§ 1. How Human Law Obliges

— The true causality of human law. Besides those things which natural law has either itself determined, or at least sanctions after they have been constituted by the voluntary assent of men, there are many other things which can in various ways be ordered to the common good, or which at least, if they are commended by manifest utility, because of the opposed utilities of private persons, will of themselves obtain no consensus except the one which human power has commanded. Therefore the Author and wise provider of nature has conferred upon public authority or the human Legislator the power of defining and urging these things. He, therefore, does not merely give place to some conditioned natural right, but by his will becomes the true cause, and indeed the principal cause, of the law whose scope, severity, and firmness are subject to his will. Yet the very force of efficaciously commanding or obliging in the Prince is present from divine Law, whether positive, when it is a question of the Church, or natural, when it is a question of civil Society. The communication of power through positive divine law was made by the words by which Christ, after recalling that all power had been given to Him, sent His apostles as the Father had sent Him, with the power of binding and loosing. But the communication through the law of nature is demonstrated in the divine will which, willing human society, does not allow the same to be destitute of necessary means.

Therefore, by authority communicated through divine law, human law is the truly principal cause of moral obligation.

— Connatural efficacy of law. He who establishes law or precepts on account of the common good does not urge a particular debt to himself, but efficaciously wills those things which are required by the common good. But the common good, since it coalesces from many elements, requires acts of many virtues, indeed of all virtues, those, for example, by which rights are observed and due services are rendered to parents and Superiors. Therefore, that his governance may be efficacious, the legislator can make those acts necessary according to themselves, or, if they were already due, confirm their necessity by a new title. He effects this when he establishes law, or when he commands from jurisdiction. And so a thing prescribed from jurisdiction takes on the necessity of the virtues to which it belongs, so that violation of the law is opposed to these various virtues. Cf. for example Cajetan, on 2, 2, q. 88 art. 5, where he excellently shows what difference there is between an obligation from law and one which is contracted from a vow.

Because the legislator can command below, yet not beyond, the capacity of the matter, two things must be weighed by us: what matter is capable of grave obligation; what is prudently thought to be the mind of the legislator.

— 1. Matter capable of grave obligation. The observance of positive law, as such, does not denote that immediate relation to the end of man which we detect in the observance of natural law.

Obligation comes because of an end distinct from that which is at once natural and essential; and therefore it draws its necessity not from the essence of the subject to which the law is prescribed, but from that end. Here, however, divine law must carefully be distinguished from human law.

For when it is a question of positive divine law by which we are raised to the supernatural order, the end of the law is man's very higher ultimate end, by which the merely natural end is, as it were, absorbed. Wherefore, when it is imputable, contrariety voluntarily opposed to the order of that higher end has greater gravity than contrariety which would have been repugnant to the merely natural order: for it contains aversion from a more excellent good, contempt of a greater benefit.

But the end of human law is always secondary. It denotes the complement of the primary order by which man is directed through divine law to his ultimate end. Moreover, that end can be discerned and estimated by human reason.

The same thing can be proposed in this other way. Because every other obligation is rooted and founded in the power of natural law, human law obliges conscience insofar as its observance or violation touches the essential order constituted by natural law. Thus, in the private relation between father and son, the violation of a paternal precept will be grave insofar as the father is at once gravely and reasonably unwilling that his precept be violated, and thus the order of piety toward him is truly disturbed. And in the public relation between legislator and subject, violation of law or precept will be thought grave insofar as it is notably opposed to the common good which is intended by the law, or insofar as the community, which acts through the legislator and whose good is intended, must be judged gravely and reasonably unwilling.

To form a prudent judgment concerning the gravity of the matter, two things, as we have already insinuated, must be considered: the object of the law or precept ¹, and the proportion of the prescribed means in order to that object. From the end and the intermediate precept, says Suarez, "having been viewed by prudent judgment, the gravity of the matter is to be gathered" (Suarez, Leg., l. 3, c. 25, n. 7; cf. Lehmkuhl, I, 240).

Concerning that prudent judgment, these things must further be noted. a) Considered separately from the end, the matter can be very slight, while, conjoined with the end, it is shown to be grave. Thus, under grave obligation, a very small amount of water is to be mixed with the wine by the sacrificing Priest, because that smallest quantity is necessary and suffices for the symbolic representation of the Incarnation in the rites of the Mass. b) Because of the diversity of the end, the same thing can be grave when it is prescribed by the Church, light when by civil power (Lehmkuhl, I, 240), or even imposed from the dominative power of parents. Thus, the omission of one Mass is grave if it is opposed to the precept of the Church, but not if it contradicts civil law or the command of parents. c) There are many acts which, considered separately, are not gravely harmful to the common good; but they would become such if they were done by many. It gravely concerns the commonwealth that that danger be averted. Wherefore the human legislator can forbid these things to individuals under grave obligation. Thus, that one citizen withdraw himself from military service or not pay taxes has of itself slight importance. That many withdraw themselves would gravely harm. These things, therefore, can be forbidden under grave obligation.

