Civil Law and Conscience

Some time ago a paragraph appeared in the daily papers describing how a conscientious superintendent of police had taken a summons out against himself, and had been fined five shillings for riding his bicycle without a light. A clergyman, he said, had spoken to him on the subject, and this had brought the offense home to him. Punch recorded the incident, and took the opportunity to show what such views about the obligation of the law might be expected to lead to, if they became general. In one corner of the page, master Bob, with a woe-begone expression, was presenting a birch-rod to his mother, and confessing that he had been at the jam again. Below, a cabby was taking out a summons against himself for charging a fare sixpence too much. Opposite was a learned judge closing proceedings in his court by fining himself £20 and costs for betting in a place within the meaning of the Act; and in the middle, stood an automatic conscience clearer, armed with iron fists, worked on the penny-in-the-slot principle, for inflicting summary punishment on delinquents for minor offenses.

No doubt the honest superintendent’s conscience, or that of his clergyman, was somewhat strict, for whatever may be the obligation of the law, it would seem to be certain that it does not bind delinquents to execute its penalties on themselves. But how does civil law bind the conscience? What obligation, if any, does English civil law impose on the conscience? It may be worth while to examine this question from the point of view of Moral Theology.

There can be no doubt that the civil lawgiver can bind the consciences of his subjects by his laws. This is the plain teaching of St. Paul in Romans xiii. 1-5:

Let every soul be subject to higher powers: for there is no power but from God: and those that are, are ordained of God. Therefore he that resisteth the power, resisteth the ordinance of God. And they that resist, purchase to themselves damnation. For princes are not a terror to the good work, but to the evil. Wilt thou then not be afraid of the power? Do that which is good: and thou shalt have praise from the same. For he is God’s minister to thee, for good. But if thou do that which is evil, fear: for he beareth not the sword in vain. For he is God’s minister: an avenger to execute wrath upon him that doth evil. Wherefore be subject of necessity, not only for wrath, but also for conscience’ sake.

According to Christian teaching, then, the civil ruler can bind the consciences of his subjects, so that they offend God if they disobey a strict precept imposed by him. His power to do this does not depend on his having correct theological views, for St. Paul prescribes obedience to the Roman emperors, who knew nothing at that time about Christianity.

But though we must concede that the civil ruler has the power to bind the consciences of his subjects under sin, it does not follow that all his laws do in fact bind under sin. For one who has authority to command may use all his power or not, as circumstances require, and as he judges fit. It is often better for a father to signify a desire that a son should do what he wants, rather than to impose on him a rigorous command. What is wanted will be gained quite as surely, and more sweetly, in the former manner than in the latter. It is not desirable that a father should always use his full authority when he commands his children. And in like manner, any superior whose office it is to direct the actions of his subjects to the common good, and to whom God grants the authority necessary for this purpose, will often gain his end quite as surely, and more sweetly, if he refrains from using his full power on every occasion. And as the end in view is the chief thing to be considered, if the end can be gained by sweet and easy means, why should not these be preferred? A superior can indeed impose a precept which will bind the conscience under sin, but he need not necessarily do so, if the end can be obtained by simply expressing a desire; in other words, as a superior can impose a command or refrain from doing so, as he judges best, so the obligation which the superior’s command imposes on his subjects may be greater or less, as he judges best. As the existence of the obligation depends on his will, so the quality also of the obligation depends on his will. This of course does not imply that the superior’s will is the only source of obligation, or that it can change the nature of things. If an obligation not to commit murder has already been imposed by a

higher authority, a subordinate authority cannot impose a binding precept to commit murder. A lower superior can only use the power that has been granted him. He effects nothing if he attempts to transgress the limits of his authority, whether those limits be set by a higher superior from whom he derives his authority, or by the nature of things. So that a human lawgiver cannot impose just what laws he pleases. If he attempts to command what God forbids, his command cannot bind the conscience; he may indeed, by using his superior might, punish those who refuse to obey, but he cannot make their disobedience wrong. It will be a right action approved by God and good men. “We ought to obey God rather than men.”

