Article — Wouters, Manual of Moral Theology
Article I. On the Nature of Law in General
I. Definition. Law is said: according to Tully (De legibus, bk. 1), from legendo, that is, from choosing, because among many things it chooses what must be done or omitted; according to St. Isidore (Etymologies, bk. 2, c. 10), from legendo, because it is usually written and therefore read; according to St. Thomas (I-II, q. 90, a. 1), from binding, because it binds or obliges; according to today's philologists, from a root common with the Greek verb legein, that is, to say. But law, with St. Thomas, is usually defined: "A certain ordinance of reason for the common good, promulgated by him who has care of the community" (I-II, q. 90, a. 4). It is said:
Ordinance, that is, a disposition or direction to an end through proportionate means.
Of reason; concerning this, observe: by the consent of all, both reason and will concur in constituting law; but it is disputed whether law or command is formally an act of reason or of will.
Some teach that it is formally an act of the will, although of a will ruled by reason, because it belongs to reason, even practical reason, only to judge. But the concept of judging excludes the concept of commanding or imposing something. Added to this is that the Sacred Scriptures continually speak of the divine will, never of the divine reason, as needing to be fulfilled. Others with St. Thomas (I-II, q. 90, a. 1; q. 14, a. 1) judge that law is formally an act of reason, "with an act of the will presupposed, however, in virtue of which reason moves through command to the exercise of the act" (St. Thomas, I-II, q. 17, a. 1). The reason brought forward by the defenders of this opinion can be proposed thus: to command belongs to that power to which it belongs to order; for to command is to order someone to perform something. For the one commanding intentionally joins the operation to be done with the practical intellect of the subject, in other words, he imposes the work to be done. But to order formally is an act of reason.
For the common good. For law is not ordered to the good of one or of a few, but to the good of the whole community, that is, of all who constitute the community. Nevertheless, this does not prevent a law from sometimes establishing something which directly yields to the good of the prince or of some persons, provided that good is ordered to the common good. Nor does it prohibit a law from being made for a determinate class of persons, for example for soldiers, because a law of this sort can regard the common good, or the good of the whole community (St. Thomas, I-II, q. 90, a. 2; St. Alphonsus, I, 140).
By him who has care of the community. For "law properly, first and principally, regards order to the common good. But to order something to the common good belongs either to the whole multitude, or to a public person who has care of the whole multitude; and therefore to establish law belongs either to the whole multitude or to a public person who has care of the whole multitude; because also in all other matters to order to an end belongs to him whose proper end it is" (St. Thomas, I-II, q. 90, a. 3).
Of the community. But a perfect community is understood primarily, that is, one which, with respect to its end and the means ordered to that end, is not directly subordinated to another community. Such are the community of the whole human race, the Church, and the civil State. An imperfect community is one which is directly subordinated to another community. Such are a diocese, a religious order, a parish, a municipality, and a family. But to what extent the governors of imperfect communities enjoy legislative power will be explained in n. 107.
Promulgated. Several things must be noted concerning promulgation.
a) Notion of promulgation. Promulgation is the authentic intimation of a law to the community as such; authentic, that is, made by the legislator himself or by another in the name of the legislator. It must be done by the legislator or in his name, because it belongs only to the governor of the community to apply law to the community.1
Promulgation differs: 1. from the divulgation of law, by which, namely, the law is published in several places; 2. from knowledge of the law, by which the law is known in fact. Nevertheless, knowledge is required in order that someone be obliged here and now.
It is disputed whether promulgation pertains to the essence of law (cf. St. Thomas, I-II, q. 90, a. 4);2 but the dispute is not practical, because promulgation is at least required in order that law may oblige. This we shall now explain.
b) Necessity of promulgation. Promulgation is necessary in order that a law enjoy the force of obliging. For law holds itself "by way of rule and measure; but rule and measure are imposed by the fact that they are applied to those things which are ruled and measured. Hence, in order that law obtain the force of obliging, which is proper to law, it must be applied to human beings," understand: to the community, "who ought to be ruled according to it" (St. Thomas, I-II, q. 90, a. 4; St. Alphonsus, I, 89). But it is applied to the community through promulgation. Hence one who knows from some other source that a law has been made is not bound to observe it before it has been promulgated (St. Alphonsus, l.c.). And in at least that sense it is declared: Laws are instituted when they are promulgated (can. 8, § 1).
c) Mode of promulgating a law.
a) Of itself, an act placed by the legislator or in his name suffices, from which, morally speaking, the law can come into the knowledge of the community. This is clear from the practice of legislators; likewise from the fact that pontifical laws are promulgated by the very fact that they are inserted into the official commentary (n. 91). Therefore an act is not required by which, morally speaking, the whole community immediately comes into knowledge of the law. It also does not matter which act of promulgating is chosen, provided such an act is employed from which knowledge can be diffused among the members of the community. Hence a law can be promulgated either by affixing it in a public place, or by announcing it by the voice of a herald, or by inserting it into public tablets, or by explicitly or tacitly signifying that a divulgation already made, for example through newspapers or periodicals, is to be held as promulgation.
b) How diverse laws have in fact been promulgated or are promulgated, see, with respect to the positive divine law, n. 80; with respect to ecclesiastical laws, n. 91; with respect to civil laws, n. 91.