Presumption favors the legislator if he urges the precept under grave obligation (Suarez, Leg., l. 3, c. 25, n. 4).

¹ Object must be taken broadly, insofar as, besides matter, it comprises circumstances and especially the end of the law, especially the proximate or intrinsic end, through which the virtue to which the prescribed thing pertains is shown. Cf. what was said concerning moral specification.

— The mind of the legislator concerning obligation. That we may prudently solve the other question, namely when the legislator is judged to command according to the capacity of the matter, when to diminish the obligation or even to establish a merely penal law, ecclesiastical law must be wholly separated from civil law. It is already understood of itself that in a society which exists on account of a spiritual good and often cannot use external coercion, moral laws ought to be far more numerous than in a temporal society, which is accustomed to be physically armed. To this today is added the practical atheism of many public administrations. Wherefore:

1. Concerning ecclesiastical law these things must be held:

a) Unless there is a contrary sign, an ecclesiastical law prescribing or forbidding imposes an obligation of conscience, and one congruent with the matter;

A clause attenuating the obligation or even reducing the law to a penal one is customarily appended to modern constitutions of religious. The received opinion also of approved authors has attenuated the force of many rubrics, for example those which are to be observed outside Mass;

b) Signs of declared grave obligation are: alpha) Words which have great force: "we command, we interdict, in virtue of holy obedience, or by force of vow or oath, or we gravely mandate" ¹. The word "I command" is also adapted to light matter. beta) The persuasion of experts and the usage of the timorous, who estimate the matter in this way. gamma) Now, when it is a question of a universal law of the Church, the threat of a penalty either latae or even ferendae sententiae. For from c. 2218 § 2, we gather that the threat of a penalty is not made in the Code unless the Legislator has the matter of itself as grave and has willed to impose it as grave. For that canon declares immune from any penalty one who in the external forum has shaken off grave imputability from himself. Therefore, under this respect, the various divisions of penalties which were proposed before the Code can now be omitted.

2. Concerning civil law, controversies being omitted, these things seem able to be said prudently. The power of binding conscience is in no way lacking even to an ethnic or little-pious legislator. But more easily, because of the faculty of coercion, he can be content with an imposed penalty. And modern legislators, especially Parliaments, are accustomed to be little solicitous about guilt before God. Moreover, many subjects, even from among those who are reputed civilly honorable, utterly put aside this obligation of conscience; but it seems little consonant with equity that some should be pressed by a stronger burden of law than others. Again, however, the common good itself demands that certain laws be efficacious in conscience. Such are laws which more define the rights of private persons, for example the regulation of inheritance and the modes of acquiring goods; or which, in a matter where the legislator is competent, utterly extinguish certain obligations. Does not the common good require that the sentence of a judge be able of itself to be observed in conscience; that the same person of himself be owner before God and before law; that a "dualism" by which one answers otherwise in conscience and otherwise in the external forum be avoided in patrimonial questions? Moreover, law at the same time indicates what it is expedient or necessary to do for the common good. Wherefore circumstances can impose a moral necessity of doing what the law, even if of itself penal, has prescribed. Nor can an added penalty remove guilt which can be in an action from the object, from circumstances, from the end, and from the manner. Homicide remains morally evil, although it is punished by a most grave civil penalty: no one will doubt this. And attention must also be given to the declaration which can be contained even in civil law. Let us suppose that an edict is promulgated by public power by which certain acts of treason are noted and therefore punished with a most grave penalty. Can those acts, with attention to the most grave penalty of the external forum, be done without guilt of conscience? By no means. For besides the penal sanction, an edict of this sort contains an authentic declaration concerning the quality of certain acts. And treason itself is forbidden by the law of nature.

