Chapter I: The Notion of Law

The divine Reason and Will, which create the whole world, order the same, or fittingly dispose it to its end. For the whole world, with its parts, is a certain whole whose unity and finality must be preserved and strengthened by a wise ordination. But a fitting disposition will be efficacious and adapted to the nature of things. Therefore irrational creatures will be drawn by physical necessity, but rational creatures will be moved insofar as practical dictates concerning the supreme ordination to be observed and completed are impressed upon their intellect, without violation of their nature. That is, they are to be induced to act freely and freely to abstain from action. And since the will, or their moving principle, is a rational appetite, they cannot be induced thus unless a norm of action is perceived by the intellect. Consequently, the norm must be authentically or authoritatively notified to the intellect; that is, an intimation or promulgation of the divine ordination is required.

By a not dissimilar reason, those who, under God, have human actions to be ordered must imperatively propose their practical dictates to the intellect of those whom they rule.

Hence the classic definition of law is demonstrated: "An ordination of reason for the common good, promulgated by him who has care of the community" (St. Thomas, 1, 2, q. 90, art. 4).

Ordination means disposition according to a principle of unity, which, when there is question of the universe, is primarily divine glory, but secondarily consummated perfection, or the beatitude of rational creatures.

Of regulating reason: for reason directs human actions.

For the common good: for the very end to which individual men are directed is their common good, whether you consider God, or the societies to which men are ascribed.

By him who has care of the community: whether by the title of one ruling, or by the title of one representing the multitude to be disposed to its end. St. Thomas mentions this title, 1, 2, q. 90, art. 3.

Promulgated or intimated, that is, imperatively communicated to the intellect, in which consequently the ordination of the legislator himself exists participatively.

Corollaries. I. The essentials of law insofar as it is for the common good. For the value itself of law there is required negatively: that it be honest, or not inducing to anything against the order either of nature or of positive divine law; that it be just, that is, that, insofar as the common good permits, it preserve distributive justice in apportioning common goods and burdens, and thus violate no one's right.

Positively, it is necessary that it conduce to the common good, and consequently that it be possible of observance not only physically but also morally, or not too difficult; and that it be necessary, or at least useful.

Concerning these conditions these things must further be observed:

1. It is metaphysically repugnant that the most wise God should order things which do not satisfy the necessary conditions. Hence these conditions are prescribed by the divine law itself only to human legislators. In divine law they are not to be attended to except, where doubt can arise, for judging concerning the true origin of an ordination which is presented as divine.

2. A law which commands dishonest things is destitute of all value, and it is never right formally to cooperate with such a law. But a law can be honest which does not punish certain evils, indeed positively permits them, yet without formal approval. Wherefore, the circumstances having been considered, certain "liberties" can be sanctioned, for example of the press, of associations, of opinions, not indeed that depraved things be written in print or propagated, but with foresight that many men will abuse that faculty. Such things will be able to be sanctioned if that license seems more to be desired than the restraining of liberty.

3. Although an inequitable law, or unjust law, as such, is invalid, nevertheless it can happen that, on account of the useful parts which it contains, or for avoiding greater evils, it must be tolerated and executed by good citizens, when there is question of goods which can freely be abdicated. There then accedes a certain higher law, of the natural order, which commands that, on account of the common good itself, those inequities, or inequalities, be tolerated.

4. What difficulty is excessive must be estimated from the condition of the persons and from common necessities. Thus upon religious, public officials, with attention to their state, heroic things are sometimes imposed. Thus in time of war heroic things are demanded from many citizens. A law which demands such things becomes useful for the common good, so that the reason why it would not be valid must be said to fail.

5. Usefulness for the common good suffices if it is indirect and mediate. But concerning this the legislator himself makes judgment. Wherefore manifest uselessness, and indeed general uselessness, is required if obedience can be refused on account of a reason of this sort. If utility ceases in the particular case alone, nevertheless the law will often remain to be observed, whether on account of avoiding scandal, or because the law will have been made for guarding against a general danger. Such are the laws concerning the prohibition of books. For then, if the law has been ecclesiastical, c. 21 must be observed: "Laws made for guarding against a general danger urge, even if in a particular case the danger is not present."

Moreover deception is easy in this matter. Thus in a man greatly mortified, or one who assiduously frequents church, the reason for the precepts concerning fasting or hearing Mass on a feast day can seem to have ceased, while nevertheless the reason of common observance remains.

