Chapter I. On the Notion and Divisions of Law

142. Notion. The name of law (lex) seems to be derived from binding (ligare).⁵ For creatures are bound to certain norms of acting, which they must observe for the good of the whole universe; and therefore absolutely all creatures are bound by laws given by God and are subject to them. But irrational creatures (whether animate or inanimate) are necessarily subject to physical laws. And so the Creator has established physical laws for the stars in the firmament of heaven as well as for worms on the earth; and all beings obey at the nod of the eternal ruler. In Moral Theology we do not speak of these physical laws, of which the natural sciences treat.

There are other laws, which bind only rational creatures by prescribing norms according to which free actions are to be ordered in relation to the ultimate end. They are called moral laws, and now there is discussion of these alone. But moral law can be considered in three ways: 1. According as it exists in the legislator as in the one regulating, and according as it pre-requires three acts, namely, a) an act of reason deliberating and determining what is useful for the good government of the community; b) an act of will determining that such statutes bind subjects; c) an act of promulgation of the law in the community. - 2. According as it is in the subjects as in those regulated. For subjects must know the law and its obligation and be directed according to it in their actions. - 3. According as it is in an exterior sign, for example, in a book of laws (Bürgerliches Gesetzbuch, Strafgesetzbuch, Code civil, etc.) or in a custom having the force of law. - Now we take law according to the first consideration, and in this sense law is defined by St. Thomas:⁶

⁵ Others derive the name of law from legere, others from eligere.

⁶ S. theol. I-II, q. 90, a. 4.

143. Definition. Law is "a certain ordinance of reason for the common good, promulgated by him who has care of the community."

This definition indeed, as if classical and magisterial and approved by almost all authors, must be explained in a few words.

It is said first: "a certain ordinance of reason,"⁷ by which words is designated the proximate efficient cause of law, namely, reason. For practical reason and not will (as some teach after Suarez) properly causes law. For it belongs to reason and not to will to order to a due end through proportionate means, to find norms of acting, and to command.⁸ Certainly in establishing a law the will also must intervene, but it is not the proper and proximate cause, because it only moves reason to acting and, once the law has been established, executes its application. Since by the Angelic Doctor law is called a certain ordinance, it is intimated that not every ordinance of reason is law, since a precept and counsel are also ordinances of reason. Therefore the ordinance which causes law must be a true command, and therefore have certain qualities, namely, it must be a) efficacious and preceptive, inducing a true obligation; hence, for example, counsel, although it is also a certain ordinance of reason, nevertheless is not law; b) firm, stable, and perpetual, namely, in this sense, that it does not cease after a short time or through the death of the legislator, nor is it borne for present men only, but also for future subjects. Yet from this nothing prevents a law from being able to cease from diverse causes, as will be said below. By this perpetuity law is especially distinguished from a simple common precept, that is, one given to a community, which is usually not binding for so long. Nevertheless there are also other differences between law and a common precept.

Moreover, in practice it is not always clearly certain whether some moral obligation imposed upon subjects is a true law or only a precept or statute. But the obligation of some common precept or statute can be equally or even more grave than that of some law. Hence for Moral Theology it often matters little whether some obligation arises from law or from a common precept alone. - A particular precept, which is given to some particular person or family, is plainly distinguished from law of itself.

It is said second: "for the common good,"⁹ by which words is designated the necessary end of any law. Therefore an ordinance of a superior which tends to the evil or detriment of the community is not a true law or ceases to be law. Hence utility for the common good, which every law must intend, is assigned as a necessary property of any law. And so the precepts of tyrants, which tend only to some private good, are not laws.¹⁰ - But the common good can be obtained through laws in two ways: namely, directly and indirectly.

A law directly procures the common good insofar as the actions prescribed immediately benefit the community and only indirectly the subject persons; for example, laws of taxes directly serve the republic, which nevertheless must expend the money obtained from taxes for the utility of the subjects. Some law indirectly imports the common good insofar as it immediately and first causes private good, and by means of private good conduces to the common good; for example, privileges granted to religious are true laws, which indeed immediately and first conduce to the private good of religious, but indirectly also bring great utility to the common good of the whole Church, since religious are bound to use their privileges for the honor and profit of the Church. The same holds concerning the so-called privilege of the "canon" granted to all clerics.

It is said third: "by him who has care of the community." By these words is designated the author of the law or the legislator. For no one is able to establish laws properly so called except he who has care of the whole community, whether he is a prince or some legislative body.¹¹ For it would be illicit usurpation if someone wished to impose some obligation upon the whole community, unless he had care of that community. Hence laws introduced by custom are not true laws before at least the implicit consent of the legislator has acceded, as will be said below n. 278. But a community which is capable of receiving laws must be a perfect community, that is, one of its own right, having in itself sufficient means for arriving at its proper end and independent in its own order from any other society. Hence, for example, since the domestic family is not a perfect community, the father of the family can indeed issue statutes and precepts, but not laws properly so called. In ecclesiastical and civil law those communities which are autonomous, that is, which can establish laws for themselves, are expressly designated.

It is said fourth: "promulgated." Promulgation is the public intimation of law made by the legislator for the subjects. No ordinance of a superior can actually bind subjects unless it has been promulgated. But when sufficient promulgation is present will be said below concerning individual laws. Whether promulgation is of the essence of law or only a condition of law is disputed among authors.¹²

⁷ In the German language it is said: Verordnung, Anordnung; in the French language: ordonnance. The word ordinatio here is to be taken actively and not passively. Yet the ordinance of the legislator causes in the subjects an excellent passive ordination or order.

