How a law ceases

The law itself can cease in three ways: a. through abrogation or derogation; b. through cessation of the end; c. through contrary custom.

198. On abrogation. 1. Abrogation is the total removal of a law made by the legislator himself; derogation is the partial removal of a law.

2. No one can altogether abrogate a law or derogate from it in part except the legislator himself, or his successor, or his superior: for just as the existence of the law depends upon the will of the legislator, so also its cessation.

3. A law can be abrogated either by declaring that some law already lacks the force of obliging, or by issuing a new law which is entirely contrary to a preexisting law.

199. On the cessation of the end. 1. Declarations. a. The end or motive cause of a law can cease adequately if the whole reason which moved the legislator to issue the law ceases, or inadequately if only one reason ceases while another remains.

b. The adequate end of a law can cease universally or for the greater part of the community, or particularly, or for an individual person only.

c. The end of a law is said to cease contrarily when its observance is harmful or too difficult or altogether useless; and it is said to cease negatively if the end of the law does not exist in a particular case, but nevertheless the observance of the law is neither harmful nor impossible nor altogether useless (for the community).

If, e.g., the prohibition of reading a bad book cannot be observed without detriment to faith, because faith cannot be defended unless the book is read, the end of the law ceases contrarily; it ceases negatively if the reading brings no damage only to the reader.

2. Principles. a. When the motive cause ceases adequately and universally, the law itself ceases: for if the end of the law ceases, the law becomes useless and therefore null; when the motive cause ceases inadequately, the law does not cease, because the law is not yet useless.

b. If the end of the law ceases contrarily in a particular case, the law ceases; but if the end of the law ceases only negatively, the law does not cease.

The reason is: if the end of the law ceases contrarily, in reality we can use epikeia; but if the end of the law ceases only negatively, the common good requires that a law which has been issued for the common good be observed by all: for unless it must be observed by all, it soon loses efficacy, because many, thinking that the end of the law has ceased for them, would not observe the law and by their example would seduce many others. Besides, if it is permitted to the judgment of individuals whether in a particular case the danger of damage ceases, laws of this kind would be useless for most people on account of the danger of hallucination.

The opinion which holds that a law ceases when its end ceases merely negatively, and which some authors (Tamburini) hold as probable, is not brought into practice, because it seems to lack probability. Thus the proclamation of marriage is never omitted, even if there is no danger of an invalid marriage; likewise the reading of a prohibited book is not permitted where no danger of perversion is feared for the particular person.¹ The reason of that opinion is this. Just as a law ceases universally if the end of the law ceases for the whole community, because the law has become useless, so the law ought to cease particularly where the end of the law ceases for a particular person, because the observance of the law is useless for this person. But this reason lacks probability, because the observance of a law which is useless for a particular person is useful, indeed even necessary, for the community; therefore the legislator is judged to urge the law whose end ceases only negatively.

¹ Cf. St. Alphonsus n. 199.

A LAW may cease to bind in various ways. It may be abrogated or altogether withdrawn by the legislator, or his successor, or his superior. For he who made the law can unmake it. Derogation is the annulling of some portion of the law, while the rest remains intact. The law may fall into desuetude from non-observance, or on account of a contrary custom being introduced. It may also cease to bind because it no longer attains the purpose for which it was made, and has become useless. It may cease to bind in particular cases because a dispensation has been obtained. Something must be said on custom, on a law becoming useless, and on dispensations, This will be done in the three following sections.

A law can cease intrinsically and extrinsically. It is said to cease intrinsically if its end ceases; it ceases extrinsically when it is removed by the legislator. In addition, it can cease universally, that is, with respect to all, and particularly, that is, with respect to a particular person or a certain class of persons.

The modes by which a law can cease, besides cessation intrinsically, are assigned as abrogation, annulment, and dispensation. Custom and privilege can be added, but these will be treated under every respect. There will be no discussion of commutation of law, because the power of commuting a law is not usually given explicitly, nor is it annexed to the power of dispensing; nevertheless sometimes a privilege has been granted of commuting a law, for example, of the divine office.

The end of a law is said to cease negatively if the law ceases to be useful; contrariwise, if it becomes harmful. In addition, the end of a law can cease for the whole community, or only in a case or for a particular person, while the general utility remains.

I. If the end of a law ceases both totally and for the whole community, the law itself ceases, as being a harmful or useless ordering, at least with respect to the end intended by the legislator (St. Thomas, I-II, q. 103, a. 4, ad 3; St. Alphonsus, I, 199). I said "if the end of the law ceases totally," because, if the legislator has fixed several ends for himself, if one persists, the law persists (St. Alphonsus, loc. cit.).

II. If the end of a law ceases only in a case or for a particular person, the law itself does not cease; nevertheless:

1. If the end ceases contrariwise, that is, if the law becomes harmful, here and now it does not oblige (n. 170). Hence, for example, a wife is not held, indeed she cannot fast, if harm threatens the fetus from fasting.

2. If the end ceases negatively, that is, if the law becomes useless in a particular case or for a particular person, here and now it nevertheless obliges. This follows from what was said in n. 152 (cf. St. Thomas, II-II, q. 154, a. 2; St. Alphonsus, I, 199).

I. Notions of abrogation and derogation. Abrogation is the abolition of the whole law; derogation is the abolition of only part of the law.

II. Persons competent to abrogate a law or derogate from it. The legislator, his successor, and his superior can abrogate a law or derogate from it. Abrogation or derogation is done validly even if a just cause is lacking, but not licitly. Therefore:

1. The Supreme Pontiff can abrogate all ecclesiastical laws, both general and particular, even laws of an Ecumenical Council and apostolic laws. A Bishop can abolish statutes of a diocesan synod; but an Archbishop cannot abolish statutes of suffragan Bishops.

2. Bishops cannot abrogate laws of a Provincial Council; that Provincial Council itself can do this, unless they have been confirmed in specific form, in which case they have become pontifical laws.¹

¹ In Holland a civil law cannot be abolished totally or partially except through a new law, not through a royal edict (Alg. bep., art. 5).

III. Modes of abrogating a law or derogating from it. Abrogation and derogation, considering can. 22, can be made:

1. Through express revocation of the prior law.

2. Through a new law which is directly contrary to the prior one. Nevertheless a general law in no way derogates from statutes of special places and special persons unless something else is expressly provided in it; thus can. 6, 1°, abrogated particular laws opposed to the prescriptions of the Code.

3. Through a new law which orders anew the whole matter of the prior law.

4. Through custom, about which we shall speak afterward.

Note 1. In doubt, revocation of a preexisting law is not presumed, but later laws are to be drawn to earlier ones and, as far as can be done, reconciled with them (can. 23).

Note 2. Revocation of a law which is made through a new law must, of course, be promulgated. But simple revocation of an earlier law does not need promulgation; the externally manifested will of the legislator suffices, because a law does not endure beyond the will of the legislator. But a merely internal revocation does not seem to suffice.

IV. Annulment is the nullification of a law made by him to whom it belongs to confirm it. It differs from abrogation, which regards a law fully in force, while annulment nullifies a law which has not yet been in force. The Supreme Pontiff can annul all laws of inferior legislators, suppose of a National Council, a Provincial Council, and Bishops. An inferior cannot annul the law of a superior.¹

¹ In Holland the king can annul the Statutes of the Provincial and Municipal Administration (Grondw., art. 134, § 3, art. 145; Provincial Law, July 6, 1850; Municipal Law, June 29, 1851).

Cessation of Law.—A law ceases in two ways.

