Chapter II: The Properties of Law

As properties of law there are customarily numbered: obligation, which regards the efficacy of law; universality, which regards the subject; perpetuity, which regards duration; extension to future things alone, which regards temporal extension. (Territoriality pertains only to a human legislator.) In what way each is to be understood must be said briefly by us.

The first and common efficiency of law is called obligation. For unless it binds the will, law will not avail to induce the unity which the legislator intends. So indeed for the most part. But from the very reason added, it is evident that the obligation of law coheres with its efficacy, or that the necessity of obligation is derived from the necessity of efficacy. Therefore if, without properly so-called obligation, law can be efficacious, obligation will not pertain to the essence itself of law. Hence moral laws are distinguished, whose transgression immediately induces theological guilt, or which immediately obligate; and penal laws, which merely impose the necessity of undergoing a penalty; while those are called mixed which obligate under sin and penalty.

Concerning penal law. Among writers prior to Suarez, there were some, for example Sylvester, who denied that merely penal laws could be had: for it would be repugnant to the essence of law that it not obligate to the commanded act; nor could a penalty be inflicted without guilt, while guilt is excluded if obligation is denied.

Yet obligation is not expressed in the definition of law; nor does it seem strictly to be contained in its concept. For a legislator who wills that his practical dictate concerning a thing to be done become the common practical dictate of his subjects, in reality wills to order them to the common good. Therefore his will or intention is a legislative will. And if that will is commonly efficacious, it truly orders the subjects. But this efficacy can sometimes be obtained even without obligation or bond of the will; as if, among those zealous for perfection, he obtains spontaneous docility from most at least; just as also many singular precepts are given efficaciously without obligation under sin, by a simple signification of the will. If now some exterior penalty seems opportune but sufficient for efficacious direction, the same legislator will be able to bind the will only by the penalty to be undergone. This penalty is just, because it has been imposed for the transgression of an order legitimately constituted, although not essential, nor commanded under sin. There is a delict in the external forum; it is not necessary that there be one in the internal forum. And thus reply is made to the objection: no penalty without guilt. There is juridical guilt: which suffices.

Besides, the very mode of conceiving penal law varies. In the nineteenth century there prevailed the explanation through disjunctive obligation, as if the legislator had left the option of obedience or penalty. Thus C. D'Annibale, Summula, I, n. 207; thus Bouquillon, Theol. Fundament., n. 131. But today that opinion is deservedly abandoned, since the legislator by no means indifferently wills the one or the other, but immediately wills and imposes one thing: obedience to his law, yet in such a way that the moral obligation is terminated to the penalty alone to be undergone or suffered. For, as Wernz writes ¹: "If obligation is imposed only to undergoing a penalty, it can happen that the obligation arises only after the sentence of a judge." That opinion, which is ascribed to Billuart ², and pleases Koch ³, Prummer ⁴, Makoto ⁵, is already repeated in Suarez ⁶, when he says that penal laws are "binding under threat of penalty, although they do not bind in conscience to the act on account of whose transgression they bind to the penalty"; and he describes a purely penal law as one "which has only one quasi-hypothetical precept, of sustaining such a penalty or inconvenience if this is not done."

Merely penal laws are found only in human laws; all divine laws obligate conscience and are sanctioned by penalties. In human laws themselves, Bouquillon ⁷ judges that merely penal laws cannot reasonably be given "unless the burden imposed of itself avails for obtaining the special end of the act, and for compensating in some measure its defect, but not if it has merely coercive force." Thus he understands fasting under the penalty alone of alms, a tax under the penalty alone of a fine; but the use of ecclesiastical dress could not be imposed under the penalty alone of a fine, because the fine would not compensate the defect of the thing enjoined. Yet we do not think that this is established. Suarez estimates more simply that often, for avoiding dangers of souls, it can be expedient that a merely penal law be made, "because some coercion is useful; and that a greater one not be made is also useful to souls and pertains rather to sweet providence than to rigor" (l. c.).

¹ Ius Decretalium, I, n. 109. Moreover he himself abstains from every explanation.

² De Lege, diss. 4, art. 4.

³ Lehrb. der Moraltheologie, P. I. S. 1. c. 2.

⁴ Manuale Theolog. moralis, n. 209, ss.

⁵ Institutiones iuris canonici, I, n. 221.

⁶ De Legibus, l. 5, c. 4, n. 1.

⁷ Theolog. mor. fundament., n. 131.

Concerning the gravity of moral obligation. The guilt under which moral law obligates is judged to be adapted to the matter itself, so that it is grave where a matter of grave moment is treated, unless the legislator has sufficiently signified a diverse will. For just as he can abstain from the precept itself, so he can temper the force of his precept.

But beyond the capacity of the matter, or to obligate gravely in a light matter, at least a human legislator cannot.

Moreover the moment of the law itself must be prudently measured from the object and end, as will be declared more in the treatise on sin.

"Law is a common precept" ¹. And so it is called universal insofar as, even if many laws are not applicable to all subjects either collectively or distributively, and laws are given which directly regard one person, for example the Pontiff, the King, nevertheless every law considers subjects formally not as singular persons, but as pertaining to the community, of which they are the head or members. That is, to insist on the example brought forward, the law will be not concerning Gregory the Pontiff or Edward the king, but concerning the Pontiff or the King in general.

