Chapter IV: The Divisions of Laws

— We have already suggested the division from the author, which will be more demonstrated in chapter VI. From sanction, we distinguished moral, penal, and mixed laws.

Besides these divisions, the following are to be attended to by us.

1. Affirmative and negative law. - An affirmative law commands an act; a negative law forbids an act. Each obliges as long as it is in force, and therefore always; but the former does not oblige for always. For an act prohibited, within the limits of the prohibition, must be omitted at any moment whatever; whereas an act commanded is not to be done at any moment whatever.

Moreover, every affirmative law admits just delays and also omissions; for the omission of some act does not intrinsically affect the other acts which are done: these remain in themselves what they were, good or evil. But, on the contrary, an act prohibited is, while the prohibition remains, intrinsically vitiated. And when the prohibition is read in nature itself, it has the universality and firmness of nature itself: wherefore no difficulty excuses from a negative natural law. On the contrary, prohibitions of positive law are tempered by excuses according to the reasonable will of the legislator. This holds concerning divine law itself. Thus the Lord himself approved the deed of David, who, pressed by hunger, ate the loaves of proposition which only priests were permitted to eat ¹. But in the New Testament no prohibition is read which is at once of positive and divine law.

¹ I Reg. 21, 6 [printed: I Reg. 2, 10]; S. Matth. 12, 3.4.

— 2. Law founded on proofs, such as one which divides an inheritance or punishes delinquents, and law founded on presumption or on fiction. Presumption is defined: "a probable conjecture concerning an uncertain matter" (c. 1825, § 1).

Now law can be founded on presumption in two ways:

a) On a presumption of general danger: then the probability of danger moves the legislator to enact a certain universal sanction. Thus, to forestall the general danger of perversion or of spiritual detriment, canonical law forbids evil books or books of a certain subject matter to be read without faculty; civil law, to forestall the general danger of negligence, obliges one guilty of merely civil fault to repair the damage. Cf. d'Annibale, I, 208. By such a law the judgment of danger is withdrawn from subjects. Wherefore from c. 21, a law of this kind is to be urged "even if in a particular case the danger is not present."

b) On a presumption of fact, "when, holding as certain that something was done, because thus it is more commonly wont to happen, from that supposed fact ... law establishes rights and obligations" (d'Annibale, I, 208).

This presumption is iuris tantum, if contrary proof is admitted in the external forum; it is iuris et de iure, when the judge is forbidden to attend to contrary proof. Thus all laws, both canonical and civil, presume as legitimate a son born of a married woman. But some permit contrary proof, while others forbid "that inquiry be made concerning the father."

Thus "from a celebrated marriage, if the spouses have cohabited together, consummation is presumed, until the contrary is proved" (c. 1015, § 2); while "a thing judged, by a presumption iuris et de iure, is held to be true and just, nor can it be directly impugned" (c. 1904, § 1) ¹.

Thus far, presumption of law. There is also a presumption of man, "which is conjectured by the judge" (c. 1825, § 1), concerning which the Code of Canon Law establishes this, c. 1828: "Presumptions which are not established by law the judge is not to conjecture except from a certain and determinate fact, which directly coheres with that about which there is controversy."

But, whatever may be the law of the external forum, in the internal forum a presumption of fact yields to the truth. Wherefore if the fact truly did not occur, scandal or a higher motive of observance being excluded, that law does not bind the conscience.

¹ Indirect proof, however, is admitted, that is, against the very fact on which the presumption is founded (c. 1826). Thus you could not demonstrate the error of a definitive sentence, but you could prove the nullity of the sentence.

— Certain laws seem to be founded on fiction. In matter subject to himself, the legislator can, on account of the common good, juridically transfer a disposition beyond the true species of fact on which it regularly rests: for example (which both canonical and civil law effect), to regard as legitimate children whose parents are afterwards joined by a legitimate bond. Therefore fiction is defined as a disposition of law contrary to the truth in a possible matter and from a just cause (Bouquillon, Theol. fundam., n. 162).

Laws of this kind oblige subjects, but neither can they themselves be transferred to cases not expressed, nor can the effects of their assimilation be enlarged.