(a) It ceases from without (i.e., from the act of the legislator), when he abolishes it, by total or partial revocation (abrogation, derogation), or by the institution of a new law directly contrary to it (obrogation). In the new Code of Canon Law there are many instances of revocation or obrogation of older legislation (see Canons 22, 23), as in the matter of censures and matrimonial impediments. Examples: In the diocese of X a minor feast was made a holyday of obligation. This law was abrogated, if later on it was decreed that neither the prohibition against servile works nor the precept of hearing Mass was obligatory for that feast; it was derogated from, if later it was decreed that servile works were permitted, but Mass was obligatory for that day; it was obrogated, if a later law included the minor feast in a list of special days of devotion for which the hearing of Mass was recommended.

(b) A law ceases from within (i.e., of itself), when through change of conditions the purpose for which it was made no longer exists, or is no longer served by the law.

The purpose for which a law was made ceases to be served by the law in two cases.

(a) A law no longer serves its purpose, if, from having been a benefit, it has become a detriment, inasmuch as its observance now would be wicked, or impossible, or too burdensome. In this case the law ceases, since it is now contrary to the supreme law that the common welfare be promoted. Example: A particular law forbade the use of fat or grease in the preparation of food on days of abstinence. Later, it became impossible to procure the substitutes previously used.

(b) A law no longer serves its purpose, if, from having been useful, it has become useless, inasmuch as it is no longer necessary for the end intended by the lawgiver. In this case the law ceases, for regulations should not be imposed needlessly. Example: The Council of Jerusalem made a law that the faithful should abstain from using as food animals that had been strangled (Acts, xv. 20). The purpose of the law was to avoid offense to the Jewish converts, who at that time formed a large part of the Christian community and who had a religious abhorrence for such food. But shortly afterwards, the Gentile element having become stronger in the Church, no attention was paid to ceremonial rules of Judaism.

A law ceases to serve its purpose also as follows:

(a) The law becomes harmful or useless with reference to the purpose of the lawgiver generally and permanently, if the changed conditions affect the whole community or the great majority, and are lasting. In this case the law ceases; for, since it is made for the community as a whole and as a lasting ordinance, it cannot endure, if it becomes permanently unserviceable to the community. Examples are given in the previous paragraph.

(b) The law becomes harmful or useless with reference to the lawgiver’s purpose privately or temporarily, if the harm or uselessness affects only individuals, or is not lasting. In this case the law continues to be an instrument of public welfare, or is only momentarily deprived of its beneficial character. Hence it endures; but for temporary inconvenience to the public a remedy is had in suspension of the law, for inconvenience to individuals in dispensation. Example: If the use of fats or grease were forbidden on days of abstinence, and if for a time only it were impossible to obtain the substitutes for the preparation of the food, the law would not cease, but would be suspended until such time as substitutes could be obtained.

The inconvenience caused to individuals from the fact that a law does not serve its purpose in a case before them, does not always justify the use of epieikeia.

(a) If the observance of the law would be detrimental to the purpose intended by the lawgiver, epieikeia might be used; for the lawgiver does not intend that his law should be an obstacle to what he has in view as its end. Example: Caius needs to read a book placed on the Index in order to defend the Faith against attacks, but he is unable to request the general faculty to read forbidden works. Obedience to the law in this case would defeat the purpose of the law, which is the protection of faith, and hence Caius may use epieikeia.

(b) If the observance of the law would be unnecessary, but not detrimental as regards the purpose of the lawgiver, epieikeia may not be used; else the law would lose its force through the judgments of individuals in their own favor, and the common welfare would suffer. Examples: Titus has an opportunity to read a book placed on the Index, but has not the time to apply for permission. The work was condemned as dangerous to faith; but Titus is strong in faith, and wishes only to study the literary qualities of the writer. Sempronius, a parish priest, is requested to officiate at a marriage immediately, without proclaiming the banns or seeking a dispensation from proclamation. The purpose of the law of banns is that impediments may be detected and invalid marriages avoided, and Sempronius is absolutely certain that there is no impediment in the case before him. Titus and Sempronius must observe the law, and the same must be said as regards every actual case in which there is the possibility of self-deception and peril to the common good. The theoretical case, in which neither of these inconveniences would be present, need not be considered.

The purpose of the law ceases to exist as follows:

(a) adequately, when all the reasons on account of which it was made are no longer in existence; in such a case the law itself ceases, for the lawgiver is not considered as intending to oblige when the reason for obligation has ceased. Example: If the bishop orders prayers to be said for rain, the prayers cease to be obligatory when rain has come;

(b) inadequately, when the reason for the law has ceased partially, but not entirely. In such a case the law does not cease, for it still remains useful. Example: If the bishop orders prayers for peace and rain, the prayers are obligatory until both requests have been obtained.

A law ceases, therefore, in greater or less degree, according to circumstances. (a) It ceases entirely or partially, according as it is revoked or as it becomes useless as to all its provisions, or only as to one or more of them; (b) it ceases permanently or temporarily, according as the revocation or cessation is only for a time, or for good.

121. • Law can cease in various ways.

1. Through abrogation, or derogation, according as it is abolished altogether or only in part: for just as a Superior can make a law, so he can remove or restrict the same law.

2. Through cessation of the adequate motive cause, or the total end, on account of which it was made with respect to the whole community; for when the cause of the law ceases, the legislator cannot reasonably urge it.

3. Through desuetude, or through a contrary custom clothed with the due conditions; for then at least the legal consent of the Superior accedes. - Thus most commonly.

QUESTION 1. Whether a law ceases when the final cause ceases only in a particular case, that is, with respect to some persons?

I answer. No, unless it cannot be observed without grave inconvenience; the reason is that the adequate end of the law regards those things which happen commonly, not however particular cases; therefore these do not prevent the end of the law, and therefore the law itself, from persevering. Hence spouses are not exempted from the proclamation of banns, even if they know with certainty that no impediment underlies the marriage. - Suarez, Laymann, and St. Lig., no. 199.

QUESTION 2. Whether someone can read prohibited books, if he fears no danger to himself from them?

I answer: No, for the reason just given; add besides the danger of error. - Thus commonly. - St. Lig., no. 199. - See Cases, no. 109 and following.

318. 1. Concerning abrogation and derogation. Abrogation is the total abolition of a law made by the legislator himself; derogation is the partial abolition of a law.

(A) Since the existence of a law depends on the will of the legislator, he himself, or his successor or superior, can take it away totally or partially.

But for this to be done licitly, a reasonable cause is required, namely nothing other than the good of the community itself. And this, according to St. Thomas,¹ can happen in two ways: (a) indeed it is consonant with human reason that it pass from the imperfect to the perfect; wherefore the first institutors of laws, not being able to consider and foresee all things, established certain imperfect things and things deficient in many respects, which they themselves or their successors wisely changed; (b) moreover what, in ancient times, was useful to society can, circumstances having changed, become useless or harmful.

¹ St. Thomas, Ia IIae, q. 97, a. 1.

(B) But change can be made in two ways: (a) by expressly revoking the old law; therefore in practice, as soon as the will of the legislator to abrogate the law is certainly known, subjects are no longer held to observe it;² (b) by enacting a new law contrary to the pre-existing law: then the later law "obrogates the former, if it expressly says this, or is directly contrary to it, or orders the whole matter of the former law anew from the beginning." (Code, c. 22).

² Suarez, l. VI, c. 27, n. 14-18.

319. 2. Concerning cessation of the end. Since law is an ordination of reason, if the reason which moved the superior to enact the law totally ceases, by that very fact the law itself ceases. But, to avoid the dangers which easily occur from private judgment in a matter of this kind, certain conditions are required:

(a) That the end of the law cease totally: for if one of the motives subsists, the law does not become useless, and therefore does not cease; thus if a bishop has commanded prayers for attaining peace with enemies and the cessation of internal sedition, the law does not cease when peace has been obtained, if sedition still rages; (b) that the end cease adequately, that is, for all the articles of the law: for if it ceases only for one or another, the obligation of those articles is indeed taken away, but not of the others which remain useful, lest, namely, the useful be vitiated by the useless;¹ (c) that it cease generally and permanently, that is, for the whole community and for a very long time: for if it ceases for one or another private person, there is no place for abrogation, but for dispensation or epikeia; if for a short time, suspension of the law suffices.