Corollary. As soon as law has been promulgated, it obliges of itself all members of the community in first act, as it is said; as soon as, after promulgation, it is known to someone, it obliges him in second act or subjectively.
1 In Holland, civil laws, adopted by the Assemblies of Deputies and sanctioned by the King, are promulgated by the King (Grondwet, art. 121).
2 Cf. Billuart, De legibus, diss. 1, a. 3.
II. Acts of law. Four acts of law are enumerated by St. Thomas, namely: to prescribe, to prohibit, to permit, and to punish. To these, by others, is added to invalidate (cf. the words of the holy Doctor, n. 62).
III. Difference between law and precept. Law and precept differ:
By reason of the end. Law essentially tends to the common good, but precept can also be ordered to private good alone.
By reason of the author. Law cannot be made except by one who enjoys the power of jurisdiction.1 A precept can also be imposed by one who has either dominative power, as a father, or economic power, as a master.
By reason of the subject. Law is essentially made for a community, or for such a class of persons as offers a sufficient foundation both for the essential end of law, which is the common good, and for its perpetuity (St. Thomas, I-II, q. 96, a. 1), for example for merchants, soldiers, clerics, etc. A precept can also be imposed on a particular person or particular persons, or on a particular class of members of the community; and on the whole community, but not forever.
By reason of place. Law, if it is made for a local community, is generally territorial, that is, it directly affects the territory, and the members by means of the territory, so that it does not bind them when they are staying outside it. I have said generally, because an ecclesiastical legislator, not only the Supreme Pontiff, but also a bishop,2 can impose laws on a local community which are also personal; but personal laws also bind subjects staying outside the territory. Nevertheless, a law made for a local community is presumed territorial, not personal, unless something else is established (can. 8, § 2). Likewise a civil legislator can make some laws which oblige even outside the territory; for the common good requires this. Thus, for example, the law of military service also binds those who are staying outside the kingdom, unless they can and wish to renounce the right of their homeland. A precept generally directly affects the subject, so that he is bound by it everywhere. Hence the saying: Law affects the territory, but precept clings to the bones.
By reason of duration. Law by its nature, or of itself, is perpetual, so that it endures when the life or office of the legislator has ceased. The principal reason is that law is ordered to the common good, which of itself is stable; precept is ordered to the good of a private person, which easily changes. "Precepts," as canon 24 says concerning ecclesiastical superiors, "given to individuals, urge those to whom they are given everywhere, but cannot be judicially urged and cease when the right of the one prescribing has been dissolved, unless they were imposed through a legitimate document or before two witnesses." Moreover, a precept, when the life or office of the one prescribing has ceased, endures as if per accidens if it has been confirmed by a higher superior who has not yet finished life or office. Finally, judges give a definitive sentence.
1 Nevertheless, not every person enjoying such power can make laws (n. 106).
2 That this faculty belongs to a bishop is deduced with sufficient certainty from can. 8, § 2; likewise from the fact that travelers are said in can. 14, § 1 to be bound by the personal laws of their territory, from which they are absent; certainly, from the obvious sense, also by the personal laws of the bishop of their territory.
IV. Difference between law and other things which present the appearance of law. Law differs:
From a decree, which is made by public power, not insofar as it is legislative, but insofar as it is executive.
From a judicial sentence, which is the application of law to a particular case.
Finally, law, insofar as it is taken for a prescriptive or prohibitive ordinance, differs from counsel. "This is the difference between counsel and precept, that precept imports necessity, but counsel is placed in the option of him to whom it is given" (St. Thomas, I-II, q. 108, a. 4). These things are also to be applied to prescribing and prohibiting law, which likewise import necessity.
Question. On what communities can law be imposed?
Response. It can be imposed on the Church and on the civil state, as follows from what has been said (n. 74); likewise, as was explained in the same place, on a certain class of persons; likewise on a diocese and an entire order or congregation, as practice itself also proves. It is doubtful whether it can be imposed on a religious province, a parish, and a religious house; these things are difficult to determine accurately.