). Therefore all these can, for example, licitly eat meat on Friday and throughout Lent; they can validly contract marriage, even if those about to marry are blood relatives or relatives by affinity in the third or even in the second degree; they can do servile works on Sundays and feast days (provided that on another day they worship God and do not publicly disturb the festive rest). - Accidentally, however, even unbelievers are sometimes held to ecclesiastical laws; namely, whenever they enter into a relation with some baptized person. Thus, for example, a pagan contracting marriage with a Catholic woman is held to observe the ecclesiastical law concerning the diriment impediment of disparity of cult; and therefore such a marriage is invalid unless a dispensation upon this impediment has first been obtained.58
It is said, 3. Habitually enjoying the use of reason. For if someone lacks the habitual use of reason, as the perpetually insane and infants do, he can elicit no truly human act. Moreover ecclesiastical law commands only truly human and deliberate acts. On the contrary, he who habitually is possessed of reason, although here and now he lacks the use of reason, as one drunk or sleeping, is subject to ecclesiastical law. Cf., however, what was said above in n. 185.
The doctrine set forth is confirmed from the Code of Canon Law, c. 12: "To merely ecclesiastical laws are not held those who have not received baptism, nor baptized persons who do not enjoy sufficient use of reason, nor those who, although they have attained the use of reason, have not yet completed the seventh year of age, unless something else is expressly provided by law."
On account of special doubts arising, it must also be answered specially to the questions: How are subject to human law 1. infants and impuberes; 2. the legislator himself; 3. peregrini and vagi?
57 Cf. c. 8, X, 4, 19; Cod. iur. can. c. 12.
58 Cf. below in the treatise on marriage III, 835.