Change of Law

Change of Law.—The growth of knowledge and experience, or the change of social circumstances, requires now and then that human laws be improved or adapted to new conditions. But, since laws derive a great part of their influence from custom, they should not be changed unless the break with custom is compensated for by the urgent necessity of the new law, by its manifest advantage, or by the evident iniquity or harmfulness of the old law, In brief, the common good should be the norm by which to decide whether a law should be retained or changed.

Constitutional law, as being fundamental and organic, is more immutable than ordinary law. (a) If given to a society established according to the positive ordinance of a superior, it cannot be abrogated or modified by the legislative authority of that society, since this would be contrary to the will of the founder. Hence, the Church has no power to change the fundamental constitution given her by Christ, who prescribed the religious society as established by Him to be necessary. (b) If a constitutional law is given to a society which is perfect and necessary from the law of nature, such constitution can be modified for extraordinary reasons and in the special ways provided (e.g., by amendments approved by the people).

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.

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.

DISSERTATION V ON THE MUTATION OF LAWS

St. Thomas, g. 97.

A law can be mutated in many ways: 1° by abrogation, if it be taken away in whole, or by derogation, if in part;

2° by cessation of its end; 3° by custom; 4° by dispensation; 5° by interpretation. Of all which we shall treat in this last dissertation.

Whence be it