These things having been set down, these brief conclusions concerning the obligation of civil law can be proposed:

a) Today, according to a probable opinion, only those civil laws immediately oblige conscience which, because of the necessity of the common good, must have such force. This more often happens in laws which decree concerning rights than in those which directly prescribe or forbid something under penalty;

b) Nevertheless a law must be held as moral and not merely penal which by common estimation or by the judgment of several learned men is thought immediately to bind conscience. Cf. Lehmkuhl, I, 312. For custom is the best interpreter of laws; nor can it be denied that, after the immense war which will keep the name of "the great war," souls, from the perceived necessity of the common matter, incline more toward urging the obligation of conscience;

c) The gravity of an added penalty, especially of a fine, can sometimes, but not always, be an indication of a penal law, as if it should seem excessive for the guilty person at the same time to incur sin and such a penalty. This will especially happen when, as in merely fiscal laws, a pecuniary penalty formally compensates for the prestation owed;

d) More often than many think, circumstances bring it about that a law which is of itself penal must be observed in conscience. Thus, in time of war, it is by no means lawful for a duly enlisted soldier to desert the line of battle. Thus, when, to prevent or repel the scarcity of goods or their excessive price, citizens are ordered either to bring foodstuffs into common stock, or to be content with a moderated price, common necessity will easily impose these things in conscience;

e) What is said concerning the accidental obligation of religious rules from scandal, from subjective disorder of appetite, etc., must be transferred here also, proportion being preserved;

f) Yet we ought not urge civil laws, for example fiscal laws, beyond the way in which upright men are accustomed to observe them. But at the same time such observance must be inculcated upon all.

Moreover, the question will recur concerning various laws, and in the civil matter, it is especially moved concerning laws of taxes, hunting, fishing, and exterior police.

Finally, he who has violated a law from formal contempt of the legislator or of authority as such will have sinned gravely by that contempt itself: something else would have to be said if the thing prescribed is merely contemned because it is esteemed little or because it has not been rightly prescribed (Ballerini-Palmieri, Opus theol., I, tr. 3, De Legibus, n. 303).

¹ Thus Busembaum, De Legibus, dub. IV, apud St. Alphonsus or Ballerini-Palmieri.

— What can be prescribed. 1. From the very notion of law it is gathered that the human legislator can prescribe all and only that which it is expedient to prescribe for the common good of the society over which he is placed. And matter reserved to the ordering of the power which rules a higher society must be excepted, such as pontifical authority is with respect to episcopal or diocesan authority, and ecclesiastical power toward civil authority.

2. Merely internal acts are excluded. For human law, since it is a common precept, affects individuals insofar as they are part of a visible society and therefore communicate socially with one another. Wherefore that power is necessarily of the external forum. Legislative power for the internal forum cannot be conceived unless as vicarious of God and to be exercised in the name of God: but no trace of such power is detected either directly from revelation or indirectly from the usage of the Church ¹. But internal acts, that is, acts which are completed in internal powers, do not pertain to social communication: through them we do not communicate with others. Therefore, whether it is a question of civil society or even of the Church, interior acts directly and according to themselves cannot be the object of human law. Thus St. Thomas, who applies this to any precept whatsoever of a Superior, using this reason, that man can neither bear judgment concerning another's internal acts nor efficaciously exact penalties ². And indeed, legislative, judicial, and coercive power are parts of one integral jurisdictional power, which therefore of itself is contained by the same limits.

Suarez, Leg., l. 4, c. 12-13; Lugo, De Fide, d. 23, n. 6, 10; St. Alphonsus, l. 7, n. 34; d'Annibale, I, 200, also hold this. Yet there are not lacking today those who think that the power of prescribing internal acts must be conceded to the Church. Thus Ballerini-Palmieri, Op. th., I, n. 390 ff.; Bouquillon, n. 110, whom Lehmkuhl, I, 221-224, favors.

Nevertheless:

a) Hidden acts are not excluded from human jurisdiction: they are hidden by accident;

b) By human power mixed acts can be commanded, which are composed of an exterior act and an interior act required either that the act be human, or that the act be juridically valid, or that it have the prescribed species. For unless you wish to erect a futile human power, it must be able to reach those things which integrate the exterior act. Thus he who is ordered to take an oath or administer a sacrament must have the intention of swearing or administering. He who is obligated to an act of divine worship, for example to reciting the breviary, violates the human law itself if he has not conceived the intention essential to prayer. The worthy reception of the sacraments can also be prescribed by the Church;

c) An act which is capable of both modes, interior and exterior, falls under human precept by reason of the exterior mode which can be enjoined. Yet of itself it will be enough that the subject by an interior act do what he is ordered to perform. Thus a religious Superior, the Pope, can prescribe the application of Mass, since they can exact that the application be conceived by voice or in writing. But even an application made internally satisfies the law of itself;

d) The Church can attach a certain favor, for example an indulgence, to the condition of an interior act. Yet she is accustomed to exact some exterior act. Cf. concerning indulgences;

e) When a dogma is defined or an infallible moral declaration is promulgated, divine law itself imposes interior assent. But excommunication for merely internal heresy is not incurred. Cf. Lugo, De Fide, d. 23, n. 6, 10;

f) For the good of individuals, the Church has been endowed with a certain judicial and dispensative power of the internal forum, to be exercised in the name of God. While she uses that power, by absolution and dispensation, she absolves or remits even internal sins and internal vows. And in the same forum, where the cause is conducted between God and man, internal acts also can be prescribed.