However, if the common good should require it, a human lawgiver may prohibit what God prohibits, and command what God commands, and enforce these laws by human sanctions. Thus He forbids theft, and commands parents to support their children. And such laws certainly bind the conscience, so that a subject who violates them, not only sins against the law of God, but also against the law of his country. He makes himself liable to punishment both from God and men.

All, I think, are agreed upon this, that human laws which are declaratory of the divine or natural laws bind the consciences of subjects. So that civil laws forbidding murder, theft, and other crimes; selling poisons without due precautions, selling beer to those who have already had too much, disseminating indecent literature, bind the conscience under sin.

And similarly positive precepts which command what is already obligatory by the Divine or natural law also bind the conscience under sin. So that a father is bound to support his wife and children according to his ability, not only because the Divine and natural law commands it, but also because the municipal law enforces it.

The same, too, as all I think are agreed, must be said of those civil laws which determine the natural law, where of itself it is indeterminate. For the natural law is concerned rather with general precepts than with particular circumstances and cases. Often it suggests and persuades rather than prescribes. It indicates what is desirable rather than imposes a definite obligation. In such cases it is the province of the positive law to step in and, for the common good, determine what was before indeterminate, that there may be a definite rule of action, that subjects may not be left in perilous uncertainty about their rights and duties, so that there may not be continual lawsuits. When it has done so, the rule laid down will be a guide, not only for the external conduct, but also for the conscience. And so the Prescription Act, the Married Women’s Property Act, Infants’ Relief Act, and other laws of the like nature form rules of conscience as well as of law.

The law of nature suggests that if a man has been in peaceful possession of property for a long time, and in good faith, thinking it to be his own, he should not be disturbed, even though it afterwards appears that another had a better title. The natural law does not indeed of itself in such a case transfer the ownership of the property, it only suggests that it would be for the common good, that it would make owners of property more watchful of their rights, that it would lessen the number of troublesome lawsuits, if long and peaceable possession, with good faith, gave a title to property. And so the positive law steps in, and enacts that prescription shall be a good title to property. Positive law determines and defines the conditions of prescription, and its provisions hold good for the conscience, as well as for the external forum. And the same is true of other positive laws, which for the common good determine and define the law of nature. In like manner the sentence of the judge, in a doubtful case of conflicting rights, provides a safe rule for conscience, and obliges the contending parties.

In all these cases the obligation does not arise purely and simply from the positive law, there is a root of obligation already existing which the positive law declares or determines. But such cases are far from exhausting the whole subject-matter of positive law. There remains a very large field of more or less indifferent actions, where man’s liberty is restrained neither by the Divine nor by the natural law. As far as God’s law or the law of nature is concerned, very many actions are neither prescribed nor prohibited ; they may be done or left undone, done in this way or in that, and whichever course be chosen a man’s conscience will be free, as far as the Divine or natural law is concerned. And yet it is often well that the law should interfere, with prudence indeed and moderation, in matters that are of themselves indifferent. Thus with regard to work in factories, the conditions of labor might, absolutely speaking, be left to be arranged by the humanity of the employers, or by mutual agreement between employers and employed; but experience has shown that it is desirable for the civil authority to step in, and so we have the Factory Acts. They forbid working overtime, or under a certain age, prescribe certain precautions to be taken for the sake of health, they limit in many ways the natural liberty of masters and men.

We have also positive laws relating to the regulation of mines, enactments concerning the raising of revenue, Elementary Education Acts, laws forbidding certain contracts, as for example, in restraint of trade, and so forth. How do such laws as these affect the conscience? Is it a sin to violate them, just as it is a sin to violate those which declare or determine the Divine or natural law? And here of course we suppose that there is no obligation in conscience arising from some other source than the positive law. For our purpose we eliminate other possible sources of obligation, and merely consider the positive law. Thus, it may be, that the owner of a coal-mine knows that there is fire-damp in his mine, and that it is exceedingly dangerous to work in it. Then, of course, both he and the men are bound to take such pre cautions as will enable the work to be carried on with comparative safety. The hours of labor, too, are restricted in a sense by the natural law, which prescribes a reasonable care of life and health. But for the purpose of our inquiry, we disregard such cases as these; we suppose cases in which there is no obligation arising from the natural law, and we wish to ascertain what, if any, obligation is imposed by positive law. If a factory-master, knowing that his hands did not object, were to work half an hour overtime, when there is a brisk demand for his goods, and that in spite of, and in the teeth of the law, would he commit a sin, or what obligation would he violate?

