Chapter V. On Penal Law

A penal law is that which does not oblige in conscience to doing or omitting something, except under a temporal penalty, that is, to accepting the penalty as just, after it has been inflicted.

I say. A simply penal law is not repugnant; but it would be repugnant if it were purely penal, that is, if it in no way obliged in conscience. The reason for the first is that for the essence of law it is sufficient that some obligation be imposed in conscience, whatever that may be. But the reason for the second is that otherwise that law would lack some essential element, namely the force of binding, and rather would have to be called counsel. Cf. St. Alphonsus, n. 145.

Question 1. Can it be said that, at the present day, all civil laws are penal?

Response. If it is a question of right, it is certain that any legislators whatever can so will; for law obtains force from their will. But as regards fact, it is generally admitted that all laws regarding taxes imposed on merchandise which is transported, and which are called customs duties, are penal; but concerning other laws there is not a little doubt. A few only, perhaps not improbably, contend that at the present day there is sufficient certainty concerning this will, because legislators seem to trust not indeed to consciences, but only to force and penalties. - Whatever the case may be, it is altogether better never to speak of this matter among the people, especially the more untaught, and to lead them gently to fulfilling all laws. - Cf. St. Alphonsus, n. 147. - Kenrick, tract. 6, chap. 3, n. 20. - Acta S. Sedis, vol. 7, pp. 219 and seq.

But concerning our laws it cannot be said universally that they are merely penal. For certainly, if the manner of acting of the legislators is considered, it is clear that they not only do not spurn but also consult the authority of God in framing laws: something which daily is to be seen in our legislative halls. The same men enact the laws as men who know that the greatest bond of unity and obedience is reverence owed to authority. Therefore, since the affirmative opinion among us rests upon no such presumption at all, it must altogether be said that the legislators themselves wish to issue laws in a manner suitable and necessary to the republic: but this manner, in very many matters, is to compel in conscience to acting according to the law: thus, for example, where the object of the law pertains directly to promoting the good morals of the republic and restraining offenses; or is held necessary for preserving its peace, for protecting the rights of the family and of individuals, for keeping agreements safe and sound, for public offices to be discharged sincerely; in these and similar cases laws in no way are to be held as merely penal, but as truly obliging under fault and penalty.

Question 2. Are there any laws of the Church simply penal?

Response. It is certain that the rules of many religious Orders are simply penal; but that it is in the power of the Church to establish laws of this kind, if she wishes, even with regard to the universality of the faithful, cannot be doubted. Nevertheless she rarely uses, indeed perhaps has never used, this power, because she for the most part does not enact laws except concerning things necessary, or at least of great moment, pertaining to the salvation of souls, in which it is more expedient that conscience be obliged than that penalty be inflicted. Besides, since in fact she lacks the means for coercing, her legislative power would be diminished. - Cf. Reuter, n. 126.

Note. - § 2. Not only those things which excuse from all imputability, but also those which excuse from grave imputability, likewise excuse from any penalty, whether latae or ferendae sententiae, even in the external forum, if the excuse for the external forum is established (Can. 2218, § 2).