¹ Rule of law 37, in the Sixth.

A law may cease to be binding either for the whole of a community or for particular individuals only.

1. A law ceases to bind the whole community: a) By abrogation (abrogatio), which is a complete annulment of the whole law; b) By derogation (derogatio), which is the annulment of a portion of the law, the rest remaining intact; c) By the introduction of a contrary custom (consuetudo vim legis habens); d) By the fact that the law has ceased to be useful because it no longer attains the purpose for which it was made (cessante causa cessat effectus); 2. A law ceases to bind individuals, i. e., in particular cases: a) By a dispensation (dispensatio); b) By a privilege (privilegium); and c) By epikia, or equity, i. e., a benign interpretation of the law, by which it is deemed not to apply to some particular case.

Cases sometimes arise where it may be assumed that the lawgiver, not having foreseen all possible contingencies, would, if he were consulted, excuse the person so situated.

Epikia (ἐπιείκεια) is the application of a law according to the mind of the lawgiver and contrary to its wording. It applies to human and positive divine laws only, never to the moral law of nature. Epikia is not a self-dispensation, as is sometimes claimed, but may be likened to an act of justifiable self-defense or self-help, when there is a conflict of duties and one has to follow his own judgment or moral conviction in determining which is the higher duty.¹

¹ St. Thomas, Summa Theol., 1a 2ae, qu. 96, art. 6; 2a 2ae, qu. 120, art. 1-2.

Such equitable interpretation is permitted in affirmative and negative or prohibitive laws, not in nullifying laws, i. e., in those which make an act contrary to them null and void,² and only in cases where the observance of a law is attended by serious difficulties and no important interests of Church or State are at stake.³

² Thos. Slater, S.J., A Manual of Moral Theology, Vol. I, p. 103.

³ Lehmkuhl, Theol. Mor., I, p. 147; Sweens, Theol. Mor. Fund., pp. 202 sqq.; Tanquerey, Synopsis Theol. Mor., Vol. II, pp. 169 sq.

READINGS. —Codex Iuris Can., can. 22 sq. —St. Thomas, Summa Theol., 2a 2ae, qu. 120. —Th. Slater, S.J., A Manual of Moral Theology, Vol. II, p. 103. —E. Taunton, The Law of the Church, London 1906, pp. 294 sqq., 324, 266 sqq. —Suarez, De Legibus, I, c. 2, n. 9-11. —A. Lehmkuhl, S.J., Theologia Moralis, 11th ed., Vol. I, pp. 149 sqq. —A. Sweens, Theologia Moralis Fundamentalis, 2nd ed., pp. 232 sqq. —A. Vermeersch, S.J., Theol. Mor., Vol. I, pp. 174 sqq., 223 sqq., 254 sqq.

Order of treatment. - Freedom from obligation can be obtained both by suppressing the law itself and by relaxing its bond. But a law can cease extrinsically because of a new law, or intrinsically because it has become harmful or useless. But the bond of obligation can be removed when subjection has been taken away, or when an impediment has arisen, or when a dispensation has been granted. Therefore we must speak in order concerning both reasons of freedom and the various members or parts of each reason.

— I. Because of a new law. A law is taken away by a new law which expressly revokes the prior law in whole or in part, or is contrary to it, because it sanctions things which cannot be composed with the prior law, or because it orders anew the whole matter of the prior law from the beginning (c. 22).

The first suppression is formal, the second and third are virtual. The reason of the third is this, because it is adverse to the common good that the same subject matter be under a twofold ordering.

The complete revocation of a law is called abrogation; derogation is called its partial revocation; obrogation, finally, the introduction of a contrary law.

Since a law is presumed useful to the common good, its cessation is judged odious. Wherefore rights are rather to be harmonized than opposed.

Therefore a general law indeed obrogates a general law because of contrariety, but not a special law of places or persons, unless something else is expressly provided in the new law. (Cf. c. 22).

— II. When the end ceases. A law also ceases if its end ceases contrarily, that is, if the law has become harmful, unreasonable; indeed if for the community the end has adequately vanished, so that the law has commonly become useless. This uselessness can occur only in indifferent matter. But indifferent matter, as such, the legislator cannot command: the law would no longer be an ordination to the common good. Cf. 1, 2, q. 109 art. 4 ad 3; Suarez, Leg. 6, 9, 6. Suppose that, on account of public security from disease, assemblies are prohibited: when the plague ceases, the prohibition itself will cease.

What if not commonly, but in the case of a particular person, the end of the law has ceased negatively, that is, it has become useless? The particular act always preserves the honesty of the thing commanded. To permit an exception is to give place to much hallucination. Wherefore the common good itself seems to stand against that exception. Therefore, with the more common opinion, for example Suarez, l. c.; Laymann, De legib. (I, 4) 21, 3; Lehmkuhl, I, 276, 277; it must be said that the law does not cease because of particular uselessness.

Nevertheless, where scandal has been absent and uselessness is clearly certain, with St. Alphonsus, I, 199, the use of the more benign opinion can be tolerated.

But this can no longer be transferred to canonical laws which are said to be founded on a presumption of danger, since we have the contrary expressly promulgated in canon 21.

234. Preliminary Note. Law can cease in two ways: a) as to the obligation alone in some case or in a few particular cases, so that the law itself remains whole and intact; b) as to the obligation and substance at the same time, so that now nothing of the law remains. Each mode of ceasing must be treated individually.

The obligation of the law in a particular case, the law itself remaining, can cease: a) because of ignorance of the subject; b) because of impotence of the subject; c) because of dispensation of the superior; d) because of a contrary privilege granted. Concerning excusing ignorance (not from the material, but only from the formal transgression of the law) it has already been said above in the treatise on human acts n. 45 sqq. It remains to speak 1. of impotence, 2. of dispensation, 3. of privileges.

The law itself, both as to obligation and as to substance, can cease from a threefold cause: a) by revocation made by a legitimate superior; b) by cessation of the total end; c) by contrary custom. Since very few things must be said about revocation of law, we comprehend at the same time the first and second cause of the cessation of the law itself, and thus the whole article is divided into five paragraphs, of which the first three pertain to the cessation of obligation and the following two to the cessation of the law itself, namely 1. concerning cessation of obligation because of impotence; 2. concerning cessation of obligation because of dispensation; 3. concerning cessation of obligation because of privilege; 4. concerning cessation of the law itself a) because of revocation; b) because of cessation of the total end; 5. concerning cessation of law because of contrary custom.

269. The law itself can cease in a threefold way: 1. through revocation; 2. through the cessation of the total end; 3. through contrary custom. - Concerning custom there must be special treatment in the following paragraph. There remain in this paragraph a few things to be said concerning the revocation of law, and then concerning the cessation of the end.

270. Revocation of law by a superior can be made either totally or partially: 1. through abrogation,¹¹⁹ which is the total abolition of a law made by the legislator himself (or his successor or superior); 2. through derogation,¹²⁰ which is a partial abolition or change made in the same way;¹²¹ 3. through subrogation, which is an addition to an already existing law; 4. through obrogation, which is had if a law is removed by a contrary law.

Those who can make laws are likewise able to abrogate, derogate, subrogate, and obrogate laws, according to that adage: "A thing is dissolved by those causes by which it is born." Since the Supreme Pontiff is the supreme legislator in the Church, he can abrogate any merely ecclesiastical law, even if it was made by an ecumenical Council. Thus Pius X abrogated the celebrated decree Tametsi, which had been made by the ecumenical Council of Trent. - But all Prelates having ordinary jurisdiction in the external forum can abrogate not only their own laws, but also those of their predecessors.