The lawgiver has the power to bind the conscience even in such indifferent matters as these, as all admit and as we have already seen. But, as we have seen, he need not always use his power to the full extent. He may indeed intend to bind his subjects to obey his laws even in indifferent matters under pain of sin, and assign a sanction or penalty to be inflicted on those who break the law. Or, without intending to impose a strict obligation under pain of sin, he may be satisfied that he can secure substantial obedience to his laws, by merely assigning a penalty to be endured for violations of the law. The former are called by divines moral laws, the latter are called penal laws. A moral law imposes an obligation under sin in conscience, and usually assigns a penalty for breaches of it; a penal law only imposes the obligation of submitting to the penalty when lawfully exacted. A breach of a moral law is a sin, a breach of a penal law is not a sin, if one be prepared to pay the penalty if levied. The question as to whether positive municipal laws are moral laws or penal laws is a celebrated one.

Martin Azpilcueta, the celebrated Doctor of Navarre, and on that account usually styled Navarrus, held, in the sixteenth century, that the positive laws of secular princes did not bind the conscience. “ Ancient custom,” he says, “seems to have interpreted in this sense secular laws especially, concerning whose transgression it has not been usual to disturb the consciences of learned or unlearned, penitents or confessors, or men of any condition, order, or sex, except when the Divine, natural, revealed, or canon law was also at the same time broken; and this because infidel lawgivers care nothing about eternal punishment, and there are very few Christian secular princes who say that it is their intention in making laws, while imposing a temporal penalty, to bind also to eternal punishment, when the Divine or natural law does not so bind.”¹

¹ Manuale, c. 23, n. 55.

Although a few other theologians held the same view, the common opinion was against it. In England, Anglican divines, as was to be expected, were strongly on the side of the stricter opinion. Jeremy Taylor admits indeed that “ this question is so dubious and unresolved, that Cajetan and Henricus de Gandavo did suppose it fit to be determined by the Pope in cathedra, as thinking it otherwise to be indeterminable.”² However, he not only maintains that positive civil laws bind under sin, but that to say that a law does not bind under sin is a contradiction. He does not seem to have grasped the idea of a penal law in the theological sense. Sanderson, in his able book, De obligatione conscientiae, explains at considerable length what is meant by penal laws; but while admitting that they may exist, he does not say that they actually do exist in England, and he maintains the general proposition that positive municipal laws bind the conscience under sin. This continued to be the common opinion in England down to our own day, in spite of the great weight of Sir William Blackstone’s authority in favor of the milder view. This eminent lawyer gives his opinion on the question so clearly and well, that I am tempted to give it in his own words:

² Ductor dubit, Bk. III, c. 1, r. 1, n. 2.

It is true, it hath been holden, and very justly, by the principal of our ethical writers, that human laws are binding upon men’s consciences. But if that were the only or most forcible obligation, the good only would regard the laws, and the bad would set them at defiance. And, true as this principle is, it must still be understood with some restriction. It holds, I apprehend, as to rights; and that when the law has determined the field to belong to Titius, it is matter of conscience no longer to withhold or to invade it. So also in regard to natural duties, and such offenses as are mala in se: here we are bound in conscience, because we are bound by superior laws, before those human laws were in being, to perform the one, and abstain from the other. But in relation to those laws which enjoin only positive duties, and forbid only such things as are not mala in se, but mala prohibita merely, without any intermixture of moral guilt, annexing a penalty to non-compliance, here I apprehend conscience is no farther concerned, than by directing a submission to the penalty, in case of our breach of those laws: for otherwise the multitude of penal laws in a state would not only be looked upon as an impolitic, but would also be a very wicked thing; if every such law were a snare for the conscience of the subject. But in these cases the alternative is offered to every man; ‘either abstain from this, or submit to such a penalty;’’ and his conscience will be clear, whichever side of the alternative he thinks proper to embrace. Thus, by the statutes for preserving game, a penalty is denounced against every unqualified person that kills a hare, and against every person who possesses a partridge in August. And so, too, by other statutes, pecuniary penalties are inflicted for exercising trades without serving an apprenticeship thereto, for not burying the dead in woolen, for not performing the statute-work on the public roads, and for innumerable other positive misdemeanors. Now these prohibitory laws do not make the transgression a moral offense, or sin: the only obligation in conscience is to submit to the penalty, if levied. It must however be observed, that we are here speaking of laws that are simply and purely penal, where the thing forbidden or enjoined is wholly a matter of indifference, and where the penalty inflicted is an adequate compensation for the civil inconvenience supposed to arise from the offense. But, where disobedience to the law involves in it also any degree of public mischief or private injury, there it falls within our former distinction, and is also an offense against conscience.³