Finally, lest a greater evil follow, a subject also can be obligated to continue observing a useless law. Yet if danger of mistake and scandal has been entirely absent, St. Alphonsus did not dare to disapprove the more benign opinion. For example, if it is entirely certain that a man has been baptized and in vain one writes to obtain a document required of itself, then, from epikeia, that demand of the document can be omitted.

II. Insofar as law is for a community, promulgation itself pertains to its essence. "Laws are established when they are promulgated," says the Code of Canon Law, c. 8, § 1. But promulgation is: "the solemn intimation of a law so made that it can become known to the community."

Yet it is not required that the law can strictly reach all, since law directly affects not individuals but the community. Nor is it necessary that it already be actually known to the community. For from the fact that it can become known to the community, it begins efficaciously to obligate the individual persons who know the law. But a private communication, sufficient for a few, does not obligate even those who know the law or ordination. But when promulgation has been made, and not before, the law obligates all subjects in first act; but in second act only those who are not excused by ignorance, or who have certain knowledge of the law.

For concerning others the principle is valid: "No one is bound except through knowledge of the law or precept." For no one can command anything to a man, or to a rational creature, unless his practical dictate, or what he wishes to command, is communicated with the mind of him whom he commands. But as long as this is not truly known, at least in a human way, there has been communicated not the dictate of one commanding, but only a doubt or suspicion of it. Cf. St. Thomas, De Veritate, q. 17, art. 3.

With the nature of the thing considered - for the legislator can establish more benignly concerning his law - as widely as the law is knowable, so widely is it promulgated and obligates in first act. Wherefore doubts concerning the sense of the law which can be resolved by private study will of themselves not prevent the law from having been promulgated according to that true sense. And by whatever path, for example by authentic declaration, that sense then appears, the excuse of ignorance will at the same time be removed. But it can happen that a law is objectively obscure or ambiguous, so that an inextricable doubt remains. An authentic explanation of this doubt needs a distinct promulgation, since that signification was not promulgated with the law itself. Hence, from c. 17, § 2, an authentic interpretation which explains a doubtful law must be promulgated.

Lemmas. I. Vacation of the law. Although for the present obligation of a law it is not necessary of itself that it already be actually known to the community, nevertheless, with a particular reason excluded, a human legislator prudently is accustomed to defer the obligation of the law until the law becomes morally known to the community itself. Through that interval of time, the law is said to vacate.

II. Physical laws and laws of the arts. Law means a norm of acting. Hence, insofar as they agree in the account of norm, there are also physical laws, which irrational things obey or follow by subjective necessity; and laws of the arts, to which exterior works must be accommodated so that the intended end of utility or beauty may be obtained. But the laws of human action, insofar as they are a rule of morals, are also called moral laws.

III. Precepts. Those things also which are commanded to individuals to be done or omitted can be referred to the common good, either immediately, as if they are commanded on account of the common good, or mediately, insofar as the private good itself is of interest for the common good. Therefore many things are also prescribed to single persons or to several, which are called precepts. (Cf. below for a more accurate notion.)

I. Law is defined: An ordination of reason for the common good, promulgated by him who has care of the community.

Ordination, or disposition according to a principle of unity, is made primarily, when there is question of the universe, according to divine glory, secondarily, according to the beatitude of rational creatures.

Of regulating reason.

For the common good, such as every end of man is.

By him who, by title of one ruling or of one representing the multitude, has care of the community.

Promulgated, or imperatively communicated to the intellect of subjects.

II. For the value of a law there is required negatively that it be honest, commanding nothing against the order of reason or a superior law, although perhaps it tolerates many evils; that it be, insofar as the common good allows, just, or that it preserve the norm of equality and violate no one's right. There is required positively that it conduce to the common good and consequently be possible of observance and at least indirectly necessary or useful. In order to rule the community, it is also required that through intimation it be able to become known to the community, that is, that it be promulgated.

But individual persons are actually bound when they have human knowledge concerning the law. To dissipate a true obscurity of the law, a new promulgation is required.

III. Vacation of the law designates the time through which a law, by the benign will of the legislator, does not yet obligate, although it has been promulgated.

Analogically there are also laws of the physical world and of the arts.

IV. But to individual men precepts are given, also for the common good.