§ 3. On An Impediment That Has Arisen

On account of various impediments which stand in the way of the execution of law, the bond of obligation is not rarely relaxed for the subjects themselves. For law must be possible and human. But we distinguish three kinds of impediments: ignorance, impotence, inconvenience or difficulty.

— I. Invincible ignorance takes away every sin of violated law; vincible ignorance does not do likewise. Yet the legislator can temper his law in such a way that those themselves who are vincibly ignorant are excused; and he can also, on account of the common good, extend certain effects of the law to the ignorant: for example, declare null acts done in the best faith against an unknown invalidating law.

— II. Impotence, even that to which you have given cause with sin, certainly excuses from observing the law: No one can be obliged to the impossible ¹. Suppose someone who has dissipated goods without which he cannot satisfy his creditors. He will indeed have to destroy the sin, so that he may obtain pardon; but, while the impotence lasts, he will be excused from paying the debt.

¹ Reg. 6 of Law in VI.

— III. What concerning inconvenience? A negative law of natural right being set aside, a certain moral impotence is generally judged to be present if, in order to satisfy the law, a grave inconvenience would have to be sustained which is joined accidentally with its observance. The reason is divine benignity, if there is question of divine law; but if there is question of human law, this of itself cannot command things too difficult, for that would be adverse to the common good.

But the grave inconvenience which excuses must appear even when attention is given to the reason of the common good which founds the law. Therefore in individual laws this comparison must prudently be made between the gravity of the inconvenience and the public utility or necessity of the observed law. Generally a graver excuse is required for infringing a negative law than a positive one.

But an inconvenience is required which is accidentally joined with the observance of the law; for an inconvenience joined of itself with the law, from the clear will of the legislator, must be borne. Think of the inconvenience of making an integral confession.

Moreover, an inconvenience must be excluded which was tacitly accepted together with an office. Thus a parish priest or parochial vicar cannot allege the inconveniences of celebrating Mass later or of mixing it with sermons for not observing, before Mass, the law of the eucharistic fast.

— You ask whether or not law obliges with danger to life?

The response must be drawn from the necessity of the common good or of a connected negative precept of natural right.

If the observance even of a human law is of interest for preserving the common good or for averting a common evil which is of more worth than one's own life, then that law obliges with danger to life: as if, in war, a leader commands a soldier not to depart from his station, or if souls would perish unless a pastor helped the sick laboring under plague.

A law, even human, will also oblige with danger to life when its violation is demanded in hatred of the faith or contempt of religion. Cf. c. 2205 § 3.

These cases being excluded, no human law of itself obliges with danger to life or a similar inconvenience. As to divine positive laws, this can prudently be transferred, attention being given to the gravity and intimation of the obligation. Thus the integrity of confession could on that account be neglected, but not every profession of Christian faith.

— On fear. Fear itself is reduced to inconvenience. Fear always diminishes malice; it often removes it, when the observance of the law thereby becomes too inconvenient. Hence we have the above-mentioned cc. 2205, 2218. Cf. n. 82.

Yet if the common good requires that a penalty be urged notwithstanding grave fear, the penalty will not be avoided because of fear. Thus before the Code they judged that even he was liable to censure who from grave fear had accepted a duel. And since that censure is confirmed by the new law, it must now be interpreted in the same way, from c. 6, 2°.

— Voluntary placing of an impediment. You ask whether or not it is lawful voluntarily to place an impeding cause?

A general answer cannot be given. Of itself, indeed, the law requires that the subject procure its observance and therefore make himself capable of observing the law, much less create an impediment. But that care is not to be urged in such a way that the law becomes more difficult; and the impeding cause can be so good that the legislator is judged reasonably to prefer this good to the observance of his law. Wherefore the various cases must be prudently estimated.

But these things seem to have to be weighed:

1. The force and rigor of the precept, from the matter and common interpretation. Thus the law of fasting is urged more benignly today than the law of the breviary; the obligation of justice is graver than that of fidelity, obedience, and religion itself, when there is question not of a natural precept but of positive right; hence you must do more lest you be prohibited from reasonably executing your office of teacher or servant than from hearing Mass or observing a fast.

2. The extension of the impediment itself. A cause of charity on account of which it is lawful once or twice to omit the breviary, or Mass, will not permit you never to recite the hours or hear Mass.

3. The necessity or utility of the impediment. Labor undertaken for honest recreation will not excuse from fasting as labor by which you support a family, or cultivate science, will.

4. The distance of the precept itself. The nearer is the hour at which the precept urges, the greater cause is required for placing an impediment; while you are dispensed from attention to remote precepts, lest too grave an obligation fall upon you. Wherefore, if the time of obligation is not yet near, no special cause is required that you place an impediment.

Hence: "Precepts or laws whose obligation frequently recurs, such as fasting, abstinence, assistance at the sacrifice of the Mass, then only prohibit an impediment from being placed indirectly without a just cause, when the day of obligation is already almost at hand, at most on the preceding day in the afternoon. Wherefore one who on Friday, indeed even on Saturday morning, undertakes a journey, foreseeing that on Sunday he cannot be present at Mass, indeed is not to be praised if he does not have a special cause for the journey; nevertheless he is not guilty of violation of the law of hearing Mass. But if Sunday is near, especially toward Saturday night, or if Sunday has already begun, it is lawful for no one without a just cause, and the nearer the time is at hand, the graver also the cause must be, to cast himself into such impossibility ... Almost the same is said of him to whom intemperance is a cause why afterwards he cannot fast or hear Mass" (Lehmkuhl, 1, 252).

On the contrary, for the precept of paschal communion it will not be lawful to place an impediment even some days before the time of obligation urges, unless a sufficiently grave cause has been present; and graver indeed if you foresee the omission not only of paschal communion but also of annual communion.

5. The relation between the impediment and the matter commanded. The more intimate this relation has been, the more the care of avoiding impediments seems to pertain to the inconveniences connected of themselves with the law.

Thus possession of the breviary is connected with recitation of the hours; but not flight from untimely air lest you suffer toothache and be impeded thereby. Thus also, although the relation is already nearer, someone ought not to seek absolution from a censure so that he can be present at Mass, unless perhaps for a long time, for example for several months or a year, he is thereby forced to abstain from Mass.

But what if directly, in order to flee the law, you have placed the impediment? The authors who pose this question rather deny that this is lawful, for example Lehmkuhl I, 251; Bucceroni, Institutiones, I, 221. "For a law," thus Lehmkuhl, "which requires its fulfillment, also requires that the necessary means be employed. But if necessary means must be employed, or impediments removed, a fortiori it is not lawful with that will, lest the law be fulfilled, to place impediments." Others, as Genicot, I, 116, omit the question.

Wherefore, although for another cause you can choose the day which precedes a fast for hunting, even if you foresee such fatigue of body as will impede the fast, it is not lawful for you to choose the same day for this reason, that you may be excused from the obligation of fasting by that impediment.

Lehmkuhl, however, l. c., admits that an action can be undertaken industriously "which is of far greater moment and into which I justly suppose that I can transmute the lighter law: as if someone, both from other causes and from this cause also, lest he have to fast, devotes himself to the laborious service of the sick to be cared for in a time of contagion."