³ Commentaries on the Laws of England, i., p. 57.

It will not be necessary to defend this clear exposition of a very probable opinion concerning the obligation of English positive law, from the not always very intelligent criticism of Blackstone’s commentators. Since his time a notable change of view has taken place in the English legal world concerning the nature and obligation of positive law. The school of thought represented by Hobbes, Locke, Bentham, and Austin, seems to have become predominant, and to have succeeded in a large measure in ousting the more orthodox views of Blackstone. And as the obligation of positive law depends rather on him who enforces it, than on the original lawgiver, we will briefly examine the Austinian conception of law, and see how it affects the conscience. Austin’s theory of law and of the obligation which it imposes may be gathered from the following extracts from his Lectures on Jurisprudence:

Every law or rule is a command. And since the term command is the key to the sciences of jurisprudence and morals, its meaning should be analyzed with precision. . . . If you express or intimate a wish that I shall do or forbear from some act, and if you will visit me with an evil in case I comply not with your wish, the expression or intimation of your wish is a command. A command is distinguished from other significations of desire, not by the style in which the desire is signified, but by the power and the purpose of the party commanding to inflict an evil or pain in case the desire be disregarded. If you cannot or will not harm me in case I comply not with your wish, the expression of your wish is not a command, although you utter your wish in imperative phrase. If you are able and willing to harm me in case I comply not with your wish, the expression of your wish amounts to a command, although you are prompted by a spirit of courtesy to utter it in the shape of a request. . . .

A command, then, is a signification of desire. But a command is distinguished from other significations of desire by this peculiarity: that the party to whom it is directed is liable to evil from the other, in case he comply not with the desire.

Being liable to evil from you if I comply not with a wish which you signify, I am bound or obliged by your command, or I lie under a duty to obey it. If, in spite of that evil in prospect, I comply not with the wish which you signify, I am said to disobey your command, or to violate the duty which it imposes.

Command and duty are, therefore, correlative terms: the meaning denoted by each being implied or supposed by the other. . . . Concisely expressed, the meaning of the correlative expressions is this. He who will inflict an evil in case his desire be disregarded, utters a command by expressing or intimating his desire. He who is liable to the evil in case he disregard the desire, is bound or obliged by the command.

The evil which will probably be incurred in case a command be disobeyed or (to use an equivalent expression) in case a duty be broken, is frequently called a sanction, or an enforcement of obedience. ...In short, I am determined or inclined to comply with the wish of another, by the fear of disadvantage or evil. I am also determined or inclined to comply with the wish of another, by the hope of advantage or good. But it is only by the chance of incurring evil, that I am bound or obliged to compliance. It is only by conditional evil, that duties are sanctioned or enforced. It is the power and the purpose of inflicting eventual evil, and not the power and the purpose of imparting eventual good, which gives to the expression of a wish the name of a command.‘

Such are Austin’s views on the nature of law, duty, and obligation. They are views which are now commonly held in English legal circles. They are the views which form the basis of the science of jurisprudence as it is now taught at our national universities, explained and enforced in the leading encyclopædias and law books. They are, we believe, utterly false, and in the end subversive of peace and order. As long indeed as the majority in a nation hold the true principles of authority, right and justice, there is every probability that the nation’s laws will be conformed to those principles; but if socialism gains over the majority, then there appears no reason why, acting on these principles, the law will not become socialistic, why it will not impose an obligation on those who have, to transfer their belongings to those who have not, and if they do not obey, the law will have its sanctions to compel them. International politics teach us what to expect in domestic affairs. The possessions of the weaker nations are being divided among the stronger, and, politicians tell us, there is sure to be fighting over the spoil. It is:

4 Lectures on Jurisprudence, Vol. I., p. 90.

The good old rule, the simple plan That they should take who have the power And they should keep who can.