Furthermore - this is the practical force of that opinion - what the Church cannot prescribe, she cannot fortify with a censure latae sententiae, or, if perhaps it becomes known, sanction by a judicial sentence.

Therefore those differ less from the doctrine handed down above who, with the approved authorities cited by Ballerini-Palmieri, I, 390 ff., distinguish directive force from coercive force, and attribute to ecclesiastical power only directive force over merely internal acts. Yet they use a little-effective argumentation. When they appeal to the end of ecclesiastical power, which is the spiritual good of souls, it is easily answered that, if it is a question of social power or of the external forum, the end is the spiritual good of souls to be procured through an apt social cooperation, but not through the direction of individual persons: this pertains to the internal forum, where human power is not legislative. Nor are the words of Christ to be pressed: "Whatever thou shalt bind," etc. For these must be accommodated to the nature of the thing, to the mission of the Church, and to the traditional sense; otherwise a direct power in temporal matters also would have to be acknowledged to the Church.

¹ Suarez, Leg., l. 4, c. 12, n. 10.

² 1, 2, q. 91 art. 4; q. 96 art. 5.

— In canon 10 this rule is laid down: "Laws regard future things, not past things, unless provision is made in them concerning past things by name."

But a few things must be added concerning the application of the rule and concerning the exceptions by which it is circumscribed.

1. Concerning the application of the rule:

a) The application is clear when it is a question of a law merely prescribing or prohibiting. Acts done before were licit, and cannot constitute anyone guilty;

b) With respect to a penal law, the act of itself must be estimated by the law which was then in force. But derogation from this rule in favor of the accused is customary. Cf. immediately below;

c) The application is more difficult to a law which invalidates acts, makes persons incapable, or exacts conditions for the valid or licit celebration of an act. How is an acquired right to be defined, from which, in these cases, there must be no derogation? The discord of opinions concerning this matter is astonishing. From the principle handed down above, n. 173, acts remain valid if the conditions of capacity and form which were required when the act was done have been fulfilled. Yet concerning a revocable and easily repeatable act, such as a testament, the matter is controverted, so that one must act cautiously in this matter.

As regards the legal effects of an act, the effects produced up to the new law subsist; that is plain. But from the moment of the new law, the efficacy of a valid act will of itself have to be estimated from the new law. Suppose a law which changes the portion concerning which a testator is permitted to dispose freely, or introduces a new cause why agreements can be rescinded. That law will also rule prior agreements and testaments concerning an inheritance not yet devolved when the law is promulgated. The status of persons (insofar as it is defined by age and origin) is of itself ruled by the new law. Wherefore an adolescent who was fifteen years old when the Code began to be in force previously could validly take a wife. But from the Code being in force he will not be able to do this until he has completed the sixteenth year of age. Yet the marriage which, as is plain, he contracted before the Code when fourteen years old subsists. A minor does not retain under the new law (c. 93, § 2) a domicile which he had acquired under the former law.

Concerning the effects of agreements, this particular thing must be observed, that the parties, through the legitimate way of agreements, acquired for themselves rights which of themselves must remain untouched under the new law. Wherefore, even under the new law, the effects of agreements must be estimated from the law under which they were made.

2. Concerning the exceptions to the rule:

a) The procedural order (or order of judging) which is established by a new law is applied to cases born before the new law. For the new mode is presumed to be more perfect, and therefore is thought to be such that its use of itself is more useful to justice and to the litigating parties ¹;

b) Because the accused is to be favored, can. 2219, § 2 establishes this rule: "Although a later penal law obrogates a prior one, nevertheless, if the delict, when the later law was made, had already been committed, the law more favorable to the accused must be applied; but if the later law removes the law or only the penalty, this ceases at once, unless it is a question of censures already contracted."

N.B. Many things in this matter remain doubtful and controverted, concerning which cf. juridical treatises. We add only this one thing: since a later law is presumed to be more perfect than the preceding one, in doubt one should rather answer in favor of it.

¹ Yet a moderation is tolerated, for example, in causes of beatification by way of non-cult, which were begun before the more severe new law.