Section III. On Positive Law

Positive law, as we have said, is divine or human; human law is ecclesiastical or civil.

I. Positive law taken generally.

1. Positive law strictly accepted is law which has for its object that which is neither prescribed nor prohibited by natural law. Therefore it regards either acts indifferent in themselves, which it prescribes or forbids, or good acts but not obligatory ones, which it renders obligatory. But in a broader sense positive law is taken for every law which is promulgated not by the light of reason, but by some external sign, whether it regards the same matter as natural law or another matter.

2. That positive laws are necessary follows from the fact that, when the exigency of social life is considered, natural law does not suffice for ruling human beings. This law is unequal to attaining the said end, first, because with respect especially to more remote conclusions, there is great diversity of opinions. But since the order of society requires unity in acting, an authority is necessary which may explain the more remote conclusions and impose them on all as a norm. Furthermore, natural law contains many things only indeterminately. For example, it prescribes that all should concur toward the common good, but it does not determine in what way they ought to provide this. Hence there is need of authority which may determine indeterminate things according to the diverse circumstances of things and times (St. Thomas, I-II, q. 91, a. 3).

II. Positive divine law.

1. Notion. Positive divine law is positive law made by God. It has been promulgated through revelation. Moreover, this law, insofar as it regards the precepts of natural law, is morally necessary in the present condition of fallen nature, namely so that the said precepts may be known more fully, firmly, and without admixture of error.¹ But once the supernatural order has been posited, positive divine law is absolutely necessary with respect to the precepts of that order, because without it the obligations annexed to the said order cannot be known in any way (St. Thomas, I-II, q. 91, a. 4).

2. Division. Positive divine law is distinguished into primeval, Mosaic, and Christian law.

a) Primeval law is little known to us. It embraces the time which flowed from Adam until the Mosaic law was given; it is usually called the time of the law of nature.

b) Mosaic law, also called the old law, is the law made by God for the Israelite people and promulgated through Moses. I have said: made by God, as is clear from Sacred Scripture.² I have said: for the Israelite people, that is, for the people whom God led out of Egypt, and for their descendants. Therefore the gentiles were not bound by the Mosaic law, except insofar as it was natural. I have said: promulgated through Moses, as Sacred Scripture likewise testifies.³

a) The precepts of the Mosaic law were threefold: moral, ceremonial, and judicial. The notion of these can be gathered sufficiently from the terms themselves.

b) The special end of the said precepts was threefold: to preserve from universal corruption the people from whom the Messiah was going to arise; to join families and individuals more closely with God by ceremonial precepts and prepare them for the coming of the Messiah; finally, to give honorable security of temporal life, abundance of goods, and health of body.

c) The Mosaic law ceased from the death of Christ, or at least from the day of Pentecost, on which the Christian law began to be in full force. Namely, ceremonial and judicial laws are dead, as it is said. Moral laws, although they no longer bind as Mosaic laws, nevertheless bind as natural laws, with the indults of the Old Law also removed. Furthermore, the ceremonial laws are not only dead, but have even become deadly, that is, bringing spiritual death (St. Thomas, I-II, q. 103, a. 4), namely insofar as one would sin who observed them either as having force from the Mosaic law, or with the intention of worshiping God through faith in the Messiah who was to come. But one who observed it with the intention indeed of worshiping God, although not in a prefigurative sense, would place a worship alien from that which God prescribed by himself or through his Church.⁴

c) Christian law, which is also called new, is the law made by Christ for the whole world. Christ promulgated his law by his own mouth, while the Apostles and their successors divulged it and continually divulge it. Moreover, to the Christian law also belong the laws which the Apostles received from the Holy Spirit and promulgated.⁵ The former are called dominical laws, the latter divine-apostolic. There are added the evangelical counsels, namely of poverty, chastity, and obedience, which together with the precepts constitute divine law, which now cannot be removed or changed. Besides, observe:

a) The precepts of the New Law are distinguished into: 1. moral precepts, by which natural law is confirmed; 2. ceremonial precepts, which regard the sacraments and the Sacrifice of the Mass; 3. precepts of faith, whose mysteries Christ explained, increased, and imposed as to be believed.

b) The New Law, as it seems, began to be in full force, or at least to oblige all in first act, from the time at which the Mosaic law ceased, that is, from the death of Christ, or at least from the day of Pentecost.

¹ Vatican Council, constitution Dei Filius, c. II.

² Exod. 19:5-8; 31:18; Lev. 1:1 sq.; Matt. 15:3 sq.

³ Acts 7:53.

⁴ Sweens, Theologia moralis fundamentalis, n. 311.

⁵ Laws which the Apostles made by their own authority are human laws, namely ecclesiastical laws.

III. Positive ecclesiastical law is law made and promulgated by ecclesiastical authority. Now laws made by the Apostolic See are promulgated by publication in the official commentary of the Acta Apostolicae Sedis, unless in particular cases another mode of promulgating has been prescribed (can. 9). Hence the opinion of those who judged that pontifical laws had to be promulgated in individual dioceses in order that they have the force of obliging there must now be altogether rejected. Laws of Ordinaries are usually inserted, and thus promulgated, in the diocesan bulletin.

IV. Positive civil law is law made and promulgated by civil authority. Civil laws are promulgated almost everywhere by the fact that they are inserted in an authentic collection of laws.¹

Note. Law, and especially a collection of laws, is often called ius. Taken in this way, it is usually divided into natural law, the law of nations, ecclesiastical law, and civil law. Concerning the three latter, certain things are to be noted in scholia.

¹ This also has place among us (Wet houdende algemeene bepalingen, art. 2).