The mode by which laws are abrogated or by which derogation is made from them is not always the same. Sometimes abrogation or derogation is expressly declared; sometimes new laws are substituted, through which previous laws are implicitly abrogated or derogated from. Concerning this implicit abrogation or derogation the rule holds: A later general law indeed derogates from or abrogates an earlier opposed general law, but not a particular law, unless this is expressly established. The reason of the first part is that opposed and contrary things exclude one another. The reason of the second part is that a particular law, as having from the beginning been made as a certain exception of the general law, is judged to endure so long as it has not clearly and certainly been revoked.¹²² It is established specially: "Any laws, whether universal or particular, opposed to the prescriptions of the new Code of Canon Law, are abrogated, unless concerning particular laws something else is expressly provided." "In doubt the revocation of a preexisting law is not presumed, but later laws are to be drawn to earlier laws and reconciled with them, insofar as it can be done."¹²³

¹¹⁹ Repeal of a legal prescription (Aufhebung einer Rechtsvorschrift).

¹²⁰ Alteration of a legal prescription (Abänderung einer Rechtsvorschrift).

¹²¹ "Derogation is made from a law when a part is taken away; a law is abrogated when it is entirely removed" (l. 102 D. 50, 16). Cf. also Fragmenta D. Ulpiani I, 3.

¹²² Cod. iur. can. c. 22.

¹²³ Ibid. c. 6, n. 1 and c. 23.

271. Cessation of the total end, or of the adequate motive cause, on account of which the law was made, produces the cessation of the law itself. The reason is that, when the total cause ceases, the effect also must cease.¹²⁴ Thus, for example, if a bishop prescribed a prayer for recovering the health of the king, when the king has died, by that very fact this prayer is to be omitted. - The end of the law can cease universally, particularly, contrarily, and negatively.

1. If the total end ceases universally, i.e., for the whole community, or even for by far the greater part of the community, the law itself ceases. The reason is that then the law becomes useless, indeed also harmful, and therefore null.

2. If the total end of the law ceases particularly, i.e., for some particular persons, a distinction is needed:

a) If such an end ceases contrarily, so that observance becomes harmful or too burdensome, the law itself ceases, or at least its obligation.^124a The reason is that no positive law obliges with great inconvenience. But it would be a great inconvenience if in that case the law were still to oblige.

b) If the total end of the law ceases for some subjects only negatively, i.e., if observance of the law is indeed without utility, but also without great inconvenience, then the law does not cease. Thus the opinion to be held in practice.¹²⁵ The reason is that otherwise the sinew of discipline would be loosened, a broad gate would be opened to dangerous hallucinations, and the common good would be harmed. And truly, if each one could freely omit the observance of the law which seems useless to him, hallucinations would be inevitable and gradually the number would increase of those who from the same motive would neglect the law. Hence, for example, the law of matrimonial proclamations does not cease in that case in which someone knows with certainty that no impediment stands in the way of the marriage; the law concerning the prohibition of books, made for avoiding dangers arising from the reading of bad books, does not cease because someone firmly thinks that no danger threatens him from the reading of a proscribed book.

¹²⁴ Cf. theol. I, 2, q. 97, a. 2.

^124a Cf. nevertheless those things which above, n. 233, were said concerning invalidating law.

¹²⁵ Cf. nevertheless St. Alphonsus, Theol. mor. l. 1, n. 199 and below II, 410.

St. Alphonsus, I, 199; ed. G., I, p. 176; Aertnys, l. I, n. 193. - As regards customs, see Reiffenstuel, Pirhing, Santi, Laurentius, Heiner, Aichner in the title de Consuetudine.

255. A law is said TO CEASE, when it ceases to oblige the whole community, so that a new promulgation would be needed if the legislator willed it to oblige anew. This can happen: both a) from within, or on the part of the law itself, namely through cessation of its final cause; and b) from without, either on the part of the legislator alone, through abrogation and derogation of the law, or also on the part of subjects, through desuetude or contrary custom, strengthened by some consent of the legislator.

Hence three things must be treated: 1. concerning the cessation of law from within; 2. concerning abrogation and derogation of law; 3. concerning custom, concerning which, on account of the connection of things, it remains to be discussed not only insofar as it is contrary to law, but also insofar as it induces or interprets law.

Things to be noted beforehand. 1. The adequate end of law is that which is the total end of the law or precept. This end can be either unique, for example, if prayers are prescribed only for obtaining peace; or it can coalesce from several, as in the law of the prohibition of books: whose end is both that the damage of harmful reading be avoided, and that obedience be offered to the Church in such pernicious matters, and especially lest an occasion be given to depraved writers of disseminating novelties and harmful doctrines (H. Ap., II, 70).

2. The end of law can cease in a twofold way, either for the community or for such a subject: a) contrarily, namely when the law, circumstances having changed, is rendered harmful, unjust, or at least very difficult; b) privatively, when it becomes useless, for example, because the good which the legislator intended has either already been perfectly obtained, or can no longer be obtained thereafter.

256. PRINCIPLES. I. When the end of the law ceases contrariwise and in common, the law also ceases by the fact itself. The reason is clear from the things said concerning the nature of law: because as soon as law in common, that is, with respect to the whole or at least the greater part of the community, becomes harmful, inequitable, or morally impossible, it is no longer an ordinance of reason unto the common good, and therefore it is not law.

If the law becomes truly harmful or very difficult, not for the community but for a private person, place is given to epikeia. Yet the law does not cease in those circumstances, but only its obligation is suspended. Thus he who on a fast day has nothing except meats for eating is not held to abstinence. See the things said concerning the reading of a prohibited book in an urgent case (n. 192). Cf. what St. Alph. teaches, VI, 613; ed. G., III, p. 639, where the discourse is concerning a pastor who discovers an impediment when all things are already prepared for the nuptials.

257. II. When the adequate end of the law ceases privatively, in common, the law likewise ceases by the fact itself. Thus, if someone vowed not to enter some house on account of danger of fornication, when this danger ceases, the vow also ceases. The reason, because since the law is useless, it loses the force of obliging. Thus St. Thomas and the Salmanticenses with the common opinion (I, 199).

We have said 1. When the adequate end ceases; for if only a partial end ceases, the law by no means ceases. For then the final cause remains in the remaining part, and therefore the law itself remains: it is understood, provided that the cause which remains is still sufficient. Thus, for example, an imposed prayer for obtaining peace and warding off plague does not cease if, peace having been obtained, the epidemic continues to rage.

But if in a particular case, for some brief time, the law becomes useless to the community, the same conclusion stands as in the preceding number (cf. also n. 173); the obligation is suspended.

2. In common, that is, with respect to the whole or at least the greater part of the community; because if the end of the law ceases only in a particular case and as regards a private person, the law itself does not therefore cease for the community.

3. The law ceases by the fact itself, that is, the declaration of the legislator or a contrary custom is not to be awaited, as all with the Salmanticenses (de Leg., c. 4, n. 4), against a few, affirm, and indeed rightly; for where the essentials of law are lacking, the law collapses of itself. It suffices, therefore, that it be clear to me in particular, or probable, namely through reasons truly or readily probable, that the adequate end of the law has ceased in common. But it is otherwise if I doubt through slight or equiprobable reasons, as has been demonstrated several times.

258. III. When, in a particular case, the adequate end of the law ceases privatively, the law does not cease.

The reason: it conduces to the common good that all be bound by laws, even if they believe them to be useless for themselves. Add that in these things there will ordinarily be great danger of hallucination (St. Thom., 2.2, q. 154, a. 2).

