§ 1. On the Cessation of Obligation Because of Impotence

235. Notions. Impotence is one thing absolute or physical, another moral. Absolute impotence for fulfilling a law is present when man is altogether incapable of observing it; for example, a cleric who without fault has lost his Breviary and cannot have another is situated in absolute impotence of observing the law concerning recitation of the Breviary. - Moral impotence is called that which, according to the prudent judgment of a discreet man, renders the work prescribed by law not indeed absolutely but morally impossible; or moral impotence is present when the prescribed work cannot be done except by employing altogether extraordinary labors. For example, a cleric who is held to labor through almost the whole day from his office is situated in moral impotence of reciting the Breviary. But I have deliberately said that moral impotence must be established in individual cases according to the prudent judgment of a discreet man, because no general norm is given to be employed in all matters. Therefore in any case all the circumstances both of the prescribed work and of the powers of the obliged man must be considered.

236. Principle. Absolute impotence excuses from every law; but moral impotence is wont to excuse from every positive law, but not from natural law.

The reason for the first part is that according to the well-worn adage "no one is held to the impossible." But in the Council of Trent³⁴ it is said in the words of St. Augustine: "God does not command impossibilities, but by commanding admonishes you both to do what you can, and to ask for what you cannot, and he helps that you may be able. His commands are not heavy, whose yoke is sweet and burden light."

The reason for the second part is that moral impotence renders the prescribed act so difficult that the greater part of men would never, or at least most rarely, perform such an act (which otherwise is not necessary from its own nature). Therefore if the legislator, foreseeing so many transgressions of the law, nevertheless urged it, now such a law would not be useful to the common good, but harmful; and therefore it would not be a true law. Wherefore it is most commonly said: "No positive law obliges with great inconvenience."^34a This indeed is valid not only of human law, but also of positive divine law. Hence, for example, a penitent is excused from the divine law of integrity in confession if there is grave external inconvenience (cf. below concerning the integrity of confession). A man is not held to the ecclesiastical law of fasting or of Sunday Mass if from this he would have to suffer grave damage. - Nevertheless by accident (chiefly because of an added natural law) sometimes positive law obliges even with very grave inconvenience, namely if 1. its violation would yield to hatred of religion or contempt of God. Thus it is not licit to eat meats on a forbidden day if a tyrant demands this in hatred of religion, as the example of Eleazar shows; 2. if otherwise great damage would arise to the common good. Hence a soldier must remain on watch, even if death threatens him from it; the human legislator can, when the common good requires it, prescribe heroic acts;³⁵ ecclesiastical invalidating laws, for example, concerning the diriment impediments of marriage, are wont to oblige even with great inconvenience.

Natural law, provided it is clearly known, always obliges and admits no excuse. The reason is that violation of natural law is intrinsically evil. But it is never licit to do something which is intrinsically evil. Therefore, if someone would even have to lose life unless he lied or fornicated, nevertheless he could not lie or fornicate. It must be noted, however, that natural law is not to be taken merely theoretically, but practically, that is, as here and now it presents itself with all the circumstances. For it can easily happen that the theoretical natural law in a particular case does not oblige because of conflict with another more powerful law; for example, natural law dictates that one must not steal; nevertheless in a particular case it is licit because of special circumstances to take another's things, as if someone is situated in extreme necessity, or if the leader of a war has permitted soldiers to take the spoils of enemies. Therefore in practice one must see whether the act clothed with all the circumstances is still against natural law or not. For facilitating a judgment of this kind, the rules given above concerning the indirect voluntary conduce greatly.³⁶

³⁴ Sess. 6, cap. 11.

^34a Cf. Cod. iur. can. c. 2205, § 2.

³⁵ Cf. above n. 184. Those things which Cajetan teaches concerning the obligation of human law, although danger of death is present, in Com. super I-II, q. 96, a. 4 and II-II, q. 125, a. 3, are to be understood with a grain of salt. Billuart rightly, clearly, and briefly treats (De leg. diss. 4, a. 6) the question: "Whether human law obliges with certain danger of life, or of another grave damage."

³⁶ Cf. above n. 52 sqq.

237. Scholion. On an exempting cause and an excusing cause. Authors are wont here to append the question whether it is sometimes licit voluntarily to posit causes producing physical or moral impotence of observing the law. First it is necessary to distinguish exempting causes (also called withdrawing causes) and excusing causes. An exempting cause is departure from the territory or from the dominion of the law. An excusing cause is nothing other than physical or moral impotence of observing the law.

1. Ordinarily it is licit freely to posit exempting causes. The reason is that no one is held (at least ordinarily) to remain under the jurisdiction of a human law. Thus, for example, it is licit to depart from a territory to avoid the particular laws of that territory.³⁷ In ancient times, indeed, in some matters, for example, in the celebration of marriage, it was not licit "in fraud of the law," that is, precisely to avoid the obligation of the law, to betake oneself into other regions, but today this ecclesiastical discipline has been much changed, so that almost always even he who has departed from the territory in fraud of the law is free from the obligation of the law.³⁸ Nevertheless some civil laws do not permit someone to posit an exempting cause. Thus, for example, civil law does not permit a young man who is now about to be enrolled in military service to depart from the fatherland.

2. As to excusing causes, diverse rules are wont to be brought forward by which it is discerned when it is licit voluntarily to cause physical or moral impotence of this kind. Some authors distinguish between causes directly and indirectly, proximately and remotely impeding the observance of the law. But all these things seem to be rather arbitrary. In this matter only the rules concerning the indirect voluntary seem to be applicable. For here a cause is posited, from which a twofold effect follows: one good, the other evil. The good effect is that which is intended; the evil effect is the impossibility of observing the law. This evil effect indeed cannot licitly be directly intended, but only permitted. Therefore it is licit to posit a hindering cause of this kind when the end is good and a proportionately grave reason is present. But what reason is proportionately grave must be judged a) from the gravity of the law to be transgressed and b) from the utility joined with this transgression. Thus, for example, some workman who must labor through the whole week in an unhealthy factory can sometimes on Sunday morning make an excursion into the woods to restore his strength, even if from this he cannot assist at Sunday Mass; on the contrary, for a rich man the same excursion with omission of Mass is not licit, because he does not need it in the same way, or he can make it on another day.

³⁷ Cf. above n. 194 concerning travelers.

³⁸ Cf. below concerning absolution of reserved cases III, 429; concerning the place of celebrating marriage III, 757.