point — Wouters, Manual of Moral Theology
Point II. On the Legislative Power of the Civil State
I. The existence of legislative power in the civil state is proved:
From Sacred Scripture, which recognizes power of this sort in civil governors, and in subjects the obligation of subjecting themselves. "By Me kings reign, and lawgivers decree just things; by Me princes rule, and the mighty decree justice."1 "Give ear, you who contain multitudes and please yourselves in the crowds of nations, because power has been given to you by the Lord, and strength by the Most High."2 "Let every soul be subject to higher powers; for there is no power except from God; and those that are, are ordained by God. Therefore he who resists the power resists the ordinance of God. And those who resist acquire damnation for themselves; for princes are not a terror to the good work, but to the evil. But do you wish not to fear the power? Do good, and you shall have praise from it, for it is God's minister to you for good. But if you do evil, fear; for it does not bear the sword without cause. For it is God's minister, an avenger unto wrath against him who does evil. Therefore be subject of necessity, not only because of wrath, but also because of conscience. For therefore you also pay tribute; for they are ministers of God, serving unto this very thing."3 "Be subject, therefore, to every human creature for God's sake: whether to the king as preeminent; or to governors as sent by him for the punishment of evildoers and for the praise of the good; because so is the will of God, that by doing good you may silence the ignorance of foolish men: as free, and not as having liberty as a cloak for malice, but as servants of God. Honor all: love the brotherhood: fear God: honor the king."4
It is clear from the nature of civil society. For it commonly happens that many things which are necessary or very desirable for the civil good, or the full sufficiency of human nature, distinguished through families and stocks and through changes of times and places, are not evident to all, or are not spontaneously procured by all according to their powers. Therefore it is necessary that in civil societies there be an authority by which those things which are opportune for the civil good can be imposed, and by coercion, with penalties imposed, exacted from the unwilling.5
2 Wis. 6:3-4.
3 Rom. 13:1-7.
5 Cf. encyclical of Leo XIII, Diuturnum, June 29, 1881.
II. The derivation of civil legislative power from God is clear:
From Sacred Scripture, which, as follows from the testimonies brought forward, not only establishes legislative power, but also manifestly signifies that it is derived from God: "By Me kings reign," etc.
There is added the fact that legislative power, or rather authority which also involves legislative power, is derived either from God or from a social pact, explicit or implicit, by force of which the rights proper to authority, such as the right of making laws, the right of life and death, the right of war, etc., belong to some physical or moral person.1 But, to use the words of Leo XIII, "the pact, as they proclaim it, is openly imaginary and fictitious, and is not capable of imparting to political power such measure of strength, dignity, and firmness as the protection of the commonwealth and the common advantages of citizens require."2
Nevertheless, there is dispute concerning the manner by which authority is derived by God into a determined subject, whether physical or moral. According to some, the Author of nature immediately confers authority upon the physical or moral person who, for example, by singular aptitude, or by dominion of territory, or by patriarchal power, or by victory, or by election of the people, is designated as the one to be endowed with authority. According to others, God immediately gives authority to the whole people, that is, to the multitude of citizens, not formless, but formed by the relation of rights and duties in order to the perfect good; and the people, as is customary, transfers it to another subject, whether physical, as to a king, or moral, as to a college of aristocrats.3
1 J. J. Rousseau (d. 1778) establishes a pact of this sort; he further teaches that human beings freely constituted society by such a pact. "But it is a great error not to see what is manifest: that human beings, since the race is not solitary and wandering, are born into a natural community apart from their own free will" (encyclical Diuturnum).
2 Encyclical Diuturnum, June 29, 1881.
3 Cf. Marcellus a Puero Iesu, Ethica moralis et socialis, pp. 117-128; Billot, De Ecclesia Christi, 4th ed., pp. 491-504.
III. The subject of civil legislative power is the supreme governor of society. But the supreme governor can be either a physical person, as in monarchy, or a moral person, which can be constituted either by the nobler part of the people, as in aristocracy, or by a few in number, as in oligarchy, or by the whole people, as in democracy; or even a physical and moral person taken together, as in constitutional monarchy.1 Hence in Catholic doctrine, as Leo XIII says, "there is no question about the forms of commonwealths; for there is no reason why the Church should not approve the rule of either one or several, provided only that it be just and directed toward the common advantage. Wherefore, justice being preserved, peoples are not forbidden to procure for themselves that kind of commonwealth which more aptly suits either their own character or the institutions and customs of their ancestors."2
1 In the Netherlands it resides with the King and the General Estates of deputies of both orders. "The legislative power is exercised jointly by the King and the States General" (Fundamental Law, art. 109). "All proposals of law accepted by the States General and approved by the King acquire the force of law and are promulgated by the King" (Fundamental Law, art. 121). From these things it is clear that among us the form of government is composed of a monarchical and a democratic element: "monarchical," indeed, as is clear; "democratic," because the deputies represent the people. A form of government of this kind is called constitutional representative government of the people.
2 Encyclical Diuturnum, June 29, 1881.
IV. The relation between ecclesiastical and civil power.
Each power, ecclesiastical and civil, is perfect and independent in its own sphere. "God has divided the care of the human race between two powers, namely, ecclesiastical and civil: the one set over divine things, the other over human things. Each is supreme in its own kind; each has certain limits within which it is contained, defined by the nature and proximate cause of each; whence, as it were, a certain sphere is circumscribed, in which the action of each may be exercised by its own right."1 Hence proposition 19 of the Syllabus was rightly condemned: "The Church is not a true and perfect society, plainly free, nor does she possess her own proper and constant rights conferred on her by her divine Founder; but it belongs to the civil power to define what the rights of the Church are, and the limits within which she can exercise those rights";2 and the 39th: "The State, as the origin and source of all rights, possesses a certain right circumscribed by no limits";3 and the 44th: "The civil authority can involve itself in matters which pertain to religion, morals, and spiritual governance."4 And St. Thomas rightly concludes: "In those things which pertain to the salvation of the soul, the spiritual power is to be obeyed more than the secular, according to that saying in Matt. 22: 'Render the things that are Caesar's to Caesar, and the things that are God's to God'" (II Sent., dist. 44, q. 2, a. 4, ad 4).
In a conflict, the ecclesiastical power prevails, since it is the higher power. Hence proposition 42 of the Syllabus was condemned: "In a conflict of laws of either power, the civil law prevails."5
1 Encyclical of Leo XIII, Immortale Dei, November 1, 1885.
2 Denzinger-Bannwart, n. 1719.
3 Denzinger-Bannwart, n. 1737.
4 Denzinger-Bannwart, n. 1744.
5 Denzinger-Bannwart, n. 1742.