This reason especially urges when the matter concerns laws founded on a presumption of right. Thus, for example, spouses are not exempted from the proclamation of banns, although they prudently judge that no impediment of matrimony exists (I, 199; VII, 237; Istruz., II, 74; Conf. dir., II, 23; 2 El. q. reform., n. 5).

Note. Nevertheless St. Alphonsus adds (I, 199): "If sometime a case occurred in which someone was altogether certain and secure that every danger of hallucination was absent; then I would not dare to disapprove the opinion of those saying that then, in the particular case, the law ceases."

Yet in circumstances of this kind a dispensation of the law is easily conceded (Suarez, l. 6, c. 18, n. 24).

259. I. ABROGATION of law is the total abolition of that law which is perfectly obliging. This can be done either through the express revocation of a Superior, or through a later law which is repugnant to the former law.

It differs from invalidation or annulment, which is the abolition of a law not yet perfectly obliging, made by him whose part it is to have it ratified. Thus, for example, when the Pope does not approve Councils proposed for his approval, he invalidates them (Bened. XIV, de Syn., l. 5, c. 4, n. 3).

II. DEROGATION is the partial abolition of a law perfectly obliging.

260. Concerning each cessation of laws of this kind, three rules are established:

1. Abrogation or derogation of ecclesiastical laws is ordinarily accustomed to be done through new laws incompatible with previous laws, without those previous laws being expressly revoked. But it must be diligently observed that previous laws are never judged to have been abrogated through later laws, unless they are altogether contrary to these later laws; for whenever contrariety can in some way be explained, correction of laws, insofar as it can be done, is to be avoided.

2. Through a general law the particular law of some place is never abrogated, unless it is expressly said: notwithstanding any particular law whatever, or: from our certain knowledge. The reason is, because the legislator is judged to be ignorant of particular laws, but not of common laws (I, 199; H. Ap., II, 71).

3. In order that a law be validly abrogated by the legislator or by his successor, no cause is required; since the whole force of the law depends on the will of the legislator. But so that it be licitly revoked, a just cause is necessary, regarding the common good.

Indeed, according to St. Thomas (1.2, q. 97, a. 2), laws are not to be changed for any improvement whatever, but for great utility or necessity. The reason is, "because custom avails very much for the observance of laws, so much so that those things which are done against common custom, even if they are in themselves lighter, seem graver: whence when law is changed, the constrictive force of law is diminished insofar as custom is taken away; and therefore human law ought never to be changed, unless from some part there is compensated to the common welfare as much as from this part is derogated."

Note beforehand. Here the matter concerns only human law, which can be changed or taken away through custom. Against natural or divine law there cannot be given custom. Yet divine law, as regards the extension of the object, will be able to be more explained through custom: for example, as regards the accusation of external sins.

261. DEFINITION. Custom is either of fact or of right. Custom of fact, or material custom, is frequency of similar acts of some community. Custom of right, or formal custom, concerning which we here treat, is customarily defined: Unwritten right, induced by long-standing morals of the people, with some consent of the legislator.

DIVISION. Custom is either according to, beyond, or against law.

1. Custom according to law is that which is conformable to pre-existing law. Such custom confirms or interprets an established law by long use (cf. n. 170).

2. Custom beyond law is that which is neither prescribed by law nor opposed to law, such as would be, for example, the custom of hearing Mass outside feast days. Such custom can induce a new right where law is lacking.

3. Custom against law is that which is opposed to law, as there are, for example, in divine offices many ceremonies which the Roman decrees do not acknowledge (cf. n. 1638). Such custom introduces a right contrary to law, either by abrogating the law, or by derogating from it, whether as regards the obligation itself, or at least as regards the penalty established by the law. "Custom can also validate a contract invalidated by law, and introduce new impediments invalidating matrimony" (I, 107), and thus we have the impediment of disparity of cult.

With these things premised, it comes to be treated: 1. concerning the conditions of legitimate custom; 2. concerning the prohibition and abrogation of custom.

262. The conditions, in order that custom constitute right, are required partly on the part of the community, partly on the part of the object, partly on the part of the prince.

I. ON THE PART OF THE COMMUNITY. Custom ought to be induced by a community capable of law, or at least by the greater part of it, through public, frequent, free, uninterrupted acts, placed with the intention of constituting right, for a long time.

It is said 1. By a community, not any whatever, but capable of law, that is, which is capable of legislative power for itself, or at least sufficient that true law can be imposed upon it (cf. n. 109, 4.).

2. Or at least by the greater part of it; because obligation is induced by the community, with the prince consenting; but it would not truly be induced by the community if only the lesser part observed the custom. But the greater part already morally represents the community.

3. Through public acts: so that all of the people, or the greater part, can come together in rendering consent, and such a custom can be known to the prince; and therefore the acts ought to be public, at least by notoriety of fact.

4. Through frequent acts; for two or three acts do not suffice, as some have less rightly supposed; but it is required that the acts be repeated several times, according to the judgment of prudent men, so that from them the consent of the community can reasonably be gathered (I, 107, 3.).

5. Through free acts, that is, not exercised from force, fear, or error; for the people cannot be presumed to will to establish right through acts which they themselves place either unwillingly or from mere error: nor is the Superior himself, in adjuncts of this kind, judged to consent (H. Ap., II, 79, 80).

6. Through uninterrupted acts, that is, confirmed by continued use; because if the people have placed one single act contrary to the custom, or the prince has punished the acts of the people, prescription against the law would have to be begun again.

7. Through acts placed with the intention of constituting right, that is, with the intention of imposing a law on themselves, if custom beyond right is introduced; or of exempting themselves from law, if custom against right is introduced. The reason is, because only then is the prince presumed to acquiesce in the community. But the mind of obliging oneself under grave matter is gathered from circumstances, namely if the custom is constantly observed, with not light inconvenience, if transgressors are punished, if thus pious men commonly think (cf. n. 1224, 1. and n. 2204, 3.). See St. Alph., III, 1009, dub. 3; IV, 142, where he treats of the obligation of reciting the office which custom has imposed on nuns and religious.

From this you will infer: 1. Custom beyond law is not induced if the people or the greater part of it acts from devotion, gratitude, or a similar motive, for example, by reciting the angelic salutation at the signal of the bell. 2. Nor does desuetude or custom against law prevail if the law is violated only inconsiderately and with the mind of not satisfying it;¹ for some intention of de-obliging oneself is required. Nevertheless, if a law is not observed for a long time in good faith, namely from ignorance of the law, it can prevail by way of prescription. Namely, it suffices that, with the opinion that the law does not exist, the people in good faith do not observe it (H. Ap., II, 80).

8. Placed for a long time, which nevertheless is diverse according as there is had the personal or legal consent of the prince (cf. n. 264). When personal consent stands on the part of the prince, a time so long-lasting is not required for legitimating custom; but when legal consent stands, a decade suffices, so that custom beyond law, or custom against a law not yet received by use, may be induced, indeed even so that any law whatever, whether civil or ecclesiastical, may be abrogated.

This last thing St. Alphonsus (I, 139) teaches as probable with grave authors, against others who require 40 years. Cf. the assertions of the Holy Doctor, III, 849; Benedict XIV, de Synodo, l. 13, c. 5, n. 4.

Note. On the part of the community, good faith is not required of itself,² so that this custom alone becomes legitimate which began without sin. "In the beginning, those introducing custom against law all sin. In progress, those using it when it has already been introduced by their elders do not sin, but they can be punished. But at the end, those using it when it has already prescribed neither sin nor can be punished." St. Alph., I, 107; ed. G., I, p. 89.