The whole civilized world has recently been shocked by the application of such principles on a large scale.

If one should be so benighted as to use the old argument that unjust laws are against the law of God, and have no validity, he has already been impatiently and indignantly answered by Austin:

Now, to say that human laws which conflict with the Divine law are not binding, that is to say, are not laws, is to talk stark nonsense. The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals. Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death ; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God, who has commanded that human lawgivers shall not prohibit acts which have no evil consequences, the Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have impugned the validity. An exception, demurrer, or plea founded on the law of God was never heard in a Court of Justice, from the creation of the world down to the present moment.

But this abuse of language is not merely puerile, it is mischievous. When it is said that a law ought to be disobeyed, what is meant is that we are urged to disobey it by motives more cogent and compulsory than those by which it is itself sanctioned. If the laws of God are certain, the motives which they hold out to disobey any human command which is at variance with them, are paramount to all others. But the laws of God are not always certain. All divines, at least all reasonable divines, admit that no scheme of duties perfectly complete and unambiguous was ever imparted to us by revelation. As an index to the Divine will, utility is obviously insufficient. What appears pernicious to one person may appear beneficial to another. And as for the moral sense, innate practical principles, conscience, they are merely convenient cloaks for ignorance or sinister interest; they mean either that I hate the law to which I object and cannot tell why, or that I hate the law, and that the cause of my hatred is one which I find it incommodious to avow. If I say openly, I hate the law, ergo, it is not binding and ought to be disobeyed, no one will listen to me; but by calling my hate, my conscience or my moral sense, I urge the same argument in another and a more plausible form: I seem to assign a reason for my dislike, when in truth I have only given it a sounding and specious name.⁵

⁵ Lectures on Jurisprudence, I., p. 221.

One wonders what Austin would have said to the officers of a socialistic government which had just passed a law abolishing private property, when they should come to him to enforce the law, by requiring him to give up the fruits of his labor and thrift. But as a rule ideas work themselves out too slowly to permit of us seeing the spectacle of the real author of anarchy and revolution tasting the fruits of his own principles.

However, we are not concerned with the refutation of Austin’s views on jurisprudence. We wish to see how they bear on civil law and conscience. For if they are the views which prevail now in England in legal circles, we may infer that the obligation which those who make and enforce the laws wish to impose upon us, is the obligation of positive law as Austin understood it. But the only obligation of positive law according to Austin, is the chance of incurring the evil assigned by the law as a penalty for the breach of it. “It is only by. the chance of incurring evil, that I am bound or obliged to compliance. It is only by conditional evil, that duties are sanctioned or enforced.” “Being liable to evil from you if I comply not with a wish which you signify, I am bound or obliged by your command, or I lie under a duty to obey it.”

It is clear that according to these views positive law as such imposes on the conscience no obligation under sin; indeed in Austin’s view to say that positive law as such imposes no moral obligation, is merely to enunciate a truism. In other words, positive law, according to the intention of the majority of those who make and enforce it, commands a thing to be done or to be forborne only under pain of submitting to the penalty enjoined in case of disobedience. So that we may safely maintain with Blackstone that British positive laws are not moral laws, but purely penal laws in the theological sense.

Idealism has its representatives, it is true, among English philosophers. According to this school the only possible source of moral obligation is from within. As one of the chief of its writers, the late Professor T. H. Green says in his book on the Principles of Political Obligation: “ Morality consists in the disinterested performance of self-imposed duties ” (p. 40). And in another place —“ Morality and political subjection have a common source. . . . That common source is the rational recognition by certain human beings of a common well-being which is their well-being and which they conceive as their well-being whether at any moment any of them is inclined to it or no, and the embodiment of that recognition in rules by which the inclinations of the individuals are restrained, and a corresponding freedom of action for the attainment of well-being on the whole is secured ” (p. 124).

It may be doubted whether this school of writers has much influence on English public or private life. In any case it is clear that there can be no question of sin in the violation of self-imposed rules of conduct.