Article — Prümmer, Manuale Theologiae Moralis
Article IX. On Civil Law and Its Obligation
284. Preliminary Note. Since man by his nature is a social animal (zoon politikon), and since he consists of soul and body, it is necessary that there be a twofold society of men: one spiritual (although visible), which above all procures the salvation of souls; the other corporeal, which specially and primarily intends earthly and bodily welfare. But in both societies it is necessary that laws exist, since no society can endure without laws. For the society procuring spiritual good, namely for the Church, ecclesiastical laws have been established, concerning which up to this point there has chiefly (although not uniquely) been discussion. But for society and temporal good civil laws are given, concerning which it now remains to speak briefly, since it is of interest to the confessor to know whether and how far civil laws oblige in conscience.
Faculty of making civil laws. That civil authority has true proper legislative power is of faith and is established from many texts of Sacred Scripture, for example: "Through me kings reign and makers of laws decree just things."151 Besides, concerning this matter enough has already been said above, n. 180.
151 Prov. 8, 15; cf. Wis. 6, 8; Rom. 13, 1; 1 Pet. 1, 13.
285. Obligation of civil laws. "That Christians are held to the observance of civil laws, even if these have been made by unbelieving rulers, provided that these are not opposed to Christian religion and evangelical morality, there is no place for doubting; and the Apostle leaves no place for doubt, who, making no distinction among higher powers, says: Let every soul be subject to higher powers: for there is no power except from God.... Therefore he who resists the power resists the ordinance of God: but those who resist acquire damnation for themselves.... Therefore be subject of necessity, not only on account of wrath, but also on account of conscience.152 From this most evident testimony it is manifest that those who hold supreme command in civil government can make laws for their subjects which oblige them even in conscience: reason also commends this for the public good, namely for warding off from civil societies the monster of anarchy, worse than dog and snake; and the illustrious examples of the first Christians commend it, who obeyed the civil laws of Gentile rulers so long as they could do this without loss of faith and good morals." Thus the Instruction of the S. C. de Propaganda Fide to the Vicar Apostolic of Siam, who asked whether a civil law forbidding the opium trade under penalty of death obliges in conscience.153 - Therefore it is certain that civil laws, even those of unbelieving rulers, who perhaps thought nothing about imposing an obligation in conscience, can induce a true and indeed grave moral obligation in conscience.154 Hence the opinion of a few theologians asserting that all modern civil laws are merely penal is entirely false, as though they have been made by legislators who are often unbelieving and care nothing about religion and conscience. - But I say that just civil laws can oblige in conscience; for it seems also certain that not all civil laws in reality directly oblige in conscience. For the common estimation of the people holds several civil laws as merely penal, for example, the so-called police laws (Polizeiverordnungen). Therefore, for discerning the value and moral obligation of civil laws, before all else the common estimation of the healthier part of the subjects is to be consulted; if they hold some law as merely penal, they seem to give a usual interpretation, which certainly is the best interpreter of laws and can safely be employed in practice. - Then it is certain and self-evident that no civil law obliges in conscience which is unjust, or which is opposed to religion and good morals. For such a law is not true law, but unjust tyranny or rebellion, since it wounds the right of the higher legislator, namely of God or of the Church. These two cases having been set aside, the following rules seem able to be established as directive norms:
152 Rom. 13, 1 sqq.
153 Collect. de Prop. Fide n. 815 (ed. 1907). Cf. Leo XIII, Encycl. Diuturnum, d. 29 June 1881.
154 Cf. St. Thomas, S. theol. I, 2, q. 96, a. 4.
286. Rule 1. Just civil laws establishing rights or transferring ownership ordinarily oblige in conscience from true commutative justice and not only from legal justice;155 and this even before the sentence of a judge.
The reason is that such laws are just, and without their observance the public good would be harmed and the peaceful cohabitation of citizens would be impossible. Moreover, such laws are nothing but just determinations of the natural law, which cannot determine all particular cases. Hence, for example, civil laws which attribute to a possessor in good faith the ownership of fruits received from a thing of another possessed by him; which grant to a father the usufruct in the goods of children of the family; which designate to children the legitimate portion of inheritance; which attribute half of a treasure to the finder and the other half to the owner of the land; which permit an action for damage from juridical fault alone, etc., have force in conscience.
Rule 2. Invalidating civil laws oblige in conscience after the sentence of a judge.
Thus the more common and far more probable opinion.156 For such judicial sentences are just, and accordingly they must be obeyed, just as a superior legitimately commanding must always be obeyed. Thus, for example, if a judge has declared some formless testament invalid, it must also be held as invalid in the forum of conscience. If a judge has declared any other merely civil contract invalid, for example, a purchase made by a minor, it is invalid also in the forum of conscience. - Before the sentence of a judge, such civil laws do not seem to induce an obligation in conscience, as was already said above, n. 215.157
Rule 3. In doubt concerning the moral obligation of some civil law, subjects directly do not sin by transgressing a law of this kind.
There are authors who wish to prove this rule from the famous adage: "A doubtful law does not oblige"; but because this adage is not admitted by all without restriction, hence the rule stated can be demonstrated from this, that the legislator is not judged to wish to bind the conscience of subjects unless he expresses this sufficiently clearly. For the end of civil law can often be attained without a direct obligation of the conscience of the subjects. In some regions concerning many civil laws one can rightly doubt whether there truly is an obligation in conscience. And therefore then no strict obligation is to be imposed.
Rule 4. Unless there is present a manifest violation of natural, divine, or ecclesiastical right, subjects can always follow the ordinances of civil laws even in conscience.
Therefore, although there is not always a strict obligation of following civil laws, nevertheless subjects can always, and that laudably, observe the statutes of a just civil law. Hence it is greatly to be advised that the confessor opportunely inculcate the observance of civil laws, and also that he conform his decisions, so far as he can, to the statutes of a just civil law.
155 Thus also Noldin, De praecept. n. 356; D'Annibale, Summula Theol. mor. I, n. 206; Marc-Raus II, n. 838.
156 Cf. Response of the S. Penitentiary, d. 21 Jan. 1873, apud A. van Gestel, De iustitia lege civili (1896), n. LXV.
157 Cf. A. van Gestel, l. c. n. LXXXVI.
287. The object of civil law is all external human acts leading to the temporal common good of the republic. Civil law cannot by its own authority establish anything concerning spiritual and ecclesiastical matters, just as it also cannot sanction spiritual penalties. - By several persons (Beccaria, Holtzendorf, Schleiermacher, etc.) the power of inflicting the death penalty is denied to civil law, but St. Thomas158 and the most common opinion, confirmed by the example of all ages, attribute this power to civil law. Among Catholics almost Scotus alone159 seems to contradict, judging that capital punishment cannot be inflicted except from God's dispensation. This opinion of Scotus, unless it is interpreted benignly, is rather rash;160 hence already before the times of Scotus, Innocent III (in 1208) demanded from the Waldensians returning to the bosom of the Church that they declare: "Concerning secular power, we assert that without mortal sin it can exercise judgment of blood; provided that, in inflicting vengeance, it proceeds not from hatred but from judgment, not incautiously but with counsel."161 - Besides, discussion of this matter will return below, where there is treatment of the bloody punishment of a malefactor.
Since there is a special difficulty how far the obligation of civil laws concerning taxes and military service extends, here it is useful to treat individually of those laws.
158 S. theol. II-II, q. 64, a. 2; Summa c. gentes 3, 146.
159 In 4, dist. 15, q. 3.
160 Cf. Bannes, Comm. in II-II, q. 64, a. 2, concl. 1.
161 Denz. n. 425.