263. II. ON THE PART OF THE OBJECT. Custom ought to be good and reasonable.³ The reason is, because it ought to be, like law, an ordinance of reason. Now indeed, custom must be held good and rational if its object is such that it could have been the matter of a just law. Whence it ought neither to be opposed to natural or divine right, that is, to be evil in itself, nor to be reprobated by canonical right as weakening discipline, nor to furnish license or occasion of sinning, nor to stand against common utility. Thus the custom of not accepting decrees of the Holy See, of not receiving its legates, etc., is of no strength (cf. Reiffenst. in l. I Decr., t. IV, n. 34).

Note. 1. It is not required that custom be positively reasonable, but it suffices that it be negatively consonant with reason, so that nothing impedes it from becoming reasonable in the course of time, or from its being reasonable not to urge its observance further, lest delicts be multiplied.

2. In doubt, and when the judgment of prudent men is lacking, it is to be presumed that a custom is reasonable from its possession, that is, from the fact that it has been introduced.

264. III. ON THE PART OF THE LEGISLATOR. For establishing custom, the consent of the legislator is required, whether personal or legal; because the power of establishing or abrogating laws belongs not to the people, but to the legislator (I, 107). Now indeed:

1. Personal consent is that by which the prince through himself immediately approves the custom, either expressly, by giving license that it be induced; or tacitly, when, conscious that a custom is to be introduced, he does not resist it, although he could easily resist. In this case, custom is said to be introduced by way of connivance, and therefore, if by certain indications the tacit consent of the legislator is clear, a long-lasting time is not required.

But observe that custom is not confirmed by silence commanded by prudence, namely if the Pope or prince is silent on account of fear of a greater evil, for example, schism, rebellion. Whence that common saying: "The Church suffers many things which she does not approve" (cf. 164, 2.).

2. Legal consent, always-presumed, is had when the legislator, even if perhaps he is ignorant of the custom, consents to it through the general will expressed in right of approving any reasonable custom whatever as soon as it has been legitimately prescribed. In this case, custom obtains force by way of prescription. See the things said n. 262, 8.

265. IT IS ASKED. What must be done in doubt concerning custom?

Resp. 1. In invincible doubt whether custom beyond law exists or not, whether it has prescribed, whether there was present the mind of obliging oneself, etc., you are held to nothing; because custom of this kind is a new law, which, if it doubtfully exists, does not oblige. If you doubt whether it obliges under grave or under light matter, to fault or to penalty, the more benign part is to be held.

2. In doubt whether desuetude or custom against law exists already prescribed or not, you are held to the law; because this is in possession, and a certain law does not cease through an uncertain contrary cause. Nevertheless, the statement of an outstanding Doctor, even a modern one, asserting that the law has been abrogated, suffices so that we may be de-obliged from the law; for such authority, when it is not weakened by other Doctors, effects moral certitude (cf. n. 63, 3. and 4.). Read our Holy Doctor, I, 107; ed. G., I, p. 89; III, 290; ed. G., I, p. 560, where he proves the words of Mazzotta: in doubt concerning custom, the precept possesses, and dispensation is to be sought; otherwise, if it is probable that custom is present.

Custom can be prohibited for the future, or abrogated in the present, as follows.

266. I. Custom can be PROHIBITED through a clause expressed in some law. And this in two ways:

1. Through a prohibiting clause, for example, through these words: "we do not will any custom against this law to have force." Through a clause of this kind, every custom to be introduced in the future is prohibited, which nevertheless is not therefore declared evil or irrational, and therefore, notwithstanding such prohibition, a future custom can prevail.

St. Alphonsus (I, 108; H. Ap., II, 81) follows this opinion as probable with Suarez (l. 7, c. 19, n. 21), Bonacina (disp. I, de Leg., q. 1, punct. ult. § 3, n. 36), and others. The reason: such a custom can put on all the conditions numbered above. The prohibition annexed to the law indeed demonstrates that the custom to be begun here and now is judged to be irrational, and that the prince wills to consent only with difficulty. But circumstances can change, and the tacit consent of the prince, in most grave circumstances, is not excluded by the clause.

From these things you see what must be thought concerning the axiom: Against Trent there is no prescription. In reality, although Trent contradicts it, the usage of conferring parochial benefices without a concursus, or with it not carried out according to the clearly prescribed form, has prevailed almost everywhere. Cf. De Angelis, Prael. Jur. can., l. I, tit. 4, n. 12. As regards customs against the Rubrics, see the things which will be said n. 1638.

2. Through a reprobating clause, as when the law says: "altogether disapproving that custom, since it is deservedly to be judged not so much custom as corruption." By this formula indeed custom is declared evil and irrational, but from this it does not follow that such a one can never prevail.

Thus St. Alphonsus solves the question (l. c.): "But if it is reprobated as contrary to natural or divine law, then no custom can have force. But if it is reprobated as irrational for the time in which the law is made, then, from a new cause, it can be rendered reasonable and have force" (cf. n. 263).

267. II. A prevailing custom can be ABROGATED through a supervening law. But here a distinction must be made:

1. If the custom is universal, by the fact itself it is abrogated through a subsequent contrary law, without a derogatory clause being necessary; for otherwise the new law would become useless.

2. But if it is particular, or local, it is by no means abrogated through a general law, unless mention is made of the custom, or unless the clause is added: notwithstanding any custom whatever; because the legislator must be judged to be ignorant of the custom.

And hence it is why Bishops, through the laws which they establish, abrogate all and singular particular customs, because they themselves are presumed to have knowledge of all customs which are in force in their dioceses (I, 109).

3. Finally, if the custom is immemorial, or at least if it numbers one hundred years, it is regularly not abolished except through special mention; for such custom is privileged, insofar as for it there is presumed a title than which no better can be alleged in the whole world, as Fagnanus says.

We have said regularly; for even an immemorial custom itself is abolished in certain cases, namely: 1. if a new law declares contrary customs irrational; 2. if the reason of the law operates equally against immemorial customs and against others; 3. if the legislator abrogates all contrary things, one case being excepted; for the exception of one is the exclusion of all the rest (cf. Craisson, Man. Jur. can., n. 142; Bargilliat, Prael. Jur. can., tr. I, c. 5, a. 4).

268. III. Custom can also BE TAKEN AWAY or ABROGATED through another contrary custom. But the new custom ought to be directly contrary to the preceding; namely universal, which takes away a universal; particular, which takes away a particular; and it ought likewise, by repeated acts, in the manner explained above (n. 262), to prescribe (Bouix, de Princip., p. 381).

Note. If some custom is against faith and good morals, one must indeed labor that it be uprooted as soon as possible, since no legitimate prescription can be had in this matter. The same must be said concerning a custom which would be opposed to Christian piety. It belongs to the Superior to strive to take a custom of this kind out of the midst; because, from office, it is incumbent on him to care for the spiritual good of subjects.

But as regards the MODE which must be used in this matter, let obedience be given to the most wise admonition of St. Augustine (Ep. 22, to Bishop Aurelius, n. 5), who, treating of the license of feasts shamefully occupying almost the whole of Africa everywhere, under the empty pretext of honoring the feasts of martyrs, urged the best manner of acting, writing gravely: "Not harshly, as much as I judge, not severely, not in an imperious manner, are those things taken away; more by teaching than by commanding, more by admonishing than by threatening. For thus one must act with a multitude; but severity is to be exercised upon the sins of the few. And if we threaten anything, let it be done with sorrow, by threatening from the Scriptures future vengeance, lest not we ourselves in our power, but God in our speech, be feared."

Cf. the things which Ami du Cl. wisely advises, 1906, p. 42, 361; 1907, p. 249, in relation to customs which are in force among unbelievers; likewise the things which it writes concerning customs of the faithful and the silence of competent authority (1900, p. 1027 ff.).

165. • Law can cease in various ways.