But universality understood thus is a true property of law, since it flows from the essential notion itself of law, by which it is said to be an ordination for the common good.

For if it is for the common good, it will reach singular persons or families or lesser groups under the respect of their relation to the community. The respect will be demonstrated either by office (a law concerning a vicar general), or by kind or condition (a law concerning clerics), or by place or habitation (a law concerning residents, concerning travelers).

Certainly it can be demanded by the common good itself that something be commanded to a certain singular person as such; but that command will be called by another name: that of precept.

Therefore do not confuse the community for which a law can be made, and the community concerning which a law is made. The former must be such that it is, or can be, a perfect community; the latter can be any community whatsoever, even a lesser one. Thus a law is not made for a parish; but a law concerning such a parish can well be made.

¹ Cf. Suarez, De Legibus, l. I, c. 6, n. 17.

Every law is perpetual, at least by this reason, that when its author has died, it itself does not cease. For the author of law, as such, represents the community, which does not cease by the death of the prince.

In general also by law provision is made for a permanent necessity or utility of society. Wherefore most laws are perpetual by this reason also, that they are not made for a certain day, but are accustomed to remain until they are explicitly or implicitly abrogated. In this sense they are sometimes said to be "going to be valid perpetually." But human laws are not positively perennial, nor is perenniality contained in the account of law. Nothing prevents laws from being made, even divine laws, for a certain time or until the circumstances persevere. Think of the Old Testament, which, the priesthood having been transferred, was abrogated ¹. Such a temporary law, according to the testimony of the Holy Office, March 20-22, 1918, are the prescriptions concerning modernism to be overcome (A.A.S. X, p. 136).

Therefore it must be attributed to the positive will of the legislator if temporary sanctions, as such, are called by a name other than that of law.

And so positive perpetuity cannot strictly be exhibited as a property of law.

¹ Cf. Epistle to the Hebrews 7, 12.

Laws regard future things, not past things, unless provision is made in them concerning past things by name. Thus wisely the Code of Canon Law, c. 10.

If we consider only the effect of obligation, the rule concerning the application of law to future things alone is a true property of law, which admits no exception. For since law cannot impose its obligation except by means of promulgation or notification, it is manifest that no obligation can be had unless it is posterior to the law. Acts done at a time when the law did not exist could not violate the law, or constitute anyone guilty. But laws have other permanent effects in the juridical condition (for example of an administrator, of a professed person) to which they gave beginning. And it is in the power of the legislator that he apply the regime of a new law to present effects of anterior acts or of a status previously possessed. Nothing impedes him from declaring a juridical act, for example a testament or sale, invalid, because the conditions of the new law have by no means been satisfied. Yet the common good requires that citizens not be disturbed in the peaceful possession of their things without a special cause. Wherefore the Code enunciates the admitted principle concerning the "non-retroactivity of laws," tempered however by clearly established exceptions.

The corollary of this principle is that acquired rights are not taken away by a new law.

But the whole difficulty is in explaining an acquired right, from which a new law of itself does not derogate. Etymologically ius quaesitum is the same as ius acquisitum, an acquired right. But we have handed down a twofold explanation of acquired right in the Epitome iuris canonici (I, n. 45 a).

1. From an antecedent law as such, no acquired right immediately arises. For the law was known to be mutable, and what was founded on the law alone necessarily falls with the foundation, or the law. Thus what the capacity or incapacity of a minor person is must be estimated from the present law. But an acquired right is had when a title diverse from the law, for example a contract, intervenes to firm up some juridical condition or some honor or privilege. Thus acts legitimately done by a minor according to the preceding law will of themselves remain valid, although, from the new law, such acts can no longer validly be done by them.

2. An acquired right is taken away if, on account of his own past deed, or the new law not having been observed, someone suffers inconvenience or detriment. But it is not taken away if the law is applied to him because, independently of his own past deed, he is now in the required conditions of application. Suppose a new incapacity to be introduced for clerics or professed persons: even those who before the Code had become clerics or professed persons will contract this incapacity, unless the legislator positively wills to treat them more benignly.

The properties of law are:

I. Obligation, insofar as the efficacy of direction requires it. Hence laws are moral, obligating under guilt; penal, under penalty; mixed, under guilt and penalty.

A penal law is not to be conceived as disjunctive; but its efficacy is provided for by the sanction of penalty alone, without another obligation.

The gravity of moral obligation is judged adapted to the matter; nor can at least a human legislator obligate beyond the capacity of the matter; yet it remains whole to him to obligate below such capacity.

II. Universality, insofar as law reaches subjects under a common and not individual account.

III. Perpetuity, insofar as, when the author has died, the law does not cease. But a law can be made for a certain time.

IV. Extension to future things alone, insofar as of itself law does not regard past things unless this is expressly provided. Wherefore it does not take away acquired rights: that is, it does not suppress a title, diverse from a superior law, which immediately founds a juridical condition; nor on account of a past deed does it generate trouble or inconvenience for subjects.