⁸ S. theol. I-II, q. 90, a. 1. Already Tertullian said: "Law consists in reason."

⁹ S. theol. a. 2. This common good is both temporal and spiritual, namely, the ultimate end (cf. St. Thomas I-II, q. 91, a. 4).

¹⁰ Since law necessarily procures the common good, it also necessarily has certain properties, which are enumerated in this way in the Decree of Gratian (c. 2, D. 4): "Now a law will be honorable, just, possible, according to nature, according to the custom of the country, fitting to place and time, necessary, useful, also manifest, lest it contain anything through obscurity unto deception, written for no private advantage, but for the common utility of citizens."

¹¹ Below n. 185 it will be said who are able to make laws.

¹² S. theol. I-II, q. 90, a. 4 and Billuart, De leg. diss. 1, a. 3. Promulgation more truly does not pertain to the essence of law, which consists in this, that it be a rule of morals. But promulgation is neither the rule of morals nor a part of the rule, but only a manifestation of that rule. Nor does the Code of Canon Law c. 8, § 1, establishing after Gratian, "Laws are instituted when they are promulgated," stand against this opinion. For by promulgation laws indeed are instituted perfectly and as to second act, but they can already have been instituted before in first act by the legislator.

144. Corollary 1. From the definition given it follows that moral law indeed induces a moral obligation, but does not destroy liberty. For liberty by no means consists in license of doing whatever things are willed, but is the faculty of choosing means while the order of the end is preserved. Moreover, sometimes for a private man it is most difficult by his own genius to find means apt for attaining the ultimate end. But if someone observes just laws (whether civil or ecclesiastical), he is certain that he is employing right means for attaining his ultimate end. For any just law renders subjects good and leads them securely to the ultimate good. Since these things are so, even if man had not sinned, moral law would still have been given for the human race.

145. Corollary 2. St. Thomas¹³ enumerates four acts of law, namely, to command, to prohibit, to permit, to punish. For law is instituted for directing human acts to the good of the community. Moreover, for obtaining the good of the community, good acts are to be done, and consequently they are commanded; evil acts are to be omitted, and therefore they are prohibited. But some acts are to be permitted, that is, neither commanded nor prohibited, because otherwise the liberty of subjects would be too much restricted. Finally, transgressors of the law and evildoers are to be punished; for this pertains to the sanction of law. For a law is sanctioned from the fact that it is constituted holy, that is, inviolable; and this indeed is done by punishing transgressors or also by rewarding observers. - Certain modern authors still posit a fifth act of law, namely, to invalidate; for invalidating laws exist, as will be explained below; but this act of invalidating is reduced to the act of punishing, because in reality the invalidated act is some punishment for him who placed that act.

¹³ S. theol. I-II, q. 92, a. 2; cf. L. 7, Dig. 1, 3 in the old Roman law.

146. Divisions. Very many divisions of law are brought forward, and there is no time to enumerate them all here. The principal divisions are:

1. By reason of the author: divine law and human law, according as either God Himself or man was the immediate legislator. But divine law is subdivided:

a) into eternal law, which is the reason of divine wisdom according as it is directive of all creatures to the ultimate end;

b) into natural law, which God has implanted in rational creatures and which is nothing other than the light of natural reason showing what is to be done for obtaining the ultimate end;

c) into positive-divine law, which has been promulgated by special divine revelation and is contained in the Old and New Testament.

But human law is subdivided:

a) into ecclesiastical, which has been given by an ecclesiastical legislator;

b) into civil, which has been made by a civil legislator.

2. By reason of the object: affirmative law and negative law are distinguished,¹⁴ insofar as the former directly gives precepts concerning good things to be done, for example, God is to be worshiped; the neighbor must be loved; - but the latter prohibits certain depraved acts, for example, do not commit theft, do not tell a lie.

The adage must be noted: "An affirmative law binds always, but not for always; but a negative law binds always and for always." The sense of this adage is: An affirmative law does not demand that the prescribed acts be placed at every moment; but a negative law demands that the prohibited act be omitted at every moment; for example, the affirmative law of love toward the neighbor requires that we indeed love the neighbor, but we are by no means bound to elicit acts of love at every moment; but the negative law of not stealing demands that always and at every moment we abstain from theft; for it is never licit to steal.

Other divisions have place only in human laws, for example, invalidating law, penal law, law founded on a false presumption, etc.; and therefore we omit them now, since later in their own places we shall treat of them.

¹⁴ In German: gebietende und verbietende Gesetze.

147. Scholion. On the Name of Law in Sacred Scripture. The name of law is very often used in Sacred Scripture, but not in one and the same sense. Thus, for example, law sometimes signifies an inclination or propensity: "I see another law in my members, fighting against the law of my mind."¹⁵ Sometimes it signifies the work itself prescribed by the law: "None of you keepeth the law."¹⁶ - Sometimes it signifies the book which contains the law; and thus the book of the Pentateuch is usually called the law. Therefore one must attend to the particular sense in which the word law is employed in each place.¹⁷

¹⁵ Rom. 7:23.

¹⁶ John 7:19.

¹⁷ See Billuart, De leg. diss. 1, a. 1.