1° By abrogation or derogation, according as it is abolished altogether or only in part: for just as the Superior can make a law, so he can either remove or restrict the same. But each can happen in a threefold way. a) By revocation of the legislator or superior, which however, in order to be licit, requires a just cause. b) By legitimate desuetude or contrary custom, about which below. c) By a later universal law contrary to a prior law likewise universal, and insofar as it is contrary to the same. We have said: likewise universal; for it is established in law that a special law is not derogated by a general one, unless either specific mention of that law is made, or it is otherwise established that such is the mind of the legislator, or it is said: no custom standing in the way, n. 187. 1°.

2° By the cessation of the adequate motive cause, or of the total end, on account of which it was made, with respect to the whole community; for when the cause of the law ceases, the legislator cannot reasonably urge it any longer.

I say: 1) adequately, or the total end; wherefore if prayer has been commanded for obtaining peace, when peace has been obtained, you will abstain from reciting the prayer without any declaration of the Superior; but if prayer for whatever necessity was commanded both for obtaining peace and for driving away an epidemic, when peace has been obtained, but the epidemic is still raging, the obligation of reciting it will not cease.

I say: 2) with respect to the whole community; for it is otherwise if it ceases only in a particular case, or with respect to some persons; for then a distinction must be made. For either it ceases contrarily, namely it is rendered harmful or at least very difficult, as when on a fast day someone has only meats for eating, and it does not oblige; or it ceases only privatively, that is, for that particular case or that person it becomes useless, or no longer conduces to the end which it intends. And in this case to St. Alphonsus,¹ although he admits the opposite is held by many grave Doctors, the more common opinion is more pleasing, which denies that the law ordinarily ceases, since scarcely ever is there not present the danger of hallucination, by which each one in his own cause can easily be deceived. Hence then the law is equated to a law founded on a presumption of law, which always obliges (n. 129. 2°). Hence betrothed persons are not exempted from the proclamation of banns, even if they prudently judge that no impediment of marriage underlies.

I said: denies that law ORDINARILY ceases; for although rarely, yet sometimes, namely if this can be clearly gathered from the mind of the legislator, it will cease, even if the end of the law ceases only privatively.

If there is present a solitary probability (n. 52. 3°. n. 69. 2°) that the law has been abrogated or deleted by contrary custom, or that its end has adequately ceased, you will be able to resolve for liberty.²

St. Thomas, I-II, q. 97.

298. Human law is mutable. - Human law, although negatively it is perpetual because of itself it is stable and always endures like the community, nevertheless positively is not perpetual, because what it commands from its nature is not necessary: "in mutable things," says St. Thomas, "there cannot be anything remaining altogether immutably" (a. 1, ad 2).

Whence human law can be changed either a) on the part of the legislator, who gradually wishes to lead subjects to a greater good; or b) on the part of the matter, which on account of diverse circumstances of times and places becomes less useful to the end; or c) on the part of the subjects, for whom diverse laws are expedient according to their diverse conditions (cf. for ecclesiastical law, Lateran Council IV, c. 26; and Trent, sess. 14, c. 1 and 2; sess. 21, c. 2).

Nevertheless they are not easily to be changed (especially organic laws of political and administrative right), even when some improvement is possible. It is proved:

Human law is rightly changed insofar as, by its change, provision is made for common utility. But the very change of law of itself is harmful and brings detriment to the common good: "for the observance of laws," says St. Thomas (a. 2), "custom has very great force, to such an extent that those things which are done against common custom, even if they are lighter of themselves, seem graver; whence when law is changed, the constraining force of law is diminished, insofar as custom is removed." Therefore human law should never be changed unless so much is recompensed to common utility as is derogated from it by the change. This happens in two cases:

a) either from the fact that some very great and very evident utility comes from the new law;

b) or from the fact that there is very great necessity from this, that the accustomed law either contains manifest iniquity or its observance is very harmful.

299. Human law can be changed in two ways:

1. So that the law itself ceases and we are excused from it generally: either intrinsically by the total cessation of the end itself (when the reason of the law ceases, its disposition ceases, and when the end ceases, the precept ceases), or extrinsically, both by revocation, that is, abrogation and derogation, and also by contrary custom (with the consent of the legislator). Nevertheless, in present-day law neither custom nor cessation of the end is admitted unless it is expressly indicated by the law, nor is it necessary in present-day society: for in these cases the abrogation itself of the law can be proposed by members of the legislative assembly.

2. So that in some way only the obligation of the law ceases (or at least is not applied) in a determined case, and we are excused from transgression of the law, whether formal and subjective only, which happens by ignorance, or also material and objective, which happens intrinsically by inability (which is judged by epikeia), and extrinsically by dispensation, to which privilege pertains.

Nevertheless in present-day law a) dispensation cannot validly be conceded except in rare cases determined by it, b) ordinarily ignorance of the law is not admitted in the external forum, because all are judged to use diligence for knowing the laws; hence although one who is ignorant is innocent before God, before a judge he can be held as guilty: then juridical fault is present, and if the law establishes a penalty, after the sentence of the judge there is an obligation to sustain it by reason of preserving external order and the common good, otherwise all would say that they were ignorant of the laws.

All these things will be more apparent from their application to ecclesiastical law. This will be discussed below.

372. Ecclesiastical law, like every human law, can be changed, and indeed in two ways:

a) Some are causes excusing from law, which do not take away the obligation but impede it from being applied here and now to someone, and excuse from transgression of the law, namely: 1) ignorance, which impedes in the subject only formal and subjective obligation, and 2) inability, which also impedes material and objective obligation.

b) Other causes are exempting from law, which take away the obligation either in a particular case, with regard to certain persons only, so that the law itself does not cease, which happens by 3) dispensation, and 4) privilege; or in general so that the law ceases, either 5) intrinsically, by cessation of the end, or extrinsically, by 6) abrogation and derogation, and 7) custom. Concerning these things we must now speak in species.

398. The intrinsic end of law is that good which the law immediately regards and intends, or the proximate formal motive on account of which it was enacted. It ceases when it has already been obtained or can no longer be obtained, for example, the health of the pontiff to be obtained, if it has been obtained or if the pontiff dies. But it can cease either negatively or contradictorily, when observance of the law is no longer useful for the end: this is simple cessation; or positively and contrarily, when from being just, useful, and morally possible it has become, on account of circumstances, unjust, harmful, or very difficult: this is called change of matter.

399. The rules concerning cessation of the end are usually stated as follows:

I. When the total or adequate end of the law ceases (even negatively) in the universal, that is, with respect to the whole community or the greater part, and indeed permanently, the law ceases, because it becomes useless to the community, at least with respect to that which it intended, nor does the legislator will to obligate when the end intended by him is lacking; a fortiori if it ceases positively and the law becomes universally harmful. Hence the axiom: when the reason of the law ceases, its disposition ceases.

II. When a partial end ceases, the law does not cease, provided the end of the law is sufficient; for example, prayer for peace and fair weather does not cease when this has been obtained.

III. When the end ceases in the particular (with respect to one person or for a time), the law in no way ceases, because it intends the general good; but if it becomes harmful or too burdensome, the law itself does not cease, but as regards the particular case it can fail to obligate by epikeia, if it becomes too grave.

400. Corollary. - Hence for the cessation of law from within, three conditions are required. Namely, the final cause must cease totally as to all parts of the law, universally for the whole community, and constantly; otherwise the law is only suspended.

St. Thomas, I-II, q. 97, a. 2.

401. Abrogation (abroger, revoquer, rapporter) is the abolition or revocation of the whole law; derogation (deroger, modifier) is the abolition or revocation of part of the law, the other part retaining vigor. They differ from invalidation of law: the latter is the abolition, by a superior, of a law enacted by an inferior so that it never obtains force; but the former revoke a law which has had force.

