Chapter III. The Matter of Law

It is the duty of the legislative authority to promote the common good by wise, just, and useful laws. It should apportion burdens according to the principles of distributive justice, so that they may not press unduly on the shoulders of particular classes and persons. Over-legislation should be avoided; something must be left to private initiative; individuals and families should be allowed as much freedom as is compatible with the public welfare. Even prohibitive legislation will be kept within the bounds of moderation in a well-ordered State; not all evils will be forbidden, but some even of the more serious breaches of the moral code will be tolerated by the State, lest by trying to force people to be good greater harm may ensue. What is conducive to the common weal will be the legislator’s guide in the framing of laws.¹

¹ St ‘Thomas, 1-2, q. 96, a. 3.

Human laws cannot be contrary to the divine law, from which they derive all their force and efficacy, so that a law which prescribes something morally wrong is no law at all, and cannot exert any binding force on the conscience. There is nothing to prevent human law prescribing or forbidding what is already of obligation or forbidden by the divine law. A parent is bound by natural, divine, and human law to bring up his children properly; theft is forbidden by human and divine law.

An obligation which is left indeterminate by the divine or natural law may be further determined by human law as to time, place, frequency, and other circumstances affecting the observance of it. And so the civil law determines at what age children attain their majority, and which near relatives are responsible for the support of the indigent poor; the Church, too, determines the limits of the impediment of consanguinity as affecting marriage, the times for the reception of the sacraments of Penance and Holy Communion, and many other obligations left indefinite by divine or natural law.

An act which in itself is indifferent may in certain circumstances become opposed to the public welfare, or on the contrary may conduce to it. The legislative authority may, for the public good and to further the end for which the society exists, prescribe or prohibit such acts according to circumstances. In itself it is indifferent on which side of the road a carriage is driven, and whether it passes another on the right or on the left; but where traffic is considerable it is necessary that these matters should be regulated by law or custom. 'To eat meat on Friday is in itself as lawful as to eat it on any other day, but the Church has forbidden it in order that her children may exercise themselves in the practice of temperance and mortification of the sensual appetite. When an indifferent act or one which already belongs to some special virtue is commanded by the legislator from a motive which belongs to some other virtue, the act commanded henceforth belongs to the virtue which furnished the motive, if the legislator so wills. And so, inasmuch as the Church prescribes fasting Communion out of reverence for the Blessed Sacrament, one who receives not fasting is guilty of irreverence and sacrilege, though, apart from the Church’s law, to receive Holy Communion not fasting would not be sinful. For just as an action may get a special moral quality from the end for which the agent performs it, so the motive of the legislator may give a distinct moral quality to an act which he commands. The same holds good of prohibitive laws.

Acts of heroic virtue which would be impossible for the body of the people cannot ordinarily be prescribed by law. A law must be morally possible of observance for the general body of the subjects. When, however, the public good requires acts of heroism, and especially when a state of life has been voluntarily assumed which demands heroism, acts of heroic virtue may then become matter of law. The soldier must obey orders at the risk of life, and the Church is justified in prescribing celibacy to all who freely choose to enter sacred orders. If anyone feels that he cannot observe the law, let him not volunteer for the service.

Merely internal acts which do not conduce to the common good of civil society, cannot be the subject-matter of civil law. The Church’s end is the spiritual welfare of her children, to which internal acts contribute much; and so, many theologians hold that the Church may prescribe merely internal acts. She certainly has the power of prescribing internal actions concomitantly, as it is said, when they form part of a whole human action. Therefore, in commanding her children to hear Mass on Sundays, she bids them have the necessary intention, without which a human act is impossible. The Church also has authority over internal acts when she determines the divine law about articles of faith, declaring that such a truth is to be believed, or that acts of faith, repentance, or charity are to be elicited at certain times. Moreover, in the internal forum of Penance the priest can impose internal acts of virtue as satisfaction for sins confessed. Religious, too, who have voluntarily by vow subjected themselves to their superiors, are bound to obey the rules and constitutions which prescribe times for meditation and prayer. All theologians are agreed on these points. But apart from these special cases, it is the more common teaching of theologians and canonists that the Church has no power to make laws about merely internal acts. For such acts are not cognizable in the external forum of the Church, and, since the legislative power is coextensive with the judicial, it would seem that she cannot make laws about them.¹ 2-2, q. 104, a. 5.

¹ Inn. III, c. 34, de Simonia; Trent, 24, c. 1, de Ref.; St Thomas.