Section V. Civil or Municipal Law

The civil authority has full power to make laws in order to the attainment of its own special end, which is the common temporal welfare of its subjects. If these laws are just, they cannot be ignored by the moral theologian, for very many practical questions will depend on them for their solution. When the classical authors published their folios on moral theology, they appealed for the most part to the jus commune, the common law of Christendom, which was the Roman civil law modified slightly by local Nowadays this cannot be done. enactments and customs. The unity of Christendom with its common, universally accepted stock of ideas and laws, no longer exists, and regard must be paid to municipal or local law. Especially in England and in America must this be done, for the system of law which is in force among us is distinct from the Roman civil law, and from the modern European systems which are largely based upon it.

In this section, then, we will consider the bearing of English law on questions of conscience, and try to lay down certain general principles which will guide us towards the solution of particular cases as they arise.

We saw above that the legislative authority in civil matters can bind the conscience under pain of sin by its laws, if it so choose, for God bids us obey lawful authority. It is clear, too, that if the civil authority transgresses the limits assigned to it, and makes laws which conflict with the law of God, or with the law of the Church in her own sphere, such civil ordinances have no binding force. Laws, then, which affect to dissolve the bond of marriage, which refuse to acknowledge rights of religious granted by the Church, and others of a similar nature, are no true laws at all, and need not be regarded, except in so far as is necessary to avoid greater evil.

With regard, however, to such laws as it is within the competence of the State to make, conscience obliges us to pay loyal obedience to those which urge and apply the law of nature. Near relatives are bound to support the indigent poor because it is their natural duty, and also because the State commands it; and, similarly, crime must be avoided because it is wrong, "and because the State forbids it. Where the law of nature is indeterminate and vague, but where the positive law has stepped in to define rights for the common good, conscience must also submit to the civil law. Unless we admit this, we shall have to say that in such matters there is no certain and definite rule for conscience to follow; rights and obligations will be left in uncertainty, to the serious disturbance of men’s consciences and the public inconvenience. Laws, therefore, which govern prescription, the rights of inventors and authors, the distribution of the property of intestates, the property rights of married women, the capacity of minors, and contracts, will have binding force in both the external and internal forum.¹

¹ D’Annibale, 1, n. 206.

Certain laws merely refuse an action to vindicate a claim or bar the remedy. Such laws do not annul or invalidate any natural right which may exist in the case; the law cannot produce an effect which was never intended by the legislator, and which is repudiated by those who administer the law. A debt, then, which is barred by statute still remains a debt, and must be paid; an unstamped document may suffice to prove an obligation in conscience, though it would not be admitted in a court of justice until the defect was made good; contracts seriously entered into and completed will bind the conscience, even though the law will not enforce them because they are not in writing, or because there is not the consideration which is required by law. Points of Church Law, 25. Codex juris canonici, passim. See Slater,

A very probable opinion of long standing in England maintains that merely positive laws are penal, and do not bind under sin except to submit to the penalty in case of violation, and if it be imposed. Of course, it is well that all subjects should loyally obey all the just laws of their country, and good citizens will make a point of doing so; but in moral theology we are concerned with the question of sin, and it is probable that one who violates a positive law of England does not commit sin thereby if he be prepared to submit to the penalty, if imposed. This is the teaching of Blackstone, and although other views concerning legal obligation have become fashionable since he wrote, his opinion would seem not to be materially affected thereby. According to Austin, the chance of incurring the evil imposed by the legislator on those who transgress his laws is the only possible obligation of law—a doctrine which would make all laws penal, and nothing else but penal. The idealist school does not accept Austin’s views, but its only conception of moral obligation is that it is self-imposed; it denies that moral obligation is or can be imposed by a legislator.¹ It is true that if the legislator wished to impose a strict and perfect obligation by positive law, the subject would be bound under sin to conform to it, but the English legislature cannot be said to do this, as the common opinion in the country, on one ground or another, is that a moral obligation under pain of sin is not imposed by positive law.

¹ 'T’. H. Green, Lectures on the Principles of Political Obligation,

The effect of voiding laws in English jurisprudence seems to be not to invalidate an act or a contract which is otherwise valid, but to empower the party concerned to annul it if he choose to take advantage of the law. Unless the party concerned move in the matter, the act struck at by a voiding law will remain valid. This seems to be the view which lawyers take of the effect of such laws; it is in keeping, too, with a very prevalent theological opinion concerning the nature of voiding laws in modern jurisprudence.¹

¹ Encyclopedia of the Laws of England, s.v. “Null and Void.”