They can be made directly or expressly (formal cessation), or tacitly and indirectly (virtual cessation), by enacting an incompatible law (obrogation).

402. Those who can make laws can abrogate and derogate, namely, the legislator himself, his successor, and his superior. For "every thing is dissolved by the same causes by which it arises."

As regards ecclesiastical laws, these are: the Pontiff for all; Councils for the laws of their own jurisdiction; bishops for diocesan laws, even those enacted in synod, but not for laws enacted in a provincial council, or for diocesan laws if they have been confirmed by the Supreme Pontiff in specific form, that is, not simply in favor of the superior, but in favor of the community, so that the pontiff has made them his own.

They validly do this even without a reason, because positive law essentially depends on the will of the legislator; they do not licitly do it without a just cause, because to abrogate useful laws or frequently change them into others brings detriment to the common good: for thus the people are brought into contempt, and laws are less esteemed and observed, since custom avails much for observance of law.

403. Observations. - 1. Canon 22 is to be noted: "A later law, enacted by competent authority, obrogates a prior law if it expressly says so, or is directly contrary to it, or orders anew the whole matter of the prior law; but a general law in no way derogates from the statutes of special places and singular persons, unless something else is expressly provided in it." Nevertheless, from the express determination of the law, "any laws whatever, whether universal or even particular, opposed to the prescriptions of the Code, are abrogated, unless concerning particular laws the contrary is expressly established" (can. 6, 1°).

2. Concerning tacit abrogation, note: a) a later law is to be reconciled with an earlier one insofar as the propriety of the words permits (can. 23), for change of law is of itself harmful to the community and is to be interpreted strictly;

b) by a general law a prior general law is abrogated insofar as it is directly contrary; not particular customs or the statutes of special places or singular persons, which can be unknown to the legislator;

c) by a later general law a prior general law is abrogated, not only if contrary but also if diverse, if the later law orders anew the whole matter of the prior law (can. 22). Namely, it is opposed to the common good that the same subject matter be under a twofold ordering.

I say. Law can cease in various ways, namely: 1st, by abrogation or derogation, according as it is abolished entirely or only in part; for just as a superior can make a law, so he can take away or restrict the same law; 2nd, by cessation of the adequate motive cause, or of the total end, on account of which it was made with respect to the whole community; for when the cause of the law ceases, the legislator cannot reasonably urge it; 3rd, by desuetude, or by a contrary custom clothed with due conditions; for then at least the legal consent of the superior accedes. Thus most commonly.

A later law, made by competent authority, obrogates a prior law if it expressly states this, or is directly contrary to it, or wholly orders anew the entire matter of the prior law; but with the prescription of can. 6, n. 1 remaining firm, a general law in no way derogates from the statutes of special places and singular persons, unless something else is expressly provided in the law itself (Can. 22).

In doubt, revocation of a preexisting law is not presumed, but later laws are to be drawn to prior laws and, as much as can be done, reconciled with them (Can. 23).

Question. Does a law cease when the final cause ceases only in a particular case, that is, with respect to some persons?

Response. A distinction must be made. If the end of the law ceases contrarily, the law ceases; for in that case the observation of the law is harmful or more difficult than is just. But if it ceases only negatively, the law does not cease; for the adequate end of the law regards those things which commonly happen, but not particular cases. Therefore these do not prevent the end of the law, and therefore the law itself, from persevering. Hence spouses are not exempted from the proclamation of banns, even if they know certainly that no impediment underlies the marriage. - This sentence concerning the obligation remaining when the end of the law ceases negatively is certain and to be held by all; and thus the Code of Canon Law says concerning a law founded on the supposition of danger: laws made for guarding against a general danger urge, even if in a particular case the danger is not present. Can. 21.

Note. - Precepts given to individuals urge those to whom they are given everywhere, but cannot be urged judicially and cease when the right of the one commanding has been resolved, unless they were imposed by a legitimate document or before two witnesses (Can. 24).

I say 1°: The legislator, his successor or superior can abrogate a law, and a fortiori derogate from it; because it belongs to the same power to destroy and to build up.

[Benedict XIV, de Synodo dicc., lib. XIII, c. 5, n. 9, proposes this question, namely: « Whether it be within the competence of the bishop either to delete entirely the synodal constitutions made by himself, or to exempt anyone from them for a just cause, when the same have been confirmed by the authority of the supreme Pontiff? » Having related various opinions, he proceeds, n. 11: « The opinion of Fagnanus seems to be preferred to the others, in cap. Si quis, from n. 11 up to 24, de Confirmatione utili vel inutili, where he teaches that a distinction must be made between confirmation which they call in forma communi and confirmation in forma specifica. It is said to take place in forma specifica in the case of one to which is premised the examination of the cause and each statute is diligently weighed, and then, no condition being added, it is confirmed with apostolic authority, with the clause: motu proprio atque ex certa scientia. Statutes which are not examined singly, nor approved by the Pontiff motu proprio and ex certa scientia, and to which the strength of apostolic authority is not added absolutely but only conditionally, namely if they were made justly, canonically or providently, and provided that they do not run counter to the sacred canons, the Council of Trent, the decrees and apostolic constitutions, are said to be confirmed in forma communi; that latter condition, as the same Fagnanus testifies, n. 18, is wont today to be expressed and set before all confirmations of statutes in forma communi. But now, Fagnanus proceeds, once a statute has been confirmed in forma specifica, since it has put on the nature of a pontifical law, it is not lawful for any inferior to derogate from it. A statute however confirmed in forma communi remains within the competence of those standing to delete, and to withdraw anyone from its obligation for a just cause. For such confirmation bestows on them nothing of law or efficacy which they previously lacked. »]

I say 2°: A general law is considered revoked by a contrary general law. But a particular law, such as are the special customs, statutes and privileges of places, even if there is placed in the general law this general derogatory clause: « Notwithstanding any custom whatsoever, » etc., is not considered revoked unless special mention is made of it, or unless it is otherwise evident that this is the mind of the legislator. So Boniface VIII, cap. Licet, de constit. in 6°,

[Where he says: « Although the Roman Pontiff, who is considered to have all laws in the shrine of his heart, is known to revoke the prior constitution by enacting a later one, although he makes no mention of it; yet since the customs and statutes of special places and individual persons, being matters of fact and consisting in fact, he can probably be ignorant of them, he is not understood by a constitution newly issued by himself to derogate anything from them, so long as they are reasonable, unless provision is expressly made in it. »]

I say 3°: The adequate end of the law simply and absolutely ceasing, and in common, the law ceases; because 1° that is not a law which is not useful to the common good. Therefore, the reason for which it was useful ceasing, it ceases. 2° Because, the reason for which the legislator enacted the law ceasing altogether, he is considered no longer to will it to oblige.

I said: « The adequate end ceasing, and in common; » because, if a law is enacted concerning some work because it is apt to conduce and for the most part does conduce to the common good, although in some particular case, per accidens, de facto it does not conduce, nevertheless the law does not therefore cease, because the end of the law does not cease adequately. E. g., the law prohibits the reading of condemned books, because of the danger of perversion: although you are so disposed that you do not fear perversion in yourself, yet since thence it is apt to follow and for the most part follows, the end of the law remains, nor are you exempted from it.

[You will ask whether the obligation of the law ceases in the particular case if its end then ceases contrarily, that is, if the observance of the law redounds against its end.

I answer. Affirmatively. The reason is, because what is instituted for the common good ought not to fight against it; which would happen if the law were made harmful to the common good, or even to the good of some private person, whose evil redounds against it: as if the law of fasting, which binds when other foods are lacking, or binds anyone because of ill health, were too burdensome; for it concerns the interest of the common good that private persons be kept unharmed.]