Nor indeed, however, can fiction found any law or be able to found one, since fiction in itself is nothing. But some reason of the common good, for example equity, moves the legislator (and therefore founds the law) to extend the benefit or effects of the law beyond the merit of the cause. Thus when it is said, "an infirm canon is held as present," in reality this is signified: distributions among those present are granted also to an infirm man who is absent. And mention of fiction is not useful, except insofar as it permits a briefer enunciation of the law. But because that mention at the same time can deceive, not without merit many would wish to give notice of departure to the naming of things as "fictions." Wherefore very well the Code of Canon Law, c. 1117, no longer says: "children legitimated by a subsequent marriage are held by fiction as legitimate," but, omitting the word fiction, directly establishes thus: "Children legitimated by a subsequent marriage, as regards canonical effects, are in all things equated to legitimate children, unless something else has been expressly provided."

— 3. Law merely commanding or prohibiting, and invalidating law. For, besides the efficiency of obligation, not only divine law but also human law, both canonical and civil, so that it may effectively provide for the common good, can render null certain acts which, considered in themselves, would be valid.

This invalidation is sometimes certain, but at other times disputed or doubtful. Thus, by natural law itself, a marriage attempted between parents and children is null; but it is less certain that nuptials between brother and sister are rendered invalid by natural law itself. And when invalidation is certain, this is sometimes disputed, whether the invalidation must be ascribed to divine law or to human law. Thus, is the impediment of force and fear in marriage constituted by natural law or by human law? Authors dispute the matter.

Moreover natural divine law forbids what it invalidates, while human law, at least civil law, sometimes permits to be done what nevertheless it wills to be juridically ineffective: for example, an informal testament. Consequently, as is evident, the obligation of the law varies.

But several other distinctions occur.

a) A law can invalidate an act most fully, that is, effect that in reality or by full right it be of no value; or only after the sentence of a judge can it hold the act invalid. This sentence sometimes merely declares the nullity, sometimes truly effects it. If the sentence is a mere declaration of nullity, its force is said "to be drawn back," or to act backwards to the very moment at which the act was done, which therefore is reputed to have been null from the first moment; in the other case, the effects produced up to the sentence of the judge remain firm.

Law can take away the natural obligation itself, or merely in the external forum either take away the action, or provide the defendant an exception by which he can repel the plaintiff: this is invalidation improperly so called.

Furthermore a most full invalidation, which by the fact itself takes away the natural obligation itself, cannot be presumed, but must be demonstrated from the words of the law or from the end which otherwise would not be obtained. Cf. d'Annibale, I, 206 (52); Lehmkuhl, I, 315.

Concerning the sentence of a judge, this also must be observed: while in canon law (cf. cc. 1679-1682) an action is directly conceded for obtaining from a judge a declaration of nullity, in the civil forum an action of this kind is generally not had, either because the very appearance of a civil act is lacking, as if you wished to obtain the invalidation of a verbal testament, or because no use is made of the invalid act, so that a present plaintiff does not have an interesse. For example, if an heir instituted by an informal testament allows the heir by intestacy to take the inheritance, that legal heir, so long as the other does not vindicate the goods, would in vain seek from a judge a sentence concerning the testament.

b) A law can invalidate an act absolutely, or only in favor of someone, for example of a minor. To him alone then (or to a tutor or to him who can act for him) belongs either an exception for repelling the plaintiff or an action for recovering what he has paid. Thus also often fear can be opposed by the party alone who has suffered the fear.

c) The condition of invalidation can be injury or damage. Hence that common saying, whose force we shall afterwards define more accurately: "A minor is not restored as a minor, but as injured."

— Divisions of laws. I. From sanction there are moral, penal, and mixed laws.

II. From object, an affirmative law commands an act, and, although it always obliges, nevertheless admits delays and also omissions; a negative law forbids an act, and obliges always and for always. No difficulty excuses from a negative natural law.

III. From its foundation, one law rests upon a demonstrated matter, another upon presumption, or upon fiction itself. Presumption (or conjecture from probable indications) can be of general danger: this obliges even if, in a particular case, the danger ceases; or presumption of fact: this presumption is either iuris tantum, if it admits contrary proof, or iuris et de iure, if it excludes such proof. Fiction (or, from a just cause, a disposition contrary to truth in a possible matter) extends the benefit or effects of law beyond the merit of the exterior cause.

IV. From its efficacy, law merely commands or forbids, or also weakens an act: either most fully or (not always by a special action) after the sentence of a judge; whether the natural obligation itself is taken away, or only the civil action (absolutely or in favor of someone).